46540 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 

DEPARTMENT OF EDUCATION 

34 CFR Parts 300 and 301 

RIN 1820–AB57 

Assistance to States for the Education 

of Children With Disabilities and 

Preschool Grants for Children With 

Disabilities 

AGENCY: Office of Special Education and 

Rehabilitative Services, Department of 

Education. 

ACTION: Final regulations. 

SUMMARY: The Secretary issues final 

regulations governing the Assistance to 

States for Education of Children with 

Disabilities Program and the Preschool 

Grants for Children with Disabilities 

Program. These regulations are needed 

to implement changes made to the 

Individuals with Disabilities Education 

Act, as amended by the Individuals with 

Disabilities Education Improvement Act 

of 2004 (Act or IDEA). 

DATES: These regulations take effect on 

October 13, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Alexa Posny, U.S. Department of 

Education, Potomac Center Plaza, 550 

12th Street, SW., Washington, DC 

20202–2641. Telephone: (202) 245– 

7459, ext. 3. 

If you use a telecommunications 

device for the deaf (TDD), you may call 

the Federal Relay System (FRS) at 1– 

800–877–8339. 

Individuals with disabilities may 

obtain this document in an alternate 

format (e.g., Braille, large print, 

audiotape, or computer diskette) on 

request to the contact person listed 

under FOR FURTHER INFORMATION

CONTACT. 

SUPPLEMENTARY INFORMATION: These 

regulations implement changes in the 

regulations governing the Assistance to 

States for Education of Children with 

Disabilities Program and the Preschool 

Grants for Children with Disabilities 

Program necessitated by the 

reauthorization of the IDEA. With the 

issuance of these final regulations, part 

301 has been removed and the 

regulations implementing the Preschool 

Grants for Children with Disabilities 

Program are included under subpart H 

of these final regulations. 

On June 21, 2005, the Secretary 

published a notice of proposed 

rulemaking in the Federal Register (70 

FR 35782) (NPRM) to amend the 

regulations governing the Assistance to 

States for Education of Children with 

Disabilities Program, the Preschool 

Grants for Children with Disabilities 

Program, and Service Obligations under 

Special Education Personnel 

Development to Improve Services and 

Results for Children with Disabilities. In 

the preamble to the NPRM, the 

Secretary discussed, on pages 35783 

through 35819, the changes proposed to 

the regulations for these programs; 

specifically, the amendments to 34 CFR 

part 300, the removal of 34 CFR part 301 

and relocation of those provisions to 

subpart H of 34 CFR part 300, and the 

amendments to 34 CFR part 304. 

Final regulations for 34 CFR Part 

304—Special Education-Personnel 

Development to Improve Services and 

Results for Children with Disabilities 

were published in the Federal Register 

(71 FR 32396) on June 5, 2006, and 

became effective July 5, 2006. 

Major Changes in the Regulations 

The following is a summary of the 

major substantive changes in these final 

regulations from the regulations 

proposed in the NPRM (the rationale for 

each of these changes is discussed in the 

Analysis of Comments and Changes 

section of this preamble): 

Subpart A—General 

Definitions 

• The definition of child with a 

disability in § 300.8 has been revised as 

follows: 

(1) Section 300.8(b) (Children aged 

three through nine experiencing 

developmental delays) has been 

changed to clarify that the use of the 

term ‘‘developmental delay’’ is subject 

to the conditions described in 

§ 300.111(b). 

(2) The definition of other health 

impairment in § 300.8(c)(9)(i) has been 

changed to add ‘‘Tourette Syndrome’’ to 

the list of chronic or acute health 

problems. 

• The definition of excess costs in 

§ 300.16 has been revised to clarify that 

the computation of excess costs may not 

include capital outlay and debt service. 

In addition, a new ‘‘Appendix A to Part 

300—Excess Cost Calculation’’ has been 

added to provide a description (and an 

example) of how to calculate excess 

costs under the Act and these 

regulations. 

• The definition of highly qualified 

special education teacher in § 300.18 

has been revised, as follows: 

(1) Section 300.18(b), regarding 

requirements for highly qualified 

special education teachers in general, 

has been modified to clarify that, when 

used with respect to any special 

education teacher teaching in a charter 

school, highly qualified means that the 

teacher meets the certification or 

licensing requirements, if any, set forth 

in the State’s public charter school law. 

(2) A new § 300.18(e), regarding 

separate ‘‘high objective uniform State 

standards of evaluation’’ (HOUSSE), has 

been added to provide that a State may 

develop a separate HOUSSE for special 

education teachers, provided that any 

adaptations of the State’s HOUSSE 

would not establish a lower standard for 

the content knowledge requirements for 

special education teachers and meets all 

the requirements for a HOUSSE for 

regular education teachers. This 

provision also clarifies that a State may 

develop a separate HOUSSE for special 

education teachers, which may include 

single HOUSSE evaluations that cover 

multiple subjects. 

(3) Section 300.18(g) (proposed 

§ 300.18(f)) (‘‘Applicability of definition 

to ESEA requirements; and clarification 

of new special education teacher’’) has 

been revised as follows: (1) The heading 

has been revised, and (2) the language 

changed to clarify when a special 

education teacher is considered ‘‘new’’ 

for some purposes. 

(4) Section 300.18(h) (proposed 

§ 300.18(g)) has been modified to clarify 

that the highly qualified special 

education teacher requirements also do 

not apply to private school teachers 

hired or contracted by LEAs to provide 

equitable services to parentally-placed 

private school children with disabilities 

under § 300.138. 

• The definition of Indian and Indian 

tribe in § 300.21 has been changed to 

clarify that nothing in the definition is 

intended to indicate that the Secretary 

of the Interior is required to provide 

services or funding to a State Indian 

tribe that is not listed in the Federal 

Register list of Indian entities 

recognized as eligible to receive services 

from the United States, published 

pursuant to Section 104 of the Federally 

Recognized Indian Tribe List Act of 

1994, 25 U.S.C. 479a–1. 

• The definition of parent in § 300.30 

has been revised to substitute 

‘‘biological’’ for ‘‘natural’’ each time it 

appears in the definition, and to add 

language clarifying that to be considered 

a parent under this definition a 

‘‘guardian’’ must be a person generally 

authorized to act as the child’s parent, 

or authorized to make educational 

decisions for the child. 

• The definition of related services in 

§ 300.34 has been revised as follows: 

(1) Section 300.34(a) (General) has 

been modified to (A) add the statutory 

term ‘‘early identification and 

assessment of disabilities in children,’’ 

which was inadvertently omitted from 

the NPRM, (B) combine ‘‘school health 

services’’ and ‘‘school nurse services,’’ 

and (C) remove the clause relating to a 

free appropriate public education under 


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‘‘school nurse services’’ because it 

duplicates the clause in § 300.34(c)(13). 

(2) Section 300.34(b) has been 

changed to (A) expand the title to read 

‘‘Exception; services that apply to 

children with surgically implanted 

devices, including cochlear implants,’’

and (B) clarify, in new paragraph (b)(1), 

that related services do not include a 

medical device that is surgically 

implanted, the optimization of that 

device’s functioning (e.g., mapping), 

maintenance of that device, or the 

replacement of that device. 

(3) A new § 300.34(b)(2) has been 

added to make clear that nothing in 

paragraph (b)(1) of § 300.34 (A) limits 

the right of a child with a surgically 

implanted device (e.g., a cochlear 

implant) to receive related services, as 

listed in § 300.34(a), that are determined 

by the IEP Team to be necessary for the 

child to receive FAPE; (B) limits the 

responsibility of a public agency to 

appropriately monitor and maintain 

medical devices that are needed to 

maintain the health and safety of the 

child, including breathing, nutrition, or 

operation of other bodily functions, 

while the child is transported to and 

from school or is at school; or (C) 

prevents the routine checking of an 

external component of a surgicallyimplanted device to make sure it is 

functioning properly, as required in 

§ 300.113(b). 

(4) The definition of interpreting 

services in § 300.34(c)(4) has been 

changed to clarify that the term includes 

(A) transcription services, such as 

communication access real-time 

translation (CART), C-Print, and 

TypeWell for children who are deaf or 

hard of hearing, and (B) special 

interpreting services for children who 

are deaf-blind. 

(5) The definition of orientation and 

mobility services in § 300.34(c)(7) has 

been changed to remove the term ‘‘travel 

training instruction.’’ The term is under 

the definition of special education, and 

is defined in § 300.39(b)(4). 

(6) The definition of school nurse 

services in 300.34(c)(13) has been 

expanded and re-named school health 

services and school nurse services. The 

expanded definition clarifies that 

‘‘school nurse services’’ are provided by 

a qualified school nurse, and ‘‘school 

health services’’ may be provided by a 

qualified school nurse or other qualified 

person. 

• A definition of scientifically based 

research has been added in new 

§ 300.35 that incorporates by reference 

the definition of that term from the 

Elementary and Secondary Education 

Act of 1965, as amended, 20 U.S.C. 6301 

et seq. (ESEA). 

With the addition of the new 

definition in § 300.35, the definitions in 

subpart A, beginning with the definition 

of secondary school, have been 

renumbered. 

• The definition of special education 

in § 300.39 (proposed § 300.38) has been 

revised to remove the definition of 

vocational and technical education that 

was included in proposed 

§ 300.38(b)(6). 

• The definition of supplementary 

aids and services in § 300.42 (proposed 

§ 300.41) has been modified to specify 

that aids, services, and other supports 

are also provided to enable children 

with disabilities to participate in 

extracurricular and nonacademic 

settings. 

Subpart B—State Eligibility 

FAPE Requirements 

• Section 300.101(c) has been revised 

to clarify that a free appropriate public 

education (FAPE) must be available to 

any individual child with a disability 

who needs special education and 

related services, even though the child 

has not failed or been retained in a 

course, and is advancing from grade to 

grade. 

• Section 300.102(a)(3), regarding 

exceptions to FAPE, has been changed 

to clarify that a regular high school 

diploma does not include an alternative 

degree that is not fully aligned with the 

State’s academic standards, such as a 

certificate or a general educational 

development credential (GED). 

• Section 300.105, regarding assistive 

technology and proper functioning of 

hearing aids, has been re-titled 

‘‘Assistive technology,’’ and proposed 

paragraph (b), regarding the proper 

functioning of hearing aids, has been 

moved to new § 300.113(a). 

• Section 300.107(a), regarding 

nonacademic services, has been revised 

to specify the steps each public agency 

must take, including the provision of 

supplementary aids and services 

determined appropriate and necessary 

by the child’s IEP Team, to provide 

nonacademic and extracurricular 

services and activities in the manner 

necessary to afford children with 

disabilities an equal opportunity for 

participation in those services and 

activities. 

• Proposed § 300.108(a), regarding 

physical education services, has been 

revised to specify that physical 

education must be made available to all 

children with disabilities receiving 

FAPE, unless the public agency enrolls 

children without disabilities and does 

not provide physical education to 

children without disabilities in the same 

grades. 

• A new § 300.113, regarding routine 

checking of hearing aids and external 

components of surgically implanted 

medical devices, has been added, as 

follows: 

(1) Paragraph (a) of § 300.113 requires 

each public agency to ensure that 

hearing aids worn in school by children 

with hearing impairments, including 

deafness, are functioning properly. 

(2) A new § 300.113(b)(1) requires 

each public agency to ensure that the 

external components of surgically 

implanted medical devices are 

functioning properly. However, new 

§ 300.113(b)(2) has been added to make 

it clear that, for a child with a surgically 

implanted medical device who is 

receiving special education and related 

services, a public agency is not 

responsible for the post-surgical 

maintenance, programming, or 

replacement of the medical device that 

has been surgically implanted (or of an 

external component of the surgically 

implanted medical device). 

Least Restrictive Environment 

• Section 300.116(b)(3) and (c) 

regarding placements, has been revised 

to remove the qualification ‘‘unless the 

parent agrees otherwise’’ from the 

requirements that (1) the child’s 

placement be as close as possible to the 

child’s home, and (2) the child is 

educated in the school he or she would 

attend if not disabled. 

• Section 300.117 (Nonacademic 

settings) has been changed to clarify that 

each public agency must ensure that 

each child with a disability has the 

supplementary aids and services 

determined by the child’s 

individualized education program (IEP) 

Team to be appropriate and necessary 

for the child to participate with 

nondisabled children in the 

extracurricular services and activities to 

the maximum extent appropriate to the 

needs of that child. 

Children With Disabilities Enrolled by 

Their Parents in Private Schools 

• Section 300.130 (definition of 

parentally-placed private school 

children with disabilities) has been 

revised to clarify that the term means 

children with disabilities enrolled by 

their parents in private, including 

religious, schools or facilities, that meet 

the definition of elementary school in 

§ 300.13 or secondary school in 

§ 300.36. 

• A new § 300.131(f), regarding child 

find for out-of-State parentally-placed 

private school children with disabilities, 

has been added to clarify that each LEA 


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in which private (including religious) 

elementary schools and secondary 

schools are located must include 

parentally-placed private school 

children who reside in a State other 

than the State in which the private 

schools that they attend are located. 

• Section 300.133, regarding 

expenditures for parentally-placed 

private school children with disabilities, 

has been revised, as follows: 

(1) A new § 300.133(a)(2)(ii), has been 

added to clarify that children aged three 

through five are considered to be 

parentally-placed private school 

children with disabilities enrolled by 

their parents in private, including 

religious, elementary schools, if they are 

enrolled in a private school that meets 

the definition of elementary school in 

§ 300.13. 

(2) A new § 300.133(a)(3) has been 

added to specify that, if an LEA has not 

expended for equitable services for 

parentally-placed private school 

children with disabilities all of the 

applicable funds described in 

§ 300.133(a)(1) and (a)(2) by the end of 

the fiscal year for which Congress 

appropriated the funds, the LEA must 

obligate the remaining funds for special 

education and related services 

(including direct services) to parentallyplaced private school children with 

disabilities during a carry-over period of 

one additional year. 

• Section 300.136, regarding 

compliance related to parentally-placed 

private school children with disabilities, 

has been revised to remove the 

requirement that private school officials 

must submit complaints to the SEA 

using the procedures in §§ 300.151 

through 300.153. 

• Section 300.138(a), regarding the 

requirement that services to parentallyplaced private school children with 

disabilities must be provided by 

personnel meeting the same standards 

as personnel providing services in the 

public schools, has been modified to 

clarify that private elementary school 

and secondary school teachers who are 

providing equitable services to 

parentally-placed private school 

children with disabilities do not have to 

meet the highly qualified special 

education teacher requirements in 

§ 300.18. 

• Section 300.140, regarding due 

process complaints and State 

complaints, has been revised to make 

the following changes: 

(1) Section 300.140(b)(1) (proposed 

§ 300.140(a)(2)), regarding child find 

complaints, has been changed to clarify 

that the procedures in §§ 300.504 

through 300.519 apply to complaints 

that an LEA has failed to meet the child 

find requirements in § 300.131, 

including the requirements in 

§§ 300.301 through 300.311. 

(2) A new paragraph (b)(2) has been 

added to provide that any due process 

complaint regarding the child find 

requirements (as described in 

§ 300.140(b)(1)) must be filed with the 

LEA in which the private school is 

located and a copy of the complaint 

must be forwarded to the SEA. 

(3) A new § 300.140(c), regarding 

State complaints by private school 

officials, has been added to clarify that 

(A) any complaint that an SEA or LEA 

has failed to meet the requirements in 

§§ 300.132 through 300.135 and 300.137 

through 300.144 must be filed in 

accordance with the procedures 

described in §§ 300.151 through 

300.153, and (B) a complaint filed by a 

private school official under 

§ 300.136(a) must be filed with the SEA 

in accordance with the procedures in 

§ 300.136(b). 

Children With Disabilities Enrolled by 

Their Parents in Private Schools When 

FAPE Is at Issue 

Section 300.148 Placement of Children 

by Parents if FAPE Is at Issue 

• A new § 300.148(b), regarding 

disagreements about FAPE, has been 

added (from current § 300.403(b)) to 

clarify that disagreements between a 

parent and a public agency regarding 

the availability of a program appropriate 

for a child with a disability, and the 

question of financial reimbursement, are 

subject to the due process procedures in 

§§ 300.504 through 300.520. 

State Complaint Procedures 

• Section 300.152(a)(3)(ii) (proposed 

paragraph (a)(3)(B)) has been revised to 

clarify that each SEA’s complaint 

procedures must provide the public 

agency with an opportunity to respond 

to a complaint filed under § 300.153, 

including, at a minimum, an 

opportunity for a parent who has filed 

a complaint and the public agency to 

voluntarily engage in mediation 

consistent with § 300.506. 

• Section 300.152(b)(1)(ii), regarding 

time extensions for filing a State 

complaint, has been revised to clarify 

that it would be permissible to extend 

the 60-day timeline if the parent (or 

individual or organization if mediation 

or other alternative means of dispute 

resolution is available to the individual 

or organization under State procedures) 

and the public agency agree to engage in 

mediation or to engage in other 

alternative means of dispute resolution, 

if available in the State. 

• Section 300.152(c), regarding 

complaints filed under § 300.152 and 

due process hearings under § 300.507 

and §§ 300.530 through 300.532, has 

been revised to clarify that if a written 

complaint is received that is also the 

subject of a due process hearing under 

§§ 300.507 or 300.530 through 300.532, 

or contains multiple issues of which one 

or more are part of a due process 

hearing, the State must set aside any 

part of the complaint that is being 

addressed in the due process hearing 

until the conclusion of the hearing. 

However, any issue in the complaint 

that is not part of the due process 

hearing must be resolved using the time 

limit and procedures described 

elsewhere in the State complaint 

procedures. A new paragraph (c)(3) also 

has been added to require SEAs to 

resolve complaints alleging a public 

agency’s failure to implement a due 

process hearing. This is the same 

requirement in current § 300.661(c)(3). 

• Section 300.153(c), regarding the 

one year time limit from the date the 

alleged violation occurred and the date 

the complaint is received in accordance 

with § 300.151, has been revised by 

removing the exception clause related to 

complaints covered under 

§ 300.507(a)(2). 

Methods of Ensuring Services 

• Section 300.154(d), regarding 

children with disabilities who are 

covered by public benefits or insurance, 

has been revised to clarify that the 

public agency must (1) obtain parental 

consent each time that access to the 

parent’s public benefits or insurance is 

sought, and (2) notify parents that 

refusal to allow access to their public 

benefits or insurance does not relieve 

the public agency of its responsibility to 

ensure that all required services are 

provided at no cost to the parents. 

Additional Eligibility Requirements 

• Section 300.156(e), regarding 

personnel qualifications, has been 

revised (1) to add ‘‘or a class of 

students,’’ to clarify that a judicial 

action on behalf of a class of students 

may not be filed for failure of a 

particular SEA or LEA employee to be 

highly qualified, and (2) to substitute 

the word ‘‘employee’’ for ‘‘staff person,’’

to be more precise in the rule of 

construction in new § 300.18(f) 

(proposed § 300.18(e)). 

• Section 300.160 (participation in 

assessments) has been removed, and the 

section has been designated as 

‘‘Reserved.’’ Participation in 

assessments is the subject of a new 

notice of proposed rulemaking issued 

on December 15, 2005 (70 FR 74624) to 

amend the regulations governing 

programs under Title I of the ESEA and 


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Part B of the IDEA regarding additional 

flexibility for States to measure the 

achievement of children with 

disabilities based on modified 

achievement standards. 

Other Provisions Required for State 

Eligibility 

• Section 300.172, regarding access to 

instructional materials, has been 

revised: (1) To make clear that States 

must adopt the National Instructional 

Materials Accessibility Standard 

(NIMAS), published as Appendix C to 

these final regulations; (2) to establish a 

definition of ‘‘timely manner,’’ for 

purposes of § 300.172(b)(2) and (b)(3) if 

the State is not coordinating with the 

National Instructional Materials Access 

Center (NIMAC), or § 300.172(b)(3) and 

(c)(2) if the State is coordinating with 

the NIMAC; (3) to add a new 

§ 300.172(b)(4) to require SEAs to 

ensure that all public agencies take all 

reasonable steps to provide instructional 

materials in accessible formats to 

children with disabilities who need 

those instructional materials at the same 

time as other children receive 

instructional materials; and (4) to add a 

new § 300.172(e)(2) to clarify, that all 

definitions in § 300.172(e)(1) apply to 

each State and LEA, whether or not the 

State or LEA chooses to coordinate with 

the NIMAC. 

• A new § 300.177 has been added to 

include a provision regarding ‘‘States’

sovereign immunity.’’ That provision, 

which has been added to incorporate 

the language in section 604 of the Act, 

makes clear that a State that accepts 

funds under Part B of the Act waives its 

immunity under the 11th amendment of 

the Constitution of the United States 

from suit in Federal court for a violation 

of Part B of the Act. 

Subpart D—Evaluations, Eligibility 

Determinations, Individualized 

Education Programs, and Educational 

Placements 

Parental Consent 

• Section 300.300, regarding parental 

consent, has been revised, as follows: 

(1) Paragraph (a) of § 300.300, 

regarding consent for initial evaluation, 

has been changed to provide that the 

public agency proposing to conduct an 

initial evaluation to determine if a child 

qualifies as a child with a disability 

must, after providing notice consistent 

with §§ 300.503 and 300.504, obtain 

informed consent, consistent with 

§ 300.9, from the parent of the child 

before conducting the evaluation. A new 

paragraph (a)(1)(iii) has been added to 

require a public agency to make 

reasonable efforts to obtain the informed 

consent from the parent for an initial 

evaluation. 

(2) Section 300.300(a)(3), regarding a 

parent’s failure to provide consent for 

initial evaluation, has been changed to 

clarify, in a new paragraph (a)(3)(ii), that 

the public agency does not violate its 

obligation under § 300.111 and 

§§ 300.301 through 300.311 if it declines 

to pursue the evaluation. 

(3) Section 300.300(b), regarding 

parental consent for services, has been 

modified by a new paragraph (b)(2) that 

requires a public agency to make 

reasonable efforts to obtain informed 

consent from the parent for the initial 

provision of special education and 

related services. 

(4) Section 300.300(c)(1), regarding 

parental consent for reevaluations, has 

been modified to clarify that if a parent 

refuses to consent to a reevaluation, the 

public agency may, but is not required 

to, pursue the reevaluation by using the 

consent override procedures in 

§ 300.300(a)(3), and the public agency 

does not violate its obligation under 

§ 300.111 and §§ 300.301 through 

300.311 if it declines to pursue the 

evaluation or reevaluation. 

(5) A new § 300.300(d)(4) has been 

added to provide that if a parent of a 

child who is home schooled or placed 

in a private school by the parent at the 

parent’s expense, does not provide 

consent for an initial evaluation or a 

reevaluation, or the parent fails to 

respond to a request to provide consent, 

the public agency (A) may not use the 

consent override procedures (described 

elsewhere in § 300.300), and (B) is not 

required to consider the child eligible 

for services under the requirements 

relating to parentally-placed private 

school children with disabilities 

(§§ 300.132 through 300.144). 

(6) A new § 300.300(d)(5) has been 

added to clarify that in order for a 

public agency to meet the reasonable 

efforts requirement to obtain informed 

parental consent for an initial 

evaluation, initial services, or a 

reevaluation, a public agency must 

document its attempts to obtain parental 

consent using the procedures in 

§ 300.322(d). 

Additional Procedures for Evaluating 

Children With Specific Learning 

Disabilities (SLD) 

• Section 300.307 (Specific learning 

disabilities) has been revised, as 

follows: 

(1) Proposed paragraph (a)(1) of 

§ 300.307, which allowed a State to 

prohibit the use of a severe discrepancy 

between intellectual ability and 

achievement for determining if a child 

has an SLD, has been removed, and 

proposed paragraph (a)(2) of § 300.307 

has been redesignated as paragraph 

(a)(1). 

(2) Section 300.307(a)(2) (proposed 

paragraph (a)(3)) has been changed to 

clarify that the criteria adopted by the 

State must permit the use of a process 

based on the child’s response to 

scientific, research-based intervention. 

• Section 300.308 (Group members) 

has been changed to require the 

eligibility group for children suspected 

of having SLD to include the child’s 

parents and a team of qualified 

professionals, which must include the 

child’s regular teacher (or if the child 

does not have a regular teacher, a 

regular classroom teacher qualified to 

teach a child of his or her age) or for a 

child of less than school age, an 

individual qualified by the SEA to teach 

a child of his or her age; and at least one 

person qualified to conduct individual 

diagnostic examinations of children, 

such as a school psychologist, speechlanguage pathologist, or remedial 

reading teacher. These are the same 

requirements in current § 300.540. 

• Section 300.309 (Determining the 

existence of a specific learning 

disability) has been revised, as follows: 

(1) Paragraph (a) of § 300.309 has been 

changed (A) to clarify that the group 

described in 300.306 may determine 

that a child has a specific learning 

disability if the child does not achieve 

adequately for the child’s age or to meet 

State-approved grade-level standards in 

one or more of eight areas (e.g., oral 

expression, basic reading skill, etc.), 

when provided with learning 

experiences and instruction appropriate 

for the child’s age or State-approved 

grade-level standards; and (B) to add 

‘‘limited English proficiency’’ to the 

other five conditions that could account 

for the child’s learning problems, and 

that the group considers in determining 

whether the child has an SLD. 

(2) Section 300.309(b) has been 

changed to clarify (A) that, in order to 

ensure that underachievement in a child 

suspected of having an SLD is not due 

to lack of appropriate instruction in 

reading or math, the group must 

consider, as part of the evaluation 

described in §§ 300.304 through 

300.306, data that demonstrate that 

prior to, or as a part of, the referral 

process, the child was provided 

appropriate instruction in regular 

education settings, delivered by 

qualified personnel, and (B) to replace 

(in paragraph (b)(1)) the term ‘‘high 

quality research-based instruction’’ with 

‘‘appropriate instruction.’’

(3) Section 300.309(c) has been 

changed to provide that the public 

agency must promptly request parental 


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consent to evaluate a child suspected of 

having an SLD who has not made 

adequate progress after an appropriate 

period of time when provided 

appropriate instruction, and whenever a 

child is referred for an evaluation. 

• Section 300.310, regarding 

Observation, has been revised, as 

follows: 

(1) Paragraph (a) of proposed 

§ 300.310 has been revised (A) to 

remove the phrase ‘‘trained in 

observation, and (B) to specify that the 

public agency must ensure that the 

child is observed in the child’s learning 

environment. 

(2) A new § 300.310(b) has been 

added to require the eligibility group to 

decide to (A) use information obtained 

from an observation in routine 

classroom instruction and monitoring of 

the child’s performance that was done 

before the child was referred for an 

evaluation, or (B) have at least one 

member of the group described in 

§ 300.306(a)(1) conduct an observation 

of the child’s academic performance in 

the regular classroom after the child has 

been referred for an evaluation and 

parental consent is obtained. 

Paragraph (b) of proposed § 300.310 

has been redesignated as new 

§ 300.310(c). 

• Section 300.311 (Written report) has 

been renamed ‘‘Specific documentation 

for the eligibility determination,’’ and 

has been revised, as follows: 

(1) Section 300.311(a)(5), regarding 

whether the child does not achieve 

commensurate with the child’s age, has 

been modified and expanded to add 

whether the child does not achieve 

adequately for the child’s age or to meet 

State-approved grade-level standards 

consistent with § 300.309(a)(1), and (A) 

the child does not make sufficient 

progress to meet age or to meet Stateapproved grade-level standards 

consistent with § 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 § 300.309(a)(2)(ii). 

(2) Proposed § 300.311(a)(6), regarding 

whether there are strengths or 

weaknesses or both in performance or 

achievement or both relative to 

intellectual development, has been 

removed. 

(3) A new § 300.311(a)(6) has been 

added to clarify that the documentation 

must include a statement of the 

determination of the group concerning 

the effects of visual, hearing, or motor 

disability, mental retardation, emotional 

disturbance, cultural factors, 

environmental or economic 

disadvantage, or limited English 

proficiency on the child’s achievement 

level. 

(4) A new § 300.311(a)(7) has been 

added to provide that if the child has 

participated in a process that assesses 

the child’s response to scientific, 

research-based intervention, the 

documentation must include the 

instructional strategies used and the 

student-centered data collected, and 

documentation that the child’s parents 

were notified about (A) the State’s 

policies regarding the amount and 

nature of student performance data that 

would be collected and the general 

education services that would be 

provided, (B) strategies for increasing 

the child’s rate of learning, and (C) the 

parents’ right to request an evaluation. 

Individualized Education Programs 

• Section 300.320 (Definition of IEP) 

has been revised in paragraph (a)(5) to 

replace ‘‘regular education 

environment’’ with ‘‘regular class,’’ in 

order to be consistent with the language 

in the Act. 

• Section 300.321(e), regarding 

attendance at IEP Team meetings, has 

been revised to clarify that the excusal 

of IEP Team members from attending an 

IEP Team meeting under certain 

circumstances, refers to the IEP Team 

members in § 300.320(a)(2) through 

(a)(5). 

• Section 300.322, regarding parent 

participation, has been revised to: (1) 

Include, in § 300.322(d), examples of the 

records a public agency must keep of its 

attempts to involve the parents in IEP 

meetings; (2) add a new § 300.322(e), 

which requires the public agency to take 

whatever action is necessary to ensure 

that the parent understands the 

proceedings of the IEP meeting, 

including arranging for an interpreter 

for parents with deafness or whose 

native language is other than English; 

and (3) redesignate paragraph (e) as 

paragraph (f) accordingly. 

• Section 300.323(d) has been revised 

to require public agencies to ensure that 

each regular teacher, special education 

teacher, related services provider, and 

any other service provider who is 

responsible for the implementation of a 

child’s IEP, is informed of his or her 

specific responsibilities related to 

implementing the child’s IEP and the 

specific accommodations, 

modifications, and supports that must 

be provided for the child in accordance 

with the child’s IEP. These are the same 

requirements in current 

§ 300.342(b)(3)(i) and (b)(3)(ii). 

• Section 300.323(e), regarding IEPs 

for children who transfer public 

agencies, has been revised to: (1) Divide 

the provision into three separate 

paragraphs (§ 300.323(e), (f), and (g)) for 

purposes of clarity and improved 

readability (e.g., transfers within the 

same State, transfers from another State, 

and transmittal of records); (2) adopt 

‘‘school year’’ in lieu of ‘‘academic 

year’’ as the term commonly used by 

parents and public agencies; and (3) 

adopt other modifiers (e.g., ‘‘new’’ and 

‘‘previous’’) to distinguish between 

States and public agencies that are 

involved in transfers by children with 

disabilities. 

• Section 300.324(a)(4), regarding 

changes to an IEP after the annual IEP 

meeting for a school year, has been 

restructured into two paragraphs, and a 

new paragraph (a)(4)(ii) has been added 

to require the public agency to ensure 

that, if changes are made to a child’s IEP 

without an IEP meeting, that the child’s 

IEP Team is informed of the changes. 

• Section 300.324(b), regarding the 

review and revision of IEPs, has been 

changed to include a new paragraph 

(b)(2), to clarify that, in conducting a 

review of a child’s IEP, the IEP Team 

must consider the same special factors 

it considered when developing the 

child’s IEP. 

Subpart E—Procedural Safeguards 

• Section 300.502, regarding 

independent educational evaluations, 

has been revised, as follows: 

(1) A new § 300.502(b)(5) has been 

added to make clear that a parent is 

entitled to only one independent 

educational evaluation at public 

expense each time the public agency 

conducts an evaluation with which the 

parent disagrees. 

(2) Section 300.502(c) has been 

changed to clarify that if a parent 

obtains an independent evaluation at 

public expense or shares with the public 

agency an evaluation obtained at private 

expense, the public agency must 

consider the evaluation, if it meets 

agency criteria, in any decision made 

with respect to the provision of FAPE to 

the child. 

• Section 300.504 (Procedural 

safeguards notice) has been revised, as 

follows: 

(1) Paragraph (a)(2) of § 300.504 has 

been changed to add that a copy of the 

procedural safeguards notice must be 

given upon receipt of the first due 

process complaint under § 300.507 in a 

school year, as well as upon receipt of 

the first State complaint under § 300.151 

through 300.153. 

(2) A new § 300.504(a)(3) has been 

added to provide that the notice must be 

given to the parents of a child with a 

disability in accordance with the 

discipline procedures in § 300.530(h). 


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• Section 300.506(b), regarding the 

requirements for mediation, has been 

revised by (1) removing the provision 

about the ‘‘confidentiality pledge,’’ in 

proposed paragraph (b)(9), because it is 

no longer required under the Act, and 

(2) changing paragraph (b)(8), regarding 

the prohibition against using 

discussions that occur in the mediation 

process, to clarify that ‘‘civil 

proceedings’’ includes any Federal court 

or State court of a State receiving 

assistance under this part. 

• Section 300.509, regarding model 

forms to assist parents and public 

agencies in filing due process 

complaints and parents and other 

parties in filing State complaints, has 

been revised to add, with respect to due 

process complaints, ‘‘public agencies,’’

and with respect to State complaints, 

‘‘other parties,’’ as well as parents, and 

to clarify that (1) while each SEA must 

develop model forms, the SEA or LEA 

may not require the use of the forms, 

and (2) parents, public agencies, and 

other parties may either use the 

appropriate model form, or another form 

or other document, so long as the form 

or document meets, as appropriate, the 

requirements for filing a due process 

complaint or a State complaint. 

• Section 300.510 (Resolution 

process) has been revised, as follows: 

(1) Section 300.510(b)(1), regarding 

the resolution period, has been changed 

to state that a due process hearing ‘‘may 

occur’’ (in lieu of ‘‘must occur’’) by the 

end of the resolution period, if the 

parties have not resolved the dispute 

that formed the basis for the due process 

complaint. 

(2) A new § 300.510(b)(3) has been 

added to provide that, except where the 

parties have jointly agreed to waive the 

resolution process or to use mediation 

(notwithstanding § 300.510(b)(1) and 

(2)), the failure of a parent filing a due 

process complaint to participate in the 

resolution meeting will delay the 

timelines for the resolution process and 

due process hearing until the meeting is 

held. 

(3) A new § 300.510(b)(4) has been 

added to provide that if an LEA is 

unable to obtain the participation of the 

parent in the resolution meeting after 

reasonable efforts have been made, and 

documented using the procedures in 

§ 300.322(d), the LEA may, at the 

conclusion of the 30-day resolution 

period, request that a hearing officer 

dismiss the parent’s due process 

complaint. 

(4) A new paragraph (b)(5) of 

§ 300.510 has been added to provide 

that, if the LEA fails to hold the 

resolution meeting within 15 days of 

receiving notice of a parent’s due 

process complaint or fails to participate 

in the resolution meeting, the parent 

may seek the intervention of a hearing 

officer to begin the due process hearing 

timelines. 

(5) A new § 300.510(c) (Adjustments 

to the 30-day resolution period) has 

been added that specifies exceptions to 

the 30-day resolution period (e.g., (A) 

both parties agree in writing to waive 

the resolution meeting; (B) after either 

the mediation or resolution meeting 

starts but before the end of the 30-day 

period, the parties agree in writing that 

no agreement is possible; or (C) if both 

parties agree in writing to continue the 

mediation at the end of the 30-day 

resolution period, but later, the parent 

or public agency withdraws from the 

mediation process). Subsequent 

paragraphs have been renumbered 

accordingly. 

(6) Paragraph (d)(2) of § 300.510 

(proposed paragraph(c)(2)), regarding 

the enforceability of a written settlement 

agreement in any State court of 

competent jurisdiction or in a district 

court of the United States, has been 

expanded to add the SEA, if the State 

has other mechanisms or procedures 

that permit parties to seek enforcement 

of resolution agreements, pursuant to a 

new § 300.537. 

• Section 300.513(a) (Decision of 

hearing officer) has been revised by (1) 

changing the paragraph title to read 

‘‘Decision of hearing officer on the 

provision of FAPE,’’ and (2) clarifying 

that a hearing officer’s determination of 

whether a child received FAPE must be 

based on substantive grounds. 

• Section 300.515(a), regarding 

timelines and convenience of hearings 

and reviews, has been revised to include 

a specific reference to the adjusted time 

periods described in § 300.510(c). 

• Section 300.516(b), regarding the 

90-day time limitation from the date of 

the decision of the hearing to file a civil 

action, has been revised to provide that 

the 90-day period begins from the date 

of the decision of the hearing officer or 

the decision of the State review official. 

• Section 300.518 (Child’s status 

during proceedings) has been revised by 

adding a new paragraph (c), which 

provides that if a complaint involves an 

application for initial services under 

this part from a child who is 

transitioning from Part C of the Act to 

Part B and is no longer eligible for Part 

C services because the child has turned 

3, the public agency is not required to 

provide the Part C services that the 

child had been receiving. If the child is 

found eligible for special education and 

related services under Part B and the 

parent consents to the initial provision 

of special education and related services 

under § 300.300(b), then the public 

agency must provide those special 

education and related services that are 

not in dispute between the parent and 

the public agency. 

• Section 300.520(b), regarding a 

special rule about the transfer of 

parental rights at the age of majority, has 

been revised to more clearly state that 

a State must establish procedures for 

appointing the parent of a child with a 

disability, or if the parent is not 

available, another appropriate 

individual, to represent the educational 

interests of the child throughout the 

child’s eligibility under Part B of the Act 

if, under State law, a child who has 

reached the age of majority, but has not 

been determined to be incompetent, can 

be determined not to have the ability to 

provide informed consent with respect 

to the child’s educational program. 

Discipline Procedures 

• Section 300.530(d)(1)(i), regarding 

services, has been revised to be 

consistent with section 615(k)(1)(D)(i) of 

the Act, by adding a reference to the 

FAPE requirements in § 300.101(a). 

• Section 300.530(d)(4), regarding the 

removal of a child with a disability from 

the child’s current placement for 10 

school days in the same school year, has 

been revised to remove the reference to 

school personnel, in consultation with 

at least one of the child’s teachers, 

determining the location in which 

services will be provided. 

• Section 300.530(d)(5), regarding 

removals that constitute a change of 

placement under § 300.536, has been 

revised to remove the reference to the 

IEP Team determining the location in 

which services will be provided. 

• A new § 300.530(e)(3), has been 

added to provide that, if the LEA, the 

parent, and members of the child’s IEP 

Team determine that the child’s 

behavior was the direct result of the 

LEA’s failure to implement the child’s 

IEP, the LEA must take immediate steps 

to remedy those deficiencies. 

• Section 300.530(h), regarding 

notification, has been changed to 

specify that, on the date on which a 

decision is made to make a removal that 

constitutes a change in the placement of 

a child with a disability because of a 

violation of a code of student conduct, 

the LEA must notify the parents of that 

decision, and provide the parents the 

procedural safeguards notice described 

in § 300.504. 

• Section 300.532 (Appeal) has been 

revised, as follows: 

(1) Paragraph (a) of § 300.532, 

regarding the conditions in which the 

parent of a child with a disability or an 

LEA may request a hearing, has been 


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modified to clarify that the hearing is 

requested by filing a complaint pursuant 

to §§ 300.507 and 300.508(a) and (b). 

(2) Section 300.532(b)(3) has been 

changed to more definitively provide 

that if the LEA believes that returning 

the child to his or her original 

placement is substantially likely to 

result in injury to the child or others. 

(3) Section 300.532(c)(3), regarding an 

expedited due process hearing, has been 

adjusted to provide that unless the 

parents and an LEA agree in writing to 

waive a resolution meeting, or agree to 

use the mediation process described in 

§ 300.506, the resolution meeting must 

occur within seven days of receiving 

notice of the due process complaint, and 

the hearing may proceed within 15 days 

of receipt of the due process complaint 

unless the matter has been resolved to 

satisfaction of both parties. 

(4) Proposed § 300.532(c)(4), regarding 

the two-day timeframe for disclosing 

information to the opposing party prior 

to an expedited due process hearing, has 

been removed. 

• Section 500.536(a)(2)(ii) (proposed 

§ 300.536(b)(2)) has been revised to 

remove the requirement that a child’s 

behavior must have been a 

manifestation of the child’s disability 

before determining that a series of 

removals constitutes a change in 

placement under § 300.536. Paragraph 

(a)(2)(ii) has also been amended to 

reference the child’s behavior in 

‘‘previous’’ incidents that resulted in the 

series of removals. 

• A new § 300.536(b) has been added 

to clarify that the public agency (subject 

to review through the due process and 

judicial proceedings) makes the 

determination, on a case-by-case basis, 

whether a pattern of removals 

constitutes a change in placement and 

that the determination is subject to 

review through due process and judicial 

determinations. 

• A new § 300.537 (State enforcement 

mechanisms) has been added to clarify 

that notwithstanding § 300.506(b)(7) and 

§ 300.510(c)(2), which provide for 

judicial enforcement of a written 

agreement reached as a result of a 

mediation or resolution meeting, 

nothing in this part would prevent the 

SEA from using other mechanisms to 

seek enforcement of that agreement, 

provided that use of those mechanisms 

is not mandatory and does not delay or 

deny a party the right to seek 

enforcement of the written agreement in 

a State court of competent jurisdiction 

or in a district court of the United 

States. 

Subpart F—Monitoring, Enforcement, 

Confidentiality, and Program 

Information 

Monitoring, Technical Assistance, and 

Enforcement 

• Section 300.600 (State monitoring 

and enforcement) has been revised, as 

follows: 

(1) Section 300.600(a) has been 

amended to require the State to enforce 

Part B of the Act in accordance with 

§ 300.604(a)(1) and (a)(3), (b)(2)(i) and 

(b)(2)(v), and (c)(2). 

(2) A new paragraph (d) has been 

added, which provides that the State 

must monitor the LEAs located in the 

State, using quantifiable indicators in 

each of the following priority areas, and 

such qualitative indicators as are 

needed to adequately measure 

performance in those areas, including: 

(A) Provision of FAPE in the least 

restrictive environment; (B) State 

exercise of general supervision, 

including child find, effective 

monitoring, the use of resolution 

meetings, and a system of transition 

services as defined in § 300.43 and in 20 

U.S.C. 1437(a)(9); and (C) 

disproportionate representation of racial 

and ethnic groups in special education 

and related services, to the extent the 

representation is the result of 

inappropriate identification. 

• A new § 300.601(b)(2), regarding 

State use of targets and reporting, has 

been added to specify that, if permitted 

by the Secretary, if a State collects data 

on an indicator through State 

monitoring or sampling, the State must 

collect data on the indicator at least 

once during the period of the State 

performance plan. 

• A new § 300.608(b), regarding State 

enforcement, has been added to specify 

that States are not restricted from 

utilizing any other authority available to 

them to monitor and enforce the 

requirements of Part B of the Act. 

Confidentiality of Information 

• Section 300.622 (Consent) has been 

restructured and revised to more 

accurately reflect the Department’s 

policy regarding when parental consent 

is required for disclosures of personally 

identifiable information, as follows: 

(1) Paragraph (a) of § 300.622 has been 

changed to provide that parental 

consent must be obtained before 

personally identifiable information is 

disclosed to parties other than officials 

of participating agencies, unless the 

information is contained in education 

records, and the disclosure is authorized 

without parental consent under the 

regulations for the Family Educational 

Rights and Privacy Act (FERPA, 34 CFR 

part 99). 

(2) A new § 300.622(b)(1) has been 

added to clarify that parental consent is 

not required before personally 

identifiable information is released to 

officials of participating agencies for 

purposes of meeting a requirement of 

Part B of the Act or these regulations. 

(3) A new § 300.622(b)(2) has been 

added to provide that parental consent 

must be obtained before personally 

identifiable information is released to 

officials of participating agencies that 

provide or pay for transition services. 

(4) A new paragraph (b)(3) has been 

added to require that, with respect to 

parentally-placed private school 

children with disabilities, parental 

consent must be obtained before any 

personally identifiable information is 

released between officials in the LEA 

where the private school is located and 

the LEA of the parent’s residence. 

(5) Proposed § 300.622(c), regarding 

the requirement to provide policies and 

procedures for use in the event that a 

parent refuses to consent, has been 

removed because it is covered elsewhere 

in these regulations. 

Subpart G—Authorization, Allotment, 

Use of Funds, and Authorization of 

Appropriations 

Allotments, Grants, and Use of Funds 

• Section 300.701(a)(1)(ii)(A), 

regarding the applicable requirements of 

Part B of the Act that apply to freely 

associated States, has been revised by 

removing the five listed requirements 

because those requirements did not 

include all requirements that apply to 

freely associated States. This change 

clarifies that freely associated States 

must meet the applicable requirements 

that apply to States under Part B of the 

Act. 

• Section 300.704(c)(3)(i), regarding 

the requirement to develop, annually 

review, and revise (if necessary) a State 

plan for the high cost fund, has been 

revised to add a new paragraph (F) that 

requires that if the State elects to reserve 

funds for supporting innovative and 

effective ways of cost sharing, it must 

describe in its State plan how these 

funds will be used. 

• Section 300.706 (Allocation for 

State in which by-pass is implemented 

for parentally-placed private school 

children with disabilities) has been 

removed because it is no longer 

applicable. The section has been 

redesignated as ‘‘Reserved.’’

Secretary of the Interior 

• Section 300.707 (Use of amounts by 

Secretary of the Interior) has been 

changed, as follows: 


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(1) The definition of Tribal governing 

body of a school has been replaced with 

the definition of tribal governing body 

from 25 U.S.C. 2021(19). 

(2) Section 300.707(c), regarding an 

additional requirement under ‘‘Use of 

amounts by Secretary of the Interior,’’

has been revised to clarify that, with 

respect to all other children aged 3 to 

21, inclusive, on reservations, the SEA 

of the State in which the reservation is 

located must ensure that all the 

requirements of Part B of the Act are 

met. 

• Section 300.713 (Plan for 

coordination of services) has been 

revised to require (1) in § 300.713(a), the 

Secretary of the Interior to develop and 

implement a plan for the coordination 

of services for all Indian children with 

disabilities residing on reservations 

served by elementary schools and 

secondary schools for Indian children 

operated or funded by the Secretary of 

the Interior, and (2) in § 300.713(b), the 

plan to provide for the coordination of 

services benefiting these children from 

whatever source covered by the plan, 

including SEAs, and State, local, and 

tribal juvenile and adult correctional 

facilities. 

Analysis of Comments and Changes 

Introduction 

In response to the invitation in the 

NPRM, more than 5,500 parties 

submitted comments on the proposed 

regulations. An analysis of the 

comments and of the changes in the 

regulations since publication of the 

NPRM immediately follows this 

introduction. 

The perspectives of parents, 

individuals with disabilities, teachers, 

related services providers, State and 

local officials, members of Congress, 

and others were very important in 

helping us to identify where changes to 

the proposed regulations were 

necessary, and in formulating many of 

the changes. In light of the comments 

received, a number of significant 

changes are reflected in these final 

regulations. 

We discuss substantive issues under 

the subpart and section to which they 

pertain. References to subparts in this 

analysis are to those contained in the 

final regulations. The analysis generally 

does not address—

(a) Minor changes, including 

technical changes made to the language 

published in the NPRM; 

(b) Suggested changes the Secretary is 

not legally authorized to make under 

applicable statutory authority; and 

(c) Comments that express concerns of 

a general nature about the Department 

or other matters that are not directly 

relevant to these regulations, such as 

requests for information about 

innovative instructional methods or 

matters that are within the purview of 

State and local decision-makers. 

Subpart A—General 

Definitions Used in This Part 

Applicability of This Part to State and 

Local Agencies (§ 300.2) 

Comment: None. 

Discussion: Section § 300.2(c)(2) 

contains an incorrect reference to 

§ 300.148(b). The correct reference 

should be to § 300.148. 

Changes: We have removed the 

reference to § 300.148(b) and replaced it 

with a reference to § 300.148. 

Assistive Technology Device (§ 300.5) 

Comment: Some commenters opposed 

the exclusion of surgically implanted 

medical devices in the definition of 

assistive technology device. Another 

commenter recommended limiting the 

definition of assistive technology device 

to a device that is needed to achieve 

educational outcomes, rather than 

requiring local educational agencies 

(LEAs) to pay for any assistive 

technology device that increases, 

maintains, or improves any functional 

need of the child. 

Discussion: The definition of assistive 

technology device in § 300.5 

incorporates the definition in section 

602(1)(B) of the Act. We do not believe 

the definition should be changed in the 

manner suggested by the commenters 

because the changes are inconsistent 

with the statutory definition. The 

definition in the Act specifically refers 

to any item, piece of equipment, or 

product system that is used to increase, 

maintain, or improve the functional 

capabilities of the child and specifically 

excludes a medical device that is 

surgically implanted or the replacement 

of such device. Accordingly, we 

continue to believe it is appropriate to 

exclude surgically implanted medical 

devices from this definition. In response 

to the second comment, § 300.105(a) 

requires each public agency to ensure 

that assistive technology devices (or 

assistive technology services, or both) 

are made available to a child with a 

disability if required as part of the 

child’s special education, related 

services, or supplementary aids and 

services. This provision ties the 

definition to a child’s educational 

needs, which public agencies must meet 

in order to ensure that a child with a 

disability receives a free appropriate 

public education (FAPE). 

Changes: None. 

Comment: One commenter requested 

that the regulations clarify that an 

assistive technology device is not 

synonymous with an augmentative 

communication device. A few 

commenters recommended including 

recordings for the blind and dyslexic 

playback devices in the definition of 

assistive technology devices. Some 

commenters recommended including 

language in the regulations clarifying 

that medical devices used for breathing, 

nutrition, and other bodily functions are 

assistive technology devices. 

Discussion: The definition of assistive 

technology device does not list specific 

devices, nor would it be practical or 

possible to include an exhaustive list of 

assistive technology devices. Whether 

an augmentative communication device, 

playback devices, or other devices could 

be considered an assistive technology 

device for a child depends on whether 

the device is used to increase, maintain, 

or improve the functional capabilities of 

a child with a disability, and whether 

the child’s individualized education 

program (IEP) Team determines that the 

child needs the device in order to 

receive a free appropriate public 

education (FAPE). However, medical 

devices that are surgically implanted, 

including those used for breathing, 

nutrition, and other bodily functions, 

are excluded from the definition of an 

assistive technology device in section 

602(1)(B) of the Act. The exclusion 

applicable to a medical device that is 

surgically implanted includes both the 

implanted component of the device, as 

well as its external components. 

Changes: None. 

Comment: A few commenters asked 

whether the definition of assistive 

technology device includes an internetbased instructional program, and what 

the relationship is between internetbased instructional programs and 

specially-designed instruction. 

Discussion: An instructional program 

is not a device, and, therefore, would 

not meet the definition of an assistive 

technology device. Whether an internetbased instructional program is 

appropriate for a particular child is 

determined by the child’s IEP Team, 

which would determine whether the 

program is needed in order for the child 

to receive FAPE. 

Changes: None. 

Comment: A few commenters 

recommended including the proper 

functioning of hearing aids in the 

definition of assistive technology device. 

Discussion: We believe that the 

provision requiring public agencies to 

ensure that hearing aids worn in school 

are functioning properly is more 

appropriately included in new § 300.113 


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(proposed § 300.105(b)). As noted in the 

Analysis of Comments and Changes 

section discussing subpart B, we have 

added a new § 300.113 to address the 

routine checking (i.e., making sure they 

are turned on and working) of hearing 

aids and external components of 

surgically implanted devices. 

Changes: None. 

Assistive Technology Service (§ 300.6) 

Comment: One commenter requested 

clarifying ‘‘any service’’ in the 

definition of assistive technology 

service. 

Discussion: We believe the definition 

is clear that an assistive technology 

service is any service that helps a child 

with a disability select an appropriate 

assistive technology device, obtain the 

device, or train the child to use the 

device. 

Changes: None. 

Comment: One commenter stated that 

services necessary to support the use of 

playback devices for recordings for the 

blind and dyslexic should be added to 

the definition of assistive technology 

service. 

Discussion: A service to support the 

use of recordings for the blind and 

dyslexic on playback devices could be 

considered an assistive technology 

service if it assists a child with a 

disability in the selection, acquisition, 

or use of the device. If so, and if the 

child’s IEP Team determines it is 

needed for the child to receive FAPE, 

the service would be provided. The 

definition of assistive technology service 

does not list specific services. We do not 

believe it is practical or possible to 

include an exhaustive list of assistive 

technology services, and therefore, 

decline to add the specific assistive 

technology service recommended by the 

commenter to the definition. 

Changes: None. 

Comment: One commenter 

recommended evaluating all children 

with speech or hearing disabilities to 

determine if they can benefit from the 

Federal Communications Commission’s 

specialized telephone assistive services 

for people with disabilities. 

Discussion: Evaluations under section 

614 of the Act are for the purpose of 

determining whether a child has a 

disability and because of that disability 

needs special education and related 

services, and for determining the child’s 

special education and related services 

needs. It would be inappropriate under 

the Act to require evaluations for other 

purposes or to require an evaluation for 

telephone assistive services for all 

children with speech and hearing 

disabilities. However, if it was 

determined that learning to use 

telephone assisted services, was an 

important skill for a particular child 

(e.g., as part of a transition plan), it 

would be appropriate to conduct an 

evaluation of that particular child to 

determine if the child needed 

specialized instruction in order to use 

such services. 

Changes: None. 

Comment: One commenter requested 

that the definition of assistive 

technology service specifically exclude a 

medical device that is surgically 

implanted, the optimization of device 

functioning, maintenance of the device, 

and the replacement of the device. 

Discussion: The definition of related 

services in § 300.34(b) specifically 

excludes a medical device that is 

surgically implanted, the optimization 

of device functioning, maintenance of 

the device, or the replacement of that 

device. In addition, the definition of 

assistive technology device in § 300.5 

specifically excludes a medical device 

that is surgically implanted and the 

replacement of that device. We believe 

it is unnecessary to repeat these 

exclusions in the definition of assistive 

technology service. 

Changes: None. 

Charter School (§ 300.7) 

Comment: Several commenters 

suggested that we include in the 

regulations the definitions of terms that 

are defined in other statutes. For 

example, one commenter requested 

including the definition of charter 

school in the regulations. 

Discussion: Including the actual 

definitions of terms that are defined in 

statutes other than the Act is 

problematic because these definitions 

may change over time (i.e., through 

changes to statutes that establish the 

definitions). In order for these 

regulations to retain their accuracy over 

time, the U.S. Department of Education 

(Department) would need to amend the 

regulations each time an included 

definition that is defined in another 

statute changes. The Department 

believes that this could result in 

significant confusion. 

However, we are including the 

current definition of charter school in 

section 5210(1) of the ESEA here for 

reference. 

The term charter school means a 

public school that: 

1. In accordance with a specific State 

statute authorizing the granting of 

charters to schools, is exempt from 

significant State or local rules that 

inhibit the flexible operation and 

management of public schools, but not 

from any rules relating to the other 

requirements of this paragraph [the 

paragraph that sets forth the Federal 

definition]; 

2. Is created by a developer as a 

public school, or is adapted by a 

developer from an existing public 

school, and is operated under public 

supervision and direction; 

3. Operates in pursuit of a specific set 

of educational objectives determined by 

the school’s developer and agreed to by 

the authorized public chartering agency; 

4. Provides a program of elementary 

or secondary education, or both; 

5. Is nonsectarian in its programs, 

admissions policies, employment 

practices, and all other operations, and 

is not affiliated with a sectarian school 

or religious institution; 

6. Does not charge tuition; 

7. Complies with the Age 

Discrimination Act of 1975, Title VI of 

the Civil Rights Act of 1964, Title IX of 

the Education Amendments of 1972, 

Section 504 of the Rehabilitation Act of 

1973, Title II of the Americans with 

Disabilities Act of 1990, and Part B of 

the Individuals with Disabilities 

Education Act; 

8. Is a school to which parents choose 

to send their children, and that admits 

students on the basis of a lottery, if more 

students apply for admission than can 

be accommodated; 

9. Agrees to comply with the same 

Federal and State audit requirements as 

do other elementary schools and 

secondary schools in the State, unless 

such requirements are specifically 

waived for the purpose of this program 

[the Public Charter School Program]; 

10. Meets all applicable Federal, 

State, and local health and safety 

requirements; 

11. Operates in accordance with State 

law; and 

12. Has a written performance 

contract with the authorized public 

chartering agency in the State that 

includes a description of how student 

performance will be measured in charter 

schools pursuant to State assessments 

that are required of other schools and 

pursuant to any other assessments 

mutually agreeable to the authorized 

public chartering agency and the charter 

school. 

Changes: None. 

Child With a Disability (§ 300.8) 

General (§ 300.8(a)) 

Comment: Several commenters stated 

that many children with fetal alcohol 

syndrome (FAS) do not receive special 

education and related services and 

recommended adding a disability 

category for children with FAS to help 

solve this problem. 

Discussion: We believe that the 

existing disability categories in section 


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602(3) of the Act and in these 

regulations are sufficient to include 

children with FAS who need special 

education and related services. Special 

education and related services are based 

on the identified needs of the child and 

not on the disability category in which 

the child is classified. We, therefore, do 

not believe that adding a separate 

disability category for children with 

FAS is necessary to ensure that children 

with FAS receive the special education 

and related services designed to meet 

their unique needs resulting from FAS. 

Changes: None. 

Comment: Some commenters 

suggested that the definition of child 

with a disability be changed to ‘‘student 

with a disability’’ and that the word 

‘‘student,’’ rather than ‘‘child,’’ be used 

throughout the regulations because 

students over the age of 18 are not 

children. 

Discussion: Section 602(3) of the Act 

defines child with a disability, not 

student with a disability. Therefore, we 

do not believe it is appropriate to 

change the definition as requested by 

the commenters. The words ‘‘child’’ and 

‘‘student’’ are used throughout the Act 

and we generally have used the word 

‘‘child’’ or ‘‘children,’’ except when 

referring to services and activities for 

older students (e.g., transition services, 

postsecondary goals). 

Changes: None. 

Comment: Some commenters 

supported § 300.8(a)(2), which states 

that if a child needs only a related 

service and not special education, the 

child is not a child with a disability 

under the Act. Another commenter 

recommended a single standard for the 

provision of a related service as special 

education, rather than allowing States to 

determine whether a related service is 

special education. 

Discussion: Section 300.8(a)(2)(i) 

states that if a child has one of the 

disabilities listed in § 300.8(a)(1), but 

only needs a related service, the child 

is not a child with a disability under the 

Act. However, § 300.8(a)(2)(ii) provides 

that, if a State considers a particular 

service that could be encompassed by 

the definition of related services also to 

be special education, then the child 

would be determined to be a child with 

a disability under the Act. We believe it 

is important that States have the 

flexibility to determine whether, 

consistent with the definition of the 

term special education in section 

602(29) of the Act and new § 300.39 

(proposed § 300.38), such a service 

should be regarded as special education 

and to identify a child who needs that 

service as a child with a disability. 

States are in the best position to 

determine whether a service that is 

included in the definition of related 

services should also be considered 

special education in that State. 

Changes: None. 

Comment: None. 

Discussion: Section § 300.8(a)(2)(ii) 

contains an incorrect reference to 

§ 300.38(a)(2). The correct reference 

should be to § 300.39(a)(2). 

Changes: We have removed the 

reference to § 300.38(a)(2) and replaced 

it with a reference to § 300.39(a)(2). 

Children Aged Three Through Nine 

Experiencing Developmental Delays 

(§ 300.8(b)) 

Comment: Several commenters 

expressed support for allowing LEAs to 

select a subset of the age range from 

three through nine for their definition of 

developmental delay. A few 

commenters recommended clarifying 

that States, not the LEAs, define the age 

range of children eligible under this 

category of developmental delay. 

Discussion: Section 300.8(b) states 

that the use of the developmental delay 

category for a child with a disability 

aged three through nine, or any subset 

of that age range, must be made in 

accordance with § 300.111(b). Section 

300.111(b) gives States the option of 

adopting a definition of developmental 

delay, but does not require an LEA to 

adopt and use the term. However, if an 

LEA uses the category of developmental 

delay, the LEA must conform to both the 

State’s definition of the term and the age 

range that has been adopted by the 

State. If a State does not adopt the 

category of developmental delay, an 

LEA may not use that category as the 

basis for establishing a child’s eligibility 

for special education and related 

services. 

Based on the comments, it appears 

that § 300.8(b) has been misinterpreted 

as stating that LEAs are allowed to 

establish the age range for defining 

developmental delay independent of the 

State. We believe it is important to 

avoid such confusion and, therefore, 

will modify § 300.8(b) to clarify the 

provision. 

Changes: For clarity, we have 

removed the phrase, ‘‘at the discretion 

of the State and LEA in accordance with 

§ 300.111(b)’’ and replaced it with 

‘‘subject to the conditions in 

§ 300.111(b).’’

Deafness (§ 300.8(c)(3)) 

Comment: One commenter stated that 

children who are hard of hearing are 

often denied special education and 

related services because the definition 

of deafness includes the phrase, 

‘‘adversely affects a child’s educational 

performance,’’ which school district 

personnel interpret to mean that the 

child must be failing in school to 

receive special education and related 

services. 

Discussion: As noted in the Analysis 

of Comments and Changes section 

discussing subpart B, we have clarified 

in § 300.101(c) that a child does not 

have to fail or be retained in a course 

or grade in order to be considered for 

special education and related services. 

However, in order to be a child with a 

disability under the Act, a child must 

have one or more of the impairments 

identified in section 602(3) of the Act 

and need special education and related 

services because of that impairment. 

Given the change in § 300.101(c), we do 

not believe clarification in § 300.8(c)(3) 

is necessary. 

Changes: None. 

Emotional Disturbance (§ 300.8(c)(4)) 

Comment: Numerous commenters 

requested defining or eliminating the 

term ‘‘socially maladjusted’’ in the 

definition of emotional disturbance 

stating that there is no accepted 

definition of the term, and no valid or 

reliable instruments or methods to 

identify children who are, or are not, 

‘‘socially maladjusted.’’ Some 

commenters stated that children who 

need special education and related 

services have been denied these 

services, or have been inappropriately 

identified under other disability 

categories and received inappropriate 

services because the definition of 

emotional disturbance excludes 

children who are socially maladjusted. 

One commenter stated that using the 

term ‘‘socially maladjusted’’ contributes 

to the negative image of children with 

mental illness and does a disservice to 

children with mental illness and those 

who seek to understand mental illness. 

One commenter stated that emotional 

disturbance is one of the most misused 

and misunderstood disability categories 

and is often improperly used to protect 

dangerous and aggressive children who 

violate the rights of others. The 

commenter stated that the definition of 

emotional disturbance is vague and 

offers few objective criteria to 

differentiate an emotional disability 

from ordinary development, and 

requires the exclusion of conditions in 

which the child has the ability to 

control his or her behavior, but chooses 

to violate social norms. 

One commenter recommended adding 

autism to the list of factors in 

§ 300.8(c)(4)(i)(A) that must be ruled out 

before making an eligibility 

determination based on emotional 

disturbance. The commenter stated that 


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many children with autism are 

inappropriately placed in alternative 

educational programs designed for 

children with serious emotional and 

behavioral problems. 

Discussion: Historically, it has been 

very difficult for the field to come to 

consensus on the definition of 

emotional disturbance, which has 

remained unchanged since 1977. On 

February 10, 1993, the Department 

published a ‘‘Notice of Inquiry’’ in the 

Federal Register (58 FR 7938) soliciting 

comments on the existing definition of 

serious emotional disturbance. The 

comments received in response to the 

notice of inquiry expressed a wide range 

of opinions and no consensus on the 

definition was reached. Given the lack 

of consensus and the fact that Congress 

did not make any changes that required 

changing the definition, the Department 

recommended that the definition of 

emotional disturbance remain 

unchanged. We reviewed the Act and 

the comments received in response to 

the NPRM and have come to the same 

conclusion. Therefore, we decline to 

make any changes to the definition of 

emotional disturbance. 

Changes: None. 

Comment: One commenter suggested 

that the regulations include a process to 

identify children who are at risk for 

having an emotional disturbance. 

Discussion: We decline to include a 

process to identify children who are at 

risk for having an emotional 

disturbance. A child who is at risk for 

having any disability under the Act is 

not considered a child with a disability 

under § 300.8 and section 602(3) of the 

Act and, therefore, is not eligible for 

services under the Act. 

Changes: None. 

Mental Retardation (§ 300.8(c)(6)) 

Comment: One commenter suggested 

using the term ‘‘intellectual disability’’

in place of ‘‘mental retardation’’ because 

‘‘intellectual disability’’ is a more 

acceptable term. The commenter also 

stated that the definition of mental 

retardation is outdated, and should, 

instead, address a child’s functional 

limitations in specific life areas. 

Discussion: Section 602(3)(A) of the 

Act refers to a ‘‘child with mental 

retardation,’’ not a ‘‘child with 

intellectual disabilities,’’ and we do not 

see a compelling reason to change the 

term. However, States are free to use a 

different term to refer to a child with 

mental retardation, as long as all 

children who would be eligible for 

special education and related services 

under the Federal definition of mental 

retardation receive FAPE. 

We do not believe the definition of 

mental retardation needs to be changed 

because it is defined broadly enough in 

§ 300.8(c)(6) to include a child’s 

functional limitations in specific life 

areas, as requested by the commenter. 

There is nothing in the Act or these 

regulations that would prevent a State 

from including ‘‘functional limitations 

in specific life areas’’ in a State’s 

definition of mental retardation, as long 

as the State’s definition is consistent 

with these regulations. 

Changes: None. 

Multiple Disabilities (§ 300.8(c)(7)) 

Comment: One commenter asked why 

the category of multiple disabilities is 

included in the regulations when it is 

not in the Act. 

Discussion: The definition of multiple 

disabilities has been in the regulations 

since 1977 and does not expand 

eligibility beyond what is provided for 

in the Act. The definition helps ensure 

that children with more than one 

disability are not counted more than 

once for the annual report of children 

served because States do not have to 

decide among two or more disability 

categories in which to count a child 

with multiple disabilities. 

Changes: None. 

Orthopedic Impairment (§ 300.8(c)(8)) 

Comment: One commenter requested 

that the examples of congenital 

anomalies in the definition of 

orthopedic impairment in current 

§ 300.7(c)(8) be retained. 

Discussion: The examples of 

congenital anomalies in current 

§ 300.7(c)(8) are outdated and 

unnecessary to understand the meaning 

of orthopedic impairment. We, 

therefore, decline to include the 

examples in § 300.8(c)(8). 

Changes: None. 

Other Health Impairment (§ 300.8(c)(9)) 

Comment: We received a significant 

number of comments requesting that we 

include other examples of specific acute 

or chronic health conditions in the 

definition of other health impairment. A 

few commenters recommended 

including children with dysphagia 

because these children have a 

swallowing and feeding disorder that 

affects a child’s vitality and alertness 

due to limitations in nutritional intake. 

Other commenters recommended 

including FAS, bipolar disorders, and 

organic neurological disorders. 

Numerous commenters requested 

including Tourette syndrome disorders 

in the definition of other health 

impairment because children with 

Tourette syndrome are frequently 

misclassified as emotionally disturbed. 

A number of commenters stated that 

Tourette syndrome is a neurological 

disorder and not an emotional disorder, 

yet children with Tourette syndrome 

continue to be viewed as having a 

behavioral or conduct disorder and, 

therefore, do not receive appropriate 

special education and related services. 

Discussion: The list of acute or 

chronic health conditions in the 

definition of other health impairment is 

not exhaustive, but rather provides 

examples of problems that children 

have that could make them eligible for 

special education and related services 

under the category of other health 

impairment. We decline to include 

dysphagia, FAS, bipolar disorders, and 

other organic neurological disorders in 

the definition of other health 

impairment because these conditions 

are commonly understood to be health 

impairments. However, we do believe 

that Tourette syndrome is commonly 

misunderstood to be a behavioral or 

emotional condition, rather than a 

neurological condition. Therefore, 

including Tourette syndrome in the 

definition of other health impairment 

may help correct the misperception of 

Tourette syndrome as a behavioral or 

conduct disorder and prevent the 

misdiagnosis of their needs. 

Changes: We have added Tourette 

syndrome as an example of an acute or 

chronic health problem in 

§ 300.8(c)(9)(i). 

Comment: A few commenters 

expressed concern about determining a 

child’s eligibility for special education 

services under the category of other 

health impairment based on conditions 

that are not medically determined 

health problems, such as ‘‘central 

auditory processing disorders’’ or 

‘‘sensory integration disorders.’’ One 

commenter recommended that the 

regulations clarify that ‘‘chronic or acute 

health problems’’ refer to health 

problems that are universally 

recognized by the medical profession. 

Discussion: We cannot make the 

change requested by the commenters. 

The determination of whether a child is 

eligible to receive special education and 

related services is made by a team of 

qualified professionals and the parent of 

the child, consistent with 

§ 300.306(a)(1) and section 614(b)(4) of 

the Act. The team of qualified 

professionals and the parent of the child 

must base their decision on careful 

consideration of information from a 

variety of sources, consistent with 

§ 300.306(c). There is nothing in the Act 

that requires the team of qualified 

professionals and the parent to consider 

only health problems that are 


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universally recognized by the medical 

profession, as requested by the 

commenters. Likewise, there is nothing 

in the Act that would prevent a State 

from requiring a medical evaluation for 

eligibility under other health 

impairment, provided the medical 

evaluation is conducted at no cost to the 

parent. 

Changes: None. 

Comment: One commenter stated that 

the category of other health impairment 

is one of the most rapidly expanding 

eligibility categories because the 

definition is vague, confusing, and 

redundant. The commenter noted that 

the definition of other health 

impairment includes terms such as 

‘‘alertness’’ and ‘‘vitality,’’ which are 

difficult to measure objectively. 

Discussion: We believe that the 

definition of other health impairment is 

generally understood and that the group 

of qualified professionals and the parent 

responsible for determining whether a 

child is a child with a disability are able 

to use the criteria in the definition and 

appropriately identify children who 

need special education and related 

services. Therefore, we decline to 

change the definition. 

Changes: None. 

Specific Learning Disability 

(§ 300.8(c)(10)) 

Comment: One commenter 

recommended changing the definition 

of specific learning disability to refer to 

a child’s response to scientific, researchbased intervention as part of the 

procedures for evaluating children with 

disabilities, consistent with 

§ 300.307(a). A few commenters 

recommended aligning the definition of 

specific learning disability with the 

requirements for determining eligibility 

in § 300.309. 

One commenter recommended using 

the word ‘‘disability,’’ instead of 

‘‘disorder,’’ and referring to specific 

learning disabilities as a ‘‘disability in 

one or more of the basic psychological 

processes.’’ A few commenters stated 

that the terms ‘‘developmental aphasia’’

and ‘‘minimal brain dysfunction’’ are 

antiquated and should be removed from 

the definition. A few commenters 

questioned using ‘‘imperfect ability’’ in 

the definition because it implies that a 

child with minor problems in listening, 

thinking, speaking, reading, writing, 

spelling, or calculating math could be 

determined to have a specific learning 

disability. 

Discussion: The definition of specific 

learning disability is consistent with the 

procedures for evaluating and 

determining the eligibility of children 

suspected of having a specific learning 

disability in §§ 300.307 through 

300.311. We do not believe it is 

necessary to repeat these procedures in 

the definition of specific learning 

disability. 

Section 602(30) of the Act refers to a 

‘‘disorder’’ in one or more of the basic 

psychological processes and not to a 

‘‘disability’’ in one or more of the basic 

psychological processes. We believe it 

would be inconsistent with the Act to 

change ‘‘disorder’’ to ‘‘disability,’’ as 

recommended by one commenter. We 

do not believe that the terms 

‘‘developmental aphasia’’ and ‘‘minimal 

brain dysfunction’’ should be removed 

from the definition. Although the terms 

may not be as commonly used as 

‘‘specific learning disability,’’ the terms 

continue to be used and we see no harm 

in retaining them in the definition. We 

do not agree that the phrase ‘‘imperfect 

ability’’ implies that a child has a minor 

problem and, therefore, decline to 

change this phrase in the definition of 

specific learning disability. 

Changes: None. 

Comment: We received several 

requests to revise the definition of 

specific learning disability to include 

specific disabilities or disorders that are 

often associated with specific learning 

disabilities, including Aspergers 

syndrome, FAS, auditory processing 

disorders, and nonverbal learning 

disabilities. 

Discussion: Children with many types 

of disabilities or disorders may also 

have a specific learning disability. It is 

not practical or feasible to include all 

the different disabilities that are often 

associated with a specific learning 

disability. Therefore, we decline to add 

these specific disorders or disabilities to 

the definition of specific learning 

disability. 

Changes: None. 

Comment: A few commenters 

suggested clarifying the word ‘‘cultural’’

in § 300.8(c)(10)(ii) to clarify that 

cultural disadvantage or language 

cannot be the basis for determining that 

a child has a disability. 

Discussion: We believe the term 

‘‘cultural’’ is generally understood and 

do not see a need for further 

clarification. We also do not believe that 

it is necessary to clarify that language 

cannot be the basis for determining 

whether a child has a specific learning 

disability. Section 300.306(b)(1)(iii), 

consistent with section 614(b)(5)(C) of 

the Act, clearly states that limited 

English proficiency cannot be the basis 

for determining a child to be a child 

with a disability under any of the 

disability categories in § 300.8. 

Changes: None. 

Consent (§ 300.9) 

Comment: Numerous commenters 

noted that the regulations include the 

terms ‘‘consent,’’ ‘‘informed consent,’’

‘‘agree,’’ and ‘‘agree in writing’’ and 

asked whether all the terms have the 

same meaning. 

Discussion: These terms are used 

throughout the regulations and are 

consistent with their use in the Act. The 

definition of consent requires a parent 

to be fully informed of all information 

relevant to the activity for which 

consent is sought. The definition also 

requires a parent to agree in writing to 

an activity for which consent is sought. 

Therefore, whenever consent is used in 

these regulations, it means that the 

consent is both informed and in writing. 

The meaning of the terms ‘‘agree’’ or 

‘‘agreement’’ is not the same as consent. 

‘‘Agree’’ or ‘‘agreement’’ refers to an 

understanding between the parent and 

the public agency about a particular 

question or issue, which may be in 

writing, depending on the context. 

Changes: None. 

Comment: A few commenters 

recommended adding a requirement to 

the definition of consent that a parent be 

fully informed of the reasons why a 

public agency selected one activity over 

another. 

Discussion: We do not believe it is 

necessary to include the additional 

requirement recommended by the 

commenter. The definition of consent 

already requires that the parent be fully 

informed of all the information relevant 

to the activity for which consent is 

sought. 

Changes: None. 

Comment: A few commenters 

requested that the Department address 

situations in which a child is receiving 

special education services and the 

child’s parent wants to discontinue 

services because they believe the child 

no longer needs special education 

services. A few commenters stated that 

public agencies should not be allowed 

to use the procedural safeguards to 

continue to provide special education 

and related services to a child whose 

parent withdraws consent for the 

continued provision of special 

education and related services. 

Discussion: The Department intends 

to propose regulations to permit parents 

who previously consented to the 

initiation of special education services, 

to withdraw their consent for their child 

to receive, or continue to receive, 

special education services. Because this 

is a change from the Department’s 

longstanding policies and was not 

proposed in the NPRM, we will provide 

the public the opportunity to comment 


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on this proposed change in a separate 

notice of proposed rulemaking. 

Changes: None. 

Core Academic Subjects (§ 300.10) 

Comment: A few commenters 

suggested adding the definition of core 

academic subjects from the ESEA to the 

regulations and including any 

additional subjects that are considered 

core academic subjects for children in 

the State in which the child resides. 

Discussion: The definition of core 

academic subjects in § 300.10, 

consistent with section 602(4) of the 

Act, is the same as the definition in 

section 9101 of the ESEA. We believe it 

is unnecessary to change the definition 

to include additional subjects that 

particular States consider to be core 

academic subjects. However, there is 

nothing in the Act or these regulations 

that would prevent a State from 

including additional subjects in its 

definition of ‘‘core academic subjects.’’

Changes: None. 

Comment: A few commenters 

requested clarifying the definition of 

core academic subjects for a secondary 

school student when the student is 

functioning significantly below the 

secondary level. 

Discussion: The definition of core 

academic subjects does not vary for 

secondary students who are functioning 

significantly below grade level. The Act 

focuses on high academic standards and 

clear performance goals for children 

with disabilities that are consistent with 

the standards and expectations for all 

children. As required in § 300.320(a), 

each child’s IEP must include annual 

goals to enable the child to be involved 

in and make progress in the general 

education curriculum, and a statement 

of the special education and related 

services and supplementary aids and 

services to enable the child to be 

involved and make progress in the 

general education curriculum. It would, 

therefore, be inconsistent and contrary 

to the purposes of the Act for the 

definition of core academic subjects to 

be different for students who are 

functioning below grade level. 

Changes: None. 

Comment: One commenter asked that 

the core content area of ‘‘science’’ apply 

to social sciences, as well as natural 

sciences. 

Discussion: We cannot change the 

regulations in the manner recommended 

by the commenter because the ESEA 

does not identify ‘‘social sciences’’ as a 

core academic subject. Neither does it 

identify ‘‘social studies’’ as a core 

academic subject. Instead, it identifies 

specific core academic areas: History, 

geography, economics, and civics and 

government. The Department’s 

nonregulatory guidance on ‘‘Highly 

Qualified Teachers, Improving Teacher 

Quality State Grants’’ (August 3, 2005) 

explains that if a State issues a 

composite social studies license, the 

State must determine in which of the 

four areas (history, geography, 

economics, and civics and government), 

if any, a teacher is qualified. (see 

question A–20 in the Department’s 

nonregulatory guidance available at 

http://www.ed.gov/programs/ 

teacherqual/legislation.html#guidance). 

Changes: None. 

Day; Business Day; School Day 

(§ 300.11) 

Comment: A few commenters stated 

that a partial day should be considered 

a school day only if there is a safety 

reason for a shortened day, such as a 

two hour delay due to snow, and that 

regularly scheduled half days should 

not be considered a school day for 

funding purposes. One commenter 

stated that many schools count the time 

on the bus, recess, lunch period, and 

passing periods as part of a school day 

for children with disabilities, and 

recommended that the regulations 

clarify that non-instructional time does 

not count against a child’s instructional 

day unless such times are counted 

against the instructional day of all 

children. One commenter recommended 

the definition of school day include 

days on which extended school year 

(ESY) services are provided to children 

with disabilities. 

Discussion: The length of the school 

day and the number of school days do 

not affect the formula used to allocate 

Part B funds to States. School day, as 

defined in § 300.11(c)(1), is any day or 

partial day that children are in 

attendance at school for instructional 

purposes. If children attend school for 

only part of a school day and are 

released early (e.g., on the last day 

before summer vacation), that day 

would be considered to be a school day. 

Section 300.11(c)(2) already defines 

school day as having the same meaning 

for all children, including children with 

and without disabilities. Therefore, it is 

unnecessary for the regulations to 

clarify that non-instructional time (e.g., 

recess, lunch) is not counted as 

instructional time for a child with a 

disability unless such times are counted 

as instructional time for all children. 

Consistent with this requirement, days 

on which ESY services are provided 

cannot be counted as a school day 

because ESY services are provided only 

to children with disabilities. 

Changes: None. 

Educational Service Agency (§ 300.12) 

Comment: One commenter questioned 

the accuracy of the citation, 20 U.S.C. 

1401(5), as the basis for including 

‘‘intermediate educational unit’’ in the 

definition of educational service agency. 

Discussion: The definition of 

educational service agency is based on 

the provisions in section 602(5) of the 

Act. The definition was added by the 

Amendments to the Individuals with 

Disabilities Education Act in 1997, Pub. 

L. 105–17, to replace the definition of 

‘‘intermediate educational unit’’ (IEU) in 

section 602(23) of the Act, as in effect 

prior to June 4, 1997. Educational 

service agency does not exclude entities 

that were considered IEUs under prior 

law. To avoid any confusion about the 

use of this term, the definition clarifies 

that educational service agency includes 

entities that meet the definition of IEU 

in section 602(23) of the Act as in effect 

prior to June 4, 1997. We believe the 

citation for IEU is consistent with the 

Act. 

Changes: None. 

Comment: One commenter requested 

that the regulations clarify that the 

reference to the definition of 

educational service agency in the 

definition of local educational agency or 

LEA in § 300.28 means that educational 

service agencies (ESAs) and Bureau of 

Indian Affairs (BIA) schools have full 

responsibility and rights as LEAs under 

all provisions of the Act, including 

§ 300.226 (early intervening services). 

Discussion: With respect to ESAs, we 

believe that the provisions in § 300.12 

and § 300.28 clarify that ESAs have full 

responsibility and rights as LEAs, 

including the provisions in § 300.226 

related to early intervening services. 

However, the commenter’s request 

regarding BIA schools is inconsistent 

with the Act. The definition of local 

educational agency in § 300.28 and 

section 602(19) of the Act, including the 

provision on BIA funded schools in 

section 602(19)(C) of the Act and in 

§ 300.28(c), states that the term ‘‘LEA’’

includes an elementary school or 

secondary school funded by the BIA, 

‘‘but only to the extent that the 

inclusion makes the school eligible for 

programs for which specific eligibility is 

not provided to the school in another 

provision of law and the school does not 

have a student population that is 

smaller than the student population of 

the LEA receiving assistance under the 

Act with the smallest student 

population.’’ Therefore, BIA schools do 

not have full responsibility and rights as 

LEAs under all provisions of the Act. 

Changes: None. 


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Excess Costs (§ 300.16) 

Comment: One commenter stated that 

an example on calculating excess costs 

would be a helpful addition to the 

regulations. 

Discussion: We agree with the 

commenter and will include an example 

of calculating excess costs in Appendix 

A to Part 300—Excess Costs 

Calculation. In developing the example, 

we noted that while the requirements in 

§ 300.202 exclude debt service and 

capital outlay in the calculation of 

excess costs, the definition of excess 

costs in § 300.16 does not mention this 

exclusion. We believe it is important to 

include this exclusion in the definition 

of excess costs and will add language in 

§ 300.16 to make this clear and 

consistent with the requirements in 

§ 300.202. 

Changes: We have revised § 300.16(b) 

to clarify that the calculation of excess 

costs may not include capital outlay or 

debt service. We have also added 

Appendix A to Part 300—Excess Costs 

Calculation that provides an example 

and an explanation of how to calculate 

excess costs under the Act. A reference 

to Appendix A has been added in 

§ 300.16(b). 

Free Appropriate Public Education or 

FAPE (§ 300.17) 

Comment: One commenter stated that 

the requirements in §§ 300.103 through 

300.112 (Other FAPE Requirements) 

should be included in the definition of 

FAPE. 

Discussion: The other FAPE 

requirements in §§ 300.103 through 

300.112 are included in subpart B of 

these regulations, rather than in the 

definition of FAPE in subpart A, to be 

consistent with the order and structure 

of section 612 of the Act, which 

includes all the statutory requirements 

related to State eligibility. The order and 

structure of these regulations follow the 

general order and structure of the 

provisions in the Act in order to be 

helpful to parents, State and LEA 

personnel, and the public both in 

reading the regulations, and in finding 

the direct link between a given statutory 

requirement and the regulation related 

to that requirement. 

Changes: None. 

Comment: Some commenters stated 

that the definition of FAPE should 

include special education services that 

are provided in conformity with a 

child’s IEP in the least restrictive 

environment (LRE), consistent with the 

standards of the State educational 

agency (SEA). 

Discussion: The definition of FAPE in 

§ 300.17 accurately reflects the specific 

language in section 602(9) of the Act. 

We believe it is unnecessary to change 

the definition of FAPE in the manner 

recommended by the commenters 

because providing services in 

conformity with a child’s IEP in the LRE 

is implicit in the definition of FAPE. 

Consistent with § 300.17(b), FAPE 

means that special education and 

related services must meet the standards 

of the SEA and the requirements in Part 

B of the Act, which include the LRE 

requirements in §§ 300.114 through 

300.118. Additionally, § 300.17(d) 

provides that FAPE means that special 

education and related services are 

provided in conformity with an IEP that 

meets the requirements in section 

614(d) of the Act. Consistent with 

section 614(d)(1)(i)(V) of the Act, the 

IEP must include a statement of the 

extent, if any, to which the child will 

not participate with nondisabled 

children in the regular education class. 

Changes: None. 

Comment: One commenter 

recommended removing ‘‘including the 

requirements of this part’’ in § 300.17(b) 

because this phrase is not included in 

the Act, and makes every provision in 

Part B of the Act a component of FAPE. 

Discussion: Section 300.17 is the same 

as current § 300.13, which has been in 

the regulations since 1977. We do not 

believe that § 300.17 makes every 

provision of this part applicable to 

FAPE. 

Changes: None. 

Highly Qualified Special Education 

Teachers (§ 300.18) 

Comment: One commenter requested 

including the definition of ‘‘highly 

qualified teacher,’’ as defined in the 

ESEA, in the regulations. 

Discussion: The ESEA defines ‘‘highly 

qualified’’ with regard to any public 

elementary or secondary school teacher. 

For the reasons set forth earlier in this 

notice, we are not adding definitions 

from other statutes to these regulations. 

However, we will include the current 

definition here for reference. 

The term ‘‘highly qualified’’—

(A) When used with respect to any 

public elementary school or secondary 

school teacher teaching in a State, 

means that—

(i) The teacher has obtained full State 

certification as a teacher (including 

certification obtained through 

alternative routes to certification) or 

passed the State teacher licensing 

examination, and holds a license to 

teach in such State, except that when 

used with respect to any teacher 

teaching in a public charter school, the 

term means that the teacher meets the 

requirements set forth in the State’s 

public charter school law; and 

(ii) The teacher has not had 

certification or licensure requirements 

waived on an emergency, temporary, or 

provisional basis; 

(B) When used with respect to—

(i) An elementary school teacher who 

is new to the profession, means that the 

teacher—

(I) Holds at least a bachelor’s degree; 

and 

(II) Has demonstrated, by passing a 

rigorous State test, subject knowledge 

and teaching skills in reading, writing, 

mathematics, and other areas of the 

basic elementary school curriculum 

(which may consist of passing a Staterequired certification or licensing test or 

tests in reading, writing, mathematics, 

and other areas of the basic elementary 

school curriculum); or 

(ii) A middle or secondary school 

teacher who is new to the profession, 

means that the teacher holds at least a 

bachelor’s degree and has demonstrated 

a high level of competency in each of 

the academic subjects in which the 

teacher teaches by—

(I) Passing a rigorous State academic 

subject test in each of the academic 

subjects in which the teacher teaches 

(which may consist of a passing level of 

performance on a State-required 

certification or licensing test or tests in 

each of the academic subjects in which 

the teacher teaches); or 

(II) Successful completion, in each of 

the academic subjects in which the 

teacher teaches, of an academic major, 

a graduate degree, coursework 

equivalent to an undergraduate 

academic major, or advanced 

certification or credentialing; and 

(C) When used with respect to an 

elementary, middle, or secondary school 

teacher who is not new to the 

profession, means that the teacher holds 

at least a bachelor’s degree and—

(i) Has met the applicable standard in 

clause (i) or (ii) of subparagraph (B), 

which includes an option for a test; or 

(ii) Demonstrates competence in all 

the academic subjects in which the 

teacher teaches based on a high 

objective uniform State standard of 

evaluation that—

(I) Is set by the State for both grade 

appropriate academic subject matter 

knowledge and teaching skills; 

(II) Is aligned with challenging State 

academic content and student academic 

achievement standards and developed 

in consultation with core content 

specialists, teachers, principals, and 

school administrators; 

(III) Provides objective, coherent 

information about the teacher’s 

attainment of core content knowledge in 


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the academic subjects in which a 

teacher teaches; 

(IV) Is applied uniformly to all 

teachers in the same academic subject 

and the same grade level throughout the 

State; 

(V) Takes into consideration, but not 

be based primarily on, the time the 

teacher has been teaching in the 

academic subject; 

(VI) Is made available to the public 

upon request; and 

(VII) May involve multiple, objective 

measures of teacher competency. 

Changes: None. 

Comment: A few commenters 

recommended defining the term 

‘‘special education teacher.’’ Other 

commenters recommended that States 

define highly qualified special 

education teachers and providers. One 

commenter stated that the regulations 

should define the role of the special 

education teacher as supplementing and 

supporting the regular education teacher 

who is responsible for teaching course 

content. 

One commenter requested that the 

regulations clarify that a special 

education teacher who is certified as a 

regular education teacher with an 

endorsement in special education meets 

the requirements for a highly qualified 

special education teacher. Another 

commenter recommended changing the 

definition of a highly qualified special 

education teacher so that States cannot 

provide a single certification for all 

areas of special education. One 

commenter requested clarification 

regarding the highly qualified special 

education teacher standards for special 

education teachers with single State 

endorsements in the area of special 

education. A few commenters 

recommended clarifying that when a 

State determines that a teacher is fully 

certified in special education, this 

means that the teacher is knowledgeable 

and skilled in the special education area 

in which certification is received. One 

commenter recommended that teacher 

qualifications and standards be 

consistent from State to State. 

Discussion: Section 300.18(b), 

consistent with section 602(10)(B) of the 

Act, provides that a highly qualified 

special education teacher must have full 

State special education certification 

(including certification obtained 

through alternative routes to 

certification) or have passed the State 

special education teacher licensing 

examination and hold a license to teach 

in the State; have not had special 

education certification or licensure 

requirements waived on an emergency, 

temporary, or provisional basis; and 

hold at least a bachelor’s degree. Except 

to the extent addressed in § 300.18(c) 

and (d), special education teachers who 

teach core academic subjects must, in 

addition to meeting these requirements, 

demonstrate subject-matter competency 

in each of the core academic subjects in 

which the teacher teaches. 

States are responsible for establishing 

certification and licensing standards for 

special education teachers. Each State 

uses its own standards and procedures 

to determine whether teachers who 

teach within that State meet its 

certification and licensing requirements. 

Teacher qualifications and standards are 

consistent from State to State to the 

extent that States work together to 

establish consistent criteria and 

reciprocity agreements. It is not the role 

of the Federal government to regulate 

teacher certification and licensure. 

Changes: None. 

Comment: One commenter stated that 

LEAs must train special education 

teachers because most special education 

teachers are not highly qualified upon 

graduation from a college program. A 

few commenters recommended that the 

regulations encourage SEAs to require 

coursework for both special education 

and general education teachers in the 

areas of behavior management and 

classroom management. One commenter 

recommended that the requirements for 

special education teachers include 

competencies in reading instruction and 

in properly modifying and 

accommodating instruction. Another 

commenter supported training in 

special education and related services 

for general education teachers. One 

commenter expressed support for 

collaboration between special education 

and regular education teachers. Some 

commenters recommended requiring a 

highly qualified general education 

teacher teaching in a self-contained 

special education classroom to work in 

close collaboration with the special 

education teacher assigned to those 

children. Another commenter stated 

that the definition of a highly qualified 

special education teacher will be 

meaningless if the training for teachers 

is not consistent across States. 

Discussion: Personnel training needs 

vary across States and it would be 

inappropriate for the regulations to 

require training on specific topics. 

Consistent with § 300.156 and section 

612(a)(14) of the Act, each State is 

responsible for ensuring that teachers, 

related services personnel, 

paraprofessionals, and other personnel 

serving children with disabilities under 

Part B of the Act are appropriately and 

adequately prepared and trained and 

have the content knowledge and skills 

required to serve children with 

disabilities. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

include standards for highly qualified 

special education paraprofessionals, 

similar to the requirements under the 

ESEA. 

Discussion: Section § 300.156(b) 

specifically requires the qualifications 

for paraprofessionals to be consistent 

with any State-approved or Staterecognized certification, licensing, 

registration, or other comparable 

requirements that apply to the 

professional discipline in which those 

personnel are providing special 

education or related services. 

In addition, the ESEA requires that 

paraprofessionals, including special 

education paraprofessionals who assist 

in instruction in title I-funded programs, 

have at least an associate’s degree, have 

completed at least two years of college, 

or meet a rigorous standard of quality 

and demonstrate, through a formal State 

or local assessment, knowledge of, and 

the ability to assist in instruction in 

reading, writing, and mathematics, 

reading readiness, writing readiness, or 

mathematics readiness, as appropriate. 

Paraprofessionals in title I schools do 

not need to meet these requirements if 

their role does not involve instructional 

support, such as special education 

paraprofessionals who solely provide 

personal care services. For more 

information on the ESEA requirements 

for paraprofessionals, see 34 CFR 200.58 

and section 1119 of the ESEA, and the 

Department’s nonregulatory guidance, 

Title I Paraprofessionals (March 1, 

2004), which can be found on the 

Department’s Web site at: http:// 

www.ed.gov/policy/elsec/guid/ 

paraguidance.pdf. 

We believe these requirements are 

sufficient to ensure that children with 

disabilities receive services from 

paraprofessionals who are appropriately 

and adequately trained. Therefore, we 

decline to include additional standards 

for paraprofessionals. 

Changes: None. 

Comment: Numerous commenters 

requested clarification as to whether 

early childhood and preschool special 

education teachers must meet the highly 

qualified special education teacher 

standards. Several commenters stated 

that requiring early childhood and 

preschool special education teachers to 

meet the highly qualified special 

education teacher standards would 

exceed statutory authority and 

exacerbate the shortage of special 

education teachers. A few commenters 

supported allowing States to decide 


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whether the highly qualified special 

education teacher requirements apply to 

preschool teachers. 

Discussion: The highly qualified 

special education teacher requirements 

apply to all public elementary school 

and secondary school special education 

teachers, including early childhood or 

preschool teachers if a State includes 

the early childhood or preschool 

programs as part of its elementary 

school and secondary school system. If 

the early childhood or preschool 

program is not a part of a State’s public 

elementary school and secondary school 

system, the highly qualified special 

education teacher requirements do not 

apply. 

Changes: None. 

Comment: One commenter requested 

clarification regarding the scope of the 

highly qualified special education 

teacher requirements for instructors 

who teach core academic subjects in 

specialized schools, such as schools for 

the blind, and recommended that there 

be different qualifications for instructors 

who provide orientation and mobility 

instruction or travel training for 

children who are blind or visually 

impaired. 

One commenter requested adding 

travel instructors to the list of special 

educators who need to be highly 

qualified. Some commenters 

recommended adding language to 

include certified and licensed special 

education teachers of children with low 

incidence disabilities as highly qualified 

special education teachers. A few 

commenters requested that the 

requirements for teachers who teach 

children with visual impairments 

include competencies in teaching 

Braille, using assistive technology 

devices, and conducting assessments, 

rather than competencies in core subject 

areas. Some commenters requested more 

flexibility in setting the standards for 

teachers of children with visual 

impairments and teachers of children 

with other low incidence disabilities. 

One commenter requested clarification 

regarding the requirements for teachers 

of children with low incidence 

disabilities. 

Discussion: Consistent with § 300.156 

and section 612(a)(14) of the Act, it is 

the responsibility of each State to ensure 

that teachers and other personnel 

serving children with disabilities under 

Part B of the Act are appropriately and 

adequately prepared and trained and 

have the content knowledge and skills 

to serve children with disabilities, 

including teachers of children with 

visual impairments and teachers of 

children with other low incidence 

disabilities. 

The highly qualified special 

education teacher requirements apply to 

all public school special education 

teachers. There are no separate or 

special provisions for special education 

teachers who teach in specialized 

schools, for teachers of children who are 

blind and visually impaired, or for 

teachers of children with other low 

incidence disabilities and we do not 

believe there should be because these 

children should receive the same high 

quality instruction from teachers who 

meet the same high standards as all 

other teachers and who have the subject 

matter knowledge and teaching skills 

necessary to assist these children to 

achieve to high academic standards. 

Changes: None. 

Comment: One commenter requested 

clarification on how the highly qualified 

special education teacher requirements 

impact teachers who teach children of 

different ages. A few commenters 

recommended adding a provision for 

special education teachers who teach at 

multiple age levels, similar to the 

special education teacher who teaches 

multiple subjects. 

Discussion: The Act does not include 

any special requirements for special 

education teachers who teach at 

multiple age levels. Teachers who teach 

at multiple age levels must meet the 

same requirements as all other special 

education teachers to be considered 

highly qualified. The clear intent of the 

Act is to ensure that all children with 

disabilities have teachers with the 

subject matter knowledge and teaching 

skills necessary to assist children with 

disabilities achieve to high academic 

standards. Therefore, we do not believe 

there should be different requirements 

for teachers who teach at multiple age 

levels. 

Changes: None. 

Comment: One commenter 

recommended including specific criteria 

defining a highly qualified special 

education literacy teacher. 

Discussion: Under § 300.18(a), a 

special education literacy teacher who 

is responsible for teaching reading must 

meet the ESEA highly qualified teacher 

requirements including competency in 

reading, as well as the highly qualified 

special education teacher requirements. 

We do not believe that further 

regulation is needed as the Act leaves 

teacher certification and licensing 

requirements to States. 

Changes: None. 

Comment: Many commenters 

expressed concern that the highly 

qualified special education teacher 

standards will make it more difficult to 

recruit and retain special education 

teachers. Some commenters stated that 

most special education teachers will 

need to hold more than one license or 

certification to meet the highly qualified 

special education teacher requirements 

and that the time and expense needed 

to obtain the additional licenses or 

certifications is unreasonable. One 

commenter stated that schools will have 

to hire two or three teachers for every 

one special education teacher, thereby 

increasing education costs. 

One commenter expressed concern 

about losing special education teachers 

who teach multiple subjects in 

alternative education and homebound 

programs because they will not meet the 

highly qualified special education 

teacher requirements. One commenter 

expressed concern that the requirements 

set a higher standard for teachers in selfcontained classrooms. Another 

commenter stated that requiring special 

education teachers in secondary schools 

to be experts in all subjects is a burden 

that elementary teachers do not have. 

Discussion: The Department 

understands the concerns of the 

commenters. However, the clear 

intention of the Act is to ensure that all 

children with disabilities have teachers 

with the subject-matter knowledge and 

teaching skills necessary to assist 

children with disabilities achieve to 

high academic standards. 

To help States and districts meet 

these standards, section 651 of the Act 

authorizes State Personnel Development 

grants to help States reform and 

improve their systems for personnel 

preparation and professional 

development in early intervention, 

educational, and transition services in 

order to improve results for children 

with disabilities. In addition, section 

662 of the Act authorizes funding for 

institutions of higher education, LEAs, 

and other eligible local entities to 

improve or develop new training 

programs for teachers and other 

personnel serving children with 

disabilities. 

Changes: None. 

Comment: One commenter requested 

further clarification regarding the 

requirements for secondary special 

education teachers to be highly 

qualified in the core subjects they teach, 

as well as certified in special education. 

Discussion: Consistent with 

§ 300.18(a) and (b) and section 

602(10)(A) and (B) of the Act, secondary 

special education teachers who teach 

core academic subjects must meet the 

highly qualified teacher standards 

established in the ESEA (which 

includes competency in each core 

academic subject the teacher teaches) 

and the highly qualified special 

education teacher requirements in 


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§ 300.18(b) and section 602(10)(B) of the 

Act. 

Consistent with § 300.18(c) and 

section 602(10)(C) of the Act, a 

secondary special education teacher 

who teaches core academic subjects 

exclusively to children assessed against 

alternate achievement standards can 

satisfy the highly qualified special 

education teacher requirements by 

meeting the requirements for a highly 

qualified elementary teacher under the 

ESEA, or in the case of instruction 

above the elementary level, have subject 

matter knowledge appropriate to the 

level of instruction being provided, as 

determined by the State, to effectively 

teach to those standards. 

Changes: None. 

Comment: One commenter expressed 

concern that the highly qualified teacher 

requirements will drive secondary 

teachers who teach children with 

emotional and behavioral disorders out 

of the field and requested that the 

requirements be changed to require 

special education certification in one 

core area, plus a reasonable amount of 

training in other areas. Another 

commenter recommended permitting 

special education teachers of core 

academic subjects at the elementary 

level to be highly qualified if they major 

in elementary education and have 

coursework in math, language arts, and 

science. One commenter recommended 

that any special education teacher 

certified in a State prior to 2004 be 

exempt from having to meet the highly 

qualified special education teacher 

requirements. 

Discussion: The definition of a highly 

qualified special education teacher in 

§ 300.18 accurately reflects the 

requirements in section 602(10) of the 

Act. To change the regulations in the 

manner recommended by the 

commenters would be inconsistent with 

the Act and the Act’s clear intent of 

ensuring that all children with 

disabilities have teachers with the 

subject matter knowledge and teaching 

skills necessary to assist children with 

disabilities achieve to high academic 

standards. Therefore, we decline to 

change the requirements in § 300.18. 

Changes: None. 

Comment: One commenter stated that 

there is a double standard in the highly 

qualified teacher requirements because 

general education teachers are not 

required to be certified in special 

education even though they teach 

children with disabilities. Another 

commenter recommended requiring 

general education teachers who teach 

children with disabilities to meet the 

highly qualified special education 

teacher requirements. 

Discussion: We cannot make the 

changes suggested by the commenter 

because the Act does not require general 

education teachers who teach children 

with disabilities to be certified in 

special education. Further, the 

legislative history of the Act would not 

support these changes. Note 21 in the 

U.S. House of Representatives 

Conference Report No. 108–779 (Conf. 

Rpt.), p. 169, clarifies that general 

education teachers who are highly 

qualified in particular subjects and who 

teach children with disabilities in those 

subjects are not required to have full 

State certification as a special education 

teacher. For example, a reading 

specialist who is highly qualified in 

reading instruction, but who is not 

certified as a special education teacher, 

would not be prohibited from providing 

reading instruction to children with 

disabilities. 

The Act focuses on ensuring that 

children with disabilities achieve to 

high academic standards and have 

access to the same curriculum as other 

children. In order to achieve this goal, 

teachers who teach core academic 

subjects to children with disabilities 

must be competent in the core academic 

areas in which they teach. This is true 

for general education teachers, as well 

as special education teachers. 

Changes: None. 

Comment: Some commenters 

expressed concern that LEAs may 

reduce placement options for children 

with disabilities because of the shortage 

of highly qualified teachers. A few 

commenters recommended requiring 

each State to develop and implement 

policies to ensure that teachers meet the 

highly qualified special education 

teacher requirements, while maintaining 

a full continuum of services and 

alternative placements to respond to the 

needs of children with disabilities. 

Discussion: It would be inconsistent 

with the LRE requirements in section 

612(a)(5) of the Act for a public agency 

to restrict the placement options for 

children with disabilities. Section 

300.115, consistent with section 

612(a)(5) of the Act, requires each 

public agency to ensure that a 

continuum of alternative placements is 

available to meet the needs of children 

with disabilities. 

The additional requirements 

requested by the commenter are not 

necessary because States already must 

develop and implement policies to 

ensure that the State meets the LRE and 

personnel standards requirements in 

sections 612(a)(5) and (a)(14) of the Act, 

respectively. 

Changes: None. 

Comment: One commenter stated that 

personnel working in charter schools 

should meet the same requirements as 

all other public school personnel. 

Several commenters expressed concern 

regarding the exemption of charter 

school teachers from the highly 

qualified special education teacher 

requirements. One commenter stated 

that while a special education teacher in 

a charter school does not have to be 

licensed or certified by the State if the 

State’s charter school law does not 

require such licensure or certification, 

all other elements of the highly 

qualified special education teacher 

requirements should apply to charter 

school teachers, including demonstrated 

competency in core academic subject 

areas. 

Discussion: The certification 

requirements for charter school teachers 

are established in a State’s public 

charter school law, and may differ from 

the requirements for full State 

certification for teachers in other public 

schools. The Department does not have 

the authority to change State charter 

school laws to require charter school 

teachers to meet the same requirements 

as all other public school teachers. 

In addition to the certification 

requirements established in a State’s 

public charter school law, if any, section 

602(10) of the Act requires charter 

school special education teachers to 

hold at least a bachelor’s degree and, if 

they are teaching core academic 

subjects, demonstrate competency in the 

core academic areas they teach. We will 

add language in § 300.18(b) to clarify 

that special education teachers in public 

charter schools must meet the 

certification or licensing requirements, 

if any, established by a State’s public 

charter school law. 

Changes: We have added the words 

‘‘if any’’ in § 300.18(b)(1)(i) to clarify 

that special education teachers in public 

charter schools must meet any 

certification or licensing requirements 

established by a State’s public charter 

school law. 

Comment: One commenter stated that 

the regulations use the terms ‘‘highly 

qualified’’ and ‘‘fully certified’’ in a 

manner that implies they are 

synonymous, and recommended that 

the regulations maintain the distinction 

between the two terms. 

Discussion: Full State certification is 

determined under State law and policy 

and means that a teacher has fully met 

State requirements, including any 

requirements related to a teacher’s years 

of teaching experience. For example, 

State requirements may vary for firstyear teachers versus teachers who are 

not new to the profession. Full State 


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certification also means that the teacher 

has not had certification or licensure 

requirements waived on an emergency, 

temporary, or provisional basis. 

The terms ‘‘highly qualified’’ and 

‘‘fully certified’’ are synonymous when 

used to refer to special education 

teachers who are not teaching core 

academic subjects. For special 

education teachers teaching core 

academic subjects, however, both full 

special education certification or 

licensure and subject matter 

competency are required. 

Changes: We have changed the 

heading to § 300.18(a) and the 

introductory material in § 300.18(a) and 

(b)(1) for clarity. 

Comment: A few commenters 

recommended prohibiting States from 

creating new categories to replace 

emergency, temporary, or provisional 

licenses that lower the standards for full 

certification in special education. 

Discussion: We do not believe it is 

necessary to add the additional language 

recommended by the commenters. 

Section 300.18(b)(1)(ii) and section 

602(10)(B)(ii) of the Act are clear that a 

teacher cannot be considered a highly 

qualified special education teacher if 

the teacher has had special education 

certification or licensure waived on an 

emergency, temporary, or provisional 

basis. This would include any new 

certification category that effectively 

allows special education certification or 

licensure to be waived on an emergency, 

temporary, or provisional basis. 

Changes: None. 

Comment: Some commenters 

supported alternative route to 

certification programs for special 

education teachers. One commenter 

stated that these programs are necessary 

to increase the number of highly 

qualified teachers and will help schools 

on isolated tribal reservations recruit, 

train, and retain highly qualified 

teachers. However, numerous 

commenters expressed concerns and 

objections to alternative route to 

certification programs for special 

education teachers. Several commenters 

stated that allowing individuals making 

progress in an alternative route to 

certification program to be considered 

highly qualified and fully certified 

creates a lower standard, short-changes 

children, is not supported by any 

provision in the Act, and undermines 

the requirement for special education 

teachers to be fully certified. One 

commenter stated that this provision is 

illogical and punitive to higher 

education teacher training programs 

because it allows individuals in an 

alternative route to certification program 

to be considered highly qualified and 

fully certified during their training 

program, while at the same time 

individuals in regular teacher training 

programs that meet the same 

requirements as alternative route to 

certification programs are not 

considered highly qualified or fully 

certified. One commenter argued that an 

individual participating in an 

alternative route to certification program 

would need certification waived on an 

emergency, temporary, or provisional 

basis, which means the individual has 

not met the requirements in 

§ 300.18(b)(1)(ii). Another commenter 

stated that three years is not enough 

time for a teacher enrolled in an 

alternative route to certification program 

to assume the functions of a teacher. 

Discussion: While we understand the 

general objections to alternative route to 

certification programs expressed by the 

commenters, the Department believes 

that alternative route to certification 

programs provide an important option 

for individuals seeking to enter the 

teaching profession. The requirements 

in § 300.18(b)(2) were included in these 

regulations to provide consistency with 

the requirements in 34 CFR 

200.56(a)(2)(ii)(A) and the ESEA, 

regarding alternative route to 

certification programs. To help ensure 

that individuals participating in 

alternative route to certification 

programs are well trained, there are 

certain requirements that must be met as 

well as restrictions on who can be 

considered to have obtained full State 

certification as a special education 

teacher while enrolled in an alternative 

route to certification program. An 

individual participating in an 

alternative route to certification program 

must (1) hold at least a bachelor’s degree 

and have demonstrated subject-matter 

competency in the core academic 

subject(s) the individual will be 

teaching; (2) assume the functions of a 

teacher for not more than three years; 

and (3) demonstrate satisfactory 

progress toward full certification, as 

prescribed by the State. The individual 

also must receive, before and while 

teaching, high-quality professional 

development that is sustained, 

intensive, and classroom-focused and 

have intensive supervision that consists 

of structured guidance and regular 

ongoing support. 

It was the Department’s intent to 

allow an individual who wants to 

become a special education teacher, but 

does not plan to teach a core academic 

subject, to enroll in an alternative route 

to certification program and be 

considered highly qualified, provided 

that the individual holds at least a 

bachelor’s degree. This requirement, 

however, was inadvertently omitted in 

the NPRM. Therefore, we will add 

appropriate references in § 300.18(b)(3) 

to clarify that an individual 

participating in an alternative route to 

certification program in special 

education who does not intend to teach 

a core academic subject, may be 

considered a highly qualified special 

education teacher if the individual 

holds at least a bachelor’s degree and 

participates in an alternative route to 

certification program that meets the 

requirements in § 300.18(b)(2). 

Changes: Appropriate citations have 

been added in § 300.18(b)(3) to clarify 

the requirements for individuals 

enrolled in alternative route to special 

education teacher certification 

programs. 

Comment: A few commenters 

recommended more specificity in the 

requirements for teachers participating 

in alternative route to certification 

programs, rather than giving too much 

discretion to States to develop programs 

that do not lead to highly qualified 

personnel. However, one commenter 

recommended allowing States the 

flexibility to create their own guidelines 

for alternative route to certification 

programs. 

Several commenters recommended 

clarifying the requirements for the 

teacher supervising an individual who 

is participating in an alternative route to 

certification program. One commenter 

recommended requiring supervision, 

guidance, and support by a professional 

with expertise in the area of special 

education in which the teacher desires 

to become certified. 

Discussion: Consistent with 

§ 300.18(b)(2)(ii), States are responsible 

for ensuring that the standards for 

alternative route to certification 

programs in § 300.18(b)(2)(i) are met. It 

is, therefore, up to each State to 

determine whether to require specific 

qualifications for the teachers 

responsible for supervising teachers 

participating in an alternative route to 

certification program. 

Changes: None. 

Comment: One commenter requested 

clarification regarding the roles and 

responsibilities of special education 

teachers who do not teach core 

academic subjects. 

Discussion: Special education 

teachers who do not directly instruct 

children in any core academic subject or 

who provide only consultation to highly 

qualified teachers of core academic 

subjects do not need to demonstrate 

subject-matter competency in those 

subjects. These special educators could 

provide consultation services to other 

teachers, such as adapting curricula, 


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using behavioral supports and 

interventions, or selecting appropriate 

accommodations for children with 

disabilities. They could also assist 

children with study skills or 

organizational skills and reinforce 

instruction that the child has already 

received from a highly qualified teacher 

in that core academic subject. 

Changes: None. 

Comment: Many commenters 

recommended including language in the 

regulations to clarify that special 

education teachers who do not teach 

core academic subjects and provide only 

consultative services must restrict their 

services to areas that supplement, not 

replace, the direct instruction provided 

by a highly qualified general education 

teacher. One commenter recommended 

that States develop criteria for teachers 

who provide consultation services. 

Another commenter stated that special 

education teachers should not work on 

a consultative basis. 

Discussion: The definition of 

consultation services and whether a 

special education teacher provides 

consultation services are matters best 

left to the discretion of each State. 

While States may develop criteria to 

distinguish consultation versus 

instructional services, the Act and the 

ESEA are clear that teachers who 

provide direct instruction in a core 

academic subject, including special 

education teachers, must meet the 

highly qualified teacher requirements, 

which include demonstrated 

competency in each of the core 

academic subjects the teacher teaches. 

Changes: None. 

Requirements for Highly Qualified 

Special Education Teachers Teaching to 

Alternate Achievement Standards 

(§ 300.18(c)) 

Comment: One commenter 

recommended replacing ‘‘alternate 

achievement standards’’ with ‘‘alternate 

standards.’’ A few commenters 

requested including a definition of 

alternate achievement standards in the 

regulations. 

Discussion: ‘‘Alternate achievement 

standards’’ is statutory language and, 

therefore, it would be inappropriate to 

change ‘‘alternate achievement 

standards’’ to ‘‘alternate standards.’’

For the reasons set forth earlier in this 

notice, we are not adding definitions 

from other statutes to these regulations. 

However, we will include the current 

description of alternate achievement 

standards in 34 CFR 200.1(d) of the 

ESEA regulations here for reference. 

For children under section 602(3) of 

the Individuals with Disabilities 

Education Act with the most significant 

cognitive disabilities who take an 

alternate assessment, a State may, 

through a documented and validated 

standards-setting process, define 

alternate academic achievement 

standards, provided those standards—

(1) Are aligned with the State’s 

academic content standards; 

(2) Promote access to the general 

curriculum; and 

(3) Reflect professional judgment of 

the highest achievement standards 

possible. 

Changes: None. 

Comment: Several commenters 

expressed concern with allowing high 

school students with significant 

cognitive disabilities to be taught by a 

certified elementary school teacher. One 

commenter stated that high school 

students with disabilities should be 

prepared to lead productive adult lives, 

and not be treated as young children. 

Another commenter stated that these 

requirements foster low expectations for 

children with the most significant 

cognitive disabilities and will be used to 

justify providing children with 

instruction that is not age appropriate or 

that denies access to the general 

education curriculum. A few 

commenters stated that the 

requirements for special education 

teachers teaching to alternate 

achievement standards should be the 

same as the requirements for all special 

education teachers. 

Some commenters recommended 

requiring teachers who teach to 

alternate achievement standards to have 

subject matter knowledge to provide 

instruction aligned to the academic 

content standards for the grade level in 

which the student is enrolled. One 

commenter recommended requiring any 

special education teacher teaching to 

alternate achievement standards to 

demonstrate knowledge of ageappropriate core curriculum content to 

ensure children with disabilities are 

taught a curriculum that is closely tied 

to the general education curriculum 

taught to other children of the same age. 

Discussion: The regulations 

promulgated under section 1111(b)(1) of 

the ESEA permit States to use alternate 

achievement standards to evaluate the 

performance of a small group of 

children with the most significant 

cognitive disabilities who are not 

expected to meet grade-level standards 

even with the best instruction. An 

alternate achievement standard sets an 

expectation of performance that differs 

in complexity from a grade-level 

achievement standard. Section 

602(10)(C)(ii) of the Act, therefore, 

allows special education teachers 

teaching exclusively children who are 

assessed against alternate achievement 

standards to meet the highly qualified 

teacher standards that apply to 

elementary school teachers. In the case 

of instruction above the elementary 

level, the teacher must have subject 

matter knowledge appropriate to the 

level of instruction being provided, as 

determined by the State, in order to 

effectively teach to those standards. 

We do not agree that allowing middle 

and high school students with the most 

significant cognitive disabilities to be 

taught by teachers who meet the 

qualifications of a highly qualified 

elementary teacher fosters low 

expectations, encourages students to be 

treated like children, promotes 

instruction that is not age appropriate, 

or denies students access to the general 

curriculum. Although alternate 

achievement standards differ in 

complexity from grade-level standards, 

34 CFR 200.1(d) requires that alternate 

achievement standards be aligned with 

the State’s content standards, promote 

access to the general curriculum, and 

reflect professional judgment of the 

highest achievement standards possible. 

In short, we believe that the 

requirements in § 300.18(c) will ensure 

that teachers teaching exclusively 

children who are assessed against 

alternate achievement standards will 

have the knowledge to provide 

instruction aligned to grade-level 

content standards so that students with 

the most significant cognitive 

disabilities are taught a curriculum that 

is closely tied to the general curriculum. 

Changes: None. 

Comment: A few commenters 

requested clarification regarding the 

meaning of ‘‘subject matter knowledge 

appropriate to the level of instruction 

provided’’ in § 300.18(c)(2). 

Discussion: Section 300.18(c)(2) 

requires that if a teacher (who is 

teaching exclusively to alternate 

achievement standards) is teaching 

students who need instruction above the 

elementary school level, the teacher 

must have subject matter knowledge 

appropriate to the level of instruction 

needed to effectively teach to those 

standards. The purpose of this 

requirement is to ensure that teachers 

exclusively teaching children who are 

assessed based on alternate academic 

achievement standards above the 

elementary level have sufficient subject 

matter knowledge to effectively instruct 

in each of the core academic subjects 

being taught, at the level of difficulty 

being taught. For example, if a high 

school student (determined by the IEP 

Team to be assessed against alternate 

achievement standards) has knowledge 

and skills in math at the 7th grade level, 


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but in all other areas functions at the 

elementary level, the teacher would 

need to have knowledge in 7th grade 

math in order to effectively teach the 

student to meet the 7th grade math 

standards. No further clarification is 

necessary. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

include requirements for teachers who 

provide instruction to children assessed 

against modified achievement 

standards. Several commenters stated 

that the requirements for teachers 

teaching children assessed against 

modified achievement standards should 

be the same for teachers teaching 

children assessed against alternate 

achievement standards. 

Discussion: The Department has not 

issued final regulations addressing 

modified achievement standards and 

the specific criteria for determining 

which children with disabilities should 

be assessed based on modified 

achievement standards. As proposed, 

the modified achievement standards 

must be aligned with the State’s 

academic content standards for the 

grade in which the student is enrolled 

and provide access to the grade-level 

curriculum. For this reason, we see no 

need for a further exception to the 

‘‘highly qualified teacher’’ provisions at 

this time. 

Changes: None. 

Requirements for Highly Qualified 

Special Education Teachers Teaching 

Multiple Subjects (§ 300.18(d)) 

Comment: A few commenters stated 

that the requirements for teachers who 

teach two or more core academic 

subjects exclusively to children with 

disabilities are confusing. Some 

commenters requested additional 

guidance and flexibility for special 

education teachers teaching two or more 

core academic subjects. Other 

commenters recommended allowing 

special education teachers more time to 

become highly qualified in all the core 

academic subjects they teach. 

Discussion: The requirements in 

§ 300.18(d), consistent with section 

602(10)(C) of the Act, provide flexibility 

for teachers who teach multiple core 

academic subjects exclusively to 

children with disabilities. Section 

300.18(d)(2) and (3) allows teachers who 

are new and not new in the profession 

to demonstrate competence in all the 

core academic subjects in which the 

teacher teaches using a single, high 

objective uniform State standard of 

evaluation (HOUSSE) covering multiple 

subjects. In addition, § 300.18(d)(3) 

gives a new special education teacher 

who teaches multiple subjects, and who 

is highly qualified in mathematics, 

language arts, or science at the time of 

hire, two years after the date of 

employment to demonstrate competence 

in the other core academic subjects in 

which the teacher teaches. We do not 

believe that further clarification is 

necessary. 

Changes: None. 

Comment: One commenter requested 

clarification regarding the meaning of 

the following phrases in § 300.18(d): 

‘‘multiple subjects,’’ ‘‘in the same 

manner,’’ and ‘‘all the core academic 

subjects.’’

Discussion: ‘‘Multiple subjects’’ refers 

to two or more core academic subjects. 

Section 300.18(d) allows teachers who 

are new or not new to the profession to 

demonstrate competence in ‘‘all the core 

subjects’’ in which the teacher teaches 

‘‘in the same manner’’ as is required for 

an elementary, middle, or secondary 

school teacher under the ESEA. As used 

in this context, ‘‘in the same manner’’

means that special education teachers 

teaching multiple subjects can 

demonstrate competence in the core 

academic subjects they teach in the 

same way that is required for 

elementary, middle, or secondary school 

teachers in 34 CFR 200.56 of the ESEA 

regulations. ‘‘All the core subjects’’

refers to the core academic subjects, 

which include English, reading or 

language arts, mathematics, science, 

foreign languages, civics and 

government, economics, arts, history, 

and geography, consistent with § 300.10. 

Changes: None. 

Comment: One commenter 

recommended ensuring that the 

requirements in § 300.18(d) apply to 

special education teachers who teach 

children with severe disabilities in more 

than one core subject area. 

Discussion: The requirements in 

§ 300.18(d) do not exclude teachers who 

teach children with severe disabilities 

in more than one core subject area. 

Consistent with § 300.18(d) and section 

602(10)(D) of the Act, the requirements 

apply to special education teachers who 

teach two or more core academic 

subjects exclusively to children with 

disabilities, including, but not limited 

to, children with severe disabilities. We 

do not believe that further clarification 

is necessary. 

Changes: None. 

Comment: A significant number of 

commenters recommended adding 

language to the regulations to permit a 

separate HOUSSE for special education 

teachers, including a single HOUSSE 

that covers multiple subjects. Some 

commenters supported a single 

HOUSSE covering multiple subjects for 

special education teachers, as long as 

those adaptations of a State’s HOUSSE 

for use with special education teachers 

do not establish lower standards for the 

content knowledge requirements for 

special education teachers. 

Discussion: States have the option of 

developing a method by which teachers 

can demonstrate competency in each 

subject they teach on the basis of a 

HOUSSE. Likewise, we believe States 

should have the option of developing a 

separate HOUSSE for special education 

teachers. 

States have flexibility in developing 

their HOUSSE evaluation as long as it 

meets each of the following criteria 

established in section 9101(23)(C)(ii) of 

the ESEA: 

• Be set by the State for both gradeappropriate academic subject-matter 

knowledge and teaching skills; 

• Be aligned with challenging State 

academic content and student academic 

achievement standards and developed 

in consultation with core content 

specialists, teachers, principals, and 

school administrators; 

• Provide objective, coherent 

information about the teacher’s 

attainment of core content knowledge in 

the academic subjects in which a 

teacher teaches; 

• Be applied uniformly to all teachers 

in the same academic subject and 

teaching in the same grade level 

throughout the State; 

• Take into consideration, but not be 

based primarily on, the time the teacher 

has been teaching in the academic 

subject; and 

• Be made available to the public 

upon request. 

The ESEA also permits States, when 

developing their HOUSSE procedures, 

to involve multiple, objective measures 

of teacher competency. Each evaluation 

should have a high, objective, uniform 

standard that the candidate is expected 

to meet or to exceed. These standards 

for evaluation must be applied to each 

candidate in the same way. 

We believe it is appropriate and 

consistent with the Act to permit States 

to develop a separate HOUSSE for 

special education teachers to 

demonstrate subject matter competency 

and to use a single HOUSSE covering 

multiple subjects, provided that any 

adaptations to the HOUSSE do not 

establish a lower standard for the 

content knowledge requirements for 

special education teachers and meet all 

the requirements for a HOUSSE for 

regular education teachers established 

in section 9101(23)(C)(ii) of the ESEA. 

Changes: We have added a new 

paragraph (e) to § 300.18 to allow States 

to develop a separate HOUSSE for 


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special education teachers and to permit 

the use of a single HOUSSE covering 

multiple subjects. Subsequent 

paragraphs have been renumbered. 

Comment: A few commenters stated 

that the HOUSSE should only be used 

to address the content requirements, not 

primary certification as a special 

educator. 

Discussion: A HOUSSE is a method 

by which teachers can demonstrate 

competency in each subject they teach. 

A HOUSSE does not address the 

requirement for full State certification as 

a special education teacher. 

Changes: None. 

Comment: Several commenters 

recommended clarifying the 

requirements for a HOUSSE, 

particularly at the high school level. 

One commenter recommended 

clarifying the use of a separate HOUSSE 

for teachers of children with visual 

impairments. 

Discussion: The requirements for a 

HOUSSE apply to public school 

elementary, middle, and high school 

special education teachers. Neither the 

Act nor the ESEA provides for different 

HOUSSE procedures at the high school 

level. Similarly, there are no 

requirements for separate HOUSSE 

procedures for teachers who teach 

children with visual impairments or any 

other specific type of disability. We do 

not believe it is necessary or appropriate 

to establish separate requirements for 

separate HOUSSE procedures for 

teachers who teach children with visual 

impairments or any other specific type 

of disability. All children with 

disabilities, regardless of their specific 

disability, should have teachers with the 

subject matter knowledge to assist them 

to achieve to high academic standards. 

Changes: None. 

Comment: One commenter 

recommended that States work 

collaboratively to ensure there is State 

reciprocity of content area standards for 

special education teachers, including 

HOUSSE provisions. 

Discussion: It is up to each State to 

determine when and on what basis to 

accept another State’s determination 

that a particular teacher is highly 

qualified. Additionally, each State 

determines whether to consider a 

teacher from another State to be both 

fully certified and competent in each 

subject area. 

Changes: None. 

Comment: One commenter requested 

specific guidance on how to design a 

multi-subject HOUSSE for special 

education teachers. 

Discussion: The Department’s nonregulatory guidance on Improving 

Teacher Quality State Grants issued on 

August 3, 2005 (available at http:// 

www.ed.gov/programs/teacherqual/ 

guidance.doc.) provides the following 

guidance to States when developing 

their HOUSSE procedures (see question 

A–10): 

• Do the HOUSSE procedures provide 

an ‘‘objective’’ way of determining 

whether teachers have adequate subjectmatter knowledge in each core academic 

subject they teach? 

• Is there a strong and compelling 

rationale for each part of the HOUSSE 

procedures? 

• Do the procedures take into 

account, but not primarily rely on, 

previous teaching experience? 

• Does the plan provide solid 

evidence that teachers have mastered 

the subject-matter content of each of the 

core academic subjects they are 

teaching? (Note: experience and 

association with content-focused groups 

or organizations do not necessarily 

translate into an objective measure of 

content knowledge.) 

• Has the State consulted with core 

content specialists, teachers, principals, 

and school administrators? 

• Does the State plan to widely 

distribute its HOUSSE procedures, and 

are they presented in a format 

understandable to all teachers? 

Changes: None. 

Comment: A few commenters asked 

whether the additional time allowed for 

teachers living in rural areas who teach 

multiple subjects applies to special 

education teachers. One commenter 

requested that teachers in rural areas 

have three extra years after the date of 

employment to meet the standards. 

Another commenter stated it will be 

difficult for these teachers to meet the 

highly qualified special education 

teacher requirements even with an 

extended deadline. 

Discussion: The Department’s policy 

on flexibility for middle and high school 

teachers in rural schools applies to 

special education teachers. Under this 

policy, announced on March 15, 2004, 

States may permit LEAs eligible to 

participate in the Small Rural School 

Achievement (SRSA) program that 

employ teachers who teach multiple 

subjects and are highly qualified in at 

least one core academic subject, to have 

until the end of the 2006–07 school year 

for these teachers to be highly qualified 

in each subject that they teach. Newlyhired teachers in these covered LEAs 

have three years from the date of hire to 

become highly qualified in each core 

academic subject that they teach. More 

information about this policy is 

available in the Department’s 

nonregulatory guidance, Improving 

Teacher Quality State Grants (August 3, 

2005), which can be found on the 

Department’s Web site at: http:// 

www.ed.gov/programs/teacherqual/ 

guidance.doc. 

Changes: None. 

Comment: Some commenters 

requested a definition of ‘‘new’’ special 

education teacher and asked whether it 

applies to teachers hired after the date 

of enactment of the Act, December 3, 

2004, or after the 2005–06 school year. 

One commenter asked whether a fully 

certified regular education teacher who 

enrolls in a special education teacher 

training program would be considered 

‘‘new’’ to the profession when he or she 

completes the training program. 

Discussion: Under the Act, mere 

completion of a special education 

teacher training program is not a 

sufficient predicate for being considered 

a highly qualified special education 

teacher. Section 602(10)(B) of the Act 

requires full State certification or 

licensure as a special education teacher, 

and this would apply to teachers who 

are already certified or licensed as a 

regular education teacher, as well as to 

other individuals. 

On the question of when a person is 

‘‘new to the profession,’’ the 

Department’s non-regulatory guidance 

on Improving Teacher Quality State 

Grants issued on August 3, 2005, 

clarifies that States have the authority to 

define which teachers are new and not 

new to the profession; however, those 

definitions must be reasonable. The 

guidance further states that the 

Department strongly believes that a 

teacher with less than one year of 

teaching experience is ‘‘new’’ to the 

profession (see Question A–6). (The 

guidance is available at http:// 

www.ed.gov/programs/teacherqual/ 

guidance.doc). This guidance is 

applicable to determinations of when a 

person is new or not new to the 

profession under section 602(10)(C) and 

(D)(ii) of the Act and § 300.18(c) and 

(d)(2). 

Under section 602(10)(D)(iii) of the 

Act, and reflected in § 300.18(d)(3), 

there is additional flexibility for ‘‘a new 

special education teacher’’ who is 

teaching multiple subjects and is highly 

qualified in mathematics, language arts, 

or science, to demonstrate competence 

in the other core academic subjects in 

which the teacher teaches in the same 

manner as is required for an elementary, 

middle, or secondary school teacher 

who is not new to the profession, which 

may include a single, high objective 

uniform State standard of evaluation 

covering multiple subjects, not later 

than 2 years after the date of 

employment. The phrase ‘‘2 years after 

the date of employment’’ in section 


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602(10)(D)(iii) of the Act is interpreted 

to mean 2 years after employment as a 

special education teacher. 

For purposes of this provision, we 

consider it appropriate to consider a 

fully certified regular education teacher 

who subsequently becomes fully 

certified or licensed as a special 

education teacher to be considered a 

‘‘new special education teacher’’ when 

they are first hired as a special 

education teacher. We will add language 

to new § 300.18(g) (proposed § 300.18(f)) 

to make this clear. 

Changes: We have restructured 

§ 300.18(g) (proposed § 300.18(f)) and 

added a new paragraph (g)(2) to permit 

a fully certified regular education 

teacher who subsequently becomes fully 

certified or licensed as a special 

education teacher to be considered a 

new special education teacher when 

first hired as a special education 

teacher. 

Comment: Some commenters 

recommended that the regulations 

clarify how co-teaching fits with the 

highly qualified special education 

teacher requirements. A few 

commenters stated that a special 

education teacher should be considered 

a highly qualified teacher if co-teaching 

with a highly qualified general 

education teacher. One commenter 

stated that co-teaching will encourage 

districts to work toward more inclusive 

settings for children with disabilities 

while also ensuring that teachers with 

appropriate qualifications are in the 

classroom. One commenter supported 

co-teaching as a method for special 

education teachers to learn core content 

knowledge and be supported by the 

general education teacher. One teacher 

recommended that a highly qualified 

general education teacher supervise 

teachers who do not meet the highly 

qualified special education teacher 

requirements. 

Discussion: The term ‘‘co-teaching’’

has many different meanings depending 

on the context in which it is used. 

Whether and how co-teaching is 

implemented is a matter that is best left 

to State and local officials’ discretion. 

Therefore, we decline to include 

language regarding co-teaching in these 

regulations. Regardless of whether coteaching models are used, States and 

LEAs must ensure that teachers meet the 

highly qualified teacher requirements in 

34 CFR 200.56 and section 9101(23) of 

the ESEA and the highly qualified 

special education teacher requirements 

in § 300.18 and section 602(10) of the 

Act, as well as the personnel 

requirements in § 300.156 and section 

612(a)(14) of the Act. 

Changes: None. 

Comment: One commenter 

recommended requiring schools to post 

the credentials of educational personnel 

in a place with public access, and to 

include in the procedural safeguards 

notice a parent’s right to request the 

credentials of any teacher who supports 

the child in an educational 

environment. Another commenter stated 

that parents should have access to 

records documenting the type of 

supervision that is being provided when 

a teacher or other service provider is 

under the supervision of a highly 

qualified teacher. One commenter stated 

that the ESEA requires districts to 

provide parents with information about 

the personnel qualifications of their 

child’s classroom teachers and asked 

whether this requirement applies to 

special education teachers. 

Discussion: There is nothing in the 

Act that authorizes the Department to 

require schools to publicly post the 

credentials of educational personnel or 

to provide parents with information 

about the qualification of their child’s 

teachers and other service providers. 

Section 615 of the Act describes the 

guaranteed procedural safeguards 

afforded to children with disabilities 

and their parents under the Act but does 

not address whether parents can request 

information about the qualifications of 

teachers and other service providers. 

However, section 1111(h)(6) of the 

ESEA requires LEAs to inform parents 

about the quality of a school’s teachers 

in title I schools. The ESEA requires that 

at the beginning of each school year, an 

LEA that accepts title I, part A funding 

must notify parents of children in title 

I schools that they can request 

information regarding their child’s 

classroom teachers, including, at a 

minimum: (1) Whether the teacher has 

met the State requirements for licensure 

and certification for the grade levels and 

subject matters in which the teacher 

provides instruction; (2) whether the 

teacher is teaching under emergency or 

other provisional status through which 

State qualification or licensing criteria 

have been waived; (3) the college major 

and any other graduate certification or 

degree held by the teacher, and the field 

of discipline of the certification or 

degree; and (4) whether the child is 

provided services by paraprofessionals, 

and if so, their qualifications. In 

addition, each title I school must 

provide parents with timely notice that 

the parent’s child has been assigned, or 

has been taught for four or more 

consecutive weeks by, a teacher who is 

not highly qualified. These 

requirements apply only to those special 

education teachers who teach core 

academic subjects in title I schools. 

Changes: None. 

Rule of Construction (New § 300.18(f)) 

(Proposed § 300.18(e)) 

Comment: A number of commenters 

stated that the rule of construction in 

new § 300.18(f) (proposed § 300.18(e)) 

and § 300.156(e) should use the same 

language. One commenter stated that in 

order to prevent confusion, the right of 

action limitations regarding highly 

qualified teachers in new § 300.18(f) 

(proposed § 300.18(e)) and personnel 

qualifications in § 300.156(e) should use 

consistent language regarding 

individual and class actions, and clearly 

underscore that the limitations are 

applicable to both administrative and 

judicial actions. One commenter 

recommended reiterating the language 

from section 612(a)(14)(D) of the Act 

that nothing prevents a parent from 

filing a State complaint about staff 

qualifications. Another commenter 

expressed concern because new 

§ 300.18(f) (proposed § 300.18(e)) and 

§ 300.156(e) may be construed to 

prevent due process hearings when an 

LEA or SEA fails to provide a highly 

qualified teacher. 

Discussion: We agree that the rule of 

construction in new § 300.18(f) 

(proposed § 300.18(e)) and § 300.156(e) 

should be the same. We will change the 

regulations to clarify that a parent or 

student may not file a due process 

complaint on behalf of a student, or file 

a judicial action on behalf of a class of 

students for the failure of a particular 

SEA or LEA employee to be highly 

qualified; however, a parent may file a 

complaint about staff qualifications with 

the SEA. In addition to permitting a 

parent to file a complaint with the SEA, 

an organization or an individual may 

also file a complaint about staff 

qualifications with the SEA, consistent 

with the State complaint procedures in 

§§ 300.151 through 300.153. 

Changes: We have added ‘‘or to 

prevent a parent from filing a complaint 

about staff qualifications with the SEA 

as provided for under this part’’ in new 

§ 300.18(f) (proposed § 300.18(e)). 

Comment: Several commenters 

recommended that the regulations 

specify that the failure of an SEA or LEA 

to provide a child with a disability a 

highly qualified teacher can be a 

consideration in the determination of 

whether a child received FAPE, if the 

child is not learning the core content 

standards or not meeting IEP goals. 

However, a few commenters 

recommended that the regulations 

clarify that it is not a denial of FAPE if 

a special education teacher is not highly 

qualified. 


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Discussion: If the only reason a parent 

believes their child was denied FAPE is 

that the child did not have a highly 

qualified teacher, the parent would have 

no right of action under the Act on that 

basis. The rules of construction in new 

§ 300.18(f) (proposed § 300.18(e)) and 

§ 300.156(e) do not allow a parent or 

student to file a due process complaint 

for failure of an LEA or SEA to provide 

a highly qualified teacher. 

Changes: None. 

Comment: One commenter expressed 

concern with the rule of construction in 

new § 300.18(f) (proposed § 300.18(e)) 

because there are no requirements to 

develop a specific enforcement system 

to ensure that teachers meet the highly 

qualified standard. A few commenters 

recommended changing the rule of 

construction so that States meet their 

supervisory responsibilities under the 

Act if LEAs in the State are sanctioned 

under the ESEA for not having highly 

qualified teachers. 

Some commenters recommended 

clarifying that when the SEA or LEA 

employs an individual who is not 

highly qualified, States meet their 

responsibilities for general supervision 

under the Act through the notice and 

other sanction procedures identified 

under the ESEA. 

One commenter stated that the 

regulations are silent with regard to SEA 

actions when meeting the general 

supervision requirements under the Act, 

and noted that unless the regulations are 

expanded to clarify that SEA 

enforcement procedures under 

compliance monitoring are limited to 

ESEA enforcement procedures, the 

highly qualified teacher requirements of 

an individual teacher may 

inappropriately become the target for a 

finding of noncompliance. This 

commenter further stated that the ESEA 

contains specific procedures for failure 

of a district to comply with the highly 

qualified teacher provisions, and if the 

SEA also exercises sanctioning authority 

under the Act, schools could be 

punished twice under two separate 

provisions of Federal law for the same 

infraction. The commenter 

recommended that to avoid double 

jeopardy the regulations should clarify 

that the ESEA enforcement procedures 

for a district’s failure to hire a highly 

qualified teacher follow the provisions 

of the ESEA, not the Act. 

Discussion: The implementation and 

enforcement of the highly qualified 

teacher standards under the ESEA and 

the Act complement each other. The 

Office of Elementary and Secondary 

Education (OESE) currently monitors 

the implementation of the highly 

qualified teacher standards for teachers 

of core academic subjects under the 

ESEA. This includes special education 

teachers who teach core academic 

subjects. 

The Office of Special Education 

programs (OSEP) collects data about 

special education personnel 

qualifications and requires that SEAs 

establish and maintain qualifications to 

ensure that personnel essential to 

carrying out the purposes of Part B of 

the Act are appropriately and 

adequately prepared and trained. Those 

personnel must also have the content 

knowledge and skills to serve children 

with disabilities, consistent with 

§ 300.156. 

OESE and OSEP will share their data 

to ensure that the highly qualified 

teacher requirements under the ESEA 

and the Act are met. This sharing of 

information will also prevent schools 

from being punished twice for the same 

infraction. 

Changes: None. 

Teachers Hired by Private Elementary 

and Secondary Schools (New 

§ 300.18(h)) (Proposed § 300.18(g)) 

Comment: Some commenters agreed 

with new § 300.18(h) (proposed 

§ 300.18(g)), which states that the highly 

qualified special education teacher 

requirements do not apply to teachers 

hired by private elementary schools and 

secondary schools. However, many 

commenters disagreed, stating that 

children placed by an LEA in a private 

school are entitled to receive the same 

high quality instruction as special 

education children in public schools. A 

few commenters stated that LEAs will 

place children in private schools to 

avoid hiring highly qualified teachers. 

Some commenters stated that public 

funds should not be used for any school 

that is not held to the same high 

standards as public schools. Other 

commenters stated that children with 

the most significant disabilities who are 

placed in private schools are children 

with the most need for highly qualified 

teachers. A few commenters stated that 

this provision is contrary to the intent 

of the ESEA and the Act to support the 

educational achievement of children 

with disabilities. Other commenters 

stated that if instruction by a highly 

qualified teacher is a hallmark of FAPE, 

it should be an element of FAPE in any 

educational setting in which the child is 

enrolled by a public agency. 

A few commenters recommended that 

States have the discretion to determine 

whether and to what extent the highly 

qualified teacher requirements apply to 

teachers who teach publicly-placed and 

parentally-placed children with 

disabilities. The commenters stated that 

the SEA is in the best position to weigh 

the needs of private school children for 

highly qualified teachers and to assess 

what effect these requirements would 

have on the shortage of special 

education teachers in the State. One 

commenter asked whether the highly 

qualified teacher requirements apply to 

providers in private residential 

treatment centers where children with 

disabilities are placed to receive FAPE. 

Discussion: New § 300.18(h) 

(proposed § 300.18(g)) accurately 

reflects the Department’s position that 

the highly qualified special education 

teacher requirements do not apply to 

teachers hired by private elementary 

schools and secondary schools. This 

includes teachers hired by private 

elementary schools and secondary 

schools who teach children with 

disabilities. Consistent with this 

position and in light of comments 

received regarding the requirements for 

private school teachers providing 

equitable services for parentally-placed 

private school children with disabilities 

under § 300.138, we will add language 

to new § 300.18(h) (proposed 

§ 300.18(g)) to clarify that the highly 

qualified special education teacher 

requirements also do not apply to 

private school teachers who provide 

equitable services to parentally-placed 

private school children with disabilities 

under § 300.138. 

Changes: We have added language in 

new § 300.18(h) (proposed § 300.18(g)) 

to clarify that the highly qualified 

special education teacher requirements 

also do not apply to private school 

teachers who provide equitable services 

to parentally-placed private school 

children with disabilities under 

§ 300.138. 

Homeless Children (§ 300.19) 

Comment: Several commenters 

requested adding the definition of 

homeless children in the regulations so 

that it is readily accessible to parents, 

advocates, and educators. 

Discussion: The term homeless 

children is defined in the McKinneyVento Homeless Assistance Act. For the 

reasons set forth earlier in this notice, 

we are not adding the definitions of 

other statutes to these regulations. 

However, we will include the current 

definition of homeless children in 

section 725 (42 U.S.C. 11434a) of the 

McKinney-Vento Homeless Assistance 

Act, as amended, 42 U.S.C. 11431 et seq. 

(McKinney-Vento Act) here for 

reference. 

The term homeless children and 

youths—

(A) means individuals who lack a 

fixed, regular, and adequate nighttime 


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residence (within the meaning of 

section 103(a)(1)); and 

(B) includes—

(i) children and youths who are 

sharing the housing of other persons 

due to loss of housing, economic 

hardship, or a similar reason; are living 

in motels, hotels, trailer parks, or 

camping grounds due to the lack of 

alternative adequate accommodations; 

are living in emergency or transitional 

shelters; are abandoned in hospitals; or 

are awaiting foster care placement; 

(ii) children and youths who have a 

primary nighttime residence that is a 

public or private place not designed for 

or ordinarily used as a regular sleeping 

accommodation for human beings 

(within the meaning of section 

103(a)(2)(C)); 

(iii) children and youths who are 

living in cars, parks, public spaces, 

abandoned buildings, substandard 

housing, bus or train stations, or similar 

settings; and 

(iv) migratory children (as such term 

is defined in section 1309 of the 

Elementary and Secondary Education 

Act of 1965) who qualify as homeless 

for the purposes of this subtitle because 

the children are living in circumstances 

described in clauses (i) through (iii). 

Changes: None. 

Comment: One commenter stated that 

regulations are needed to address school 

selection and enrollment provisions 

under the McKinney-Vento Act. 

Another commenter recommended that 

the regulations include the McKinneyVento Act’s requirement that school 

stability for homeless children be 

maintained during periods of residential 

mobility and that homeless children 

enrolled in new schools have the ability 

to immediately attend classes and 

participate in school activities. 

Discussion: We appreciate the 

commenters’ concerns, but do not 

believe it is necessary to duplicate the 

requirements of the McKinney-Vento 

Act in these regulations. We believe that 

these issues, as well as other issues 

regarding children with disabilities who 

are homeless, would be more 

appropriately addressed in nonregulatory guidance, in which more 

detailed information and guidance can 

be provided on how to implement the 

requirements of the Act and the 

McKinney-Vento Act to best meet the 

needs of homeless children with 

disabilities. We will work with the 

Office of Elementary and Secondary 

Education to provide guidance and 

disseminate information to special 

education teachers and administrators 

regarding their responsibilities for 

serving children with disabilities who 

are homeless. 

Changes: None. 

Indian and Indian Tribe (§ 300.21) 

Comment: One commenter expressed 

support for combining and moving the 

definition of Indian and Indian tribe 

from current § 300.264 to the definitions 

section of these regulations because the 

term is applicable in instances not 

related to BIA schools. However, 

another commenter stated that the 

definition was unnecessary because the 

purpose of the Act is to ensure that 

every child has FAPE. 

Discussion: The definitions of Indian 

and Indian tribe are included in 

sections 602(12) and (13) of the Act, 

respectively, and are, therefore, 

included in subpart A of these 

regulations. Subpart A includes 

definitions for those terms and phrases 

about which we are frequently asked 

and which we believe will assist SEAs 

and LEAs in implementing the 

requirements of the Act. Including the 

definitions of Indian and Indian tribe in 

the definitions section does not in any 

way affect the provision of FAPE to all 

eligible children under the Act. 

Changes: None. 

Comment: One commenter requested 

omitting ‘‘State Indian tribes’’ that are 

not also federally-recognized tribes from 

the definition of Indian and Indian tribe 

stating that Federal recognition of an 

Indian tribe should be a predicate for 

the tribe’s eligibility for Federal 

programs and services. One commenter 

expressed concern that including ‘‘State 

Indian tribes’’ in the definition could 

imply that the Secretary of the Interior 

is responsible for providing special 

education and related services or 

funding to all State Indian tribes. 

Discussion: Section 602(13) of the Act 

and § 300.21(b) define Indian tribe as 

‘‘any Federal or State Indian tribe’’ and 

do not exclude State Indian tribes that 

are not federally-recognized tribes. We 

will add a new paragraph (c) to § 300.21 

clarifying that the definition of Indian 

and Indian tribe is not intended to 

indicate that the Secretary of Interior is 

required to provide services or funding 

to a State Indian tribe that is not listed 

in the Federal Register list of Indian 

entities recognized as eligible to receive 

services from the United States, 

published pursuant to Section 104 of 

the Federally Recognized Indian Tribe 

List Act of 1994, 25 U.S.C. 479a–1. 

Changes: A new paragraph (c) has 

been added to § 300.21 to provide this 

clarification. 

Comment: One commenter stated that 

it was unclear how many States have 

defined Indian tribes that are not 

defined by the Federal government and 

asked what the effect would be on the 

provision of services by including State 

Indian tribes in the definition. Another 

commenter stated that including State 

Indian tribes in the definition of Indian 

and Indian tribe implies that children of 

State-recognized tribes are considered 

differently than other children. 

Discussion: As noted in the 

discussion responding to the previous 

comment, the list of Indian entities 

recognized as eligible to receive services 

from the United States is published in 

the Federal Register, pursuant to 

Section 104 of the Federally Recognized 

Indian Tribe List Act of 1994, 25 U.S.C. 

479a–1. The Federal government does 

not maintain a list of other State Indian 

tribes. Including State Indian tribes that 

are not federally recognized in the 

definition does not affect who is 

responsible under the Act for the 

provision of services to children with 

disabilities who are members of State 

Indian tribes. Under section 611(h)(1) of 

the Act, the Secretary of the Interior is 

responsible for providing special 

education and related services to 

children age 5 through 21 with 

disabilities on reservations who are 

enrolled in elementary schools and 

secondary schools for Indian children 

operated or funded by the Secretary of 

the Interior. With respect to all other 

children aged 3 through 21 on 

reservations, the SEA of the State in 

which the reservation is located is 

responsible for ensuring that all the 

requirements of Part B of the Act are 

implemented. 

Changes: None. 

Individualized Family Service Plan 

(§ 300.24) 

Comment: A few commenters 

recommended including the entire 

definition of individualized family 

service plan in the regulations so that 

parents and school personnel do not 

have to shift back and forth between 

documents. 

Discussion: Adding the entire 

definition of individualized family 

service plan in section 636 of the Act, 

which includes information related to 

assessment and program development; 

periodic review; promptness after 

assessment; content of the plan; and 

parental consent, would unnecessarily 

add to the length of the regulations. 

However, the required content of the 

IFSP in section 636(d) of the Act is 

added here for reference. 

The individualized family service 

plan shall be in writing and contain—

(1) A statement of the infant’s or 

toddler’s present levels of physical 

development, cognitive development, 

communication development, social or 

emotional development, and adaptive 


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development, based on objective 

criteria; 

(2) a statement of the family’s 

resources, priorities, and concerns 

relating to enhancing the development 

of the family’s infant or toddler with a 

disability; 

(3) a statement of the measurable 

results or outcomes expected to be 

achieved for the infant or toddler and 

the family, including pre-literacy and 

language skills, as developmentally 

appropriate for the child, and the 

criteria, procedures, and timelines used 

to determine the degree to which 

progress toward achieving the results or 

outcomes is being made and whether 

modifications or revisions of the results 

or outcomes or services are necessary; 

(4) a statement of specific early 

intervention services based on peerreviewed research, to the extent 

practicable, necessary to meet the 

unique needs of the infant or toddler 

and the family, including the frequency, 

intensity, and method of delivering 

services; 

(5) a statement of the natural 

environments in which early 

intervention services will appropriately 

be provided, including a justification of 

the extent, if any, to which the services 

will not be provided in a natural 

environment; 

(6) the projected dates for initiation of 

services and the anticipated length, 

duration, and frequency of the services; 

(7) the identification of the service 

coordinator from the profession most 

immediately relevant to the infant’s or 

toddler’s or family’s needs (or who is 

otherwise qualified to carry out all 

applicable responsibilities under this 

part) who will be responsible for the 

implementation of the plan and 

coordination with other agencies and 

persons, including transition services; 

and 

(8) the steps to be taken to support the 

transition of the toddler with a 

disability to preschool or other 

appropriate services. 

Changes: None. 

Infant or Toddler With a Disability 

(§ 300.25) 

Comment: A few commenters 

recommended including the entire 

definition of infant or toddler with a 

disability in the regulations so that 

parents and school personnel do not 

have to shift back and forth between 

documents. 

Discussion: We agree with the 

commenters and, therefore, will include 

the definition of infant or toddler with 

a disability from section 632(5) of the 

Act in these regulations for reference. 

Changes: Section 300.25 has been 

revised to include the entire definition 

of infant or toddler with a disability 

from section 632(5) of the Act. 

Institution of Higher Education 

(§ 300.26) 

Comment: One commenter 

recommended including the definition 

of institution of higher education in 

these regulations. 

Discussion: The term institution of 

higher education is defined in section 

101 of the Higher Education Act of 

1965, as amended, 20 U.S.C. 1021 et 

seq. (HEA). For the reasons set forth 

earlier in this notice, we are not adding 

definitions from other statutes to these 

regulations. However, we are including 

the current definition here for reference. 

(a) Institution of higher education—

For purposes of this Act, other than title 

IV, the term institution of higher 

education means an educational 

institution in any State that—

(1) Admits as regular students only 

persons having a certificate of 

graduation from a school providing 

secondary education, or the recognized 

equivalent of such a certificate; 

(2) is legally authorized within such 

State to provide a program of education 

beyond secondary education; 

(3) provides an educational program 

for which the institution awards a 

bachelor’s degree or provides not less 

than a 2-year program that is acceptable 

for full credit toward such a degree; 

(4) is a public or other nonprofit 

institution; and 

(5) is accredited by a nationally 

recognized accrediting agency or 

association, or if not so accredited, is an 

institution that has been granted 

preaccreditation status by such an 

agency or association that has been 

recognized by the Secretary for the 

granting of preaccreditation status, and 

the Secretary has determined that there 

is satisfactory assurance that the 

institution will meet the accreditation 

standards of such an agency or 

association within a reasonable time. 

(b) Additional Institutions Included—

For purposes of this Act, other than title 

IV, the term institution of higher 

education also includes—

(1) Any school that provides not less 

than a 1-year program of training to 

prepare students for gainful 

employment in a recognized occupation 

and that meets the provision of 

paragraphs (1), (2), (4), and (5) of 

subsection (a); and 

(2) a public or nonprofit private 

educational institution in any State that, 

in lieu of the requirement in subsection 

(a)(1), admits as regular students 

persons who are beyond the age of 

compulsory school attendance in the 

State in which the institution is located. 

Changes: None. 

Comment: One commenter requested 

that we add language to the regulations 

that would allow Haskell and Sipi, 

postsecondary programs under the 

Haskell Indian Nations University and 

Southwestern Indian Polytechnic 

Institute Administrative Act of 1988, 25 

U.S.C. 3731 et seq., to be included in the 

definition of institution of higher 

education. 

Discussion: The Haskell and Sipi 

postsecondary programs under the 

Haskell Indian Nations University and 

Southwestern Indian Polytechnic 

Institute Administrative Act of 1988, 25 

U.S.C. 3731 et seq. meet the statutory 

definition of institution of higher 

education in section 602(17) of the Act 

because they meet the definition of the 

term in section 101 of the HEA. The Act 

does not include specific institutions in 

the definition of institution of higher 

education, nor do we believe it is 

necessary to add specific institutions to 

the definition in § 300.26. 

Changes: None. 

Limited English Proficient (§ 300.27) 

Comment: One commenter requested 

specific information about bilingual 

qualified personnel and qualified 

interpreters. Some commenters 

recommended including the definition 

of ‘‘limited English proficient’’ in the 

regulations. 

Discussion: Each State is responsible 

for determining the qualifications of 

bilingual personnel and interpreters for 

children with limited English 

proficiency. 

The term limited English proficient is 

defined in the ESEA. For the reasons set 

forth earlier in this notice, we are not 

adding the definitions from other 

statutes to these regulations. However, 

we will include the current definition in 

section 9101(25) of the ESEA here for 

reference. 

The term limited English proficient 

when used with respect to an 

individual, means an individual—

(A) Who is aged 3 through 21; 

(B) Who is enrolled or preparing to 

enroll in an elementary school or 

secondary school; 

(C)(i) who was not born in the United 

States or whose native language is a 

language other than English; 

(ii)(I) who is a Native American or 

Alaska Native, or a native resident of the 

outlying areas; and 

(II) who comes from an environment 

where a language other than English has 

had a significant impact on the 

individual’s level of English language 

proficiency; or 


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(iii) who is migratory, whose native 

language is a language other than 

English, and who comes from an 

environment where a language other 

than English is dominant; and 

(D) whose difficulties in speaking, 

reading, writing, or understanding the 

English language may be sufficient to 

deny the individual—

(i) the ability to meet the State’s 

proficient level of achievement on State 

assessments described in section 

1111(b)(3); 

(ii) the ability to successfully achieve 

in classrooms where the language of 

instruction is English; or 

(iii) the opportunity to participate 

fully in society. 

Changes: None. 

Local Educational Agency (§ 300.28) 

Comment: One commenter suggested 

revising § 300.28 to ensure that all 

responsibilities and rights attributed to 

an LEA apply to an ESA. 

Discussion: We believe that the 

provisions in § 300.12 and § 300.28 are 

clear that ESAs have full responsibilities 

and rights as LEAs. We, therefore, 

decline to revise § 300.28. 

Changes: None. 

Comment: None. 

Discussion: Through its review of 

charter schools’ access to Federal 

funding, it has come to the Department’s 

attention that additional guidance is 

needed regarding whether charter 

schools that are established as their own 

LEAs must be nonprofit entities in order 

to meet the definition of LEA in 

§ 300.28. The definition of LEA in 

§ 300.28(b)(2) specifically includes a 

public charter school that is established 

as an LEA under State law and that 

exercises administrative control or 

direction of, or performs a service 

function for, itself. For purposes of the 

Act, the definitions of charter school, 

elementary school, and secondary 

school in §§ 300.7, 300.13, and 300.36, 

respectively, require that a public 

elementary or secondary charter school 

be a nonprofit entity. Therefore, a public 

elementary or secondary charter school 

established as its own LEA under State 

law, also must be a nonprofit entity. 

Although these regulations do not 

specifically define nonprofit, the 

definition in 34 CFR § 77.1 applies to 

these regulations. In order to eliminate 

any confusion on this issue, we will 

revise the definition of LEA to reflect 

that a public elementary or secondary 

charter school that is established as its 

own LEA under State law must be a 

nonprofit entity. 

Changes: For clarity, we have revised 

§ 300.28(b)(2) by inserting the term 

‘‘nonprofit’’ before ‘‘charter school that 

is established as an LEA under State 

law.’’

Comment: One commenter stated that 

§ 300.28(c) is in error from a technical 

drafting perspective because it does not 

follow the statutory language in section 

602(19)(C) of the Act. The commenter 

also suggested adding a definition of 

‘‘BIA funded school,’’ rather than 

adding a new definition of LEA related 

to BIA funded schools. 

Discussion: We agree that § 300.28(c) 

does not accurately reflect the statutory 

language in section 602(19)(C) of the Act 

and, as written, could be interpreted as 

defining BIA funded schools. This was 

not our intent. Rather, the intent was to 

include ‘‘BIA funded schools’’ in the 

definition of LEA, consistent with 

section 602(19)(C) of the Act. 

In order to correct the technical 

drafting error, we will change 

§ 300.28(c) to accurately reflect section 

602(19)(C) of the Act. We decline to add 

a definition of ‘‘BIA funded schools.’’

The Act does not define this term and 

the Department does not believe that it 

is necessary to define the term. 

Changes: In order to correct a 

technical drafting error, § 300.28(c) has 

been revised to be consistent with 

statutory language. 

Native Language (§ 300.29) 

Comment: A few commenters 

expressed support for retaining the 

definition of native language, stating 

that it is important to clarify that sign 

language is the native language of many 

children who are deaf. One commenter 

stated it is important to clarify that the 

language normally used by the child 

may be different than the language 

normally used by the parents. Another 

commenter stated that the definition of 

native language does not adequately 

cover individuals with unique language 

and communication techniques such as 

deafness or blindness or children with 

no written language. 

Discussion: The definition of native 

language was expanded in the 1999 

regulations to ensure that the full range 

of needs of children with disabilities 

whose native language is other than 

English is appropriately addressed. The 

definition clarifies that in all direct 

contact with the child (including an 

evaluation of the child), native language 

means the language normally used by 

the child and not that of the parents, if 

there is a difference between the two. 

The definition also clarifies that for 

individuals with deafness or blindness, 

or for individuals with no written 

language, the native language is the 

mode of communication that is 

normally used by the individual (such 

as sign language, Braille, or oral 

communication). We believe this 

language adequately addresses the 

commenters’ concerns. 

Changes: None. 

Parent (§ 300.30) 

Comment: Several commenters 

objected to the term ‘‘natural parent’’ in 

the definition of parent because 

‘‘natural parent’’ presumes there are 

‘‘unnatural parents.’’ The commenters 

recommended using ‘‘birth parent’’ or 

‘‘biological parent’’ throughout the 

regulations. 

Discussion: We understand that many 

people find the term ‘‘natural parent’’

offensive. We will, therefore, use the 

term ‘‘biological parent’’ to refer to a 

non-adoptive parent. 

Changes: We have replaced the term 

‘‘natural parent’’ with ‘‘biological 

parent’’ in the definition of parent and 

throughout these regulations. 

Comment: A significant number of 

commenters recommended retaining the 

language in current § 300.20(b), which 

states that a foster parent can act as a 

parent if the biological parent’s 

authority to make educational decisions 

on the child’s behalf have been 

extinguished under State law, and the 

foster parent has an ongoing, long-term 

parental relationship with the child; is 

willing to make the educational 

decisions required of parents under the 

Act; and has no interest that would 

conflict with the interest of the child. 

A few commenters stated that current 

§ 300.20(b) better protects children’s 

interests and should not be removed. 

Another commenter stated that 

removing current § 300.20 will have 

unintended consequences for the many 

foster children who move frequently to 

new homes because there will be 

confusion as to who has parental rights 

under the Act. A few commenters stated 

that short-term foster parents may not 

have the knowledge of the child or the 

willingness to actively participate in the 

special education process, which will 

effectively leave the child without a 

parent. 

One commenter stated that § 300.30 

needs to be changed to protect 

biological and adoptive parents from 

arbitrary decisions by educational 

officials who lack the legal authority to 

make educational decisions for the child 

and to ensure that when no biological or 

adoptive parent is available, a person 

with a long-term relationship with, and 

commitment to, the child has decisionmaking authority. 

Discussion: Congress changed the 

definition of parent in the Act. The 

definition of parent in these regulations 

reflects the revised statutory definition 

of parent in section 602(23) of the Act. 


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The Department understands the 

concerns expressed by the commenters, 

but believes that the changes requested 

would not be consistent with the intent 

of the statutory changes. In changing the 

definition of parent in the Act, Congress 

incorporated some of the wording from 

the current regulations and did not 

incorporate in the new definition of 

parent, the current foster parent 

language referenced by the commenters. 

Changes: None. 

Comment: One commenter 

recommended allowing a foster parent 

who does not have a long-term 

relationship to be the parent, if a court, 

after notifying all interested parties, 

determines that it is in the best interest 

of the child. 

Discussion: Section 300.30(b)(2) 

clearly states that if a person is specified 

in a judicial order or decree to act as the 

parent for purposes of § 300.30, that 

person would be considered the parent 

under Part B of the Act. 

Changes: None. 

Comment: One commenter stated that 

§ 300.30(a)(2) withdraws the rights of 

biological parents under the Act without 

due process of law. 

Discussion: We do not agree with the 

commenter. If more than one person is 

attempting to act as a parent, 

§ 300.30(b)(1) provides that the 

biological or adoptive parent is 

presumed to be the parent if that person 

is attempting to act as the parent under 

§ 300.30, unless the biological or 

adoptive parent does not have legal 

authority to make educational decisions 

for the child, or there is a judicial order 

or decree specifying some other person 

to act as a parent under Part B of the 

Act. We do not believe that provisions 

regarding lack of legal authority or 

judicial orders or decrees would apply 

unless there has already been a 

determination, through appropriate 

legal processes, that the biological 

parent should not make educational 

decisions for the child or that another 

person has been ordered to serve as the 

parent. 

Changes: None. 

Comment: One commenter stated that 

§ 300.30(a)(2) is unwieldy and difficult 

to implement because it requires 

extensive fact finding by the LEA to 

determine whether any contractual 

obligations would prohibit the foster 

parent from acting as a parent. 

Discussion: The statutory language 

concerning the definition of parent was 

changed to permit foster parents to be 

considered a child’s parent, unless State 

law prohibits a foster parent from 

serving as a parent. The language in the 

regulations also recognizes that similar 

restrictions may exist in State 

regulations or in contractual agreements 

between a State or local entity and a 

foster parent, and should be accorded 

similar deference. We believe it is 

essential for LEAs to have knowledge of 

State laws, regulations, and any 

contractual agreements between a State 

or local entity and a foster parent to 

ensure that the requirements in 

§ 300.30(a)(2) are properly 

implemented. States and LEAs should 

develop procedures to make this 

information more readily and easily 

available so that LEAs do not have to 

engage in extensive fact finding each 

time a child with a foster parent enrolls 

in a school. 

Changes: None. 

Comment: One commenter stated that 

the regulations need to clarify that 

guardians ad litem do not meet the 

definition of a parent except for wards 

of the State where consent for the initial 

evaluation has been given by an 

individual appointed by the judge to 

represent the child in the educational 

decisions concerning the child. 

Discussion: We agree that guardians 

with limited appointments that do not 

qualify them to act as a parent of the 

child generally, or do not authorize 

them to make educational decisions for 

the child, should not be considered to 

be a parent within the meaning of these 

regulations. What is important is the 

legal authority granted to individuals 

appointed by a court, and not the term 

used to identify them. Whether a person 

appointed as a guardian ad litem has the 

requisite authority to be considered a 

parent under this section depends on 

State law and the nature of the person’s 

appointment. We will revise 

§ 300.30(a)(3) to clarify that a guardian 

must be authorized to act as the child’s 

parent generally or must be authorized 

to make educational decisions for the 

child in order to fall within the 

definition of parent. 

Changes: We have added language in 

§ 300.30(a)(3) to clarify when a guardian 

can be considered a parent under the 

Act. 

Comment: One commenter requested 

adding a ‘‘temporary parent’’ appointed 

in accordance with sections 615(b)(2) or 

639(a)(5) of the Act to the definition of 

parent. 

Discussion: There is nothing in the 

Act that would prevent a temporary 

surrogate parent from having all the 

rights of a parent. Note 89 of the Conf. 

Rpt., p. 35810, provides that appropriate 

staff members of emergency shelters, 

transitional shelters, independent living 

programs, and street outreach programs 

would not be considered to be 

employees of agencies involved in the 

education or care of unaccompanied 

youth (and thus prohibited from serving 

as a surrogate parent), provided that 

such a role is temporary until a 

surrogate parent can be appointed who 

meets the requirements for a surrogate 

parent in § 300.519(d). This provision is 

included in § 300.519(f), regarding 

surrogate parents. Therefore, we do not 

believe it is necessary to add 

‘‘temporary parent’’ to the definition of 

parent in § 300.30. 

Changes: None. 

Comment: A few commenters stated 

that the definition of parent is 

confusing, especially in light of the 

definition of ward of the State in new 

§ 300.45 (proposed § 300.44) and the 

LEA’s obligation to appoint a surrogate 

parent. These commenters stated that 

§ 300.30 should cross-reference the 

definition of ward of the State in new 

§ 300.45 (proposed § 300.44) and state 

that the appointed surrogate parent for 

a child who is a ward of the State is the 

parent. 

Discussion: Section 615(b)(2) of the 

Act does not require the automatic 

appointment of a surrogate parent for 

every child with a disability who is a 

ward of the State. States and LEAs must 

ensure that the rights of these children 

are protected and that a surrogate parent 

is appointed, if necessary, as provided 

in § 300.519(b)(1). If a child who is a 

ward of the State already has a person 

who meets the definition of parent in 

§ 300.30, and that person is willing and 

able to assume the responsibilities of a 

parent under the Act, a surrogate parent 

might not be needed. Accordingly, we 

do not believe it is necessary to make 

the changes suggested by the 

commenters. 

Changes: None. 

Comment: One commenter expressed 

concern that public agencies will 

require biological or adoptive parents to 

affirmatively assert their rights or to take 

action in order to be presumed to be the 

parent. The commenter requested 

clarifying in § 300.30(b)(1) that 

biological or adoptive parents do not 

have to take affirmative steps in order 

for the presumption to apply. 

Discussion: The biological or adoptive 

parent would be presumed to be the 

parent under these regulations, unless a 

question was raised about their legal 

authority. There is nothing in the Act 

that requires the biological or adoptive 

parent to affirmatively assert their rights 

to be presumed to be the parent. We 

continue to believe that § 300.30(b)(1) is 

clear and, therefore, will not make the 

changes requested by the commenters. 

Changes: None. 

Comment: Some commenters 

recommended removing ‘‘when 

attempting to act as a parent under this 


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part’’ in § 300.30(b)(1). A few 

commenters stated that there is no 

explanation of what it means for a 

biological parent to ‘‘attempt to act as a 

parent.’’ Another commenter stated that 

the regulations do not set any guidelines 

for determining how a public agency 

decides if a biological or adoptive 

parent is attempting to act as a parent. 

One commenter stated ‘‘attempting to 

act’’ would require LEAs to make 

determinations about a biological 

parent’s decision-making authority and 

this should be left up to courts to 

determine. One commenter stated that 

the regulations permit multiple persons 

to act as a child’s parent and do not 

adequately set forth a process to 

determine who should be identified as 

the actual parent for decision-making 

purposes. The commenter further stated 

that the regulations do not set out a 

procedure or a timeframe by which 

public agency officials should 

determine if a biological parent has 

retained the right to make educational 

decisions for his or her child. 

One commenter stated that the 

definition of parent gives school 

districts excessive power; for example a 

school could appoint a surrogate parent 

if the foster parent was excessively 

demanding. The commenter further 

stated that a clearer order of priority and 

selection mechanism with judicial 

oversight needs to be in place so that 

school districts cannot ‘‘parent shop’’

for the least assertive individual, and so 

that relatives, foster parents, social 

workers, and others involved with the 

child will know who has educational 

decision making authority. 

One commenter questioned whether 

§ 300.30(b) helps identify parents or 

confuses situations in which the person 

to be designated the parent is in dispute. 

Another commenter stated that the 

requirements in § 300.30(b) place the 

responsibility of determining who 

serves as the parent of a child in foster 

care directly on the shoulders of school 

administrators who are not child 

welfare experts. The commenter 

recommended that a foster parent 

automatically qualify as a parent when 

the rights of the child’s biological 

parents have been extinguished and the 

foster parent has a long-term 

relationship with the child, no conflict 

of interest, and is willing to make 

educational decisions. 

Discussion: Section 300.30(b) was 

added to assist schools and public 

agencies in determining the appropriate 

person to serve as the parent under Part 

B of the Act in those difficult situations 

in which more than one individual is 

‘‘attempting to act as a parent’’ and 

make educational decisions for a child. 

It recognizes the priority of the 

biological or adoptive parent and the 

authority of the courts to make 

decisions, and does not leave these 

decisions to school administrators. 

The phrase ‘‘attempting to act as a 

parent’’ is generally meant to refer to 

situations in which an individual 

attempts to assume the responsibilities 

of a parent under the Act. An individual 

may ‘‘attempt to act as a parent’’ under 

the Act in many situations; for example, 

if an individual provides consent for an 

evaluation or reevaluation, or attends an 

IEP Team meeting as the child’s parent. 

We do not believe it is necessary or 

possible to include in these regulations 

the numerous situations in which an 

individual may ‘‘attempt to act as a 

parent.’’

Section 300.30(b)(1) provides that the 

biological or adoptive parent is 

presumed to be the parent if that person 

is attempting to act as the parent under 

§ 300.30, unless the biological or 

adoptive parent does not have legal 

authority to make educational decisions 

for the child, or there is a judicial order 

or decree specifying some other person 

to act as a parent under Part B of the 

Act. Section 300.30(b)(2) provides that if 

a person (or persons) is specified in a 

judicial order or decree to act as the 

parent for purposes of § 300.30, that 

person would be the parent under Part 

B of the Act. We do not believe that it 

is necessary for these regulations to 

establish procedures or a timeline for a 

public agency to determine whether a 

biological parent has retained the right 

to make educational decisions for a 

child. Such procedures and timelines 

will vary depending on how judicial 

orders or decrees are routinely handled 

in a State or locality, and are best left 

to State and local officials to determine. 

Changes: None. 

Comment: A few commenters 

recommended modifying § 300.30(b)(2) 

to clarify that a court has the discretion 

to decide who has the right to make 

educational decisions for a child. One 

commenter recommended clarifying 

that the judicial decree referred to in 

§ 300.30(b)(2) relates specifically to 

divorce situations, rather than situations 

involving children who are wards of the 

State. Another commenter stated that 

§ 300.30(b)(2) appears to be aimed at 

situations where the court has 

designated a parent, such as in a 

custody decree, and that it is not clear 

what the provision adds. 

Discussion: Section 300.30(b)(2) 

specifically states that if a judicial 

decree or order identifies a person or 

persons to act as the parent of a child 

or to make educational decisions on 

behalf of a child, then that person 

would be determined to be the parent. 

It was intended to add clarity about who 

would be designated a parent when 

there are competing individuals under 

§ 300.30(a)(1) through (4) who could be 

considered a parent for purposes of this 

part. It is not necessary to specify or 

limit this language to provide that the 

judicial decree or order applies to 

specific situations, such as divorce or 

custody cases. However, it should not 

authorize courts to appoint individuals 

other than those identified in 

§ 300.30(a)(1) through (4) to act as 

parents under this part. Specific 

authority for court appointment of 

individuals to provide consent for 

initial evaluations in limited 

circumstances is in § 300.300(a)(2)(c). 

Authority for court appointment of a 

surrogate parent in certain situations is 

in § 300.519(c). 

Changes: We have revised 

§ 300.30(b)(2) to limit its application to 

individuals identified under 

§ 300.30(a)(1) through (4) and have 

deleted the phrase ‘‘except that a public 

agency that provides education or care 

for the child may not act as the parent’’

as unnecessary. 

Comment: One commenter 

recommended allowing foster parents to 

act as parents only when the birth 

parent’s rights have been extinguished 

or terminated. A few commenters 

requested that the regulations clarify the 

circumstances under which a foster 

parent can take over educational 

decision making. One commenter stated 

that allowing a foster parent to act as a 

parent would disrupt the special 

education process. 

Discussion: Under § 300.30(a)(2), a 

foster parent can be considered a parent, 

unless State law, regulations, or 

contractual obligations with a State or 

local entity prohibit a foster parent from 

acting as a parent. However, in cases 

where a foster parent and a biological or 

adoptive parent attempt to act as the 

parent, § 300.30(b)(1) clarifies that the 

biological or adoptive parent is 

presumed to be the parent, unless the 

biological or adoptive parent does not 

have legal authority to make educational 

decisions for the child. Section 

300.30(b)(2) further clarifies that if a 

person or persons such as a foster parent 

or foster parents is specified in a 

judicial order or decree to act as the 

parent for purposes of § 300.30, that 

person would be the parent under Part 

B of the Act. We do not believe that 

further clarification is necessary. 

Changes: None. 

Comment: A few commenters 

recommended that ‘‘extinguished under 

State law’’ be defined to mean both 

temporary and permanent termination 


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of parental rights to make educational 

decisions because this would allow 

courts to make more timely decisions 

regarding the role of a parent and not 

feel bound to wait for a full termination 

of parental rights. 

Discussion: The phrase ‘‘extinguished 

under State law’’ is not used in the Act 

or these regulations. The phrase was 

used in the definition of parent in 

current § 300.20(b)(1). The comparable 

provision in these regulations is in 

§ 300.30(b)(1), which refers to situations 

in which the ‘‘biological or adoptive 

parent does not have legal authority to 

make educational decisions for the 

child.’’ We do not believe that either of 

these phrases affects the timeliness of 

decision making by courts regarding 

parental rights. 

Changes: None. 

Comment: Some commenters stated 

that ‘‘consistent with State law’’ should 

be included in § 300.30(b)(2) in order to 

honor local laws already in place to 

protect these children. 

Discussion: We do not believe the 

change recommended by the 

commenters is necessary. Courts issue 

decrees and orders consistent with 

applicable laws. 

Changes: None. 

Comment: One commenter stated that 

it would not be wise to completely 

exclude an agency involved in the 

education or care of the child from 

serving as a parent because situations in 

which an LEA acts as a parent are very 

rare and only occur under very unusual 

circumstances. 

Discussion: The exclusion of an 

agency involved in the education or care 

of the child from serving as a parent is 

consistent with the statutory prohibition 

that applies to surrogate parents in 

sections 615(b)(2) and 639(a)(5) of the 

Act. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify the responsibilities of the LEA 

when a biological or adoptive parent 

and a foster parent attempt to act as the 

parent. Although the regulations state 

that the biological or adoptive parent 

must be presumed to be the parent 

unless the biological or adoptive parent 

has been divested of this authority by a 

court, the commenter stated that the 

regulations are not clear as to whether 

the LEA has the duty to notify the 

biological or adoptive parent, 

accommodate his or her schedule, or 

otherwise take steps to facilitate the 

biological or adoptive parent’s 

participation. 

One commenter recommended 

clarifying the relative rights of a 

biological or adoptive parent and a 

foster parent when a child is in foster 

care and the foster parent is not 

prohibited by the State from acting as a 

parent. 

Discussion: Section 300.30(b)(1) states 

that when more than one party is 

qualified under § 300.30(a) to act as the 

parent, the biological or adoptive parent 

is presumed to be the parent (unless a 

judicial decree or order identifies a 

specific person or persons to act as the 

parent of a child). The biological or 

adoptive parent has all the rights and 

responsibilities of a parent under the 

Act, and the LEA must provide notice 

to the parent, accommodate his or her 

schedule when arranging meetings, and 

involve the biological or adoptive parent 

in the education of the child with a 

disability. Thus, if a child is in foster 

care (and the foster parent is not 

prohibited by the State from acting as a 

parent) and the biological or adoptive 

parent is attempting to act as a parent, 

the biological or adoptive parent is 

presumed to be the parent unless the 

biological or adoptive parent does not 

have legal authority to make educational 

decisions for the child or a judicial 

decree or order identifies a specific 

person or persons to act as the parent of 

a child. 

Changes: None. 

Comment: A few commenters stated 

that it is unclear when or under what 

circumstances a biological or adoptive 

parent ceases or surrenders their rights 

to a foster parent to make educational 

decisions for a child. One commenter 

stated that the regulations should define 

clearly the situations when this would 

occur and the level of proof that must 

be shown by the party seeking to make 

educational decisions on behalf of a 

child. The commenter stated that only 

under the most extreme and compelling 

circumstances should a court be able to 

appoint another individual to take the 

place of a biological or adoptive parent. 

Discussion: It would be inappropriate 

and beyond the authority of the 

Department to regulate on the 

termination of parental rights to make 

educational decisions. It is the 

responsibility of a court to decide 

whether to appoint another person or 

persons to act as a parent of a child or 

to make educational decisions on behalf 

of a child. 

Changes: None. 

Comment: One commenter requested 

clarifying to whom LEAs must provide 

notice, or obtain consent in situations 

where there are disputes between 

biological or adoptive parents (e.g., 

when parents separate or divorce). 

Discussion: In situations where the 

parents of a child are divorced, the 

parental rights established by the Act 

apply to both parents, unless a court 

order or State law specifies otherwise. 

Changes: None. 

Comment: A few commenters 

recommended clarifying in the 

regulations that a private agency that 

contracts with a public agency for the 

education or care of the child may not 

act as a parent. 

Discussion: A private agency that 

contracts with a public agency for the 

education or care of the child, in 

essence, works for the public agency, 

and therefore, could not act as a parent 

under the Act. We do not believe it is 

necessary to regulate on this matter. 

Changes: None. 

Parent Training and Information Center 

(§ 300.31) 

Comment: One commenter requested 

describing a parent training and 

information center (PTI) and a 

community parent resource center 

(CPRC) in the regulations, rather than 

referencing section 671 or 672 of the 

Act. 

Discussion: We do not believe it is 

necessary to include these descriptions 

in the regulations. Section 671 of the 

Act describes the program requirements 

for a PTI and section 672 of the Act 

describes the program requirements for 

a CPRC. These sections describe the 

activities required of PTIs and CPRCs, as 

well as the application process for 

discretionary funding under Part D of 

the Act, and would unnecessarily add to 

the length of the regulations. 

Changes: None. 

Comment: One commenter stated that, 

in order for a State or LEA to be 

considered for funding under the Act, 

the regulations should require 

partnerships with the PTIs and the 

CPRCs, as well as input from PTIs and 

CPRCs on assessing State and local 

needs, and developing and 

implementing a plan to address State 

and local needs. 

Discussion: We disagree with the 

commenter. There is nothing in the Act 

that requires States or LEAs, as a 

condition of funding, to obtain input 

from PTIs and CPRCs in assessing needs 

or developing and implementing a plan 

to address State or local needs. States 

and LEAs are free to do so, but it is not 

a requirement for funding. 

Changes: None. 

Public Agency (§ 300.33) 

Comment: One commenter stated that 

the term public agency is not in the Act 

and noted that no State has created a 

new type of public education agency 

beyond LEAs and SEAs. The commenter 

stated that including the definition of 

public agency in the regulations, 


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therefore, raises concerns regarding the 

responsibility and authority for future 

special education services. 

Discussion: The definition of public 

agency refers to all agencies responsible 

for various activities under the Act. The 

terms ‘‘LEA’’ or ‘‘SEA’’ are used when 

referring to a subset of public agencies. 

We disagree that the definition raises 

concerns about the responsibility and 

authority for future educational services 

because the term public agency is used 

only for those situations in which a 

particular regulation does not apply 

only to SEAs and LEAs. 

During our internal review of the 

NPRM, we found several errors in the 

definition of public agency. Our intent 

was to use the same language in current 

§ 300.22. We will, therefore, correct 

these errors to be consistent with 

current § 300.22. Additionally, we will 

clarify that a charter school must be a 

nonprofit charter school. As noted in 

the discussion regarding § 300.28(b)(2), 

we clarified that a charter school 

established as its own LEA under State 

law, must be a nonprofit charter school. 

Changes: We have removed the 

phrase ‘‘otherwise included as’’ the 

second time it appears, and replaced it 

with ‘‘a school of an’’ in § 300.33. We 

have also changed ‘‘LEAs’’ to ‘‘LEA’’

and ‘‘ESAs’’ to ‘‘ESA’’ the third time 

these abbreviations appear in § 300.33. 

Related Services (§ 300.34) 

Related Services, General (§ 300.34(a)) 

Comment: One commenter requested 

defining related services as enabling a 

child with a disability to receive FAPE 

in the LRE. 

Discussion: The definition of related 

services is consistent with section 

601(26) of the Act, which does not refer 

to LRE. The Department believes that 

revising the regulations as requested 

would inappropriately expand the 

definition in the Act. Furthermore, the 

regulations in § 300.114(a)(2)(ii) already 

prevent placement of a child outside the 

regular education environment unless 

the child cannot be satisfactorily 

educated in the regular education 

environment with the use of 

supplementary aids and services. 

Therefore, we see no need to make the 

change suggested by the commenter. 

Changes: None. 

Comment: We received numerous 

requests to revise § 300.34 to add 

specific services in the definition of 

related services. A few commenters 

recommended including marriage and 

family therapy. One commenter 

recommended adding nutrition therapy 

and another commenter recommended 

adding recreation therapy. A significant 

number of commenters recommended 

adding art, music, and dance therapy. 

One commenter recommended adding 

services to ensure that medical devices, 

such as those used for breathing, 

nutrition, and other bodily functions, 

are working properly. One commenter 

requested adding programming and 

training for parents and staff as a related 

service. 

A few commenters requested 

clarification on whether auditory 

training and aural habilitation are 

related services. One commenter asked 

whether hippotherapy should be 

included as a related service. Other 

commenters recommended adding 

language in the regulations stating that 

the list of related services is not 

exhaustive. A few commenters asked 

whether a service is prohibited if it is 

not listed in the definition of related 

services. 

Discussion: Section 300.34(a) and 

section 602(26) of the Act state that 

related services include other 

supportive services that are required to 

assist a child with a disability to benefit 

from special education. We believe this 

clearly conveys that the list of services 

in § 300.34 is not exhaustive and may 

include other developmental, corrective, 

or supportive services if they are 

required to assist a child with a 

disability to benefit from special 

education. It would be impractical to 

list every service that could be a related 

service, and therefore, no additional 

language will be added to the 

regulations. 

Consistent with §§ 300.320 through 

300.328, each child’s IEP Team, which 

includes the child’s parent along with 

school officials, determines the 

instruction and services that are needed 

for an individual child to receive FAPE. 

In all cases concerning related services, 

the IEP Team’s determination about 

appropriate services must be reflected in 

the child’s IEP, and those listed services 

must be provided in accordance with 

the IEP at public expense and at no cost 

to the parents. Nothing in the Act or in 

the definition of related services 

requires the provision of a related 

service to a child unless the child’s IEP 

Team has determined that the related 

service is required in order for the child 

to benefit from special education and 

has included that service in the child’s 

IEP. 

Changes: None. 

Comment: One commenter 

recommended adding behavior 

interventions to the list of related 

services, stating that while positive 

behavioral interventions and supports 

are often provided by one of the 

professionals listed in § 300.34(c), other 

types of specialists also often provide 

them. 

Discussion: The list of related services 

in § 300.34 is consistent with section 

602(26) of the Act and, as noted above, 

we do not believe it is necessary to add 

additional related services to this list. 

We agree with the commenter that there 

may be many professionals in a school 

district who are involved in the 

development of positive behavioral 

interventions. Including the 

development of positive behavioral 

interventions in the description of 

activities under psychological services 

(§ 300.34(b)(10)) and social work 

services in schools (§ 300.34(b)(14)) is 

not intended to imply that school 

psychologists and social workers are 

automatically qualified to perform these 

services or to prohibit other qualified 

personnel from providing these services, 

consistent with State requirements. 

Changes: None. 

Exception; Services That Apply to 

Children With Cochlear Implants 

(§ 300.34(b)) 

Comment: Many commenters opposed 

the exclusion of surgically implanted 

devices from the definition of related 

services. Many commenters stated that 

the Act does not exclude the 

maintenance or programming of 

surgically implanted devices from the 

definition of related services, and that 

the regulations should specifically state 

that related services includes the 

provision of mapping services for a 

child with a cochlear implant. A few 

commenters stated that the issue of 

mapping cochlear implants needs to be 

clarified so that schools and parents 

understand who is responsible for 

providing this service. One commenter 

requested that the regulations clearly 

specify that optimization of a cochlear 

implant is a medical service and define 

mapping as an audiological service. 

Discussion: The term ‘‘mapping’’

refers to the optimization of a cochlear 

implant and is not included in the 

definition of related services. 

Specifically, ‘‘mapping’’ and 

‘‘optimization’’ refer to adjusting the 

electrical stimulation levels provided by 

the cochlear implant that is necessary 

for long-term post-surgical follow-up of 

a cochlear implant. Although the 

cochlear implant must be properly 

mapped in order for the child to hear 

well in school, the mapping does not 

have to be done in school or during the 

school day in order for it to be effective. 

The exclusion of mapping from the 

definition of related services reflects the 

language in Senate Report (S. Rpt.) No. 

108–185, p. 8, which states that the 

Senate committee did not intend that 


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mapping a cochlear implant, or even the 

costs associated with mapping, such as 

transportation costs and insurance copayments, be the responsibility of a 

school district. These services and costs 

are incidental to a particular course of 

treatment chosen by the child’s parents 

to maximize the child’s functioning, and 

are not necessary to ensure that the 

child is provided access to education, 

regardless of the child’s disability, 

including maintaining health and safety 

while in school. We will add language 

in § 300.34(b) to clarify that mapping a 

cochlear implant is an example of 

device optimization and is not a related 

service under the Act. 

Changes: We have added ‘‘(e.g., 

mapping)’’ following ‘‘functioning’’ in 

§ 300.34(b) to clarify that mapping a 

surgically implanted device is not a 

related service under the Act. 

Comment: A significant number of 

commenters stated that children with 

cochlear implants need instruction in 

listening and language skills to process 

spoken language, just as children with 

hearing loss who use hearing aids, and 

requested that the regulations clarify 

that excluding the optimization of 

device functioning from the definition 

of related services does not impact a 

child’s access to related services such as 

speech and language therapy, assistive 

listening devices, appropriate classroom 

acoustics, auditory training, educational 

interpreters, cued speech transliterators, 

and specialized instruction. 

One commenter requested that the 

regulations explicitly state whether a 

public agency is required to provide 

more speech and language services or 

audiology services to a child with a 

cochlear implant. Another commenter 

requested that the regulations clarify 

that optimization only refers to access to 

assistive technology, such as assistive 

listening devices (e.g., personal 

frequency modulation (FM) systems) 

and monitoring and troubleshooting of 

the device function that is required 

under proper functioning of hearing 

aids. 

Discussion: Optimization generally 

refers to the mapping necessary to make 

the cochlear implant work properly and 

involves adjusting the electrical 

stimulation levels provided by the 

cochlear implant. The exclusion of 

mapping as a related service is not 

intended to deny a child with a 

disability assistive technology (e.g., FM 

system); proper classroom acoustical 

modifications; educational support 

services (e.g., educational interpreters); 

or routine checking to determine if the 

external component of a surgically 

implanted device is turned on and 

working. Neither does the exclusion of 

mapping as a related service preclude a 

child with a cochlear implant from 

receiving the related services (e.g., 

speech and language services) that are 

necessary for the child to benefit from 

special education services. As the 

commenters point out, a child with a 

cochlear implant may still require 

related services, such as speech and 

language therapy, to process spoken 

language just as other children with 

hearing loss who use hearing aids may 

need those services and are entitled to 

them under the Act if they are required 

for the child to benefit from special 

education. Each child’s IEP Team, 

which includes the child’s parent along 

with school officials, determines the 

related services, and the amount of 

services, that are required for the child 

to benefit from special education. It is 

important that the regulations clearly 

state that a child with a cochlear 

implant or other surgically implanted 

medical device is entitled to related 

services that are determined by the 

child’s IEP Team to be necessary for the 

child to benefit from special education. 

Therefore, we will add language in 

§ 300.34(b) to clarify that a child with a 

cochlear implant or other surgically 

implanted medical device is entitled to 

those related services that are required 

for the child to benefit from special 

education, as determined by the child’s 

IEP Team. 

Changes: We have reformatted 

§ 300.34(b) and added a new paragraph 

(2) to clarify that a child with a cochlear 

implant or other surgically implanted 

device is entitled to the related services 

that are determined by the child’s IEP 

Team to be required for the child to 

benefit from special education. We have 

also added the phrase ‘‘services that 

apply to children with surgically 

implanted devices, including cochlear 

implants’ to the heading in § 300.34(b). 

Comment: One commenter expressed 

concern that excluding the optimization 

of device functioning and maintenance 

of the device as related services will 

establish different standards for serving 

children with cochlear implants versus 

children who use hearing aids and other 

external amplification devices, and 

recommended clarifying that routine 

monitoring of cochlear implants and 

other surgically implanted devices to 

ensure that they are functioning in a 

safe and effective manner is permitted 

under the Act. 

A few commenters stated that some 

schools are interpreting the exclusion of 

device optimization, functioning, and 

maintenance to mean that they do not 

have to help the child change a battery 

in the externally worn speech processor 

connected with the surgically implanted 

device, make certain that it is turned on, 

or help the child to learn to listen with 

the cochlear implant. One commenter 

stated that children with cochlear 

implants should have the same services 

as children who use a hearing aid when 

the battery needs changing or 

equipment breaks down. 

One commenter stated that § 300.34(b) 

is confusing and should explicitly state 

that the exception of the optimization of 

device functioning, maintenance of the 

device, or replacement of the device is 

limited to surgically implanted devices. 

The commenter stated that the language 

could erroneously lead to an 

interpretation that this exception is 

applicable to all medical devices. One 

commenter expressed concern that this 

misinterpretation could put insulin 

pumps and other medical devices that 

are required for the health of the child 

in the same category as cochlear 

implants. 

A few commenters stated that it is 

important to clarify that excluding the 

optimization of device functioning and 

the maintenance of the device should 

not be construed to exclude medical 

devices and services that children need 

to assist with breathing, nutrition, and 

other bodily functions while the child is 

involved with education and other 

school-related activities. 

One commenter stated that a school 

nurse, aide, teacher’s aide, or any other 

person who is qualified and trained 

should be allowed to monitor and 

maintain, as necessary, a surgically 

implanted device. 

Discussion: A cochlear implant is an 

electronic device surgically implanted 

to stimulate nerve endings in the inner 

ear (cochlea) in order to receive and 

process sound and speech. The device 

has two parts, one that is surgically 

implanted and attached to the skull and, 

the second, an externally worn speech 

processor that attaches to a port in the 

implant. The internal device is intended 

to be permanent. 

Optimization or ‘‘mapping’’ adjusts or 

fine tunes the electrical stimulation 

levels provided by the cochlear implant 

and is changed as a child learns to 

discriminate signals to a finer degree. 

Optimization services are generally 

provided at a specialized clinic. As we 

discussed previously regarding § 300.34, 

optimization services are not a covered 

service under the Act. However, a 

public agency still has a role in 

providing services and supports to help 

children with cochlear implants. 

Particularly with younger children or 

children who have recently obtained 

implants, teachers and related services 

personnel frequently are the first to 

notice changes in the child’s perception 


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of sounds that the child may be missing. 

This may manifest as a lack of attention 

or understanding on the part of the 

child or frustration in communicating. 

The changes may indicate a need for 

remapping, and we would expect that 

school personnel would communicate 

with the child’s parents about these 

issues. To the extent that adjustments to 

the devices are required, a specially 

trained professional would provide the 

remapping, which is not considered the 

responsibility of the public agency. 

In many ways, there is no substantive 

difference between serving a child with 

a cochlear implant in a school setting 

and serving a child with a hearing aid. 

The externally worn speech processor 

connected with the surgically implanted 

device is similar to a hearing aid in that 

it must be turned on and properly 

functioning in order for the child to 

benefit from his or her education. 

Parents of children with cochlear 

implants and parents of children with 

hearing aids both frequently bring to 

school extra batteries, cords, and other 

parts for the hearing aids and externally 

worn speech processors connected with 

the surgically-implanted devices, 

especially for younger children. The 

child also may need to be positioned so 

that he or she can directly see the 

teacher at all times, or may need an FM 

amplification system such as an audio 

loop. 

For services that are not necessary to 

provide access to education by 

maintaining the health or safety of the 

child while in school, the distinguishing 

factor between those services that are 

not covered under the Act, such as 

mapping, and those that are covered, 

such as verifying that a cochlear implant 

is functioning properly, in large 

measure, is the level of expertise 

required. The maintenance and 

monitoring of surgically implanted 

devices require the expertise of a 

licensed physician or an individual 

with specialized technical expertise 

beyond that typically available from 

school personnel. On the other hand, 

trained lay persons or nurses can 

routinely check an externally worn 

processor connected with a surgically 

implanted device to determine if the 

batteries are charged and the external 

processor is operating. (As discussed 

below, the Act does require public 

agencies to provide those services that 

are otherwise related services and are 

necessary to maintain a child’s health or 

safety in school even if those services 

require specialized training.) Teachers 

and related services providers can be 

taught to first check the externally worn 

speech processor to make sure it is 

turned on, the volume and sensitivity 

settings are correct, and the cable is 

connected, in much the same manner as 

they are taught to make sure a hearing 

aid is properly functioning. To allow a 

child to sit in a classroom when the 

child’s hearing aid or cochlear implant 

is not functioning is to effectively 

exclude the child from receiving an 

appropriate education. Therefore, we 

believe it is important to clarify that a 

public agency is responsible for the 

routine checking of the external 

components of a surgically implanted 

device in much the same manner as a 

public agency is responsible for the 

proper functioning of hearing aids. 

The public agency also is responsible 

for providing services necessary to 

maintain the health and safety of a child 

while the child is in school, with 

breathing, nutrition, and other bodily 

functions (e.g., nursing services, 

suctioning a tracheotomy, urinary 

catheterization) if these services can be 

provided by someone who has been 

trained to provide the service and are 

not the type of services that can only be 

provided by a licensed physician. 

(Cedar Rapids Community School 

District v. Garret F., 526 U.S. 66 (1999)). 

Changes: We have added new 

§ 300.113 to cover the routine checking 

of hearing aids and external components 

of surgically implanted devices. The 

requirement for the routine checking of 

hearing aids has been removed from 

proposed § 300.105 and included in 

new § 300.113(a). The requirement for 

routine checking of an external 

component of a surgically implanted 

medical device has been added as new 

§ 300.113(b). The requirements for 

assistive technology devices and 

services remain in § 300.105 and the 

heading has been changed to reflect this 

change. We have also included a 

reference to new § 300.113(b) in new 

§ 300.34(b)(2). 

Comment: A few commenters stated 

that specialized cochlear implant 

audiologists who are at implant centers 

or closely associated with them should 

program cochlear implants. One 

commenter stated that, typically, school 

audiologists and school personnel do 

not have the specialized experience to 

program cochlear implants. 

Discussion: The personnel with the 

specific expertise or licensure required 

for the optimization (e.g., mapping) of 

surgically implanted devices are 

decisions to be made within each State 

based on applicable State statutes and 

licensing requirements. Since mapping 

is not covered under the Act, personnel 

standards for individuals who provide 

mapping services are beyond the scope 

of these regulations. 

Changes: None. 

Audiology (§ 300.34(c)(1)) 

Comment: One commenter stated that 

the definition of audiology does not 

reflect current audiology practice in 

schools and recommended new 

language to include services for children 

with auditory-related disorders, 

provision of comprehensive audiologic 

habilitation and rehabilitation services; 

consultation and training of teachers 

and other school staff; and involvement 

in classroom acoustics. 

Discussion: The definition of 

audiology is sufficiently broad to enable 

audiologists to be involved in the 

activities described by the commenter. 

We do not believe it is necessary to 

change the definition to add the specific 

functions recommended by the 

commenter. 

Changes: None. 

Comment: A few commenters 

requested adding mapping services for a 

child with a cochlear implant to the 

definition of audiology. 

Discussion: For the reasons discussed 

previously in this section, § 300.34(b) 

specifically excludes the optimization of 

a surgically implanted device from the 

definition of related services. This 

includes mapping of a cochlear implant. 

Changes: None. 

Comment: One commenter stated that 

the definition of audiology appears to be 

limited to children who are deaf or hard 

of hearing, and recommended adding 

language to allow children without 

expressive speech to receive such 

services. 

Discussion: The term audiology, as 

defined in § 300.34(c)(1), focuses on 

identifying and serving children who 

are deaf or hard of hearing. It is not 

necessary to add language in the 

regulations regarding children without 

expressive speech because the 

determining factor of whether audiology 

services are appropriate for a child is 

whether the child may be deaf or hard 

of hearing, not whether a child has 

expressive speech. 

Changes: None. 

Early Identification and Assessment of 

Disabilities (§ 300.34(c)(3)) 

Comment: Some commenters noted 

that ‘‘early identification and 

assessment of disabilities’’ was removed 

from the list of related services in 

§ 300.34(a). 

Discussion: ‘‘Early identification and 

assessment of disabilities’’ was 

inadvertently omitted from the list of 

related services in § 300.34(a). 

Changes: ‘‘Early identification and 

assessment’’ will be added to the list of 

related services in § 300.34(a). 


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Interpreting Services (§ 300.34(c)(4)) 

Comment: One commenter 

recommended that the definition of 

interpreting services requires that such 

services be provided by a qualified 

interpreter who is able to effectively, 

accurately, and impartially use any 

specialized vocabulary, both receptively 

and expressively. A few commenters 

strongly recommended requiring 

interpreting services to be provided by 

qualified interpreters to ensure 

equivalent communication access and 

effective communication with, and for, 

children who are deaf or hard of 

hearing. The commenter stated that 

personnel standards for interpreters 

vary greatly across SEAs and LEAs, and 

requiring qualified interpreters would 

be consistent with the definition of 

other related services included in these 

regulations such as physical therapy 

and occupational therapy. 

One commenter recommended 

defining the function of an interpreter as 

a person who facilitates communication 

between children who are deaf or hard 

of hearing, staff, and children, 

regardless of the job title. 

Discussion: Section 300.156, 

consistent with section 612(a)(14) of the 

Act, clarifies that it is the responsibility 

of each State to establish personnel 

qualifications to ensure that personnel 

necessary to carry out the purposes of 

the Act are appropriately and 

adequately prepared and trained and 

have the content knowledge and skills 

to serve children with disabilities. It is 

not necessary to add more specific 

functions of individuals providing 

interpreting services, as recommended 

by the commenters. States are 

appropriately given the flexibility to 

determine the qualifications and 

responsibilities of personnel, based on 

the needs of children with disabilities in 

the State. 

Changes: None. 

Comment: A few commenters 

recommended including American sign 

language and sign language systems in 

the definition of interpreting services. 

Discussion: The definition of 

interpreting services is sufficiently 

broad to include American sign 

language and sign language systems, 

and therefore, will not be changed. We 

believe it is important to include sign 

language transliteration (e.g., translation 

systems such as Signed Exact English 

and Contact Signing), in addition to sign 

language interpretation of another 

language (e.g., American sign language) 

in the definition of interpreting services, 

and will add this language to 

§ 300.34(c)(4)(i). 

Changes: We have added language to 

§ 300.34(c)(4)(i) to include sign language 

transliteration. 

Comment: A few commenters 

recommended changing the definition 

of interpreting services to clarify that the 

need for interpreting services must be 

based on a child’s disability and not 

degree of English proficiency. 

Discussion: The definition of 

interpreting services clearly states that 

interpreting services are used with 

children who are deaf or hard of 

hearing. The nature and type of 

interpreting services required for 

children who are deaf or hard of hearing 

and also limited in English proficiency 

are to be determined by reference to the 

Department’s regulations and policies 

regarding students with limited English 

proficiency. For example, the 

Department’s regulations in 34 CFR part 

100, implementing Title VI of the Civil 

Rights Act of 1964, 42 U.S.C. 2000d, 

require that recipients of Federal 

financial assistance ensure meaningful 

access to their programs and activities 

by students who are limited English 

proficient, including those who are deaf 

or hard of hearing. The requirement to 

provide services to students who are 

limited English proficient and others is 

also governed by various Department 

policy memoranda including the 

September 27, 1991 memorandum, 

‘‘Department of Education Policy 

Update on Schools’ Obligations Toward 

National Origin Minority Students With 

Limited English Proficiency’’; the 

December 3, 1985 guidance document, 

‘‘The Office for Civil Rights’ Title VI 

Language Minority Compliance 

Procedures’’; and the May 1970 

memorandum to school districts, 

‘‘Identification of discrimination and 

Denial of Services on the Basis of 

National Origin,’’ 35 FR 11595. These 

documents are available at http:// 

www.lep.gov. We do not believe 

additional clarification is necessary. 

Changes: None. 

Comment: One commenter stated that 

the definition of interpreting services 

appears to be limited to children who 

are deaf or hard of hearing, and 

recommended adding language to allow 

children without expressive speech to 

receive such services. 

Discussion: Interpreting services, as 

defined in § 300.34(c)(4), clearly states 

that interpreting services are used with 

children who are deaf and hard of 

hearing. Therefore, a child who is not 

deaf or hard of hearing, but who is 

without expressive speech, would not 

be considered eligible to receive 

interpreting services as defined in 

§ 300.34(c)(4). However, such a child 

could be considered eligible for speechlanguage pathology services, consistent 

with § 300.34(c)(15). 

Changes: None. 

Comment: Some commenters 

recommended including 

communication access real-time 

transcription (CART) services in the 

definition of interpreting services 

because these services are being used 

with increasing frequency in 

postsecondary education and 

employment settings, and familiarity 

and experience with CART services may 

better prepare children who are deaf or 

hard of hearing to transition to higher 

education and employment 

environments. A few commenters stated 

that the definition of interpreting 

services appears to limit interpreting 

services to the methods listed in 

§ 300.34(c)(4), which exclude tactile and 

close vision interpreting for children 

who are deaf-blind. 

Discussion: Although the definition of 

interpreting services is written broadly 

to include other types of interpreting 

services, we believe that it is important 

to include in the definition services in 

which oral communications are 

transcribed into real-time text. 

Therefore, we are adding language to 

§ 300.34(c)(4) to refer to transcription 

services and include several examples 

of transcription systems used to provide 

such services. 

We also believe that it is important 

that the definition of interpreting 

services include services for children 

who are deaf-blind. However, because 

there are many types of interpreting 

services for children who are deaf-blind, 

in addition to tactile and close vision 

interpreting services, we will add a 

more general statement to include 

interpreting services for children who 

are deaf-blind, rather than listing all the 

different methods that might be used for 

children who are deaf-blind. 

Changes: We have restructured 

§ 300.34(c)(4) and added ‘‘and 

transcription services such as 

communication real-time translation 

(CART), C-Print, and TypeWell’’ to the 

definition of interpreting services in 

paragraph (c)(4)(i). We have also added 

a new paragraph (c)(4)(ii) to include 

interpreting services for children who 

are deaf-blind. 

Medical Services (§ 300.34(c)(5)) 

Comment: One commenter stated that 

the definition of medical services is not 

in the Act and recommended that the 

definition be broader than the decision 

in Cedar Rapids Community School 

Dist. v. Garrett F., 526 U.S. 66 (1999), 

which the definition appears to follow. 

Discussion: The list of related services 

in § 300.34(a) includes medical services 


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for diagnostic and evaluation purposes, 

consistent with section 602(26) of the 

Act. The Department continues to 

believe that using language from the Act 

to define medical services is essential. 

Defining medical services more broadly, 

as recommended by the commenter, 

would not be consistent with the Act. 

Changes: None. 

Orientation and Mobility Services 

(§ 300.34(c)(7)) 

Comment: Several commenters 

supported including travel training in 

the definition of orientation and 

mobility services and recommended 

adding a reference to the definition of 

travel training in new § 300.39(b)(4) 

(proposed § 300.38(b)(4)). However, 

other commenters stated that travel 

training should appear as a distinct 

related service and should not be 

included in the definition of orientation 

and mobility services because children 

who are blind and visually impaired 

receive this type of instruction from 

certified orientation and mobility 

specialists. One commenter stated that 

the regulations should specify that 

travel training is for children with 

cognitive or other disabilities. 

Discussion: We believe that including 

travel training in the definition of 

orientation and mobility services may be 

misinterpreted to mean that travel 

training is available only for children 

who are blind or visually impaired or 

that travel training is the same as 

orientation and mobility services. We 

will, therefore, remove travel training 

from § 300.34(c)(7). This change, 

however, does not diminish the services 

that are available to children who are 

blind or visually impaired. 

Travel training is defined in new 

§ 300.39(b)(4) (proposed § 300.38(b)(4)) 

for children with significant cognitive 

disabilities and any other children with 

disabilities who require this instruction, 

and, therefore, would be available for 

children who are blind or visually 

impaired, as determined by the child’s 

IEP Team. Travel training is not the 

same as orientation and mobility 

services and is not intended to take the 

place of appropriate orientation and 

mobility services. 

Changes: We have removed ‘‘travel 

training instruction’’ from 

§ 300.34(c)(7)(ii) to avoid confusion 

with the definition of travel training in 

new § 300.39(b)(4) (proposed 

§ 300.38(b)(4)), and to clarify that travel 

training is not the same as orientation 

and mobility services and cannot take 

the place of appropriate orientation and 

mobility services. 

Comment: One commenter 

recommended that the regulations 

specify who is qualified to provide 

travel training instruction and stated 

that it is critical that skills such as street 

crossing be taught correctly. 

Discussion: Section 300.156, 

consistent with section 612(a)(14) of the 

Act, requires each State to establish 

personnel qualifications to ensure that 

personnel necessary to carry out the 

purposes of the Act are appropriately 

and adequately prepared and trained 

and have the content knowledge and 

skills to serve children with disabilities. 

It is, therefore, the State’s responsibility 

to determine the qualifications that are 

necessary to provide travel training 

instruction. 

Changes: None. 

Parent Counseling and Training 

(§ 300.34(c)(8)) 

Comment: A few commenters stated 

that the definition of parent counseling 

and training in § 300.34(c)(8) is not 

included in the definition of related 

services in section 602(26)(A) of the Act 

and, therefore, should not be included 

in the regulations. 

Discussion: Paragraphs (i) and (ii) of 

§ 300.34(c)(8), regarding assisting 

parents in understanding the special 

needs of their child, and providing 

parents with information about child 

development, respectively, are protected 

by section 607(b) of the Act, and cannot 

be removed. Section 300.34(c)(8)(iii), 

regarding helping parents acquire the 

skills to allow them to support the 

implementation of their child’s IEP or 

IFSP, was added in the 1999 regulations 

to recognize the more active role of 

parents as participants in the education 

of their children. Although not included 

in the Act, we believe it is important to 

retain this provision in these regulations 

so that there is no question that parent 

counseling and training includes 

helping parents acquire skills that will 

help them support the implementation 

of their child’s IEP or IFSP. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

describe the responsibility of LEAs to 

provide parent counseling and training. 

Discussion: As with other related 

services, an LEA only is responsible for 

providing parent counseling and 

training if a child’s IEP Team 

determines that it is necessary for the 

child to receive FAPE. To include this 

language in the definition of parent 

counseling and training, moreover, 

would be unnecessarily duplicative of 

§ 300.17(d), which states that FAPE 

means special education and related 

services that are provided in conformity 

with an IEP that meets the requirements 

in §§ 300.320 through 300.324. 

Changes: None. 

Physical Therapy (§ 300.34(c)(9)) 

Comment: One commenter 

recommended the definition of physical 

therapy include related therapeutic 

services for children with degenerative 

diseases. 

Discussion: We do not believe the 

suggested change is necessary because 

the definition of physical therapy is 

broadly defined and could include 

therapeutic services for children with 

degenerative diseases. It is the 

responsibility of the child’s IEP Team to 

determine the special education and 

related services that are necessary for a 

child to receive FAPE. There is nothing 

in the Act that prohibits the provision 

of therapeutic services for children with 

degenerative diseases, if the IEP Team 

determines they are needed for an 

individual child and, thereby, includes 

the services in the child’s IEP. 

Changes: None. 

Comment: One commenter stated that 

the definition of physical therapy in 

§ 300.34(c)(9) is circular and requested 

that a functional definition be provided. 

Discussion: The definition of physical 

therapy has been in the regulations 

since 1977 and is commonly accepted 

by SEAs, LEAs, and other public 

agencies. We do not believe it is 

necessary to change the definition. 

Changes: None. 

Psychological Services (§ 300.34(c)(10)) 

Comment: One commenter 

recommended that the definition of 

psychological services include strategies 

to facilitate social-emotional learning. 

Discussion: We do not believe the 

definition should be revised to add a 

specific reference to the strategies 

recommended by the commenter. The 

definition of psychological services is 

sufficiently broad to enable 

psychologists to be involved in 

strategies to facilitate social-emotional 

learning. 

Changes: None. 

Comment: One commenter stated that 

unless the definition of psychological 

services includes research-based 

counseling, schools will argue that they 

are required to provide counseling 

services delivered by social workers 

because counseling is included in the 

definition of social work services in 

schools. 

Discussion: We do not believe 

including research-based counseling in 

the definition of psychological services 

is necessary. Including counseling in 

the definition of social work services in 

schools in § 300.34(c)(14) is intended to 

indicate the types of personnel who 

assist in this activity and is not intended 


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either to imply that school social 

workers are automatically qualified to 

perform counseling or to prohibit other 

qualified personnel from providing 

counseling, consistent with State 

requirements. 

Changes: None. 

Comment: One commenter stated that 

other related services personnel, in 

addition to school psychologists, should 

be permitted to develop and deliver 

positive behavioral intervention 

strategies. 

Discussion: There are many 

professionals who might also play a role 

in developing and delivering positive 

behavioral intervention strategies. The 

standards for personnel who assist in 

developing and delivering positive 

behavioral intervention strategies will 

vary depending on the requirements of 

the State. Including the development 

and delivery of positive behavioral 

intervention strategies in the definition 

of psychological services is not intended 

to imply that school psychologists are 

automatically qualified to perform these 

duties or to prohibit other qualified 

personnel from providing these services, 

consistent with State requirements. 

Changes: None. 

Recreation (§ 300.34(c)(11)) 

Comment: A few commenters 

requested modifying the definition of 

recreation to include therapeutic 

recreation services provided by a 

qualified recreational therapist, which 

include services that restore, remediate, 

or rehabilitate to improve functioning 

and independence, and reduce or 

eliminate the effects of illness or 

disability. 

Discussion: We do not believe it is 

necessary to change the definition of 

recreation as recommended by the 

commenters because the definition is 

sufficiently broad to include the 

services mentioned by the commenters. 

Changes: None. 

School Health Services and School 

Nurse Services (Proposed School Nurse 

Services) (§ 300.34(c)(13)) 

Comment: Some commenters noted 

that while ‘‘school health services’’ is 

included in the list of related services in 

§ 300.34(a), it is not defined, which will 

result in confusion about the 

relationship between ‘‘school health 

services’’ and ‘‘school nurse services.’’

Some commenters stated that adding 

the definition of school nurse services 

and eliminating the definition of school 

health services must not narrow the 

range of related services available to 

children. One commenter recommended 

that the definition of school nurse 

services allow school nurse services to 

be provided by other qualified persons, 

as well as a qualified school nurse, 

because the majority of schools do not 

have a school nurse on staff. One 

commenter requested that the 

regulations clarify that schools can 

continue to use registered nurses or 

other personnel to provide school nurse 

services, consistent with State law. 

Another commenter stated that there is 

well-established case law upholding the 

obligation of an SEA and LEA to 

provide health-related services 

necessary for a child to benefit from 

special education. 

Discussion: School health services 

was retained in the definition of related 

services in § 300.34(a). However, the 

definition of school health services was 

inadvertently removed in the NPRM. To 

correct this error, we will add school 

health services to the definition of 

school nurse services and clarify that 

school health services and school nurse 

services means health services that are 

designed to enable a child with a 

disability to receive FAPE. We will also 

add language to clarify that school nurse 

services are provided by a qualified 

school nurse and that school health 

services are provided by either a 

qualified school nurse or other qualified 

person. We recognize that most schools 

do not have a qualified school nurse on 

a full-time basis (i.e., a nurse that meets 

the State standards for a qualified 

school nurse), and that many schools 

rely on other qualified school personnel 

to provide school health services under 

the direction of a school nurse. 

Therefore, we believe it is important to 

retain the definition of school health 

services and school nurse services in 

these regulations. 

With the changes made in § 300.34(c), 

it is not necessary for the reference to 

‘‘school nurse services’’ in § 300.34(a) to 

include the phrase, ‘‘designed to enable 

a child with a disability to receive a free 

appropriate public education as 

described in the IEP of the child.’’ We 

will, therefore, remove this phrase in 

§ 300.34(a). 

Changes: Section 300.34(c)(13) has 

been revised to include a definition of 

school health services and school nurse 

services. Additional language has been 

added to clarify who provides school 

health services and school nurse 

services. We have also modified 

§ 300.34(a) by deleting the redundant 

phrase, ‘‘designed to enable a child with 

a disability to receive a free appropriate 

public education as described in the IEP 

of the child.’’

Comment: One commenter stated that 

adding school nurse services to the 

definition of related services makes it 

more burdensome for the delivery of 

services to children who are medicallyfragile. 

Discussion: It is unclear how adding 

school nurse services to the definition of 

related services affects services to 

children who are medically fragile. As 

defined in § 300.34(c)(13), school health 

services and school nurse services are 

designed to enable a child with a 

disability to receive FAPE as described 

in the child’s IEP. A child who is 

medically fragile and needs school 

health services or school nurse services 

in order to receive FAPE must be 

provided such services, as indicated in 

the child’s IEP. 

Changes: None. 

Comment: One commenter stated that 

the definition of school nurse services 

should include services that enable a 

child with a disability to receive FAPE 

in the LRE. Another commenter stated 

that school nurses can be extremely 

supportive of children with disabilities 

receiving FAPE in the LRE and 

recommended changing the regulations 

to ensure that parents understand that 

the definition of related services 

includes school nurse services. 

Discussion: The LRE requirements in 

§§ 300.114 through 300.120 provide, 

that to the maximum extent appropriate, 

children with disabilities are to be 

educated with children who are not 

disabled. It is not necessary to repeat 

this requirement in the definition of 

school health services and school nurse 

services. 

We agree that school health services 

and school nurse services are important 

related services. Section 300.34(a) and 

section 602(26)(A) of the Act are clear 

that the definition of related services 

includes school health services and 

school nurse services. The IEP Team, of 

which the parent is an integral member, 

is responsible for determining the 

services that are necessary for the child 

to receive FAPE. We, therefore, do not 

believe that it is necessary to add a 

regulation requiring public agencies to 

ensure that parents understand that 

related services include school health 

services and school nurse services. 

Changes: None. 

Comment: One commenter stated that 

including the phrase, ‘‘designed to 

enable a child with a disability to 

receive a free appropriate public 

education’’ in § 300.34(c)(13) in relation 

to school nurse services, is unnecessary 

and confusing. 

Discussion: As stated in § 300.34(a), 

the purpose of related services is to 

assist a child with a disability to benefit 

from special education. We believe it is 

necessary to specify that school health 

services and school nurse services are 

related services only to the extent that 


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the services allow a child to benefit 

from special education and enable a 

child with a disability to receive FAPE. 

Changes: None. 

Social Work Services in Schools 

(§ 300.34(c)(14)) 

Comment: One commenter 

recommended including strategies to 

facilitate social-emotional learning in 

the definition of social work services in 

schools. A few commenters stated that 

the role of the school social worker is 

evolving and recommended that the 

definition include the role of social 

workers as integral members of prereferral teams that deliver interventions 

to decrease the number of referrals to 

special education. One commenter 

recommended that the definition 

include a reference to the social 

worker’s role in addressing the relevant 

history and current functioning of an 

individual within his or her 

environmental context, rather than 

referring to social-developmental 

histories. Another commenter stated 

that social workers are trained to find 

resources in the home, school, and 

community and recommended 

including such language in the 

definition. 

Discussion: The definition of social 

work services in schools is sufficiently 

broad to include the services described 

by the commenters and we do not 

believe the definition should be revised 

to add these more specific functions. 

Changes: None. 

Comment: One commenter stated that 

the definition of social work services in 

schools removes language from the 1983 

regulations that states that social work 

services allow children with disabilities 

to maximize benefit from the learning 

program. The commenter stated that this 

is a higher standard than what is 

required in § 300.34(c)(14), which only 

requires that services enable a child to 

learn as effectively as possible, and, 

therefore, the 1983 definition should be 

retained, consistent with section 607(b) 

of the Act. 

Discussion: We disagree with the 

commenter. The definition of social 

work services in schools in the 1977 

regulations included ‘‘mobilizing school 

and community resources to enable the 

child to receive maximum benefit from 

his or her educational program.’’ As 

explained in the preamble to the final 

1992 regulations, the phrase ‘‘to receive 

maximum benefit’’ was intended only to 

provide that the purpose of activities 

carried out by personnel qualified to 

provide social work services in schools 

is to mobilize resources so that a child 

can learn as effectively as possible in his 

or her educational program. The 

language in the preamble to the final 

1992 regulations also clarified that this 

provision did not set a legal standard for 

that program or entitle the child to a 

particular educational benefit. The 

preamble further explained that, during 

the public comment period for the 1992 

regulations, commenters raised 

concerns that the term ‘‘maximum 

benefit’’ appeared to be inconsistent 

with the decision by the United States 

Supreme Court in Board of Education v. 

Rowley, 458 U.S. 176 (1982). Therefore, 

the phrase was revised to read ‘‘to learn 

as effectively as possible in his or her 

educational program.’’ This is the same 

phrase used in the 1999 regulations and 

in these regulations in 

§ 300.34(c)(14)(iv). Because the language 

in the 1977 final regulations did not 

entitle a child to any particular benefit, 

the change made in 1992 did not lessen 

protections for a child, and, therefore, is 

not subject to section 607(b) of the Act. 

Changes: None. 

Comment: One commenter 

recommended adding a reference to 

‘‘functional behavioral assessments’’ in 

§ 300.34(c)(14)(v) because functional 

behavioral assessments should always 

precede the development of behavioral 

intervention strategies. Another 

commenter expressed concern that 

§ 300.34(c)(14)(iv), regarding social 

work services to mobilize school and 

community resources to enable the 

child to learn as effectively as possible, 

creates a potential for litigation. The 

commenter asked whether a school 

district could face a due process hearing 

for failure to mobilize community 

resources if there are no community 

resources to address the needs of the 

child or family. 

Discussion: The definition of social 

work services in schools includes 

examples of the types of social work 

services that may be provided. It is not 

a prescriptive or exhaustive list. The 

child’s IEP Team is responsible for 

determining whether a child needs 

social work services, and what specific 

social work services are needed in order 

for the child to receive FAPE. Therefore, 

while conducting a functional 

behavioral assessment typically 

precedes developing positive behavioral 

intervention strategies, we do not 

believe it is necessary to include 

functional behavioral assessments in the 

definition of social work services in 

schools because providing positive 

behavioral intervention strategies is just 

an example of a social work service that 

might be provided to a child if the 

child’s IEP Team determines that such 

services are needed for the child to 

receive FAPE. Similarly, if a child’s IEP 

Team determines that mobilizing 

community resources would not be an 

effective means of enabling the child to 

learn as effectively as possible because 

there are no community resources to 

address the needs of the child, the IEP 

Team would need to consider other 

ways to meet the child’s needs. While 

there is the possibility that a due 

process hearing might be filed based on 

a failure to mobilize community 

resources that do not exist, we do not 

believe that such a claim could ever be 

successful, as the regulation does not 

require the creation of community 

resources that do not exist. 

Changes: None. 

Speech-language Pathology Services 

(§ 300.34(c)(15)) 

Comment: One commenter stated that 

children who need speech therapy 

should have it for a full classroom 

period, five days a week, and not be 

removed from other classes to receive 

this related service. 

Discussion: It would be inconsistent 

with the Act to dictate the amount and 

location of services for all children 

receiving speech-language pathology 

services, as recommended by the 

commenter. As with all related services, 

section 614(d)(1)(A)(i)(IV) of the Act 

provides that the child’s IEP Team is 

responsible for determining the services 

that are needed for the child to receive 

FAPE. This includes determining the 

type of related service, as well as the 

amount and location of services. 

Changes: None. 

Comment: One commenter stated that 

the definition of speech-language 

pathology services appears to be limited 

to children who are deaf or hard of 

hearing, and recommended adding 

language to the regulations to allow 

children without expressive speech to 

receive such services. 

Discussion: There is nothing in the 

Act or the regulations that would limit 

speech-language pathology services to 

children who are deaf or hard of hearing 

or to children without expressive 

speech. The definition of speechlanguage pathology services specifically 

includes services for children who have 

language impairments, as well as speech 

impairments. 

Changes: None. 

Comment: One commenter requested 

the definition of speech-language 

pathology services specify the 

qualifications and standards for speechlanguage professionals. Another 

commenter requested that the definition 

require a highly qualified provider to 

deliver speech-language services. One 

commenter requested that the definition 

require a speech-language pathologist to 

provide speech-language services. 


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Discussion: Consistent with § 300.156 

and section 612(a)(14) of the Act, it is 

up to each State to establish personnel 

qualifications to ensure that personnel 

necessary to carry out the purposes of 

the Act are appropriately and 

adequately prepared and trained and 

have the content knowledge and skills 

to serve children with disabilities. 

Section 300.156(b), consistent with 

section 614(a)(14)(B) of the Act, 

specifically requires that these 

personnel qualifications must include 

qualifications for related services 

personnel. Establishing qualifications 

for individuals providing speechlanguage services in these regulations 

would be inconsistent with these 

statutory and regulatory requrements. 

Changes: None. 

Comment: One commenter stated that 

the roles and responsibilities for speechlanguage pathologists in schools have 

been expanded to help all children gain 

language and literacy skills and 

recommended that the definition of 

speech-language pathology services be 

revised to include consultation and 

collaboration with other staff members 

to plan and implement special 

intervention monitoring programs and 

modify classroom instruction to assist 

children in achieving academic success. 

The commenter also recommended 

including services for other health 

impairments, such as dysphagia, in the 

definition of speech-language pathology 

services. 

Discussion: The Act provides for 

speech-language pathology services for 

children with disabilities. It does not 

include speech-language pathology 

services to enable all children to gain 

language and literacy skills, as 

suggested by the commenter. It would, 

therefore, be inconsistent with the Act 

to change the definition of speechlanguage pathology services in the 

manner recommended by the 

commenter. We believe that the 

definition is sufficiently broad to 

include services for other health 

impairments, such as dysphagia, and 

therefore, decline to revise the 

definition to include this specific 

service. 

Changes: None. 

Transportation (§ 300.34(c)(16)) 

Comment: A few commenters stated 

that the definition of transportation 

should require transportation to be 

provided between school and other 

locations in which IEP services are 

provided. Other commenters requested 

that the definition explicitly define 

transportation as door-to-door services, 

including provisions for an aide to 

escort the child to and from the bus 

each day. 

Discussion: A child’s IEP Team is 

responsible for determining whether 

transportation between school and other 

locations is necessary in order for the 

child to receive FAPE. Likewise, if a 

child’s IEP Team determines that 

supports or modifications are needed in 

order for the child to be transported so 

that the child can receive FAPE, the 

child must receive the necessary 

transportation and supports at no cost to 

the parents. We believe the definition of 

transportation is sufficiently broad to 

address the commenters’ concerns. 

Therefore, we decline to make the 

requested changes to the definition. 

Changes: None. 

Comment: Some commenters 

recommended removing the term 

‘‘special transportation’’ from the 

definition of transportation because the 

term gives the impression that adapted 

buses are used for a separate and 

different transportation system, when, 

in fact, adapted buses are part of the 

regular transportation fleet and system. 

These commenters stated that adapted 

buses should only be used as a separate, 

special transportation service if the 

child’s IEP indicates that the 

transportation needs of the child can be 

met only with transportation services 

that are separate from the transportation 

services for all children. 

Discussion: We do not believe it is 

necessary to make the change requested 

by the commenters. It is assumed that 

most children with disabilities will 

receive the same transportation 

provided to nondisabled children, 

consistent with the LRE requirements in 

§§ 300.114 through 300.120, unless the 

IEP Team determines otherwise. While 

we understand the commenter’s 

concern, adapted buses may or may not 

be part of the regular transportation 

system in a particular school system. In 

any case, if the IEP Team determines 

that a child with a disability requires 

transportation as a related service in 

order to receive FAPE, or requires 

supports to participate in integrated 

transportation with nondisabled 

children, the child must receive the 

necessary transportation or supports at 

no cost to the parents. 

Changes: None. 

Scientifically Based Research (new 

§ 300.35) 

Comment: A number of commenters 

requested that the regulations include a 

definition of scientifically based 

research. 

Discussion: The definition of 

scientifically based research is 

important to the implementation of Part 

B of the Act and, therefore, we will 

include a reference to the definition of 

that term in section 9101(37) of the 

ESEA. 

For the reasons set forth earlier in this 

notice, we are not including definitions 

from other statutes in these regulations. 

However, we will include the current 

definition of scientifically based 

research in section 9101(37) of the 

ESEA here for reference. 

Scientifically based research—

(a) Means research that involves the 

application of rigorous, systematic, and 

objective procedures to obtain reliable 

and valid knowledge relevant to 

education activities and programs; and 

(b) Includes research that—

(1) Employs systematic, empirical 

methods that draw on observation or 

experiment; 

(2) Involves rigorous data analyses 

that are adequate to test the stated 

hypotheses and justify the general 

conclusions drawn; 

(3) Relies on measurements or 

observational methods that provide 

reliable and valid data across evaluators 

and observers, across multiple 

measurements and observations, and 

across studies by the same or different 

investigators; 

(4) Is evaluated using experimental or 

quasi-experimental designs in which 

individuals, entities, programs, or 

activities are assigned to different 

conditions and with appropriate 

controls to evaluate the effects of the 

condition of interest, with a preference 

for random-assignment experiments, or 

other designs to the extent that those 

designs contain within-condition or 

across-condition controls; 

(5) Ensures that experimental studies 

are presented in sufficient detail and 

clarity to allow for replication or, at a 

minimum, offer the opportunity to build 

systematically on their findings; and 

(6) Has been accepted by a peerreviewed journal or approved by a panel 

of independent experts through a 

comparably rigorous, objective, and 

scientific review. 

Changes: A cross-reference to the 

definition of scientifically based 

research in section 9101(37) of the 

ESEA has been added as new § 300.35. 

Subsequent definitions have been 

renumbered accordingly. 

Secondary School (New § 300.36) 

(Proposed § 300.35) 

Comment: One commenter requested 

clarification regarding the definition of 

secondary school and whether ‘‘grade 

12’’ refers to the regular grade 12 

curriculum aligned to State academic 

achievement standards under the ESEA 

or a limit on the number of years 


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children with a disabilities can spend in 

school. 

Discussion: The term ‘‘grade 12’’ in 

the definition of secondary school has 

the meaning given it under State law. It 

is not intended to impose a Federal 

limit on the number of years a child 

with a disability is allowed to complete 

his or her secondary education, as some 

children with disabilities may need 

more than 12 school years to complete 

their education. 

Changes: None. 

Services Plan (New § 300.37) (Proposed 

§ 300.36) 

Comment: One commenter stated that 

the term services plan is not in the Act 

and, therefore, should be removed. 

However, the commenter stated that if 

the definition of services plan remained 

in the regulations, it should reflect the 

fact that parentally-placed private 

school children are not entitled to 

FAPE. 

Discussion: The definition of services 

plan was included to describe the 

content, development, and 

implementation of plans for parentallyplaced private school children with 

disabilities who have been designated to 

receive equitable services. The 

definition cross-references the specific 

requirements for the provision of 

services to parentally-placed private 

school children with disabilities in 

§ 300.132 and §§ 300.137 through 

300.139, which provide that parentallyplaced private school children have no 

individual right to special education 

and related services and thus are not 

entitled to FAPE. We do not believe 

further clarification is necessary. 

Changes: None. 

Special Education (New § 300.39) 

(Proposed § 300.38) 

Comment: One commenter requested 

modifying the definition of special 

education to distinguish special 

education from other forms of 

education, such as remedial 

programming, flexible grouping, and 

alternative education programming. The 

commenter stated that flexible grouping, 

diagnostic and prescriptive teaching, 

and remedial programming have 

expanded in the general curriculum in 

regular classrooms and the expansion of 

such instruction will only be 

encouraged with the implementation of 

early intervening services under the Act. 

Discussion: We believe the definition 

of special education is clear and 

consistent with the definition in section 

602(29) of the Act. We do not believe it 

is necessary to change the definition to 

distinguish special education from the 

other forms of education mentioned by 

the commenter. 

Changes: None. 

Individual Special Education Terms 

Defined (New § 300.39(b)) (Proposed 

§ 300.38(b)) 

Comment: A few commenters 

provided definitions of 

‘‘accommodations’’ and ‘‘modifications’’

and recommended including them in 

new § 300.39(b) (proposed § 300.38(b)). 

Discussion: The terms 

‘‘accommodations’’ and ‘‘modifications’’

are terms of art referring to adaptations 

of the educational environment, the 

presentation of educational material, the 

method of response, or the educational 

content. They are not, however, 

examples of different types of 

‘‘education’’ and therefore we do not 

believe it is appropriate to define these 

terms of art or to include them in new 

§ 300.39(b) (proposed § 300.38(b)). 

Changes: None. 

Physical Education (New § 300.39(b)(2)) 

(Proposed § 300.38(b)(2)) 

Comment: One commenter requested 

that adaptive physical education be 

subject to the LRE requirements of the 

Act. 

Discussion: The requirements in 

§§ 300.114 through 300.120 require that, 

to the maximum extent appropriate, 

children with disabilities are educated 

with children who are nondisabled. 

This requirement applies to all special 

education services, including adaptive 

physical education. We see no need to 

repeat this requirement specifically for 

the provision of adaptive physical 

education. 

Changes: None. 

Specially Designed Instruction (New 

§ 300.39(b)(3)) (Proposed § 300.38(b)(3)) 

Comment: One commenter stated that 

the regulations should strengthen the 

requirements ensuring children access 

to the general curriculum, because many 

children with disabilities still do not 

have the tools they need or the teachers 

with expertise to access the general 

curriculum. 

Discussion: We believe the regulations 

place great emphasis on ensuring that 

children with disabilities have access to 

the general education curriculum. New 

§ 300.39(b)(3) (proposed § 300.38(b)(3)) 

defines specially designed instruction as 

adapting the content, methodology, or 

delivery of instruction to address the 

unique needs of the child and to ensure 

access to the general curriculum so that 

the child can meet the educational 

standards within the jurisdiction of the 

public agency that apply to all children. 

In addition, ensuring that children with 

disabilities have access to the general 

curriculum is a major focus of the 

requirements for developing a child’s 

IEP. For example, § 300.320(a)(1) 

requires a child’s IEP to include a 

statement of how the child’s disability 

affects the child’s involvement and 

progress in the general education 

curriculum; § 300.320(a)(2)(i) requires 

annual IEP goals to be designed to 

enable the child to be involved in and 

make progress in the general education 

curriculum; and § 300.320(a)(4) requires 

the IEP to include a statement of the 

special education and related services 

the child will receive, as well as the 

program modifications or supports for 

school personnel that will be provided, 

to enable the child to be involved in and 

make progress in the general education 

curriculum. We do not believe 

additional language is necessary. 

Changes: None. 

Travel Training (New § 300.39(b)(4)) 

(Proposed § 300.38(b)(4)) 

Comment: A few commenters 

recommended strengthening the 

definition of travel training in new 

§ 300.39(b)(4) (proposed § 300.38(b)(4)) 

and adding travel training to new 

§ 300.43 (proposed § 300.42) (transition 

services) to acknowledge that 

transportation is vitally important for 

children with disabilities to have full 

participation in the community. The 

commenters recommended that the 

definition of travel training include 

providing instruction to children with 

disabilities, other than blindness, to 

enable them to learn the skills and 

behaviors necessary to move effectively 

and safely in various environments, 

including use of public transportation. 

Discussion: We believe the definition 

of travel training already acknowledges 

the importance of transportation in 

supporting children with disabilities to 

fully participate in their communities. 

New § 300.43(a)(4) (proposed 

§ 300.42(a)(4)) defines travel training to 

include providing instruction that 

enables children to learn the skills 

necessary to move effectively and safely 

from place to place in school, home, at 

work and in the community. Therefore, 

we do not believe that further 

clarification is necessary. We also do 

not believe that it is necessary to add 

travel training to the definition of 

transition services, as recommended by 

the commenters. We believe that IEP 

Teams already consider the importance 

of transportation and travel training 

services in the course of planning for a 

student’s postsecondary transition 

needs. It is unnecessary to state that 

travel training includes instructing 

children with disabilities other than 


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blindness, as requested by the 

commenters, because the definition of 

travel training already states that travel 

training is appropriate for any child 

with a disability who requires this 

instruction. 

Changes: None. 

Comment: A few commenters strongly 

recommended clarifying that the 

definition of travel training does not 

include training for children with visual 

impairments, regardless of whether they 

have additional disabilities. 

Discussion: Any child with a 

disability, including a child with a 

visual impairment, who needs travel 

training instruction to receive FAPE, as 

determined by the child’s IEP Team, can 

receive travel training instruction. New 

§ 300.39(b)(4) (proposed § 300.38(b)(4)) 

specifically states that travel training 

means providing instruction to children 

with significant cognitive disabilities 

and any other children with disabilities 

who require this instruction. We, 

therefore, decline to change the 

definition, as recommended by the 

commenters. 

Changes: None. 

Vocational Education (New 

§ 300.39(b)(5)) (Proposed § 300.38(b)(5)) 

Comment: A few commenters 

recommended revising the definition of 

vocational education to include 

specially designed educational 

programs that are directly related to the 

preparation of individuals for paid or 

unpaid employment or for additional 

preparation for a career not requiring a 

baccalaureate or advanced degree. 

Discussion: We believe that the more 

general reference to ‘‘organized 

education programs’’ in the definition of 

vocational education is accurate and 

should not be changed to refer to 

‘‘specially designed educational 

programs,’’ as recommended by the 

commenter, because some children with 

disabilities will benefit from 

educational programs that are available 

for all children and will not need 

specially designed programs. 

Changes: None. 

Comment: Some commenters stated 

that Congress did not intend that the 

definition of vocational education 

would include vocational and technical 

education. The commenters stated that 

the addition of vocational and technical 

education to the definition of vocational 

education creates a right under the Act 

to educational services that would be 

extremely costly for States and LEAs to 

implement. 

Other commenters stated that 

including the definition of vocational 

and technical education from the Carl 

D. Perkins Act expands FAPE beyond 

secondary education, which is an 

unwarranted responsibility for school 

districts. One commenter stated that the 

definition could be interpreted to 

require public agencies to provide two 

years of postsecondary education for 

students with disabilities. A few 

commenters strongly recommended 

removing the definition of vocational 

and technical education. 

Some commenters recommended 

removing the reference to the 

postsecondary level for a 1-year 

certificate, an associate degree, and 

industry-recognized credential in the 

definition of vocational and technical 

education. One commenter suggested 

that proposed § 300.38(b)(6)(i)(A) 

conclude with the word ‘‘or’’ to clarify 

that the sequence of courses is 

discretionary. 

Discussion: The definition of 

vocational education was revised to 

include the definition of vocational and 

technical education in the Carl D. 

Perkins Vocational and Applied 

Technology Act of 1988, as amended, 20 

U.S.C. 2301, 2302(29). However, based 

on the comments we received, it is 

apparent that including the definition of 

vocational and technical education has 

raised concerns and confusion regarding 

the responsibilities of SEAs and LEAs to 

provide vocational education. 

Therefore, we will remove the definition 

of vocational and technical education in 

proposed § 300.38(b)(6) and the 

reference to vocational and technical 

education in proposed § 300.38(b)(5)(ii). 

Changes: The definition of vocational 

and technical education in proposed 

§ 300.38(b)(6) has been removed. 

Accordingly, the reference to vocational 

and technical education in proposed 

§ 300.38(b)(5)(ii)) has also been 

removed. 

Supplementary Aids and Services (New 

§ 300.42) (Proposed § 300.41) 

Comment: A few commenters stated 

that the definition of supplementary 

aids and services should be changed to 

mean aids, services, and other supports 

provided in general education classes or 

other settings to children with 

disabilities, as well as to educators, 

other support staff, and nondisabled 

peers, if necessary, to support the 

inclusion of children with disabilities. 

Discussion: The definition of 

supplementary aids and services in new 

§ 300.42 (proposed § 300.41) is 

consistent with the specific language in 

section 602(33) of the Act, and refers to 

aids, services, and other supports for 

children with disabilities. We do not 

believe it is necessary to change the 

definition to include providing aids, 

services, and supports to other 

individuals because § 300.320(a)(4) 

requires each child’s IEP to include a 

statement of the program modifications 

or supports for school personnel that 

will be provided to enable the child to 

be involved in and make progress in the 

general education curriculum, and to 

participate in extracurricular and other 

nonacademic activities. 

As noted in the Analysis of Comments 

and Changes section for subpart B, we 

have clarified in § 300.107(a) that States 

must ensure that public agencies take 

steps to provide nonacademic and 

extracurricular services and activities, 

including providing supplementary aids 

and services determined appropriate 

and necessary by the child’s IEP Team 

to afford children with disabilities an 

equal opportunity for participation in 

those services and activities. We have, 

therefore, revised the definition of 

supplementary aids and services in new 

§ 300.42 (proposed § 300.41) to be 

consistent with this change. 

Changes: We have added language in 

new § 300.42 (proposed § 300.41) to 

clarify that supplementary aids and 

services can be provided in 

extracurricular and nonacademic 

settings to enable children with 

disabilities to be educated with 

nondisabled children to the maximum 

extent appropriate. 

Comment: None. 

Discussion: New § 300.42 (proposed 

§ 300.41) contains an incorrect reference 

to § 300.112. The correct reference 

should be to § 300.114. 

Changes: We have removed the 

reference to § 300.112 and replaced it 

with a reference to § 300.114. 

Transition Services (New § 300.43) 

(Proposed § 300.42) 

Comment: One commenter 

recommended replacing the word 

‘‘child’’ with ‘‘student’’ in the definition 

of transition services. 

Discussion: The definition of 

transition services follows the language 

in section 602(34) of the Act. The words 

‘‘child’’ and ‘‘student’’ are used 

throughout the Act and we have used 

the statutory language in these 

regulations whenever possible. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

include vocational and career training 

through work-study as a type of 

transition service. A few commenters 

stated that the definition of transition 

services must specify that a student’s 

need for transition services cannot be 

based on the category or severity of a 

student’s disability, but rather on the 

student’s individual needs. 


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Discussion: We do not believe it is 

necessary to change the definition of 

transition services because the 

definition is written broadly to include 

a range of services, including vocational 

and career training that are needed to 

meet the individual needs of a child 

with a disability. The definition clearly 

states that decisions regarding transition 

services must be made on the basis of 

the child’s individual needs, taking into 

account the child’s strengths, 

preferences, and interests. As with all 

special education and related services, 

the student’s IEP Team determines the 

transition services that are needed to 

provide FAPE to a child with a 

disability based on the needs of the 

child, not on the disability category or 

severity of the disability. We do not 

believe further clarification is necessary. 

Changes: None. 

Comment: A few commenters stated 

that the regulations do not define 

‘‘functional’’ or explain how a student’s 

functional performance relates to the 

student’s unique needs or affects the 

student’s education. The commenters 

noted that the word ‘‘functional’’ is used 

throughout the regulations in various 

forms, including ‘‘functional 

assessment,’’ ‘‘functional goals,’’

‘‘functional abilities,’’ ‘‘functional 

needs,’’ ‘‘functional achievement,’’ and 

‘‘functional performance,’’ and should 

be defined to avoid confusion. One 

commenter recommended either 

defining the term or explicitly 

authorizing States to define the term. 

One commenter recommended 

clarifying that ‘‘functional performance’’

must be a consideration for any child 

with a disability who may need services 

related to functional life skills and not 

just for students with significant 

cognitive disabilities. A few 

commenters stated that the definition of 

transition services must specify that 

‘‘functional achievement’’ includes 

achievement in all major life functions, 

including behavior, social-emotional 

development, and daily living skills. 

Discussion: We do not believe it is 

necessary to include a definition of 

‘‘functional’’ in these regulations 

because the word is generally used to 

refer to activities and skills that are not 

considered academic or related to a 

child’s academic achievement as 

measured on Statewide achievement 

tests. There is nothing in the Act that 

would prohibit a State from defining 

‘‘functional,’’ as long as the definition 

and its use are consistent with the Act. 

We also do not believe it is necessary 

for the definition of transition services 

to refer to all the major life functions or 

to clarify that functional performance 

must be a consideration for any child 

with a disability, and not just for 

students with significant cognitive 

disabilities. As with all special 

education and related services, the 

student’s IEP Team determines the 

services that are needed to provide 

FAPE to a child with a disability based 

on the needs of the child. 

Changes: None. 

Comment: One commenter requested 

a definition of ‘‘results-oriented 

process.’’

Discussion: The term ‘‘resultsoriented process,’’ which appears in the 

statutory definition of transition 

services, is generally used to refer to a 

process that focuses on results. Because 

we are using the plain meaning of the 

term (i.e., a process that focuses on 

results), we do not believe it is 

necessary to define the term in these 

regulations. 

Changes: None. 

Comment: A few commenters stated 

that ‘‘acquisition of daily living skills 

and functional vocational evaluation’’ is 

unclear as a child does not typically 

‘‘acquire’’ an evaluation. The 

commenters stated that the phrase 

should be changed to ‘‘functional 

vocational skills.’’

Discussion: We agree that the phrase 

is unclear and will clarify the language 

in the regulation to refer to the 

‘‘provision of a functional vocational 

evaluation.’’

Changes: We have added ‘‘provision 

of a’’ before ‘‘functional vocational 

evaluation’’ in new § 300.43(a)(2)(v) for 

clarity. 

Universal Design (New § 300.44) 

(Proposed § 300.43) 

Comment: Many commenters 

requested including the full definition 

of universal design in the regulations, 

rather than providing a reference to the 

definition of the term. 

Discussion: The term universal design 

is defined in the Assistive Technology 

Act of 1998, as amended. For the 

reasons set forth earlier in this notice, 

we are not including in these 

regulations full definitions of terms that 

are defined in other statutes. However, 

we will include the definition of this 

term from section 3 of the Assistive 

Technology Act of 1998, as amended, 29 

U.S.C. 3002, here for reference. 

The term universal design means a 

concept or philosophy for designing and 

delivering products and services that are 

usable by people with the widest 

possible range of functional capabilities, 

which include products and services 

that are directly accessible (without 

requiring assistive technologies) and 

products and services that are 

interoperable with assistive 

technologies. 

Changes: None. 

Comment: Several commenters stated 

that the definition of universal design 

should be changed to include the 

universal design of academic content 

standards, curricula, instructional 

materials, and assessments. 

Discussion: The definition of 

universal design is statutory. Congress 

clearly intended that we use this 

specific definition when it used this 

term in the Act. We do not believe we 

can change this definition as suggested 

by the commenters. 

Changes: None. 

Subpart B—State Eligibility 

FAPE Requirements 

Free Appropriate Public Education 

(FAPE) (§ 300.101) 

Comment: One commenter 

recommended revising § 300.101 to 

ensure that children with disabilities 

who are suspended or expelled from 

their current placement are provided 

educational services consistent with 

State academic achievement standards. 

One commenter asked whether children 

with disabilities who are suspended or 

expelled from their current placement 

must continue to be taught by highly 

qualified teachers. 

Discussion: We believe the concern 

raised by the commenter is already 

addressed by this regulation and 

elsewhere in the regulations and that no 

changes to § 300.101 are necessary. 

Section 300.530(d), consistent with 

section 615(k)(1)(D) of the Act, clarifies 

that a child with a disability who is 

removed from his or her current 

placement for disciplinary reasons, 

irrespective of whether the behavior is 

determined to be a manifestation of the 

child’s disability, must be allowed to 

participate in the general education 

curriculum, although in another setting, 

and to progress toward meeting his or 

her IEP goals. As the term ‘‘general 

education curriculum’’ is used 

throughout the Act and in these 

regulations, the clear implication is that 

there is an education curriculum that is 

applicable to all children and that this 

curriculum is based on the State’s 

academic content standards. 

Children with disabilities who are 

suspended or expelled from their 

current placement in public schools 

must continue to be taught by highly 

qualified teachers, consistent with the 

requirements in §§ 300.156 and 300.18. 

Private school teachers are not subject to 

the highly qualified teacher 

requirements under this part. 

Changes: None. 


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Comment: One commenter suggested 

clarifying in § 300.101 that FAPE must 

be available to children with disabilities 

in the least restrictive environment. 

Discussion: We do not believe further 

clarification is needed in § 300.101, as 

the matter is adequately covered 

elsewhere in the regulations. Section 

300.101 clarifies that, in order to be 

eligible to receive funds under Part B of 

the Act, States must, among other 

conditions, ensure that FAPE is made 

available to all children with specified 

disabilities in mandated age ranges. The 

term FAPE is defined in § 300.17 and 

section 602(9)(D) of the Act as 

including, among other elements, 

special education and related services, 

provided at no cost to parents, in 

conformity with an individualized 

education program (IEP). Sections 

300.114 through 300.118, consistent 

with section 612(a)(5) of the Act, 

implement the Act’s strong preference 

for educating children with disabilities 

in regular classes with appropriate aids 

and supports. Specifically, § 300.114 

provides that States must have in effect 

policies and procedures ensuring that, 

to the maximum extent appropriate, 

children with disabilities, including 

children in public or private institutions 

or other care facilities, are educated 

with children who are nondisabled, and 

that special classes, separate schooling, 

or other removal of children with 

disabilities from the regular educational 

environment occurs only if the nature or 

severity of the disability is such that 

education in regular classes with the use 

of supplementary aids and services 

cannot be achieved satisfactorily. 

Changes: None. 

Comment: A few commenters 

recommended including language in 

§ 300.101(a) specifying that children 

with disabilities expelled or suspended 

from the general education classroom 

must be provided FAPE in the least 

restrictive environment. 

Discussion: The Department believes 

it would not be appropriate to include 

the requested language in this section 

because services in these circumstances 

are provided under somewhat different 

criteria than is normally the case. 

Section 300.530 clarifies the procedures 

school personnel must follow when 

removing a child with a disability who 

violates a code of student conduct from 

their current placement (e.g., 

suspension and expulsion). This 

includes how decisions are made 

regarding the educational services the 

child receives and the location in which 

they will be provided. School officials 

need some reasonable amount of 

flexibility in providing services to 

children with disabilities who have 

violated school conduct rules, and 

should not necessarily have to provide 

exactly the same services, in the same 

settings, to these children. Therefore, we 

decline to regulate further in this regard. 

Changes: None. 

Comment: Some commenters 

expressed concern that children with 

disabilities have to fail or be retained in 

a grade or course in order to be 

considered eligible for special education 

and related services. 

Discussion: Section 300.101(c) 

provides that a child is eligible to 

receive special education and related 

services even though the child is 

advancing from grade to grade. Further, 

it is implicit from paragraph (c) of this 

section that a child should not have to 

fail a course or be retained in a grade in 

order to be considered for special 

education and related services. A public 

agency must provide a child with a 

disability special education and related 

services to enable him or her to progress 

in the general curriculum, thus making 

clear that a child is not ineligible to 

receive special education and related 

services just because the child is, with 

the support of those individually 

designed services, progressing in the 

general curriculum from grade-to-grade 

or failing a course or grade. The group 

determining the eligibility of a child for 

special education and related services 

must make an individual determination 

as to whether, notwithstanding the 

child’s progress in a course or grade, he 

or she needs or continues to need 

special education and related services. 

However, to provide additional clarity 

we will revise paragraph (c)(1) of this 

section to explicitly state that children 

do not have to fail or be retained in a 

course or grade in order to be 

considered eligible for special education 

and related services. 

Changes: Section 300.101(c)(1) has 

been revised to provide that children do 

not have to fail or be retained in a 

course or grade in order to be 

considered eligible for special education 

and related services. 

Limitation—Exception to FAPE for 

Certain Ages (§ 300.102) 

Comment: One commenter requested 

that the regulations clarify that children 

with disabilities who do not receive a 

regular high school diploma continue to 

be eligible for special education and 

related services. One commenter 

expressed concern that the provision in 

§ 300.102(a)(3)(ii) regarding children 

with disabilities who have not been 

awarded a regular high school diploma 

could result in the delay of transition 

services in the context of the child’s 

secondary school experience and 

postsecondary goals. 

Discussion: We believe that 

§ 300.102(a)(3) is sufficiently clear that 

public agencies need not make FAPE 

available to children with disabilities 

who have graduated with a regular high 

school diploma and that no change is 

needed to the regulations. Children with 

disabilities who have not graduated 

with a regular high school diploma still 

have an entitlement to FAPE until the 

child reaches the age at which eligibility 

ceases under the age requirements 

within the State. However, we have 

reviewed the regulations and believe 

that it is important for these regulations 

to define ‘‘regular diploma’’ consistent 

with the ESEA regulations in 34 CFR 

§ 200.19(a)(1)(i). Therefore, we will add 

language to clarify that a regular high 

school diploma does not include an 

alternative degree that is not fully 

aligned with the State’s academic 

standards, such as a certificate or 

general educational development (GED) 

credential. 

We do not believe § 300.102 could be 

interpreted to permit public agencies to 

delay implementation of transition 

services, as stated by one commenter 

because transition services must be 

provided based on a child’s age, not the 

number of years the child has remaining 

in the child’s high school career. 

Section 300.320(b), consistent with 

section 614(d)(1)(A)(i)(VIII) of the Act, 

requires each child’s IEP to include, 

beginning not later than the first IEP to 

be in effect when the child turns 16, or 

younger if determined appropriate by 

the IEP Team, appropriate measurable 

postsecondary goals and the transition 

services needed to assist the child in 

reaching those goals. 

Changes: A new paragraph (iv) has 

been added in § 300.102(a)(3) stating 

that a regular high school diploma does 

not include an alternative degree that is 

not fully aligned with the State’s 

academic standards, such as a certificate 

or GED. 

Comment: One commenter requested 

clarification as to how States should 

include children with disabilities who 

require special education services 

through age 21 in calculating, for 

adequate yearly progress (AYP) 

purposes, the percentage of children 

who graduate with a regular high school 

diploma in the standard number of 

years. The commenter expressed 

concern that States, in order to comply 

with their high school graduation rate 

academic outcome requirements under 

the ESEA, will change the grade status 

from 12th grade to 11th grade for those 

children with disabilities who will 

typically age out of the public education 


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system under the Act. The commenter 

further stated that this will affect the 

exception to FAPE provisions in 

§ 300.102 for children with disabilities 

who require special education services 

through age 21. 

Discussion: The calculation of 

graduation rates under the ESEA for 

AYP purposes (34 CFR 200.19(a)(1)(i)) 

does not alter the exception to FAPE 

provisions in § 300.102(a)(3) for 

children with disabilities who graduate 

from high school with a regular high 

school diploma, but not in the standard 

number of years. The public agency 

must make FAPE available until age 21 

or the age limit established by State law, 

even though the child would not be 

included as graduating for AYP 

purposes under the ESEA. In practice, 

though, there is no conflict between the 

Act and the ESEA, as the Department 

interprets the ESEA title I regulations to 

permit States to propose a method for 

accurately accounting for students who 

legitimately take longer than the 

standard number of years to graduate. 

Changes: None. 

Residential Placement: (§ 300.104) 

Comment: A few commenters 

requested that the regulations clarify 

that parents cannot be held liable for 

any costs if their child with a disability 

is placed in a residential setting by a 

public agency in order to provide FAPE 

to the child. 

Discussion: Section 300.104, 

consistent with section 612(a)(1) and 

(a)(10)(B) of the Act, is a longstanding 

provision that applies to placements 

that are made by public agencies in 

public and private institutions for 

educational purposes and clarifies that 

parents are not required to bear the costs 

of a public or private residential 

placement if such placement is 

determined necessary to provide FAPE. 

If a public agency determines in an 

individual situation that a child with a 

disability cannot receive FAPE from the 

programs that the public agency 

conducts and, therefore, placement in a 

public or private residential program is 

necessary to provide special education 

and related services to the child, the 

program, including non-medical care 

and room and board, must be at no cost 

to the parents of the child. 

In situations where a child’s 

educational needs are inseparable from 

the child’s emotional needs and an 

individual determination is made that 

the child requires the therapeutic and 

habilitation services of a residential 

program in order to ‘‘benefit from 

special education,’’ these therapeutic 

and habilitation services may be 

‘‘related services’’ under the Act. In 

such a case, the SEA is responsible for 

ensuring that the entire cost of that 

child’s placement, including the 

therapeutic care as well as room and 

board, is without cost to the parents. 

However, the SEA is not responsible for 

providing medical care. Thus, visits to 

a doctor for treatment of medical 

conditions are not covered services 

under Part B of the Act and parents may 

be responsible for the cost of the 

medical care. 

Changes: None. 

Assistive Technology (§ 300.105) 

Comment: One commenter 

recommended removing § 300.105 and 

including the requirements in this 

section in the definition of assistive 

technology device in § 300.5 and 

assistive technology service in § 300.6. 

Discussion: Section 300.5 and § 300.6 

define the terms assistive technology 

device and assistive technology service, 

respectively. Section 300.105 is not part 

of the definition of these terms, but 

rather is necessary to specify the 

circumstances under which public 

agencies are responsible for making 

available assistive technology devices 

and assistive technology services to 

children with disabilities. 

Changes: None. 

Comment: A few commenters 

requested clarifying in § 300.105(b) 

whether hearing aids are included in the 

definition of an assistive technology 

device. 

Discussion: An assistive technology 

device, as defined in § 300.5, means any 

item, piece of equipment, or product 

system that is used to increase, 

maintain, or improve the functional 

capabilities of a child with a disability. 

The decision of whether a hearing aid 

is an assistive technology device is a 

determination that is made on an 

individual basis by the child’s IEP 

Team. However, even if the IEP Team 

determines that a hearing aid is an 

assistive technology device, within the 

meaning of § 300.5, for a particular 

child, the public agency is responsible 

for the provision of the assistive 

technology device as part of FAPE, only 

if, as specified in § 300.105, the device 

is required as part of the child’s special 

education defined in § 300.39, related 

services defined in § 300.34, or 

supplementary aids and services 

defined in § 300.42. 

As a general matter, public agencies 

are not responsible for providing 

personal devices, such as eyeglasses or 

hearing aids that a child with a 

disability requires, regardless of 

whether the child is attending school. 

However, if it is not a surgically 

implanted device and a child’s IEP 

Team determines that the child requires 

a personal device (e.g., eyeglasses) in 

order to receive FAPE, the public 

agency must ensure that the device is 

provided at no cost to the child’s 

parents. 

Changes: None. 

Comment: One commenter 

recommended adding language to 

§ 300.105(b) to include, in addition to 

hearing aids, other hearing 

enhancement devices, such as a 

cochlear implant. 

Discussion: Section 300.105(b), as 

proposed, requires a public agency to 

ensure that hearing aids worn in school 

by children with hearing impairments, 

including deafness, are functioning 

properly. This is a longstanding 

requirement and was included pursuant 

to a House Committee Report on the 

1978 appropriations bill (H. Rpt. No. 

95–381, p. 67 (1977)) directing the 

Department to ensure that children with 

hearing impairments are receiving 

adequate professional assessment, 

follow-up, and services. The 

Department believes that, given the 

increase in the number of children with 

disabilities with surgically implanted 

devices (e.g., cochlear implants, vagus 

nerve stimulators, electronic muscle 

stimulators), and rapid advances in new 

technologies to help children with 

disabilities, it is important that these 

regulations clearly address any 

obligation public agencies have to 

provide follow-up and services to 

ensure that such devices are functioning 

properly. 

Section 602(1) of the Act clarifies that 

the definition of assistive technology 

device does not include a medical 

device that is surgically implanted or 

the replacement of such device. Section 

602(26) of the Act also stipulates that 

only medical services that are for 

diagnostic and evaluative purposes and 

required to assist a child with a 

disability to benefit from special 

education are considered a related 

service. We believe Congress was clear 

in its intent in S. Rpt. 108–185, p. 8, 

which states: 

[T]he definitions of ‘‘assistive technology 

device’’ and ‘‘related services’’ do not 

include a medical device that is surgically 

implanted, or the post-surgical maintenance, 

programming, or replacement of such device, 

or an external device connected with the use 

of a surgically implanted medical device 

(other than the costs of performing routine 

maintenance and monitoring of such external 

device at the same time the child is receiving 

other services under the act). 

The Department believes, however, 

that public agencies have an obligation 

to change a battery or routinely check an 

external component of a surgically 


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implanted medical device to make sure 

it is turned on and operating. However, 

mapping a cochlear implant (or paying 

the costs associated with mapping) is 

not routine checking as described above 

and should not be the responsibility of 

a public agency. We will add language 

to the regulations to clarify a public 

agency’s responsibility regarding the 

routine checking of external 

components of surgically implanted 

medical devices. 

Changes: A new § 300.113 has been 

added with the heading, ‘‘Routine 

checking of hearing aids and external 

components of surgically implanted 

medical devices.’’ Section 300.105(b), 

regarding the proper functioning of 

hearing aids, has been removed and 

redesignated as new § 300.113(a). We 

have added a new paragraph (b) in new 

§ 300.113 clarifying that, for a child 

with a surgically implanted medical 

device who is receiving special 

education and related services under 

this part, a public agency is responsible 

for routine checking of external 

components of surgically implanted 

medical devices, but is not responsible 

for the post-surgical maintenance, 

programming, or replacement of a 

medical device that has been surgically 

implanted (or of an external component 

of a surgically implanted medical 

device). 

The provisions in § 300.105 have been 

changed to conform with the other 

changes to this section and the phrase 

‘‘proper functioning of hearing aids’’ has 

been removed from the heading. 

Extended School Year Services 

(§ 300.106) 

Comment: Several commenters 

recommended removing § 300.106 

because the requirement to provide 

extended school year (ESY) services to 

children with disabilities is not required 

in the Act. 

Discussion: The requirement to 

provide ESY services to children with 

disabilities who require such services in 

order to receive FAPE reflects a 

longstanding interpretation of the Act 

by the courts and the Department. The 

right of an individual child with a 

disability to receive ESY services is 

based on that child’s entitlement to 

FAPE under section 612(a)(1) of the Act. 

Some children with disabilities may not 

receive FAPE unless they receive 

necessary services during times when 

other children, both disabled and 

nondisabled, normally would not be 

served. We believe it is important to 

retain the provisions in § 300.106 

because it is necessary that public 

agencies understand their obligation to 

ensure that children with disabilities 

who require ESY services in order to 

receive FAPE have the necessary 

services available to them, and that 

individualized determinations about 

each disabled child’s need for ESY 

services are made through the IEP 

process. 

Changes: None. 

Comment: One commenter stated that 

the ESY requirements in § 300.106 

should not be included as part of the 

State eligibility requirements and would 

be more appropriately included in the 

definition of FAPE in § 300.17. 

Discussion: The definition of FAPE in 

§ 300.17 is taken directly from section 

602(9) of the Act. We believe the ESY 

requirements are appropriately included 

under the FAPE requirements as a part 

of a State’s eligibility for assistance 

under Part B of the Act because the right 

of an individual child with a disability 

to ESY services is based on a child’s 

entitlement to FAPE. As a part of the 

State’s eligibility for assistance under 

Part B of the Act, the State must make 

FAPE available to all children with 

disabilities residing in the State in 

mandated age ranges. 

Changes: None. 

Comment: One commenter 

recommended removing the word 

‘‘only’’ in § 300.106(a)(2) because it is 

unduly limiting. 

Discussion: The inclusion of the word 

‘‘only’’ is intended to be limiting. ESY 

services must be provided ‘‘only’’ if a 

child’s IEP Team determines, on an 

individual basis, in accordance with 

§§ 300.320 through 300.324, that the 

services are necessary for the provision 

of FAPE to the child. We do not think 

this language is overly restrictive; 

instead, we think it is necessary for 

providing appropriate parameters to the 

responsibility of the IEP Team. 

Changes: None. 

Comment: A few commenters 

suggested revising § 300.106(a)(3)(i) to 

specifically state that, in addition to 

particular categories of disabilities, 

public agencies may not limit ESY 

services to particular age ranges. Other 

commenters proposed adding 

‘‘preschooler with a disability’’ to the 

definition of ESY services in 

§ 300.106(b)(1). 

Discussion: The revisions 

recommended by the commenters are 

not necessary. Section 300.106(a) 

clarifies that each public agency must 

ensure that ESY services are available 

for children with disabilities if those 

services are necessary for the children to 

receive FAPE. Section 300.101(a) clearly 

states that FAPE must be available to all 

children aged 3 through 21, inclusive, 

residing in the State, except for children 

ages 3, 4, 5, 18, 19, 20, or 21 to the 

extent that its application to those 

children would be inconsistent with 

State law or practice, or the order of any 

court, regarding the provision of public 

education to children of those ages. We 

do not believe any further clarification 

is necessary. 

Changes: None. 

Comment: One commenter requested 

that language be added to 

§ 300.106(b)(1)(i) to clarify that 

providing ESY services to a child with 

a disability beyond the normal school 

year includes, but is not limited to, 

before and after regular school hours, on 

weekends, and during regular school 

vacations. 

Discussion: Typically, ESY services 

are provided during the summer 

months. However, there is nothing in 

§ 300.106 that would limit a public 

agency from providing ESY services to 

a child with a disability during times 

other than the summer, such as before 

and after regular school hours or during 

school vacations, if the IEP Team 

determines that the child requires ESY 

services during those time periods in 

order to receive FAPE. The regulations 

give the IEP Team the flexibility to 

determine when ESY services are 

appropriate, depending on the 

circumstances of the individual child. 

Changes: None. 

Comment: One commenter suggested 

adding language to § 300.106 clarifying 

that ‘‘recoupment and retention’’ should 

not be used as the sole criteria for 

determining the child’s eligibility for 

ESY services. 

Discussion: We do not believe the 

commenter’s suggested change should 

be made. The concepts of ‘‘recoupment’’

and ‘‘likelihood of regression or 

retention’’ have formed the basis for 

many standards that States use in 

making ESY eligibility determinations 

and are derived from well-established 

judicial precedents. (See, for example, 

Johnson v. Bixby Independent School 

District 4, 921 F.2d 1022 (10th Cir. 

1990); Crawford v. Pittman, 708 F.2d 

1028 (5th Cir. 1983); GARC v. McDaniel, 

716 F.2d 1565 (11th Cir. 1983)). States 

may use recoupment and retention as 

their sole criteria but they are not 

limited to these standards and have 

considerable flexibility in determining 

eligibility for ESY services and 

establishing State standards for making 

ESY determinations. However, whatever 

standard a State uses must be consistent 

with the individually-oriented 

requirements of the Act and may not 

limit eligibility for ESY services to 

children with a particular disability 

category or be applied in a manner that 

denies children with disabilities who 


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require ESY services in order to receive 

FAPE access to necessary ESY services. 

Changes: None. 

Nonacademic Services (§ 300.107) 

Comment: One commenter 

recommended adding more specific 

language in § 300.107 regarding services 

and accommodations available for 

nonacademic activities to ensure that 

children with disabilities are fully 

included in nonacademic activities. 

Discussion: We agree with the 

commenter. Section 300.107(a), as 

proposed, requires public agencies to 

take steps to provide nonacademic and 

extracurricular services and activities in 

a manner necessary to afford children 

with disabilities an equal opportunity to 

participate in those services and 

activities. In addition, 

§ 300.320(a)(4)(ii), consistent with 

section 614(d)(1)(i)(IV)(bb) of the Act, 

clarifies that an IEP must include a 

statement of the special education and 

related services and supplementary aids 

and services to be provided to the child 

to participate in extracurricular and 

other nonacademic activities. We will 

add language in § 300.107(a) to clarify 

that the steps taken by public agencies 

to provide access to nonacademic and 

extracurricular services and activities 

include the provision of supplementary 

aids and services determined 

appropriate and necessary by the child’s 

IEP Team. 

Changes: Additional language has 

been added in § 300.107(a) to clarify 

that the steps taken by public agencies 

to provide access to nonacademic and 

extracurricular services and activities 

include the provision of supplementary 

aids and services determined 

appropriate and necessary by the child’s 

IEP Team. 

Comment: One commenter expressed 

concern about including ‘‘nonacademic 

services’’ in § 300.107, because it is not 

in the Act. The commenter stated that 

services such as athletics, recreational 

activities and clubs, counseling, 

transportation and health services 

should not be included in the 

regulations because they may be costly 

and are usually available on a limited 

basis. One commenter stated that it is 

confusing to include related services in 

the examples of nonacademic services 

and recommended that they be 

removed. 

Discussion: The list of nonacademic 

and extracurricular services and 

activities in § 300.107(b) is not 

exhaustive. The list provides public 

agencies with examples of services and 

activities that may afford children with 

disabilities an equal opportunity for 

participation in the services offered to 

other children of the public agency. We 

disagree that the list of activities causes 

confusion with related services, as we 

think that the public can easily 

recognize the difference between 

academic counseling services, for 

example, that are offered to all children, 

and the type of counseling services that 

might be included in a child’s IEP as a 

related service. For these reasons, we 

believe it is appropriate to maintain the 

list of nonacademic and extracurricular 

services and activities in § 300.107, 

including those services that are also 

related services in § 300.34. 

Changes: None. 

Physical Education (§ 300.108) 

Comment: A few commenters stated 

that, in some States, physical education 

is not required for every nondisabled 

child every year and this creates 

situations in which children with 

disabilities are in segregated physical 

education classes. The commenters 

recommended that the regulations 

clarify the requirements for public 

agencies to make physical education 

available to children with disabilities 

when physical education is not 

available to children without 

disabilities. 

Discussion: Section 300.108 describes 

two considerations that a public agency 

must take into account to meet the 

physical education requirements in this 

section. First, physical education must 

be made available equally to children 

with disabilities and children without 

disabilities. If physical education is not 

available to all children (i.e., children 

with and without disabilities), the 

public agency is not required to make 

physical education available for 

children with disabilities (e.g., a district 

may provide physical education to all 

children through grade 10, but not to 

any children in their junior and senior 

years). Second, if physical education is 

specially designed to meet the unique 

needs of a child with a disability and is 

set out in that child’s IEP, those services 

must be provided whether or not they 

are provided to other children in the 

agency. 

This is the Department’s longstanding 

interpretation of the requirements in 

§ 300.108 and is based on legislative 

history that the intent of Congress was 

to ensure equal rights for children with 

disabilities. The regulation as 

promulgated in 1977 was based on an 

understanding that physical education 

was available to all children without 

disabilities and, therefore, must be made 

available to all children with 

disabilities. As stated in H. Rpt. No. 94–

332, p. 9, (1975): 

Special education as set forth in the 

Committee bill includes instruction in 

physical education, which is provided as a 

matter of course to all non-handicapped 

children enrolled in public elementary and 

secondary schools. The Committee is 

concerned that although these services are 

available to and required of all children in 

our school systems, they are often viewed as 

a luxury for handicapped children. 

We agree that § 300.108(a) could be 

interpreted to mean that physical 

education must be made available to all 

children with disabilities, regardless of 

whether physical education is provided 

to children without disabilities. We 

will, therefore, revise paragraph (a) to 

clarify that the public agency has no 

obligation to provide physical education 

for children with disabilities if it does 

not provide physical education to 

nondisabled children attending their 

schools. 

Changes: Section 300.108(a) has been 

revised as described in the preceding 

paragraph. 

Full Education Opportunity Goal 

(FEOG) (§ 300.109) 

Comment: One commenter requested 

that the regulations clarify how a State 

communicates and monitors the 

progress of the State’s FEOG. 

Discussion: We do not believe it is 

appropriate to regulate how a State 

communicates and monitors its progress 

toward the State’s FEOG. We believe the 

State should have the flexibility needed 

to implement the provisions of this 

section and the State is in the best 

position to make this determination. 

Changes: None. 

Program Options (§ 300.110) 

Comment: A few commenters 

recommended revising § 300.110 to 

require States to ensure that each public 

agency have in effect policies, 

procedures, and programs to provide 

children with disabilities the variety of 

educational programs and services 

available to nondisabled children. The 

commenters stated that § 300.110 does 

not provide any guidance to educators. 

A few commenters stated that 

‘‘vocational education is an outdated 

term’’ and proposed replacing it with 

‘‘career-technical and adult education’’

or ‘‘career and technical education.’’

Discussion: We do not believe it is 

necessary to change § 300.110. Under 

this provision, States must ensure that 

public agencies take steps to ensure that 

children with disabilities have access to 

the same program options that are 

available to nondisabled children in the 

area served by the agency, whatever 

those options are, and we are not aware 

of any implementation problems with 


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this requirement. We believe that it is 

important that educators understand 

that children with disabilities must have 

access to the same range of programs 

and services that a public agency 

provides to nondisabled children and 

that the regulation conveys this point. 

We also do not believe it is necessary to 

replace the term ‘‘vocational education’’

with the language recommended by the 

commenter. The term is broad in its 

meaning and generally accepted and 

understood in the field and, therefore, 

would encompass such areas as ‘‘careertechnical’’ and ‘‘technical education.’’

Changes: None. 

Comment: Several commenters 

requested that the regulations explicitly 

state that a child with a disability who 

has not yet received a regular high 

school diploma or ‘‘aged out’’ of special 

education may participate in dual 

enrollment programs and receive 

services in a postsecondary or 

community-based setting if the IEP 

Team decides it is appropriate. 

Discussion: Section 300.110, 

consistent with section 612(a)(2) of the 

Act, requires States to ensure that public 

agencies take steps to ensure that 

children with disabilities have access to 

the same program options that are 

available to nondisabled children in the 

area served by the agency. This would 

apply to dual enrollment programs in 

post-secondary or community-based 

settings. Therefore, a State would be 

responsible for ensuring that a public 

agency that offered dual enrollment 

programs in post-secondary or 

community-based settings to a 

nondisabled student would have that 

option available to a student with 

disabilities whose IEP Team determined 

that such a program would best meet the 

student’s needs. However, we do not 

believe that the Act requires public 

agencies to provide dual enrollment 

programs in post-secondary or 

community-based settings for students 

with disabilities, if such programs are 

not available to nondisabled secondary 

school students. Therefore, we are not 

modifying the regulations. 

Changes: None. 

Child Find (§ 300.111) 

Comment: Several commenters 

expressed confusion about the child 

find requirements in § 300.111 and the 

parental consent requirements in 

§ 300.300, and requested clarification on 

whether child find applies to private 

school children and whether LEAs may 

use the consent override procedures for 

children with disabilities enrolled in 

private schools. Two commenters 

requested that § 300.111(a)(1)(i) specify 

that child find does not apply to private 

school children whose parents refuse 

consent. 

Discussion: This issue is addressed in 

the Analysis of Comments and Changes 

section for subpart D in response to 

comments on § 300.300. 

Changes: None. 

Comment: One commenter 

recommended retaining current 

§ 300.125(b) to ensure that the child find 

requirements are retained for parentallyplaced private school children. 

Discussion: Current § 300.125(b) was 

removed from these regulations because, 

under the Act, States are no longer 

required to have State policies and 

procedures on file with the Secretary. 

Furthermore, the Department believes 

the requirements in §§ 300.111 and 

300.131 adequately ensure that 

parentally-placed private school 

children are considered in the child find 

process. 

Changes: None. 

Comment: One commenter requested 

a definition of the term ‘‘private 

school,’’ as used in § 300.111. 

Discussion: The term ‘‘private school’’

as used in § 300.111 means a private 

elementary school or secondary school, 

including a religious school. The terms 

elementary school and secondary school 

are defined in subpart A of these 

regulations. The term private is defined 

in 34 CFR Part 77, which applies to this 

program, and we see no need to include 

those definitions here. 

Changes: None. 

Comment: One commenter requested 

that the child find requirements in 

§ 300.111(c)(2) include homeless 

children. 

Discussion: Homeless children are 

already included in the child find 

requirements. Section 300.111(a)(1)(i) 

clarifies that the State must have 

policies and procedures to ensure that 

children with disabilities who are 

homeless and who are in need of special 

education and related services, are 

identified, located, and evaluated. No 

further clarification is needed. 

Changes: None. 

Comment: A few commenters 

recommended including in § 300.111 

the requirements in current § 300.125(c), 

regarding child find for children from 

birth through age two when the SEA 

and lead agency for the Part C program 

are different. The commenters stated 

that this will ensure that children with 

disabilities from birth through age two 

are eligible to participate in child find 

activities when the Part C lead agency 

is not the SEA. 

Discussion: The Department does not 

believe it is necessary to retain the 

language in current § 300.125(c). The 

child find requirements in § 300.111 

have traditionally been interpreted to 

mean identifying and evaluating 

children beginning at birth. While child 

find under Part C of the Act overlaps, in 

part, with child find under Part B of the 

Act, the coordination of child find 

activities under Part B and Part C is an 

implementation matter that is best left 

to each State. Nothing in the Act or 

these regulations prohibits a Part C lead 

agency’s participation, with the 

agreement of the SEA, in the actual 

implementation of child find activities 

for infants and toddlers with 

disabilities. 

Changes: None. 

Comment: One commenter 

recommended removing § 300.111(c) 

because child find for children with 

developmental delays, older children 

progressing from grade to grade, and 

highly mobile children is not 

specifically required by the Act. 

Discussion: The changes requested by 

the commenter cannot be made because 

they are inconsistent with the Act. 

Section 300.111(a)(1)(i), consistent with 

section 612(a)(3)(A) of the Act, 

explicitly requires that all children with 

disabilities residing in the State are 

identified, located, and evaluated. This 

includes children suspected of having 

developmental delays, as defined in 

section 602(3)(B) of the Act. We 

recognize that it is difficult to locate, 

identify, and evaluate highly mobile and 

migrant children with disabilities. 

However, we strongly believe it is 

important to stress in these regulations 

that the States’ child find 

responsibilities in § 300.111 apply 

equally to such children. We also 

believe it is important to clarify that a 

child suspected of having a disability 

but who has not failed, is making 

academic progress, and is passing from 

grade to grade must be considered in the 

child find process as any other child 

suspected of having a disability. As 

noted earlier in the discussion regarding 

§ 300.101, paragraph (c)(1) of § 300.111 

has been revised to clarify that children 

do not have to fail or be retained in a 

course or grade in order to be 

considered for special education and 

related services. 

Changes: None. 

Comment: One commenter requested 

that § 300.111 explicitly require that 

children in residential facilities be 

included in the public agency’s child 

find process. 

Discussion: We believe § 300.111(a), 

consistent with section 612(a)(3)(A) of 

the Act, clarifies that the State must 

ensure that all children with disabilities 

residing in the State are identified, 

located, and evaluated. This would 


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include children in residential facilities. 

No further clarification is necessary. 

Changes: None. 

Individualized Education Programs 

(IEP) (§ 300.112) 

Comment: One commenter objected to 

including the reference to 

§ 300.300(b)(3)(ii) in § 300.112, stating 

that it is not necessary to ensure 

compliance with the requirement for an 

IEP or IFSP to be developed, reviewed, 

and revised for each child with a 

disability. 

Discussion: Section 300.300(b)(3)(ii) 

states that if a parent refuses to consent 

to the initial provision of special 

education and related services, or the 

parent fails to respond to a request to 

provide consent for the initial provision 

of special education and related 

services, the public agency is not 

required to convene an IEP meeting or 

develop an IEP for the child. It is 

necessary to include this reference in 

§ 300.112 to clarify the circumstances 

under which a public agency is not 

required to develop an IEP for an 

eligible child with a disability. 

Changes: None. 

Routine Checking of Hearing Aids and 

External Components of Surgically 

Implanted Medical Devices (§ 300.113) 

Comment: None. 

Discussion: New § 300.113 is 

addressed in the Analysis of Comments 

and Changes section for subpart A in 

response to comments on § 300.34(b). 

Changes: We have added new 

§ 300.113 to cover the routine checking 

of hearing aids and external components 

of surgically implanted medical devices. 

The requirement for the routine 

checking of hearing aids has been 

removed from proposed § 300.105 and 

included in new § 300.113(a). The 

requirement for routine checking of an 

external component of a surgically 

implanted medical device has been 

added as new § 300.113(b). The 

requirements for assistive technology 

devices and services remain in 

§ 300.105 and the heading has been 

changed to reflect this change. We have 

also included a reference to new 

§ 300.113(b) in new § 300.34(b)(2). 

Least Restrictive Environment (LRE) 

LRE Requirements (§ 300.114) 

Comment: One commenter 

recommended including language in the 

regulations that respects and safeguards 

parental involvement and protects the 

rights of children with disabilities to be 

educated in the least restrictive 

environment (LRE). 

Discussion: We believe that the LRE 

requirements in §§ 300.114 through 

300.120 address the rights of children 

with disabilities to be educated in the 

LRE, as well as safeguard parental 

rights. Section 300.114, consistent with 

section 612(a)(5) of the Act, requires 

each public agency to ensure that, to the 

maximum extent appropriate, children 

with disabilities are educated with 

children who are not disabled. Further, 

§ 300.116 ensures that a child’s parent is 

included in the group of persons making 

the decision about the child’s 

placement. 

Changes: None. 

Comment: A number of comments 

were received regarding 

§ 300.114(a)(2)(ii), which requires each 

public agency to ensure that the removal 

of children with disabilities from the 

regular educational environment occurs 

only when the nature or severity of the 

disability is such that the education in 

regular classes with the use of 

supplementary aids and services cannot 

be achieved satisfactorily. Many 

commenters recommended replacing 

‘‘regular educational environment’’ with 

‘‘regular classroom’’ because ‘‘regular 

classroom’’ is less likely to be 

misinterpreted to mean any kind of 

contact with children without 

disabilities. A few commenters 

expressed concern that using the phrase 

‘‘regular educational environment’’

weakens the LRE protections. Another 

commenter recommended the 

regulations clarify that the ‘‘regular 

educational environment’’ means the 

participation of children with 

disabilities with their nondisabled peers 

in regular classrooms and other 

educational settings including 

nonacademic settings. 

Discussion: Section 300.114(a)(2)(ii) 

follows the specific language in section 

612(a)(5)(A) of the Act and reflects 

previous regulatory language. This 

requirement is longstanding. We do not 

believe the language should be revised, 

as recommended by the commenters, 

because ‘‘regular educational 

environment’’ encompasses regular 

classrooms and other settings in schools 

such as lunchrooms and playgrounds in 

which children without disabilities 

participate. 

Changes: None. 

Comment: One commenter requested 

revising § 300.114(a)(2) to require a 

public agency to document and justify 

placements of children with disabilities 

in environments outside the general 

education classroom. 

Discussion: The additional language 

requested by the commenter is not 

necessary and would impose 

unwarranted paperwork burdens on 

schools. Section 300.320(a)(5), 

consistent with section 

614(d)(1)(A)(i)(V) of the Act, already 

requires a child’s IEP to include an 

explanation of the extent, if any, to 

which the child will not participate 

with nondisabled children in the regular 

class. As noted previously, parents are 

a part of the group making placement 

decisions. We believe these provisions 

provide sufficient safeguards on the 

placement process. 

Changes: None. 

Comment: One commenter stated that 

the LRE requirements are often 

misinterpreted to be a mandate to 

include all children who are deaf or 

hard of hearing in their local schools. 

The commenter stated that the 

placement decision for a child who is 

deaf or hard of hearing should be based 

on the child’s communication needs 

and must be the environment that 

presents the fewest language and 

communication barriers to the child’s 

cognitive, social, and emotional 

development. Some commenters 

cautioned that inclusive settings might 

be inappropriate for a child who is deaf 

and who requires communication 

support and stated that the LRE should 

be the place where a child can be 

educated successfully. A few 

commenters requested the regulations 

clarify that all placement options must 

remain available for children who are 

deaf. 

One commenter recommended 

strengthening the requirement for a 

continuum of alternative placements 

and stated that a full range of placement 

options is necessary to meet the needs 

of all children with visual impairments. 

Another commenter urged the 

Department to ensure that children with 

low-incidence disabilities (including 

children who are deaf, hard of hearing, 

or deaf-blind) have access to appropriate 

educational programming and services 

at all times, including center-based 

schools, which may be the most 

appropriate setting for children with 

low-incidence disabilities. 

Discussion: The LRE requirements in 

§§ 300.114 through 300.117 express a 

strong preference, not a mandate, for 

educating children with disabilities in 

regular classes alongside their peers 

without disabilities. Section 

300.114(a)(2), consistent with section 

612(a)(5)(A) of the Act, requires that, to 

the maximum extent appropriate, 

children with disabilities are educated 

with children who are not disabled, and 

that special classes, separate schooling, 

or other removal of children with 

disabilities from the regular educational 

environment occurs only when the 

nature or severity of the disability is 

such that education in regular classes 

with the use of supplementary aids and 


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services cannot be achieved 

satisfactorily. 

With respect to the recommendation 

that the placement for children who are 

deaf or hard of hearing be based on the 

child’s communication needs, 

§ 300.324(a)(2)(iv), consistent with 

section 614(d)(3)(B)(iv) of the Act, 

clarifies that the IEP Team, in 

developing the IEP for a child who is 

deaf or hard of hearing, must consider 

the child’s language and communication 

needs, opportunities for direct 

communication with peers and 

professional personnel in the child’s 

language and communication mode, and 

the child’s academic level and full range 

of needs, including opportunities for 

direct instruction in the child’s language 

and communication mode. 

With respect to strengthening the 

continuum of alternative placement 

requirements, nothing in the LRE 

requirements would prevent an IEP 

Team from making a determination that 

placement in the local school is not 

appropriate for a particular child. 

Section 300.115 already requires each 

public agency to ensure that a 

continuum of alternative placements is 

available to meet the needs of children 

with disabilities for special education 

and related services. We believe this 

adequately addresses the commenter’s 

concern. 

The process for determining the 

educational placement for children with 

low-incidence disabilities (including 

children who are deaf, hard of hearing, 

or deaf-blind) is the same process used 

for determining the educational 

placement for all children with 

disabilities. That is, each child’s 

educational placement must be 

determined on an individual case-bycase basis depending on each child’s 

unique educational needs and 

circumstances, rather than by the child’s 

category of disability, and must be based 

on the child’s IEP. We believe the LRE 

provisions are sufficient to ensure that 

public agencies provide low-incidence 

children with disabilities access to 

appropriate educational programming 

and services in the educational setting 

appropriate to meet the needs of the 

child in the LRE. 

Changes: None. 

Comment: One commenter requested 

that the regulations clarify that children 

with disabilities who are suspended or 

expelled from school are entitled to be 

educated with children who are not 

disabled. The commenter stated that 

this clarification is necessary to reduce 

the use of home instruction as a 

placement option for these children. 

Discussion: The Act does not require 

that children with disabilities 

suspended or expelled for disciplinary 

reasons continue to be educated with 

children who are not disabled during 

the period of their removal. We believe 

it is important to ensure that children 

with disabilities who are suspended or 

expelled from school receive 

appropriate services, while preserving 

the flexibility of school personnel to 

remove a child from school, when 

necessary, and to determine how best to 

address the child’s needs during periods 

of removal and where services are to be 

provided to the child during such 

periods of removals, including, if 

appropriate, home instruction. Sections 

300.530 through 300.536 address the 

options available to school authorities 

in disciplining children with disabilities 

and set forth procedures that must be 

followed when taking disciplinary 

actions and in making decisions 

regarding the educational services that a 

child will receive and the location in 

which services will be provided. We 

believe including the language 

recommended by the commenter would 

adversely restrict the options available 

to school personnel for disciplining 

children with disabilities and 

inadvertently tie the hands of school 

personnel in responding quickly and 

effectively to serious child behaviors 

and in creating safe classrooms for all 

children. 

Changes: None. 

Additional Requirement—State Funding 

Mechanism (§ 300.114(b)) 

Comment: One commenter stated that 

§ 300.114(b) does not adequately 

address the requirements for funding 

mechanisms relative to the LRE 

requirements and requested that note 89 

of the Conf. Rpt. be included in the 

regulations. 

Discussion: Section 300.114(b) 

incorporates the language from section 

612(a)(5)(B) of the Act and prohibits 

States from maintaining funding 

mechanisms that violate the LRE 

provisions. We do not believe it is 

necessary to provide additional 

clarification in the regulations. While 

we agree with the commenter that note 

89 of the Conf. Rpt. makes clear 

Congress’ intent that State funding 

mechanisms support the LRE 

requirements and do not provide an 

incentive or disincentive for certain 

placement decisions, we believe the 

requirements in § 300.114(b) accurately 

capture the essence of the Conf. Rpt. 

and including additional language in 

this paragraph is not needed. 

Changes: None. 

Comment: One commenter urged the 

Department to impose financial 

sanctions on States that continue to base 

their funding on certain placement 

decisions. A few commenters suggested 

changing the requirement in 

§ 300.114(b)(2) for States to provide an 

assurance that the State will revise its 

funding mechanism ‘‘as soon as 

feasible’’ to ‘‘no later than the start of 

the 2006–2007 school year.’’

Discussion: Section 300.114(b)(2) 

incorporates the language in section 

612(a)(5)(B)(ii) of the Act, and requires 

that if a State does not have policies and 

procedures to ensure that the State’s 

funding mechanism does not violate the 

LRE requirements, the State must 

provide the Secretary an assurance that 

the State will revise its funding 

mechanism as soon as feasible. We do 

not believe it is necessary to include in 

these regulations a specific timeline for 

a State to revise its funding mechanism, 

if required to do so pursuant to 

300.114(b)(2). We believe the statutory 

language ‘‘as soon as feasible,’’ while 

providing flexibility as to how each 

State meets the requirement, is 

sufficient to ensure States’ compliance 

with this requirement. 

Further, we believe the enforcement 

options in § 300.604 give the Secretary 

sufficient means to address a State’s 

noncompliance with the requirements 

in § 300.114(b)(2). Section 300.604 

describes the enforcement options 

available to the Secretary if the 

Secretary determines that a State needs 

assistance or intervention implementing 

the requirements of Part B of the Act, or 

that there is a substantial failure to 

comply with any condition of an SEA’s 

or LEA’s eligibility under Part B of the 

Act. Enforcement options available to 

the Secretary include, among others, 

recovery of funds or withholding, in 

whole or in part, any further payments 

to the State under Part B of the Act. 

Changes: None. 

Continuum of Alternative Placements 

(§ 300.115) 

Comment: One commenter 

recommended revising § 300.115 so that 

only the specific allowable alternative 

settings listed in the definition of 

special education in new § 300.39 

(proposed § 300.38) (i.e., classroom, 

home, hospitals, institutions) are 

permitted. 

Discussion: Section 300.115 requires 

each public agency to ensure that a 

continuum of alternative placements 

(including instruction in regular classes, 

special classes, special schools, home 

instruction, and instruction in hospitals 

and institutions) is available to meet the 

needs of children with disabilities for 

special education and related services. 

The list of placement options in this 

section only expands the settings 


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mentioned in new § 300.39 (proposed 

§ 300.38) by recognizing the various 

types of classrooms and settings for 

classrooms in which special education 

is provided. This continuum of 

alternative placements is intended to 

ensure that a child with a disability is 

served in a setting where the child can 

be educated successfully in the LRE. 

Changes: None. 

Comment: One commenter suggested 

adding language to the regulations to 

clarify that difficulty recruiting and 

hiring qualified special education 

teachers does not relieve an LEA of its 

obligation to ensure a continuum of 

alternative placements and to offer a full 

range of services to meet the needs of 

children with disabilities. 

Discussion: We do not believe it is 

necessary to include the language 

suggested by the commenter, because 

§ 300.116 is sufficiently clear that 

placement decisions must be based on 

the individual needs of each child with 

a disability. Public agencies, therefore, 

must not make placement decisions 

based on a public agency’s needs or 

available resources, including budgetary 

considerations and the ability of the 

public agency to hire and recruit 

qualified staff. 

Changes: None. 

Comment: A few commenters 

recommended revising § 300.115(a) to 

clarify that the continuum of alternative 

placements must be available to eligible 

preschool children with disabilities. 

Discussion: It is not necessary to 

revise § 300.115(a) in the manner 

suggested by the commenters. Section 

300.116 clearly states that the 

requirements for determining the 

educational placement of a child with a 

disability include preschool children 

with disabilities and that such decisions 

must be made in conformity with the 

LRE provisions in §§ 300.114 through 

300.118. This includes ensuring that a 

continuum of services is available to 

meet the needs of children with 

disabilities for special education and 

related services. 

Changes: None. 

Placements (§ 300.116) 

Comment: One commenter 

recommended the regulations clarify 

that the regular class must always be 

considered the first placement option. 

Discussion: We do not believe it is 

necessary to include the clarification 

recommended by the commenter. 

Section 300.116 clarifies that placement 

decisions must be made in conformity 

with the LRE provisions, and 

§ 300.114(a)(2) already requires that 

special classes, separate schooling or 

other removal of children with 

disabilities from the regular education 

environment only occurs if the nature or 

severity of the disability is such that 

education in regular classes with the use 

of supplementary aids and services 

cannot be achieved satisfactorily. 

Changes: None. 

Comment: A few commenters 

recommended revising § 300.116 to 

require that children with disabilities 

have access to, and make progress in, 

the general curriculum, and that 

children receive the special education 

and related services included in their 

IEPs. 

Discussion: The issues raised by the 

commenters are already addressed 

elsewhere in the regulations. The IEP 

requirements in § 300.320(a), consistent 

with section 614(d) of the Act, clarify 

that children with disabilities must be 

provided special education and related 

services and needed supplementary aids 

and services to enable them to be 

involved in and make progress in the 

general curriculum. In addition, 

§ 300.323(c)(2) requires that, as soon as 

possible following the development of 

an IEP, special education and related 

services are made available to the child 

in accordance with the child’s IEP. We 

believe that these regulations adequately 

address the commenters’ concerns, and 

that no further clarification is necessary. 

Changes: None. 

Comment: One commenter stated that 

the placement requirements in § 300.116 

encourage school districts to assign a 

child with a disability to a particular 

place or setting, rather than providing a 

continuum of increasingly 

individualized and intensive services. 

The commenter suggested requiring that 

the continuum of alternative placements 

include a progressively more intensive 

level of individualized, scientifically 

based instruction and related services, 

both with increased time and lower 

pupil-teacher ratio, in addition to 

regular instruction with supplementary 

aids and services. 

Discussion: The overriding rule in 

§ 300.116 is that placement decisions for 

all children with disabilities must be 

made on an individual basis and ensure 

that each child with a disability is 

educated in the school the child would 

attend if not disabled unless the child’s 

IEP requires some other arrangement. 

However, the Act does not require that 

every child with a disability be placed 

in the regular classroom regardless of 

individual abilities and needs. This 

recognition that regular class placement 

may not be appropriate for every child 

with a disability is reflected in the 

requirement that LEAs make available a 

range of placement options, known as a 

continuum of alternative placements, to 

meet the unique educational needs of 

children with disabilities. This 

requirement for the continuum 

reinforces the importance of the 

individualized inquiry, not a ‘‘one size 

fits all’’ approach, in determining what 

placement is the LRE for each child 

with a disability. The options on this 

continuum must include the alternative 

placements listed in the definition of 

special education under § 300.38 

(instruction in regular classes, special 

classes, special schools, home 

instruction, and instruction in hospitals 

and institutions). These options must be 

available to the extent necessary to 

implement the IEP of each child with a 

disability. The group determining the 

placement must select the placement 

option on the continuum in which it 

determines that the child’s IEP can be 

implemented in the LRE. Any 

alternative placement selected for the 

child outside of the regular educational 

environment must include appropriate 

opportunities for the child to interact 

with nondisabled peers, to the extent 

appropriate to the needs of the children, 

consistent with § 300.114(a)(2)(i). 

Because placement decisions must be 

determined on an individual case-bycase basis depending on each child’s 

unique educational needs and 

circumstances and based on the child’s 

IEP, we do not believe it is appropriate 

to require in the regulations that the 

continuum of alternative placements 

include a progressively more intensive 

level of individualized scientifically 

based instruction and related services as 

suggested by the commenter. 

Changes: None. 

Comment: We received a number of 

comments regarding the phrase, ‘‘unless 

the parent agrees otherwise’’ in 

proposed § 300.116(b)(3) and (c). As 

proposed, § 300.116(b)(3) requires the 

child’s placement to be as close as 

possible to the child’s home, ‘‘unless the 

parent agrees otherwise;’’ and 

§ 300.116(c) requires that, unless the 

child’s IEP requires some other 

arrangement, the child must be 

educated in the school that he or she 

would attend if nondisabled, ‘‘unless 

the parent agrees otherwise.’’ Many 

commenters requested removing the 

phrase ‘‘unless the parent agrees 

otherwise,’’ because it is not included in 

section 612(a)(5) of the Act and is not 

necessary to clarify that a parent may 

place his or her child in a charter, 

magnet, or other specialized school 

without violating the LRE requirements. 

Other commenters suggested removing 

the phrase and clarifying that a decision 

by the child’s parent to send the child 

to a charter, magnet, or other specialized 


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school is not a violation of the LRE 

requirements. 

Several commenters stated that 

including the phrase undermines the 

statutory requirement for children with 

disabilities to be placed in the LRE 

based on their IEPs and allows more 

restrictive placements based on parental 

choice. Many commenters interpreted 

this phrase to mean that placement is a 

matter of parental choice even in public 

school settings and stated that a child’s 

LRE rights should not be overridden by 

parental choice. One commenter stated 

that the phrase might intimidate parents 

into accepting inappropriate 

placements. 

A few commenters stated that this 

phrase is unnecessary because the Act 

already requires parents to be involved 

in placement decisions, and expressed 

concern that including this phrase in 

the regulations could lead to confusion 

and litigation. One commenter stated 

that the phrase suggests that additional 

consent is required if the parent chooses 

to send the child to a charter, magnet, 

or other specialized school. 

Discussion: The phrase ‘‘unless the 

parent agrees otherwise’’ in proposed 

§ 300.116(b)(3) and (c) was added to 

clarify that a parent may send the child 

to a charter, magnet, or other specialized 

school without violating the LRE 

mandate. A parent has always had this 

option; a parent who chooses this 

option for the child does not violate the 

LRE mandate as long as the child is 

educated with his or her peers without 

disabilities to the maximum extent 

appropriate. However, we agree that this 

phrase is unnecessary, confusing, and 

may be misunderstood to mean that 

parents have a right to veto the 

placement decision made by the group 

of individuals in § 300.116(a)(1). We 

will, therefore, remove the phrase. 

Changes: We have removed the 

phrase ‘‘unless the parent agrees 

otherwise’’ in § 300.116(b)(3) and (c). 

Comment: One commenter disagreed 

with the requirement in § 300.116(b)(3) 

that placements be as close as possible 

to the child’s home, stating that the 

requirement is administratively 

prohibitive and beyond the scope of the 

Act. The commenter stated that it is not 

possible for school districts to provide 

classes for children with all types and 

degrees of disabilities in each school 

building. The commenter stated that 

‘‘placement’’ should be understood as 

the set of services outlined in a child’s 

IEP, and recommended that school 

districts be permitted to provide these 

services in the school building that is 

most administratively feasible. 

Discussion: We do not believe the 

requirement imposes unduly restrictive 

administrative requirements. The 

Department has consistently maintained 

that a child with a disability should be 

educated in a school as close to the 

child’s home as possible, unless the 

services identified in the child’s IEP 

require a different location. Even though 

the Act does not mandate that a child 

with a disability be educated in the 

school he or she would normally attend 

if not disabled, section 612(a)(5)(A) of 

the Act presumes that the first 

placement option considered for each 

child with a disability is the regular 

classroom in the school that the child 

would attend if not disabled, with 

appropriate supplementary aids and 

services to facilitate such placement. 

Thus, before a child with a disability 

can be placed outside of the regular 

educational environment, the full range 

of supplementary aids and services that 

could be provided to facilitate the 

child’s placement in the regular 

classroom setting must be considered. 

Following that consideration, if a 

determination is made that a particular 

child with a disability cannot be 

educated satisfactorily in the regular 

educational environment, even with the 

provision of appropriate supplementary 

aids and services, that child could be 

placed in a setting other than the regular 

classroom. 

Although the Act does not require 

that each school building in an LEA be 

able to provide all the special education 

and related services for all types and 

severities of disabilities, the LEA has an 

obligation to make available a full 

continuum of alternative placement 

options that maximize opportunities for 

its children with disabilities to be 

educated with nondisabled peers to the 

extent appropriate. In all cases, 

placement decisions must be 

individually determined on the basis of 

each child’s abilities and needs and 

each child’s IEP, and not solely on 

factors such as category of disability, 

severity of disability, availability of 

special education and related services, 

configuration of the service delivery 

system, availability of space, or 

administrative convenience. 

Changes: None. 

Comment: One commenter requested 

clarifying the difference, if any, between 

‘‘placement’’ and ‘‘location.’’ One 

commenter recommended requiring the 

child’s IEP to include a detailed 

explanation of why a child’s 

educational needs cannot be met in the 

location requested by the parent when 

the school district opposes the parent’s 

request for services to be provided to the 

child in the school that the child would 

attend if the child did not have a 

disability. 

Discussion: Historically, we have 

referred to ‘‘placement’’ as points along 

the continuum of placement options 

available for a child with a disability, 

and ‘‘location’’ as the physical 

surrounding, such as the classroom, in 

which a child with a disability receives 

special education and related services. 

Public agencies are strongly encouraged 

to place a child with a disability in the 

school and classroom the child would 

attend if the child did not have a 

disability. However, a public agency 

may have two or more equally 

appropriate locations that meet the 

child’s special education and related 

services needs and school 

administrators should have the 

flexibility to assign the child to a 

particular school or classroom, provided 

that determination is consistent with the 

decision of the group determining 

placement. It also should be noted that, 

under section 615(b)(3) of the Act, a 

parent must be given written prior 

notice that meets the requirements of 

§ 300.503 a reasonable time before a 

public agency implements a proposal or 

refusal to initiate or change the 

identification, evaluation, or 

educational placement of the child, or 

the provision of FAPE to the child. 

Consistent with this notice requirement, 

parents of children with disabilities 

must be informed that the public agency 

is required to have a full continuum of 

placement options, as well as about the 

placement options that were actually 

considered and the reasons why those 

options were rejected. While public 

agencies have an obligation under the 

Act to notify parents regarding 

placement decisions, there is nothing in 

the Act that requires a detailed 

explanation in children’s IEPs of why 

their educational needs or educational 

placements cannot be met in the 

location the parents’ request. We believe 

including such a provision would be 

overly burdensome for school 

administrators and diminish their 

flexibility to appropriately assign a 

child to a particular school or 

classroom, provided that the assignment 

is made consistent with the child’s IEP 

and the decision of the group 

determining placement. 

Changes: None. 

Comment: One commenter 

recommended including in the 

regulations the Department’s policy that 

a child’s placement in an educational 

program that is substantially and 

materially similar to the former 

placement is not a change in placement. 

Discussion: As stated by the 

commenter, it is the Department’s 

longstanding position that maintaining a 

child’s placement in an educational 


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program that is substantially and 

materially similar to the former 

placement is not a change in placement. 

We do not believe further clarification is 

necessary in the regulations, however, 

as the distinction seems to be commonly 

accepted and understood. 

Changes: None. 

Comment: Many commenters 

suggested requiring a public agency to 

pay all costs associated with providing 

FAPE for a child in a private preschool, 

including paying for tuition, 

transportation and such special 

education, related services and 

supplementary aids and services as the 

child needs, if an inclusive preschool is 

the appropriate placement for a child, 

and there is no inclusive public 

preschool that can provide all the 

appropriate services and supports. 

Discussion: The LRE requirements in 

§§ 300.114 through 300.118 apply to all 

children with disabilities, including 

preschool children who are entitled to 

FAPE. Public agencies that do not 

operate programs for preschool children 

without disabilities are not required to 

initiate those programs solely to satisfy 

the LRE requirements of the Act. Public 

agencies that do not have an inclusive 

public preschool that can provide all the 

appropriate services and supports must 

explore alternative methods to ensure 

that the LRE requirements are met. 

Examples of such alternative methods 

might include placement options in 

private preschool programs or other 

community-based settings. Paying for 

the placement of qualified preschool 

children with disabilities in a private 

preschool with children without 

disabilities is one, but not the only, 

option available to public agencies to 

meet the LRE requirements. We believe 

the regulations should allow public 

agencies to choose an appropriate 

option to meet the LRE requirements. 

However, if a public agency determines 

that placement in a private preschool 

program is necessary as a means of 

providing special education and related 

services to a child with a disability, the 

program must be at no cost to the parent 

of the child. 

Changes: None. 

Comment: One commenter suggested 

clarifying that if a child’s behavior in 

the regular classroom significantly 

impairs the learning of the child or 

others, that placement would not meet 

the child’s needs and would not be 

appropriate for that child. 

Discussion: Although the Act places a 

strong preference in favor of educating 

children with disabilities in the regular 

classroom with appropriate aids and 

supports, a regular classroom placement 

is not appropriate for every child with 

a disability. Placement decisions are 

made on a case-by-case basis and must 

be appropriate for the needs of the 

child. The courts have generally 

concluded that, if a child with a 

disability has behavioral problems that 

are so disruptive in a regular classroom 

that the education of other children is 

significantly impaired, the needs of the 

child with a disability generally cannot 

be met in that environment. However, 

before making such a determination, 

LEAs must ensure that consideration 

has been given to the full range of 

supplementary aids and services that 

could be provided to the child in the 

regular educational environment to 

accommodate the unique needs of the 

child with a disability. If the group 

making the placement decision 

determines, that even with the provision 

of supplementary aids and services, the 

child’s IEP could not be implemented 

satisfactorily in the regular educational 

environment, that placement would not 

be the LRE placement for that child at 

that particular time, because her or his 

unique educational needs could not be 

met in that setting. (See Roncker v. 

Walter, 700 F. 2d 1058 (6th Cir. 1983); 

Devries v. Fairfax County School Bd., 

882 F. 2d 876, 879 (4th Cir. 1989); 

Daniel R.R. v. State Bd. of Educ., 874 F. 

2d 1036 (5th Cir. 1989); and A.W. v. 

Northwest R–1 School Dist., 813 F.2d 

158, 163 (8th Cir. 1987).) 

Changes: None. 

Nonacademic Settings (§ 300.117) 

Comment: One commenter requested 

that the regulations clarify that children 

with disabilities should receive the 

supplementary aids and services 

necessary to ensure their participation 

in nonacademic and extracurricular 

services and activities. 

Discussion: Section 300.117, 

consistent with section 612(a)(5) of the 

Act, requires that children with 

disabilities participate in nonacademic 

and extracurricular services and 

activities with their nondisabled peers 

to the maximum extent appropriate to 

the needs of the child. The Act places 

great emphasis on ensuring that 

children with disabilities are educated, 

to the maximum extent appropriate, 

with children who are nondisabled and 

are included in nonacademic and 

extracurricular services and activities as 

appropriate to the needs of the child. 

We believe the public agency has an 

obligation to provide a child with a 

disability with appropriate aids, 

services, and other supports, as 

determined by the IEP Team, if 

necessary to ensure the child’s 

participation in nonacademic and 

extracurricular services and activities. 

Therefore, we will clarify in § 300.117 

that each public agency must ensure 

that children with disabilities have the 

supplementary aids and services 

determined necessary by the child’s IEP 

Team for the child to participate in 

nonacademic and extracurricular 

services and activities to the maximum 

extent appropriate to the needs of that 

child. 

Changes: We have added language to 

§ 300.117 to ensure that children with 

disabilities receive the supplementary 

aids and services needed to participate 

in nonacademic and extracurricular 

services and activities. 

Technical Assistance and Training 

Activities (§ 300.119) 

Comment: One commenter requested 

that the regulations define ‘‘training.’’

Discussion: The Department intends 

the term ‘‘training,’’ as used in 

§ 300.119, to have its generally accepted 

meaning. Training is generally agreed to 

be any activity used to enhance one’s 

skill or knowledge to acquire, maintain, 

and advance knowledge, skills, and 

abilities. Given the general 

understanding of the term ‘‘training,’’

we do not believe it is necessary to 

regulate on this matter. 

Changes: None. 

Children in Private Schools 

Children With Disabilities Enrolled by 

Their Parents in Private Schools 

General Comments 

Comment: Many comments were 

received regarding the parentally-placed 

private school children with disabilities 

requirements in §§ 300.130 through 

300.144. Many commenters supported 

the changes to the regulations and 

believed the regulations simplify the 

processes for both private schools and 

public schools. Numerous commenters, 

however, expressed concern regarding 

the implementation of the private 

school requirements. 

Many of the commenters expressed 

concern with the requirement that the 

LEAs where private elementary schools 

and secondary schools are located are 

now responsible for child find, 

individual evaluations, and the 

provision of services for children with 

disabilities enrolled by their parents in 

private schools located in the LEA. 

These commenters described the private 

school provisions in the Act and the 

NPRM as burdensome and difficult to 

understand. 

Discussion: The revisions to the Act 

in 2004 significantly changed the 

obligation of States and LEAs to 

children with disabilities enrolled by 

their parents in private elementary 


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schools and secondary schools. Section 

612(a)(10)(A) of the Act now requires 

LEAs in which the private schools are 

located, rather than the LEAs in which 

the parents of such children reside, to 

conduct child find and provide 

equitable services to parentally-placed 

private school children with disabilities. 

The Act provides that, in calculating 

the proportionate amount of Federal 

funds under Part B of the Act that must 

be spent on parentally-placed private 

school children with disabilities, the 

LEAs where the private schools are 

located, after timely and meaningful 

consultation with representatives of 

private elementary schools and 

secondary schools and representatives 

of parents of parentally-placed private 

school children with disabilities, must 

conduct a thorough and complete child 

find process to determine the number of 

parentally-placed children with 

disabilities attending private elementary 

schools and secondary schools located 

in the LEAs. In addition, the obligation 

of the LEA to spend a proportionate 

amount of funds to provide services to 

children with disabilities enrolled by 

their parents in private schools is now 

based on the total number of children 

with disabilities who are enrolled in 

private schools located in the LEA 

whether or not the children and their 

parents reside in the LEA. 

We believe these regulations and the 

additional clarification provided in our 

responses to comments on §§ 300.130 

through 300.144 will help States and 

LEAs to better understand their 

obligations in serving children with 

disabilities placed by their parents in 

private elementary schools and 

secondary schools. In addition, the 

Department has provided additional 

guidance on implementing the 

parentally-placed private school 

requirements on the Department’s Web 

site. We also are including in these 

regulations Appendix B to Part 300—

Proportionate Share Calculation to 

assist LEAs in calculating the 

proportionate amount of Part B funds 

that they must expend on parentallyplaced private school children with 

disabilities attending private elementary 

schools and secondary schools located 

in the LEA. 

Changes: We have added a reference 

to Appendix B in § 300.133(b). 

Comment: Several commenters 

expressed concern that §§ 300.130 

through 300.144 include requirements 

that go beyond the Act and 

recommended that any requirement 

beyond what is statutory be removed 

from these regulations. 

Discussion: In general, the regulations 

track the language in section 

612(a)(10)(A) of the Act regarding 

children enrolled in private schools by 

their parents. However, we determined 

that including clarification of the 

statutory language on parentally-placed 

private school children with disabilities 

in these regulations would be helpful. 

The volume of comments received 

concerning this topic confirm the need 

to regulate in order to clarify the 

statutory language and to help ensure 

compliance with the requirements of the 

Act. 

Changes: None. 

Comment: Some commenters 

requested that the regulations provide 

flexibility to States to provide services 

to parentally-placed private school 

children with disabilities beyond what 

they would be able to do with the 

proportionate share required under the 

Act. A few of these commenters 

requested that those States already 

providing an individual entitlement to 

special education and related services or 

providing a full range of special 

education services to parentally-placed 

private school children be deemed to 

have met the requirements in §§ 300.130 

through 300.144 and be permitted to 

continue the State’s current practices. 

One commenter specifically 

recommended allowing States that 

provide additional rights or services to 

parentally-placed private school 

children with disabilities (including 

FAPE under section 612 of the Act and 

the procedural safeguards under section 

615 of the Act), the option of requesting 

that the Secretary consider alternate 

compliance with these requirements 

that would include evidence and 

supporting documentation of alternate 

procedures under State law to meet all 

the requirements in §§ 300.130 through 

300.144. 

A few commenters requested that the 

child find and equitable participation 

requirements should not apply in States 

with dual enrollment provisions where 

children with disabilities who are 

parentally-placed in private elementary 

schools or secondary schools are also 

enrolled in public schools for special 

education and have IEPs and retain their 

due process rights. 

Discussion: The Act in no way 

prohibits States or LEAs from spending 

additional State or local funds to 

provide special education or related 

services for parentally-placed private 

school children with disabilities in 

excess of those required in § 300.133 

and section 612(a)(10)(A) of the Act, 

consistent with State law or 

administrative procedures. The Act, 

however, does not provide the Secretary 

with the authority to waive, in whole or 

in part, the parentally-placed private 

school requirements in §§ 300.130 

through 300.144 for States or LEAs that 

spend State or local funds to provide 

special education or related services 

beyond those required under Part B of 

the Act. The Secretary, therefore, cannot 

consider alternative compliance with 

the parentally-placed private school 

provisions in the Act and these 

regulations or consider States and LEAs 

that use State and local funds to provide 

services to parentally-placed private 

school children with disabilities beyond 

the required proportionate share of 

Federal Part B funds, including 

providing FAPE to such children, to 

have met the statutory and regulatory 

requirements governing parentallyplaced private school children with 

disabilities. States and LEAs must meet 

the requirements in the Act and these 

regulations. 

With regard to the comment 

requesting that the child find and 

equitable participation requirements for 

parentally-placed private school 

children with disabilities not apply in 

States with dual enrollment, there is no 

exception in the Act to the child find 

and equitable participation 

requirements of section 612(a)(10)(A) for 

States that permit dual enrollment of a 

child at a parent’s discretion. Therefore, 

there is no basis to regulate to provide 

such an exception. It would be a matter 

of State or local discretion to decide 

whether to have a dual enrollment 

policy and, if established, how it would 

be implemented. Whether dual 

enrollment alters the rights of 

parentally-placed private school 

children with disabilities under State 

law is a State matter. There is nothing, 

however, in Part B of the Act that would 

prohibit a State from requiring dual 

enrollment as a condition for a 

parentally-placed private school child 

with a disability to be eligible for 

services from a public agency. As long 

as States and LEAs meet the 

requirements in §§ 300.130 through 

300.144, the local policy covering 

enrollment is a matter of State and local 

discretion. 

Changes: None. 

Comment: Several commenters 

expressed concern regarding the 

applicability of the child find and 

equitable participation requirements in 

§§ 300.130 through 300.144 for children 

with disabilities who reside in one State 

and are enrolled by their parents in 

private elementary schools or secondary 

schools located in another State. These 

commenters recommended that the 

regulations clarify whether the LEA in 

the State where the private elementary 

school or secondary school is located or 

the LEA in the State where the child 


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resides is responsible for conducting 

child find (including individual 

evaluations and reevaluations), and 

providing and paying for equitable 

services for children who are enrolled 

by their parents in private elementary 

schools or secondary schools. 

Discussion: Section 612(a)(10)(A)(i)(II) 

of the Act provides that the LEA where 

the private elementary schools and 

secondary schools are located, after 

timely and meaningful consultation 

with private school representatives, is 

responsible for conducting the child 

find process to determine the number of 

parentally-placed children with 

disabilities attending private schools 

located in the LEA. We believe this 

responsibility includes child find for 

children who reside in other States but 

who attend private elementary schools 

and secondary schools located in the 

LEA, because section 612(a)(10)(A)(i)(II) 

of the Act is clear about which LEA is 

responsible for child find and the Act 

does not provide an exception for 

children who reside in one State and 

attend private elementary schools and 

secondary schools in other States. 

Under section 612(a)(10)(A)(i) of the 

Act, the LEA where the private 

elementary schools and secondary 

schools are located, in consultation with 

private school officials and 

representatives of parents of parentallyplaced private school children with 

disabilities, also is responsible for 

determining and paying for the services 

to be provided to parentally-placed 

private school children with disabilities. 

We believe this responsibility extends to 

children from other States who are 

enrolled in a private school located in 

the LEA, because section 

612(a)(10)(A)(i) of the Act clarifies that 

the LEA where the private schools are 

located is responsible for spending a 

proportionate amount of its Federal Part 

B funds on special education and 

related services for children enrolled by 

their parents in the private schools 

located in the LEA. The Act does not 

provide an exception for out-of-State 

children with disabilities attending a 

private school located in the LEA and, 

therefore, out-of-State children with 

disabilities must be included in the 

group of parentally-placed children 

with disabilities whose needs are 

considered in determining which 

parentally-placed private school 

children with disabilities will be served 

and the types and amounts of services 

to be provided. 

Changes: We have added a new 

paragraph (f) to § 300.131 clarifying that 

each LEA where private, including 

religious, elementary schools and 

secondary schools are located must, in 

carrying out the child find requirements 

in this section, include parentallyplaced private school children who 

reside in the State other than where the 

private schools they attend are located. 

Comment: A few commenters 

recommended the regulations clarify the 

LEA’s obligation under §§ 300.130 

through 300.144 regarding child find 

and equitable participation for children 

from other countries enrolled in private 

elementary schools and secondary 

schools by their parents. 

Discussion: The obligation to consider 

children with disabilities for equitable 

services extends to all children with 

disabilities in the State who are enrolled 

by their parents in private schools 

within each LEA’s jurisdiction. 

Changes: None. 

Comment: Several commenters 

recommended the regulations clarify the 

applicability of the child find and 

equitable participation requirements in 

§§ 300.130 through 300.144 for children 

with disabilities, aged three through 

five, enrolled by their parents in private 

preschools or day care programs. Many 

commenters recommended the 

regulations clarify that preschool 

children with disabilities should be 

counted in determining the 

proportionate share of funds available to 

serve children enrolled in private 

elementary schools by their parents. 

Discussion: If a private preschool or 

day care program is considered an 

elementary school, as defined in 

§ 300.13, the child find and equitable 

services participation requirements in 

§§ 300.130 through 300.144, consistent 

with section 612(a)(10) of the Act, apply 

to children with disabilities aged three 

through five enrolled by their parents in 

such programs. Section 300.13, 

consistent with section 602(6) of the 

Act, defines an elementary school as a 

nonprofit institutional day or residential 

school, including a public elementary 

charter school, which provides 

elementary education, as determined 

under State law. We believe it is 

important to clarify in the regulations 

that children aged three through five are 

considered parentally-placed private 

school children with disabilities 

enrolled in private elementary schools 

only if they are enrolled in private 

schools that meet the definition of 

elementary school in § 300.13. 

Changes: We have added a new 

§ 300.133(a)(2)(ii) to clarify that children 

aged three through five are considered 

to be parentally-placed private school 

children with disabilities enrolled by 

their parents in private, including 

religious, elementary schools, if they are 

enrolled in a private school that meets 

the definition of elementary school in 

§ 300.13. 

Definition of Parentally-Placed Private 

School Children With Disabilities 

(§ 300.130) 

Comment: A few commenters 

recommended removing ‘‘or facilities’’

from the definition of parentally-placed 

private school children because it is not 

defined in the Act or the regulations. 

Another commenter recommended 

including a definition of ‘‘facilities.’’

Discussion: Under section 

612(a)(10)(A) of the Act, the obligation 

to conduct child find and provide 

equitable services extends to children 

who are enrolled by their parents in 

private elementary schools and 

secondary schools. This obligation also 

applies to children who have been 

enrolled by their parents in private 

facilities if those facilities are 

elementary schools or secondary 

schools, as defined in subpart A of the 

regulations. Because facilities that meet 

the definition of elementary school or 

secondary school are covered under this 

section, we believe it is important to 

retain the reference to facilities in these 

regulations. We will, however, revise 

§ 300.130 to clarify that children with 

disabilities who are enrolled by their 

parents in facilities that meet the 

definition of elementary school in 

§ 300.13 or secondary school in new 

§ 300.36 (proposed § 300.35) would be 

considered parentally-placed private 

school children with disabilities. 

Changes: Section 300.130 has been 

revised to clarify that parentally-placed 

private school children with disabilities 

means children with disabilities 

enrolled by their parents in private, 

including religious, schools or facilities 

that meet the definition of an 

elementary school in § 300.13 or 

secondary school in § 300.36. 

Child Find for Parentally-Placed Private 

School Children With Disabilities 

(§ 300.131) 

Comment: A few commenters 

recommended permitting the LEA 

where private schools are located to 

request reimbursement from the LEA 

where the child resides for the cost of 

conducting an individual evaluation, as 

may be required under the child find 

requirements in § 300.131. 

One commenter recommended that 

the LEA where private schools are 

located be responsible for locating and 

identifying children with disabilities 

enrolled by their parents in private 

schools and the LEA where the children 

reside be responsible for conducting 

individual evaluations. 


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Discussion: Section 300.131, 

consistent with section 612(a)(10)(A)(i) 

of the Act, requires that the LEA where 

private elementary schools and 

secondary schools in which the child is 

enrolled are located, not the LEA where 

the child resides, is responsible for 

conducting child find, including an 

individual evaluation for a child with a 

disability enrolled by the child’s parent 

in a private elementary school or 

secondary school located in the LEA. 

The Act specifies that the LEA where 

the private schools are located is 

responsible for conducting both the 

child find process and the initial 

evaluation. Therefore, the LEA where 

private schools are located may not seek 

reimbursement from the LEA of 

residence for the cost of conducting the 

evaluation or to request that the LEA of 

residence conduct the evaluation. 

However, the LEA where the private 

elementary school or secondary school 

is located has options as to how it meets 

its responsibilities. For example, the 

LEA may assume the responsibility 

itself, contract with another public 

agency (including the public agency of 

residence), or make other arrangements. 

Changes: None. 

Comment: One commenter 

recommended permitting a parent who 

enrolled a child in a private elementary 

school or secondary school the option of 

not participating in child find required 

under § 300.131. 

Discussion: New § 300.300(e)(4) 

clarifies that parents who enroll their 

children in private elementary schools 

and secondary schools have the option 

of not participating in an LEA’s child 

find activities required under § 300.131. 

As noted in the Analysis of Comments 

and Changes section for subpart D, once 

parents opt out of the public schools, 

States and school districts do not have 

the same interest in requiring parents to 

agree to the evaluation of their children 

as they do for children enrolled in 

public schools, in light of the public 

agencies’ obligation to educate public 

school children with disabilities. We 

further indicate in the discussion of 

subpart D that we have added new 

§ 300.300(e)(4) (proposed § 300.300(d)) 

to clarify that if the parent of a child 

who is home schooled or placed in a 

private school by the child’s parent at 

the parent’s own expense does not 

provide consent for an initial evaluation 

or reevaluation, the public agency may 

not use the due process procedures in 

section 615 of the Act and the public 

agency is not required to consider the 

child for equitable services. 

Changes: None. 

Comment: Several commenters 

recommended permitting amounts 

expended for child find, including 

individual evaluations, to be deducted 

from the required amount of funds to be 

expended on equitable services for 

parentally-placed private school 

children with disabilities. 

Discussion: The requested changes 

would be inconsistent with the Act. 

There is a distinction under the Act 

between the obligation to conduct child 

find activities, including individual 

evaluations, for parentally-placed 

private school children with disabilities, 

and the obligation to use an amount of 

funds equal to a proportionate amount 

of the Federal Part B grant flowing to 

LEAs to provide special education and 

related services to parentally-placed 

private school children with disabilities. 

The obligation to conduct child find for 

parentally-placed private school 

children, including individual 

evaluations, is independent of the 

services provision. Further, 

§ 300.131(d), consistent with section 

612(a)(10)(A)(ii)(IV) of the Act, clarifies 

that the costs of child find activities for 

parentally-placed private school 

children, including individual 

evaluations, may not be considered in 

determining whether the LEA has spent 

an appropriate amount on providing 

special education and related services to 

parentally-placed private school 

children with disabilities. 

Changes: None. 

Comment: One commenter requested 

clarifying whether an LEA may exclude 

children suspected of having certain 

disabilities, such as those with specific 

learning disabilities, in conducting 

individual evaluations of suspected 

children with disabilities enrolled in 

private schools by their parents. 

Discussion: The LEA where the 

private elementary schools and 

secondary schools are located must 

identify and evaluate all children 

suspected of having disabilities as 

defined under section 602(3) of the Act. 

LEAs may not exclude children 

suspected of having certain disabilities, 

such as those with specific learning 

disabilities, from their child find 

activities. The Department recommends 

that LEAs and private elementary 

schools and secondary schools consult 

on how best to implement the State’s 

evaluation criteria and the requirements 

under this part for identifying children 

with specific learning disabilities 

enrolled in private schools by their 

parents. This is explained in more detail 

in the discussion of comments under 

§ 300.307. 

Changes: None. 

Comment: A few commenters 

expressed concern that parents who 

place their children in private 

elementary schools and secondary 

schools outside the district of residence, 

and who are determined by the LEA 

where the private schools are located, 

through its child find process, to be 

children with disabilities eligible for 

special education and related services, 

would have no knowledge of the special 

education and related services available 

for their children if they choose to 

attend a public school in their district 

of residence. A few commenters 

suggested clarifying the obligation of the 

LEA where the private school is located 

to provide the district of residence the 

results of an evaluation and eligibility 

determination of the parentally-placed 

private school child. 

A few commenters recommended that 

the parent of a child with a disability 

identified through the child find process 

in § 300.131 be provided with 

information regarding an appropriate 

educational program for the child. 

Discussion: The Act is silent on the 

obligation of officials of the LEA where 

private elementary schools and 

secondary schools are located to share 

personally identifiable information, 

such as individual evaluation 

information, with officials of the LEA of 

the parent’s residence. We believe that 

the LEA where the private schools are 

located has an obligation to protect the 

privacy of children placed in private 

schools by their parents. We believe that 

when a parentally-placed private school 

child is evaluated and identified as a 

child with a disability by the LEA in 

which the private school is located, 

parental consent should be required 

before such personally identifiable 

information is released to officials of the 

LEA of the parent’s residence. 

Therefore, we are adding a new 

paragraph (b)(3) to § 300.622 to make 

this clear. We explain this revision in 

more detail in the discussion of 

comments under § 300.622. 

We believe the regulations adequately 

ensure that parents of children enrolled 

in private schools by their parents, who 

are identified as children with 

disabilities through the child find 

process, receive information regarding 

an appropriate educational program for 

their children. Section 300.138(b) 

provides that each parentally-placed 

private school child with a disability 

who has been designated to receive 

equitable services must have a services 

plan that describes the specific 

education and related services that the 

LEA where the private school is located 

has determined it will make available to 

the child and the services plan must, to 

the extent appropriate, meet the IEP 

content, development, review and 

revision requirements described in 


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section 614(d) of the Act, or, when 

appropriate, for children aged three 

through five, the IFSP requirements 

described in section 636(d) of the Act as 

to the services that are to be provided. 

Furthermore, the LEA where the 

private school is located must, pursuant 

to § 300.504(a) and section 615(d) of the 

Act, provide the parent a copy of the 

procedural safeguards notice upon 

conducting the initial evaluation. 

Changes: We have added a new 

paragraph (b)(3) to § 300.622 to require 

parental consent for the disclosure of 

records of parentally-placed private 

school children between LEAs. 

Comment: A few commenters stated 

that § 300.131 does not address which 

LEA has the responsibility for 

reevaluations. 

Discussion: The LEA where the 

private schools are located is 

responsible for conducting 

reevaluations of children with 

disabilities enrolled by their parents in 

private elementary schools and 

secondary schools located within the 

LEA. Reevaluation is a part of the LEA’s 

child find responsibility for parentallyplaced private school children under 

section 612(a)(10)(A) of the Act. 

Changes: None. 

Comment: One commenter expressed 

concern that the regulations permit a 

parent to request an evaluation from the 

LEA of residence at the same time the 

child is being evaluated by the LEA 

where the private elementary school or 

secondary school is located, resulting in 

two LEAs simultaneously conducting 

evaluations of the same child. 

Discussion: We recognize that there 

could be times when parents request 

that their parentally-placed child be 

evaluated by different LEAs if the child 

is attending a private school that is not 

in the LEA in which they reside. For 

example, because most States generally 

allocate the responsibility for making 

FAPE available to the LEA in which the 

child’s parents reside, and that could be 

a different LEA from the LEA in which 

the child’s private school is located, 

parents could ask two different LEAs to 

evaluate their child for different 

purposes at the same time. Although 

there is nothing in this part that would 

prohibit parents from requesting that 

their child be evaluated by the LEA 

responsible for FAPE for purposes of 

having a program of FAPE made 

available to the child at the same time 

that the parents have requested that the 

LEA where the private school is located 

evaluate their child for purposes of 

considering the child for equitable 

services, we do not encourage this 

practice. We note that new 

§ 300.622(b)(4) requires parental consent 

for the release of information about 

parentally-placed private school 

children between LEAs; therefore, as a 

practical matter, one LEA may not know 

that a parent also requested an 

evaluation from another LEA. However, 

we do not believe that the child’s best 

interests would be well-served if the 

parents requested evaluations of their 

child by the resident school district and 

the LEA where the private school is 

located, even though these evaluations 

are conducted for different purposes. A 

practice of subjecting a child to repeated 

testing by separate LEAs in close 

proximity of time may not be the most 

effective or desirable way of ensuring 

that the evaluation is a meaningful 

measure of whether a child has a 

disability or of providing an appropriate 

assessment of the child’s educational 

needs. 

Changes: None. 

Comment: Some commenters 

requested the regulations clarify which 

LEA (the LEA of residence or the LEA 

where the private elementary schools or 

secondary schools are located) is 

responsible for offering FAPE to 

children identified through child find 

under § 300.131 so that parents can 

make an informed decision regarding 

their children’s education. 

Discussion: If a determination is made 

by the LEA where the private school is 

located that a child needs special 

education and related services, the LEA 

where the child resides is responsible 

for making FAPE available to the child. 

If the parent makes clear his or her 

intention to keep the child enrolled in 

the private elementary school or 

secondary school located in another 

LEA, the LEA where the child resides 

need not make FAPE available to the 

child. We do not believe that a change 

to the regulations is necessary, as 

§ 300.201 already clarifies that the 

district of residence is responsible for 

making FAPE available to the child. 

Accordingly, the district in which the 

private elementary or secondary school 

is located is not responsible for making 

FAPE available to a child residing in 

another district. 

Changes: None. 

Comment: One commenter requested 

clarification of the term ‘‘activities 

similar’’ in § 300.131(c). Another 

commenter recommended clarifying 

that these activities include, but are not 

limited to, activities relating to 

evaluations and reevaluations. One 

commenter requested that children with 

disabilities parentally-placed in private 

schools be identified and evaluated as 

quickly as possible. 

Discussion: Section 300.131(c), 

consistent with section 

612(a)(10)(A)(ii)(III) of the Act, requires 

that, in carrying out child find for 

parentally-placed private school 

children, SEAs and LEAs must 

undertake activities similar to those 

activities undertaken for their publicly 

enrolled or publicly-placed children. 

This would generally include, but is not 

limited to, such activities as widely 

distributing informational brochures, 

providing regular public service 

announcements, staffing exhibits at 

health fairs and other community 

activities, and creating direct liaisons 

with private schools. Activities for child 

find must be completed in a time period 

comparable to those activities for public 

school children. This means that LEAs 

must conduct child find activities, 

including individual evaluations, for 

parentally-placed private school 

children within a reasonable period of 

time and without undue delay, and may 

not wait until after child find for public 

school children is conducted. In 

addition, evaluations of all children 

suspected of having disabilities under 

Part B of the Act, regardless of whether 

they are enrolled by their parents in 

private elementary schools or secondary 

schools, must be conducted in 

accordance with the requirements in 

§§ 300.300 through 300.311, consistent 

with section 614(a) through (c) of the 

Act, which describes the procedures for 

evaluations and reevaluations for all 

children with disabilities. We believe 

the phrase ‘‘activities similar’’ is 

understood by SEAs and LEAs and, 

therefore, it is not necessary to regulate 

on the meaning of the phrase. 

Changes: None. 

Provision of Services for ParentallyPlaced Private School Children With 

Disabilities—Basic Requirement 

(§ 300.132) 

Comment: Several commenters 

expressed confusion regarding which 

LEA is responsible for paying for the 

equitable services provided to a 

parentally-placed private elementary 

school or secondary school child, the 

district of the child’s residence or the 

LEA where the private school is located. 

Discussion: We believe § 300.133, 

consistent with section 612(a)(10)(A) of 

the Act, is sufficiently clear that the 

LEA where the private elementary 

schools and secondary schools are 

located is responsible for paying for the 

equitable services provided to a 

parentally-placed private elementary 

school or secondary school child. These 

provisions provide that the LEA where 

the private elementary and secondary 

schools are located must spend a 

proportionate amount of its Federal 

funds available under Part B of the Act 


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for services for children with disabilities 

enrolled by their parents in private 

elementary schools and secondary 

schools located in the LEA. The Act 

does not permit an exception to this 

requirement. No further clarification is 

needed. 

Changes: None. 

Comment: One commenter 

recommended the regulations clarify 

which LEA in the State is responsible 

for providing equitable services to 

parentally-placed private school 

children with disabilities who attend a 

private school that straddles two LEAs 

in the State. 

Discussion: The Act does not address 

situations where a private school 

straddles more than one LEA. However, 

the Act does specify that the LEA in 

which the private school is located is 

responsible for providing special 

education to children with disabilities 

placed in private schools by their 

parents, consistent with the number of 

such children and their needs. In 

situations where more than one LEA 

potentially could assume the 

responsibility of providing equitable 

services, the SEA, consistent with its 

general supervisory responsibility, 

determines which LEA in the State is 

responsible for ensuring the equitable 

participation of children with 

disabilities attending that private 

school. We do not believe that the 

situation is common enough to warrant 

a change in the regulations. 

Changes: None. 

Comment: A few commenters 

recommended revising the heading for 

§ 300.132(b) to clarify that LEAs, not 

SEAs, are responsible for developing 

service plans. 

Discussion: We agree with the 

commenters that the heading for 

§ 300.132(b) should be changed to 

accurately reflect the requirement and to 

avoid confusion. 

Changes: We have revised the heading 

for § 300.132(b) by removing the 

reference to SEA responsibility. 

Comment: One commenter requested 

requiring in § 300.132(c) that data on 

parentally-placed private school 

children with disabilities be submitted 

to the Department. Another commenter 

agreed, stating that the data should be 

submitted the same day as the annual 

child count. 

Discussion: The purpose of the child 

count under § 300.132(c) is to determine 

the amount of Federal funds that the 

LEA must spend on providing special 

education and related services to 

parentally-placed private school 

children with disabilities in the next 

fiscal year. We are not requiring States 

to submit these data to the Department 

as the Department does not have a 

programmatic or regulatory need to 

collect this information at this time. 

Section 300.644 permits the SEA to 

include in its annual report of children 

served those parentally-placed private 

school children who are eligible under 

the Act and receive special education or 

related services. We believe this is 

sufficient to meet the Department’s need 

to collect data on this group of children 

and we do not wish to place an 

unnecessary data collection and 

paperwork burden on States. 

Changes: None. 

Expenditures (§ 300.133) 

Comment: One commenter requested 

the regulations clarify whether an LEA 

must spend its entire proportionate 

share for parentally-placed private 

school children with disabilities by the 

end of a fiscal year or could carry over 

any remaining funds into the next fiscal 

year. 

Discussion: We agree with the 

commenter that a provision should be 

included in these regulations to clarify 

that, if an LEA has not expended for 

equitable services all of the 

proportionate amount of Federal funds 

to be provided for parentally-placed 

private school children with disabilities 

by the end of the fiscal year for which 

Congress appropriated the funds, the 

LEA must obligate the remaining funds 

for special education and related 

services (including direct services) to 

parentally-placed private school 

children with disabilities during a carryover period of one additional year. 

Changes: A new paragraph (a)(3) has 

been added to § 300.133 to address the 

carry over of funds not expended by the 

end of the fiscal year. 

Comment: None. 

Discussion: It has come to our 

attention that there is some confusion 

among States and LEAs between the 

count of the number of children with 

disabilities receiving special education 

and related services as required under 

section 618 of the Act, and the 

requirement under section 

612(a)(10)(A)(i)(II) of the Act that each 

LEA conduct an annual count of the 

number of parentally-placed private 

school children with disabilities 

attending private schools in the LEA. 

We will, therefore, revise the heading 

(child count) for § 300.133(c) and the 

regulatory language in § 300.133(c) to 

avoid any confusion regarding the 

requirements in paragraph (c). 

Changes: Section 300.133(c) has been 

revised as described above. 

Comment: One commenter 

interpreted § 300.133(d) to require that: 

(1) LEAs provide services to parentallyplaced private school children with 

disabilities with funds provided under 

the Act and (2) LEAs no longer have the 

option of using local funds equal to, and 

in lieu of, the Federal pro-rated share 

amount. This commenter recommended 

that LEAs continue to be allowed to use 

local funds for administrative 

convenience. 

Discussion: The commenter’s 

interpretation is correct. The Act added 

the supplement, not supplant 

requirement in section 

612(a)(10)(A)(i)(IV), which is included 

in § 300.133(d). This requirement 

provides that State and local funds may 

supplement, but in no case supplant the 

proportionate amount of the Federal 

Part B funds that must be expended 

under this provision. Prior to the change 

in the Act, if a State was spending more 

than the Federal proportional share of 

funds from State or local funds, then the 

State would not have to spend any 

Federal Part B funds. That is no longer 

permissible under the Act. 

Changes: None. 

Comment: A few commenters 

requested revising § 300.133 to include 

home-schooled children with 

disabilities in the same category as 

parentally-placed private school 

children with disabilities. 

Discussion: Whether home-schooled 

children with disabilities are considered 

parentally-placed private school 

children with disabilities is a matter left 

to State law. Children with disabilities 

in home schools or home day cares must 

be treated in the same way as other 

parentally-placed private school 

children with disabilities for purposes 

of Part B of the Act only if the State 

recognizes home schools or home day 

cares as private elementary schools or 

secondary schools. 

Changes: None. 

Consultation (§ 300.134) 

Comment: Some commenters 

recommended requiring, in § 300.134(e), 

that the LEA include, in its written 

explanation to the private school, its 

reason whenever: (1) The LEA does not 

provide services by a professional 

directly employed by that LEA to 

parentally-placed private school 

children with a disability when 

requested to do so by private school 

officials; and (2) the LEA does not 

provide services through a third party 

provider when requested to do so by the 

private school officials. 

Discussion: Section 300.134(e) 

incorporates the language from section 

612(a)(10)(A)(iii)(V) of the Act and 

requires the LEA to provide private 

school officials with a written 

explanation of the reasons why the LEA 


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chose not to provide services directly or 

through contract. We do not believe that 

the additional language suggested by the 

commenter is necessary because we 

view the statutory language as sufficient 

to ensure that the LEA meets its 

obligation to provide private school 

officials a written explanation of any 

reason why the LEA chose not to 

provide services directly or through a 

contract. 

Changes: None. 

Written Affirmation (§ 300.135) 

Comment: Several commenters 

recommended requiring LEAs to 

forward the written affirmation to the 

SEA, because this information is 

important for the SEA to exercise 

adequate oversight over LEAs with 

respect to the participation of private 

school officials in the consultation 

process. 

Discussion: Section 300.135, 

regarding written affirmation, tracks the 

language in section 612(a)(10)(A)(iv) of 

the Act. Including a requirement in the 

regulations that the LEA must submit a 

copy of signed written affirmations to 

the SEA would place reporting burdens 

on the LEA that are not required by the 

Act and that we do not believe are 

warranted in this circumstance. We 

expect that in most circumstances 

private school officials and LEAs will 

have cooperative relationships that will 

not need State involvement. If private 

school officials believe that there was 

not meaningful consultation, they may 

raise that issue with the SEA through 

the procedures in § 300.136. However, 

there is nothing in the Act or these 

regulations that would preclude a State 

from requiring LEAs to submit a copy of 

the written affirmation obtained 

pursuant to § 300.135, in meeting its 

general supervision responsibilities 

under § 300.149 or as a part of its 

monitoring of LEAs’ implementation of 

Part B of the Act as required in 

§ 300.600. Consistent with 

§ 300.199(a)(2) and section 608(a)(2) of 

the Act, a State that chooses to require 

its LEAs to submit copies of written 

affirmations to the SEA beyond what is 

required in § 300.135 would have to 

identify, in writing, to the LEAs located 

in the State and to the Secretary, that 

such rule, regulation, or policy is a 

State-imposed requirement that is not 

required by Part B of the Act or these 

regulations. 

Changes: None. 

Compliance (§ 300.136) 

Comment: One commenter 

recommended revising § 300.136 to 

permit an LEA to submit a complaint to 

the State if private school officials do 

not engage in meaningful consultation 

with the LEA. 

Discussion: Section 300.136, 

consistent with section 612(a)(10)(A)(v) 

of the Act, provides that a private school 

official has the right to complain to the 

SEA that the LEA did not engage in 

consultation that was meaningful and 

timely, or did not give due 

consideration to the views of the private 

school official. The provisions in the 

Act and the regulations apply to the 

responsibilities of the SEA and its LEAs 

and not to private schools or entities. 

Because the requirements of the Act do 

not apply to private schools, we do not 

believe requiring SEAs to permit an LEA 

to submit a complaint to the SEA 

alleging that representatives of the 

private schools did not consult in a 

meaningful way with the LEA would 

serve a meaningful purpose. The 

equitable services made available under 

Part B of the Act are a benefit to the 

parentally-placed private school 

children and not services provided to 

the private schools. 

Changes: None. 

Comment: Several commenters 

recommended revising § 300.136 to 

allow States to determine the most 

appropriate procedures for a private 

school official to submit a complaint to 

the SEA that an LEA did not engage in 

consultation that was meaningful and 

timely, or did not give due 

consideration to the views of the private 

school officials. Many of these 

commenters stated that requiring such 

complaints be filed pursuant to the State 

complaint procedures in §§ 300.151 

through 300.153 is not required by the 

Act and recommended we remove this 

requirement. 

Discussion: We agree with the 

commenters that section 

612(a)(10)(A)(v) of the Act does not 

stipulate how a private school official 

must submit a complaint to the SEA that 

the LEA did not engage in consultation 

that was meaningful and timely, or did 

not give due consideration to the views 

of the private school official. We also 

agree with the commenters that the SEA 

should have flexibility to determine 

how such complaints will be filed with 

the State. We will, therefore, revise 

§ 300.136(a) to remove the requirement 

that private school officials must file a 

complaint with the SEA under the State 

complaint procedures in §§ 300.151 

through 300.153. States may, if they so 

choose, use their State complaint 

procedures under §§ 300.151 through 

300.153 as the means for a private 

school to file a complaint under 

§ 300.136. 

Changes: Section 300.136 has been 

revised to remove the requirement that 

a private school official submit a 

complaint to the SEA using the 

procedures in §§ 300.151 through 

300.153. 

Equitable Services Determined 

(§ 300.137) 

Comment: One commenter 

recommended removing § 300.137(a), 

stating it is discriminatory and that 

parentally-placed private school 

children must receive the same amount 

of services as children with disabilities 

in public schools. 

Discussion: Section 300.137(a) reflects 

the Department’s longstanding policy, 

consistent with section 612(a)(10) of the 

Act, and explicitly provides that 

children with disabilities enrolled in 

private schools by their parents have no 

individual entitlement to receive some 

or all of the special education and 

related services they would receive if 

enrolled in the public schools. Under 

the Act, LEAs only have an obligation 

to provide parentally-placed private 

school children with disabilities an 

opportunity for equitable participation 

in the services funded with Federal Part 

B funds that the LEA has determined, 

after consultation, to make available to 

its population of parentally-placed 

private school children with disabilities. 

LEAs are not required to spend more 

than the proportionate Federal share on 

those services. 

Changes: None. 

Equitable Services Provided (§ 300.138) 

Comment: Several commenters 

requested clarifying whether the 

requirement in § 300.138(a) that services 

provided to parentally-placed private 

school children with disabilities be 

provided by personnel meeting the same 

standards (i.e., highly qualified teacher 

requirements) as personnel providing 

services in the public schools applies to 

private school teachers who are 

contracted by the LEA to provide 

equitable services. 

Discussion: As discussed in the 

Analysis of Comments and Changes 

section, in the response to comments on 

§ 300.18, it is the Department’s position 

that the highly qualified special 

education teacher requirements do not 

apply to teachers hired by private 

elementary schools and secondary 

schools. This includes teachers hired by 

private elementary schools and 

secondary schools who teach children 

with disabilities. Further, it is the 

Department’s position that the highly 

qualified special education teacher 

requirements also do not apply to 

private school teachers who provide 

equitable services to parentally-placed 

private school children with disabilities. 


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In addition to the revision we are 

making to new § 300.18(h) (proposed 

§ 300.18(g)) to make this position clear, 

we also will revise § 300.138(a)(1) to 

clarify that private elementary school 

and secondary school teachers who are 

providing equitable services to 

parentally-placed private school 

children with disabilities do not have to 

meet the highly qualified special 

education teacher requirements. 

Changes: We have revised 

§ 300.138(a)(1) as indicated. 

Comment: A few commenters 

requested clarifying the process for 

developing a services plan and 

explaining how a services plan differs 

from an IEP. 

Discussion: We do not believe that 

additional explanation in the regulation 

is needed. Under § 300.138(b), each 

parentally-placed private school child 

with a disability who has been 

designated by the LEA in which the 

private school is located to receive 

special education or related services 

must have a services plan. The services 

plan must describe the specific special 

education and related services offered to 

a parentally-placed private school child 

with a disability designated to receive 

services. The services plan also must, to 

the extent appropriate, meet the IEP 

content, development, review, and 

revision requirements described in 

section 614(d) of the Act, or, when 

appropriate, for children aged three 

through five, the IFSP requirements 

described in section 636(d) of the Act as 

to the services that are to be provided. 

The LEA must ensure that a 

representative of the private school 

attends each meeting to develop the 

services plan and if the representative 

cannot attend, use other methods to 

ensure participation by the private 

school, including individual or 

conference telephone calls. 

Children with disabilities enrolled in 

public schools or who are publiclyplaced in private schools are entitled to 

FAPE and must receive the full range of 

services under Part B of the Act that are 

determined by the child’s IEP Team to 

be necessary to meet the child’s 

individual needs and provide FAPE. 

The IEPs for these children generally 

will be more comprehensive than the 

more limited services plans developed 

for parentally-placed private school 

children with disabilities designated to 

receive services. 

Changes: None. 

Comment: A few commenters 

recommended revising the definition of 

services plan to clarify that an IEP could 

serve as the services plan; otherwise, 

States that provide IEP services to 

parentally-placed private school 

children with disabilities would be 

required to develop a services plan and 

an IEP. 

Discussion: We do not believe it is 

appropriate to clarify in the regulations 

that the IEP can serve as the services 

plan because, as stated elsewhere in this 

preamble, a services plan should only 

describe the specific special education 

and related services offered to a 

parentally-placed private school child 

with a disability designated to receive 

services. We believe that using an IEP in 

lieu of a services plan for these children 

may not be appropriate in light of the 

fact that an IEP developed pursuant to 

section 614(d) of the Act will generally 

include much more than just those 

services that a parentally-placed private 

school child with a disability may 

receive, if designated to receive services. 

There is nothing, however, in these 

regulations that would prevent a State 

that provides more services to 

parentally-placed private school 

children with disabilities than they are 

required to do under the Act to use an 

IEP in place of a services plan, 

consistent with State law. 

Changes: None. 

Location of Services and Transportation 

(§ 300.139) 

Comment: A few commenters asked 

for clarification as to how the location 

where services will be provided to 

parentally-placed private school 

children with disabilities is determined. 

Discussion: Under § 300.134(d), how, 

where, and by whom special education 

and related services are provided to 

parentally-placed private school 

children with disabilities are subjects of 

the process of consultation among LEA 

officials, private school representatives, 

and representatives of parents of 

parentally-placed private school 

children with disabilities. Further, 

§ 300.137(b)(2) clarifies that, after this 

consultation process, the final decision 

with respect to the services provided to 

eligible parentally-placed private school 

children with disabilities is made by the 

LEA. 

Changes: None. 

Comment: Some commenters 

recommended specifying that providing 

services on the premises of private 

elementary schools and secondary 

schools is the preferred means of 

serving parentally-placed private school 

children with disabilities. A few 

commenters recommended revising 

§ 300.139(a) to stipulate that services 

‘‘should’’ or ‘‘must’’ be provided on the 

premises of private schools, unless there 

is a compelling rationale for these 

services to be provided off-site. In 

contrast, several commenters objected to 

the statement in the preamble to the 

NPRM that services should be provided 

on-site unless there is a compelling 

rationale to provide services off-site. A 

few of these commenters stated that the 

Act does not indicate a preference for 

one location of services over another 

and the Department has no authority to 

provide such a strong comment on this 

issue. 

Discussion: Services offered to 

parentally-placed private school 

children with disabilities may be 

provided on-site at a child’s private 

school, including a religious school, to 

the extent consistent with law, or at 

another location. The Department 

believes, in the interests of the child, 

LEAs should provide services on site at 

the child’s private school so as not to 

unduly disrupt the child’s educational 

experience, unless there is a compelling 

rationale for these services to be 

provided off-site. The phrase ‘‘to the 

extent consistent with law’’ is in section 

612(a)(10)(A)(i)(III) of the Act. We 

interpret this language to mean that the 

provision of services on the premises of 

a private school takes place in a manner 

that would not violate the Establishment 

Clause of the First Amendment to the 

U.S. Constitution and would not be 

inconsistent with applicable State 

constitutions or law. We, therefore, do 

not have the statutory authority to 

require that services be provided onsite. 

Changes: None. 

Comment: A few commenters 

expressed concern that § 300.139(b), 

regarding transportation services, goes 

beyond the requirements in the Act and 

should be removed. A few commenters 

stated that transportation is a related 

service and should be treated as such 

with respect to parentally-placed 

children with disabilities in private 

schools. 

Discussion: We do not agree that 

transportation services should be 

removed from § 300.139(b). If services 

are offered at a site separate from the 

child’s private school, transportation 

may be necessary to get the child to and 

from that other site. Failure to provide 

transportation could effectively deny 

the child an opportunity to benefit from 

the services that the LEA has 

determined through consultation to 

offer its parentally-placed private school 

children with disabilities. In this 

situation, although transportation is not 

a related service, as defined in § 300.34, 

transportation is necessary to enable the 

child to participate and to make the 

offered services accessible to the child. 

LEAs should work in consultation with 

representatives of private school 

children to ensure that services are 


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provided at sites, including on the 

premises of the child’s private school, 

so that LEAs do not incur significant 

transportation costs. 

However, for some children with 

disabilities, special modifications in 

transportation may be necessary to 

address the child’s unique needs. If the 

group developing the child’s services 

plan determines that a parentally-placed 

private school child with a disability 

chosen to receive services requires 

transportation as a related service in 

order to receive special education 

services, this transportation service 

should be included as a related service 

in the services plan for the child. 

In either case, the LEA may include 

the cost of the transportation in 

calculating whether it has met the 

requirement of § 300.133. 

Changes: None. 

Due Process Complaints and State 

Complaints (§ 300.140) 

Comment: Several commenters 

expressed concern that the right of 

parents of children with disabilities 

enrolled by their parents in private 

elementary schools and secondary 

schools to file a due process complaint 

against an LEA is limited to filing a due 

process complaint that an LEA has 

failed to comply with the child find and 

evaluation requirements, and not an 

LEA’s failure to provide special 

education and related services as 

required in the services plan. A few 

commenters recommended that the 

regulations clarify whether the parent 

should file a due process complaint 

with the LEA of residence or with the 

LEA where the private school is located. 

Discussion: Section 615(a) of the Act 

specifies that the procedural safeguards 

of the Act apply with respect to the 

identification, evaluation, educational 

placement, or provision of FAPE to 

children with disabilities. The special 

education and related services provided 

to parentally-placed private school 

children with disabilities are 

independent of the obligation to make 

FAPE available to these children. 

While there may be legitimate issues 

regarding the provision of services to a 

particular parentally-placed private 

school child with a disability an LEA 

has agreed to serve, the due process 

provisions in section 615 of the Act and 

§§ 300.504 through 300.519 do not 

apply to these disputes, because there is 

no individual right to these services 

under the Act. Disputes that arise about 

these services are properly subject to the 

State complaint procedures under 

§§ 300.151 through 300.153. 

Child find, however, is a part of the 

basic obligation that public agencies 

have to all children with disabilities, 

and failure to locate, identify, and 

evaluate a parentally-placed private 

school child would be subject to due 

process. Therefore, the due process 

provisions in §§ 300.504 through 

300.519 do apply to complaints that the 

LEA where the private school is located 

failed to meet the consent and 

evaluation requirements in §§ 300.300 

through 311. 

In light of the comments received, we 

will clarify in § 300.140 that parents of 

parentally-placed private school 

children with disabilities may file a due 

process complaint with the LEA in 

which the private school is located (and 

forward a copy to the SEA) regarding an 

LEA’s failure to meet the consent and 

evaluation requirements in §§ 300.300 

through 300.311. We also will clarify 

that a complaint can be filed with the 

SEA under the State complaint 

procedures in §§ 300.151 through 

300.153 that the SEA or LEA has failed 

to meet the requirements in §§ 300.132 

through 300.135 and §§ 300.137 through 

300.144. There would be an exception, 

however, for complaints filed pursuant 

to § 300.136. Complaints under 

§ 300.136 must be filed in accordance 

with the procedures established by each 

State under § 300.136. 

Changes: Proposed § 300.140(a)(2) has 

been redesignated as new paragraph (b). 

A new paragraph (b)(2) has been added 

to this section to clarify that any due 

process complaint regarding the 

evaluation requirements in § 300.131 

must be filed with the LEA in which the 

private school is located, and a copy 

must be forwarded to the SEA. Proposed 

§ 300.140(b) has been redesignated as 

new paragraph (c), and has been revised 

to clarify that a complaint that the SEA 

or LEA has failed to meet the 

requirements in §§ 300.132 through 

300.135 and §§ 300.137 through 300.144 

can be filed with the SEA under the 

State complaint procedures in 

§§ 300.151 through 300.153. Complaints 

filed pursuant to § 300.136 must be filed 

with the SEA under the procedures 

established under § 300.136(b). 

Comment: A few commenters 

requested clarification as to whether a 

parent of a parentally-placed private 

school child should request an 

independent educational evaluation at 

public expense under § 300.502(b) with 

the LEA of residence or the LEA where 

the private school is located. 

Discussion: We do not believe that 

this level of detail needs to be included 

in the regulation. If a parent of a 

parentally-placed child disagrees with 

an evaluation obtained by the LEA in 

which the private school is located, the 

parent may request an independent 

educational evaluation at public 

expense with that LEA. 

Changes: None. 

Use of Personnel (§ 300.142) 

Comment: Several commenters 

requested clarifying language regarding 

who must provide equitable services to 

parentally-placed private school 

children with disabilities. 

Discussion: Under section 

612(a)(10)(A)(vi)(I) of the Act, equitable 

services must be provided by employees 

of a public agency or through contract 

by the public agency with an individual, 

association, agency, organization, or 

other entity. Section 300.142(a) provides 

that an LEA may use Part B funds to 

make public school personnel available 

in other than public facilities to the 

extent necessary to provide equitable 

services for parentally-placed children 

with disabilities attending private 

schools and if those services are not 

otherwise provided by the private 

school to children as a benefit provided 

to all children attending that school. 

Under § 300.142(b), an LEA may use 

Part B funds to pay for the services of 

an employee of a private school to 

provide equitable services if the 

employee performs the services outside 

of his or her regular hours of duty and 

the employee performs the services 

under public supervision and control. 

We believe that the regulation is 

sufficiently clear on this point. 

Changes: None. 

Property, Equipment, and Supplies 

(§ 300.144) 

Comment: A few commenters 

requested clarification as to whether 

private school officials may purchase 

equipment and supplies with Part B 

funds to provide services to parentallyplaced private school children with 

disabilities designated to receive 

services. 

Discussion: We do not believe the 

additional clarification suggested by the 

commenters is necessary. Section 

300.144, consistent with section 

612(a)(10)(A)(vii) of the Act, already 

requires that the LEA must control and 

administer the funds used to provide 

special education and related services to 

parentally-placed private school 

children with disabilities, and maintain 

title to materials, equipment, and 

property purchased with those funds. 

Thus, the regulations and the Act 

prevent private school officials from 

purchasing equipment and supplies 

with Part B funds. 

Changes: None. 


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Children With Disabilities in Private 

Schools Placed or Referred by Public 

Agencies 

Applicability of §§ 300.146 Through 

300.147 (§ 300.145) 

Comment: One commenter stated that 

§§ 300.145 through 300.147 are 

unnecessary and solely administrative, 

because these sections are addressed in 

the Act and the proposed regulations 

provide no additional information on 

the application of the statutory 

requirements. 

Discussion: We do not agree with the 

commenter that the provisions in 

§§ 300.146 through 300.147 are 

unnecessary and solely administrative. 

We believe it is necessary to retain these 

requirements in the regulations, 

consistent with section 612(a)(10)(B) of 

the Act, to ensure that public agencies 

are fully aware of their obligation to 

ensure that children with disabilities 

who are placed in or referred to a 

private school or facility by public 

agencies are entitled to receive FAPE to 

the same extent as they would if they 

were placed in a public agency school 

or program. 

Changes: None. 

Responsibility of SEA (§ 300.146) 

Comment: Many commenters 

disagreed with the exception to the 

‘‘highly qualified teacher’’ requirements 

in paragraph (b) of this section and 

stated that the ‘‘highly qualified 

teacher’’ requirements should apply to 

private school teachers of children with 

disabilities placed or referred by public 

agencies. Several commenters stated 

that these children are likely to have 

more severe disabilities and, therefore, 

have a greater need for highly qualified 

teachers than children served in public 

schools. 

Several commenters stated that 

exempting teachers in private schools 

from the requirement to be ‘‘highly 

qualified’’ in situations where children 

with disabilities are publicly-placed in 

order to receive FAPE is not consistent 

with the requirement that the education 

provided to children in such settings 

meet the standards that apply to 

children served by public agencies, or 

with the ESEA and the goal in the Act 

of helping all children with disabilities 

achieve high standards. 

A few commenters supported the 

exception to ‘‘highly qualified teacher’’

requirements. One commenter stated 

that States should make their own 

decisions in this area in light of resource 

constraints. 

One commenter opposed the 

expenditure of public school funds for 

the education of publicly-placed private 

school children by teachers who do not 

meet the ‘‘highly qualified’’

requirements. 

Discussion: Section 602(10) of the Act 

states that ‘‘highly qualified’’ has the 

meaning given the term in section 9101 

of the ESEA, which clarifies that the 

requirements regarding highly qualified 

teachers apply to public school teachers 

and not teachers teaching as employees 

of private elementary schools and 

secondary schools. As we stated in the 

Analysis of Comments and Changes 

section regarding § 300.138 in this 

subpart and § 300.18 in subpart A, it is 

the Department’s position that the 

highly qualified teacher requirements 

do not apply to teachers hired by private 

elementary schools and secondary 

schools. This includes teachers hired by 

private elementary schools and 

secondary schools who teach children 

with disabilities. We agree with the 

commenters that, in many instances, a 

public agency may choose to place a 

child with a severe disability and with 

more intensive educational needs in a 

private school or facility as a means of 

providing FAPE. When the public 

agency chooses to place a child with a 

significant disability, or any child with 

a disability, in a private school as a 

means of providing FAPE, the public 

agency has an obligation to ensure that 

the child receives FAPE to the same 

extent the child would if placed in a 

public school, irrespective of whether 

the private school teachers meet the 

highly qualified teacher requirements in 

§§ 300.18 and 300.156(c). FAPE 

includes not just the special education 

and related services that a child with a 

disability receives, but also includes an 

appropriate preschool, elementary and 

secondary school education in the State 

involved. The required special 

education and related services must be 

provided at public expense, at no cost 

to the parent, in accordance with an IEP, 

and the education provided to the child 

must meet the standards that apply to 

educational services provided by the 

SEA and LEA (except for the highly 

qualified teacher requirements in 

§§ 300.18 and 300.156(c)). In addition, 

the SEA must ensure that the child has 

all the rights of a child with a disability 

who is served by a public agency. 

We do not agree with the premise of 

the commenters that not requiring 

private school teachers who provide 

services to publicly-placed children 

with disabilities to meet the highly 

qualified teacher requirements means 

that the education provided to these 

children in the private school setting 

does not meet the standards that apply 

to children with disabilities served by 

the public agency. States have flexibility 

in developing standards that meet the 

requirements of the Act. The standards 

that SEAs apply to private schools that 

contract with public agencies to provide 

FAPE to children with disabilities, are, 

so long as they meet the requirements of 

Part B of the Act and its regulations, a 

State matter. Federal law does not 

encourage or prohibit the imposition of 

additional requirements as a condition 

of placing these children in the private 

school. 

With regard to the comment opposing 

the use of public school funds for the 

education of publicly-placed private 

school children by teachers who do not 

meet the highly qualified teacher 

requirements, a State or public agency 

may use whatever State, local, Federal, 

and private sources of support that are 

available in the State to meet the 

requirements of the Act. We believe 

restricting the use of public school 

funds as requested by the commenter 

would not only be inconsistent with the 

Act, but also may unnecessarily limit a 

public agency’s options for providing 

FAPE to its publicly-placed children 

with disabilities. 

Changes: None. 

Comment: A few commenters 

recommended requiring States to have 

rules, regulations, and contracts 

requiring private schools that accept 

publicly-placed children with 

disabilities to guarantee that children 

with disabilities receive FAPE and their 

parents retain all of the protections 

mandated for public schools, including 

the right to pendency placements if the 

parents challenge the decisions of the 

private school to terminate the 

children’s placements. One commenter 

recommended that the regulations 

clarify that private schools serving 

children placed by a public agency are 

not exempt from the obligation to 

provide FAPE. 

Discussion: The Act does not give 

States and other public agencies 

regulatory authority over private schools 

and does not place requirements on 

private schools. The Act imposes 

requirements on States and public 

agencies that refer to or place children 

with disabilities in private schools for 

the purposes of providing FAPE to those 

children because the public agency is 

unable to provide FAPE in a public 

school or program. The licensing and 

regulation of private schools are matters 

of State law. The Act requires States and 

public agencies, including LEAs, to 

ensure that FAPE is made available to 

all children with disabilities residing in 

the State in mandatory age ranges, and 

that the rights and protections of the Act 

are extended to eligible children and 

their parents. If the State or public 


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agency has placed children with 

disabilities in private schools for 

purposes of providing FAPE to those 

children, the State and the public 

agency must ensure that these children 

receive the required special education 

and related services at public expense, 

at no cost to the parents, in accordance 

with each child’s IEP. It is the 

responsibility of the public agency to 

determine whether a particular private 

school in which the child with a 

disability will be placed for purposes of 

providing FAPE meets the standards 

that apply to the SEA and LEA and that 

a child placed by a public agency be 

afforded all the rights, including FAPE, 

that the child would otherwise have if 

served by the public agency directly. 

Changes: None. 

Comment: One commenter stated that, 

in cases where the public agency places 

a child in a private school or residential 

treatment facility for the purposes of 

providing FAPE, the public agency 

should be required to determine and 

inform the private school or residential 

treatment facility about the person or 

persons who have the legal authority to 

make educational decisions for the 

child. 

Discussion: The change requested by 

the commenter is not needed because 

the public agency, not the private 

agency, is responsible for providing 

FAPE to a child who is placed by the 

public agency in a private school. 

Consistent with § 300.146 and section 

612(a)(10)(B) of the Act, a public agency 

that places a child with a disability in 

a private school or facility as a means 

of carrying out the requirements of Part 

B of the Act, must ensure that the child 

has all the rights of a child with a 

disability who is served by a public 

agency, which includes ensuring that 

the consent requirements in § 300.300 

and sections 614(a)(1)(D) and 614(c) of 

the Act are followed. A public agency 

must, therefore, secure the needed 

consent from the person or persons who 

have the legal authority to make such 

decisions, unless the public agency has 

made other arrangements with the 

private school or facility to secure that 

consent. We do not believe it is 

necessary or appropriate to require the 

public agency to inform the private 

school or facility of the persons or 

persons who have the legal authority to 

make educational decisions for the child 

because this will depend on the specific 

arrangements made by the public 

agency with a private school or facility 

and, should, therefore, be determined by 

the public agency on a case by case 

basis. 

Changes: None. 

Children With Disabilities Enrolled by 

Their Parents in Private Schools When 

FAPE Is at Issue 

Placement of Children by Parents When 

FAPE Is at Issue (§ 300.148) 

Comment: Several commenters 

recommended retaining in these 

regulations the requirement in current 

§ 300.403(b) that disagreements between 

a parent and the LEA regarding the 

availability of a FAPE and the question 

of financial responsibility, are subject to 

the due process procedures in section 

615 of the Act. 

Discussion: The provision in current 

§ 300.403(b) was in the 1983 regulations 

and, therefore, should have been 

included in the NPRM in light of section 

607(b) of the Act. Section 607(b) of the 

Act provides that the Secretary cannot 

publish final regulations that would 

procedurally or substantively lessen the 

protections provided to children with 

disabilities in the regulations that were 

in effect on July 20, 1983. We will revise 

§ 300.148 to include the requirement in 

current § 300.403(b). 

Changes: Section 300.148 has been 

revised to include the requirement in 

current § 300.403(b) that disagreements 

between a parent and a public agency 

regarding the availability of a program 

appropriate for the child and the 

question of financial responsibility are 

subject to the due process procedures in 

§§ 300.504 through 300.520. 

Comment: One commenter requested 

revising the regulations to eliminate 

financial incentives for parents to refer 

children for special education and then 

unilaterally placing their child in 

private schools without first receiving 

special education and related services 

from the school district. The commenter 

stated that it should be clear that a 

unilateral placement in a private school 

without first receiving special education 

and related services from the LEA does 

not require the public agency to provide 

reimbursement for private school 

tuition. 

One commenter stated that proposed 

§ 300.148(b) goes beyond the Act and 

only applies if the court or hearing 

officer finds that the agency had not 

made FAPE available to the child in a 

timely manner prior to enrollment in 

the private school. The commenter 

stated that a determination that a 

placement is ‘‘appropriate,’’ even if it 

does not meet the State standards that 

apply to education provided by the SEA 

or LEAs, conflicts with the SEA’s or 

LEA’s responsibility to ensure FAPE to 

children with disabilities. 

Discussion: The provision in 

§ 300.148(b) that a parental placement 

does not need to meet State standards in 

order to be ‘‘appropriate’’ under the Act 

is retained from current § 300.402(c) to 

be consistent with the Supreme Court’s 

decisions in School Committee of the 

Town of Burlington v. Department of 

Education, 471 U.S. 359 (1985) 

(Burlington) and Florence County 

School District Four v. Carter, 510 U.S. 

7 (1993) (Carter). Under the Supreme 

Court’s decision in Carter, a court may 

order reimbursement for a parent who 

unilaterally withdraws his or her child 

from a public school that provides an 

inappropriate education under the Act 

and enrolls the child in a private school 

that provides an education that is 

otherwise proper under the Act, but 

does not meet the State standards that 

apply to education provided by the SEA 

and LEAs. The Court noted that these 

standards apply only to public agencies’

own programs for educating children 

with disabilities and to public agency 

placements of children with disabilities 

in private schools for the purpose of 

providing a program of special 

education and related services. The 

Court reaffirmed its prior holding in 

Burlington that tuition reimbursement is 

only available if a Federal court 

concludes ‘‘both that the public 

placement violated IDEA, and that the 

private school placement was proper 

under the Act.’’ (510 U.S. at 12). We 

believe LEAs can avoid reimbursement 

awards by offering and providing FAPE 

consistent with the Act either in public 

schools or in private schools in which 

the parent places the child. However, a 

decision as to whether an LEA’s offer or 

provision of FAPE was proper under the 

Act and any decision regarding 

reimbursement must be made by a court 

or hearing officer. Therefore, we do not 

believe it is appropriate to include in 

these regulations a provision relieving a 

public agency of its obligation to 

provide tuition reimbursement for a 

unilateral placement in a private school 

if the child did not first receive special 

education and related services from the 

LEA. 

This authority is independent of the 

court’s or hearing officer’s authority 

under section 612 (a)(10)(C)(ii) of the 

Act to award reimbursement for private 

placements of children who previously 

were receiving special education and 

related services from a public agency. 

Changes: None. 

SEA Responsibility for General 

Supervision and Implementation of 

Procedural Safeguards 

SEA Responsibility for General 

Supervision (§ 300.149) 

Comment: One commenter requested 

that the Department clarify in these 


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regulations how the requirements for 

SEA responsibility in § 300.149 apply 

with respect to children attending BIAfunded schools who are sent to State 

prisons, including whether the Office of 

Indian Education Programs in the 

Department of the Interior can delegate 

the responsibility of ensuring that the 

requirements of Part B of the Act are 

met by the State prison. The commenter 

further requested clarification regarding 

tribally controlled detention facilities 

that incarcerate a student from a 

different reservation than the 

reservation where the student attended 

a BIA-funded school. 

Discussion: As a general matter, for 

educational purposes, students who 

were enrolled in a BIA-funded school 

and are subsequently convicted as an 

adult and incarcerated in a State run 

adult prison are the responsibility of the 

State where the adult prison is located. 

Section 612(a)(11)(C) of the Act and 

§ 300.149(d) allow flexibility to States in 

that the Governor, or another individual 

pursuant to State law, can designate a 

public agency in the State, other than 

the SEA, as responsible for ensuring that 

FAPE is made available to eligible 

students with disabilities who are 

convicted under State law and 

incarcerated in the State’s adult prisons. 

This provision does not apply to the 

Secretary of the Interior. Therefore, the 

Office of Indian Education Programs 

cannot delegate the responsibility of 

ensuring that the requirements of Part B 

of the Act are met by the State prison. 

The Act does not specifically address 

who is responsible for education of 

students with disabilities in tribally 

controlled detention facilities. However, 

the Secretary of the Interior is only 

responsible for students who are 

enrolled in schools operated or funded 

by the Department of the Interior. 

Changes: None. 

Comment: One commenter 

recommended adding a heading prior to 

§ 300.149 to separate this section from 

the regulations governing private 

schools. 

Discussion: We agree with the 

commenter that a heading should be 

added to separate the private school 

provisions from other State eligibility 

requirements. 

Changes: We have added a heading 

before § 300.149 to separate the private 

school provisions from the provisions 

relating to the SEA’s responsibility for 

general supervision and implementation 

of procedural safeguards. 

State Complaint Procedures (§§ 300.151 

through 300.153) 

Comment: We received several 

comments questioning the statutory 

basis for the State complaint provisions 

in §§ 300.151 through 300.153. One 

commenter stated that the Act includes 

only two statutory references to State 

complaints and both references 

(sections 612(a)(14)(E) and 615(f)(3)(F) 

of the Act) immediately follow statutory 

prohibitions on due process remedies. 

One commenter stated that Congress 

did not require SEAs to create a 

complaint system and that section 

1232c(a) of the General Education 

Provisions Act, 20 U.S.C. 1232c(a) 

(GEPA), provides only that the 

Department may require a State to 

investigate and resolve all complaints 

received by the State related to the 

administration of an applicable 

program. The commenter stated that the 

permissive wording of this provision 

suggests that the Secretary or the 

Department can choose not to require a 

complaint investigation and resolution 

mechanism, particularly when such 

mechanism is unnecessary or, as in the 

case of the Act, effectively preempted by 

more specific requirements in the Act 

governing the applicable program. 

Another commenter concluded that 

there is no basis for the State complaint 

procedures in §§ 300.151 through 

300.153 because the Act only allows 

complaints to be filed with the State in 

two situations: (1) By private school 

officials, regarding consultation and 

child find for parentally-placed private 

school children pursuant to section 

612(a)(10)(A)(i) and (10)(A)(iii) of the 

Act, and (2) by parents, regarding 

personnel qualifications in section 

612(a)(14)(E) of the Act. The commenter 

stated that in both cases, the Act does 

not detail a complaint process. 

Discussion: Although Congress did 

not specifically detail a State complaint 

process in the Act, we believe that the 

State complaint process is fully 

supported by the Act and necessary for 

the proper implementation of the Act 

and these regulations. We believe a 

strong State complaint system provides 

parents and other individuals an 

opportunity to resolve disputes early 

without having to file a due process 

complaint and without having to go to 

a due process hearing. The State 

complaint procedures are referenced in 

the following three separate sections of 

the Act: (1) Section 611(e)(2)(B)(i) of the 

Act, which requires that States spend a 

portion of the amount of Part B funds 

that they can use for State-level 

activities on complaint investigations; 

(2) Section 612(a)(14)(E) of the Act, 

which provides that nothing in that 

paragraph creates a private right of 

action for the failure of an SEA or LEA 

staff person to be highly qualified or 

prevents a parent from filing a 

complaint about staff qualifications with 

the SEA, as provided for under this part; 

and (3) Section 615(f)(3)(F) of the Act, 

which states that ‘‘[n]othing in this 

paragraph shall be construed to affect 

the right of a parent to file a complaint 

with the State educational agency.’’

Paragraph (f)(3) is titled ‘‘Limitations on 

Hearing’’ and addresses issues such as 

the statute of limitations and that 

hearing issues are limited to the issues 

that the parent has raised in their due 

process notice. The Senate Report 

explains that this provision clarifies that 

‘‘nothing in section 615 shall be 

construed to affect a parent’s right to file 

a complaint with the State educational 

agency, including complaints of 

procedural violations’ (S. Rpt. No. 108–

185, p. 41). 

Furthermore, the State complaint 

procedures were a part of the initial Part 

B regulations in 1977 (45 CFR 

121a.602). These regulations were 

moved into part 76 of the Education 

Department General Administrative 

Regulations (EDGAR) in the early 1980s, 

and were returned to the Part B 

regulations in 1992 (after the 

Department decided to move the 

regulations out of EDGAR and place 

them in program regulations for the 

major formula grant programs). 

Although the State complaint 

procedures have changed in some 

respects in the years since 1977, the 

basic right of any individual or 

organization to file a complaint with the 

SEA alleging any violation of program 

requirements has remained the same. 

For these reasons, we believe the State 

complaint procedures should be 

retained in the regulations. 

Changes: None. 

Comment: Several commenters stated 

that use of the term ‘‘complaint’’ in 

reference to due process complaints and 

State complaint procedures is 

confusing. One commenter requested 

that we use the phrase ‘‘due process 

hearing request’’ instead of ‘‘due process 

complaint’’ in the regulations to avoid 

confusion between the two processes. 

Discussion: Section 615 of the Act 

uses the term ‘‘complaint’’ to refer to 

due process complaints. We have used 

the phrase ‘‘due process complaint’’

instead of the statutory term 

‘‘complaint’’ throughout these 

regulations to provide clarity and 

reduce confusion between due process 

complaints in section 615 of the Act and 

complaints under the State complaint 

procedures in §§ 300.151 through 

300.153. We believe this distinction is 

sufficient to reduce confusion and it is 

not necessary to add further clarification 

regarding the use of the term 

‘‘complaint’’ in these regulations. 


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The regulations for State complaints 

under §§ 300.151 through 300.153 

provide for the resolution of any 

complaint, including a complaint filed 

by an organization or an individual from 

another State alleging that the public 

agency violated a requirement of Part B 

of the Act or of part 300. The public 

agency must resolve a State complaint 

within 60 days, unless there is a time 

extension as provided in § 300.152(b). 

Due process complaints, as noted in 

§ 300.507, however, may be filed by a 

parent or a public agency, consistent 

with §§ 300.507 through 300.508 and 

§§ 300.510 through 300.515. 

Changes: None. 

Adoption of State Complaint Procedures 

(§ 300.151) 

Comment: Many commenters 

recommended that only issues related to 

violations of the law should be subject 

to the State complaint process. One 

commenter stated that the State 

complaint procedures should be used 

only for systemic violations that reach 

beyond the involvement of one child in 

a school. 

A few commenters requested that the 

regulations clarify that the State 

complaint procedures can be used for 

the denial of appropriate services and 

the failure to provide FAPE in 

accordance with a child’s IEP. However, 

some commenters requested that the 

regulations clarify that disputes 

involving appropriateness of services 

and whether FAPE was provided should 

be dealt with in a due process hearing. 

One commenter stated that the State 

complaint procedures should be used to 

investigate whether required procedures 

were followed and not to determine if 

evaluation data and student-specific 

data support the IEP Team’s 

determination of what is appropriate for 

the child. The commenter went on to 

state that the procedures for 

administrative hearings permit the 

examination and cross-examination of 

expert witnesses and establishing the 

credibility of the testimonies, which are 

the functions of a hearing officer, not 

SEA complaint specialists. 

Discussion: Some commenters, as 

noted above, seek to limit the scope of 

the State complaint system. We believe 

the broad scope of the State complaint 

procedures, as permitted in the 

regulations, is critical to each State’s 

exercise of its general supervision 

responsibilities. The complaint 

procedures provide parents, 

organizations, and other individuals 

with an important means of ensuring 

that the educational needs of children 

with disabilities are met and provide the 

SEA with a powerful tool to identify 

and correct noncompliance with Part B 

of the Act or of part 300. We believe 

placing limits on the scope of the State 

complaint system, as suggested by the 

commenters, would diminish the SEA’s 

ability to ensure its LEAs are in 

compliance with Part B of the Act and 

its implementing regulations, and may 

result in an increase in the number of 

due process complaints filed and the 

number of due process hearings held. 

We do not believe it is necessary to 

clarify in the regulations that the State 

complaint procedures can be used to 

resolve a complaint regarding the denial 

of appropriate services or FAPE for a 

child, since § 300.153 is sufficiently 

clear that an organization or individual 

may file a written complaint that a 

public agency has violated a 

requirement of Part B of the Act or part 

300. The State complaint procedures 

can be used to resolve any complaint 

that meets the requirements of 

§ 300.153, including matters concerning 

the identification, evaluation, or 

educational placement of the child, or 

the provision of FAPE to the child. 

We believe that an SEA, in resolving 

a complaint challenging the 

appropriateness of a child’s educational 

program or services or the provision of 

FAPE, should not only determine 

whether the public agency has followed 

the required procedures to reach that 

determination, but also whether the 

public agency has reached a decision 

that is consistent with the requirements 

in Part B of the Act in light of the 

individual child’s abilities and needs. 

Thus, the SEA may need to review the 

evaluation data in the child’s record, or 

any additional data provided by the 

parties to the complaint, and the 

explanation included in the public 

agency’s notice to the parent as to why 

the agency made the determination 

regarding the child’s educational 

program or services. If necessary, the 

SEA may need to interview appropriate 

individuals, to determine whether the 

agency followed procedures and applied 

standards that are consistent with State 

standards, including the requirements of 

Part B of the Act, and whether the 

determination made by the public 

agency is consistent with those 

standards and supported by the data. 

The SEA may, in its effort to resolve a 

complaint, determine that interviews 

with appropriate individuals are 

necessary for the SEA to obtain the 

relevant information needed to make an 

independent determination as to 

whether the public agency is violating a 

requirement of Part B of the Act or of 

part 300. However, such interviews 

conducted by the SEA, as part of its 

effort to resolve a State complaint, are 

not intended to be comparable to the 

requirement in section 615(h)(2) of the 

Act, which provides any party to a due 

process hearing the right to present 

evidence and confront, cross-examine, 

and compel the attendance of witnesses. 

In addition, a parent always has the 

right to file a due process complaint and 

request a due process hearing on any 

matter concerning the identification, 

evaluation, or educational placement of 

his or her child, or the provision of 

FAPE and may seek to resolve their 

disputes through mediation. It is 

important to clarify that when the 

parent files both a due process 

complaint and a State complaint on the 

same issue, the State must set aside any 

part of the complaint that is being 

addressed in the due process hearing 

until the conclusion of the hearing. 

However, any issue in the complaint 

that is not a part of the due process 

hearing must be resolved using the State 

complaint procedures in § 300.152, 

including using the time limit and 

procedures in paragraphs (b) and (d) of 

§ 300.152. (See § 300.152(c)(1)). Under 

the Act, the decision reached through 

the due process proceedings is the final 

decision on those matters, unless a party 

to the hearing appeals that decision by 

requesting State-level review, if 

applicable, or by bringing a civil action 

in an appropriate State or Federal court. 

Changes: None. 

Comment: A few commenters 

requested amending § 300.151(a)(2) to 

specifically include school personnel 

and teacher organizations in the list of 

entities to whom the SEA must 

disseminate the State complaint 

procedures. Another commenter 

requested that representatives of private 

schools or residential treatment 

facilities be included on the list of 

entities to whom the State must 

disseminate complaint procedures. 

Discussion: Section 300.151(a)(2) 

already requires the State to widely 

disseminate the State complaint 

procedures in §§ 300.151 through 

300.153 to parents and other interested 

parties, including parent training and 

information centers, protection and 

advocacy organizations, independent 

living centers, and other appropriate 

entities. There is nothing in these 

regulations that would prevent a State 

from disseminating information about 

the State complaint procedures to 

school personnel, teacher organizations, 

or representatives of private schools or 

residential facilities. However, we 

believe this decision is best left to the 

States. We do not believe that there is 

a need to add these entities to the 

mandatory distribution as individuals 

involved in the education of children 


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with disabilities are generally 

acquainted with these procedures. 

Changes: None. 

Remedies for Denial of Appropriate 

Services (§ 300.151(b)) 

Comment: Many commenters 

requested retaining current 

§ 300.660(b)(1), regarding the awarding 

of monetary reimbursement as a remedy 

for denial of appropriate services. One 

commenter stated that the regulations 

should clarify that States continue to 

have authority to award monetary 

reimbursement, when appropriate. A 

few commenters stated that the 

regulations should clarify that monetary 

reimbursement is not appropriate for a 

majority of State complaints. Some 

commenters stated that removing 

current § 300.660(b)(1) creates 

ambiguity and may result in increased 

litigation because parents may choose to 

use the more costly and time-consuming 

due process system if they believe that 

monetary relief is not available to them 

under the State complaint system. Some 

commenters stated that removing 

current § 300.660(b)(1) implies that 

monetary reimbursement is never 

appropriate. A few commenters stated 

that removing the monetary 

reimbursement provision in current 

§ 300.660(b)(1) suggests that the 

Department no longer supports the use 

of this remedy. A few commenters 

requested that the regulations clarify 

that compensatory services are an 

appropriate remedy when the LEA has 

failed to provide appropriate services. 

Discussion: The SEA is responsible 

for ensuring that all public agencies 

within its jurisdiction meet the 

requirements of the Act and its 

implementing regulations. In light of the 

SEA’s general supervisory authority and 

responsibility under sections 612(a)(11) 

and 616 of the Act, we believe the SEA 

should have broad flexibility to 

determine the appropriate remedy or 

corrective action necessary to resolve a 

complaint in which the SEA has found 

that the public agency has failed to 

provide appropriate services to children 

with disabilities, including awarding 

monetary reimbursement and 

compensatory services. To make this 

clear, we will change § 300.151 to 

include monetary reimbursement and 

compensatory services as examples of 

corrective actions that may be 

appropriate to address the needs of the 

child. 

Changes: We have added 

‘‘compensatory services or monetary 

reimbursement’’ as examples of 

corrective actions in § 300.151(b)(1). 

Comment: One commenter stated that 

the remedies available in § 300.151(b) 

are silent about whether the 

complainant may be reimbursed for 

attorneys’ fees and requested 

clarification as to whether 

reimbursement is permissible for State 

complaints. Another commenter 

requested that the language in section 

615(i)(3)(B) of the Act, regarding the 

awarding of attorneys’ fees for due 

process hearings, be included in the 

State complaint procedures as a way to 

limit repetitive, harassing complaints. 

Discussion: The awarding of 

attorneys’ fees is not addressed in 

§ 300.151(b) because the State complaint 

process is not an administrative 

proceeding or judicial action, and, 

therefore, the awarding of attorneys’ fees 

is not available under the Act for State 

complaint resolutions. Section 

615(i)(3)(B) of the Act clarifies that a 

court may award attorneys’ fees to a 

prevailing party in any action or 

proceeding brought under section 615 of 

the Act. We, therefore, may not include 

in the regulations the language from 

section 615(i)(3)(B) of the Act, as 

suggested by the commenters, because 

State complaint procedures are not an 

action or proceeding brought under 

section 615 of the Act. 

Changes: None. 

Minimum State Complaint Procedures 

(§ 300.152) 

Time Limit; Minimum Procedures 

(§ 300.152(a)) 

Comment: One commenter suggested 

changing § 300.152(a)(1), to include 

situations when the SEA is the subject 

of a complaint. Another commenter 

recommended that the State complaint 

procedures include how the SEA should 

handle a complaint against the SEA for 

its failure to supervise the LEA or 

failure to provide direct services when 

given notice that the LEA has failed to 

do so. 

Discussion: We do not believe it is 

necessary to specify in the regulations 

how the SEA should handle a complaint 

filed against the SEA because § 300.151 

clarifies that, if an organization or 

individual files a complaint, pursuant to 

§§ 300.151 through 300.153, that a 

public agency has violated a 

requirement of Part B of the Act or part 

300, the SEA must resolve the 

complaint. Pursuant to § 300.33 and 

section 612(a)(11) of the Act, the term 

public agency includes the SEA. The 

SEA must, therefore, resolve any 

complaint against the SEA pursuant to 

the SEA’s adopted State complaint 

procedures. The SEA, however, may 

either appoint its own personnel to 

resolve the complaint, or may make 

arrangements with an outside party to 

resolve the complaint. If it chooses to 

use an outside party, however, the SEA 

remains responsible for complying with 

all procedural and remediation steps 

required in part 300. 

Changes: None. 

Comment: One commenter suggested 

that the regulations include language 

requiring an on-site investigation unless 

the SEA determines that it can collect 

all evidence and fairly determine 

whether a violation has occurred with 

the evidence provided by the 

complainant and a review of records. 

Discussion: We do not believe the 

regulations should require the SEA to 

conduct an on-site investigation in the 

manner suggested by the commenter 

because we believe § 300.152(a)(1) is 

sufficient to ensure that an independent 

on-site investigation is carried out if the 

SEA determines that such an 

investigation is necessary to resolve a 

complaint. The minimum State 

complaint procedures in § 300.152 are 

intended to be broad in recognition of 

the fact that States operate differently 

and standards appropriate to one State 

may not be appropriate in another State. 

Therefore, the standards to be used in 

conducting an on-site investigation are 

best determined by the State. 

Changes: None. 

Comment: One commenter stated that 

§ 300.152 would allow an unlimited 

period of time to resolve complaints and 

requested that the regulations limit the 

complaint resolution process to 30 days, 

similar to the procedures when a due 

process hearing is requested. A few 

commenters requested that the 60-day 

time limit be lengthened to 90 days, 

given that many complaints involve 

complex issues and multiple interviews 

with school administrators. 

Discussion: Section 300.152 does not 

allow an unlimited period of time to 

resolve a complaint. Paragraph (a) of 

this section provides that an SEA has a 

time limit of 60 days after a complaint 

is filed to issue a written decision to the 

complainant that addresses each 

allegation in the complaint (unless, 

under paragraph (b) of this section, 

there is an extension for exceptional 

circumstances or the parties agree to 

extend the timeline because they are 

engaged in mediation or in other 

alternative means of dispute resolution, 

if available in the State). We believe the 

right of parents to file a complaint with 

the SEA alleging any violation of Part B 

of the Act or part 300 to receive a 

written decision within 60 days is 

reasonable in light of the SEA’s 

responsibilities in resolving a complaint 

pursuant to its complaint procedures, 

and is appropriate to the interest of 

resolving allegations promptly. In 


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addition, the 60-day time limit for 

resolving a State complaint is a 

longstanding requirement and States 

have developed their State complaint 

procedures based on the 60-day time 

limit. We believe altering this timeframe 

would be unnecessarily disruptive to 

States’ developed complaint procedures. 

For these reasons, we do not believe it 

is appropriate to change the time limit 

as recommended by the commenters. 

Changes: None. 

Comment: One commenter expressed 

concern that the regulations are silent as 

to how an amended State complaint 

should be handled. One commenter 

expressed concern about resolving 

complaints within the 60-day time limit 

when the complainant submits 

additional information about the 

complaint and amends the complaint. 

The commenter requested that in such 

cases, the regulations should allow the 

60-day time limit to begin from the date 

the State receives the amended 

complaint. 

Discussion: Section 300.152 provides 

that the complaint must be resolved 60 

days after a complaint is filed and that 

the complainant must be given an 

opportunity to submit additional 

information, either orally or in writing, 

about the allegations in the complaint. 

Generally, if the additional information 

a parent submits is on the same or 

related incident, it would be part of the 

amended complaint. If the information 

submitted by the complainant is on a 

different or unrelated incident, 

generally, the new information would 

be treated as a separate complaint. On 

the other hand, if the information 

submitted by the complainant were on 

the same incident, generally, the new 

information would be treated as an 

amendment to the original complaint. It 

is, ultimately, left to each State to 

determine whether the new information 

constitutes a new complaint or whether 

it is related to a pending complaint. We 

believe the decision regarding whether 

the additional information is a new 

complaint or an amendment to an 

existing complaint, is best left to the 

State. The State must have the flexibility 

to make this determination based on the 

circumstances of a particular complaint 

and consistent with its State complaint 

process and, therefore, we do not 

believe it is appropriate to regulate 

further on this matter. 

There are no provisions in Part B of 

the Act or in these regulations that 

permit the 60-day time limit to begin 

from the date the State receives an 

amended complaint, if additional 

information submitted by the 

complainant results in an amendment to 

the complaint. However, § 300.152(b) 

permits an extension of the 60-day time 

limit if exceptional circumstances exist 

or the parent and the public agency 

agree to extend the time limit to attempt 

to resolve the complaint through 

mediation. 

Changes: None. 

Comment: One commenter requested 

clarification regarding the time limit for 

a public agency to respond with a 

proposal to resolve the complaint. 

Discussion: The 60-day time limit to 

resolve a complaint does not change if 

a public agency decides to respond to 

the complaint with a proposal to resolve 

the complaint. However, § 300.152(b)(2) 

permits the 60-day time limit to be 

extended under exceptional 

circumstances or if the parent and 

public agency agree to engage in 

mediation or in other alternative means 

of dispute resolution, if available in the 

State. 

Changes: None. 

Comment: One commenter expressed 

concern that § 300.152(a) could limit the 

SEA’s investigation of a complaint to an 

exchange of papers since the SEA is not 

required to conduct an on-site 

investigation. 

Discussion: Section 300.152 provides 

that the SEA must review all relevant 

information and, if it determines it to be 

necessary, carry out an independent onsite investigation in order to make an 

independent determination as to 

whether the public agency is violating a 

requirement of Part B of the Act or part 

300. We believe the SEA is in the best 

position, and should have the 

flexibility, to determine what 

information is necessary to resolve a 

complaint, based on the facts and 

circumstances of the individual case. It 

is true that, in some cases, a review of 

documents provided by the parties may 

be sufficient for the SEA to resolve a 

complaint and that conducting an onsite investigation or interviews with 

staff, for example, may be unnecessary. 

The SEA, based on the facts in the case, 

must decide whether an on-site 

investigation is necessary. We also 

believe requiring an on-site 

investigation for each State complaint 

would be overly burdensome for public 

agencies and unnecessary. 

Changes: None. 

Comment: A few commenters 

requested adding language to proposed 

§ 300.152(a)(3) to allow an SEA to 

provide opportunities for resolving the 

complaint through mediation and other 

informal mechanisms for dispute 

resolution with any party filing a 

complaint, not only the parents. Some 

commenters requested that the 

regulations clarify that mediation is the 

appropriate method to resolve State 

complaints regarding the denial of 

appropriate services. 

A few commenters expressed concern 

that the phrase ‘‘[w]ith the consent of 

the parent’’ in proposed § 300.152(a)(3) 

implies that complaints are 

disagreements between parents and 

public agencies, rather than allegations 

of violations of a child’s or a parent’s 

rights under the Act. 

A few commenters supported the use 

of mediation to resolve a complaint, but 

requested that alternative means of 

dispute resolution be deleted. Other 

commenters expressed concern that 

providing yet another means of 

initiating mediation or other dispute 

resolution is unnecessary because these 

options are already available to parties 

who wish to use them. A few 

commenters requested that the 

regulations define alternative means of 

dispute resolution. 

Discussion: Section 300.152(a)(3) was 

proposed to encourage meaningful, 

informal, resolution of disputes between 

the public agency and parents, 

organizations, or other individuals by 

providing an opportunity for parties to 

resolve disputes at the local level 

without the need for the SEA to resolve 

the matter. We believe that, at a 

minimum, the State’s complaint 

procedures should allow the public 

agency that is the subject of the 

complaint the opportunity to respond to 

a complaint by proposing a resolution 

and provide an opportunity for a parent 

who has filed a complaint and the 

public agency to resolve a dispute by 

voluntarily engaging in mediation. 

However, we do not believe that the 

SEA should be required to offer other 

alternative means of dispute resolution, 

and so will remove the reference to 

these other alternatives from the 

minimum procedures in § 300.152(a)(3). 

We believe it is important to retain 

the provision in § 300.152(a)(3)(ii) 

(proposed § 300.152(a)(3)(B)), with 

modification, to reinforce the use of 

voluntary mediation as a viable option 

for resolving disputes between the 

public agency and the parents at the 

local level prior to the SEA 

investigating, if necessary, and resolving 

a dispute. Resolving disputes between 

parties at the local level through the use 

of mediation, or other alternative means 

of dispute resolution, if available in the 

State, will be less adversarial and less 

time consuming and expensive than a 

State complaint investigation, if 

necessary, or a due process hearing and, 

ultimately, children with disabilities 

will be the beneficiaries of a local level 

resolution. 

Requiring that the public agency 

provide an opportunity for the parent 


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who has filed a complaint and the 

public agency to voluntarily engage in 

mediation in an effort to resolve a 

dispute is an appropriate minimum 

requirement and consistent with the 

statutory provision in section 615(e) of 

the Act that voluntary mediation be 

made available to parties (i.e., parent 

and public agency) to disputes 

involving any matter under Part B of the 

Act, including matters arising prior to 

the filing of a due process complaint. 

However, the statute does not require 

that mediation be available to other 

parties, and we believe it would be 

burdensome to expand, through 

regulation, new § 300.152(a)(3)(ii) 

(proposed § 300.152(a)(3)(B)) to require 

that States offer mediation to nonparents. Although we do not believe we 

should regulate to require that 

mediation be offered to non-parents, 

there is nothing in the Act or these 

regulations that would preclude an SEA 

from permitting the use of mediation, or 

other alternative dispute resolution 

mechanisms, if available in the State, to 

resolve a State complaint filed by an 

organization or individual other than a 

parent, and we will add language to 

§ 300.152(b)(1)(ii) to permit extensions 

of the timeline if the parties are 

voluntarily engaged in any of these 

dispute resolution procedures. In fact, 

we encourage SEAs and their public 

agencies to consider alternative means 

of resolving disputes between the public 

agency and organizations or other 

individuals, at the local level, consistent 

with State law and administrative 

procedures. It is up to each State, 

however, to determine whether nonparents can use mediation or other 

alternative means of dispute resolution. 

Section 615(e) of the Act makes clear 

that mediation is a voluntary 

mechanism for resolving disputes and 

may not be used to delay or deny a 

parent’s right to a due process hearing 

on the parent’s due process complaint, 

or to deny any other rights afforded 

under Part B of the Act. In light of the 

fact that mediation is a voluntary 

process, the parties only need to agree 

to engage in mediation and it is not 

necessary to obtain parental written 

consent to engage in this voluntary 

process. We will, therefore, change new 

§ 300.152(a)(3)(ii) (proposed 

§ 300.152(a)(3)(B)) by removing the 

phrase ‘‘[w]ith the consent of the 

parent’’ and adding a reference to 

§ 300.506. 

We do not believe it is necessary to 

include in the regulations a definition of 

the term ‘‘alternative means of dispute 

resolution’’ because the term is 

generally understood to refer to other 

procedures and processes that States 

have found to be effective in resolving 

disputes quickly and effectively but 

does not include those dispute 

resolution processes required under the 

Act or these final regulations. 

Changes: We have changed new 

§ 300.152(a)(3)(ii) (proposed 

§ 300.152(a)(3)(B)) by removing ‘‘with 

the consent of the parent’’ and ‘‘or other 

alternative means of dispute resolution’’

and adding a reference to § 300.506. We 

have also amended § 300.152(b)(1)(ii), as 

stated above, to clarify that a public 

agency’s State complaint procedures 

must permit an extension of the 60-day 

time limit if a parent (or individual or 

organization, if mediation, or other 

alternative means of dispute resolution 

is available to the individual or 

organization under State procedures) 

who has filed a complaint and the 

public agency voluntarily agree to 

extend the time to engage in mediation 

or other alternative means of dispute 

resolution, if available in the State. 

Comment: A few commenters stated 

that the agreement to extend the 60-day 

time limit (to allow the parties to engage 

in mediation, or alternative means of 

dispute resolution, or both) should meet 

the consent requirements in § 300.9. 

One commenter requested an extension 

of the 60-day time limit to resolve 

complaints when mediation is 

underway. 

Discussion: We do not agree that 

consent, as defined in § 300.9, should be 

required to extend the 60-day time limit 

because it would add burden and is not 

necessary. It is sufficient to require 

agreement of the parties. At any time 

that either party withdraws from 

mediation or other alternative means of 

dispute resolution, or withdraws 

agreement to the extension of the time 

limit, the extension would end. We 

believe § 300.152(b) is sufficiently clear 

that an extension of the 60-day time 

limit is permissible if exceptional 

circumstances exist with respect to a 

particular complaint, or if the parent 

and the public agency agree to extend 

the time to engage in mediation. We also 

believe it would be permissible to 

extend the 60-day time limit if the 

public agency and an organization or 

other individual agree to engage in an 

alternative means of dispute resolution, 

if available in the State, and the parties 

agree to extend the 60-day time limit. 

We will revise § 300.152(b)(1)(ii) to 

include this exception. 

Changes: We have revised 

§ 300.152(b)(1)(ii) to clarify that it 

would be permissible to extend the 60- 

day time limit if the parties agree to 

engage in other alternative means of 

dispute resolution, if available in the 

State. 

Comment: Several commenters 

requested that § 300.152(a) be modified 

to include language allowing parents, in 

addition to the public agency, an 

opportunity to submit a proposal to 

resolve the complaint. 

Discussion: We do not believe it is 

necessary to include the language in 

§ 300.152(a) as suggested by the 

commenter because § 300.153(b)(4)(v) 

already requires that the signed written 

complaint submitted to the SEA by the 

complainant include a proposed 

resolution to the problem. A parent who 

is a complainant must include a 

proposed resolution to the problem to 

the extent known and available to the 

parent at the time the complaint is filed. 

Changes: None. 

Complaints Filed Under This Section 

and Due Process Hearings Under 

§ 300.507 or §§ 300.530 Through 

300.532 (§ 300.152(c)) 

Comment: A few commenters 

requested that the regulations include a 

provision to allow parents to use the 

State complaint process to enforce 

agreements reached in mediation and 

resolution sessions. One commenter 

expressed concern that if an SEA does 

not have authority to enforce 

agreements arising from mediation and 

resolution sessions, the burden will be 

on a parent to incur costs necessary to 

file a petition with a court to have the 

agreement enforced. 

Discussion: The Act provides that the 

enforcement and implementation of 

agreements reached through mediation 

and resolution sessions may be obtained 

through State and Federal courts. 

Section 300.506(b)(7), consistent with 

section 615(e)(2)(F)(iii) of the Act, states 

that a written, signed mediation 

agreement is enforceable in any State 

court of competent jurisdiction or in a 

district court of the United States. 

Similarly, § 300.510(c)(2), consistent 

with section 615(f)(1)(B)(iii)(II) of the 

Act, states that a written settlement 

agreement resulting from a resolution 

meeting is enforceable in any State court 

of competent jurisdiction or in a district 

court of the United States. 

However, as noted in the Analysis of 

Comments and Changes for subpart E, 

we have added new § 300.537 that 

allows, but does not require, a State to 

have mechanisms or procedures that 

permit parties to mediation or 

resolution agreements to seek 

enforcement of those agreements and 

decisions at the SEA level. We believe 

this provision is sufficient to allow 

States the flexibility to determine what 

mechanisms or procedures, if any, may 

be appropriate to enforce such 

agreements, including utilizing their 


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State complaint procedures, if they 

choose to do so, so long as the 

mechanisms or procedures are not used 

to deny or delay a parent’s right to seek 

enforcement through State and Federal 

courts. 

Changes: None. 

Comment: Numerous commenters 

requested that current § 300.661(c)(3), 

regarding the SEA’s responsibility to 

resolve complaints alleging a public 

agency’s failure to implement due 

process decisions, be retained. Many 

commenters raised concerns that 

removing this language will lead to 

more litigation. One commenter stated 

that parents would be forced to litigate 

due process decisions, which will 

prolong the denial of FAPE to children. 

Another commenter stated that not 

allowing States to enforce a hearing 

officer’s decision encourages litigation 

because it is the only avenue for relief. 

Several commenters stated that parents 

are placed at a disadvantage because 

they may not have the resources to file 

in State or Federal court. 

Discussion: The SEA’s obligation to 

implement a final hearing decision is 

consistent with the SEA’s general 

supervisory responsibility, under 

sections 612(a)(11) and 616 of the Act, 

over all education programs for children 

with disabilities in the State, which 

includes taking necessary and 

appropriate actions to ensure that the 

provision of FAPE and all the 

requirements in Part B of the Act and 

part 300 are carried out. However, we 

agree that the requirements from current 

§ 300.661(c)(3) should be retained for 

clarity. 

Changes: We have added the 

requirement in current § 300.661(c)(3) as 

new § 300.152(c)(3). 

Comment: Numerous commenters 

requested retaining current 

§ 300.661(c)(1), which requires that any 

issue in the complaint that is not a part 

of a due process complaint be resolved 

using the applicable State complaint 

timelines and procedures. One 

commenter stated that § 300.152(c)(1) 

requires the State to set aside an entire 

complaint if due process proceedings 

commence with respect to any subject 

that is raised in the complaint. A few 

commenters expressed concern that if 

issues in a State complaint, which are 

not part of a due process complaint, are 

not investigated until the due process 

complaint is resolved, children may go 

without FAPE for extended periods of 

time. These commenters also stated that 

parents are likely to file for due process 

on every issue of concern, rather than 

using the more expeditious and less 

expensive State complaint procedures. 

Discussion: We agree that language in 

current § 300.661(c), requiring that 

States set aside any part of a State 

complaint that is being addressed in a 

due process hearing, until the 

conclusion of the hearing and resolve 

any issue that is not a part of the due 

process hearing, should be retained. 

Changes: We have revised 

§ 300.152(c)(1) by adding the 

requirements in current § 300.661(c)(1) 

to the regulations. 

Comment: One commenter stated that 

the regulations do not address the 

disposition of a complaint if a parent 

and a public agency come to a 

resolution of a complaint through 

mediation. One commenter 

recommended that the regulations 

provide guidance on how an SEA 

should handle a complaint that is 

withdrawn. Another commenter 

requested clarification on what should 

occur if an SEA does not approve of the 

agreement reached between the parent 

and the public agency. 

Discussion: We do not believe it is 

necessary to regulate on these matters, 

as recommended by the commenters. 

Section 615(e)(2)(F) of the Act and 

§ 300.506(b)(7) clarify that an agreement 

reached through mediation is a legally 

binding document enforceable in State 

and Federal courts. Therefore, an 

agreement reached through mediation is 

not subject to the SEA’s approval. We 

strongly encourage parties to resolve a 

complaint at the local level without the 

need for the SEA to intervene. If a 

complaint is resolved at the local level 

or is withdrawn, no further action is 

required by the SEA to resolve the 

complaint. 

Changes: None. 

Comment: One commenter suggested 

including language in the regulations 

that would require parties to provide 

evidence under threat of perjury. 

Another commenter stated that the State 

complaint process should be nonadversarial and that neither party 

should have the right to review the 

other’s submissions or to cross-examine 

the other party. 

Discussion: We do not believe it is 

appropriate to include the language 

suggested by the commenters because 

we believe requiring parties to provide 

evidence under the threat of perjury, 

permitting parties to review 

submissions, and allowing one party to 

cross-examine the other party are 

contrary to the intent of the State 

complaint process. The State complaint 

process is intended to be less 

adversarial than the more formal filing 

of a due process complaint and possibly 

going to a due process hearing. To make 

the changes requested by the 

commenters will serve only to make the 

State complaint process more 

adversarial and will not be in the best 

interest of the child. The State 

complaint procedures in §§ 300.151 

through 300.153 do not require parties 

to provide evidence, nor do they require 

that a State allow parties to review the 

submissions of the other party or to 

cross-examine witnesses. 

Changes: None. 

Filing a Complaint (§ 300.153) 

Comment: One commenter 

recommended the regulations include a 

limit on the number of times that an 

individual may file a State complaint 

against a public agency. 

Discussion: An SEA is required to 

resolve any complaint that meets the 

requirements of § 300.153, including 

complaints that raise systemic issues, 

and individual child complaints. It 

would be inconsistent with the Act’s 

provisions in section 616 regarding 

enforcement and the Act’s provisions in 

section 612 regarding general 

supervision for an SEA to have a State 

complaint procedure that removes or 

limits a party’s right to file a complaint 

that a public agency has violated a 

requirement of Part B of the Act or part 

300, including limiting the number of 

times a party can file a complaint with 

the SEA. Therefore, it is not appropriate 

to include in the regulations the 

language suggested by the commenter, 

nor should the SEA include in its State 

complaint procedures any restriction on 

the number of times a party can file a 

complaint, as long as the complaint 

meets the requirements of § 300.153. 

Changes: None. 

Comment: Many commenters 

requested retaining current § 300.662(c), 

which permits a complaint to be filed 

about a violation that occurred more 

than one year prior to the date the 

complaint is received if the violation is 

continuing or the complainant is 

requesting compensatory services for a 

violation that occurred more than three 

years prior to the date the complaint is 

received. 

Some commenters requested that the 

regulations permit a parent to have as 

much time to file a State complaint as 

a parent would have to file a due 

process complaint (two years, unless 

provided otherwise by State law). One 

commenter stated that extensions of the 

statute of limitations should be granted 

when circumstances warrant an 

extension. 

Another commenter suggested adding 

language providing that the timeline 

begins when a parent first learns about 

the violation. A few commenters stated 

that parents need a longer statute of 


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limitations for State complaints because 

they do not always know about 

violations when they occur and may not 

fully understand how the violation 

affects their child’s education. 

Several commenters stated that 

Congress did not intend to create a oneyear statute of limitations for State 

complaints when it created a two-year 

statute of limitations for due process 

hearings. Several commenters stated 

that there is no evidence that Congress 

intended to change the current threeyear statute of limitations on the 

parents’ right to file a State complaint 

when the violation is ongoing or 

compensatory services are being 

requested. 

Discussion: We believe a one-year 

timeline is reasonable and will assist in 

smooth implementation of the State 

complaint procedures. The references to 

longer periods for continuing violations 

and for compensatory services claims in 

current § 300.662(c) were removed to 

ensure expedited resolution for public 

agencies and children with disabilities. 

Limiting a complaint to a violation that 

occurred not more than one year prior 

to the date that the complaint is 

received will help ensure that problems 

are raised and addressed promptly so 

that children receive FAPE. We believe 

longer time limits are not generally 

effective and beneficial to the child 

because the issues in a State complaint 

become so stale that they are unlikely to 

be resolved. However, States may 

choose to accept and resolve complaints 

regarding alleged violations that 

occurred outside the one-year timeline, 

just as they are free to add additional 

protections in other areas that are not 

inconsistent with the requirements of 

the Act and its implementing 

regulations. For these reasons, we do 

not believe it is necessary to retain the 

language in current § 300.662(c). 

We do not believe it is appropriate to 

change the timeline to begin when a 

parent first learns about the violation, as 

suggested by the commenter, because 

such a provision could lead to some 

complaints being filed well beyond one 

year from the time the violation actually 

occurred. This also would make the 

issue of the complaint so stale that the 

SEA would not be able to reasonably 

resolve the complaint and recommend 

an appropriate corrective action. 

As we stated earlier in the Analysis of 

Comments and Changes for this subpart, 

Congress did not specifically address or 

detail a State complaint process in the 

Act; nor did Congress express an 

opinion regarding the time limit for 

filing a complaint under a State’s 

complaint process. 

Changes: None. 

Comment: Several commenters stated 

that § 300.153(c) appears to indicate that 

if a State complaint, is also the subject 

of a due process complaint, the time 

period to file the complaint is two years, 

rather than the one-year time limit 

applicable for all other State complaints. 

Several commenters stated that this 

provision should be removed and that a 

one-year limitation should apply to all 

State complaints, regardless of whether 

a request for a due process hearing is 

filed on the issue(s) in the complaint. 

Discussion: If a State complaint 

contains multiple issues of which one or 

more is part of a due process hearing, 

the one-year statute of limitations would 

apply to the issues that are resolved 

under the State complaint procedures; 

the State due process statute of 

limitations would apply to the issues 

that are the subject of the due process 

hearing. We agree that the language in 

§ 300.153 is confusing and will amend 

the language to remove the reference to 

the due process complaint. 

Changes: We have removed the 

phrase, ‘‘Except for complaints covered 

under § 300.507(a)(2)’’ in § 300.153(c). 

Comment: Some commenters 

recommended removing the 

requirement in § 300.153(d) that 

requires the party filing the complaint to 

forward a copy of the complaint to the 

LEA or public agency serving the child 

at the same time the party files the 

complaint with the SEA. One 

commenter stated that filing a complaint 

is onerous enough for parents, without 

including an extra step of requiring a 

copy of the complaint to be forwarded 

to the school. One commenter stated 

that this poses an unnecessary 

paperwork burden on parents. A few 

commenters stated that forwarding a 

copy of the complaint to the LEA should 

be the responsibility of the SEA, not the 

parents. 

One commenter expressed concern 

that requiring the party filing the 

complaint to forward a copy of the 

complaint to the LEA or public agency 

serving the child will discourage 

parents or school personnel whistle 

blowers from filing a complaint and 

recommended instead, that the 

regulations require SEAs to provide the 

LEA with a concise statement of fact 

upon which the complaint is based and 

the provisions of laws and rules that are 

at issue. A few commenters requested 

including language in § 300.153(d) 

giving the SEA discretion to protect the 

confidentiality of the complainant. A 

few commenters recommended 

removing the requirement in 

§ 300.153(b)(3) for the written complaint 

to include the signature and contact 

information for the complainant. 

Discussion: The purpose of requiring 

the party filing the complaint to forward 

a copy of the complaint to the LEA or 

public agency serving the child, at the 

same time the party files the complaint 

with the SEA, is to ensure that the 

public agency involved has knowledge 

of the issues and an opportunity to 

resolve them directly with the 

complaining party at the earliest 

possible time. The sooner the LEA 

knows that a complaint is filed and the 

nature of the issue(s), the quicker the 

LEA can work directly with the 

complainant to resolve the complaint. 

We believe the benefit of having the 

complainant forward a copy of the 

complaint to the LEA or public agency 

far outweigh the minimal burden placed 

on the complainant because it will lead 

to a faster resolution of the complaint at 

the local level. For these reasons, we 

also do not believe it is more efficient 

to have the SEA forward the complaint 

to the public agency or provide the 

public agency with a statement 

summarizing the complaint. 

We do not believe that the complaint 

procedures should provide for the 

confidentiality of the complainant. The 

complainant should not remain 

unknown to the public agency that is 

the subject of the complaint because 

that public agency needs to know who 

the complainant is and something about 

the complaint (consistent with 

§ 300.153) before it can be expected to 

resolve the issues. We believe it is 

reasonable to require a party to file a 

signed complaint and provide contact 

information to the SEA in order to 

ensure the credibility of the complaint 

and provide the SEA with the basic 

contact information necessary for the 

SEA to handle complaints 

expeditiously. If the SEA receives a 

complaint that is not signed, as required 

in § 300.153, the SEA may choose to 

dismiss the complaint. 

Changes: None. 

Comment: One commenter expressed 

concern that a parent must have legal 

knowledge in order to correctly file a 

State complaint. 

Discussion: Contrary to the 

commenter’s assertion that a parent 

must have legal knowledge to file a 

complaint, we believe the State 

complaint procedures, which are under 

the direct control of the SEA, provide 

the parent and the school district with 

mechanisms that allow them to resolve 

differences without having to resort to a 

more costly and cumbersome due 

process complaint, which, by its nature, 

is litigious. We believe if a State 

effectively implements its State 

complaint procedures, both parents and 

public agencies will generally find the 


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process efficient and easy to initiate. We 

further believe that the requirement in 

§ 300.509 that each SEA must develop 

model forms to assist parents in filing a 

State complaint in accordance with 

§§ 300.151 through 300.153, and in 

filing a due process complaint in 

accordance with §§ 300.507(a) and 

300.508(a) through (c), will make the 

process of filing such complaints much 

easier for parents and others. 

Changes: We have made a minor 

wording change in § 300.153(b)(4) for 

clarity. 

Comment: One commenter stated that 

the complainant should not have to 

propose a resolution to the problem, as 

required in § 300.153(b)(4)(v), in order 

to have the State investigate a 

complaint. 

Discussion: Section 300.153(b)(4)(v) 

requires the complainant to propose a 

resolution to the complaint only to the 

extent known and available to the 

complainant at the time the complaint 

is filed. We believe this proposed 

resolution is necessary because it gives 

the complainant an opportunity to state 

what he or she believes to be the 

problem and how the complainant 

believes it can be resolved. This is 

important because it gives the 

complainant an opportunity to tell the 

public agency what is wrong and what 

it would take to fix the problem from 

the complainant’s point of view. It also 

will give the LEA an opportunity to 

choose either to do as the complainant 

requests or propose a solution that it 

believes would resolve the issue raised 

by the complainant. Thus, if successful, 

the parties will avoid an adversarial 

relationship and possibly the expense of 

a due process hearing. 

Changes: None. 

Comment: One commenter requested 

that § 300.153(d) include language 

allowing an LEA to appeal an SEA 

finding to an administrative hearing or 

the courts. Another commenter 

expressed concern that the State 

complaint procedures lack an appeals 

process for parties that lose under the 

State complaint procedures. 

Discussion: The regulations neither 

prohibit nor require the establishment of 

procedures to permit an LEA or other 

party to request reconsideration of a 

State complaint decision. We have 

chosen to be silent in the regulations 

about whether a State complaint 

decision may be appealed because we 

believe States are in the best position to 

determine what, if any, appeals process 

is necessary to meet each State’s needs, 

consistent with State law. 

If a State chooses, however, to adopt 

a process for appealing a State 

complaint decision, such process may 

not waive any of the requirements in 

§§ 300.151 through 300.153. Section 

300.152 requires that the SEA issue a 

final decision on each complaint within 

60 calendar days after the complaint is 

filed, unless the SEA extends the 

timeline as provided in § 300.152(b). 

This means that, absent an appropriate 

extension of the timeline for a particular 

complaint, the State must issue a final 

decision within 60 calendar days. 

However, if after the SEA’s final 

decision is issued, a party who has the 

right to request a due process hearing 

(that is, the parent or LEA) and who 

disagrees with the SEA’s decision may 

initiate a due process hearing, provided 

that the subject of the State complaint 

involves an issue about which a due 

process hearing can be filed and the 

two-year statute of limitations for due 

process hearings (or other time limit 

imposed by State law) has not expired. 

Changes: None. 

Method of Ensuring Services (§ 300.154) 

Establishing Responsibility for Services 

(§ 300.154(a)) 

Comment: One commenter suggested 

posting interagency agreements on SEA 

Web sites and in public buildings, and 

making them available upon request. 

Discussion: There is nothing in the 

Act or these regulations that would 

prohibit an SEA from posting 

interagency agreements on Web sites, in 

public buildings, or making them 

available upon request. However, we 

believe that it would be unnecessarily 

burdensome to require SEAs to do so 

and any decision regarding posting 

interagency agreements is best left to the 

States’ discretion. 

Changes: None. 

Comment: One commenter stated that 

interagency agreements are important 

because agencies other than SEAs (e.g., 

mental health agencies that place 

children in residential facilities) are 

responsible for providing special 

educational services. The commenter 

requested that the regulations specify 

that residential facilities be allowed 

reimbursement for providing 

educational services and that children 

in these facilities are entitled to FAPE. 

Discussion: We do not believe it is 

necessary to further clarify in the 

regulations that children with 

disabilities who are placed in 

residential facilities by public agencies 

are entitled to FAPE because § 300.146, 

consistent with section 612(a)(10)(B) of 

the Act, provides that SEAs must ensure 

that children with disabilities receive 

FAPE when they are placed in or 

referred to private schools or facilities 

by public agencies. Whether residential 

facilities can receive reimbursement for 

educational services will depend on 

how States have apportioned financial 

responsibility among State agencies and 

we do not believe that regulating on this 

issue is appropriate or necessary. 

Changes: None. 

Obligation of Noneducational Public 

Agencies (§ 300.154(b)) 

Comment: One commenter expressed 

concern that § 300.154(b) allows LEAs 

to discontinue services when there is a 

dispute with other agencies and 

requested the regulations require LEAs 

to bear the ultimate responsibility for 

providing services. 

Discussion: We do not believe it is 

necessary to further clarify that the LEA 

is ultimately responsible for providing 

services because § 300.154(b)(2) 

sufficiently requires that if a public 

agency other than an educational agency 

fails to provide or pay for the special 

education and related services in 

§ 300.154(b)(1), the LEA or State agency 

responsible for developing the child’s 

IEP must provide or pay for these 

services to the child in a timely manner. 

Disagreements about the interagency 

agreements should not stop or delay the 

receipt of the services described in the 

child’s IEP. Section 300.103(c) also 

addresses timely services and clarifies 

that, consistent with § 300.323(c), the 

State must ensure there is no delay in 

implementing a child’s IEP, including 

any situation in which the source for 

providing or paying for the special 

education or related services to a child 

is being determined. Section 

612(a)(12)(A)(i) of the Act provides that 

the financial responsibility of public 

agencies (other than an educational 

agency), including Medicaid and other 

public insurers obligated under Federal 

or State law or assigned responsibility 

under State policy, must precede 

financial responsibility of the LEA. 

Changes: None. 

Children With Disabilities Who Are 

Covered by Public Benefits or Insurance 

(§ 300.154(d)) 

Comment: One commenter expressed 

concern regarding the use of a parent’s 

public benefits or insurance to pay for 

services required under Part B of the Act 

because co-payments and other out-ofpocket expenses would be a hardship to 

low-income families. A few commenters 

stated that services paid for by public 

benefits or insurance would count 

against a child’s lifetime cap. 

Discussion: The commenters’

concerns are addressed in 

§ 300.154(d)(2)(ii) and (d)(2)(iii). Section 

300.154(d)(2)(ii) states that a public 

agency may not require parents to incur 


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an out-of-pocket expense, such as the 

payment of a deductible or co-pay 

amount, in filing a claim for services, 

and may pay from funds reserved under 

the Act, the cost that the parent would 

otherwise be required to pay. In 

addition, § 300.154(d)(2)(iii) states that a 

public agency may not use a child’s 

benefits under a public benefits or 

insurance program if that use would 

decrease lifetime coverage or any other 

insured benefit; result in the family 

paying for services that would otherwise 

be covered by the public benefits or 

insurance program and that are required 

for the child outside of the time the 

child is in school; increase premiums or 

lead to the discontinuation of benefits or 

insurance; or risk loss of eligibility for 

home and community-based waivers, 

based on aggregate health-related 

expenditures. 

Changes: None. 

Comment: One commenter suggested 

changing ‘‘parental consent’’ to 

‘‘informed parental consent.’’ One 

commenter recommended requiring 

public agencies to obtain parental 

consent each time the public agency 

seeks to access the parent’s public 

benefits or insurance. Some commenters 

recommended removing the 

requirement to obtain parental consent 

to use Medicaid benefits to pay for 

services required under Part B of the 

Act. A few commenters opposed 

requiring parental consent, stating the 

process is an administrative burden. 

Other commenters recommended 

waiving the requirement for consent if 

the agency has taken reasonable 

measures to obtain such consent or the 

parent’s consent was given to the State 

Medicaid Agency. 

Discussion: In order for a public 

agency to use the Medicaid or other 

public benefits or insurance program in 

which a child participates to provide or 

pay for services required under the Act, 

the public agency must provide the 

benefits or insurance program with 

information from the child’s education 

records (e.g., services provided, length 

of the services). Information from a 

child’s education records is protected 

under the Family Educational Rights 

and Privacy Act of 1974, 20 U.S.C. 

1232(g) (FERPA), and section 617(c) of 

the Act. Under FERPA and section 

617(c) of the Act, a child’s education 

records cannot be released to a State 

Medicaid agency without parental 

consent, except for a few specified 

exceptions that do not include the 

release of education records for 

insurance billing purposes. Parental 

consent requires, among other things, 

that the parent be fully informed in his 

or her native language, or other mode of 

communication, consistent with § 300.9. 

Thus, there is no need to change 

‘‘parental consent’’ to ‘‘informed 

consent,’’ as recommended by one 

commenter. However, we believe it 

would avoid confusion for the 

references to ‘‘consent’’ in paragraphs 

(d) and (e) in § 300.154 to be consistent. 

Therefore, we will add a reference to 

§ 300.9 in § 300.154(d)(2)(iv)(A) and 

delete ‘‘informed’’ from § 300.154(e)(1). 

We believe obtaining parental consent 

each time the public agency seeks to use 

a parent’s public insurance or other 

public benefits to provide or pay for a 

service is important to protect the 

privacy rights of the parent and to 

ensure that the parent is fully informed 

of a public agency’s access to his or her 

public benefits or insurance and the 

services paid by the public benefits or 

insurance program. Therefore, we will 

revise § 300.154(d)(2)(iv) to clarify that 

parental consent is required each time 

the public agency seeks to use the 

parent’s public insurance or other 

public benefits. We do not believe that 

it would be appropriate to include a 

provision permitting waiver of parental 

consent in this circumstance, even 

where a public agency makes reasonable 

efforts to obtain the required parental 

consent. However, we agree with the 

commenter that a public agency could 

satisfy parental consent requirements 

under FERPA and section 617(c) of the 

Act if the parent provided the required 

parental consent to the State Medicaid 

agency, and the consent satisfied the 

Part B definition of consent in § 300.9. 

We also believe that it is important to 

let parents know that their refusal to 

allow access to their public benefits or 

insurance does not relieve the public 

agency of its responsibility to ensure 

that all required services are provided at 

no cost to the parents. We will, 

therefore, add a new paragraph (B) to 

§ 300.154(d)(2)(iv) to make this clear. 

Finally, because we have referenced 

the definition of consent in § 300.9 

throughout the rest of these regulations, 

rather than the consent provisions in 

§ 300.622, we have removed the 

reference to § 300.622. 

Changes: Section 300.154(d)(2)(iv) has 

been changed to clarify that consent 

must be obtained each time the public 

agency seeks to access a parent’s public 

benefits or insurance and to clarify that 

a parent’s refusal to allow access to the 

parent’s public benefits or insurance 

does not relieve the public agency of its 

responsibility to ensure that all required 

services are provided at no cost to the 

parent. The reference to § 300.622 has 

been removed and we have added 

‘‘consistent with § 300.9’’ following 

‘‘parental consent’’ in 

§ 300.154(d)(2)(iv)(A). For consistency, 

we have removed ‘‘informed’’ before 

‘‘consent’’ in § 300.154(e)(1). 

Comment: One commenter stated that 

LEAs and agencies that, by law, must 

provide educational services should not 

be allowed to use public benefits or 

insurance to pay for these programs. 

One commenter suggested that the Act 

be more closely aligned with the 

Medicaid laws. One commenter 

requested requiring public benefits or 

insurance agencies, when paying for 

special education, to meet the standards 

of the Act, and not the standards for 

medical environments. 

Discussion: We disagree with the 

comment that LEAs and other public 

agencies responsible for providing 

special education and related services to 

children with disabilities should not be 

allowed to use public benefits or 

insurance to pay for these services. 

Pursuant to section 612(a)(12) of the 

Act, if a child is covered by a public 

benefits or insurance program and there 

is no cost to the family or the child in 

using the benefits of that program to 

support a service included in a child’s 

IEP, the public agency is encouraged to 

use the public benefits or insurance to 

the extent possible. We believe public 

benefits or insurance are important 

resources for LEAs and other public 

agencies to access, when appropriate, to 

assist in meeting their obligation to 

make FAPE available to all children 

who are eligible to receive services. 

Section 300.103 retains the 

Department’s longstanding provision 

that clarifies that each State may use 

whatever State, local, Federal, and 

private sources of support are available 

in the State to meet the requirements of 

part 300. Nothing in part 300 relieves an 

insurer or similar third party from an 

otherwise valid obligation to provide or 

pay for services provided to a child with 

a disability. 

The Act does not give the Department 

the authority to impose the standards of 

the Act on public benefits or insurance 

agencies, when paying for special 

education. If, however, a third party 

provider, such as a public benefits or 

insurance company, is unable to 

provide funding for services outside a 

clinical setting or other specific setting, 

the public agency cannot use the third 

party provider’s inability to provide 

such funding as an appropriate 

justification for not providing a child 

with a disability FAPE in the LRE. 

Nothing in part 300 alters the 

requirements imposed on a State 

Medicaid agency, or any other agency 

administering a public benefits or 

insurance program by Federal statute, 

regulation, or policy under Title XIX or 


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Title XXI of the Social Security Act, 42 

U.S.C. 1396 through 1396(v) and 42 

U.S.C. 1397aa through 1397jj, or any 

other public benefits or insurance 

program. See section 612(a)(12) and (e) 

of the Act. 

We believe the regulations are 

sufficiently aligned with the Medicaid 

program and consistent with the Act 

and no further clarification is necessary. 

Changes: None. 

Comment: One commenter requested 

clarifying that a child cannot be denied 

Medicaid-supported medical services 

merely because he or she receives 

educational services funded by 

Medicaid. 

Discussion: We do not believe further 

clarification is necessary because 

§ 300.154(d)(2) is sufficiently clear that 

the child’s receipt of Medicaid-funded 

educational services, consistent with the 

Act and these regulations, should not 

deny the child receipt of other services 

for which he or she may be eligible 

under Medicaid or other noneducational 

programs. Further, § 300.103(b) provides 

that nothing in part 300 relieves an 

insurer or third party from an otherwise 

valid obligation to pay for services 

provided to a child with a disability. 

Changes: None. 

Comment: One commenter stated that 

LEAs and agencies that, by law, must 

provide educational services should not 

be allowed to use public benefits or 

insurance to pay for these programs. 

One commenter suggested that the Act 

be more closely aligned with the 

Medicaid laws. One commenter 

requested requiring public benefits or 

insurance agencies, when paying for 

special education, to meet the standards 

of the Act, and not the standards for 

medical environments. 

Discussion: We disagree with the 

comment that LEAs and other public 

agencies responsible for providing 

special education and related services to 

children with disabilities should not be 

allowed to use public benefits or 

insurance to pay for these services. 

Pursuant to section 612(a)(12) of the 

Act, if a child is covered by a public 

benefits or insurance program and there 

is no cost to the family or the child in 

using the benefits of that program to 

support a service included in a child’s 

IEP, the public agency is encouraged to 

use the public benefits or insurance to 

the extent possible. We believe public 

benefits or insurance are important 

resources for LEAs and other public 

agencies to access, when appropriate, to 

assist in meeting their obligation to 

make FAPE available to all children 

who are eligible to receive services. 

Section 300.103 retains the 

Department’s longstanding provision 

that clarifies that each State may use 

whatever State, local, Federal, and 

private sources of support are available 

in the State to meet the requirements of 

part 300. Nothing in part 300 relieves an 

insurer or similar third party from an 

otherwise valid obligation to provide or 

pay for services provided to a child with 

a disability. 

The Act does not give the Department 

the authority to impose the standards of 

the Act on public benefits or insurance 

agencies, when paying for special 

education. If, however, a third party 

provider, such as a public benefits or 

insurance company, is unable to 

provide funding for services outside a 

clinical setting or other specific setting, 

the public agency cannot use the third 

party provider’s inability to provide 

such funding as an appropriate 

justification for not providing a child 

with a disability FAPE in the LRE. 

Nothing in part 300 alters the 

requirements imposed on a State 

Medicaid agency, or any other agency 

administering a public benefits or 

insurance program by Federal statute, 

regulation, or policy under Title XIX or 

Title XXI of the Social Security Act, 42 

U.S.C. 1396 through 1396(v) and 42 

U.S.C. 1397aa through 1397jj, or any 

other public benefits or insurance 

program. See section 612(a)(12) and (e) 

of the Act. 

We believe the regulations are 

sufficiently aligned with the Medicaid 

program and consistent with the Act 

and no further clarification is necessary. 

Changes: None. 

Comment: One commenter requested 

clarifying that a child cannot be denied 

Medicaid-supported medical services 

merely because he or she receives 

educational services funded by 

Medicaid. 

Discussion: We do not believe further 

clarification is necessary because 

§ 300.154(d)(2) is sufficiently clear that 

the child’s receipt of Medicaid-funded 

educational services, consistent with the 

Act and these regulations, should not 

deny the child receipt of other services 

for which he or she may be eligible 

under Medicaid or other noneducational 

programs. Further, § 300.103(b) provides 

that nothing in part 300 relieves an 

insurer or third party from an otherwise 

valid obligation to pay for services 

provided to a child with a disability. 

Changes: None. 

Personnel Qualifications (§ 300.156) 

Comment: One commenter requested 

that § 300.156 use the term ‘‘standards’’

when referring to personnel 

qualifications. 

Discussion: We are not changing 

§ 300.156 because its language follows 

the specific language in section 

612(a)(14) of the Act. Current § 300.136 

refers to ‘‘personnel standards’’ but was 

removed consistent with the changes in 

section 612(a)(14) of the Act. 

Changes: None. 

Comment: Some commenters 

requested that the personnel 

qualification requirements in § 300.156 

apply to personnel who provide travel 

instruction and teachers of children 

with visual impairments. Other 

commenters requested that personnel 

who provide therapeutic recreation 

services be required to meet the 

personnel qualifications. Some 

commenters requested that the 

personnel qualifications apply to 

preschool special education teachers. 

Discussion: It is not necessary to list 

the specific personnel who provide 

services to children with disabilities 

under the Act and to whom the 

requirements in § 300.156 apply because 

the regulations are sufficiently clear that 

all needed personnel are covered. This 

includes personnel who provide travel 

instruction or therapeutic recreation 

services; teachers of children with 

visual impairments, if such personnel 

are necessary to carry out the purposes 

of this part; and preschool teachers in 

States where preschool teachers are 

considered elementary school teachers. 

Section 300.156(a), consistent with 

section 612(a)(14)(A) of the Act, requires 

each SEA to establish and maintain 

personnel qualification requirements to 

ensure that personnel necessary to carry 

out the purposes of Part B of the Act and 

part 300 are appropriately and 

adequately prepared and trained, and 

have the content knowledge and skills 

to serve children with disabilities. 

Changes: None. 

Comment: One commenter stated that 

the regulations should define what it 

means to be qualified to provide 

services to children with disabilities 

under the Act. The commenter stated 

that the regulations do not include any 

requirements for general education 

teachers or administrators who are 

involved in providing instruction and 

services for children in special 

education. 

Discussion: It is not necessary to 

change the regulations to define what it 

means to be qualified to provide 

services because we believe that, aside 

from the ‘‘highly qualified’’

requirements for teachers and special 

education teachers in ESEA and the Act, 

other personnel qualifications are 

appropriately left to the States, in light 

of the variability in State circumstances. 

Further, § 300.156, consistent with 

section 612(a)(14) of the Act, makes it 

clear that it is the responsibility of the 


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SEA, not the Federal government, to 

establish and maintain qualifications for 

personnel who provide services to 

children with disabilities under the Act. 

Changes: None. 

Comment: One commenter objected to 

the removal of the requirements for a 

comprehensive system of personnel 

development in current § 300.135. The 

commenter also stated that regular 

education teachers need to be trained to 

work with children with disabilities to 

ensure that their inclusion in the regular 

classroom is successful. 

Discussion: Current § 300.135 

required States to have in effect a 

system of personnel development to 

ensure an adequate supply of qualified 

special education, regular education, 

and related services personnel. Section 

612(a)(14) of the Act removed this 

requirement. The removal of current 

§ 300.135, however, does not diminish 

the responsibility of each State to 

establish and maintain qualifications to 

ensure that personnel (including regular 

education teachers) necessary to carry 

out the purposes of the Act are 

appropriately and adequately prepared 

and trained, consistent with § 300.156. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

include language from note 97 of the 

Conf. Rpt., p. 192, which requires SEAs 

to establish rigorous qualifications for 

related services providers to ensure that 

children with disabilities receive the 

appropriate quality and quantity of care. 

Several commenters requested that the 

regulations require SEAs to consult with 

LEAs, other State agencies, the 

disability community, and professional 

organizations regarding appropriate 

qualifications for related services 

providers and different service delivery 

models (e.g., consultative, supervisory, 

and collaborative models). 

Discussion: We believe that States 

already have sufficient incentive to 

ensure that related services providers 

provide services of appropriate quality 

so that children with disabilities can 

achieve to high standards and that 

further regulation in this area is not 

necessary. Section 300.156(b), 

consistent with section 612(a)(14)(B) of 

the Act, includes the qualifications for 

related services personnel. There is 

nothing in the Act that requires SEAs to 

consult with LEAs, other State agencies, 

or other groups and organizations to 

determine the appropriate qualifications 

for related services providers and the 

use of different service delivery models, 

and while we agree that this is good 

practice and encourage SEAs to 

participate in such consultation, we do 

not believe that we should regulate in 

this manner. States should have the 

flexibility, based on each State’s unique 

circumstances, to determine how best to 

establish and maintain standards for all 

personnel who are providers of special 

education and related services. 

Changes: None. 

Comment: Numerous commenters 

objected to § 300.156(b) and the removal 

of the requirement in current § 300.136 

for State professional requirements to be 

based on the highest requirements in the 

State. The commenters stated that the 

removal of this requirement relaxes the 

qualification standards for speechlanguage pathologists and other related 

services personnel. Several commenters 

stated that speech-language 

professionals should be required to have 

advanced degrees (i.e., master’s level) 

because a bachelor’s degree does not 

provide adequate preparation. Many 

commenters expressed concern that the 

requirements in § 300.156(b) will lead to 

a decline in the quality of related 

services provided to children with 

disabilities in public schools. Other 

commenters expressed concern that 

increasing the standards will exacerbate 

the shortage of related services 

personnel experienced by large urban 

school districts. 

Discussion: We are not changing 

§ 300.156 because it reflects the specific 

language in section 612(a)(14) of the 

Act, which was intended to provide 

greater flexibility to SEAs to establish 

appropriate personnel standards, 

including the standards for speechlanguage pathologists. As indicated in 

note 97 of the Conf. Rpt., p. 192, section 

612(a)(14) of the Act removes the 

requirement for State professional 

requirements to be based on the highest 

requirements in the State because of 

concerns that the previous law, 

regarding the qualifications of related 

services providers, established an 

unreasonable standard for SEAs to meet, 

and as a result, led to a shortage of 

related services providers for children 

with disabilities. We believe that States 

can exercise the flexibility provided in 

§ 300.156 and section 612(a)(14) of the 

Act while ensuring appropriate services 

for children with disabilities without 

additional regulation. 

Changes: None. 

Comment: Many commenters 

expressed concern that § 300.156(b) 

establishes qualifications for related 

services providers in public schools that 

are less rigorous than the qualifications 

for related services providers who 

provide Medicaid services or services in 

other public settings, such as hospitals. 

The commenters stated that less 

rigorous qualifications would result in a 

two-tiered system in which related 

services providers in public schools will 

be less qualified than related services 

providers in other public agencies. 

Another commenter expressed concern 

that the relaxation of standards for 

speech-language pathologists would 

cause LEAs to lose Medicaid funds that 

are used to assist children with 

disabilities. 

Discussion: Section 300.156, 

consistent with section 612(a)(14)(B)(i) 

of the Act, clarifies that it is up to each 

SEA to establish qualifications for 

personnel to carry out the purposes of 

the Act. This will require weighing the 

various policy concerns unique to each 

State. The qualifications of related 

services providers required under 

Medicaid, or in hospitals and other 

public settings, and the fact that 

Medicaid will not pay for providers who 

do not meet Medicaid provider 

qualifications should serve as an 

incentive for States that want to bill for 

medical services on children’s IEPs to 

impose consistent requirements for 

qualifications of related services 

providers. 

Changes: None. 

Comment: Some commenters stated 

that related services personnel should 

be considered to have met the 

qualifications in § 300.156(b)(1), 

regarding State-recognized certification, 

licensing, registration or other 

comparable requirements, if such 

personnel hold an academic degree 

consistent with their profession’s 

national certification or State license to 

practice; demonstrate satisfactory 

progress toward full certification in the 

schools as prescribed by the State; and 

assume related services personnel 

functions for a specified period not to 

exceed three years. 

A few commenters objected to the 

requirement that related services 

personnel must not have had 

certification or licensure requirements 

waived. One commenter stated that 

emergency, temporary, or provisional 

certificates are necessary for 

professionals relocating from different 

States or different countries, and 

predicted that professionals with 

emergency, temporary, or provisional 

certification would work for contract 

agencies to bypass the requirements. 

Discussion: We believe the provisions 

in § 300.156(b) that State qualifications 

for related services personnel must 

include qualifications that are 

consistent with any State-approved or 

State-recognized certification, licensing, 

registration, or other comparable 

requirements that apply to the 

professional discipline in which those 

personnel are providing special 

education or related services, are 


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sufficient to ensure related services 

personnel are qualified to provide 

appropriate services to children with 

disabilities while maintaining the 

States’ flexibility to establish 

appropriate personnel standards for 

related services personnel. We do not 

believe, therefore, that it is necessary to 

include additional regulation as 

suggested by commenters. 

Section 300.156(b)(2)(ii) tracks the 

statutory requirement in section 

612(a)(14)(B)(ii) of the Act, which 

requires that related services personnel 

not have certification or licensure 

requirements waived on an emergency, 

temporary, or provisional basis. We do 

not believe this provision unnecessarily 

hinders States from hiring professionals 

from other States or countries. States, in 

examining the credentials of prospective 

related services personnel from other 

States or countries, may find that their 

existing certification or licensure 

requirements are ones that these related 

services personnel could readily meet. 

Because each State has full authority to 

define and enforce its own requirements 

that personnel must meet in order to 

receive full State certification or 

licensure, States that employ related 

services personnel from other States or 

countries may, consistent with State law 

and policy, consider establishing a 

separate category of certification that 

would differ from emergency, 

temporary, or provisional certification 

in that the State would not be waiving 

any training or experiential 

requirements. 

Changes: None. 

Comment: One commenter 

recommended using nationally 

recognized standards to determine the 

qualifications of related services 

personnel. Another commenter 

recommended requiring SEAs to 

consider current professional standards 

in establishing appropriate 

qualifications for related services 

personnel. One commenter requested 

adding language to the regulations to 

prevent professional organizations from 

establishing personnel standards for 

related services personnel that override 

standards set by the SEA. 

Discussion: We do not believe it is 

necessary to regulate as suggested by the 

commenters because these matters are 

better left to States to decide as States 

are in the best position to determine 

appropriate professional requirements 

for their States. There is nothing in the 

Act that requires an SEA to determine 

qualifications of related services 

personnel based on nationally 

recognized standards or current 

professional standards. Professional 

organizations may establish personnel 

standards for related services personnel 

that differ from the standards 

established by a State, but section 

612(a)(14) of the Act clarifies that the 

State is responsible for establishing and 

maintaining personnel qualifications to 

ensure that related services personnel 

have the knowledge and skills to serve 

children with disabilities under the Act. 

Changes: None. 

Comment: A few commenters 

requested that the regulations specify 

that an SEA, and not the State, has the 

authority to establish certification and 

licensure qualifications of related 

services personnel. 

Discussion: We do not believe it is 

necessary to change the regulation 

because § 300.156(b), which follows the 

language in section 612(a)(14)(B) of the 

Act, clarifies that the SEA must 

establish qualifications for related 

services personnel that are consistent 

with State-approved or State-recognized 

certification, licensing, registration, or 

other comparable requirements that 

apply to related services personnel. 

Changes: None. 

Comment: Some commenters 

requested that the regulations require 

related services providers who do not 

meet existing State standards to be 

supervised by qualified personnel. 

Discussion: Related services providers 

who do not meet the personnel 

qualifications established by the SEA 

would not be considered qualified to 

serve children with disabilities under 

the Act even with supervision by 

qualified personnel. Section 300.156(d), 

consistent with section 612(a)(14)(D) of 

the Act, clarifies that each State must 

ensure that LEAs take measurable steps 

to recruit, hire, train, and retain highly 

qualified special education personnel to 

provide special education and related 

services to children with disabilities 

under the Act. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

require high standards for 

paraprofessionals. Several commenters 

requested guidance on the appropriate 

use of paraprofessionals to ensure that 

paraprofessionals and assistants are not 

used as a means of circumventing 

certification and licensing requirements 

for related services providers. A few 

commenters requested language 

clarifying that the elimination of the 

requirement that State professional 

requirements be based on the highest 

requirements in the State in current 

§ 300.136(b) must not be used to justify 

the inappropriate use of 

paraprofessionals or related services 

providers. Another commenter asked 

that the regulations require States to 

ensure that paraprofessionals are 

properly supervised at all times. One 

commenter stated that the regulations 

should clarify the use of State standards 

for speech-language pathology 

paraprofessionals. 

Discussion: We believe the provisions 

in § 300.156, consistent with section 

612(a)(14) of the Act, are sufficient to 

ensure that paraprofessionals meet high 

standards and that including additional 

requirements in these regulations is 

unnecessary. These provisions require 

an SEA to establish and maintain 

qualifications to ensure that personnel, 

including paraprofessionals, are 

appropriately and adequately prepared 

and trained, and have the content 

knowledge and skills to serve children 

with disabilities; and require the 

qualifications for paraprofessionals to be 

consistent with any State-approved or 

State-recognized certification, licensing, 

registration, or other comparable 

requirements that apply to the 

professional discipline in which those 

personnel are providing special 

education or related services. In 

addition, the ESEA requires that 

paraprofessionals working in a program 

supported by title I of the ESEA, 

including special education 

paraprofessionals who assist in 

instruction in title I-funded programs, 

have at least an associate’s degree, have 

completed at least two years of college, 

or meet a rigorous standard of quality 

and demonstrate, through a formal State 

or local assessment, knowledge of, and 

the ability to assist in instruction in 

reading, writing, and mathematics, 

reading readiness, writing readiness, or 

mathematics readiness, as appropriate. 

Paraprofessionals in title I schools do 

not need to meet these requirements if 

their role does not involve instructional 

support, such as special education 

paraprofessionals who solely provide 

personal care services. For more 

information on the ESEA requirements 

for paraprofessionals, see 34 CFR 200.58 

and section 1119 of the ESEA, and the 

Department’s nonregulatory guidance, 

Title I Paraprofessionals (March 1, 

2004), which can be found on the 

Department’s Web site at: http:// 

www.ed.gov/policy/elsec/guid/ 

paraguidance.pdf. 

With regard to the commenter 

requesting that the regulations clarify 

the use of State standards for speechlanguage paraprofessionals, we do not 

believe it is appropriate to include 

clarification regarding a specific 

discipline in these regulations because 

the Act requires States to establish and 

maintain qualifications to ensure that 

paraprofessionals, including speechlanguage paraprofessionals, are 


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appropriately and adequately prepared 

and trained. 

Section 300.156(b)(2)(iii), consistent 

with section 612(a)(14)(B)(iii) of the Act, 

does specifically allow 

paraprofessionals and assistants who are 

appropriately trained and supervised, in 

accordance with State law, regulation, 

or written policy, to assist in providing 

special education and related services to 

children with disabilities under the Act. 

However, this provision should not be 

construed to permit or encourage the 

use of paraprofessionals as a 

replacement for teachers or related 

services providers who meet State 

qualification standards. To the contrary, 

using paraprofessionals and assistants 

as teachers or related services providers 

would be inconsistent with the State’s 

duty to ensure that personnel necessary 

to carry out the purposes of Part B of the 

Act are appropriately and adequately 

prepared and trained. Paraprofessionals 

in public schools are not directly 

responsible for the provision of special 

education and related services to 

children with disabilities; rather, these 

aides provide special education and 

related services to children with 

disabilities only under the supervision 

of special education and related services 

personnel. We believe the provision in 

§ 300.156(b)(2)(iii) sufficiently ensures 

that paraprofessionals and assistants are 

adequately supervised and further 

clarification in these regulations is 

unnecessary. 

The Act makes clear that the use of 

paraprofessionals and assistants who are 

appropriately trained and supervised 

must be contingent on State law, 

regulation, and written policy giving 

States the option of determining 

whether paraprofessionals and 

assistants can be used to assist in the 

provision of special education and 

related services under Part B of the Act, 

and, if so, to what extent their use 

would be permissible. However, it is 

critical that States that use 

paraprofessionals and assistants to assist 

in providing special education and 

related services to children with 

disabilities do so in a manner that is 

consistent with the rights of children 

with disabilities to FAPE under Part B 

of the Act. There is no need to provide 

additional guidance on how States and 

LEAs should use paraprofessionals and 

assistants because States have the 

flexibility to determine whether to use 

them, and, if so, to determine the scope 

of their responsibilities. 

Changes: None. 

Comment: One commenter 

recommended different requirements for 

paraprofessionals who perform routine 

tasks and those who perform specific 

activities to assist in the provision of 

special education and related services. 

Discussion: We do not see the need to 

make a change to the regulations as 

suggested by the commenter because, 

under § 300.156, consistent with section 

612(a)(14) of the Act, SEAs have the 

responsibility for establishing and 

maintaining qualifications to ensure that 

personnel necessary to carry out the 

purposes of this part are appropriately 

and adequately prepared and trained. 

Furthermore, SEAs and LEAs have the 

flexibility to determine the tasks and 

activities to be performed by 

paraprofessionals and assistants, as long 

as they are consistent with the rights of 

children with disabilities to FAPE. 

It should be kept in mind, however, 

that the ESEA has different 

requirements for paraprofessionals, 

including special education 

paraprofessionals, who assist in 

instruction in title I schools versus 

paraprofessionals in title I schools who 

do not provide instructional support, 

such as special education 

paraprofessionals who solely provide 

personal care services. 

Changes: None. 

Comment: A number of comments 

were received on the qualifications for 

special education teachers in 

§ 300.156(c) that were similar to the 

comments received regarding the 

definition of highly qualified special 

education teacher in § 300.18. 

Discussion: We combined and 

responded to these comments with the 

comments received in response to the 

requirements in § 300.18. 

Changes: None. 

Comment: Some commenters 

requested that the regulations allow 

alternative routes to certification for 

related services personnel and other 

non-teaching personnel, just as such 

routes are allowed for highly qualified 

teachers. 

Discussion: As we stated earlier in 

this section, section 612(a)(14)(B) of the 

Act, clarifies that the SEA must 

establish qualifications for related 

services personnel that are consistent 

with State-approved or State-recognized 

certification, licensing, registration, or 

other comparable requirements that 

apply to related services personnel. 

While the Act does not address 

alternative routes to certification 

programs for related services personnel 

or other non-teaching personnel, there is 

nothing in the Act or the regulations 

that would preclude a State from 

providing for alternate routes for 

certification for related services 

personnel or other non-teaching 

personnel. It is, however, up to a State 

to determine whether related services or 

non-teaching personnel participating in 

alternative routes to certification 

programs meet personnel requirements 

established by the State, consistent with 

the requirements in § 300.156 and 

section 612(a)(14) of the Act. 

Changes: None. 

Comment: Many commenters 

recommended that § 300.156 provide 

more guidance to ensure that States and 

LEAs implement proven strategies for 

recruiting and retaining qualified 

personnel. A few commenters stated 

that this is especially important for 

speech-language pathologists because 

large caseloads, increased paperwork, 

and lack of time for planning and 

collaboration have been shown to 

contribute to their burn out and 

attrition. Several commenters 

recommended that strategies to recruit 

and retain qualified personnel include 

reasonable workloads, improved 

working conditions, incentive programs, 

salary supplements, loan forgiveness, 

tuition assistance, signing bonuses, 

streamlined application processes, State 

and national advertising venues, school 

and university partnerships, release 

time for professional development, 

certification reciprocity between States, 

grants to LEAs for recruitment and 

retention programs, alternate 

professional preparation models, 

caseload size standards, and classroom 

size standards. 

One commenter requested that the 

requirements to recruit, hire, train, and 

retain highly qualified personnel in 

§ 300.156(d) apply to paraprofessionals 

who provide special education and 

related services. 

Discussion: The list of strategies 

recommended by the commenters 

includes many strategies that may be 

effective in recruiting and retaining 

highly qualified personnel; however, we 

do not believe it is appropriate to 

include these or other strategies in our 

regulations because recruitment and 

retention strategies vary depending on 

the unique needs of each State and LEA. 

States and LEAs are in the best position 

to determine the most effective 

recruitment and retention strategies for 

their location. 

With regard to the comment regarding 

the applicability of § 300.156(d) to 

paraprofessionals who provide special 

education and related services, 

§ 300.156(d), consistent with section 

612(a)(14)(C) of the Act, applies to all 

personnel who provide special 

education and related services under the 

Act, including paraprofessionals. 

Changes: None. 

Comment: A few commenters stated 

that the rule of construction in 

§ 300.156(e) is inconsistent with the rule 


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of construction in the definition of 

highly qualified teacher in proposed 

§ 300.18(e). Some commenters requested 

that the regulations clarify that the rule 

of construction in § 300.156(e) is 

applicable to both administrative and 

judicial actions. 

A few commenters requested that the 

regulations specify that a parent may 

file a State complaint with the State 

regarding failure of their child to receive 

FAPE because staff is not highly 

qualified. However, several commenters 

stated that parents should not be 

allowed to file a State complaint under 

§§ 300.151 through 300.153 regarding 

staff qualifications. 

Discussion: We agree that the rules of 

construction in both proposed 

§ 300.156(e) and proposed § 300.18(e) 

must be revised so that both rules are 

the same. The changes will clarify that 

a parent or student may not file a due 

process complaint on behalf of a 

student, or file a judicial action on 

behalf of a class of students for the 

failure of a particular SEA or LEA 

employee to be highly qualified; 

however, a parent may file a complaint 

about staff qualifications with the SEA. 

In addition to permitting a parent to file 

a State complaint with the SEA, an 

organization or an individual may also 

file a complaint about staff 

qualifications with the SEA, consistent 

with the State complaint procedures in 

§§ 300.151 through 300.153. We believe 

that this is appropriate given the 

wording of section 612(a)(14)(E) of the 

Act ‘‘ * * * or to prevent a parent from 

filing a complaint about staff 

qualifications with the State educational 

agency’’ and incorporated in the 

regulations in § 300.156(e) and new 

§ 300.18(f) (proposed § 300.18(e)). By 

incorporating the wording from the 

construction clause in section 

612(a)(14)(E) of the Act in the 

regulations as previously noted, parents 

and other interested parties, may seek 

compliance through the State complaint 

process. 

Changes: We have added ‘‘or a class 

of students’’ to § 300.156(e) to clarify 

that a judicial action on behalf of a class 

of students may not be filed for failure 

of a particular SEA or LEA employee to 

be highly qualified. We have substituted 

the word, ‘‘employee’’ for ‘‘staff person’’

to be more precise and for consistency 

with the rule of construction in new 

§ 300.18(f) (proposed § 300.18(e)). We 

have also reformatted § 300.156(e). 

Comment: Some commenters 

recommended adding language to the 

regulations restricting a parent’s right to 

file a complaint regarding an LEA’s 

failure to take measurable steps to 

recruit, hire, train, and retain highly 

qualified personnel. 

Discussion: We believe the regulations 

do not need clarification. Section 

§ 300.151(a) is sufficiently clear that an 

organization or individual may file a 

State complaint under §§ 300.151 

through 300.153 alleging a violation of 

a requirement of Part B of the Act or of 

this part. This includes the requirement 

that an LEA take measurable steps to 

recruit, hire, train, and retain highly 

qualified personnel consistent with 

section 612(a)(14)(D) of the Act. 

Changes: None. 

Comment: Some commenters 

requested that the regulations clarify 

that, unless the State has statutory 

control over district staffing, parents 

cannot obtain compensatory damages or 

services or a private school placement 

based on the lack of highly qualified 

personnel. 

Discussion: We do not agree that the 

exception requested by the commenter 

should be added to the regulations 

because new § 300.18(f) (proposed 

§ 300.18(e)), and § 300.156(e) are 

sufficiently clear that nothing in part 

300 shall be construed to create a right 

of action on behalf of an individual 

child for the failure of a particular SEA 

or LEA staff person to be highly 

qualified. 

Changes: None. 

Comment: One commenter 

recommended that the qualifications of 

all personnel should be made a matter 

of public record. 

Discussion: To do as the commenter 

recommends would add burden for 

local school personnel and it is not 

required under the Act. In contrast, title 

I of the ESEA required that LEAs 

receiving title I funds provide parents, 

at their request, the qualifications of 

their children’s classroom teachers. 

There is nothing in the Act or these 

regulations, however, which would 

prevent an SEA or LEA from adopting 

such a policy should it wish to do so. 

In the absence of a congressional 

requirement in the Act, such policies 

are matters best left to State law. 

Section 1111(h)(6) of the ESEA 

requires LEAs to inform parents about 

the professional qualifications of their 

children’s classroom teachers. The 

ESEA requires that at the beginning of 

each school year, an LEA that accepts 

title I, part A funding must notify 

parents of students in title I schools that 

they can request information regarding 

their children’s classroom teachers, 

including, at a minimum: (1) Whether 

the teacher has met the State 

requirements for licensure and 

certification for the grade levels and 

subject-matters in which the teacher 

provides instruction; (2) whether the 

teacher is teaching under emergency or 

other provisional status through which 

State qualification or licensing criteria 

have been waived; (3) the college major 

and any other graduate certification or 

degree held by the teacher, and the field 

of discipline of the certification or 

degree; and (4) whether the child is 

provided services by paraprofessionals, 

and if so, their qualifications. In 

addition, each title I school must 

provide each parent timely notice that 

the parent’s child has been assigned, or 

has been taught for four or more 

consecutive weeks by, a teacher who is 

not highly qualified. These 

requirements apply only to special 

education teachers who teach core 

academic subjects in Title I schools. 

Changes: None. 

Performance Goals and Indicators 

(§ 300.157) 

Comment: Several commenters 

recommended that the regulations retain 

current § 300.137(a)(2), which requires 

that States have goals for the 

performance of children with 

disabilities in the State that are 

consistent, to the maximum extent 

appropriate, with other goals and 

standards for all children established by 

the State. The commenters specifically 

objected to the removal of the word 

‘‘maximum’’ before ‘‘extent 

appropriate;’’ and the removal of the 

word ‘‘all’’ before ‘‘children’’ in 

§ 300.157(a)(4). 

Discussion: Section 612(a)(15)(A)(iv) 

of the Act specifically removed the 

words in current § 300.137(a)(2) that the 

comment references. Therefore, we 

believe that it would be contrary to the 

intent of the statutory drafters to restore 

these words to the regulatory provision. 

Changes: None. 

Comment: A few commenters 

requested that the regulations in 

§ 300.156(b) require States to involve 

parent centers in establishing the 

performance goals and indicators and 

measurable annual objectives for 

children with disabilities. 

Discussion: We encourage broad 

stakeholder involvement in the 

development of performance goals, 

indicators, and annual objectives for 

children with disabilities, including the 

involvement of parent centers. We see 

no need to single out a particular group, 

however. The regulations in § 300.165(a) 

already require specific public 

participation in the adoption of policies 

and procedures needed to demonstrate 

eligibility under Part B, including this 

requirement. 

Changes: None. 


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Participation in Assessments (Proposed 

§ 300.160) 

Comment: None. 

Discussion: Participation in 

assessments is the subject of a notice of 

proposed rulemaking published in the 

Federal Register on December 15, 2005 

(70 FR 74624) to amend the regulations 

governing programs under title I of the 

ESEA and Part B of the Act, regarding 

additional flexibility for States to 

measure the achievement of children 

with disabilities based on modified 

achievement standards. 

Changes: Therefore, we are removing 

proposed § 300.160 and designating the 

section as ‘‘Reserved.’’

Supplementation of State, Local, and 

Other Federal Funds (§ 300.162) 

Comment: One commenter disagreed 

with the removal of current § 300.155, 

which requires that States have policies 

and procedures on file with the 

Secretary to ensure that funds paid to 

the State under Part B of the Act are 

spent in accordance with the provisions 

of Part B. 

Discussion: Current § 300.155 was 

removed from these regulations 

consistent with section 612(a)(17) of the 

Act. The removal of this requirement is 

also consistent with section 612(a) of 

the Act, which requires a State to 

submit a plan that provides assurances 

to the Secretary that the State has in 

effect policies and procedures to ensure 

that the State meets the requirements of 

the Act rather than submitting the actual 

policies and procedures to the 

Department. To alleviate burden, 

Congress removed the statutory 

provisions which required that States 

have policies and procedures on file 

with the Secretary to ensure that funds 

paid to the State under Part B of the Act 

are spent in accordance with the 

provisions of Part B. OSEP continues to 

have responsibility to ensure that States 

are properly implementing the Act. 

Given the statutory change that 

Congress made to remove the prior 

requirement, we believe it would be 

inappropriate to include it in these 

regulations. 

Changes: None. 

Maintenance of State Financial Support 

(§ 300.163) 

Comment: One commenter requested 

that § 300.163(c)(1), regarding waivers 

for maintenance of State financial 

support for exceptional or 

uncontrollable circumstances, provide 

examples of what would be considered 

a precipitous and unforeseen decline in 

the State’s financial resources. 

Discussion: We decline to limit the 

Secretary’s discretion in these matters in 

the abstract. The Secretary makes the 

determinations regarding these waivers 

on a case-by-case basis and given the 

facts and circumstances at the time such 

a request is made. 

Changes: None. 

Public Participation (§ 300.165) 

Comment: Several commenters 

objected to the removal of current 

§§ 300.280 through 300.284, regarding 

public participation, and recommended 

that all provisions, including those 

related to public hearings, comment 

periods, and review of public comments 

be restored. 

Discussion: We do not believe it is 

necessary to retain in the regulations the 

requirements in current §§ 300.280 

through 300.284 because the provisions 

in § 300.165 and GEPA, in 20 U.S.C. 

1232d(b)(7), provide sufficient 

opportunities for public participation. 

We also believe retaining the 

requirements in §§ 300.280 through 

300.284 would place unnecessary 

regulatory burden on States. Section 

300.165(a) incorporates the language in 

section 612(a)(19) of the Act, regarding 

public participation in the adoption of 

policies and procedures to implement 

Part B of the Act, and requires States to 

ensure that there are public hearings, 

adequate notice of hearings, and an 

opportunity for comment available to 

the general public. Furthermore, 

paragraph (b) of this section requires 

States to comply with the public 

participation requirements of GEPA, in 

20 U.S.C. 1232d(b)(7), before submitting 

a State plan under this part. In 

accordance with the GEPA requirement, 

the State must assure that it will provide 

reasonable opportunities for 

participation by local agencies, 

representatives of the class of 

individuals affected by programs under 

this part and other interested 

institutions, organizations, and 

individuals in the planning for the 

operation of programs under this part. 

GEPA also requires that the State 

publish each proposed State plan under 

this part, in a manner that will ensure 

circulation throughout the State, at least 

60 days prior to the date on which the 

State plan is submitted to the Secretary 

or on which the State plan becomes 

effective, whichever occurs earlier, with 

an opportunity for public comments on 

such plan to be accepted for at least 30 

days. In addition, the State must comply 

with any State-specific public 

participation requirements in adopting 

policies and procedures related to Part 

B of the Act. 

Changes: None. 

Comment: One commenter requested 

that the regulations define the meaning 

of ‘‘adequate notice’’ as it is used in 

§ 300.165(a) to ensure that there is 

adequate notice of public hearings prior 

to adopting any policies and procedures 

needed to comply with Part B of the 

Act. 

Discussion: We do not think it is 

appropriate or necessary to include in 

the regulations a definition of ‘‘adequate 

notice’’ because what constitutes 

‘‘adequate notice’’ will vary depending 

on the unique circumstances in each 

State and we believe States should have 

the flexibility of determining and 

applying a workable and reasonable 

standard that meets their circumstances 

to ensure public participation at public 

hearings. We believe it would be 

reasonable for the State to assume that 

it provided adequate notice if, at its 

public hearings, there were sufficient 

representatives of the general public, 

including individuals with disabilities 

and parents of children with 

disabilities, in attendance. 

Changes: None. 

Comment: One commenter requested 

that the regulations require States to 

provide notices of public hearings in 

multiple languages and alternative 

formats. 

Discussion: It is unnecessary to 

include regulations requiring States to 

provide notice of public hearings in 

multiple languages and alternative 

formats. Public agencies are required by 

other Federal statutes to take 

appropriate actions to ensure that the 

public has access, in alternative formats 

and languages other than English, to 

public hearings. The other Federal 

statutory provisions that apply in this 

regard are section 504 of the 

Rehabilitation Act of 1973 and its 

implementing regulations in 34 CFR 

part 104 (prohibiting discrimination on 

the basis of disability by recipients of 

Federal financial assistance), title II of 

the Americans With Disabilities Act and 

its implementing regulations in 28 CFR 

part 35 (prohibiting discrimination on 

the basis of disability by public entities, 

regardless of receipt of Federal funds), 

and title VI of the Civil Rights Act of 

1964 and its implementing regulations 

in 34 CFR part 100 (prohibiting 

discrimination on the basis of race, 

color, or national origin by recipients of 

Federal financial assistance). 

Changes: None. 

Comment: One commenter requested 

that the regulations require States to 

work with the parent centers to identify 

appropriate locations and times for 

public hearings. 

Discussion: There is nothing in the 

Act or these regulations that would 

prohibit a State from working with the 

parent centers to identify appropriate 


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locations and times for public hearings, 

but we see no need to require States to 

do so. We believe that this matter 

should be left to State discretion. 

Changes: None. 

Rule of Construction (§ 300.166) 

Comment: One commenter requested 

clarification regarding the use of Federal 

funds to offset decreases in State 

formula allocations to LEAs that use 

attendance, enrollment, or inflation as 

elements of the State funding formula 

for special education. 

Discussion: Section 300.166 was 

added to incorporate language in section 

612(a)(20) of the Act. It specifies that 

States with laws that require a specific 

level of funding to their LEAs cannot 

use Federal Part B funds for this 

purpose. 

Changes: None. 

State Advisory Panel 

State Advisory Panel (§ 300.167) 

Comment: One commenter stated that 

§§ 300.167 through 300.169 are 

unnecessary and do not add any 

requirements beyond those in section 

612(a)(21) of the Act. The commenter 

recommended removing these 

requirements and stated that they can be 

adequately implemented through 

guidance provided by the Department 

and not through regulation. 

Discussion: The requirements of the 

State advisory panel in §§ 300.167 

through 300.169 reflect the specific 

language in section 612(a)(21) of the 

Act. We believe it is necessary to 

include these statutory requirements in 

the regulations to provide parents, 

public agencies, and others with 

information on the requirements 

applicable to State advisory panels. 

Changes: None. 

Comment: Several commenters 

recommended retaining the procedures 

to govern State advisory panels in 

current § 300.653 and strengthening the 

requirements of notice and opportunity 

for public comment at State advisory 

panel meetings by mandating 

publication of meeting dates, agendas, 

and minutes on Web sites. A few 

commenters stated that eliminating the 

notice requirements and the opportunity 

to participate in meetings in current 

§ 300.653(d) and (e) will result in fewer 

low income, hearing-impaired, and 

foreign-language speaking parents 

attending State advisory panel meetings. 

One commenter expressed concern that 

the removal of current § 300.653 will 

result in less panel visibility, less public 

participation, and that State advisory 

panels will become ‘‘rubber-stamps’’ for 

positions taken by State officials. One 

commenter stated that the removal of 

the requirements in current § 300.653 

weakens the protection of children with 

disabilities, and, therefore, violates 

section 607(b) of the Act. 

Discussion: The requirements in 

current § 300.653 were removed to 

provide greater State flexibility in the 

operation of advisory panels. We do not 

believe the removal of current § 300.653 

will mean that the States will not ensure 

that State advisory panel meetings are 

announced in advance and open to the 

public because States generally have 

adequate sunshine laws that ensure 

public access to governmental agency 

meetings. We do not believe it is 

necessary to require that information 

regarding State advisory panel meetings 

be posted on State Web sites because 

sunshine laws generally contain 

provisions regarding meeting notices, 

agendas, and the availability of minutes 

of public meetings. However, it is 

important that individuals consult the 

laws governing their State and locality 

on the issue of open meetings and 

public access. 

Section 607(b)(2) of the Act provides 

that the Secretary may not implement, 

or publish in final form, any regulation 

pursuant to the Act that procedurally or 

substantively lessens the protections 

provided to children with disabilities as 

embodied in regulations in effect on 

July 20, 1983. We do not believe 

removing from these regulations the 

requirements in current § 300.653 

procedurally or substantively lessens 

the protections provided to children 

with disabilities pursuant to section 

607(b)(2) of the Act because we do not 

view public notice of advisory 

committee meetings to be a protection 

provided to children with disabilities. 

Changes: None. 

Membership (§ 300.168) 

Comment: We received numerous, 

specific requests to revise § 300.168 to 

add to the list of individuals who can 

serve as members of the State advisory 

panels. Some commenters 

recommended requiring State advisory 

panels to include representatives from 

the Parent Training and Information 

Centers and Community Parent 

Resource Centers funded by the 

Department under sections 671 and 672 

of the Act because their representation 

would ensure a diverse group of people 

experienced with children with 

different disabilities on the panels. One 

commenter expressed concern that, 

without representation from these 

groups, panel members would make 

recommendations based solely on their 

individual circumstances and 

backgrounds. A few commenters 

requested including school 

psychologists and other student support 

staff on State advisory panels. One 

commenter suggested including a 

representative of a residential treatment 

facility as a member on State advisory 

panels because children in these 

facilities are a growing population and 

have specialized needs. A few 

commenters requested adding 

representatives from centers for 

independent living because these 

individuals are experienced in 

advocating for people with disabilities. 

One commenter suggested including 

State coordinators for education of 

homeless children and youth. A few 

commenters suggested including 

disabled high school and postsecondary 

students on the list because the 

intended beneficiaries of the Act are 

often denied a voice. A few commenters 

proposed requiring each State advisory 

panel to be racially, culturally, 

linguistically, and socio-economically 

representative of the State. One 

commenter expressed concern that the 

new regulations could lead States to 

abruptly replace current panel members 

causing discontinuity and decreasing 

expertise, and recommended phasing in 

the new requirements and allowing 

panel members to complete their terms 

of office. 

Discussion: The membership of State 

advisory panels is described in section 

612(a)(21)(B) and (C) of the Act and the 

Department does not agree that there is 

a need to require additional 

representatives or to change the panel 

composition. However, nothing in the 

Act or these regulations would prevent 

the appointment of additional 

representatives, if a State elected to add 

these individuals. With respect to the 

request to include State coordinators for 

education of homeless children on the 

panels, State and local officials who 

carry out activities under the McKinneyVento Homeless Assistance Act are 

already included in the list of 

individuals identified to serve on the 

State advisory panels in § 300.168(a)(5). 

Section 612(a)(21)(B) of the Act, as 

reflected in § 300.168, requires the State 

advisory panel to be representative of 

the State population and be composed 

of individuals involved in, or concerned 

with, the education of children with 

disabilities. Also, the Act and these 

regulations require a majority of the 

panel members to be individuals with 

disabilities or parents of children with 

disabilities (ages birth through 26). We 

also do not believe there is a need to 

phase in the new requirements, as those 

members that do not need to change 

should provide sufficient continuity of 

panel functions. 


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Changes: None. 

Duties (§ 300.169) 

Comment: A few commenters 

recommended requiring States to submit 

any rules or regulations related to 

children with disabilities to the State 

advisory panel for consideration before 

the rules are finalized. One commenter 

requested requiring panel members to 

take positions on State proposed rules 

and regulations regarding the education 

of children with disabilities and offer 

their views to the appropriate State 

agencies. 

Discussion: Section 612(a)(21)(D) of 

the Act clearly specifies the duties of 

the State advisory panel and these 

duties are accurately reflected in 

§ 300.169. Paragraph (b) of this section 

clarifies that the advisory panel must 

comment publicly on any State 

proposed rules or regulations regarding 

the education of children with 

disabilities. We believe § 300.169(b) is 

sufficient to ensure that the advisory 

panel has the opportunity to consider 

any State rules or regulations before 

they are final and, accordingly, further 

regulatory language is unnecessary. 

Further, we believe it is inappropriate to 

require that panel members ‘‘take 

positions’’ on proposed rules and 

regulations because to do so would be 

overly controlling of the advisory panel 

and may impact the panel’s ability to 

effectively meet its statutory 

responsibility of providing public 

comment on State proposed rules and 

regulations. 

Changes: None. 

Comment: Many commenters 

suggested retaining current § 300.652(b), 

which requires State advisory panels to 

provide advice for educating students 

with disabilities in adult correctional 

facilities. A few of these commenters 

noted that students in adult correctional 

facilities are members of one of the most 

vulnerable populations. 

Discussion: Given the breadth of the 

State advisory panel’s statutory 

responsibilities we removed from the 

regulations all nonstatutory mandates 

on the State advisory panel, including 

the provision in current § 300.652(b), 

regarding advising on the education of 

eligible students with disabilities who 

have been convicted as adults and have 

been incarcerated in adult prisons. We 

believe placing such nonstatutory 

mandates on the State advisory panel 

may hinder the advisory panel’s ability 

to effectively provide policy guidance 

with respect to special education and 

related services for children with 

disabilities in the State. There is 

nothing, however, that would prevent a 

State from assigning other 

responsibilities to its State advisory 

panel, as long as those other duties do 

not prevent the advisory panel from 

carrying out its responsibilities under 

the Act. 

Changes: None. 

Access to Instructional Materials 

(§ 300.172) 

Comment: One commenter 

recommended including the National 

Instructional Materials Accessibility 

Standard (NIMAS) in these regulations. 

Discussion: We agree with the 

commenter. The final NIMAS was 

published in the Federal Register on 

July 19, 2006 (71 FR 41084) and will be 

included as Appendix C to Part 300—

National Instructional Materials 

Accessibility Standard of these 

regulations. We will add language in 

§ 300.172(a) to refer to this location and 

to reference the publication date of the 

NIMAS in the Federal Register. 

Changes: The final NIMAS has been 

added as appendix C to part 300. We 

have added language in § 300.172(a) to 

refer to the location of the NIMAS in 

these regulations and the publication 

date of the NIMAS in the Federal 

Register. 

Comment: Several commenters 

expressed concern that the language 

requiring States to adopt the NIMAS ‘‘in 

a timely manner’’ is ambiguous and 

could lead to delays in providing 

instructional materials to children with 

disabilities, inconsistencies across 

States, and increased litigation. Several 

commenters requested that the 

regulations specify a timeline for States 

to adopt the NIMAS. Some commenters 

recommended requiring all States to 

adopt the NIMAS by December 3, 2006. 

However, one commenter stated that 

States should not be given a deadline to 

adopt the NIMAS. 

A number of commenters requested 

that the regulations define the meaning 

of ‘‘adopt’’ in § 300.172(a) and specify 

what States must do to adopt the 

NIMAS. Several commenters 

recommended defining ‘‘adopt’’ to mean 

that the State, through regulatory or 

legislative procedures, designates 

NIMAS as the only required source 

format for publishers to convert print 

instructional materials into specialized 

formats for children with disabilities. 

One commenter urged the Department 

to define ‘‘adopt’’ to mean that a State 

must accept a NIMAS file as satisfying 

the publisher’s legal obligation to 

provide accessible instructional 

materials. Other commenters 

recommended that the regulations 

clearly state that adoption of the NIMAS 

means that SEAs and LEAs must accept 

and use electronic copies of 

instructional materials in the NIMAS 

format that are provided by the 

publishers. 

Discussion: Section 300.172(a), 

consistent with section 612(a)(23)(A) of 

the Act, requires States to adopt the 

NIMAS in a timely manner after the 

publication of the NIMAS in the Federal 

Register for the purpose of providing 

instructional materials to blind or other 

persons with print disabilities. As noted 

in the discussion to the previous 

comment, the NIMAS is included as 

Appendix C to Part 300—National 

Instructional Materials Accessibility 

Standard and was published in the 

Federal Register on July 19, 2006 (71 FR 

41084). The Department believes that 

States should make every effort to adopt 

the NIMAS in a timely manner 

following the publication of the NIMAS 

in the Federal Register, recognizing that 

the timelines and requirements for 

adopting new rules, policies, or 

procedures vary from State to State. 

States choosing to coordinate with the 

NIMAC must, consistent with section 

612(a)(23)(C) of the Act and § 300.172(c) 

of these regulations, not later than 

December 3, 2006, as part of any print 

instructional materials adoption 

process, procurement contract, or other 

practice or instrument used for purchase 

of print instructional materials, enter 

into a written contract with the 

publisher of the print instructional 

materials to: (1) Require the publisher to 

prepare and, on or before delivery of the 

print instructional materials, provide 

the NIMAC with electronic files 

containing the content of the print 

instructional materials using the 

NIMAS; or (2) purchase instructional 

materials from the publisher that are 

produced in, or may be rendered in, 

specialized formats. Clearly, we would 

expect that these States would have 

adopted the NIMAS by December 3, 

2006. We decline to require a specific 

adoption date for all States, however, 

given the lack of specificity in the Act. 

We also decline to include a definition 

of ‘‘adopt’’ in these regulations because 

requirements for adopting new rules 

and policies may vary from State to 

State. The Department’s view is that it 

is inherent in the adoption requirement 

that, at a minimum, upon ‘‘adoption’’ of 

the NIMAS, a State must accept and use 

electronic copies of instructional 

materials in the NIMAS format for the 

purpose of providing instructional 

materials to blind or other persons with 

print disabilities. Under § 300.172(a), 

adopting the NIMAS is a State 

responsibility and does not impose any 

legal obligations on publishers of 

instructional materials. 


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Changes: We have made technical 

changes in § 300.172(c). For clarity, we 

have replaced the phrase ‘‘not later 

than’’ with ‘‘as of.’’ We have removed 

the phrase ‘‘two years after the date of 

enactment of the Individuals with 

Disabilities Education Improvement Act 

of 2004’’ because it is unnecessary. 

Comment: One commenter 

recommended requiring States to 

comply with the requirements for public 

hearings and public comment in section 

612(a)(19) of the Act before adopting 

policies and procedures to implement 

the requirements in § 300.172 related to 

access to instructional materials. The 

commenter stated that all interested 

members of the public, including 

parents of children with disabilities, are 

entitled to participate in designing the 

plan for implementing these policies 

and procedures. 

Discussion: Section 300.165(a), 

consistent with section 612(a)(19) of the 

Act, requires States to hold public 

hearings and receive public comment 

before implementing any policies and 

procedures needed to comply with Part 

B of the Act. These public hearing and 

public comment requirements apply to 

the policies and procedures needed to 

implement the requirements in 

§ 300.172. 

Changes: None. 

Comment: One commenter requested 

clarification on whether the NIMAS is 

limited to print materials on the 

medium of paper or also includes the 

iconic representation of letters and 

words. 

Discussion: The NIMAS is the 

standard established by the Secretary to 

be used in the preparation of electronic 

files of print instructional materials so 

they can be more easily converted to 

accessible formats, such as Braille. In 

addition to print materials, the NIMAS 

provides standards for textbooks and 

related core materials where icons 

replace text. Materials with icons will 

be available if they are in printed 

textbooks and related printed core 

materials that are written and published 

primarily for use in elementary school 

and secondary school instruction and 

are required by an SEA or LEA for use 

by children in the classroom, consistent 

with section 674(e)(3)(C) of the Act. 

Changes: None. 

Comment: A few commenters 

recommended clarifying that providing 

materials in accessible formats includes 

changes in the depth, breadth, and 

complexity of materials. Some 

commenters stated that § 300.172 

should include language regarding 

universal design of instructional 

materials. 

Discussion: Section 300.172 is 

consistent with section 612(a)(23) of the 

Act and focuses specifically on 

providing access to print instructional 

materials using the NIMAS. The NIMAS 

is designed to improve the quality and 

consistency of print instructional 

materials converted into accessible 

formats for persons who are blind and 

persons with print disabilities, not to 

alter the content (e.g., the depth, 

breadth, or complexity) of the print 

instructional materials. While the 

NIMAS is designed to make print 

instructional materials more readily and 

easily accessible to persons who are 

blind and persons with print 

disabilities, it is not intended to provide 

materials that are universally designed. 

Therefore, while the Department 

acknowledges the importance of 

universal design, it would be 

inappropriate to reference universal 

design in this section. 

The NIMAS Development Center has 

been charged with examining the need 

for future changes in the NIMAS. This 

Center, funded by the Department, is 

looking at a variety of issues, including 

the extent to which universal design 

features should be incorporated into 

future iterations of the NIMAS. 

Information about the NIMAS 

Development Center can be found at: 

http://nimas.cast.org/. 

Changes: None. 

Comment: One commenter 

recommended that books on tape be 

made available in the same manner as 

print materials. 

Discussion: The conversion of text to 

speech for digital talking books is one of 

the accessible formats that can be 

generated from a NIMAS file. The 

NIMAS makes it possible for such 

talking books to be generated more 

efficiently so that children who need 

them will receive them more quickly 

than in the past. Such audio formats 

will be made available for printed 

textbooks and related printed core 

materials that are written and published 

primarily for use in elementary school 

and secondary school instruction and 

are required by an SEA or LEA for use 

by children in the classroom, consistent 

with section 674(e)(3)(C) of the Act. The 

NIMAS does not pertain to books on 

tape that are produced in sound studios. 

Changes: None. 

Comment: Many commenters 

requested that the regulations specify 

that providing instructional materials to 

children with disabilities in a timely 

manner means providing these materials 

at the same time they are provided to 

children without disabilities. One 

commenter recommended defining ‘‘in a 

timely manner’’ as the start of the school 

year or, for children who transfer 

schools after the start of the school year, 

within 30 days of the start of the school 

year, regardless of whether a State 

chooses to coordinate with the NIMAC. 

Discussion: The Department agrees 

that States should make every effort to 

provide children with disabilities 

accessible instructional materials at the 

same time as other children receive 

their instructional materials. The 

Department’s position is consistent with 

S. Rpt. No. 108–185, p. 19, which states, 

‘‘The committee feels strongly that 

instructional materials should be 

provided to blind and print disabled 

students at the same time their fellow 

students without print disabilities are 

receiving the same materials.’’ This 

position also is consistent with H. Rpt. 

No. 108–77, pp. 97–98. 

However, the Department recognizes 

that this may not be possible in all 

circumstances, for example, when a 

child with a disability transfers to a new 

school in the middle of a school year. 

Additionally, there could be 

circumstances beyond the control of the 

public agency that could prevent 

children with disabilities who need 

instructional materials in accessible 

formats from receiving them at the same 

time as instructional materials are 

provided to other children, such as if 

the public agency’s contractor is unable 

to produce the instructional materials in 

an accessible format because of some 

unforeseen circumstance. In situations 

such as these, it is understandable that 

the accessible format materials may not 

be immediately available. Therefore, we 

will add a provision to the regulations 

to specify that in order to meet their 

obligation to provide accessible format 

instructional materials in a timely way, 

public agencies must take all reasonable 

steps to make those instructional 

materials available at the same time as 

instructional materials are provided to 

other children. Reasonable steps, for 

example, would include requiring 

publishers or other contractors to 

provide instructional materials in 

accessible formats by the beginning of 

the school year for children whom the 

public agency has reason to believe will 

be attending its schools. Reasonable 

steps also might include having a means 

of acquiring instructional materials in 

accessible formats as quickly as possible 

for children who might transfer into the 

public agency in the middle of the year. 

Reasonable steps would not include 

withholding instructional materials 

from other children until instructional 

materials in accessible formats are 

available. To clarify that the obligation 

to make instructional materials available 

in a timely manner applies even to 


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States that coordinate with the NIMAC, 

we are adding a new provision to that 

effect. We also are clarifying that the 

definitions in § 300.172(e) apply to each 

State and LEA, whether or not the State 

or LEA chooses to coordinate with the 

NIMAC. 

Changes: We have amended 

paragraph (b) in § 300.172 by adding a 

new paragraph (b)(4) requiring the SEA 

to ensure that all public agencies take 

all reasonable steps to provide 

instructional materials in accessible 

formats to children with disabilities 

who need those instructional materials 

at the same time as other children 

receive instructional materials. We have 

reorganized paragraph (c) and added a 

new paragraph (c)(2) requiring States 

that coordinate with the NIMAC to 

provide accessible materials in a timely 

manner. We have also amended 

paragraph (e) by adding a new 

paragraph (e)(2) to clarify that the 

definitions in § 300.172(e)(1) apply to 

each SEA and LEA whether or not the 

SEA or LEA chooses to coordinate with 

the NIMAC. We have made technical 

changes to § 300.172(e) and renumbered 

§ 300.172(e) to be consistent with this 

change. 

Comment: Many commenters 

expressed concern that the regulations 

fail to ensure timely access to 

instructional materials for children with 

other types of disabilities besides print 

disabilities. One commenter 

recommended clarifying that children 

do not have to be blind or have print 

disabilities to fit into the description of 

children who need accessible materials. 

However, another commenter stated that 

§ 300.172(b)(3), which require SEAs to 

be responsible for providing accessible 

materials for children for whom 

assistance is not available from the 

NIMAC, should be removed because the 

Act does not include these 

requirements. 

A few commenters requested adding a 

regulation to clarify that the 

requirements in § 300.172 do not apply 

if an SEA is not responsible for 

purchasing textbooks. The commenters 

stated that if an SEA cannot purchase 

textbooks, it has no legal relationship 

with textbook publishers and cannot 

comply with the requirements in 

§ 300.172. 

Discussion: Timely access to 

appropriate and accessible instructional 

materials is an inherent component of a 

public agency’s obligation under the Act 

to ensure that FAPE is available for 

children with disabilities and that 

children with disabilities participate in 

the general curriculum as specified in 

their IEPs. Section 300.172(b)(3) 

provides that nothing relieves an SEA of 

its responsibility to ensure that children 

with disabilities who need instructional 

materials in accessible formats, but who 

do not fall within the category of 

children who are eligible to receive 

materials produced from NIMAS files 

obtained through the NIMAC, receive 

those instructional materials in a timely 

manner. Therefore, we do not believe 

that any further clarification is 

necessary. Even SEAs that are not 

directly responsible for purchasing 

textbooks have this responsibility. In 

short, we believe these regulations are 

necessary to fully implement the Act. 

Changes: None. 

Comment: One commenter stated that 

all children with disabilities should 

receive assistance from the NIMAC. 

Discussion: We disagree with the 

commenter. Section 674(e) of the Act 

limits the authority of the NIMAC to 

provide assistance to SEAs and LEAs in 

acquiring instructional materials for 

children who are blind, have visual 

disabilities, or are unable to read or use 

standard print materials because of 

physical limitations, and children who 

have reading disabilities that result from 

organic dysfunction, as provided for in 

36 CFR 701.6. Clearly, SEAs and LEAs 

that choose to use the services of the 

NIMAC will be able to assist blind 

persons or other persons with print 

disabilities who need accessible 

instructional materials through this 

mechanism. However, SEAs and LEAs 

still have an obligation to provide 

accessible instructional materials in a 

timely manner to other children with 

disabilities who also may need 

accessible materials even though their 

SEA or LEA may not receive assistance 

from the NIMAC, as provided in 

§§ 300.172(b)(3) and 300.210(b). 

Changes: None. 

Rights and Responsibilities of SEAs 

(§ 300.172(b)) 

Comment: Many commenters 

expressed concern about allowing States 

to choose not to coordinate with the 

NIMAC. A few commenters stated that 

coordination with the NIMAC should be 

mandatory for all States. One 

commenter recommended that the 

Department strongly encourage States to 

coordinate with the NIMAC, because it 

may be difficult for States to provide the 

assurances required in § 300.172(b)(2) if 

they choose not to coordinate with the 

NIMAC. A few commenters 

recommended that States that cannot 

demonstrate a past history of providing 

instructional materials to children with 

disabilities in a timely manner should 

be required to coordinate with the 

NIMAC. 

Discussion: It would be inconsistent 

with section 612(a)(23)(B) of the Act to 

make coordination with the NIMAC 

mandatory for all States or to require 

certain States to coordinate with the 

NIMAC (e.g., States that do not have a 

history of providing instructional 

materials to children with disabilities in 

a timely manner), as suggested by the 

commenters. Section 612(a)(23)(B) of 

the Act provides that nothing in the Act 

shall be construed to require any SEA to 

coordinate with the NIMAC. 

Changes: None. 

Comment: Several commenters 

requested that the regulations clearly 

define the process for a State to choose 

not to coordinate with the NIMAC. A 

few commenters requested additional 

details on what assurances States must 

provide if they choose not to coordinate 

with the NIMAC. Other commenters 

requested that State assurances provide 

the public with information to evaluate 

the capacity of the State to provide 

materials to children who are blind or 

have print disabilities. Some 

commenters stated that the assurances 

provided by States that choose not to 

coordinate with the NIMAC should be 

done annually and in writing. 

Several commenters requested that 

the regulations provide a means for the 

public to obtain information about 

which States choose not to coordinate 

with the NIMAC. A few commenters 

requested that the Department publish 

the assurances made by SEAs that 

choose not to coordinate with the 

NIMAC. Some commenters stated that 

SEAs that choose to coordinate with the 

NIMAC should be required to provide 

information to the Department on the 

LEAs in the State that elect not to 

coordinate with the NIMAC. 

Discussion: Section 300.172(b)(2), 

consistent with section 612(a)(23)(B) of 

the Act, requires SEAs that choose not 

to coordinate with the NIMAC to 

provide an assurance to the Secretary 

that the agency will provide 

instructional materials to blind persons 

and other persons with print disabilities 

in a timely manner. As part of a State’s 

application for Part B funds, § 300.100 

and section 612(a) of the Act require 

States to provide assurances to the 

Secretary that the State has in effect 

policies and procedures to ensure that 

the State meets the conditions of 

eligibility. (The Part B Annual State 

Application for 2006, OMB No. 1820–

0030, can be found at: http:// 

www.ed.gov/fund/grant/apply/osep/ 

2006apps.html.) 

Therefore, the Department will 

compile a list of the States that choose 

to coordinate with the NIMAC and those 

that do not, and will make this list 


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available on OSEP’s monitoring Web 

site at: http://www.ed.gov/policy/ 

speced/guid/idea/monitor/index.html. 

Section 612(a)(23)(B) of the Act does 

not mandate that States coordinate with 

the NIMAC or place conditions on 

which States can choose to coordinate 

with the NIMAC. Therefore, it is 

unnecessary to require a State’s 

assurance to include information on its 

capacity to provide instructional 

materials to children who are blind or 

have print disabilities, as commenters 

recommended. 

We do not believe it is appropriate to 

regulate to require States to provide 

information to the Department on the 

LEAs in the State that elect not to 

coordinate with the NIMAC. Under 

§ 300.149 and section 612(a)(11) of the 

Act, States are responsible for ensuring 

that LEAs in the State meet the 

requirements of the Act, including 

providing instructional materials to 

blind persons or other persons with 

print disabilities in a timely manner. As 

stated in § 300.210 and section 

613(a)(6)(B) of the Act, if an LEA 

chooses not to coordinate with the 

NIMAC, the LEA must provide an 

assurance to the SEA that the LEA will 

provide instructional materials to blind 

persons or other persons with print 

disabilities in a timely manner. 

Changes: None. 

Comment: Some commenters 

proposed that the regulations require 

States that choose not to coordinate 

with the NIMAC to annually report to 

the public on when children with 

disabilities receive their materials, how 

print materials are provided in a timely 

manner, and the steps the State has 

taken to ensure that materials will be 

provided at the same time as materials 

are provided to children without 

disabilities. One commenter stated that, 

if a State chooses not to coordinate with 

the NIMAC, the State should be 

required to submit data to the 

Department on the number of children 

with print disabilities served by the 

State and when those children received 

the accessible version of print 

instructional materials compared with 

when other children received their 

materials. Other commenters 

recommended that States choosing not 

to coordinate with the NIMAC should 

be required to develop and publish their 

policies and procedures that govern 

how they maintain and distribute 

NIMAS files. 

Discussion: It would be unfair to 

impose additional data collection and 

reporting requirements, such as those 

requested by the commenters, only on 

those States that choose not to 

coordinate with the NIMAC. All States, 

regardless of whether they choose to 

coordinate with the NIMAC, must 

ensure that children with disabilities 

who need instructional materials in 

accessible formats receive instructional 

materials in a timely manner, consistent 

with § 300.172(b)(3). 

Furthermore, even States that choose 

to coordinate with the NIMAC will need 

to take steps to ensure that the 

instructional materials for children 

eligible to receive print instructional 

materials derived from NIMAS files are 

received in a timely manner. As 

provided in section 674(e)(3)(A) of the 

Act, the NIMAC is a distribution center 

for NIMAS files obtained from 

publishers, SEAs, and LEAs. Section 

612(a)(23) of the Act requires SEAs that 

choose to coordinate with the NIMAC to 

enter into written contracts with 

publishers to require the publishers to 

provide electronic files using the 

NIMAS to the NIMAC on, or before, 

delivery of the print instructional 

materials to the SEA. 

The NIMAC is not responsible for 

converting NIMAS files to the accessible 

formats needed by the children eligible 

to receive print instructional materials 

derived from NIMAS files. All States 

will need to arrange to have the NIMAS 

files converted to student-ready versions 

of instructional materials in the 

accessible formats needed by these 

children. 

Changes: None. 

Comment: One commenter requested 

that the Department provide 

information and training to States and 

LEAs on the NIMAC so that they can 

make an informed choice regarding 

whether to coordinate with the NIMAC. 

Another commenter recommended that 

the Department provide written 

guidance for States and LEAs regarding 

the NIMAS and the NIMAC. 

Discussion: The Department 

recognizes the need to provide 

information to SEAs and LEAs regarding 

the NIMAS and the NIMAC and will 

provide technical assistance through the 

NIMAS Technical Assistance Center 

after the Department has approved the 

NIMAC procedures. 

Changes: None. 

Preparation and Delivery of Files 

(§ 300.172(c)) 

Comment: One commenter 

recommended that the regulations 

require instructional materials provided 

to children with disabilities to be 

complete and accurate. Another 

commenter requested requiring 

publishers to provide copies of the 

original books to the NIMAC along with 

the electronic files, because a copy of 

the original book is necessary for 

alignment of page numbers and 

descriptions of pictures. 

Discussion: We understand and 

appreciate the importance of having a 

copy of the original material to ensure 

accuracy of the files. However, the 

NIMAC is not responsible for ensuring 

the accuracy of materials, aligning page 

numbers, or describing pictures. Rather, 

the NIMAC is a distribution center for 

NIMAS files obtained from publishers, 

SEAs, and LEAs. Consistent with 

section 674(e)(3)(A) of the Act, the 

duties of the NIMAC are to receive and 

maintain a catalog of print instructional 

materials prepared in the NIMAS format 

and made available to the NIMAC by the 

textbook publishing industry, SEAs, and 

LEAs. Accessible, student-ready 

versions of instructional materials are 

created from NIMAS source files by 

national third-party conversion 

organizations; regional or State 

conversion sources; desktop 

applications created by software 

developers; or curriculum publishers 

that produce accessible alternate format 

versions for direct sale to SEAs and 

LEAs. The Act does not authorize the 

Department to impose obligations on 

such entities to provide accurate 

materials. States and LEAs that contract 

with such entities, however, may wish 

to require the accuracy of such 

materials, including the alignment of 

page numbers and descriptions of 

pictures, as part of their agreements. 

Changes: None. 

Comment: One commenter suggested 

that the regulations permit an SEA to 

receive assistance from the NIMAC, 

even if the SEA is not formally 

coordinating with the NIMAC. 

Discussion: The Act does not require 

the NIMAC to provide assistance to 

SEAs if the SEA has chosen not to 

coordinate with the NIMAC. However, 

there is nothing in the Act that would 

prevent the NIMAC from doing so. As 

stated in section 674(e)(2)(B) of the Act, 

the NIMAC must provide access to print 

instructional materials, including 

textbooks, in accessible media, free of 

charge, to blind or other persons with 

print disabilities in elementary and 

secondary schools, in accordance with 

such terms and procedures as the 

NIMAC may prescribe. Providing this 

access could include assisting an SEA, 

even if the SEA has chosen not to 

coordinate with the NIMAC. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

include an accountability mechanism so 

that parents and schools know whether 

the State or LEA is responsible for the 

timely delivery of instructional 

materials. 


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Discussion: Whether instructional 

materials are purchased by the State or 

LEA is a State matter. The Act does not 

authorize the Department to impose 

obligations on States or LEAs with 

respect to the process for timely 

delivery of instructional materials. 

Changes: None. 

Comment: One commenter 

emphasized the need to track the 

progress and monitor the advancement 

of accessible materials on a national and 

regional level. Another commenter 

stated that there is a need to establish 

SEA and LEA baseline data regarding 

the timeliness, quality, and quantity of 

alternate formats in schools. One 

commenter stated that States should be 

required to publicize information 

regarding whether the State is meeting 

its responsibilities to provide accessible 

materials to persons who are blind or 

other persons with print disabilities in 

a timely manner. 

Discussion: We believe that it would 

be overly burdensome to require States 

to collect and report data on the 

timeliness, quality, and quantity of 

alternate formats provided to children 

with disabilities in order to track the 

availability of accessible materials for 

children with disabilities on a regional 

or national level. Under the State 

complaint procedures, States are 

responsible for resolving complaints 

alleging violations of requirements 

under the Act, including this one. 

Changes: None. 

Comment: One commenter requested 

information on the scope of the 

NIMAC’s responsibilities. 

Discussion: The duties of the NIMAC 

are specified in section 674(e)(2) of the 

Act and include: (a) receiving and 

maintaining a catalog of print 

instructional materials prepared in the 

NIMAS format; (b) providing access to 

print instructional materials in 

accessible media, free of charge to blind 

or other persons with print disabilities 

in elementary schools and secondary 

schools; and (c) developing, adopting, 

and publishing procedures to protect 

against copyright infringement, with 

respect to print instructional materials 

provided under sections 612(a)(23) and 

613(a)(6) of the Act. 

Section 674(c) of the Act provides that 

NIMAC’s duties apply to print 

instructional materials published after 

July 19, 2006, the date on which the 

final rule establishing the NIMAS is 

published in the Federal Register (71 

FR 41084). The Department interprets 

‘‘publish’’ to have the plain meaning of 

the word, which is to issue for sale or 

distribution to the public. The NIMAC’s 

duties, therefore, apply to print 

instructional materials made available 

to the public for sale after the NIMAS 

is published in the Federal Register. 

However, this does not relieve SEAs and 

LEAs of their responsibility to provide 

accessible instructional materials in a 

timely manner, regardless of when the 

instructional materials were 

‘‘published.’’

Changes: None. 

Comment: A few commenters 

expressed concern that the regulations 

do not specify the structure and 

operation of the NIMAC. One 

commenter requested that the 

Department provide more information 

about the operation of the NIMAC. 

Another commenter recommended that 

the NIMAC’s management board 

include representatives of authorized 

entities. One commenter requested 

information on the legal protections that 

the Department will provide to the 

NIMAC. Another commenter requested 

specific information on the process and 

timing of the funding of the NIMAC. 

One commenter recommended a 

timeline with a series of activities (e.g., 

establishment of a cooperative 

agreement, cost projections) to ensure 

that the NIMAC is operational. Another 

commenter recommended that the 

Department develop a process to ensure 

that the files included in the NIMAC are 

NIMAS compliant, complete, and of the 

highest quality. One commenter 

expressed concern about how NIMAS 

files will be bundled and delivered to 

the NIMAC. 

Discussion: We do not believe that 

regulations on the structure, operation, 

or budget of the NIMAC are necessary. 

Section 674(e) of the Act establishes the 

NIMAC through the American Printing 

House for the Blind (APH) and allows 

the NIMAC to prescribe terms and 

procedures to perform its duties under 

the Act. The Department’s Office of 

Special Education Programs (OSEP) will 

oversee the administration of the 

NIMAC through a cooperative 

agreement with the APH and will work 

with the NIMAC to establish its 

structure, operating procedures, and 

budget. The NIMAC procedures will be 

available on the NIMAC Web site at: 

http://www.nimac.us. 

Changes: None. 

Comment: One commenter stated that 

the duties of the NIMAC to receive and 

maintain electronic files of instructional 

materials provided by publishers should 

not be misconstrued as imposing a duty 

on the NIMAC itself to use the NIMAS 

files to reproduce the instructional 

materials in accessible formats for 

children with print disabilities. 

Discussion: The Act clarifies that the 

NIMAC is not responsible for producing 

instructional materials in accessible 

formats. As stated in section 674(e)(2) of 

the Act, the NIMAC receives and 

maintains a catalog of print 

instructional materials prepared in the 

NIMAS, and made available to the 

NIMAC by the textbook publishing 

industry, SEAs, and LEAs. 

Changes: None. 

Comment: One commenter expressed 

concern about clear guidance regarding 

electronic rights. Another commenter 

recommended that the regulations 

require the NIMAC to develop a user 

agreement that any entity seeking access 

to a NIMAS file must sign. The 

commenters stated that the agreement 

should detail the entities that are 

eligible under Federal copyright law 

and the Act to access the NIMAS files, 

the alternate formats that may be 

produced, and any other restrictions on 

the dissemination and use of NIMAS 

files. 

One commenter stated that the 

regulations should require that the 

authorized entities have full, complete, 

and immediate access to deposited files 

and clarify that the authorized entities 

are responsible for reproducing the 

instructional materials in an accessible 

format and therefore, the files housed by 

the NIMAC should be free of charge. 

Another commenter stated that the 

Department should ensure that NIMAS 

books are available to all authorized 

entities and the appropriate State 

organizations within five days after the 

books are deposited in the NIMAC. 

Discussion: We do not believe it is 

appropriate or necessary to regulate on 

the authorized entities eligible to have 

access to the NIMAS files. Under 

section 674(e)(2)(C) of the Act, the 

NIMAC is required to develop, adopt, 

and publish procedures to protect 

against copyright infringement, with 

respect to the print instructional 

materials produced using the NIMAS 

and provided by SEAs and LEAs to 

blind persons or other persons with 

print disabilities. Such procedures will 

address, for example, information 

regarding the authorized entities that are 

eligible to have access to NIMAS files, 

responsibilities of such authorized 

entities, and how and when access will 

be provided. The NIMAC procedures 

will be available on the NIMAC Web 

site at: http://www.nimac.us. 

Changes: None. 

Comment: One commenter suggested 

several changes in the process to make 

Braille copies of instructional materials 

including constructing directions for 

choosing answers in universal terms, 

such as ‘‘write the correct response,’’

rather than ‘‘circle’’ or ‘‘underline;’’

describing, in writing, visuals that 

cannot be easily interpreted; using hard 


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paper for Braille and raised drawings, 

rather than thermoform; using hardbound bindings for text, rather than 

plastic spiral binders; using audio 

formats as supplemental materials; and 

using simple graphics with easy access 

to map keys on the same page. 

Discussion: Procedures for Braille 

transcribers and for conversion entities 

are the responsibility of SEAs and LEAs 

and, as such, are beyond the scope of 

these regulations. 

Changes: None. 

Comment: One commenter 

recommended that software companies 

routinely create desktop publishing 

programs that contain text to speech 

capabilities. 

Discussion: It is beyond the 

Department’s authority to impose 

requirements on software companies. 

Changes: None. 

Comment: One commenter 

recommended that a NIMAS style guide 

be developed that is textbook specific. 

Discussion: The NIMAS Technical 

Assistance Center will develop a best 

practices Web page with exemplars and 

a style guide. This technical assistance 

resource will be available at: http:// 

nimas.cast.org. 

Changes: None. 

Assistive Technology (§ 300.172(d)) 

Comment: A few commenters 

requested that the regulations clarify 

that the ‘‘assistive technology 

programs,’’ referred to in § 300.172(d), 

are the programs established in each 

State pursuant to the Assistive 

Technology Act of 1998, as amended. 

Discussion: Section 300.172(d) and 

section 612(a)(23)(D) of the Act provide 

that in carrying out the requirements in 

§ 300.172, the SEA, to the maximum 

extent possible, must work 

collaboratively with the State agency 

responsible for assistive technology 

programs. Section 612(a)(23)(D) of the 

Act does not refer to any particular 

assistive technology program. Therefore, 

we interpret broadly the phrase ‘‘State 

agency responsible for assistive 

technology programs’’ to mean the 

agency determined by the State to be 

responsible for assistive technology 

programs, which may include programs 

established under section 4 of the 

Assistive Technology Act of 1998, as 

amended. 

Changes: None. 

Definitions (§ 300.172(e)) 

Comment: Several commenters 

requested that § 300.172(e) include the 

full definition of terms, rather than the 

citations to the definitions in the laws. 

A number of commenters requested that 

the regulations include a definition of 

‘‘persons with print disabilities.’’

Discussion: We have published the 

NIMAS as Appendix C to Part 300—

National Instructional Materials 

Accessibility Standard of these 

regulations, which will include the 

definition of NIMAS from section 

674(e)(3)(B) of the Act. 

The definition of the NIMAC in new 

§ 300.172(e)(1)(ii) (proposed 

§ 300.172(e)(2)) and section 

612(a)(23)(E)(i) of the Act refers to the 

center established pursuant to section 

674(e) of the Act. Paragraph (e)(1) in 

section 674 of the Act establishes the 

center at the APH and paragraph (e)(2) 

outlines the duties of the NIMAC. We 

do not believe it is necessary to include 

this information in the regulations in 

order to implement the requirements of 

the Act, but will include it here for the 

convenience of the readers. 

National Instructional Materials 

Access Center or NIMAC means the 

center established pursuant to section 

674(e) of the Act. Section 674(e) of the 

Act provides, in part, that—

(1) In general. The Secretary shall 

establish and support, through the 

American Printing House for the Blind, 

a center to be known as the ‘‘National 

Instructional Materials Access Center’’

not later than one year after the date of 

enactment of the Individuals with 

Disabilities Education Improvement Act 

of 2004. 

(2) Duties. The duties of the NIMAC 

are the following: 

(A) To receive and maintain a catalog 

of print instructional materials prepared 

in the NIMAS, as established by the 

Secretary, made available to such center 

by the textbook publishing industry, 

State educational agencies, and local 

educational agencies. 

(B) To provide access to print 

instructional materials, including 

textbooks, in accessible media, free of 

charge, to blind or other persons with 

print disabilities in elementary schools 

and secondary schools, in accordance 

with such terms and procedures as the 

NIMAC may prescribe. 

(C) To develop, adopt and publish 

procedures to protect against copyright 

infringement, with respect to the print 

instructional materials provided under 

sections 612(a)(23) and 613(a)(6). 

The definitions of blind persons or 

other persons with print disabilities and 

specialized format both refer to statutes 

other than the Act. For the reasons set 

forth earlier in this notice, we are 

referencing the definitions of terms in 

§ 300.172(e), rather than adding them to 

these regulations. However, we will 

include them here for the convenience 

of the readers. 

The Library of Congress regulations 

(36 CFR 701.6(b)(1)) related to the Act 

to Provide Books for the Adult Blind 

(approved March 3, 1931, 2 U.S.C. 135a) 

provide that blind persons or other 

persons with print disabilities include: 

(i) Blind persons whose visual acuity, 

as determined by competent authority, 

is 20/200 or less in the better eye with 

correcting glasses, or whose widest 

diameter if visual field subtends an 

angular distance no greater than 20 

degrees. 

(ii) Persons whose visual disability, 

with correction and regardless of optical 

measurement, is certified by competent 

authority as preventing the reading of 

standard printed material. 

(iii) Persons certified by competent 

authority as unable to read or unable to 

use standard printed material as a result 

of physical limitations. 

(iv) Persons certified by competent 

authority as having a reading disability 

resulting from organic dysfunction and 

of sufficient severity to prevent their 

reading printed material in a normal 

manner. 

Competent authority is defined in 36 

CFR 701.6(b)(2) as follows: 

(i) In cases of blindness, visual 

disability, or physical limitations 

‘‘competent authority’’ is defined to 

include doctors of medicine, doctors of 

osteopathy, ophthalmologists, 

optometrists, registered nurses, 

therapists, professional staff of 

hospitals, institutions, and public or 

welfare agencies (e.g., social workers, 

case workers, counselors, rehabilitation 

teachers, and superintendents). 

(ii) In the case of a reading disability 

from organic dysfunction, competent 

authority is defined as doctors of 

medicine who may consult with 

colleagues in associated disciplines. 

Specialized formats has the meaning 

given the term in section 121(d)(4) of 

title 17, United States Code: 

(A) Braille, audio, or digital text 

which is exclusively for use by blind or 

other persons with disabilities. 

(B) With respect to print instructional 

materials, includes large print formats 

when such materials are distributed 

exclusively for use by blind or other 

persons with disabilities. 

Changes: As noted earlier, we have 

amended paragraph (e) of § 300.172 by 

adding a new paragraph (e)(2) to clarify 

that the definitions in § 300.172(e)(1) 

apply to each SEA and LEA whether or 

not the SEA or LEA chooses to 

coordinate with the NIMAC. We have 

made technical changes to § 300.172(e) 

and renumbered § 300.172(e) to be 

consistent with this change. 


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Prohibition on Mandatory Medication 

(§ 300.174) 

Comment: A few commenters 

expressed concern that the regulations 

do not provide sufficient guidance on 

what school personnel can 

communicate to parents regarding 

medication. The commenters stated that 

in the absence of additional guidance, 

the regulations have the unintended 

effect of preventing school personnel 

from speaking openly with parents 

regarding classroom behavior, options 

for addressing behavior problems, and 

the impact of a child’s medication on 

classroom behavior. Further, the 

commenters requested that the 

regulations do more to encourage school 

personnel to recommend evaluations for 

children with behavior problems and 

communicate openly with parents about 

the effectiveness of treatment, and 

protect school personnel. Other 

commenters recommended requiring 

school personnel to inform parents if 

they suspect that a child’s behavior may 

be related to a disability. 

Discussion: We believe that § 300.174 

provides sufficient guidance on what 

school personnel can and cannot 

communicate to parents regarding a 

child’s medication. Paragraph (a) 

clarifies that school personnel cannot 

require parents to obtain a prescription 

for medication for a child as a condition 

of attending school, receiving an 

evaluation to determine if a child is 

eligible for special education services, 

or receiving special education and 

related services under the Act. 

Paragraph (b) clearly permits classroom 

personnel to speak with parents or 

guardians regarding a child’s academic 

and functional performance, behavior in 

the classroom or school, or the need for 

an evaluation to determine the need for 

special education or related services. 

We do not believe that further 

regulations are needed to encourage 

school personnel to recommend 

evaluations for children with behavior 

problems or to require school personnel 

to inform parents if they suspect a 

child’s behavior may be related to a 

disability. The child find requirements 

in § 300.111 clarify that States must 

have in effect policies and procedures to 

ensure that all children with disabilities 

residing in a State and who are in need 

of special education and related 

services, are identified, located, and 

evaluated. 

Changes: None. 

States’ Sovereign Immunity (New 

§ 300.177) 

Comment: None. 

Discussion: In developing the 

proposed regulations, we incorporated 

those provisions of subpart A that apply 

to States. We inadvertently omitted the 

provisions in section 604 of the Act, 

regarding States’ sovereign immunity. 

We have added these to the regulations 

in new § 300.177. In paragraph (a), we 

have clarified that the statutory 

language means that a State must waive 

immunity in order to receive Part B 

funds. This is the longstanding 

interpretation of the Department and is 

consistent with Federal Circuit Courts’

decisions interpreting this statutory 

language. (See, e.g., Pace v. Bogalusa 

City Sch. Bd., 403 F.3d 272 (5th Cir. 

2005); M.A. ex rel. E.S. v. StateOperated Sch. Dist., 344 F.3d 335 (3rd 

Cir. 2003); Little Rock Sch. Dist. v. 

Mauney, 183 F.3d 816 (8th Cir. 1999); 

Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 

1997).) 

Changes: We have added the 

provisions in section 604 of the Act, 

regarding States’ sovereign immunity, to 

new § 300.177. 

Department Procedures (§§ 300.178 

Through 300.186) 

Comment: One commenter stated that 

the requirements in §§ 300.179 through 

300.183, regarding the notice and 

hearing procedures before the Secretary 

determines a State is not eligible to 

receive a grant under Part B of the Act, 

are unnecessary and go beyond what is 

required in section 612(d) of the Act. 

The commenter recommended removing 

§§ 300.179 through 300.183 and 

including additional language in 

§ 300.178 clarifying that the Secretary 

has the authority to develop specific 

administrative procedures to determine 

if States meet statutory requirements for 

eligibility under Part B of the Act and 

that such procedures must include 

notification of eligibility or noneligibility, an opportunity for a hearing, 

and an opportunity for appeal of the 

hearing decision. 

Discussion: The Department does not 

agree with the commenter that the 

notification and hearing procedures 

included in §§ 300.179 through 300.183 

are unnecessary and go beyond what is 

required in section 612(d) of the Act. 

Section 612(d)(2) of the Act states that 

the Secretary shall not make a final 

determination that a State is not eligible 

to receive a grant under this part until 

after providing the State with reasonable 

notice and an opportunity for a hearing. 

When the Secretary proposes to deny a 

State’s eligibility to receive a grant 

under Part B of the Act, withhold funds, 

or take other enforcement action, it is 

important to all parties that the process 

through which those issues will be 

decided is clearly described, so that 

time, money, and effort are not spent 

resolving procedural questions instead 

of the underlying issues. For these 

reasons, we believe it is important to 

retain §§ 300.179 through 300.183 in the 

regulations. 

Changes: None. 

Judicial Review (§ 300.184) 

Comment: One commenter requested 

that we clarify in the regulations the 

status of a State’s operation of a program 

or eligibility to receive a grant under 

Part B of the Act while a final judicial 

decision is pending with respect to the 

State’s eligibility under section 612 of 

the Act. 

Discussion: Under section 612(a) of 

the Act, States must meet certain 

conditions in order to be eligible for a 

grant under the Part B program. Under 

section 612(d) of the Act, if the 

Secretary, after notice and an 

opportunity for a hearing, makes a final 

determination that a State is not eligible 

for a grant, the Secretary may not award 

funds to the State. The procedures in 

§§ 300.179 through 300.183 detail the 

process through which the Secretary 

notifies a State of a proposed 

ineligibility determination, the hearing 

available to the State to dispute this 

proposal, and the process through 

which the Secretary makes a final 

determination. The Secretary’s final 

determination may be appealed through 

the judicial review procedure described 

in section 616(e)(8) of the Act and 

§ 300.184. We decline to address this 

issue more specifically in the 

regulations, however, as we think the 

regulations already adequately convey 

the idea that only States that the 

Secretary determines to be eligible can 

receive a grant. 

Changes: None. 

By-Pass for Children in Private Schools 

(§§ 300.190 through 300.198) 

Comment: One commenter stated that 

§§ 300.190 through 300.198 are 

unnecessary because the Act gives 

sufficient authority for the Secretary to 

implement a by-pass for children with 

disabilities enrolled in private 

elementary schools and secondary 

schools. 

Discussion: Section 300.190 retains 

the authority for a by-pass in current 

§ 300.480 and includes additional 

authority for a by-pass, consistent with 

section 612(f)(1) of the Act, in cases 

where the Secretary determines that an 

SEA, LEA, or public agency has 

substantially failed, or is unwilling, to 

provide for equitable participation of 

parentally-placed private school 

children with disabilities. When the 

Secretary authorizes a by-pass it is 

important that all parties understand the 


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process by which the Secretary 

determines the funds that will be 

deducted from the State’s allocation 

under Part B of the Act to provide 

services, as well as the actions that are 

required before the Secretary takes any 

final action to implement a by-pass. 

When such processes and procedures 

are clearly described, time, money, and 

effort are not spent resolving procedural 

questions. The requirements in 

§§ 300.190 through 300.198 provide this 

information and we believe are 

necessary to clarify and ensure effective 

implementation of the by-pass 

provisions in the Act. We are making 

one change to § 300.191(d) to clarify that 

the Secretary deducts amounts the 

Secretary determines necessary to 

implement a by-pass from the State’s 

allocations under sections 611 and 619 

of the Act. 

Changes: In § 300.191(d) we have 

substituted a reference to sections 611 

and 619 of the Act for a reference to Part 

B of the Act. 

Show Cause Hearing (§ 300.194) 

Comment: One commenter opposed 

allowing a lawyer for the SEA or LEA 

to present oral and written evidence and 

arguments at a show cause hearing 

because parents are often intimidated by 

having to face a lawyer. 

Discussion: Section 300.194(a)(3) 

provides an opportunity for an SEA, 

LEA, or other public agency, and 

representatives of private elementary 

schools and secondary schools to be 

represented by legal counsel and to 

submit oral or written evidence or 

arguments at a hearing to show cause 

why a by-pass should not be 

implemented. Parents are not parties to 

this hearing and generally would not 

appear before the show cause hearing 

officer, and would, therefore, not be 

intimidated by a participating lawyer. 

We believe that it is only fair that the 

party to the hearing (SEA, LEA, or other 

public agency, and representatives of 

private schools) be provided the option 

to be represented by legal counsel 

because legal counsel will generally 

represent the Department, as a party to 

the hearing. 

Changes: None. 

State Administration (§ 300.199) 

Comment: One commenter indicated 

that § 300.199 is improperly placed in 

the regulations under the general 

heading ‘‘By-pass for Children in Private 

Schools.’’

Discussion: We agree with the 

commenter that § 300.199 does not 

belong under the general heading ‘‘ByPass for Children in Private Schools.’’

Changes: A new undesignated center 

heading entitled ‘‘State Administration’’

will be added immediately preceding 

§ 300.199 to separate that section from 

the regulations related to 

implementation of the by-pass 

provisions of the Act. 

Comment: One commenter 

recommended including in § 300.199 a 

requirement that States may not 

eliminate from their rules, regulations, 

and policies any provisions required by 

Part B of the Act and its implementing 

regulations. 

Discussion: Section 300.199 

incorporates the requirement in section 

608 of the Act that any rulemaking 

related to the Act conducted by the 

State conform to the purposes of the 

Act. Consistent with section 608 of the 

Act, § 300.199 makes clear that each 

State that receives funds under Part B of 

the Act must ensure that any State rules, 

regulations, and policies relating to 34 

CFR part 300 conform to the provisions 

of 34 CFR part 300. We do not believe 

it is necessary to add a provision in 

§ 300.199 prohibiting States from 

eliminating from their rules, regulations, 

and policies any provisions required by 

Part B of the Act and its implementing 

regulations, as requested by the 

commenter. If a State were to do so, the 

State’s rules, regulations, and policies 

would not conform to the provisions in 

34 CFR part 300. Under this provision, 

a State, and not the Secretary, 

determines whether a particular rule, 

regulation, or policy conforms to the 

purposes of the Act. 

Changes: None. 

Comment: Some commenters 

expressed concern that the mandate to 

minimize State rules and regulations 

might discourage States from 

developing beneficial programs, and, 

therefore, should not pertain to policies 

that promote best practices, increased 

parental involvement, educating 

children in the least restrictive 

environment, and improving access to 

the general curriculum. One commenter 

recommended including a statement in 

the regulations that a State would not be 

penalized for exceeding the minimum 

requirements of the Act. A few 

commenters stated that the services 

provided by the Act were intended to be 

a ‘‘floor,’’ rather than a ‘‘ceiling’’ and 

recommended a pilot program to 

encourage States to adopt rules that best 

serve the needs of children with 

disabilities. 

Discussion: We do not agree that the 

regulations discourage States from 

developing beneficial programs or 

establishing rules that best serve the 

needs of children with disabilities. In 

fact, § 300.199(b), consistent with 

section 608(b) of the Act, requires State 

rules, regulations, and policies under 

the Act to support and facilitate LEA 

and school-level system improvement 

designed to enable children with 

disabilities to meet challenging State 

student academic achievement 

standards. 

Section 300.199(a), consistent with 

section 608(a) of the Act, is intended to 

minimize the number of rules, 

regulations, and policies to which LEAs 

and schools are subject under the Act, 

and to identify in writing any rule, 

regulation, or policy that is Stateimposed and not required under the Act 

and its implementing regulations. The 

Department’s position is consistent with 

S. Rpt. No. 108–185, p. 10, which states 

‘‘Through section 608(a), the committee 

is in no way attempting to reduce State 

input or State practice in this area, but 

intends to make clear what is a Federal 

obligation and what is a State or local 

educational agency requirement for the 

Act.’’ We believe it is important for 

parents, teachers, school administrators, 

State lawmakers, and others to 

understand what is required under the 

Act, and, therefore, do not believe that 

§ 300.199 should be changed. 

Changes: None. 

Subpart C—Local Educational Agency 

Eligibility 

Consistency With State Policies 

(§ 300.201) 

Comment: Some commenters 

recommended requiring LEAs to seek 

input from parents of children with 

disabilities in the development of LEA 

policies, procedures, and programs. 

Discussion: Section 300.201, 

consistent with section 613(a)(1) of the 

Act, requires each LEA to have in effect 

policies, procedures, and programs that 

are consistent with State policies and 

procedures. It is up to each State and its 

LEAs to determine the manner in which 

LEAs develop their policies, procedures, 

and programs, consistent with State law 

and procedures. The Act does not 

authorize the Department to impose 

additional obligations on States or LEAs 

with respect to the development of LEA 

policies, procedures, and programs. 

Changes: None. 

Maintenance of effort (§§ 300.202 

through 300.205) 

Comment: A few commenters stated 

that the maintenance of effort 

requirements are complicated and 

unnecessary and should be eliminated 

or simplified. 

Discussion: Sections 300.202 through 

300.205, regarding maintenance of effort 

and the LEA’s use of funds received 


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under Part B of the Act, reflect the 

specific statutory requirements in 

section 613(a)(2) of the Act, as well as 

necessary information regarding the 

implementation of these requirements. 

Much of the additional information in 

§§ 300.202 through 300.205 was 

included in various sections throughout 

the current regulations. We continue to 

believe that this information is 

necessary for the proper implementation 

of the Act. Section 300.204(e), which 

has been newly added to the 

regulations, includes the assumption of 

costs by the high cost fund as an 

additional condition under which an 

LEA may reduce its level of 

expenditures. We believe this provision 

is necessary because LEAs should not be 

required to maintain a level of fiscal 

effort based on costs that are assumed 

by the SEA’s high cost fund. 

In short, we have tried to present the 

regulations relating to LEA maintenance 

of effort in a clear manner, while being 

consistent with the language of the Act 

(which we do not have the authority to 

change) and including only as much 

additional information as is necessary to 

ensure proper implementation of the 

Act. 

Changes: None. 

Comment: One commenter stated that 

LEAs should be permitted to use a 

reasonable amount of their Part B funds 

to meet the Act’s requirements relating 

to student assessment, outcomes, 

complaints, compliance monitoring, 

mediation, and due process hearings. 

Discussion: With one exception, 

nothing in the Act or these regulations 

would prevent an LEA from using its 

Part B allotment for the activities noted 

by the commenter, so long as the 

expenditures meet the other applicable 

requirements under the Act and 

regulations. 

LEAs may not use their Part B funds 

to support the mediation process 

described in § 300.506. Consistent with 

section 615(e)(2)(D) of the Act, 

§ 300.506(b)(4) requires the State (not 

the LEA) to bear the cost of that 

mediation process. Although LEAs may 

not use their Part B funds to support the 

mediation process required under 

§ 300.506(b)(4), they may use their Part 

B funds to support alternative mediation 

processes that they offer. Some LEAs 

(and States) offer alternative mediation 

processes, in addition to the mediation 

process required under section 615 of 

the Act. These alternative mediation 

processes generally were established 

prior to the Federal mandate for 

mediation and some LEAs (and States) 

continue to offer parents the option of 

using these alternative mediation 

processes to resolve disputes. Therefore, 

if an LEA has an alternative mediation 

process, it may use its Part B funds for 

this process, so long as parents are 

provided access to the required 

mediation process under section 615 of 

the Act and are not required to use an 

alternative mediation process in order to 

engage in the mediation process 

provided under section 615 of the Act. 

Changes: None. 

Comment: Several commenters 

requested clarifying that ‘‘per capita’’ in 

§ 300.203(b) means the amount per 

child with a disability in an LEA. 

Discussion: We do not believe it is 

necessary to include a definition of ‘‘per 

capita’’ in § 300.203(b) because we 

believe that, in the context of the 

regulations, it is clear that we are using 

this term to refer to the amount per 

child with a disability served by the 

LEA. 

Changes: None. 

Exception to Maintenance of Effort 

(§ 300.204) 

Comment: One commenter 

recommended expanding the exceptions 

to the maintenance of effort 

requirements in § 300.204(a) to include 

negotiated reductions in staff salaries or 

benefits so that LEAs are not penalized 

for being proactive in reducing costs. 

Another commenter recommended 

revising § 300.204 to allow LEAs to 

apply for a waiver of the maintenance 

of effort requirements in cases of fiscal 

emergencies. 

Discussion: Section 300.204(a) 

through (d) reflects the language in 

section 613(a)(2)(B) of the Act and 

clarifies the conditions under which 

LEAs may reduce the level of 

expenditures below the level of 

expenditures for the preceding year. 

Nothing in the Act permits an exception 

for negotiated reductions in staff salaries 

or benefits or financial emergencies. 

Accordingly, to expand the exceptions 

to the maintenance of effort 

requirements, as recommended by the 

commenters, would be beyond the 

authority of the Department. 

Changes: None. 

Comment: Some commenters 

requested clarification as to whether the 

exceptions to the maintenance of effort 

requirements apply to an LEA that uses 

funds from its SEA’s high cost fund 

under § 300.704(c) during the preceding 

year. 

Discussion: We do not believe further 

clarification is necessary because 

§ 300.204(e) clearly states that the 

assumption of costs by a State-operated 

high cost fund under § 300.704(c) would 

be a permissible reason for reducing 

local maintenance of effort. This 

provision was included in the proposed 

regulations in recognition that the new 

statutory authority in section 611(e)(3) 

of the Act that permits States to 

establish a fund to pay for some high 

costs associated with certain children 

with disabilities could logically and 

appropriately result in lower 

expenditures for some LEAs. 

Changes: None. 

Adjustments to Local Fiscal Efforts in 

Certain Fiscal Years (§ 300.205) 

Comment: A few commenters stated 

that the link between early intervening 

services and reductions in maintenance 

of effort in § 300.205(d) is not in the Act. 

Some commenters expressed concern 

that this requirement forces an LEA to 

choose between providing early 

intervening services and directing local 

funds toward nondisabled children. One 

commenter stated that linking the use of 

funds for early intervening services to 

reduction in maintenance of effort in 

§ 300.205 is not logical and was not the 

intent of Congress. 

Discussion: The link between 

reductions in local maintenance of effort 

(reflected in § 300.205(d)) and the 

amount of Part B funds that LEAs may 

use to provide early intervening services 

(reflected in § 300.226) is established in 

the Act. Section 300.205(d) tracks the 

statutory language in section 

613(a)(2)(C)(iv) of the Act and 

§ 300.226(a) tracks the statutory 

language in section 613(f)(1) of the Act. 

Section 300.205(d) states that the 

amount of funds expended by an LEA 

for early intervening services under 

§ 300.226 counts toward the maximum 

amount of expenditures that an LEA 

may reduce in its local maintenance of 

effort. Section 300.226(a) clearly states 

that the amount of Part B funds an LEA 

may use to provide early intervening 

services may not exceed 15 percent of 

the funds the LEA receives under Part 

B of the Act less any amount reduced 

by the LEA under § 300.205. 

As noted in the NPRM, the 

Department believes it is important to 

caution LEAs that seek to reduce their 

local maintenance of effort in 

accordance with § 300.205(d) and use 

some of their Part B funds for early 

intervening services under § 300.226 

because the local maintenance of effort 

reduction provision and the authority to 

use Part B funds for early intervening 

services are interconnected. The 

decision that an LEA makes about the 

amount of funds that it uses for one 

purpose affects the amount that it may 

use for the other. Appendix D to Part 

300—Maintenance of Effort and Early 

Intervening Services includes examples 

that illustrate how §§ 300.205(d) and 

300.226(a) affect one another. 


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Changes: We have added a reference 

to Appendix D in § 300.226(a). 

Schoolwide Programs Under Title I of 

the ESEA (§ 300.206) 

Comment: A few commenters 

recommended specifying in § 300.206(b) 

that LEAs can use only funds provided 

under section 611 of the Act (and not 

section 619 of the Act) to carry out a 

schoolwide program under section 1114 

of the ESEA. The commenters stated 

that this change is necessary so that the 

per capita amount of Federal Part B 

funds used to carry out a schoolwide 

program is not artificially inflated by 

including preschool grant funds that are 

used to serve children ages three 

through five who are not placed in a 

title I school. 

Discussion: Section 613(a)(2)(D) of the 

Act specifically provides that an LEA 

may use any funds it receives under Part 

B of the Act to carry out schoolwide 

programs under title I of the ESEA. Part 

B funds include any funds an LEA 

receives under sections 611 and 619 of 

the Act. 

Changes: None. 

Personnel Development (§ 300.207) 

Comment: A few commenters 

suggested requiring LEAs to train their 

personnel through research-based 

practices in order to ensure that 

personnel are appropriately and 

adequately prepared to implement Part 

B of the Act. 

Discussion: We believe the regulations 

already address the commenters’

concern and reflect the Department’s 

position that high-quality professional 

development, including the use of 

scientifically based instructional 

practices, is important to ensure that 

personnel have the skills and 

knowledge necessary to improve the 

academic achievement and functional 

performance of children with 

disabilities. Section 300.207, consistent 

with section 613(a)(3) of the Act, 

requires each LEA to ensure that all 

personnel necessary to carry out Part B 

of the Act are appropriately prepared, 

subject to the requirements in § 300.156 

and section 2122 of the ESEA. 

Section 300.156(a), consistent with 

section 612(a)(14) of the Act, clearly 

states that each State must establish and 

maintain qualifications to ensure that 

personnel are appropriately and 

adequately prepared and trained, and 

have the content knowledge and skills 

to serve children with disabilities. 

Further, section 2122(b)(1)(B) of the 

ESEA requires an LEA’s application to 

the State for title II funds (Preparing, 

training, and recruiting high quality 

teachers and principals) to address how 

the LEA’s activities will be based on a 

review of scientifically based research. 

Changes: None. 

Purchase of Instructional Materials 

(§ 300.210) 

Comment: One commenter 

recommended requiring LEAs to hold 

public hearings that meet the 

requirements in section 612(a)(19) of the 

Act before adopting its policies and 

procedures to purchase instructional 

materials. The commenter stated that all 

interested members of the public, 

including parents of children with 

disabilities, are entitled to participate in 

designing the plan to meet the 

requirements in § 300.210. 

Discussion: The Act does not require 

LEAs to hold public hearings before 

implementing new policies and 

procedures. This is a matter for each 

State to determine, based on its rules 

governing public hearings and public 

comment. Therefore, we do not believe 

it is appropriate for these regulations to 

require LEAs to hold public hearings 

and receive public comment on the 

LEA’s purchase of instructional 

materials, as requested by the 

commenter. 

Changes: None. 

Comment: One commenter stated that 

the requirements in § 300.210(b)(3) are 

unnecessary and should be removed 

because the Act does not require LEAs 

to provide accessible materials for 

children with disabilities for whom 

assistance is not available from the 

NIMAC. 

Discussion: We believe that 

§ 300.210(b)(3) is necessary because 

timely access to appropriate and 

accessible instructional materials is an 

inherent component of an LEA’s 

obligation under the Act to ensure that 

FAPE is available for all children with 

disabilities and that children with 

disabilities participate in the general 

curriculum as specified in their IEPs. 

Because the NIMAC is not required to 

serve all children with disabilities who 

need accessible materials, we believe it 

is important that the regulations make 

clear that LEAs are still responsible for 

ensuring that children with disabilities 

who need instructional materials in 

accessible formats, but who do not fall 

within the definition of children who 

are eligible to receive materials 

produced from NIMAS files obtained 

through the NIMAC, receive them in a 

timely manner. We, therefore, decline to 

delete § 300.210(b)(3). 

Changes: None. 

Comment: A significant number of 

commenters expressed concern about 

allowing LEAs to choose not to 

coordinate with the NIMAC. A few 

commenters stated that coordination 

with the NIMAC should be mandatory 

for all LEAs. Other commenters 

recommended that LEAs that cannot 

demonstrate a history of providing 

instructional materials to children with 

disabilities in a timely manner should 

be required to coordinate with the 

NIMAC. 

Discussion: It would be inconsistent 

with section 613(a)(6)(B) of the Act to 

make coordination with the NIMAC 

mandatory for all LEAs or to require 

certain LEAs to coordinate with the 

NIMAC (e.g., LEAs that do not have a 

history of providing instructional 

materials to children with disabilities in 

a timely manner). Section 613(a)(6)(B) of 

the Act provides that nothing in the Act 

shall be construed to require any LEA to 

coordinate with the NIMAC. 

Changes: None. 

Comment: Several commenters 

requested that the regulations clearly 

define the process LEAs must go 

through if they choose not to coordinate 

with the NIMAC. A few commenters 

requested additional details on what 

assurances LEAs must provide if they 

choose not to coordinate with the 

NIMAC. A few commenters requested 

that LEA assurances provide the public 

with information to evaluate the 

capacity of the LEA to provide materials 

to children who are blind or have print 

disabilities. Some commenters stated 

that the assurances provided by LEAs 

that choose not to coordinate with the 

NIMAC should be done annually and in 

writing. 

Several commenters requested that 

the regulations provide a means for the 

public to obtain information about 

which LEAs choose not to coordinate 

with the NIMAC. A few commenters 

recommended requiring LEAs to report 

to the Department whether they choose 

to coordinate with the NIMAC. Some 

commenters requested that the 

Department publish the assurances 

made in accordance with § 300.210(b) 

by LEAs that choose not to coordinate 

with the NIMAC. 

Discussion: The process by which 

LEAs choose not to coordinate with the 

NIMAC and the assurances that LEAs 

must provide if they choose not to 

coordinate with the NIMAC are 

determined by each State. Section 

300.210(b)(2), consistent with section 

613(a)(6)(B) of the Act, states that, if an 

LEA chooses not to coordinate with the 

NIMAC, the LEA must provide an 

assurance to the SEA that the LEA will 

provide instructional materials to blind 

persons or other persons with print 

disabilities in a timely manner. 

Therefore, it would be unnecessary and 

burdensome to require LEAs to provide 


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assurances to the Department or to 

require LEAs to report to the 

Department whether they choose to 

coordinate with the NIMAC. Each State 

has its own mechanisms and processes 

for obtaining assurances from its LEAs, 

and we believe it would be 

inappropriate for these regulations to 

define the process by which LEAs 

inform the SEA that they choose not to 

coordinate with the NIMAC or to 

specify the content of the assurances 

that LEAs must provide to the SEA if 

they choose not to coordinate with the 

NIMAC. Similarly, it is up to each State 

to determine whether and how the State 

will provide information to the public 

about LEAs in the State that choose not 

to coordinate with the NIMAC. 

Changes: None. 

Comment: Some commenters 

proposed that the regulations require 

LEAs that choose not to coordinate with 

the NIMAC to annually report to the 

public on when children with 

disabilities receive their materials, how 

print materials are provided in a timely 

manner, and the steps the LEA has 

taken to ensure that materials are 

provided at the same time as materials 

are provided to children without 

disabilities. Other commenters 

recommended requiring LEAs that 

choose not to coordinate with the 

NIMAC to develop and publish their 

policies and procedures that govern 

how they maintain and distribute 

NIMAS files. 

Discussion: We believe that imposing 

additional data collection and reporting 

requirements, such as those requested 

by the commenters, on LEAs that choose 

not to coordinate with the NIMAC is a 

matter that is best left to the States. 

States are responsible for ensuring that 

accessible instructional materials are 

provided in a timely manner to all 

children with disabilities who need 

them, and are, therefore, in the best 

position to know what controls, if any, 

are needed in their State to ensure that 

LEAS comply with the requirements in 

§ 300.210(b)(3). All LEAs, regardless of 

whether they choose to coordinate with 

the NIMAC, must ensure that children 

with disabilities who need instructional 

materials in accessible formats receive 

them in a timely manner, consistent 

with § 300.210(b)(3). 

Changes: None. 

Comment: A few commenters 

requested that the Department provide 

information to LEAs on the NIMAC and 

the NIMAS so that LEAs can make an 

informed choice regarding whether to 

coordinate with the NIMAC. 

Discussion: The Department 

recognizes the need to provide 

information to LEAs regarding the 

NIMAC and the NIMAS. The 

Department has already provided 

numerous informational sessions on the 

NIMAC and NIMAS and more are 

planned following the publication of the 

regulations and approval of the NIMAC 

procedures. Information about the 

NIMAC Technical Assistance Center is 

available at the following Web site: 

http://www.aph.org/nimac/index.html. 

Information on the NIMAS can be 

obtained at: http://nimas.cast.org. 

Changes: None. 

Early Intervening Services (§ 300.226) 

Comment: One commenter 

recommended clarifying that early 

intervening services should not be used 

to delay the evaluation of children 

suspected of having a disability. 

Discussion: We believe that 

§ 300.226(c), which states that nothing 

in § 300.226 will be construed to delay 

appropriate evaluation of a child 

suspected of having a disability, makes 

clear that early intervening services may 

not delay an appropriate evaluation of a 

child suspected of having a disability. 

Changes: None. 

Comment: One commenter expressed 

concern that the requirements for early 

intervening services do not adequately 

protect the child’s right to FAPE and 

recommended that the requirements 

include provisions regarding notice, 

consent, and withdrawal of consent, as 

well as guidelines for referrals for 

evaluation. 

Discussion: Children receiving early 

intervening services do not have the 

same rights and protections as children 

identified as eligible for services under 

sections 614 and 615 of the Act. Section 

300.226(c), consistent with section 

613(f)(3) of the Act, is clear that early 

intervening services neither limit nor 

create a right to FAPE. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

specify how long a child may receive 

early intervening services before an 

initial evaluation for special education 

services under § 300.301 is conducted. 

Discussion: We do not believe it is 

appropriate or necessary to specify how 

long a child can receive early 

intervening services before an initial 

evaluation is conducted. If a child 

receiving early intervening services is 

suspected of having a disability, the 

LEA must conduct a full and individual 

evaluation in accordance with 

§§ 300.301, 300.304 and 300.305 to 

determine if the child is a child with a 

disability and needs special education 

and related services. 

Changes: None. 

Comment: A few commenters 

suggested clarifying that Part B funds for 

early intervening services should not be 

used for any child previously identified 

as being a child with a disability. 

Discussion: A child previously 

identified as being a child with a 

disability who currently does not need 

special education or related services 

would not be prevented from receiving 

early intervening services. For example, 

a child who received special education 

services in kindergarten and had 

services discontinued in grade 1 

(because the public agency and the 

parent agreed that the child was no 

longer a child with a disability), could 

receive early intervening services in 

grade 2 if the child was found to be in 

need of additional academic and 

behavioral supports to succeed in the 

general education environment. We 

believe that language should be added 

to § 300.226 to clarify that early 

intervening services are for children 

who are not currently identified as 

needing special education or related 

services. 

Changes: We have modified 

§ 300.226(a) to clarify that early 

intervening services are available to 

children who currently are not 

identified as needing special education 

or related services. 

Comment: One commenter 

recommended specifying that unless 

LEAs have significant overidentification and over-representation of 

minority students in special education, 

LEAs may not use Federal Part B funds 

for early intervening services unless 

they can demonstrate that all eligible 

children are receiving FAPE. Another 

commenter suggested prohibiting the 

use of Part B funds for early intervening 

services if an LEA is not providing 

FAPE to all eligible children. 

Discussion: The Act does not restrict 

the use of funds for early intervening 

services only to LEAs that can 

demonstrate that all eligible children 

with disabilities are receiving FAPE. 

Section 613(f)(1) of the Act generally 

permits LEAs to use funds for early 

intervening services for children in 

kindergarten through grade 12 (with a 

particular emphasis on children in 

kindergarten through grade 3) who have 

not been identified as needing special 

education or related services, but who 

need additional academic and 

behavioral support to succeed in a 

general education environment. No 

other restrictions on this authority, such 

as a requirement that the LEA first 

demonstrate that it is providing FAPE to 

all eligible children, are specified or 

appropriate. The authority to use some 

Part B funds for early intervening 


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services has the potential to benefit 

special education, as well as the 

education of other children, by reducing 

academic and behavioral problems in 

the regular educational environment 

and reducing the number of referrals to 

special education that could have been 

avoided by relatively simple regular 

education interventions. Therefore, we 

believe the use of Part B funds for early 

intervening services should be 

encouraged, rather than restricted. 

In one instance, however, the Act 

requires the use of funds for early 

intervening services. Under section 

618(d)(2)(B) of the Act, LEAs that are 

identified as having significant 

disproportionality based on race and 

ethnicity with respect to the 

identification of children with 

disabilities, the placement of children 

with disabilities in particular 

educational settings, and the incidence, 

duration, and type of disciplinary 

actions taken against children with 

disabilities, including suspensions and 

expulsions, are required to reserve the 

maximum amount of funds under 

section 613(f)(1) of the Act to provide 

early intervening services to children in 

the LEA, particularly to children in 

those groups that were significantly 

over-identified. This requirement is in 

recognition of the fact that significant 

disproportionality in special education 

may be the result of inappropriate 

regular education responses to academic 

or behavioral issues. 

Changes: None. 

Comment: One commenter 

recommended permitting LEAs to spend 

funds for early intervening services on 

literacy instruction programs that target 

at-risk limited English proficient 

students. 

Discussion: There is nothing in the 

Act that would preclude LEAs from 

using Part B funds for early intervening 

services, including literacy instruction, 

that target at-risk limited English 

proficient students who have not been 

identified as needing special education 

or related services, but who need 

additional academic and behavioral 

support to succeed in a general 

education environment. 

Changes: None. 

Comment: One commenter requested 

clarification as to whether ESAs or other 

public institutions or agencies, in 

addition to LEAs, have the authority to 

provide early intervening services. 

Discussion: We do not believe any 

clarification is necessary because 

§ 300.226, consistent with section 613(f) 

of the Act, states that LEAs may use Part 

B funds to develop and implement 

coordinated early intervening services. 

As defined in § 300.28(b), local 

educational agency or LEA includes 

ESAs and any other public institution or 

agency having administrative control 

and direction of a public elementary 

school or secondary school, including a 

public nonprofit charter school that is 

established as an LEA under State law. 

Changes: None. 

Comment: Some commenters 

suggested modifying the regulations to 

permit children age 3 through 21 to 

receive early intervening services. The 

commenters stated that this change 

would allow schools to provide early 

academic and behavioral supports to 

preschool children. 

Discussion: Early intervening services 

may not be used for preschool children. 

Section 300.226(a) tracks the statutory 

language in section 613(f)(1) of the Act, 

which states that early intervening 

services are for children in kindergarten 

through grade 12, with a particular 

emphasis on children in kindergarten 

through grade 3. 

Changes: None. 

Comment: One commenter 

recommended clarifying in the 

regulations that early intervening 

services are not equivalent to early 

intervention services. 

Discussion: We do not believe any 

changes are necessary to the regulations 

to clarify the difference between early 

intervening services provided under 

Part B of the Act and early intervention 

services provided under Part C of the 

Act. Following is a description of the 

two types of services: 

Early intervening services provided 

under section 613(f) of the Act are 

services for children in kindergarten 

through grade 12 (with a particular 

emphasis on children in kindergarten 

through grade 3) who have not been 

identified as needing special education 

and related services, but who need 

additional academic and behavioral 

support to succeed in a general 

education environment. 

Early intervention services, on the 

other hand, are services for children 

birth through age two that are designed 

to meet the developmental needs of 

infants and toddlers with disabilities 

under section 632 in Part C of the Act. 

Section 632(5)(A) of the Act defines 

infant or toddler with a disability as a 

child under the age of three years who 

(a) is experiencing developmental 

delays in one or more of the areas of 

cognitive development, physical 

development, communication 

development, social or emotional 

development, and adaptive 

development, or (b) has a diagnosed 

physical or mental condition that has a 

high probability of resulting in 

developmental delay. In addition, some 

States also provide early intervention 

services to infants and toddlers who are 

at risk of having a developmental delay. 

The Part C regulations will address, in 

detail, the early intervention services 

provided under section 632 of the Act. 

Changes: None. 

Comment: One commenter asked 

whether the reference to scientifically 

based academic and behavioral 

interventions in § 300.226(b) means that 

such interventions must be aligned with 

recommended practices and peerreviewed research. 

Discussion: Section 300.226(b) 

follows the specific language in section 

613(f)(2) of the Act and requires that in 

implementing coordinated, early 

intervening services, an LEA may 

provide, among other services, 

professional development for teachers 

and other personnel to enable such 

personnel to deliver scientifically based 

academic and behavioral interventions. 

The use of the term scientifically based 

in § 300.226(b) is intended to be 

consistent with the definition of the 

term scientifically based research in 

section 9101(37) of the ESEA. Because 

this definition of scientifically based 

research is important to the 

implementation of Part B of the Act, a 

reference to section 9101(37) of the 

ESEA has been added in new § 300.35, 

and the full definition of the term has 

been included in the discussion of new 

§ 300.35. Under the definition, 

scientifically based research must be 

accepted by a peer-reviewed journal or 

approved by a panel of independent 

experts through a comparably rigorous, 

objective, and scientific review. We 

expect that the professional 

development activities authorized under 

§ 300.226(b)(1) will be derived from 

scientifically based research. The statute 

and regulations do not refer to 

‘‘recommended practices,’’ which is a 

term of art that, generally, refers to 

practices that the field has adopted as 

‘‘best practices,’’ and which may or may 

not be based on evidence from 

scientifically based research. 

Changes: None. 

Comment: Several commenters 

requested including related services 

personnel, including speech 

pathologists and school psychologists, 

in the development and delivery of 

educational and behavioral evaluations, 

services, and supports for teachers and 

other school staff to enable them to 

deliver coordinated, early intervening 

services. 

Discussion: State and local officials 

are in the best position to make 

decisions regarding the provision of 

early intervening services, including the 

specific personnel to provide the 


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services and the instructional materials 

and approaches to be used. Nothing in 

the Act or regulations prevents States 

and LEAs from including related 

services personnel in the development 

and delivery of educational and 

behavioral evaluations, services, and 

supports for teachers and other school 

staff to enable them to deliver 

coordinated, early intervening services. 

Changes: None. 

Comment: Several commenters 

recommended revising the regulations 

to allow public agencies to use Part B 

funds for early intervening services to 

purchase supplemental instructional 

materials to support the activities in 

§ 300.226(b). 

Discussion: We agree that 

supplemental instructional materials 

may be used, where appropriate, to 

support early intervening activities. The 

Conf. Rpt. in note 269 provides that 

[E]arly intervening services should make 

use of supplemental instructional materials, 

where appropriate, to support student 

learning. Children targeted for early 

intervening services under IDEA are the very 

students who are most likely to need 

additional reinforcement to the core 

curriculum used in the regular classroom. 

These are in fact the additional instructional 

materials that have been developed to 

supplement and therefore strengthen the 

efficacy of comprehensive core curriculum. 

We believe the terms ‘‘services’’ and 

‘‘supports’’ in § 300.226(b)(2) are broad 

enough to include the use of 

supplemental instructional materials. 

Accordingly, we believe that it is 

unnecessary to add further clarification 

regarding the use of supplemental 

instructional materials in § 300.226. Of 

course, use of funds for this purpose is 

subject to other requirements that apply 

to any use of funds, such as the 

limitation on purchase of equipment in 

section 605 of the Act and applicable 

requirements in 34 CFR Parts 76 and 80. 

Changes: None. 

Comment: Several commenters 

requested requiring LEAs to provide 

parents with written notice regarding 

their child’s participation in early 

intervening services, the goals for such 

services, and an opportunity to refuse 

services. Some commenters requested 

requiring LEAs to inform parents of 

their child’s progress in early 

intervening services at reasonable 

intervals. 

Discussion: Section 300.226, 

consistent with section 613(f) of the Act, 

gives LEAs flexibility to develop and 

implement coordinated, early 

intervening services for children who 

are not currently receiving special 

education services, but who require 

additional academic and behavioral 

support to succeed in a regular 

education environment. Early 

intervening services will benefit both 

the regular and special education 

programs by reducing academic and 

behavioral problems in the regular 

education program and the number of 

inappropriate referrals for special 

education and related services. It would 

be overly restrictive and beyond the 

Department’s authority to modify the 

regulations to include the additional 

requirements suggested by the 

commenters. 

Changes: None. 

Comment: One commenter stated that 

data should be collected regarding the 

effectiveness of early intervening 

services. Several commenters requested 

requiring LEAs to report to the SEA, and 

make available to the public, the 

number of children receiving early 

intervening services, the length of time 

the children received the services, the 

impact of the services, and the amount 

of Federal Part B funds used for early 

intervening services. 

Discussion: Section 300.226(d), 

consistent with section 613(f)(4) of the 

Act, requires LEAs that develop and 

maintain coordinated, early intervening 

services to annually report to their SEA 

on the number of children receiving 

early intervening services and the 

number of those children who 

eventually are identified as children 

with disabilities and receive special 

education and related services during 

the preceding two year period (i.e., the 

two years after the child has received 

early intervening services). We believe 

that these data are sufficient to provide 

LEAs and SEAs with the information 

needed to determine the impact of early 

intervening services on children and to 

determine if these services reduce the 

number of referrals for special education 

and related services. Requiring LEAs to 

collect and report data on the 

implementation of early intervening 

services beyond what is specifically 

required in section 613(f)(4) of the Act 

is unnecessary and would place 

additional paperwork burdens on LEAs 

and SEAs. 

Changes: None. 

Comment: Some commenters 

requested that the meaning of the terms 

‘‘subsequently’’ and ‘‘preceding two 

year period’’ in § 300.226(d)(2) be 

clarified. 

Discussion: Section 300.226(d)(2), 

consistent with section 613(f)(4)(B) of 

the Act, requires LEAs to report on the 

number of children who are provided 

early intervening services who 

subsequently receive special education 

and related services under Part B of the 

Act during the preceding two years to 

determine if the provision of these 

services reduces the number of overall 

referrals for special education and 

related services. The Department 

intends for LEAs to report on children 

who began receiving special education 

services no more than two years after 

they received early intervening services. 

For the preceding two year period, the 

LEA would report on the number of 

children who received both early 

intervening services and special 

education services during those two 

years. 

Changes: None. 

Direct Services by the SEA (§ 300.227) 

Comment: Some commenters 

requested that the regulations specify 

that SEAs providing direct services 

must make placement decisions based 

on the child’s individual needs and 

must comply with all requirements for 

providing FAPE in the LRE. 

Discussion: We do not believe any 

changes to the regulations are necessary 

because § 300.227(b), consistent with 

section 613(g)(2) of the Act, clearly 

states that SEAs providing direct special 

education and related services must do 

so in accordance with Part B of the Act. 

Accordingly, the special education and 

related services provided under 

§ 300.227 would be subject to the 

placement requirements in § 300.116 

and the LRE requirements in § 300.114 

and section 612(a)(5) of the Act. 

Changes: None. 

Disciplinary Information (§ 300.229) 

Comment: One commenter 

recommended clarifying that not all 

student disciplinary records can be 

transmitted by public agencies. 

Discussion: We believe that § 300.229 

is clear that not all student disciplinary 

records can be transmitted by public 

agencies. Section 300.229(a) provides 

that public agencies can transmit 

disciplinary information on children 

with disabilities only to the extent that 

the disciplinary information is included 

in, and transmitted with, the student 

records of nondisabled children. Section 

300.229(b) specifies the disciplinary 

information that may be transmitted, 

which includes a description of any 

behavior engaged in by the child that 

required disciplinary action, a 

description of the disciplinary action 

taken, and any other information that is 

relevant to the safety of the child and 

other individuals involved with the 

child. 

Changes: None. 

Comment: Some commenters 

requested that the required transmission 

of student records include both the 

child’s current IEP and any statement of 


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current or previous disciplinary action 

related to weapons, drugs, or serious 

bodily injury that has been taken against 

the child. 

Discussion: It is important to clarify 

that the Act does not require the 

transmission of student disciplinary 

information when the child transfers 

from one school to another. Rather, 

section 613(i) of the Act allows each 

State to decide whether to require its 

public agencies to include disciplinary 

statements in student records and 

transmit such statements with student 

records when a child transfers from one 

school to another. The State’s policy on 

transmitting disciplinary information 

must apply to both students with 

disabilities and students without 

disabilities. 

Section 300.229(b) provides that if a 

State requires its public agencies to 

include disciplinary statements in 

student records, these disciplinary 

statements may include a description of 

any behavior engaged in by the child 

that required disciplinary action, a 

description of the disciplinary action 

taken, and any other information that is 

relevant to the safety of the child and 

other individuals involved with the 

child; disciplinary actions taken against 

a child related to weapons, drugs, or 

serious bodily injury also could be 

included in these descriptions. If a State 

adopts such a policy, § 300.229(c) 

requires that the transmission of any of 

the child’s student records include the 

child’s current IEP and any statement of 

current or previous disciplinary action 

that has been taken against the child. 

Therefore, with regard to the 

commenters’ request that the 

transmission of student records include 

any statement of current or previous 

disciplinary action related to weapons, 

drugs, or serious bodily injury that has 

been taken against the child, this 

information would be transmitted only 

to the extent that disciplinary 

statements are included in, and 

transmitted with, the student records of 

nondisabled children. 

Changes: None. 

Comment: One commenter 

recommended requiring that the 

transmission of a student’s records 

include functional behavioral 

assessments and behavior intervention 

plans. 

Discussion: Any existing functional 

behavioral assessments and behavioral 

intervention plans would be part of the 

materials that must be transmitted 

under § 300.323(g). In addition, if a 

State requires student records to include 

disciplinary information and the child 

transfers from one school to another, 

§ 300.229(c) requires that the 

transmission of any of the child’s 

student records include the child’s 

current IEP. Functional behavioral 

assessments and behavior intervention 

plans are not required components of 

the IEP under § 300.320. However, if a 

State considers functional behavioral 

assessments and behavior intervention 

plans to be part of a student’s IEP, this 

information would be required to be 

transmitted when the child transfers 

from one school to another, consistent 

with § 300.229(c). 

Changes: None. 

Subpart D—Evaluations, Eligibility 

Determinations, Individualized 

Education Programs, and Educational 

Placements 

Parental Consent 

Parental Consent (§ 300.300) 

Comment: A few commenters noted 

that the terms, ‘‘consent,’’ ‘‘informed 

consent,’’ ‘‘agree,’’ and ‘‘agree in 

writing’’ are used throughout the 

regulations and stated that differences 

between the terms should be clarified. 

One commenter recommended that the 

regulations include the term ‘‘informed’’

every time the term ‘‘parental consent’’

is used. 

Discussion: The use of these terms 

throughout the regulations is consistent 

with their use in the Act. The definition 

of consent in § 300.9 includes the 

requirement that a parent be fully 

informed of all information relevant to 

the activity for which consent is sought. 

The definition also requires that a 

parent agree in writing to carrying out 

the activity for which the parent’s 

consent is sought. Therefore, whenever 

the term ‘‘consent’’ is used in these 

regulations, it means that the consent is 

both ‘‘informed’’ and ‘‘written.’’

Similarly, the terms ‘‘consent,’’

‘‘informed consent,’’ ‘‘parental 

consent,’’ and ‘‘written informed 

consent,’’ as used in these regulations, 

all are intended to have the same 

meaning. 

The meaning of the terms ‘‘agree’’ or 

‘‘agreement’’ is not the same as 

‘‘consent.’’ ‘‘Agree’’ or ‘‘agreement’’

refer to an understanding between the 

parent and the LEA about a particular 

question or issue. There is no 

requirement that an agreement be in 

writing unless specifically stated in the 

Act and regulations. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify what the required safeguards are 

if parents elect to receive notices 

electronically or provide electronic or 

digital signatures for consents, such as 

consent for an initial evaluation. 

Discussion: Section 300.505, 

consistent with section 615(n) of the 

Act, permits parents to elect to receive 

prior written notices, procedural 

safeguards notices, and due process 

complaint notices by an electronic mail 

communication, if the public agency 

makes that option available. The Act 

does not specify documentation 

requirements if the public agency makes 

the electronic notice delivery option 

available to parents, and we believe that 

this is a matter that is best left to States 

and LEAs that choose to use the 

electronic communication option. 

In addition, States that wish to utilize 

electronic or digital signatures for 

consent may do so if they choose. 

Consent under § 300.9(b) requires a 

parent to understand and agree in 

writing to the carrying out of the activity 

for which the parent’s consent is sought. 

Therefore, States that permit the use of 

electronic or digital signatures for 

parental consent would need to take the 

necessary steps to ensure that there are 

appropriate safeguards to protect the 

integrity of the process. 

Changes: None. 

Parental Consent for Initial Evaluation 

(§ 300.300(a)) 

Comment: One commenter 

recommended that the regulations 

require a public agency to conduct the 

following activities to obtain parental 

consent for an initial evaluation: 

identify the child’s parents and their 

address and phone number; contact 

social service providers for children 

who are wards of the State; provide 

parents with copies of the Act; and 

inform parents of the consequences of 

withholding consent. 

Discussion: The regulations already 

provide sufficient safeguards regarding 

consent, and we believe that the 

changes requested would be unduly 

burdensome. As a matter of practice, 

public agencies begin the process of 

obtaining parental consent by 

identifying the parent and contacting 

the parent by phone or through written 

correspondence, or speaking to the 

parent in parent-teacher conferences. 

We do not believe it is necessary to 

regulate to require public agencies to 

contact social service agencies to obtain 

consent for children who are wards of 

the State because it may not always be 

necessary or appropriate, for example, 

when a child who is a ward of the State 

has a foster parent who can act as a 

parent, consistent with § 300.30(a)(2). 

Additionally, section 614(a)(1)(D)(iii)(I) 

of the Act provides that the public 

agency must make reasonable efforts to 

obtain informed parental consent for 

children who are wards of the State and 


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not residing with the parent. Public 

agencies are in the best position to 

determine, on a case-by-case basis, 

when it is necessary to contact social 

service providers to assist in obtaining 

parental consent for children who are 

wards of the State. 

We also do not believe that additional 

regulations are necessary to require 

public agencies to inform parents of the 

consequences of withholding consent 

for an initial evaluation or to provide 

parents with copies of the Act. Section 

300.503, consistent with section 

615(c)(1) of the Act, already requires 

that prior written notice be provided to 

parents before an initial evaluation, 

which will explain, among other things, 

why the agency is proposing to conduct 

the evaluation; a description of each 

evaluation procedure, assessment, 

record, or report the agency used as a 

basis for proposing to conduct the 

evaluation; and sources for the parent to 

contact to obtain assistance in 

understanding the provisions under the 

Act. Additionally, § 300.504(a)(1), 

consistent with section 615(d)(1)(A)(i) of 

the Act, requires the public agency to 

provide a copy of the procedural 

safeguards to parents upon initial 

referral for an evaluation, which 

provides information about parents’

rights under the Act. Although we do 

not believe the recommended 

requirements should be added to the 

regulations, we will add the crossreferences to the consent requirements 

in § 300.9, and the requirements for 

prior written notice and the procedural 

safeguards notice in §§ 300.503 and 

300.504, respectively, to § 300.300(a). 

Changes: We have added crossreferences to §§ 300.9, 300.503, and 

300.504 in § 300.300(a). 

Comment: One commenter 

recommended revising 

§ 300.300(a)(1)(ii) and using the 

statutory language in section 

614(a)(1)(D)(i) of the Act to require that 

parental consent for evaluation may not 

be construed as consent for placement 

for receipt of special education and 

related services. 

Discussion: We believe it is 

appropriate to use the phrase, ‘‘initial 

provision of services’’ in 

§ 300.300(a)(1)(ii), rather than the 

statutory phrase ‘‘consent for placement 

for receipt of special education and 

related services,’’ in section 

614(a)(1)(D)(i) of the Act to clarify that 

consent does not need to be sought 

every time a particular service is 

provided to the child. In addition, the 

distinction between consent for an 

initial evaluation and consent for initial 

services is more clearly conveyed in 

§ 300.300(a)(1)(ii) than in the statutory 

language, and is consistent with the 

Department’s longstanding position that 

‘‘placement’’ refers to the provision of 

special education services, rather than a 

specific place, such as a specific 

classroom or specific school. We, 

therefore, decline to change the 

regulation, as requested by the 

commenter. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify whether the reference to 

‘‘parent’’ in § 300.300(a)(2) means 

‘‘biological or adoptive parent’’ or 

anyone who meets the definition of 

parent in § 300.30. 

Discussion: Section 300.300(a)(2) 

applies to circumstances in which the 

child is a ward of the State and is not 

residing with the child’s parents, and 

requires the public agency to make 

reasonable efforts to obtain parental 

consent from the parent for an initial 

evaluation. The reference to ‘‘parent,’’ in 

this context, refers to anyone who meets 

the definition of parent in § 300.30, 

consistent with section 614(a)(1)(D)(iii) 

of the Act. 

Changes: None. 

Comment: One commenter requested 

clarification on the interplay between 

new § 300.300(a)(2) (proposed 

§ 300.300(a)(2)(ii)), regarding 

circumstances when the public agency 

is not required to obtain informed 

parental consent for an initial 

evaluation of a child who is a ward of 

the State, and the requirements in 

§ 300.519(c), which require that a 

surrogate parent be appointed for a 

child who is a ward of the State. 

Discussion: New § 300.300(a)(2) 

(proposed § 300.300(a)(2)(ii)), consistent 

with section 614(a)(1)(D)(iii)(II) of the 

Act, creates an exception to the parental 

consent requirements for initial 

evaluations for a child who is a ward of 

the State who is not residing with the 

child’s parent if the public agency has 

made reasonable efforts to obtain the 

parent’s consent, but is unable to 

discover the whereabouts of the parent, 

the rights of the parent of the child have 

been terminated under State law, or the 

rights of the parent to make educational 

decisions have been subrogated by a 

judge under State law and consent for 

the initial evaluation has been given by 

an individual appointed by the judge to 

represent the child. New § 300.300(a)(2) 

(proposed § 300.300(a)(2)(ii)) permits 

the public agency to proceed with the 

child’s initial evaluation without first 

obtaining the requisite parental consent 

only in the circumstances detailed in 

§ 300.300(a)(2). Therefore, when one or 

more of the circumstances in 

§ 300.300(a)(2) are met and a surrogate 

has not yet been appointed, the public 

agency need not postpone the child’s 

evaluation to await the appointment of 

a surrogate. This is appropriate because 

in situations involving requests for 

initial evaluations, in most cases a 

surrogate parent has not yet been 

appointed and delaying an initial 

evaluation until after a surrogate is 

appointed and has given consent may 

not be in the best interests of the child. 

In contrast, in most situations involving 

consent for reevaluation, a surrogate 

parent should already have been 

appointed under § 300.519 if no parent 

can be identified, the public agency has 

been unable to locate a parent, the child 

is a ward of the State or the child is an 

unaccompanied homeless youth. 

Therefore, we do not think it is 

appropriate to apply the provisions in 

§ 300.300(a)(2) to reevaluation 

situations. 

Nothing in this section is intended to 

relieve a public agency of its obligation 

to ensure that the rights of a child who 

is a ward of the State are protected 

through the appointment of a surrogate 

parent in accordance with the 

procedures in § 300.519(b) through (h). 

Once a surrogate parent is appointed in 

accordance with the procedures in 

§ 300.519(b) through (h), that person 

assumes the responsibilities of a parent 

under the Act, and the public agency 

must seek consent from that individual. 

Moreover, if a child has a foster 

parent who can act as a parent, as 

defined in § 300.30(a)(2), or a person 

such as a grandparent or step-parent 

who is legally responsible for the child’s 

welfare, and that person’s whereabouts 

are known or the person can be located 

after reasonable efforts by the public 

agency, parental consent would be 

required for the initial evaluation. 

We believe that the phrase ‘‘except as 

provided in paragraph (a)(2) of this 

section (regarding consent for wards of 

the State)’’ in proposed § 300.300(a)(1)(i) 

may incorrectly convey that a public 

agency is not required to make 

reasonable efforts to obtain informed 

consent from the parent of a child who 

is a ward of the State, or from a 

surrogate parent, foster parent, or other 

person meeting the definition of a 

parent in § 300.30(a). Therefore, we will 

remove the phrase. To clarify that the 

provisions in § 300.300(a)(2) apply only 

to initial evaluations, and not 

reevaluations, we will modify both 

§§ 300.300(a)(2) and (c)(1). 

Changes: We have removed the 

phrase ‘‘except as provided in paragraph 

(a)(2) of this section (regarding consent 

for wards of the State)’’ in 

§ 300.300(a)(1)(i), for clarity. We have 

also added introductory language to 


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§ 300.300(a)(2) to specify that it applies 

only to initial evaluations, and we have 

changed the cross-reference in 

§ 300.300(c)(1) to refer to 

§ 300.300(a)(1). 

Comment: One commenter 

recommended that the regulations 

specify the minimum steps that public 

agencies must take to obtain consent for 

initial evaluations from parents of 

children who are wards of the State. 

Another commenter recommended that 

the regulations define ‘‘reasonable 

efforts,’’ as used in new 

§ 300.300(a)(1)(iii) (proposed 

§ 300.300(a)(2)(i)). One commenter 

recommended requiring LEAs to 

maintain documentation of their efforts 

to obtain parental consent for initial 

evaluations, including attempts to 

obtain consent by telephone calls, visits 

to the parent’s home, and 

correspondence in the parent’s native 

language. Several commenters requested 

that the requirements in current 

§ 300.345(d) be included in new 

§ 300.300(a)(2)(i) (proposed 

§ 300.300(a)(2)(ii)(A)). Current 

§ 300.345(d) requires a public agency to 

document the specific steps it has taken 

to arrange a mutually convenient time 

and place for an IEP Team meeting (e.g., 

detailed records of telephone calls, any 

correspondence sent to the parents, 

visits made to the parent’s home or 

place of employment) and it is crossreferenced in current § 300.505(c)(2) to 

identify documentation of the 

reasonable measures that an LEA took to 

obtain consent for a reevaluation. 

Discussion: We believe it is important 

to emphasize that a public agency must 

make reasonable efforts to obtain 

informed consent from the parent for an 

initial evaluation to determine whether 

the child is a child with a disability. 

This includes the parent of a child who 

is a ward of the State. Therefore, we will 

add a new paragraph (a)(1)(iii) to 

§ 300.300 to make clear that a public 

agency must make reasonable efforts to 

obtain informed parental consent 

whenever a public agency seeks to 

conduct an initial evaluation of a child 

to determine whether the child is a 

child with a disability. This requirement 

applies to all children including 

children who are wards of the State. 

With the addition of this new 

paragraph, the requirement for public 

agencies to make reasonable efforts to 

obtain informed consent from the parent 

for an initial evaluation for children 

who are wards of the State in 

§ 300.300(a)(2)(i) is no longer necessary 

and will be removed. 

We also agree with the commenters 

that a public agency should document 

and make the same reasonable efforts to 

obtain consent for an initial evaluation 

from a parent, including a parent of a 

child who is a ward of the State, that are 

required when a public agency attempts 

to arrange a mutually convenient time 

and place for an IEP Team meeting (e.g., 

detailed records of telephone calls, any 

correspondence sent to the parents, 

visits made to the parent’s home or 

place of employment), and will add a 

new paragraph (d)(5) to make this clear. 

We recognize that the statute uses both 

‘‘reasonable measures’’ and ‘‘reasonable 

efforts’’ when referring to a public 

agency’s responsibility to obtain 

parental consent for an evaluation, 

initial services, and a reevaluation. We 

believe these two phrases, when used in 

this context, have the same meaning 

and, therefore, have used ‘‘reasonable 

efforts’’ throughout the regulations 

related to parental consent for 

consistency. 

Changes: We have added a new 

paragraph (a)(1)(iii) to § 300.300 to 

require a public agency to make 

reasonable efforts to obtain informed 

parental consent for an initial 

evaluation. We will remove 

§ 300.300(a)(2)(i) because it is redundant 

with the new paragraph. Section 

300.300(a)(2) has been reformatted 

consistent with the removal of 

paragraph (a)(2)(i). We also have added 

a new paragraph (d)(5) to § 300.300 to 

require a public agency to document its 

attempts to obtain parental consent 

using the procedures in § 300.322(d). 

Comment: A few commenters asked 

whether a public agency must obtain 

consent for an initial evaluation from 

the biological or adoptive parent of the 

child when there is another person who 

meets the definition of parent in 

§ 300.30. Another commenter 

recommended the regulations clarify 

whether a public agency must seek 

informed consent for an initial 

evaluation from a biological or adoptive 

parent when a surrogate parent has 

already been appointed. 

Discussion: Section 300.30(b)(1) 

provides that, when more than one 

party is qualified to act as a parent, the 

biological or adoptive parent, when 

attempting to act as the parent under the 

Act, must be presumed to be the parent, 

unless the biological or adoptive parent 

does not have legal authority to make 

educational decisions for the child. 

If a surrogate parent already has been 

appointed because the public agency, 

after reasonable efforts, could not locate 

a parent, the public agency would not 

have to again attempt to contact other 

individuals meeting the definition of 

parent in § 300.30 to seek consent. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify whether the qualifications of a 

judge-appointed surrogate parent in 

§ 300.519(c) would apply to new 

§ 300.300(a)(2)(iii) (proposed 

§ 300.300(a)(2)(ii)(C)), regarding consent 

for an initial evaluation for a child who 

is a ward of the State. 

Discussion: Section 

614(a)(1)(D)(iii)(II)(cc) of the Act, which 

is the basis for new § 300.300(a)(2)(iii) 

(proposed § 300.300(a)(2)(ii)(C)), 

provides that the public agency is not 

required to obtain informed consent 

from the parent for an initial evaluation 

of a child who is a ward of the State and 

is not living with the child’s parent if 

the rights of the parent to make 

educational decisions have been 

subrogated by a judge in accordance 

with State law and consent for an initial 

evaluation has been given by an 

individual appointed by the judge to 

represent the child. This is a special 

situation, limited only to children who 

are wards of the State not living with a 

parent and limited only to the situation 

of seeking consent for an initial 

evaluation. A person appointed under 

this provision is not a surrogate parent 

as that term is used in these regulations. 

The requirements of § 300.519(c) do not 

apply to persons authorized to provide 

consent for initial evaluations under 

this provision. 

It is noteworthy that the provision in 

new § 300.300(a)(2)(iii) (proposed 

§ 300.300(a)(2)(ii)(C)) is only a limited 

exception to the requirement to obtain 

informed parental consent for an initial 

evaluation. Most children will not have 

a surrogate parent already appointed at 

this stage of their involvement with 

services under the Act. However, if a 

child has a surrogate parent appointed 

under § 300.519(c), and the rights of that 

person to make educational decisions 

for the child have not been subrogated 

by a judge under State law, the public 

agency would have to seek informed 

parental consent from that person. 

Changes: None. 

Comment: One commenter 

recommended revising § 300.300(a)(3) to 

prohibit a public agency from pursuing 

an initial evaluation without parental 

consent. Another commenter 

recommended requiring a public agency 

to use the due process procedures to 

conduct an initial evaluation if the 

parent does not provide consent and the 

public agency believes that the child 

would not otherwise receive needed 

services. A few commenters stated that 

§ 300.300(a)(3) is inconsistent with 

statutory language and opposed 

language stating that the public agency 

may, but is not required to, pursue the 


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initial evaluation of a child whose 

parents have refused to consent or failed 

to respond to a request for consent. 

Discussion: Section 300.300(a)(3) is 

consistent with section 614(a)(1)(D)(ii) 

of the Act, which states that a public 

agency may pursue the initial 

evaluation of a child using the 

procedural safeguards if a parent does 

not provide consent or fails to respond 

to a request to provide consent for an 

initial evaluation. Consistent with the 

Department’s position that public 

agencies should use their consent 

override procedures only in rare 

circumstances, § 300.300(a)(3) clarifies 

that a public agency is not required to 

pursue an initial evaluation of a child 

suspected of having a disability if the 

parent does not provide consent for the 

initial evaluation. State and local 

educational agency authorities are in the 

best position to determine whether, in a 

particular case, an initial evaluation 

should be pursued. 

Changes: None. 

Comment: A few commenters 

recommended clarifying the parental 

consent requirements for an initial 

evaluation. Many commenters 

recommended that LEAs maintain 

documentation that the parent has been 

fully informed and understands the 

nature and scope of the evaluation. One 

commenter recommended that the 

regulations require that informed 

parental consent for an initial 

evaluation be documented in writing. 

Discussion: Section 300.300(a)(1)(i), 

consistent with section 614(a)(1)(D)(i)(I) 

of the Act, is clear that the public 

agency proposing to conduct an initial 

evaluation to determine if a child 

qualifies as a child with a disability 

under § 300.8 must obtain consent from 

the parent of the child before 

conducting the evaluation. Consent, as 

defined in § 300.9, means that the 

parent has been fully informed in his or 

her native language, or other mode of 

communication, and understands and 

agrees in writing to the initial 

evaluation. The methods by which a 

public agency seeks to obtain parental 

consent for an initial evaluation (beyond 

the requirement that the public agency 

use the parent’s native language or 

mode of communication) and how a 

public agency documents its efforts to 

obtain the parent’s written consent are 

appropriately left to the discretion of 

SEAs and LEAs. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

include language clarifying that a public 

agency is not in violation of the FAPE 

requirements if the public agency does 

not pursue an initial evaluation when 

the parent refuses to consent or fails to 

respond to a request for consent. One 

commenter recommended adding 

language to the regulations to clarify 

that if a parent refuses to consent to an 

initial evaluation, the child would not 

be considered to be a child with a 

disability. 

Discussion: While we agree that a 

public agency would not be in violation 

of the FAPE requirements for failing to 

pursue an initial evaluation through due 

process, we do not believe that a change 

to the regulations is necessary. The 

FAPE requirements in §§ 300.101 

through 300.112, consistent with section 

612(a) of the Act, apply only to a child 

with a disability, as defined in § 300.8 

and section 602(3) of the Act. A child 

would not be considered a child with a 

disability under the Act if the child has 

not been evaluated in accordance with 

§§ 300.301 through 300.311 and 

determined to have one of the 

disabilities in § 300.8(a), and because of 

that disability, needs special education 

and related services. 

Further, § 300.534(c)(1), consistent 

with section 615(k)(5)(C) of the Act, 

provides that a public agency would not 

be deemed to have knowledge that a 

child is a child with a disability, for 

disciplinary purposes, if a parent has 

not allowed the child to be evaluated or 

refuses services under the Act. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

clarify that the public agency is not in 

violation of the child find requirements 

if the public agency does not pursue an 

initial evaluation when the parent 

refuses to consent or fails to respond to 

a request for consent. 

Discussion: We agree that States and 

LEAs should not be considered to be in 

violation of their obligation to locate, 

identify, and evaluate children 

suspected of being children with 

disabilities under § 300.111 and section 

612(a)(3) of the Act if they decline to 

pursue an evaluation (or reevaluation) 

to which a parent has refused or failed 

to consent. We will add language to the 

regulations to make this clear. 

Changes: We have added language to 

§ 300.300(a)(3) and (c)(1) to clarify that 

a State or public agency does not violate 

the requirements of § 300.111 and 

§§ 300.301 through 300.311 if it declines 

to pursue an evaluation or reevaluation 

to which a parent has refused or failed 

to consent. 

Comment: A few commenters 

recommended that the regulations 

define ‘‘fails to respond’’ as used in 

§ 300.300(a)(3). 

Discussion: Section 300.300(a)(3), 

consistent with section 614(a)(1)(D)(ii)(I) 

of the Act, states that if a parent of a 

child enrolled in public school, or 

seeking to be enrolled in public school, 

does not provide consent for an initial 

evaluation, or the parent ‘‘fails to 

respond’’ to a request to provide 

consent, the public agency may, but is 

not required to, pursue the initial 

evaluation of the child by utilizing the 

procedural safeguards, if appropriate, 

except to the extent inconsistent with 

State law relating to such parental 

consent. The meaning of ‘‘fails to 

respond,’’ in this context, is generally 

understood to mean that, in spite of a 

public agency’s efforts to obtain consent 

for an initial evaluation, the parent has 

not indicated whether the parent 

consents or refuses consent to the 

evaluation. We believe the meaning is 

clear in the regulations and, therefore, 

decline to define the phrase in these 

regulations. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

include language to require a public 

agency to provide the following 

information (in the parent’s native 

language) to a parent who refuses 

consent or fails to respond to a request 

for consent for an initial evaluation: The 

reasons why the public agency believes 

the child may be eligible for special 

education; confirmation that the 

requested evaluation and any 

subsequent special education services 

will be provided at no cost and 

scheduled in cooperation with parents 

with transportation provided; The 

nature of the evaluations and 

credentials of evaluators; the types of 

special education services that the child 

could receive if eligible; and the risks of 

delaying an evaluation. 

Discussion: The prior written notice 

requirements in § 300.503, consistent 

with section 615(c)(1) of the Act, 

address many of the concerns raised by 

the commenter. Consistent with 

§ 300.503(b) and (c), prior notice must 

be given to the parents when a public 

agency proposes to evaluate a child and 

would explain why the public agency 

believes the child needs an evaluation 

to determine whether the child is a 

child with a disability under the Act; 

describe each evaluation procedure, 

assessment, record, or report the agency 

used as a basis for proposing that the 

child needs an evaluation; explain that 

the parents have protection under the 

Act’s procedural safeguards; provide 

sources for parents to contact to obtain 

assistance in understanding the 

provisions of the Act; and describe other 

factors that are relevant to the agency’s 

proposal to conduct the evaluation of 

the child. 


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In addition to the prior written notice, 

§ 300.504(a)(1), consistent with section 

615(d)(1)(A)(i) of the Act, requires that 

a copy of the procedural safeguards 

notice be given to parents upon an 

initial referral or parental request for an 

evaluation. Consistent with § 300.503(c) 

and § 300.504(d), the prior written 

notice and the procedural safeguards 

notice, respectively, must be written in 

language understandable to the general 

public and be provided in the native 

language of the parent or other mode of 

communication used by the parent, 

unless it is clearly not feasible to do so. 

As a matter of practice, public 

agencies provide parents with general 

information about the special education 

and related services that are available to 

eligible children with disabilities and 

inform the parent that the public 

agency’s evaluation is provided at no 

cost. We believe that this information, 

along with the information provided in 

the prior written notice and procedural 

safeguards notice, will help a parent 

determine whether there are any risks of 

delaying an evaluation. Therefore, we 

do not believe additional regulations are 

necessary. 

With regard to information regarding 

an evaluator’s credentials, we do not 

believe it is necessary to require public 

agencies to provide this information to 

parents because § 300.304(c)(1)(v) and 

section 614(b)(3)(A)(iv) of the Act 

require the public agency to ensure that 

the evaluation is conducted by trained 

and knowledgeable personnel. 

If transportation to an evaluation 

outside the school environment is 

necessary, the public agency would 

have to provide it, as a part of its 

obligation to ensure that all eligible 

children are located, identified, and 

evaluated. However, we do not believe 

that the parents need to be notified of 

this fact because, in most cases, children 

can be evaluated at school during the 

school day and there is no requirement 

that a parent be present during the 

evaluation. Thus, requiring that all 

parents be notified about transportation 

to evaluations would be unnecessarily 

burdensome. 

Changes: None. 

Parental Consent for Services 

(§ 300.300(b)) 

Comment: A few commenters 

requested that the Department address 

situations in which a child is receiving 

special education services and a parent 

wants to withdraw consent or refuse 

services because the parent believes the 

child no longer needs special education 

services. A few commenters stated that 

public agencies should not be allowed 

to use the procedural safeguards to 

continue to provide special education 

and related services to a child whose 

parents withdraw consent for the 

continued provision of special 

education and related services. 

Discussion: We are considering the 

question of whether parents who 

previously consented to the initiation of 

special education services should have 

the right to subsequently remove their 

child from special education services. 

We anticipate publishing a notice of 

proposed rulemaking in the near future 

seeking public comment on this issue. 

Changes: None. 

Comment: One commenter 

recommended changing the regulations 

to allow the public agency to provide 

services in anticipation of receiving 

parental consent when the public 

agency initiates a due process hearing to 

obtain parental consent for initial 

services. 

Discussion: To implement the change 

requested by the commenter would be 

inconsistent with the Act. Section 

614(a)(1)(D)(i)(II) of the Act requires a 

public agency to obtain informed 

parental consent before providing initial 

special education and related services to 

a child. In addition, a public agency 

may not initiate a due process hearing 

to provide special education and related 

services to a child when a parent refuses 

to consent to initial services, consistent 

with section 614(a)(1)(D)(ii)(II) of the 

Act. A child whose parent has refused 

consent for initial services would not be 

provided special education and related 

services and would continue to receive 

general education services. 

Changes: None. 

Comment: A few commenters 

requested that the regulations clarify the 

meaning of ‘‘initial provision of 

services’’ as used in § 300.300(b). 

Discussion: We believe § 300.300(b) is 

clear that the ‘‘initial provision of 

services’’ means the first time a parent 

is offered special education and related 

services after the child has been 

evaluated in accordance with the 

procedures in §§ 300.301 through 

300.311, and has been determined to be 

a child with a disability, as defined in 

§ 300.8. 

Changes: None. 

Comment: One commenter requested 

that the regulations permit mediation 

when a parent of a child refuses to 

consent to the provision of special 

education and related services. A few 

commenters recommended revising the 

regulations to require a public agency to 

use the due process procedures, or other 

alternative dispute resolution 

procedures, if a parent refuses to 

consent to initial services. 

Discussion: Section 300.300(b)(2), 

consistent with section 

614(a)(1)(D)(ii)(II) of the Act, is clear 

that if a parent fails to respond or 

refuses to consent to initial services, the 

public agency may not use the 

mediation procedures in § 300.506 or 

the due process procedures in 

§§ 300.507 through 300.516 in order to 

obtain agreement or a ruling that the 

services may be provided to a child. 

Changes: None. 

Comment: One commenter stated that 

additional documentation is necessary if 

a parent does not provide consent for 

initial services and suggested adding 

language to the regulations to require 

public agencies to document the steps 

they have taken to obtain parental 

consent for initial services and to 

maintain them in the child’s permanent 

file. Another commenter recommended 

requiring that the parent’s refusal to 

consent for initial services occur during 

a properly convened IEP Team meeting. 

The commenter also suggested requiring 

that the documentation of a parent’s 

refusal to provide consent include 

evidence that all options waived by the 

parent have been explained, that the 

parent has refused services, and the 

reasons for the parent’s refusal. 

Discussion: We believe that a public 

agency must make reasonable efforts to 

obtain informed consent from the parent 

for the initial provision of special 

education and related services to the 

child and will make this clear in 

§ 300.300(b). We noted in our 

discussion regarding the reasonable 

efforts that a public agency must make 

to obtain parental consent for an initial 

evaluation to determine whether the 

child is a child with a disability, that we 

added a new paragraph (d)(5) to 

§ 300.300 that provides that to meet the 

reasonable efforts requirement, a public 

agency must document its attempts to 

obtain consent using the procedures in 

§ 300.322(d). We believe a public agency 

should make these same reasonable 

efforts to obtain parental consent for 

initial services, and will include this in 

new § 300.300(d)(5). 

We do not believe it is necessary or 

appropriate to require a public agency to 

maintain additional documentation, 

beyond that required in new 

§ 300.300(d)(5), of a parent’s refusal to 

provide consent for initial services or to 

prescribe where this documentation 

must be obtained or maintained. Public 

agencies understand the importance of 

properly documenting a parent’s refusal 

to consent to the initial provision of 

special education and related services 

and are in the best position to determine 

any additional documentation that is 


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necessary and where to obtain and 

maintain such documentation. 

Changes: We have added a new 

paragraph (b)(2) to § 300.300 to clarify 

that the public agency must make 

reasonable efforts to obtain informed 

consent from the parent for the initial 

provision of special education and 

related services to the child. Subsequent 

paragraphs have been renumbered 

accordingly. We also have included a 

reference to new § 300.300(b)(2) in new 

§ 300.300(d)(5) that requires a public 

agency to document its attempts to 

obtain consent using the procedures in 

§ 300.322(d). 

Comment: One commenter 

recommended adding language to 

clarify that if a parent does not consent 

to initial services, the child would be 

considered a part of the general 

education enrollment and subject to the 

same disciplinary provisions as 

nondisabled children. 

Discussion: The language requested 

by the commenter is not necessary 

because section 615(k)(5)(C) of the Act 

already provides for situations in which 

a parent refuses consent for initial 

services and the child subsequently 

engages in behavior that violates a code 

of student conduct. Section 

300.534(c)(1), consistent with section 

615(k)(5)(C) of the Act, provides that a 

public agency would not be deemed to 

have knowledge that a child is a child 

with a disability if the parent of the 

child has not allowed an evaluation of 

the child pursuant to §§ 300.301 

through 300.311, or has refused services 

under this part. Therefore, such a child 

would not be able to assert any of the 

protections provided to children with 

disabilities under the Act, and would be 

subject to the same disciplinary 

procedures as any other child. 

Changes: None. 

Comment: A few commenters 

recommended requiring a public agency 

to refer parents who do not provide 

consent for initial services to the State’s 

PTI center so that the parents can be 

advised of the benefits of special 

education and their rights and 

responsibilities under the Act. 

Discussion: We do not believe it 

would be appropriate to require a public 

agency to refer parents to a particular 

agency or program. Such matters are 

best left to States and LEAs to decide 

and should not be included in the 

regulations. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

require a public agency to report a 

parent for suspected child abuse or 

neglect to the appropriate agency if the 

public agency believes that the parent’s 

failure or refusal to consent to initial 

services meets the definition of child 

abuse or neglect under the State’s 

mandatory reporting law. 

Discussion: It is not necessary to 

include the requirement recommended 

by the commenter in these regulations, 

as the issue would already be addressed 

by State law, if under State law a 

parent’s failure to consent to initial 

services under the Act was considered 

child abuse or neglect. 

Changes: None. 

Comment: Numerous commenters 

expressed concern about new 

§ 300.300(b)(4)(ii) (proposed 

§ 300.300(b)(3)(ii)), which provides that 

if a parent fails to consent for initial 

services or refuses to respond to a 

request for consent, the public agency is 

not required to convene an IEP Team 

meeting or develop an IEP for the child. 

A few commenters stated that this 

should be permitted only when a parent 

refuses services, but not when a parent 

fails to respond to a request for consent 

for initial services. A few commenters 

stated that the regulations should be 

revised to clarify that this applies only 

to subsequent IEP Team meetings, not 

the initial IEP Team meeting. One 

commenter recommended revising the 

regulations to require an IEP Team 

meeting to be held and an IEP 

developed to provide a basis for 

informed consent. 

Discussion: New 300.300(b)(4)(ii) 

(proposed § 300.300(b)(3)(ii)) follows 

the specific language in section 

614(a)(1)(D)(ii)(III)(bb) of the Act and 

reflects the new provision in the Act 

that relieves public agencies of any 

potential liability for failure to convene 

an IEP Team meeting or develop an IEP 

for a child whose parents have refused 

consent or failed to respond to a request 

for consent to the initial provision of 

special education and related services. It 

does not, however, prevent a public 

agency from convening an IEP Team 

meeting and developing an IEP for a 

child as a means of informing the parent 

about the services that would be 

provided with the parent’s consent. 

Changes: None. 

Comment: A few commenters 

questioned how a parent could be 

adequately informed of the services the 

parent is refusing if the public agency is 

not required to develop an IEP when the 

parent refuses to consent to the initial 

provision of special education and 

related services. 

Discussion: We understand the 

commenters’ concern that a parent of a 

child with a disability who refuses to 

consent to the provision of special 

education and related services may not 

fully understand the extent of the 

special education and related services 

their child would receive without the 

development of an IEP for their child. 

However, we do not view the consent 

provisions of the Act as creating the 

right of parents to consent to each 

specific special education and related 

service that their child receives. Instead, 

we believe that parents have the right to 

consent to the initial provision of 

special education and related services. 

‘‘Fully informed,’’ in this context, 

means that a parent has been given an 

explanation of what special education 

and related services are and the types of 

services that might be found to be 

needed for their child, rather than the 

exact program of services that would be 

included in an IEP. 

Changes: None. 

Comment: One commenter stated that 

the regulations should include sanctions 

for parents who repeatedly fail to 

respond to requests for consent from 

public agencies, such as paying the 

costs incurred by agencies attempting to 

obtain consent. 

Discussion: The Act does not 

authorize sanctions against parents who 

fail to respond to requests for consent. 

Changes: None. 

Parental Consent for Reevaluations 

(§ 300.300(c)) 

Comment: Several commenters 

recommended allowing public agencies 

to use the due process procedures to 

override a parent’s refusal to consent to 

a reevaluation. 

Discussion: Override of parental 

refusal to consent to a reevaluation is 

already addressed in the regulations. 

Section 300.300(c) states that each 

public agency must obtain informed 

parental consent in accordance with 

§ 300.300(a)(1) prior to conducting any 

reevaluation of a child with a disability. 

Section 300.300(a)(3) allows a public 

agency to override parental refusal to 

consent to an initial evaluation by 

utilizing the mediation procedures 

under § 300.506 or the due process 

procedures under §§ 300.507 through 

300.516. The cross-reference in 

§ 300.300(c)(1)(i) to the provision in 

§ 300.300(a)(1) provides the basis for 

allowing a public agency to override the 

parent’s refusal of consent to a 

reevaluation. However, we believe it is 

important to state this more directly and 

will, therefore, add language to 

§ 300.300(c)(1) to clarify that if a parent 

refuses to consent to a reevaluation, the 

public agency may, but is not required 

to, pursue the reevaluation by using the 

procedural safeguards in subpart E of 

this part. 

Changes: We have restructured 

§ 300.300(c)(1) and added a new 


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§ 300.300(c)(1)(ii) to clarify that a public 

agency may, but is not required to, 

pursue a reevaluation using the 

procedural safeguards. 

Comment: One commenter requested 

that the regulations clarify a public 

agency’s responsibilities for a 

reevaluation if the agency has taken 

reasonable measures to obtain consent 

and the parent has failed to respond. 

Discussion: We do not believe that 

further clarification in the regulations is 

necessary. Section 300.300(c)(2), 

consistent with section 614(c)(3) of the 

Act, is clear that a public agency may 

conduct a reevaluation of a child with 

a disability, if the public agency can 

demonstrate that it has made reasonable 

efforts to obtain such consent and the 

child’s parent has failed to respond to 

a request for consent. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

require a public agency to obtain 

parental consent for any tests needed for 

a reevaluation that were not used for the 

initial evaluation or previous 

reevaluations. 

Discussion: We do not agree that a 

change should be made. Section 

614(c)(3) of the Act, which is 

incorporated in § 300.300(c), already 

requires a public agency to obtain 

parental consent before conducting any 

tests needed for a reevaluation, 

regardless of whether the tests differ 

from tests used in previous evaluations 

of the child. 

Changes: None. 

Comment: Many commenters 

recommended retaining current 

§ 300.505(c)(2), which requires a public 

agency to document the specific 

reasonable measures it has taken to 

obtain parental consent for a 

reevaluation, including detailed records 

of telephone calls made or attempted 

and the results of those calls; copies of 

any correspondence sent to the parents 

and any responses received; and 

detailed records of visits made to the 

parents’ home or place of employment 

and the results of those visits. One 

commenter suggested that if the 

requirements in current § 300.505(c)(2) 

were not retained, the regulations 

should define reasonable measures as at 

least three good-faith attempts to contact 

a parent. Many commenters stated that 

current § 300.505(c)(2) must be retained 

because it is protected by section 607(b) 

of the Act, which provides that the 

Secretary may not publish final 

regulations that would procedurally or 

substantively lessen the protections 

provided to children with disabilities in 

the regulations that were in effect on 

July 20, 1983. 

Discussion: We agree that the 

requirements in current § 300.505(c)(2) 

should be retained. We noted in our 

discussions regarding the reasonable 

efforts that a public agency must make 

to obtain parental consent for an initial 

evaluation and the initial provision of 

services, that we added a new paragraph 

(d)(5) to § 300.300 that provides that to 

meet the reasonable efforts requirement, 

a public agency must document its 

attempts to obtain consent using the 

procedures in § 300.322(d). These are 

the same procedures in current 

§ 300.505(c)(2). Therefore, we will 

include a reference to § 300.300(c)(2)(i) 

in new § 300.300(d)(5). 

Changes: We included a reference to 

§ 300.300(c)(2)(i) in new § 300.300(d)(5). 

Other Consent Requirements 

(§ 300.300(d)) 

Comment: Many commenters 

recommended that the regulations 

include language clarifying that a public 

agency is not authorized to override the 

lack of parental consent for an initial 

evaluation for children who are home 

schooled or placed in a private school 

by the parents at their own expense. 

One commenter recommended 

removing the phrase ‘‘public school or 

seeking to enroll in public school’’ in 

§ 300.300(a)(3) to permit a public agency 

to override lack of parental consent for 

children who are home schooled or 

placed in a private school by parents at 

their own expense. 

Discussion: We agree with the 

commenters who recommended that, for 

children who are home schooled or 

placed in a private school by their 

parents at their own expense, consent 

override should not be permitted. We 

will add a new paragraph (4) to 

§ 300.300(d) to make this clear. 

There are compelling policy reasons 

why the Act’s consent override 

procedures should be limited to 

children who are enrolled, or who are 

seeking to enroll, in public school. 

Because the school district has an 

ongoing obligation to educate a public 

school child it suspects has a disability, 

it is reasonable for a school district to 

provide the parents with as much 

information as possible about their 

child’s educational needs in order to 

encourage them to agree to the provision 

of special education services to meet 

those needs, even though the parent is 

free, ultimately, to reject those services. 

The school district is accountable for 

the educational achievement of all of its 

children, regardless of whether parents 

refuse the provision of educationally 

appropriate services. In addition, 

children who do not receive appropriate 

educational services may develop 

behavioral problems that have a 

negative impact on the learning 

environment for other children. 

By contrast, once parents opt out of 

the public school system, States and 

school districts do not have the same 

interest in requiring parents to agree to 

the evaluation of their children. In such 

cases, it would be overly intrusive for 

the school district to insist on an 

evaluation over a parent’s objection. The 

Act gives school districts no regulatory 

authority over private schools. 

Moreover, the Act does not require 

school districts to provide FAPE to 

children who are home schooled or 

enrolled in private schools by their 

parents. 

Public agencies do have an obligation 

to actively seek parental consent to 

evaluate children attending private 

schools (including children who are 

home schooled, if a home school is 

considered a private school under State 

law) who are suspected of being 

children with disabilities under the Act, 

in order to properly identify the number 

of private school children with 

disabilities and consider those children 

as eligible for equitable services under 

§§ 300.132 through 300.144. However, 

this obligation does not extend to 

overriding refusal of parental consent to 

evaluate parentally-placed private 

school children. 

Section 300.300(a)(3) provides that a 

public agency may override parental 

consent for an initial evaluation only for 

children who are enrolled in public 

school or seeking to be enrolled in 

public school, so we are not making the 

suggested change in § 300.300(a)(3). 

Changes: We have added a new 

paragraph (4) to § 300.300(d) to clarify 

that consent override is not permitted 

for children who are home schooled or 

placed in private schools by their 

parents. 

Evaluations and Reevaluations 

Initial Evaluations (§ 300.301) 

Request for Initial Evaluation 

(§ 300.301(b)) 

Comment: Several commenters 

recommended that teachers and related 

services providers be included as 

individuals who can refer a child for an 

initial evaluation. A few commenters 

requested clarification as to whether 

States can authorize other individuals 

who are acting on behalf of a public 

agency (e.g., family court, probation 

officers, staff from other public 

agencies) to refer a child for an initial 

evaluation, and whether individuals 

responsible for protecting the welfare of 

a child who are not acting on behalf of 

an SEA or LEA, such as physicians and 


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social workers, can refer a child for an 

initial evaluation. 

Discussion: Section 614 (a)(1)(A) of 

the Act provides that an SEA, other 

State agency, or LEA shall conduct a full 

and individual evaluation of a child 

before the provision of special 

education and related services. In 

§ 300.301(a), we interpret this language 

as requiring public agencies, as that 

term is defined in § 300.33, to conduct 

evaluations, because those are the only 

agencies in the State responsible for 

providing FAPE to eligible children. 

The same language is used in section 

614(a)(1)(B) of the Act to describe the 

agencies that may initiate a request for 

an initial evaluation to determine if a 

child is a child with a disability. We 

similarly interpret this language to be 

referring to the entities that are public 

agencies under § 300.33. Therefore, 

§ 300.301(b) states that either a parent or 

a public agency may initiate a request 

for an initial evaluation. The language 

does not include employees of SEAs or 

LEAs (e.g., teachers and related services 

providers), unless they are acting for the 

SEA or LEA, or of other State agencies 

(e.g., probation officers, social workers, 

or staff from State agencies that are not 

public agencies as defined in § 300.33). 

The requirements in § 300.301(b) 

pertain to the initiation of an evaluation 

under §§ 300.301 through 300.305 and 

should not be confused with the State’s 

child find responsibilities in § 300.111 

and section 612(a)(3) of the Act. The 

child find requirements permit referrals 

from any source that suspects a child 

may be eligible for special education 

and related services. Child find 

activities typically involve some sort of 

screening process to determine whether 

the child should be referred for a full 

evaluation to determine eligibility for 

special education and related services. 

Therefore, persons such as employees of 

the SEA, LEA, or other public agencies 

responsible for the education of the 

child may identify children who might 

need to be referred for an evaluation. 

However, it is the parent of a child and 

the public agency that have the 

responsibility to initiate the evaluation 

procedures in §§ 300.301 through 

300.311 and section 614 of the Act. 

Changes: None. 

Comment: Several commenters stated 

that the regulations should clarify that 

the 60-day timeframe in § 300.301(c) to 

complete an evaluation does not begin 

if a parent requests an initial evaluation, 

the LEA denies the request, and the 

parent challenges the LEA’s decision in 

a due process hearing. 

Discussion: We believe the regulations 

already address the commenters’

concern. Section 300.301(b) provides 

that a parent may initiate a request for 

an initial evaluation to determine if the 

child is a child with a disability. If the 

public agency agrees to conduct the 

evaluation, § 300.304(a) requires the 

public agency to provide notice to the 

parents, in accordance with § 300.503, 

that describes any evaluation 

procedures that the agency proposes to 

conduct. The public agency must obtain 

informed consent for the evaluation, 

consistent with §§ 300.9 and 300.300, 

prior to conducting the evaluation. The 

60-day timeframe begins when the 

public agency receives the consent for 

evaluation. 

If, however, the public agency does 

not suspect that the child has a 

disability and denies the request for an 

initial evaluation, the public agency 

must provide written notice to the 

parents, consistent with § 300.503(b) 

and section 615(c)(1) of the Act, which 

explains, among other things, why the 

public agency refuses to conduct an 

initial evaluation and the information 

that was used as the basis to make that 

decision. The parent may challenge 

such a refusal by requesting a due 

process hearing, but the timeline for 

conducting the evaluation does not 

begin prior to parental consent for 

evaluation. A parent would not be able 

to give consent under this part without 

knowing what specific evaluation 

procedures the public agency is 

proposing to conduct. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

clarify whether a public agency has the 

right to deny a parent’s request for an 

initial evaluation. 

Discussion: The regulations are 

sufficiently clear on this point. Section 

300.503(a), consistent with section 

615(b)(3) of the Act, provides that a 

public agency may refuse to initiate or 

change the identification, evaluation, or 

educational placement of the child, or 

the provision of FAPE to the child, if the 

public agency provides written notice. 

This includes situations in which a 

public agency wishes to deny a parent’s 

request for an initial evaluation. The 

written notice must meet the 

requirements in § 300.503(b). Thus, for 

situations in which a public agency 

wishes to deny a parent’s request for an 

initial evaluation, the written notice 

would provide, among other things, an 

explanation of why the public agency 

refuses to conduct an initial evaluation 

and the information that was used to 

make that decision. A parent may 

challenge the public agency’s refusal to 

conduct an initial evaluation by 

requesting a due process hearing. 

Changes: None. 

Procedures for Initial Evaluation 

(§ 300.301(c)) 

Comment: Numerous commenters 

requested that the regulations clarify 

when the 60-day timeframe for a public 

agency to conduct an initial evaluation 

begins. One commenter requested that 

the 60-day timeframe include 

completing both the evaluation and 

eligibility determination. 

Several commenters recommended 

reducing the timeframe for evaluations 

from 60 days to 30 days. Some 

commenters recommended that the 60- 

day timeframe be 60 school days. A few 

commenters stated that the timeframe 

for evaluation should be longer if 

additional time is required for specific 

assessments, such as behavioral 

assessments or other assessments based 

on scientific practices. 

Discussion: It would be inconsistent 

with the Act to reduce the timeframe 

from 60 days to 30 days, require the 60- 

day timeframe to be 60 school days, 

extend the timeframe for particular 

types of assessments, or require that the 

60-day timeframe cover both the 

evaluation and determination of 

eligibility. Section 614(a)(1)(C)(i)(I) of 

the Act requires an initial evaluation to 

be conducted within 60 days of 

receiving parental consent for the 

evaluation or, if the State establishes a 

timeframe within which the evaluation 

must be conducted, within that 

timeframe. The regulations in 

§ 300.301(c) reflect this requirement. 

Changes: None. 

Comment: A few commenters asked 

whether a State could establish a 

timeframe of more than 60 days to 

complete an initial evaluation. A 

significant number of commenters 

recommended that if a State establishes 

its own timeframe within which an 

evaluation must be conducted, that the 

timeframe be less, but not more, than 60 

days. Several commenters 

recommended that if a State has its own 

timeframe for evaluation, the timeframe 

should be reasonable and ‘‘reasonable’’

should be defined. Some commenters 

recommended that if a State’s timeframe 

is greater than 60 days, the Department 

should provide guidance to the State 

and to parents in that State. One 

commenter recommended that if a State 

establishes its own timeframe, the State 

must offer parents an adequate 

opportunity to assert their procedural 

rights. 

Discussion: Section 300.301(c), 

consistent with section 614(a)(1)(C)(i)(I) 

of the Act, requires an initial evaluation 

to be completed within 60 days of 

receiving parental consent for 

evaluation or, if the State establishes a 


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timeframe within which the evaluation 

must be conducted, within such 

timeframe. The Department declines to 

require that a State-established 

timeframe be less than 60 days or to 

place additional requirements on States 

with timeframes of greater than 60 days 

because the Act gives States the 

authority to establish different 

timeframes and imposes no restrictions 

on State exercise of that authority. We 

believe this is evidence of an intent to 

permit States to make reasoned 

determinations of the appropriate 

period of time in which evaluations 

should be conducted based on 

particular State circumstances. 

Changes: None. 

Comment: Numerous commenters 

requested clarification regarding the 

timeframe to complete an initial 

evaluation and convene the IEP Team. 

A few commenters stated that the 

timeframe from referral to IEP 

development could be as long as 120 

calendar days (30 days from referral to 

consent; 60 days from consent to the 

eligibility determination; and 30 days 

from the eligibility determination to 

development of the IEP), and 

recommended that this timeframe be 60 

days. 

One commenter recommended that 

public agencies provide consent forms 

to parents promptly after a referral for 

evaluation has been made so that the 

child’s evaluation is not delayed. A few 

commenters asked how promptly an 

LEA must seek parental consent 

following a referral for evaluation, and 

whether an LEA can wait until 

September to obtain consent if a referral 

is made in June or July. 

Discussion: We cannot change the 

timeframe for an initial evaluation 

specified in section 614(a)(1)(C) of the 

Act. Section 614(a)(1)(C) of the Act 

requires that an initial evaluation be 

conducted within 60 days of receiving 

parental consent for the evaluation, or 

within the timeframe established by the 

State. Section 300.323(c) is a 

longstanding requirement that a meeting 

be held to develop the child’s IEP 

within 30 days of determining that a 

child needs special education and 

related services. We decline, however, 

to specify the timeframe from referral 

for evaluation to parental consent, or the 

timeframe from the completion of an 

evaluation to the determination of 

eligibility, as we are not in a position to 

determine the maximum number of 

days that should apply to these periods 

in all circumstances. 

However, it has been the 

Department’s longstanding policy that 

evaluations be conducted within a 

reasonable period of time following the 

agency’s receipt of parental consent, if 

the public agency agrees that an initial 

evaluation is needed to determine 

whether a child is a child with a 

disability. Likewise, the Department 

believes that eligibility decisions should 

be made within a reasonable period of 

time following the completion of an 

evaluation. 

The child find requirements in 

§ 300.111 and section 612(a)(3)(A) of the 

Act require that all children with 

disabilities in the State who are in need 

of special education and related services 

be identified, located, and evaluated. 

Therefore, it would generally not be 

acceptable for an LEA to wait several 

months to conduct an evaluation or to 

seek parental consent for an initial 

evaluation if the public agency suspects 

the child to be a child with a disability. 

If it is determined through the 

monitoring efforts of the Department or 

a State that there is a pattern or practice 

within a particular State or LEA of not 

conducting evaluations and making 

eligibility determinations in a timely 

manner, this could raise questions as to 

whether the State or LEA is in 

compliance with the Act. 

With regard to the total timeframe 

from referral to IEP development, this 

will vary based on a number of factors, 

including the timing of parental consent 

following referral for an evaluation and 

whether a State establishes its own 

timeframe to conduct an initial 

evaluation. Given such factors, we do 

not believe it is feasible to further 

regulate on this timeframe. 

Changes: None. 

Comment: Numerous commenters 

recommended that an initial evaluation 

be conducted in an expedited timeframe 

for children who are homeless or in the 

custody of a child welfare agency. The 

commenters stated that public agencies 

should take into consideration the date 

on which the child was first referred for 

evaluation by any public agency. 

Discussion: Congress recognized the 

unique problems homeless children face 

and included several new provisions in 

the Act to ensure that homeless children 

and youth with disabilities have access 

to the same services and supports as all 

other children with disabilities. The 

Department recognizes that the high 

mobility rates of some homeless 

children with disabilities (as well as 

other children, including some children 

who are in the custody of a State child 

welfare agency) pose unique challenges 

when a child is referred for an 

evaluation, but moves to another district 

or State before an evaluation can be 

initiated or completed. In such cases, 

the Department believes it is important 

that the evaluations be completed as 

expeditiously as possible, taking into 

consideration the date on which the 

child was first referred for evaluation in 

any LEA. However, the high mobility 

rate of these children and their potential 

range of evaluation needs means that 

any specific expedited timeframe could 

be both too long to ensure that all 

children are evaluated before they 

move, and too short to be reasonable in 

all circumstances. There is nothing, 

however, in Part B of the Act or these 

regulations that would prohibit a State 

from establishing its own policies to 

address the needs of homeless children, 

including adopting a timeframe for 

initial evaluations that is less than 60 

days. 

Changes: None. 

Exception (§ 300.301(d)) 

Comment: Numerous commenters 

requested clarification regarding 

whether the 60-day timeframe for initial 

evaluations could be extended by 

mutual agreement between the parent 

and the public agency. A few 

commenters asked whether the 60-day 

timeframe could be extended for reasons 

other than the exceptions listed in 

§ 300.301(d), and whether a State could 

include other exceptions in its State 

policies and procedures. 

Discussion: Congress was clear in 

limiting the exceptions to the 60-day 

timeframe to the situations in section 

614(a)(1)(C)(ii) of the Act. Therefore, we 

do not believe it is appropriate to 

include in the regulations other 

exceptions, such as permitting a parent 

and a public agency to mutually agree 

to extend the 60-day timeframe or to 

include exceptions to the timeframe, 

that would be in addition to those in the 

Act and listed in § 300.301(d). However, 

the Act gives States considerable 

discretion with a State-adopted 

timeframe. A State could adopt a 

timeframe of 60 days or some other 

number of days, with additional 

exceptions. 

Changes: None. 

Comment: A number of comments 

were received requesting clarification 

on the provision in § 300.301(d)(1), 

which allows an extension of the 60-day 

or State-established timeframe to 

complete an initial evaluation if the 

parent of a child repeatedly fails or 

refuses to produce the child for an 

evaluation. A few commenters asked 

whether the exception applies when a 

child is not available because of 

absences on the days the evaluation is 

scheduled. Several commenters stated 

that ‘‘produce’’ does not necessarily 

mean the child’s physical presence in 

school. Other commenters requested 

that the regulations define ‘‘repeatedly 


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fails’’ and ‘‘refuses to produce’’ so that 

LEAs do not have to engage in 

exhaustive efforts to obtain access to the 

child to complete the evaluation. 

One commenter recommended that 

the regulations clarify that an LEA must 

document that it has made several 

attempts to address the parent’s 

concerns and clarify any confusion the 

parent may have about the evaluation, 

as well as address issues that make it 

difficult for the parent to bring the child 

to a scheduled evaluation, such as lack 

of transportation and childcare. 

Discussion: Section 300.301(d) 

follows the specific language in section 

614(a)(1)(C)(ii)(II) of the Act. We do not 

believe it is appropriate or reasonable to 

define ‘‘repeatedly fails’’ or ‘‘refuses to 

produce’’ because the meaning of these 

phrases will vary depending on the 

specific circumstances in each case. For 

example, situations in which a child is 

absent on the days the evaluation is 

scheduled because the child is ill would 

be treated differently than if a parent 

repeatedly fails to keep scheduled 

appointments. Similarly, situations in 

which a parent fails to keep scheduled 

appointments when a public agency 

repeatedly schedules the evaluation to 

accommodate the parent’s schedule 

would be treated differently than 

situations in which a public agency 

makes no attempt to accommodate a 

parent’s schedule. 

We do not believe it is necessary to 

clarify that an LEA must document that 

it has made several attempts to address 

a parent’s concerns and issues about the 

evaluation. As a matter of practice, 

LEAs attempt to address parent’s 

concerns and issues prior to scheduling 

an evaluation because repeated 

cancellations of appointments or 

repeated failures to produce the child 

for an evaluation are costly in terms of 

staff time and effort. 

Changes: None. 

Comment: Numerous commenters 

recommended that there be an 

exception to the 60-day timeframe when 

a child transfers to a new school before 

an evaluation is completed. 

Discussion: The exception referred to 

by the commenters is already in the 

regulations. Section 300.301(d)(2), 

consistent with section 614(a)(1)(C)(ii)(I) 

of the Act, states that the 60-day or 

State-established timeframe does not 

apply when a child transfers to a new 

school before an evaluation is 

completed, if the new public agency is 

making sufficient progress to ensure 

prompt completion of the evaluation, 

and the parent and new public agency 

agree to a specific time when the 

evaluation will be completed. While the 

exception to the 60-day timeframe, as 

stated in section 614(a)(1)(C)(ii)(I) of the 

Act and paragraph (d)(2) of this section, 

only applies when a child transfers to a 

school located in another public agency, 

we do not believe the language in 

paragraph (d)(2), as proposed in the 

NPRM, is necessarily clear on this 

matter. We, therefore, have added 

language in paragraph (d)(2) to provide 

additional clarity. We believe it is 

important that it is understood that the 

60-day or State-established timeframe 

does not apply when a child transfers 

from one school to another school in the 

same public agency. When a child 

transfers from one school to another 

school in the same public agency, we 

expect that an initial evaluation will be 

conducted within 60 days of receiving 

parental consent for the evaluation, or 

within the State-established timeframe. 

Changes: We have added language to 

§ 300.301(d)(2) to clarify that the 

exception to the 60-day or Stateestablished timeframe only applies 

when a child transfers to a new school 

located in another public agency. 

Comment: Several comments were 

received on the provision in new 

§ 300.301(e) (proposed 

§ 300.301(d)(2)(ii)) that allows an 

exception to the 60-day or Stateestablished timeframe, only if the new 

public agency is making sufficient 

progress to ensure a prompt completion 

of the evaluation and the parent and 

new public agency agree to a specific 

time when the evaluation will be 

completed. One commenter stated that 

schools would be unable to meet the 60- 

day timeframe for children who transfer 

from another public agency if the new 

public agency has not been notified of 

the evaluation timeframe. Another 

commenter recommended that 

exceptions to the 60-day timeframe 

should not be permitted because the 

term ‘‘sufficient progress’’ is not 

defined. A few commenters requested 

that the regulations define ‘‘sufficient 

progress.’’

One commenter stated that there 

might be legitimate reasons for not 

completing an evaluation within the 60- 

day timeframe, such as differences in 

the assessment instruments used in the 

previous and new public agency, and 

requested that the regulations provide 

guidance on how a public agency 

should determine if appropriate 

progress is being made. 

One commenter recommended that if 

there is no date certain when an 

evaluation must be completed when a 

child transfers public agencies, the new 

public agency should conduct an 

evaluation within 60 days of the 

enrollment date of the child; make 

reasonable efforts to obtain evaluation 

information from the previous public 

agency; and consider any available 

evaluation information from the 

previous public agency. 

One commenter recommended 

requiring the new public agency to 

contact the previous public agency 

within five days to request a report of 

any actions taken to transfer the child’s 

records, copies of completed 

evaluations, a copy of the child’s file, 

and an estimate as to when the 

information will be sent. The 

commenter stated that public agencies 

should be required to keep records of 

such attempts to inform parents of all 

actions through written communication. 

The commenter stated that if the 

information is not received within 15 

days, the new public agency should be 

required to begin a new evaluation and 

complete it within the 60-day or Stateestablished timeframe. 

Discussion: The exceptions to the 60- 

day or State-established timeframe must 

be permitted because they are statutory. 

Section 614(a)(1)(C)(ii)(I) of the Act, 

which is incorporated in 

§ 300.300(d)(2), provides that the 60-day 

or State-established timeframe does not 

apply if a child enrolls in a school 

served by the public agency after the 

relevant timeframe has begun, and prior 

to a determination by the child’s 

previous public agency as to whether 

the child is a child with a disability. 

The exception applies only if the 

subsequent public agency is making 

sufficient progress to ensure prompt 

completion of the evaluation, and the 

parent and subsequent public agency 

agree to a specific time when the 

evaluation will be completed. 

We do not believe it is necessary to 

define the phrase ‘‘sufficient progress’’

because the meaning will vary 

depending on the specific 

circumstances in each case. As one 

commenter noted, there may be 

legitimate reasons for not completing 

the evaluation within the 60-day 

timeframe, such as differences in 

assessment instruments used in the 

previous and new public agencies, and 

the length of time between a child 

leaving one school and enrolling in the 

next school. Therefore, we believe that 

whether a new public agency is making 

sufficient progress to ensure prompt 

completion of an evaluation is best left 

to the discretion of State and local 

officials and parents to determine. 

It would be over-regulating to specify 

the number of days within which a new 

public agency must request a child’s 

records from the previous public agency 

or to require the new public agency to 

document its attempts to obtain the 

records and keep parents informed of all 


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actions through written communication. 

We note, however, that § 300.304(c)(5), 

consistent with section 614(b)(3)(D) of 

the Act, requires each public agency to 

ensure that the evaluations of children 

with disabilities who transfer from one 

school district to another school district 

in the same school year are coordinated 

with the children’s prior and 

subsequent schools, as necessary, and as 

expeditiously as possible, to ensure 

prompt completion of full evaluations. 

Additionally, new § 300.323(g) 

(proposed § 300.323(e)(2)), consistent 

with section 614(d)(2)(C)(ii) of the Act, 

requires the new school in which the 

child enrolls to take reasonable steps to 

promptly obtain the child’s records 

(including the IEP and supporting 

documents and any other records 

relating to the provision of special 

education or related services to the 

child) from the previous public agency 

in which the child was enrolled. The 

previous public agency in which the 

child was enrolled must also take 

reasonable steps to promptly respond to 

the request from the new public agency. 

We believe that these requirements will 

help to ensure that a child’s records are 

promptly received by the new public 

agency. 

The Act does not require the 

evaluation of a child who is transferring 

to a new school to be completed within 

60 days of the enrollment date of the 

child, as recommended by one 

commenter, and we do not believe that 

such a requirement should be included 

in the regulations. The completion of 

evaluations for children who transfer to 

another school are subject to multiple 

factors and we decline to regulate on a 

specific timeframe that would apply in 

all circumstances. 

Changes: None. 

Comment: One commenter 

recommended sanctions against a new 

public agency that fails to make an effort 

to complete an evaluation of a child 

who transfers to another school that was 

begun by a previous public agency. The 

commenter stated that the previous 

public agency should also be sanctioned 

for failure to cooperate with a new 

public agency or for otherwise impeding 

the ability of the new public agency to 

complete the evaluation promptly. 

Discussion: As part of its general 

supervisory responsibilities in § 300.149 

and section 612(a)(11) of the Act, each 

SEA is responsible for ensuring that the 

requirements of Part B of the Act are 

followed, including the requirements for 

children who transfer from one public 

agency to another public agency within 

the school year. Whether sanctions 

against a particular LEA are appropriate 

should be determined by the SEA in the 

first instance, as they are in the best 

position to determine what sanctions, 

technical assistance, or combination of 

the two are likely to lead to future 

compliance. For that reason, we decline 

to regulate with more specificity in this 

area. 

Changes: None. 

Screening for Instructional Purposes Is 

Not Evaluation (§ 300.302) 

Comment: One commenter requested 

clarification on the difference between 

screening and evaluation and 

recommended that the regulations 

include specific examples of what 

constitutes screening, including testing 

instruments that are appropriate to be 

used for screening to determine 

appropriate instructional strategies. 

Many commenters recommended 

permitting States to determine the 

screening process for identifying 

appropriate instructional strategies. 

One commenter stated that 

‘‘screening’’ is too loosely defined and 

may be confused with State regulations 

that require screening for a child’s 

entrance into school. The commenter 

recommended that the regulations 

address issues such as the need for 

parental consent prior to screening and 

a timeframe for screening subsequent to 

a request. 

Discussion: An ‘‘evaluation,’’ as used 

in the Act, refers to an individual 

assessment to determine eligibility for 

special education and related services, 

consistent with the evaluation 

procedures in §§ 300.301 through 

300.311. ‘‘Screening,’’ as used in 

§ 300.302 and section 614(a)(1)(E) of the 

Act, refers to a process that a teacher or 

specialist uses to determine appropriate 

instructional strategies. Screening is 

typically a relatively simple and quick 

process that can be used with groups of 

children. Because such screening is not 

considered an evaluation under 

§§ 300.301 through 300.311 to 

determine eligibility for special 

education services, parental consent is 

not required. 

Section 300.302 does not address 

screening for a child’s entrance into 

school under a State’s rules. Screening 

required under a State’s rules for a 

child’s entrance into school is the 

responsibility of the State and is not 

within the purview of the Act. We 

believe that the provisions in §§ 300.301 

through 300.311, regarding evaluations, 

and § 300.302, regarding screening for 

instructional purposes, are clear, and 

therefore, we do not believe it is 

necessary to add language to the 

regulations. 

We decline to provide specific 

examples of testing instruments to 

determine appropriate instructional 

strategies because this will vary based 

on the age of the child and the subject 

matter, and is best left to State and local 

officials to determine. Likewise, the 

process for screening, including the 

timeframe to complete the screening 

process, is a decision that is best left to 

State and local officials to determine, 

based on the instructional needs of the 

children. 

Changes: None. 

Comment: One commenter asked 

whether the provisions in § 300.302, 

regarding screening, apply to a child 

with a disability, as well as a child who 

has not been identified as a child with 

a disability. One commenter noted that 

§ 300.302 refers to screening of a child 

by a teacher or a specialist and asked 

who would be considered a specialist. 

Another commenter requested 

clarification regarding the term 

‘‘instructional strategies for curriculum 

implementation,’’ as used in § 300.302. 

Discussion: Section 300.302, 

consistent with section 614(a)(1)(E) of 

the Act, states that the screening of a 

child by a teacher or specialist to 

determine appropriate instructional 

strategies is not considered an 

evaluation for purposes of determining 

eligibility for special education and 

related services. This applies to a child 

with a disability, as well as a child who 

has not been identified as a child with 

a disability. Such screening, therefore, 

could occur without obtaining informed 

parental consent for screening. 

We believe the determination of who 

is considered a ‘‘specialist’’ should be 

left to the discretion of the public 

agency and should not be specified in 

the regulations. The term, ‘‘instructional 

strategies for curriculum 

implementation’’ is generally used to 

refer to strategies a teacher may use to 

more effectively teach children. 

Changes: None. 

Comment: One commenter 

recommended clarification regarding 

whether States can develop and 

implement policies that permit 

screening of children to determine if 

evaluations are necessary. 

Discussion: There is nothing in the 

Act that requires a State to, or prohibits 

a State from, developing and 

implementing policies that permit 

screening children to determine if 

evaluations are necessary. However, 

screening may not be used to delay an 

evaluation for special education and 

related services. If a child is referred for 

an evaluation to determine eligibility for 

special education and related services, 

the public agency must implement the 

requirements in §§ 300.301 through 

300.311 and adhere to the 60-day or the 


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State-established timeframe to complete 

the evaluation. 

Changes: None. 

Reevaluations (§ 300.303) 

Comment: A few commenters 

recommended clarifying that a parent is 

not required to provide a reason for 

requesting a reevaluation. Several 

commenters recommended that the 

regulations require a public agency to 

provide prior written notice if a parent 

requests a reevaluation within a year 

and the public agency refuses the 

request. 

Discussion: Section 300.303(b), 

consistent with section 614(a)(2)(A)(ii) 

of the Act, states that a reevaluation may 

occur if the child’s parent or teacher 

requests a reevaluation. There is no 

requirement that a reason for the 

reevaluation be given and we agree that 

a reevaluation cannot be conditioned on 

the parent providing a reason for 

requesting a reevaluation. 

Section 300.303(b), consistent with 

section 614(a)(2)(B) of the Act, provides 

that a reevaluation may occur not more 

than once a year and must occur at least 

once every three years, unless the parent 

and the public agency agree otherwise. 

If a parent requests more than one 

reevaluation in a year and the public 

agency does not believe a reevaluation 

is needed, we believe the regulations are 

clear that the public agency must 

provide the parents with written notice 

of the agency’s refusal to conduct a 

reevaluation, consistent with § 300.503 

and section 615(c)(1) of the Act. We do 

not believe additional regulations are 

necessary to address this specific 

instance of a public agency’s refusal to 

initiate a reevaluation and the written 

notice requirements in § 300.503. 

Changes: None. 

Comment: A few commenters 

requested clarification regarding 

whether an evaluation that assesses 

skills that were not previously assessed 

in the same related services area would 

be considered an evaluation or 

reevaluation. One commenter, asked, for 

example, if a speech-language 

evaluation was conducted to assess a 

child’s speech impairment one year, 

would an evaluation the following year 

to assess the child’s language abilities be 

considered an evaluation or 

reevaluation? 

Discussion: An initial evaluation of a 

child is the first complete assessment of 

a child to determine if the child has a 

disability under the Act, and the nature 

and extent of special education and 

related services required. Once a child 

has been fully evaluated, a decision has 

been rendered that a child is eligible for 

services under the Act, and the required 

services have been determined, any 

subsequent evaluation of a child would 

constitute a reevaluation. In the 

example provided by the commenter, 

the second evaluation would be 

considered a reevaluation. 

Changes: None. 

Comment: One commenter 

recommended that reevaluations be 

required at least once every three years 

because a child’s mental and physical 

profile changes in three years, and thus, 

so would the child’s educational needs. 

Another commenter recommended 

requiring LEAs to inform parents that 

information from the most recent 

evaluation, which could be three or 

more years old if the parent agrees that 

a reevaluation is unnecessary, will be 

used in the development of a child’s 

IEP. 

A few commenters recommended an 

accountability process for LEAs that do 

not conduct reevaluations at least every 

three years. The commenters 

recommended requiring LEAs to report 

to the State the number of children with 

disabilities who qualified for, but were 

not given a three-year reevaluation; 

provide prior written notice to parents 

if the LEA determines that a three-year 

reevaluation is not necessary, including 

the justification for such determination; 

and inform the parent in writing in the 

parent’s language that a three-year 

reevaluation will be conducted if the 

parent disagrees with the LEA’s 

determination. 

One commenter recommended 

requiring an LEA that does not conduct 

a reevaluation at least once every three 

years to justify the reasons in writing, 

especially if there is evidence that the 

child is not meeting the State’s 

academic achievement standards. 

Discussion: Section 300.303(b)(2), 

consistent with section 614(a)(2)(B)(ii) 

of the Act, requires a reevaluation to 

occur at least once every three years, 

unless the parent and the public agency 

agree that a reevaluation is unnecessary. 

It would be overly burdensome to 

require an LEA to report to the State the 

number of children with disabilities 

who qualified for, but were not given a 

three-year reevaluation. Similarly, it 

would be overly burdensome to require 

LEAs to inform parents that information 

from the most recent evaluation will be 

used to develop a child’s IEP or to 

justify to the parent in writing the LEA’s 

reasons for not conducting a 

reevaluation every three years if the 

parent and the agency have already 

agreed that a reevaluation is 

unnecessary. 

If a parent requests a reevaluation and 

the public agency disagrees that a 

reevaluation is needed, the public 

agency must provide prior written 

notice to the parent, consistent with 

§ 300.503, that explains, among other 

things, why the agency refuses to 

conduct the reevaluation and the 

parent’s right to contest the agency’s 

decision through mediation or a due 

process hearing. 

In situations where a public agency 

believes a reevaluation is necessary, but 

the parent disagrees and refuses consent 

for a reevaluation, new 

§ 300.300(c)(1)(ii) is clear that the public 

agency may, but is not required to, 

pursue the reevaluation by using the 

consent override procedures described 

in § 300.300(a)(3). 

Changes: None. 

Comment: One commenter 

recommended the following 

requirements for the reevaluation of a 

child with the most significant cognitive 

disabilities who is assessed based on 

alternate achievement standards: (a) 

Prohibiting the public agency from 

automatically determining that a threeyear reevaluation is not needed; (b) 

requiring the public agency to consider 

whether the child has been correctly 

identified to be assessed against 

alternate achievement standards; and (c) 

requiring a review of evaluation data to 

determine whether the child is, to the 

extent possible, being educated in the 

general curriculum and assessed with 

instruments aligned with that 

curriculum. 

Discussion: We do not believe 

changes to the regulations are necessary 

to address the commenter’s concerns. 

The Act does not include any special 

requirements for the reevaluation of a 

child with the most significant cognitive 

disabilities who is assessed against 

alternate achievement standards. It 

would be inconsistent with the 

individualized evaluation and 

reevaluation procedures in section 

614(b) and (c) of the Act for a public 

agency to automatically determine that 

reevaluations are unnecessary for a 

specific group of children. In 

determining whether a reevaluation is 

needed, the parent and the public 

agency must consider the child’s 

educational needs, which may include 

whether the child is participating in the 

general education curriculum and being 

assessed appropriately. 

Changes: None. 

Comment: One commenter 

recommended clarifying that parents 

have the right to prevent the over-testing 

of their child and that the requirements 

for reevaluations do not diminish the 

rights of parents to make decisions 

regarding the reevaluation. Several 

commenters recommended that the 

regulations require States to establish 


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additional procedural safeguards to 

ensure that parents who agree that a 

reevaluation is unnecessary are aware of 

the implications of their decision. 

Discussion: There is nothing in the 

Act to suggest that the requirements for 

reevaluations in § 300.303 diminish the 

rights of parents. As stated in § 300.303, 

consistent with section 614(a)(2) of the 

Act, a parent can request a reevaluation 

at any time, and can agree with the 

public agency to conduct a reevaluation 

more frequently than once a year. 

Likewise, a parent and a public agency 

can agree that a reevaluation is not 

necessary. We believe that in reaching 

an agreement that a reevaluation is 

unnecessary, as provided for in 

§ 300.303(b), the parent and public 

agency will discuss the advantages and 

disadvantages of conducting a 

reevaluation, as well as what effect a 

reevaluation might have on the child’s 

educational program. Therefore, we do 

not agree with the commenter that 

additional procedural safeguards are 

necessary to ensure that parents who 

agree that a reevaluation is unnecessary 

are aware of the implications of their 

decision. 

Changes: None. 

Comment: Many commenters 

requested that the opportunity to waive 

a reevaluation occur only after the IEP 

Team has reviewed extant data to 

determine whether additional data are 

needed to determine the child’s 

eligibility and the educational needs of 

the child. 

Discussion: The review of existing 

data is part of the reevaluation process. 

Section 300.305(a), consistent with 

section 614(c)(1) of the Act, is clear that, 

as part of any reevaluation, the IEP 

Team and other qualified professionals, 

as appropriate, must review existing 

evaluation data, and on the basis of that 

review, and input from the child’s 

parents, identify what additional data, if 

any, are needed to determine whether 

the child continues to have a disability, 

and the educational needs of the child. 

Therefore, the opportunity for a parent 

and the public agency to agree that a 

reevaluation is unnecessary occurs 

before a reevaluation begins. It would be 

inconsistent with the Act to implement 

the commenters’ recommendation. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify that waiving a three-year 

reevaluation must not be adopted as 

routine agency policy or practice and 

should only be used in exceptional 

circumstances. Another commenter 

recommended that the regulations 

require the LEA to offer parents a 

reevaluation at least annually when a 

parent agrees that a three-year 

reevaluation is not needed. Another 

commenter recommended that the 

regulations clarify that a reevaluation 

may be warranted more than once a year 

if the child’s condition changes or new 

information becomes available that has 

an impact on the child’s educational 

situation. 

Discussion: It is not necessary to add 

language clarifying that waiving threeyear reevaluations must not be a routine 

agency policy or practice because the 

regulations are clear that this is a 

decision that is made individually for 

each child by the parent of the child and 

the public agency. Section 

300.303(b)(2), consistent with section 

614(a)(2)(B)(ii) of the Act, states that a 

reevaluation must occur at least once 

every three years, unless the parent and 

the public agency agree that a 

reevaluation is unnecessary. When a 

parent and a public agency agree that a 

three-year reevaluation is unnecessary, 

there is no requirement that the public 

agency offer the parent a reevaluation 

each year. We do not believe that it is 

necessary to have such a requirement 

because if parents who have waived a 

three year reevaluation later decide to 

request an evaluation, they can do so. 

Also, public agencies have a continuing 

responsibility to request parental 

consent for a reevaluation if they 

determine that the child’s educational 

or related services needs warrant a 

reevaluation. 

We do not believe additional 

regulations are needed to clarify that a 

reevaluation can occur more than once 

a year. Section 300.303(b)(1), consistent 

with section 614(a)(2)(B)(i) of the Act, 

already provides that a reevaluation can 

occur more than once a year if the 

parent and the public agency agree that 

a reevaluation is needed. 

Changes: None. 

Comment: One commenter asked 

whether the agreement between the 

parent and the public agency that a 

reevaluation is unnecessary is the same 

as parental consent in § 300.9. 

Discussion: An agreement between a 

parent and a public agency is not the 

same as parental consent in § 300.9. 

Rather, an agreement refers to an 

understanding between a parent and the 

public agency and does not need to 

meet the requirements for parental 

consent in § 300.9. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify that when a parent obtains an 

independent educational evaluation 

(IEE) and provides new information to 

the public agency, a reevaluation could 

be conducted more than once a year so 

that the public agency can verify the 

results of the IEE. 

Discussion: The changes 

recommended by the commenter are 

unnecessary. Section 300.303(b)(1), 

consistent with section 614(a)(2)(B)(i) of 

the Act, is clear that a reevaluation can 

be conducted more than once a year if 

the parent and the public agency agree 

that it is necessary. Therefore, in the 

situation presented by the commenter, if 

the results of an IEE provide new 

information that the public agency and 

the parent agree warrant a reevaluation, 

the parent and the public agency could 

agree to conduct a reevaluation. 

Changes: None. 

Comment: One commenter asked 

whether an IEE is considered a 

reevaluation and whether an IEE is 

prohibited within less than a year of the 

public agency’s most recent evaluation. 

Discussion: An IEE would be 

considered as a potential source of 

additional information that the public 

agency and parent could consider in 

determining whether the educational or 

related services needs of the child 

warrant a reevaluation, but it would not 

be considered a reevaluation. There is 

no restriction on when a parent can 

request an IEE. 

Changes: None. 

Evaluation Procedures (§ 300.304) 

Notice (§ 300.304(a)) 

Comment: Numerous commenters 

recommended that the regulations 

clarify that the requirement for prior 

written notice to parents in § 300.304(a) 

is satisfied if the public agency notifies 

the parent of the type(s) of assessment(s) 

that will be conducted. One commenter 

stated that the prior written notice 

requirements for evaluations should be 

satisfied if the public agency notifies the 

parent of the type(s) of assessment(s) 

that will be conducted, the method(s) of 

assessment, and the persons who will 

conduct the assessment(s). 

Discussion: It would be inconsistent 

with the Act for a public agency to limit 

the contents of the prior written notice 

in the manner requested by the 

commenters. In addition to describing 

the evaluation procedures the agency 

proposes to use, as required in 

§ 300.303(a), section 615(c)(1) of the Act 

requires the prior written notice to 

include an explanation of why the 

agency proposes to evaluate the child; a 

description of each evaluation 

procedure, assessment, record, or report 

the agency used as a basis for requesting 

the evaluation; a statement that the 

parents have protection under the 

procedural safeguards of the Act, and if 

this notice is not an initial referral for 


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evaluation, the means by which a copy 

of the procedural safeguards can be 

obtained; sources for the parents to 

contact to obtain assistance in 

understanding the provisions of the Act; 

a description of other options that were 

considered and why these reasons were 

rejected; and a description of other 

factors that are relevant to the agency’s 

proposal to request consent for an 

evaluation. 

Changes: None. 

Comment: A few commenters stated 

that the notice to parents regarding the 

evaluation procedures the agency 

proposes to use must be provided in the 

native language of the parents, and 

recommended that this requirement be 

clarified in § 300.304. 

Discussion: Information regarding the 

evaluation procedures the agency 

proposes to use, as required in 

§ 300.303(a), is included in the prior 

written notice required in 

§ 300.503(c)(1)(ii). Section 

300.503(c)(1)(ii) requires, that the prior 

written notice to parents be provided in 

the native language of the parent or 

other mode of communication used by 

the parent, unless it is clearly not 

feasible to do so. We see no need to 

repeat these requirements in § 300.304 

and believe that doing so could cause 

confusion about the status of other 

applicable requirements that would not 

be repeated in this section. 

Changes: None. 

Conduct of Evaluation (§ 300.304(b)) 

Comment: One commenter asked 

whether the ‘‘procedure’’ referred to in 

§ 300.304(b)(2) is the same as the 

‘‘measure or assessment’’ referred to in 

section 614(b)(2)(B) of the Act. Another 

commenter recommended changing 

§ 300.304(b)(2) to follow the statutory 

language. 

Discussion: Section 300.304(b)(2), as 

proposed, states that the public agency 

may not use any single ‘‘procedure’’ as 

the sole criterion for determining 

whether a child is a child with a 

disability and for determining an 

appropriate educational program for the 

child. Section 614(b)(2)(B) of the Act 

states that in conducting an evaluation, 

the LEA must not use any single 

‘‘measure or assessment’’ as the sole 

criterion for determining whether a 

child is a child with a disability or 

determining an appropriate educational 

program for the child. We agree that the 

statutory language should be used in 

§ 300.304(b)(2) because use of the term 

‘‘procedure,’’ rather than ‘‘measurement 

or assessment,’’ could be confusing. 

Changes: We have changed 

‘‘procedure’’ to ‘‘measurement or 

assessment’’ in § 300.304(b)(2), 

consistent with the statutory language. 

Comment: One commenter 

recommended adding the word 

‘‘always’’ to § 300.304(b) to state that the 

public agency must ‘‘always’’ conduct 

an evaluation in accordance with the 

requirements in § 300.304(b)(1) through 

(b)(3). 

Discussion: Adding the word 

‘‘always’’ to § 300.304(b) would not 

change the requirements for conducting 

an evaluation consistent with 

§ 300.304(b). The regulation already 

requires a public agency to conduct the 

evaluation in accordance with 

§ 300.304(b)(1) through (b)(3) and there 

are no exceptions to that requirement. 

Therefore, we decline to change 

§ 300.304(b) in the manner 

recommended by the commenter. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

define ‘‘technically sound instruments’’

and ‘‘relative contribution’’ in 

§ 300.304(b)(3). Another commenter 

recommended that the instruments used 

in reevaluations to determine whether 

the child continues to have a disability 

should be based on scientific research 

methods. 

Discussion: Section 300.304(b)(3) 

follows the specific language in section 

614(b)(2)(C) of the Act and requires that 

the evaluation of a child use technically 

sound instruments that may assess the 

relative contribution of cognitive and 

behavioral factors, in addition to 

physical and developmental factors. 

‘‘Technically sound instruments’’

generally refers to assessments that have 

been shown through research to be valid 

and reliable. Therefore, it would be 

redundant to add language requiring 

that instruments used in reevaluations 

be based on scientific research methods, 

as recommended by one commenter. 

The phrase ‘‘relative contribution,’’ as 

used in § 300.304(b)(3), generally means 

that assessment instruments that allow 

the examiner to determine the extent to 

which a child’s behavior is a result of 

cognitive, behavioral, physical, or 

developmental factors may be used in 

evaluating a child in accordance with 

§ 300.304. Because the meaning of 

‘‘relative contribution’’ is context 

specific, we do not believe it should be 

defined in these regulations. 

Changes: None. 

Other Evaluation Procedures 

(§ 300.304(c)) 

Comment: One commenter 

recommended clarifying that differences 

in language and socialization practices 

must be considered when determining 

eligibility for special education and 

related services, including biases related 

to the assessment. 

Discussion: We do not believe that the 

clarification requested by the 

commenter is necessary. The Act and 

these regulations recognize that some 

assessments may be biased and 

discriminatory for children with 

differences in language and 

socialization practices. Section 

614(b)(3)(A)(i) of the Act requires that 

assessments and other evaluation 

materials used to assess a child under 

the Act are selected and administered so 

as not to be discriminatory on a racial 

or cultural basis. Additionally, in 

interpreting evaluation data for the 

purpose of determining eligibility of a 

child for special education and related 

services, § 300.306(c) requires each 

public agency to draw upon information 

from a variety of sources, including 

aptitude and achievement tests, parent 

input, teacher recommendations, as well 

as information regarding a child’s 

physical condition, social or cultural 

background, and adaptive behavior. We 

believe that these provisions provide 

adequate protection for the concerns 

raised by the commenter. 

Changes: None. 

Comment: One commenter requested 

that the regulations clarify that a public 

agency should not use the ‘‘not clearly 

feasible’’ exception in § 300.304(c)(1)(ii) 

to improperly limit a child’s right to be 

evaluated in the child’s native language 

or other mode of communication. 

Discussion: Section 300.304(c)(1)(ii), 

consistent with section 614(b)(3)(A)(ii) 

of the Act, requires that assessments and 

other evaluation materials used to assess 

a child be provided and administered in 

the child’s native language or other 

mode of communication and in the form 

most likely to yield accurate 

information on what the child knows 

and can do, unless it is clearly not 

feasible to so provide or administer. We 

agree that this provision should not be 

improperly used to limit evaluations in 

a child’s native language, but we do not 

believe that a change to the regulations 

is necessary or that it would prevent 

inappropriate application of the existing 

rule. 

Changes: None. 

Comment: One commenter 

recommended including ‘‘behavior’’ in 

the list of areas to be evaluated in 

§ 300.304(c)(4). Another commenter 

recommended requiring a functional 

behavioral assessment to be part of a 

child’s evaluation whenever any 

member of the IEP Team requests it or 

raises concerns about the child’s 

behavior. One commenter asked why 

physical assessments were not included 


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in the list of assessments that should be 

conducted. 

Discussion: Section 300.304(c)(4) 

requires the public agency to ensure that 

the child is assessed in all areas related 

to the suspected disability. This could 

include, if appropriate, health, vision, 

hearing, social and emotional status, 

general intelligence, academic 

performance, communicative status, and 

motor abilities. This is not an 

exhaustive list of areas that must be 

assessed. Decisions regarding the areas 

to be assessed are determined by the 

suspected needs of the child. If a child’s 

behavior or physical status is of 

concern, evaluations addressing these 

areas must be conducted. No further 

clarification is necessary. 

Changes: None. 

Comment: Many commenters 

recommended that the evaluation report 

include a description of the extent to 

which an assessment varied from 

standard conditions because there are 

few assessments that produce valid and 

reliable information for English 

language learners suspected of having a 

disability. Several commenters stated 

that it is standard practice for 

professionals administering assessments 

to include information in their reports 

when assessments are conducted using 

nonstandard conditions. One 

commenter recommended that the 

regulations require all evaluation 

reports to clearly indicate the language 

or other mode of communication used 

in assessing a child and a determination 

of whether using such language or other 

mode of communication yielded 

accurate information. 

Discussion: As stated by several 

commenters, it is standard test 

administration practice to include in the 

evaluation report the extent to which an 

assessment varied from standard 

conditions, including the language or 

other mode of communication that was 

used in assessing a child. It is, therefore, 

unnecessary to include this requirement 

in the regulations. 

Changes: None. 

Comment: Many commenters 

recommended that the regulations 

require public agencies to provide 

parents with evidence that the 

assessments to be used are reliable and 

valid for their particular use, as well as 

assurances that the assessments will be 

administered in the child’s primary 

language or mode of communication. 

The commenters also recommended that 

public agencies be required to provide 

parents with information regarding the 

assumptions being made about the tests 

and the inferences that can be drawn 

from the test results. 

Discussion: Section 300.304(a), 

consistent with section 614(b)(1) of the 

Act, requires the public agency to 

provide notice to the parents of a child 

with a disability, in accordance with 

§ 300.503, that describes the evaluation 

procedures the agency proposes to 

conduct. To require public agencies to 

provide all parents with the specific 

information recommended by the 

commenters would be burdensome for 

public agencies, and could be 

overwhelming for some parents, and 

therefore, we decline to add such a 

requirement to the regulations. While 

we understand that some parents will 

want the detailed information 

mentioned by the commenter, parents 

can always request such additional 

information before providing informed 

written consent for the evaluation or 

reevaluation. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

require comprehensive psychological 

and educational evaluations to rule out 

alternate causes of functional 

impairments in academic achievement. 

Discussion: We believe the regulations 

already address the commenters’

concerns and we do not believe any 

further clarification is necessary. 

Section 300.304(c)(6) requires that 

evaluations are sufficiently 

comprehensive to identify all of the 

child’s special education and related 

services needs, whether or not 

commonly linked to the disability 

category in which the child has been 

identified. In addition, § 300.306(b), 

consistent with section 614(b)(5) of the 

Act, states that a child must not be 

determined to be a child with a 

disability if the determinant factor for 

that determination is lack of appropriate 

instruction in reading or math, or 

limited English proficiency. 

Changes: None. 

Comment: Several commenters 

recommended that the requirements in 

new § 300.301(d)(2) and (e) (proposed 

§ 300.301(d)(2)(i) and (ii)), regarding 

children who transfer to another public 

agency before an initial evaluation is 

completed, should be cross-referenced 

in § 300.304(c)(5). 

Discussion: We agree that a crossreference in § 300.304(c)(5) is 

appropriate. 

Changes: We have added ‘‘consistent 

with § 300.301(d)(2) and (e),’’ following 

‘‘possible’’ in § 300.304(c)(5). 

Comment: None. 

Discussion: In reviewing 

§ 300.304(c)(5), we determined that 

§ 300.304(c)(5) should be amended to 

refer to children with disabilities who 

transfer to another public agency ‘‘in the 

same school year’’ rather than ‘‘in the 

same academic year’’ because that is the 

term most commonly understood by 

parents and school officials. 

Changes: We have changed ‘‘academic 

year’’ to ‘‘school year’’ in 

§ 300.304(c)(5). 

Comment: One commenter 

recommended adding language 

regarding scientifically based special 

education and related services to 

§ 300.304(c)(6). 

Discussion: Section 300.304(c)(6) 

requires that the evaluation of a child 

with a disability be sufficiently 

comprehensive to identify all the child’s 

special education and related services 

needs, whether or not commonly linked 

to the disability category in which the 

child has been classified. We believe 

that the focus on providing scientifically 

based special education and related 

services is clear in the Act and these 

regulations and do not believe it is 

necessary to refer to ‘‘scientifically 

based’’ services each time we refer to 

special education and related services. 

Therefore, we decline to add this 

language in § 300.304(c)(6), as requested 

by the commenter. 

Changes: None. 

Additional Requirements for 

Evaluations and Reevaluations 

(§ 300.305) 

Review of Existing Evaluation Data 

(§ 300.305(a)) 

Comment: One commenter stated that 

a comma should be added after ‘‘current 

classroom-based’’ in § 300.305(a)(1)(ii) 

to clarify that a review of existing 

evaluation data for a child must include, 

as appropriate, data from three types of 

assessments: Current classroom-based, 

local, or State assessments. 

Discussion: We agree with the 

commenter and will revise the language 

consistent with the commenter’s 

suggestion and consistent with section 

614(c)(1)(A)(ii) of the Act. The changes 

will clarify that a review of existing 

evaluation data on a child must include, 

as appropriate, current classroom-based, 

local, or State assessment data. 

Changes: We have inserted a comma 

following ‘‘classroom based’’ and 

‘‘local’’ in § 300.305(a)(1)(ii), consistent 

with the statutory language. 

Comment: One commenter asked 

whether a public agency must conduct 

a reevaluation when a reevaluation is 

requested to determine the child’s 

educational and functional needs, but 

the child’s eligibility for special 

education and related services is not in 

question. 

Discussion: Section 300.305(a)(2), 

consistent with section 614(c)(1)(B) of 


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the Act, states that one of the purposes 

of a reevaluation is to determine the 

educational needs of the child, 

including whether any additions or 

modifications to the special education 

and related services are needed to 

enable the child to meet the child’s IEP 

goals and to participate in the general 

education curriculum. Thus, if a 

reevaluation is requested to determine 

the child’s educational needs when the 

child’s continued eligibility is not in 

question, the public agency must either 

conduct the reevaluation or provide 

notice to the parents as to why the 

public agency believes a reevaluation is 

unnecessary. 

Changes: None. 

Requirements if Additional Data Are 

Not Needed (§ 300.305(d)) 

Comment: One commenter requested 

that the regulations define or remove the 

phrase ‘‘qualified professionals, as 

appropriate’’ in § 300.305(d)(1). 

Discussion: Section 300.305(d)(1) 

follows the specific language in section 

614(c)(1) of the Act and refers to the 

decision made by the IEP Team and 

‘‘other qualified professionals, as 

appropriate’’ regarding whether 

additional data are needed to determine 

whether a child continues to be a child 

with a disability and the child’s 

educational needs. The phrase, 

‘‘qualified professionals, as appropriate’’

is used to provide flexibility for public 

agencies to include other professionals 

who may not be a part of the child’s IEP 

Team in the group that determines if 

additional data are needed to make an 

eligibility determination and determine 

the child’s educational needs. We 

believe that public agencies should have 

flexibility in determining how to define 

‘‘qualified professionals’’ and we do not 

believe a definition should be included 

in the regulations. 

Changes: None. 

Evaluations Before Change in Eligibility 

(Proposed Evaluations Before Change in 

Placement) (§ 300.305(e)) 

Comment: One commenter stated that 

the heading for § 300.305(e), 

‘‘Evaluations before change in 

placement’’ should be changed because 

the regulations that follow do not deal 

with changes in placement. Another 

commenter requested clarification 

regarding the meaning of the term 

‘‘placement.’’ The commenter stated 

that § 300.305(e) uses the term to mean 

that special education services are no 

longer required, but that this is not the 

meaning when used in the context of 

alternative educational placements. The 

commenter also asked whether moving 

a child from a self-contained classroom 

to a resource room is a change of 

placement. 

Discussion: We agree that the heading 

for § 300.305(e) should be changed to 

more accurately reflect the requirements 

in this subsection. We will, therefore, 

change the heading to ‘‘Evaluations 

before change in eligibility,’’ which is 

consistent with the heading in section 

614(c)(5) of the Act. 

With regard to the commenter’s 

question about whether moving a child 

from a self-contained classroom to a 

resource room would be a change of 

placement, we believe that it would be, 

as it would change the child’s level of 

interaction with his or her nondisabled 

peers. However, as noted previously, the 

term ‘‘change of placement’’ should not 

have been used in connection this 

regulation. 

In the example provided by the 

commenter, generally, if a child is 

moved from a self-contained classroom 

to a resource room, it is likely that the 

child’s current IEP cannot be 

implemented in the resource room, 

because the educational program in the 

resource room is likely to be 

substantially and materially different 

than the educational program in the 

self-contained classroom or the 

educational program in the resource 

room would change the level of 

interaction with nondisabled peers. 

Therefore, this situation would likely be 

a change of placement under the Act. 

Changes: We have removed the 

heading ‘‘Evaluations before change in 

placement’’ in § 300.305(e) and replaced 

it with ‘‘Evaluations before change in 

eligibility’’ for clarity and consistency 

with the heading in section 614(c)(5) of 

the Act. 

Comment: Many commenters 

recommended that evaluations for other 

institutions (e.g., vocational 

rehabilitation agencies, colleges and 

universities) should be required before a 

child graduates from secondary school 

with a regular diploma or exceeds the 

age limit for FAPE. However, a number 

of commenters disagreed and stated that 

public agencies should not be required 

to conduct evaluations that will be used 

to meet the entrance or eligibility 

requirements of another institution or 

agency. One commenter requested 

clarification regarding whether schools 

must provide updated evaluations for 

college testing and admissions purposes 

and recommended including language 

in the regulations that explicitly states 

that public agencies are not required to 

conduct tests that are needed for 

admission to postsecondary programs. 

Another commenter recommended that 

the regulations clarify that LEAs have 

responsibility for providing the 

postsecondary services that are included 

in the summary of the child’s academic 

achievement and functional 

performance. 

One commenter requested requiring a 

reevaluation before a child exits the 

school system. Another commenter 

recommended clarifying that a 

comprehensive evaluation is not 

required for children aging out of 

special education. 

A number of commenters provided 

recommendations on the information 

that should be included in the summary 

of a child’s academic and functional 

performance required in § 300.305(e)(3). 

Commenters suggested that the 

summary report should include 

information about the child’s disability; 

the effect of the disability on the child’s 

academic and functional performance 

(sufficient to establish eligibility under 

the Americans with Disabilities Act and 

Section 504 of the Rehabilitation Act, if 

appropriate); any needed modifications 

or adaptations essential to the child’s 

success; the child’s most recent 

evaluations by professionals, including 

the child’s academic achievement and 

functional performance levels; assistive 

technology and other supports used by 

the child; and any modifications and 

supports that would facilitate the child’s 

successful transition to postsecondary 

education or employment. 

Discussion: We do not believe that the 

regulations should require public 

agencies to conduct evaluations for 

children to meet the entrance or 

eligibility requirements of another 

institution or agency because to do so 

would impose a significant cost on 

public agencies that is not required by 

the Act. While the requirements for 

secondary transition are intended to 

help parents and schools assist children 

with disabilities transition beyond high 

school, section 614(c)(5) in the Act does 

not require a public agency to assess a 

child with a disability to determine the 

child’s eligibility to be considered a 

child with a disability in another 

agency, such as a vocational 

rehabilitation program, or a college or 

other postsecondary setting. The Act 

also does not require LEAs to provide 

the postsecondary services that may be 

included in the summary of the child’s 

academic achievement and functional 

performance. We believe it would 

impose costs on public agencies not 

contemplated by the Act to include such 

requirements in the regulations. 

It would be inconsistent with the Act 

to require public agencies to conduct 

evaluations for children who are exiting 

the school system because they exceed 

the age for eligibility under State law. 

Section 300.305(e)(2), consistent with 


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section 614(c)(5)(B)(i) of the Act, is clear 

that an evaluation in accordance with 

§§ 300.304 through 300.311 is not 

required before the termination of a 

child’s eligibility under the Act due to 

graduation from secondary school with 

a regular diploma or due to exceeding 

the age eligibility for FAPE under State 

law. 

Section 300.305(e)(3), consistent with 

section 614(c)(5)(B)(ii) of the Act, states 

that the summary required when a child 

graduates with a regular diploma or 

exceeds the age eligibility under State 

law must include information about the 

child’s academic achievement and 

functional performance, as well as 

recommendations on how to assist the 

child in meeting the child’s 

postsecondary goals. The Act does not 

otherwise specify the information that 

must be included in the summary and 

we do not believe that the regulations 

should include a list of required 

information. Rather, we believe that 

State and local officials should have the 

flexibility to determine the appropriate 

content in a child’s summary, based on 

the child’s individual needs and 

postsecondary goals. 

Changes: None. 

Comment: One commenter stated that 

public agencies should not be required 

to conduct an evaluation of a child who 

graduates with a regular diploma 

because a regular diploma means that 

the child has met the same requirements 

and achieved the same or similar level 

of competency as the child’s 

nondisabled classmates. The commenter 

also requested that the regulations 

define a regular diploma to mean that 

the child has reached a comparable 

level of achievement as the child’s 

nondisabled classmates. 

Discussion: Section 300.305(e)(2) 

specifically states that a public agency 

does not need to evaluate a child with 

a disability who graduates with a 

regular diploma. In addition, as noted in 

the Analysis of Comments and Changes 

section for subpart B, we have clarified 

in § 300.101(a)(3)(iv) that a regular 

diploma does not include alternate 

degrees, such as a general educational 

development (GED) credential. We do 

not believe that any further clarification 

with respect to the definition of ‘‘regular 

diploma’’ is necessary. 

Changes: None. 

Determination of Eligibility (§ 300.306) 

Comment: One commenter 

recommended that the regulations 

require public agencies to provide 

parents with copies of all evaluations at 

no cost. However, another commenter 

stated that evaluations are often lengthy 

and requested clarification as to 

whether public agencies must provide 

copies of evaluations to parents at no 

cost. 

Discussion: Section 300.306(a)(2), 

consistent with section 614(b)(4)(B) of 

the Act, requires that a copy of the 

evaluation report and the 

documentation of determination of 

eligibility be given to the parent. We 

have added language to § 300.306(a)(2) 

to clarify that the public agency must 

provide these copies at no cost to the 

parent. 

With regard to providing parents with 

copies of all evaluations, § 300.501(a), 

consistent with section 615(b)(1) of the 

Act, affords parents an opportunity to 

inspect and review all education records 

with respect to the identification, 

evaluation, and educational placement 

of the child, and the provision of a 

FAPE to the child. Specific procedures 

for access to records are contained in 

the confidentiality provisions in 

§§ 300.610 through 300.627. 

Section 300.613 requires a public 

agency to permit a parent to inspect and 

review any education records relating to 

their child that are collected, 

maintained, or used by the agency 

under the Act. The right to inspect and 

review records includes the right to a 

response from the agency to reasonable 

requests for explanations and 

interpretations of the records; the right 

to request that the agency provide 

copies of the records containing the 

information if failure to provide those 

copies would effectively prevent the 

parent from exercising the right to 

inspect and review the records; and the 

right to have a representative of the 

parent inspect and review the records. 

To the extent that the commenters may 

have been concerned about free copies 

of evaluation documents that would not 

be provided under the above 

regulations, we decline to regulate 

further, as we believe that the cited 

provisions adequately balance the 

interests of the parents for free copies 

and the public agencies in controlling 

costs. 

Changes: We have added language to 

§ 300.306(a)(2) to clarify that the 

evaluation report and the 

documentation of determination of 

eligibility must be provided at no cost 

to the parent. 

Comment: One commenter 

recommended that parents receive 

evaluation reports prior to an IEP Team 

meeting because the reports may have 

information that parents need to 

participate in making decisions about 

the IEP. The commenter stated that, if 

parents receive reports at meetings, 

rather than before the meetings, they 

cannot be active participants. Another 

commenter stated that parents should be 

provided with copies of documents 

related to the determination of 

eligibility at least five days prior to the 

eligibility determination meeting. 

Discussion: The Act does not establish 

a timeline for providing a copy of the 

evaluation report or the documentation 

of determination of eligibility to the 

parents and we do not believe that a 

specific timeline should be included in 

the regulations because this is a matter 

that is best left to State and local 

discretion. It is, however, important to 

ensure that parents have the information 

they need to participate meaningfully in 

IEP Team meetings, which may include 

reviewing their child’s records. Section 

300.613(a) requires a public agency to 

comply with a parent request to inspect 

and review existing education records, 

including an evaluation report, without 

unnecessary delay and before any 

meeting regarding an IEP, and in no case 

more than 45 days after the request has 

been made. This includes the right to a 

response from the public agency to 

reasonable requests for explanations and 

interpretations of records, consistent 

with § 300.613(b)(1). 

While it would be appropriate for 

parents to review documents related to 

the determination of eligibility prior to 

the eligibility determination, there is no 

requirement that eligibility be 

determined at an IEP Team meeting and 

it would not be appropriate for a public 

agency to provide documentation of the 

determination of eligibility prior to 

discussing a child’s eligibility for 

special education and related services 

with the parent. Section 300.306(a)(1) 

and section 614(b)(4)(A) of the Act 

require that a group of qualified 

professionals and the parent determine 

whether the child is a child with a 

disability. Therefore, providing 

documentation of the eligibility 

determination to a parent prior to a 

discussion with the parent regarding the 

child’s eligibility would indicate that 

the public agency made its 

determination without including the 

parent and possibly, qualified 

professionals, in the decision. 

Changes: None. 

Special Rule for Eligibility 

Determination (§ 300.306(b)) 

Comment: A number of commenters 

recommended other factors that should 

be ruled out before a child is 

determined to be a child with a 

disability. Many commenters stated that 

a child should not be determined to be 

a child with a disability if the 

determinant factor is lack of instruction 

in English language development or lack 

of access to State content standards. A 


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few commenters expressed concern 

regarding subjective judgments about 

the definition of ‘‘appropriate 

instruction.’’ One commenter stated that 

determining the quality of reading 

instruction that children received in the 

past might be difficult, if not 

impossible, especially when children 

are referred for an evaluation after they 

enter middle school or are highly 

mobile. 

Discussion: We agree that a child 

should not be determined to be a child 

with a disability if the determinant 

factor is lack of access to State content 

standards, and we believe this is 

implicit in section 614(b)(5) of the Act, 

which states that a child must not be 

determined to be a child with a 

disability if the determinant factor is 

lack of appropriate instruction in 

reading (including the essential 

components of reading instruction, as 

defined in the ESEA) or lack of 

instruction in math. 

During the Department’s internal 

review of these regulations, we noted 

that, while § 300.306(b)(1)(i) refers to 

lack of ‘‘appropriate’’ instruction in 

reading, there is no similar qualifier for 

math. We believe it is equally important 

that a child not be determined to be a 

child with a disability if the 

determinant factor is the lack of 

‘‘appropriate’’ instruction in math. 

Therefore, we will revise 

§ 300.306(b)(1)(ii) to make this clear. 

We are unclear what the commenter 

means by lack of instruction in English 

language development. However, if a 

child’s low achievement is a result of 

limited English proficiency or lack of 

access to instruction in reading, the 

child must not be determined to be a 

child with a disability, consistent with 

section 614(b)(5) of the Act. 

Whether a child has received 

‘‘appropriate instruction’’ is 

appropriately left to State and local 

officials to determine. While 

information regarding the quality of 

instruction a child received in the past 

may be helpful in determining whether 

a child is eligible for special education 

services, it is not essential. Schools, 

however, must ensure that the 

determinant factor in deciding that a 

child is a child with a disability is not 

a lack of appropriate instruction in 

reading and math. 

Changes: We have added 

‘‘appropriate’’ in § 300.306(b)(1)(ii) to 

refer to a ‘‘lack of appropriate 

instruction in math.’’

Comment: Some commenters 

requested that we include in the 

regulations the essential components of 

reading instruction defined in the ESEA. 

Discussion: For reasons set forth 

elsewhere in this preamble, we are not 

adding definitions to these regulations 

from statutes other than the Act. 

However, the definition of the essential 

components of reading instruction from 

section 1208(3) of the ESEA is included 

here for reference. 

Essential Components of Reading 

Instruction—The term ‘‘essential 

components of reading instruction’’

means explicit and systematic 

instruction in—

(A) Phonemic awareness; 

(B) Phonics; 

(C) Vocabulary development; 

(D) Reading fluency, including oral 

reading skills; and 

(E) Reading comprehension strategies. 

Changes: None. 

Procedures for Determining Eligibility 

and Educational Need (Proposed 

Procedures for Determining Eligibility 

and Placement) (§ 300.306(c)) 

Comment: None. 

Discussion: During the review of these 

regulations, we noted that section 

614(b)(4) of the Act refers to procedures 

for determining eligibility and 

‘‘educational need,’’ rather than 

procedures for determining eligibility 

and ‘‘placement,’’ as in the heading for 

proposed § 300.306(c). Therefore, we 

will change the heading in § 300.306(c) 

to be consistent with section 614(b)(4) of 

the Act. 

Changes: We have replaced 

‘‘placement’’ with ‘‘educational need’’

in the heading to § 300.306(c), 

consistent with section 614(b)(4) of the 

Act. 

Additional Procedures for Identifying 

Children With Specific Learning 

Disabilities 

Specific Learning Disabilities 

(§ 300.307) 

Comment: Numerous commenters 

supported proposed § 300.307(a)(1), 

which allowed States to prohibit LEAs 

from using a severe discrepancy 

between IQ and achievement 

(discrepancy models) to determine 

eligibility under the specific learning 

disability (SLD) category. However, 

many commenters supported the use of 

discrepancy models and requested that 

the regulations allow discrepancy 

models to continue to be used. 

Numerous commenters stated that 

§ 300.307(a)(1) exceeds statutory 

authority and that LEAs should be 

permitted to use discrepancy models. 

Many commenters cited Conf. Rpt. 108–

779 and stated that Congress did not 

intend to prohibit LEAs from using 

discrepancy models. 

Discussion: The Department agrees 

that proposed § 300.307(a)(1) should be 

removed. We believe this will improve 

the clarity of the regulations and make 

it easier for parents and professionals to 

understand. With respect to permitting 

LEAs to use discrepancy models, even 

with the removal of § 300.307(a)(1), 

States are responsible for developing 

criteria to determine whether a child is 

a child with a disability, as defined in 

§ 300.8 and section 602(3) of the Act, 

including whether a particular child 

meets the criteria for having an SLD. 

Under section 614(b)(6) of the Act, 

States are free to prohibit the use of a 

discrepancy model. States, including 

States that did not use a discrepancy 

model prior to the Act, are not required 

to develop criteria that permit the use of 

a discrepancy model. 

Changes: We have removed 

§ 300.307(a)(1) and redesignated the 

subsequent provisions in § 300.307. 

Comment: Many commenters stated 

that response to intervention (RTI) 

should be considered one component of 

the evaluation process and not the sole 

component. Another commenter stated 

that neither a discrepancy model nor an 

RTI model alone can correctly identify 

children with SLD and that other data 

are needed, such as informal and formal 

assessments, histories, and observations. 

One commenter stated that all relevant 

and available evaluation data, such as 

the nature and type of evaluation, 

evaluator qualifications, and outcome 

data should be considered. One 

commenter recommended that RTI be 

tied to the general evaluation 

procedures. Another commenter 

recommended referencing the 

evaluation procedures in § 300.309 to 

clarify that RTI must be used as one 

component of the evaluation process to 

determine eligibility for special 

education and related services. Several 

commenters stated that relying solely on 

an RTI model would result in larger 

numbers of children being identified 

with an SLD. 

Discussion: Consistent with 

§ 300.304(b) and section 614(b)(2) of the 

Act, the evaluation of a child suspected 

of having a disability, including an SLD, 

must include a variety of assessment 

tools and strategies and cannot rely on 

any single procedure as the sole 

criterion for determining eligibility for 

special education and related services. 

This requirement applies to all children 

suspected of having a disability, 

including those suspected of having an 

SLD. 

To simplify new § 300.307(a)(2) 

(proposed § 300.307(a)(3)) and remove 

unnecessary repetition, we will: (a) 

Remove the phrase ‘‘as part of the 


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1Tilly III, W. D. (2002). School psychology as a 

problem solving enterprise. In A. Thomas & J. 

Grimes (Eds.), Best Practices in School Psychology 

IV. Washington D.C.: National Association of 

School Psychologists; VanDerHeyden, A.M, Witt, 

J.C, & Gilbertson, D. (in press). Effect of a problem 

solving intervention on the accurate identification 

of children. Journal of School Psychology; Marston, 

D., Muyskens, P., Lau, M., & Canter, A. (2003). 

Problem-solving model for decision making with 

high incidence disabilities: The Minneapolis 

experience. Learning Disabilities Research and 

Practice, 18, 187–200; Gresham, F., VanDerHeyden, 

A.M, & Witt, J.C. (in press). Response to 

intervention in the identification of learning 

disabilities: Empirical support and future 

challenges. School Psychology Review; National 

Association of State Directors of Special Education 

(2005). Response to intervention: policy 

considerations and implementations. Alexandria 

VA: Author. 

evaluation procedures described in 

§ 300.304;’’ and (b) replace ‘‘process that 

determines if the child responds to 

scientific, research-based intervention’’

with ‘‘process based on the child’s 

response to scientific, research-based 

intervention.’’ Section 300.311(a)(7) will 

also be revised, consistent with this 

language. 

Changes: We have revised new 

§ 300.307(a)(2) (proposed 

§ 300.307(a)(3)) and § 300.311(a)(7) for 

clarity. 

Comment: Several commenters 

recommended changing new 

§ 300.307(a)(2) (proposed 

§ 300.307(a)(3)) to require that State 

criteria ‘‘may’’ rather than ‘‘must’’

permit a process that determines if a 

child responds to research-based 

intervention in order to be consistent 

with section 614(b)(6)(B) of the Act. 

Discussion: Making the requested 

change to new § 300.307(a)(2) (proposed 

§ 300.307(a)(3)) would be inconsistent 

with the Act. Section 614(b)(6)(B) of the 

Act gives LEAs the option of using a 

process that determines if a child 

responds to research-based 

interventions. 

Changes: None. 

Comment: Several commenters 

recommended that the regulations 

include a statement that discrepancy 

models have been discredited and that 

there is no evidence that they can be 

applied in a valid and reliable manner. 

Several commenters recommended that 

the Department urge States, at least 

through guidance, to eliminate 

provisions under State laws that permit 

the use of discrepancy models. 

Discussion: We do not believe it is 

appropriate to add language in the 

regulations discouraging the use of 

discrepancy models to identify children 

with SLD. We removed current 

§ 300.541(a)(2), which required States to 

use a discrepancy model to determine 

whether a child has an SLD, because 

section 614(b)(6) of the Act now 

specifies that an LEA shall not be 

required to consider a severe 

discrepancy in determining whether a 

child has an SLD. New § 300.307(a)(2) 

(proposed § 300.307(a)(3)) requires 

States to permit the use of a process that 

examines whether the child responds to 

scientific, research-based interventions 

as part of the information reviewed to 

determine whether a child has an SLD. 

The regulations reflect the Department’s 

position on the identification of 

children with SLD and our support for 

models that focus on assessments that 

are related to instruction and promote 

intervention for identified children. 

Changes: None. 

Comment: One commenter 

recommended that any guidance the 

Department issues on RTI models 

should emphasize that RTI represents a 

shift in how children are identified for 

special education services and not just 

an additional task that special education 

teachers must do. 

Discussion: Consensus reports and 

empirical syntheses indicate a need for 

major changes in the approach to 

identifying children with SLD. Models 

that incorporate RTI represent a shift in 

special education toward goals of better 

achievement and improved behavioral 

outcomes for children with SLD because 

the children who are identified under 

such models are most likely to require 

special education and related services. 

We will consider addressing this issue 

in future guidance. 

Changes: None. 

Comment: Many commenters stated 

that the elimination of discrepancy 

models would result in an inability to 

identify children with SLD who are 

gifted. One commenter stated that a 

scatter of scores should be used to 

identify children with SLD who are 

gifted. 

Discussion: Discrepancy models are 

not essential for identifying children 

with SLD who are gifted. However, the 

regulations clearly allow discrepancies 

in achievement domains, typical of 

children with SLD who are gifted, to be 

used to identify children with SLD. 

Changes: None. 

Comment: Many commenters opposed 

the use of RTI models to determine 

whether a child has an SLD, stating that 

there is a lack of scientific evidence 

demonstrating that RTI models correctly 

identify children with SLD. One 

commenter stated that RTI is a 

subjective method of determining 

whether treatment is effective and is not 

a treatment itself. A few commenters 

requested additional research 

demonstrating the efficacy of the widescale use of RTI models. Some 

commenters stated that research on the 

use of RTI models has been conducted 

only in the area of reading in the 

primary grades and pointed to the lack 

of scientific data on achievement gains 

or long-term success. One commenter 

stated that there is no evidence that RTI 

is effective for non-native speakers of 

English and minority populations. 

Another commenter stated that RTI 

would fail to identify young children 

with SLD. One commenter stated that 

when a child fails to respond to an 

intervention, it is unclear why the child 

failed (e.g., inappropriate intervention, 

ineffective teaching, unreasonable 

expectations). One commenter stated 

that longitudinal data are needed to 

determine if children who succeed in an 

RTI process later become eligible under 

the category of SLD based on reading 

fluency and comprehension difficulties, 

or difficulties in other academic areas, 

such as mathematics problem-solving or 

written expression. 

Discussion: The Act requires that 

LEAs be permitted to use a process that 

determines if a child responds to 

research-based interventions. Further, 

there is an evidence base to support the 

use of RTI models to identify children 

with SLD on a wide scale, including 

young children and children from 

minority backgrounds. These include 

several large-scale implementations in 

Iowa (the Heartland model; Tilly, 2002); 

the Minneapolis public schools 

(Marston, 2003); applications of the 

Screening to Enhance Equitable 

Placement (STEEP) model in 

Mississippi, Louisiana, and Arizona 

(VanDerHeyden, Witt, & Gilbertson, in 

press); and other examples (NASDE, 

2005).1 While it is true that much of the 

research on RTI models has been 

conducted in the area of reading, 80 to 

90 percent of children with SLD 

experience reading problems. The 

implementation of RTI in practice, 

however, has included other domains. 

RTI is only one component of the 

process to identify children in need of 

special education and related services. 

Determining why a child has not 

responded to research-based 

interventions requires a comprehensive 

evaluation. 

Changes: None. 

Comment: One commenter expressed 

concern about how LEAs will conduct 

evaluations for children suspected of 

having an SLD who attend private 

schools because requiring an RTI 

process could become entangled with 

the private school’s instructional 

practices. The commenter 

recommended clarifying that child find 

does not require an LEA to use RTI to 


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identify children with SLD who are 

attending private schools. 

Discussion: An RTI process does not 

replace the need for a comprehensive 

evaluation. A public agency must use a 

variety of data gathering tools and 

strategies even if an RTI process is used. 

The results of an RTI process may be 

one component of the information 

reviewed as part of the evaluation 

procedures required under §§ 300.304 

and 300.305. As required in 

§ 300.304(b), consistent with section 

614(b)(2) of the Act, an evaluation must 

include a variety of assessment tools 

and strategies and cannot rely on any 

single procedure as the sole criterion for 

determining eligibility for special 

education and related services. 

It is up to each State to develop 

criteria to determine whether a child 

has a disability, including whether a 

particular child has an SLD. In 

developing their criteria, States may 

wish to consider how the criteria will be 

implemented with a child for whom 

systematic data on the child’s response 

to appropriate instruction is not 

available. However, many private 

schools collect assessment data that 

would permit a determination of how 

well a child responds to appropriate 

instruction. The group making the 

eligibility determination for a private 

school child for whom data on the 

child’s response to appropriate 

instruction are not available may need 

to rely on other information to make 

their determination, or identify what 

additional data are needed to determine 

whether the child is a child with a 

disability. However, under § 300.306(b), 

a public agency may not identify any 

public or private school child as a child 

with a disability if the determinant 

factor is lack of appropriate instruction 

in reading or math. 

Changes: None. 

Comment: One commenter stated that 

adoption of new procedures for 

evaluating children suspected of having 

an SLD should not penalize or 

declassify children who under prior 

procedures were found to have an SLD. 

The commenter recommended using the 

requirements in § 300.305, rather than 

data from a child’s response to a 

scientific, research-based intervention 

process, to consider whether a child 

continues to have an SLD. 

Discussion: An RTI process does not 

replace the need for a comprehensive 

evaluation, and a child’s eligibility for 

special education services cannot be 

changed solely on the basis of data from 

an RTI process. Consistent with 

§ 300.303 and section 614(a)(2) of the 

Act, a child with a disability must be 

reevaluated if the public agency 

determines that the educational or 

related services needs of the child 

warrant a reevaluation or if the child’s 

parent or teacher requests a 

reevaluation. A reevaluation must occur 

no more than once a year, unless the 

parent and the public agency agree 

otherwise, and at least once every three 

years, unless the parent and the public 

agency agree that a reevaluation is 

unnecessary, to determine whether the 

child continues to have a disability and 

to determine the educational needs of 

the child. Reevaluations must be 

conducted in accordance with 

§§ 300.304 through 300.311. In addition, 

as noted in § 300.305(e)(1), except for 

children at the end of their secondary 

school career, a reevaluation must be 

done before determining that a child is 

no longer a child with a disability. In 

conducting a reevaluation, as noted in 

§ 300.305, consistent with section 614(c) 

of the Act, the IEP Team and other 

qualified professionals must review 

existing evaluation data on the child 

including evaluations provided by the 

parents of the child; current classroombased, local, or State assessments and 

classroom-based observations; and 

observations by teachers and related 

services providers. 

The results of an RTI process may be 

one component of the information 

reviewed as part of the reevaluation 

process. It is up to each State to develop 

criteria to determine whether a child 

continues to have a disability, including 

whether a particular child has an SLD. 

States that change their eligibility 

criteria for SLD may want to carefully 

consider the reevaluation of children 

found eligible for special education 

services using prior procedures. States 

should consider the effect of exiting a 

child from special education who has 

received special education and related 

services for many years and how the 

removal of such supports will affect the 

child’s educational progress, 

particularly for a child who is in the 

final year(s) of high school. Obviously, 

the group should consider whether the 

child’s instruction and overall special 

education program have been 

appropriate as part of this process. If the 

special education instruction has been 

appropriate and the child has not been 

able to exit special education, this 

would be strong evidence that the 

child’s eligibility needs to be 

maintained. 

Changes: None. 

Alternative Research-Based Procedures 

(New § 300.307(a)(3)) (Proposed 

§ 300.307(a)(4)) 

Comment: Many commenters 

expressed support for allowing the use 

of alternative research-based procedures 

to determine whether a child has an 

SLD. However, a few commenters stated 

that the use of alternative researchbased procedures should be removed 

because there is no indication that these 

procedures will assist in identifying a 

child with an SLD and because the Act 

does not use this term. 

Discussion: New § 300.307(a)(3) 

(proposed § 300.307(a)(4)) recognizes 

that there are alternative models to 

identify children with SLD that are 

based on sound scientific research and 

gives States flexibility to use these 

models. For example, a State could 

choose to identify children based on 

absolute low achievement and 

consideration of exclusionary factors as 

one criterion for eligibility. Other 

alternatives might combine features of 

different models for identification. We 

believe the evaluation procedures in 

section 614(b)(2) and (b)(3) of the Act 

give the Department the flexibility to 

allow States to use alternative, researchbased procedures for determining 

whether a child has an SLD and is 

eligible for special education and 

related services. 

Changes: None. 

Comment: One commenter stated that 

alternative research-based procedures 

are not based on scientific research and 

should therefore be removed. 

Discussion: The Department does not 

support the use of identification 

procedures that are not based on 

scientific research. Models or 

procedures that claim to assist in 

identifying a child with an SLD, but 

which are not based on sound scientific 

research, are not appropriate and should 

not be adopted by LEAs or States. 

Changes: None. 

Comment: A few commenters stated 

that the meaning of alternative researchbased procedures is unclear and should 

be defined. One commenter stated that 

there would be inappropriate 

interventions and procedures without 

further clarification as to the meaning of 

alternative research-based procedures. 

Discussion: As noted in the Analysis 

of Comments and Changes section for 

subpart A, we have added the definition 

of scientifically based research from 

section 9101(37) of the ESEA to the 

definitions section of these regulations. 

This definition is the most appropriate 

definition to include in these 

regulations, given the importance 

Congress placed on aligning the Act 

with the ESEA. The Department does 

not intend to dictate how extensive the 

research must be or who, within an LEA 

or State, should determine that the 

research is of high quality. We believe 

that this is a matter best left to State and 


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local officials because determining the 

presence of an appropriate instructional 

process is part of the State-adopted 

criteria. This addition should provide 

the clarity requested by the commenters. 

Changes: We have added a definition 

of scientifically based research to 

§ 300.35, giving the term the definition 

in section 9101(37) of the ESEA. 

Consistency With State Criteria 

(§ 300.307(b)) 

Comment: Several commenters 

expressed concern about allowing States 

to decide on the approach to 

determining whether a child has an 

SLD, and requested the Department 

develop criteria to be used across the 

nation. However, numerous commenters 

supported the development of State 

criteria and requiring public agencies to 

use the State criteria to determine 

whether a child has an SLD. Many 

commenters stated that this requirement 

is necessary to prevent inconsistent 

eligibility requirements among LEAs in 

a State. Other commenters stated that 

the requirement exceeds statutory 

authority and that LEAs should be 

allowed to make decisions about the 

criteria and methods to identify 

children with SLD. 

Discussion: The Department believes 

that eligibility criteria must be 

consistent across a State to avoid 

confusion among parents and school 

district personnel. The Department also 

believes that requiring LEAs to use State 

criteria for identifying children with 

disabilities is consistent with the State’s 

responsibility under section 612(a)(3) of 

the Act to locate, identify, and evaluate 

all eligible children with disabilities in 

the State. We believe this provides the 

Department with the authority to 

require a public agency to use State 

criteria in determining whether a child 

has an SLD, consistent with §§ 300.307 

through 300.311. 

Changes: None. 

Comment: A few commenters 

requested requiring States to adopt and 

implement only one model to determine 

whether a child has an SLD. However, 

several commenters requested that 

States and LEAs have the flexibility to 

use more than one model. One 

commenter noted that States need 

flexibility to determine eligibility 

criteria until there is greater 

understanding of the effectiveness of 

evidence-based protocols in identifying 

children with SLD. 

Discussion: There is nothing in the 

Act that would require a State to use 

one model of identification to identify a 

child with an SLD. We do not believe 

the regulations should include such a 

requirement, because section 614(b)(6) 

of the Act indicates that some flexibility 

in the selection of models of 

identification by LEAs can be 

appropriate, if permitted by the State. 

Changes: None. 

Comment: One commenter 

recommended that the Department 

require States to develop a plan to 

implement Statewide eligibility criteria 

that includes dissemination of researchbased models, collecting data on the use 

of such models, providing professional 

development on the State’s criteria, and 

implementing appropriate services and 

instruction. 

Discussion: We agree that it could be 

helpful for States to develop a plan to 

implement any new SLD criteria, as 

recommended by the commenter. 

However, we do not believe States 

should be required to adopt such a plan, 

as this is a matter that is best left to 

individual States to decide. 

Changes: None. 

Group Members (§ 300.308) 

Comment: Several commenters 

requested an explanation of the use of 

‘‘group members’’ rather than ‘‘team 

members’’ to describe the group that 

determines whether a child suspected of 

having an SLD is a child with a 

disability. One commenter stated that 

the eligibility determination is an IEP 

Team function and, therefore, using the 

term ‘‘group members’’ is inappropriate. 

One commenter stated that § 300.308 is 

confusing because the group seems to be 

the same as the IEP Team. 

Discussion: The change from ‘‘team 

members’’ to ‘‘group members’’ was 

made in the 1999 regulations to 

distinguish this group from the IEP 

Team, because the team of qualified 

professionals and the parent in 

§ 300.306(a)(1) that makes the eligibility 

determination does not necessarily have 

the same members as an IEP Team. In 

some States, this group of professionals 

may have the same individuals as the 

IEP Team, but in other States, this is not 

the case. We inadvertently referred to 

‘‘team members’’ in 300.309(a)(2)(ii) 

and, therefore, will change this to 

‘‘group.’’

Changes: We have changed ‘‘team 

members’’ to ‘‘group’’ in 

§ 300.309(a)(2)(ii) to be consistent with 

§ 300.306(a)(1). 

Comment: Several commenters stated 

that the requirements for the 

qualifications of the group members in 

proposed § 300.308(a) are unnecessary 

and should be removed because they are 

not included in the Act, are overly 

prescriptive, and add another set of 

procedural requirements. On the other 

hand, a number of commenters 

recommended additional or different 

qualifications that should be required of 

the group members in § 300.308. Several 

commenters recommended that the 

group members be qualified to conduct 

assessments in the area of ‘‘cognition’’

rather than ‘‘intellectual development’’

to ensure that specific cognitive abilities 

are assessed, rather than global 

intellectual abilities. 

Several commenters recommended 

that proposed § 300.308(a)(2), requiring 

group members to apply ‘‘critical 

analysis’’ to the data, be changed to 

require group members to apply 

‘‘clinical’’ analysis to the data. One 

commenter stated that clinical analysis 

should be defined and suggested a 

definition that includes professional 

judgment informed by empirical 

research, training, and experience, and 

guided by interpretation of patterns in 

evaluation findings from a number of 

sources (e.g., test scores; interviews; 

work samples; observational data; and 

information from parents, school 

personnel, and other related services 

providers). 

A few commenters recommended 

requiring evaluations to be completed 

by certified speech-language 

pathologists and school psychologists to 

ensure that qualified professionals 

conduct the assessments. One 

commenter recommended that the 

examples of the areas for diagnostic 

assessments be preceded by ‘‘such as’’

to avoid a misinterpretation that a 

speech-language pathologist, for 

example, is mandated to participate in 

every SLD determination. 

Several commenters agreed with the 

professional competencies for the group 

members described in § 300.308(a). 

However, one commenter stated that 

‘‘collectively qualified’’ is too broad a 

term and should be more narrowly 

defined. Another commenter stated that 

there is no way to ensure that the group 

members possess the necessary 

expertise unless there is a mechanism to 

determine whether the group members 

have the specified competencies in 

proposed § 300.308(a). 

One commenter stated that, although 

professionals from more than one 

discipline may be qualified to 

administer certain assessments, they do 

not bring the same expertise to the 

process. One commenter asked if a 

special education teacher, a regular 

education teacher, and parent were all 

that would be necessary if they 

collectively met the competency 

requirements. 

Several commenters stated that the 

list of professionals in proposed 

§ 300.308(b) for the eligibility group 

should be removed and decisions about 

group members left to schools and 


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2 Donovan, M.S., & Cross, C.T. (2002). Minority 

students in special and gifted education. 

Washington, DC: National Academy Press; Bradley, 

L., Danielson, & Hallahan, D.P. (Eds.). Identification 

of learning disabilities: Research to practice. 

Mahway, NJ: Erlbaum; Hoskyn, M., & Swanson, H.L 

(2000). Cognitive processing of low achievers and 

children with reading disabilities: A selective metaanalytic review of the published literature. The 

School Psychology Review, 29, 102–119; Steubing, 

K.K., Fletcher, J.M., LeDoux, J.M., Lyon, G.R., 

Shaywitz, S.E., & Shoywitz B.A. (2002). Validity of 

IQ-discrepancy, classifications of reading 

disabilities: A meta-analysis. American Educational 

Research Journal, 39, 469–518. 

districts. Other commenters stated that 

the requirements for the eligibility 

group should be the same as those for 

the group that determines the eligibility 

of children suspected of all other 

disabilities. 

Many commenters recommended that 

additional or different professionals 

should be included in the group. 

Numerous commenters recommended 

including speech-language pathologists 

in the group because of their expertise 

in reading and conducting individual 

diagnostic assessments in the areas of 

speech and language. 

A few commenters stated that a 

school psychologist should be a 

required member of the group, rather 

than listed as ‘‘if appropriate.’’ One of 

these commenters stated that, even if 

school psychologists are no longer 

required to administer assessments to 

determine whether there is a 

discrepancy between the child’s 

achievement and ability, school 

psychologists conduct assessments 

related to cognitive functioning, 

behavior, and other issues that may 

affect a child’s learning. 

Numerous commenters recommended 

requiring the special education teacher 

who is part of the eligibility group to 

have expertise in the area of SLD. 

However, one commenter stated that it 

is unnecessary for a special education 

teacher to be part of the group because 

the teacher would not have any 

instructional experience with the yet-tobe identified child and nothing in the 

Act requires special education teachers 

to possess any diagnostic expertise in 

the area of SLD. 

One commenter recommended that 

the group include a teacher with 

experience in teaching children who are 

failing or at-risk for failing, in addition 

to a general education and special 

education teacher. Several commenters 

recommended adding a reading 

specialist as a required member. A few 

commenters recommended including a 

social worker as a required member, 

stating that it is important that one of 

the members examine the child’s home 

and community environment to rule out 

environmental and economic factors as 

a primary source of the child’s learning 

difficulties. Another commenter 

recommended adding a guidance 

counselor as a required member. One 

commenter recommended including a 

school nurse and stated that a school 

nurse can contribute information about 

educationally relevant medical findings. 

One commenter stated that a reading 

teacher and an educational therapist 

should always be included in the group. 

A few commenters were not familiar 

with the role of an educational therapist 

and requested a definition or 

elimination of the term from the list of 

‘‘other professionals.’’ One commenter 

stated that two of the three professionals 

listed as ‘‘other professionals’’ (school 

psychologist, reading teacher, 

educational therapist) are not 

credentialed and questioned why they 

were included in the group. 

Discussion: The Department has 

considered the diversity of comments 

received and, given the lack of 

consensus about which individuals 

should be included in the group that 

makes eligibility determinations for 

children suspected of having an SLD, 

believes that the requirements in current 

§ 300.540 should be retained. Current 

§ 300.540 states that the eligibility group 

for children suspected of having SLD 

must include the child’s parents and a 

team of qualified professionals, which 

must include the child’s regular teacher 

(or if the child does not have a regular 

teacher, a regular classroom teacher 

qualified to teach a child of his or her 

age) or for a child of less than school 

age, an individual qualified by the SEA 

to teach a child of his or her age; and 

at least one person qualified to conduct 

individual diagnostic examinations of 

children, such as a school psychologist, 

speech-language pathologist or remedial 

reading teacher. We believe this allows 

decisions about the specific 

qualifications of the members to be 

made at the local level, so that the 

composition of the group may vary 

depending on the nature of the child’s 

suspected disability, the expertise of 

local staff, and other relevant factors. 

For example, for a child suspected of 

having an SLD in the area of reading, it 

might be important to include a reading 

specialist as part of the eligibility group. 

However, for a child suspected of 

having an SLD in the area of listening 

comprehension, it might be appropriate 

for the group to include a speechlanguage pathologist with expertise in 

auditory processing disorders. Current 

§ 300.540 provides flexibility for schools 

and districts, and ensures that the group 

includes individuals with the 

knowledge and skills necessary to 

interpret the evaluation data and make 

an informed determination as to 

whether the child is a child with an 

SLD, and the educational needs of the 

child. 

Changes: Section 300.308 has been 

changed to include the requirements 

from current § 300.540. 

Determining the Existence of a Specific 

Learning Disability (§ 300.309) 

Comment: One commenter stated that 

there is no authority in the Act for the 

SLD eligibility requirements outlined in 

§ 300.309. 

Discussion: We agree that the 

statutory language is broad and does not 

include the specific requirements to 

determine whether a child suspected of 

having an SLD is a child with a 

disability. The purpose of these 

regulations, however, is to provide 

details to assist States in the appropriate 

implementation of the Act. We believe 

the requirements in § 300.309 are 

necessary to ensure that States have the 

details necessary to implement the Act. 

Changes: None. 

Comment: One commenter stated that 

RTI was Congress’ preference for 

determining eligibility under SLD, and 

therefore, the criteria for RTI should be 

the first paragraph of § 300.309 

(Determining the existence of a specific 

learning disability). 

Discussion: The Department believes 

that the criteria in § 300.309 are 

presented in a logical order and are 

consistent with the Act. 

Changes: None. 

Comment: One commenter stated that 

a discrepancy between intellectual 

ability and achievement can 

differentiate between children with 

disabilities and children with general 

low achievement, and noted that the 

problems with discrepancy models have 

been in implementation, rather than in 

the concept itself for identifying 

children with SLD. 

Discussion: There is a substantial 

research base summarized in several 

recent consensus reports (Donovan & 

Cross, 2002; Bradley et al., 2003) and 

meta-analyses (Hoskyn & Swanson, 

2000; Steubing et al., 2002) that does not 

support the hypothesis that a 

discrepancy model by itself can 

differentiate children with disabilities 

and children with general low 

achievement.2 Therefore, we disagree 

with the comment because such a 

differentiation is not possible with any 

single criterion, including RTI. 

Changes: None. 

Comment: One commenter requested 

retaining the language in current 

§ 300.541, regarding the use of 

discrepancy models. 


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3Bradley, R., Danielson, L., & Hallahan, D.P. 

(Eds.). (2002). Identification of learning disabilities: 

Research to practice. Mahwah, NJ: Erlbaum. 

4Bijou, S.W. (1942). The psychometric pattern 

approach as an aid to clinical assessment—a 

review. American Journal of Mental Deficiency, 46, 

354–362. 

5 Kavale, K. (2002). Discrepancy models in the 

identification of learning disabilities. In R. Bradley, 

L. Danielson, & D.P. Hallahan (Eds.). Identification 

of learning disabilities: Research to practice (pp. 

370–371). Mahwah, NJ: Erlbaum. 

6Cronbach, L.J. (1957). The two disciplines of 

scientific psychology. American Psychologist, 12, 

671–684. 

7Fletcher, J.M., Denton, C., & Francis, D.J. (2005). 

Validity of alternative approaches for the 

identification of LD: Operationalizing unexpected 

underachievement. Journal of Learning Disabilities, 

38, 545–552; Reschly, D.J., & Tilly, W.D. (1999). 

Reform trends and system design alternatives. In 

D.J. Reschly, W.D. Tilly, III, and J.P. Grimes (Eds.). 

Special education in transition: Functional 

assessment and noncategorical programming. 

Longmont, CO: Sopris West. 

Discussion: Section 614(b)(6) of the 

Act prohibits States from requiring a 

discrepancy approach to identify 

children with SLD. Current § 300.541 

requires a discrepancy determination 

and is, therefore, inconsistent with the 

Act. 

Changes: None. 

Comment: One commenter requested 

that the eligibility group be allowed to 

consider the results from standardized, 

individualized testing (not just 

criterion-based testing or functional 

assessments) in the eligibility 

determination. 

Discussion: Nothing in the Act or 

these regulations would preclude the 

eligibility group from considering 

results from standardized tests when 

making eligibility determinations. 

Changes: None. 

Comment: Many commenters 

recommended adding the concept of 

psychological processing disorders to 

the eligibility criteria in § 300.309. 

Several commenters noted that the 

criteria in § 300.309 do not fully address 

the definition of SLD in § 300.8(c)(10), 

which includes a processing disorder in 

one or more of the basic psychological 

processes. Several commenters stated 

that, without requiring documentation 

of a basic psychological processing 

disorder, the number of children 

identified with SLD will significantly 

increase and the use of assessment tools 

that have the potential to significantly 

guide instruction will decrease. Several 

commenters stated that failure to 

consider individual differences in 

cognitive processing skills reverses 

more than 20 years of progress in 

cognitive psychology and 

developmental neuroscience. One 

commenter stated that identifying a 

basic psychological processing disorder 

would help ensure that children 

identified with an SLD are not simply 

victims of poor instruction. One 

commenter stated that the shift away 

from requiring diagnostic assessments 

in the area of cognition would make it 

conceptually impossible to document 

that a child has a disorder in one or 

more of the basic psychological 

processes, as required in the definition 

of SLD in § 300.8(c)(10). 

Discussion: The Department does not 

believe that an assessment of 

psychological or cognitive processing 

should be required in determining 

whether a child has an SLD. There is no 

current evidence that such assessments 

are necessary or sufficient for 

identifying SLD. Further, in many cases, 

these assessments have not been used to 

make appropriate intervention 

decisions. However, § 300.309(a)(2)(ii) 

permits, but does not require, 

consideration of a pattern of strengths or 

weaknesses, or both, relative to 

intellectual development, if the 

evaluation group considers that 

information relevant to an identification 

of SLD. In many cases, though, 

assessments of cognitive processes 

simply add to the testing burden and do 

not contribute to interventions. As 

summarized in the research consensus 

from the OSEP Learning Disability 

Summit (Bradley, Danielson, and 

Hallahan, 2002), ‘‘Although processing 

deficits have been linked to some SLD 

(e.g., phonological processing and 

reading), direct links with other 

processes have not been established. 

Currently, available methods for 

measuring many processing difficulties 

are inadequate. Therefore, 

systematically measuring processing 

difficulties and their link to treatment is 

not yet feasible * * *. Processing 

deficits should be eliminated from the 

criteria for classification * * *.’’ (p. 

797).3 Concerns about the absence of 

evidence for relations of cognitive 

discrepancy and SLD for identification 

go back to Bijou (1942; 4 see Kavale, 

2002) 5. Cronbach (1957) 6 characterized 

the search for aptitude by treatment 

interactions as a ‘‘hall of mirrors,’’ a 

situation that has not improved over the 

past few years as different approaches to 

assessment of cognitive processes have 

emerged (Fletcher et al., 2005; Reschly 

& Tilly, 1999) 7. 

Changes: None. 

Comment: Several commenters 

requested that the regulations include a 

definition of ‘‘intellectual 

development.’’

Discussion: We do not believe it is 

necessary to define ‘‘intellectual 

development’’ in these regulations. 

Intellectual development is included in 

§ 300.309(a)(2)(ii) as one of three 

standards of comparison, along with age 

and State-approved grade-level 

standards. The reference to ‘‘intellectual 

development’’ in this provision means 

that the child exhibits a pattern on 

strengths and weaknesses in 

performance relative to a standard of 

intellectual development such as 

commonly measured by IQ tests. Use of 

the term is consistent with the 

discretion provided in the Act in 

allowing the continued use of 

discrepancy models. 

Changes: None. 

Comment: Several commenters stated 

that intra-individual differences, 

particularly in cognitive functions, are 

essential to identifying a child with an 

SLD and should be included in the 

eligibility criteria in § 300.309. 

Discussion: As indicated above, an 

assessment of intra-individual 

differences in cognitive functions does 

not contribute to identification and 

intervention decisions for children 

suspected of having an SLD. The 

regulations, however, allow for the 

assessment of intra-individual 

differences in achievement as part of an 

identification model for SLD. The 

regulations also allow for the 

assessment of discrepancies in 

intellectual development and 

achievement. 

Changes: None. 

Comment: One commenter requested 

guidance on how to determine whether 

a child was provided with learning 

experiences appropriate for the child’s 

age, as required in § 300.309(a)(1). 

Discussion: While such guidance 

might be helpful, we believe SEAs and 

LEAs are in the best position to provide 

guidance on age-appropriate learning 

experiences. 

Changes: None. 

Comment: Several commenters 

expressed support for the requirements 

in § 300.309(a)(1) and stated that the 

first element of determining eligibility 

for an SLD is a finding that the child 

does not achieve commensurate with 

the child’s age in one or more of the 

eight areas when provided with learning 

experiences appropriate to the child’s 

age. However, several commenters 

requested requiring that eligibility 

determinations for an SLD include 

evidence that the child’s achievement 

level is not commensurate with the 

child’s age and ability (emphasis 

added). One commenter indicated that 

knowledge of a child’s ability level is 

important to ensure that a determination 

is not based on deficits in areas not 

related to cognitive processing (e.g., lack 

of opportunity to learn, social or 

emotional disturbances), and to prevent 

misdiagnosis of children with mental 


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8Burns, M., Appleton, J., Stehouwer, J. (2005). 

Meta-analytic review of responsiveness-tointervention research: Examining field-based and 

research-implemented models. Journal of 

Psychoeducational Assessment, 23, 381–394. 

retardation and SLD. One commenter 

stated that § 300.309(a)(1) would allow 

any child who failed to achieve 

commensurate with his or her age to be 

considered to have an SLD, and this will 

increase the number of children referred 

for special education and related 

services. 

Several commenters expressed 

concern that the eligibility 

determination for SLD is based on 

whether the child achieves 

commensurate with his or her age 

because current practice uses normative 

data that are based on grade level. These 

commenters recommended clarifying 

that grade level or classmate 

performance should also be considered. 

Discussion: The first element in 

identifying a child with SLD should be 

a child’s mastery of grade-level content 

appropriate for the child’s age or in 

relation to State-approved grade-level 

standards, not abilities. This emphasis 

is consistent with the focus in the ESEA 

on the attainment of State-approved 

grade-level standards for all children. 

State-approved standards are not 

expressed as ‘‘norms’’ but represent 

benchmarks for all children at each 

grade level. The performance of 

classmates and peers is not an 

appropriate standard if most children in 

a class or school are not meeting Stateapproved standards. Furthermore, using 

grade-based normative data to make this 

determination is generally not 

appropriate for children who have not 

been permitted to progress to the next 

academic grade or are otherwise older 

than their peers. Such a practice may 

give the illusion of average rates of 

learning when the child’s rate of 

learning has been below average, 

resulting in retention. A focus on 

expectations relative to abilities or 

classmates simply dilutes expectations 

for children with disabilities. 

We will modify § 300.309(a)(1) to 

clarify that, as a first element in 

determining whether a child has an 

SLD, the group must determine that the 

child does not demonstrate achievement 

that is adequate for the child’s age or the 

attainment of State-approved grade-level 

standards, when provided with learning 

experiences and instruction appropriate 

for the child’s age or State-approved 

grade-level standards in one or more of 

the areas listed in § 300.309(a)(1). The 

reference to ‘‘State-approved grade-level 

standards’’ is intended to emphasize the 

alignment of the Act and the ESEA, as 

well as to cover children who have been 

retained in a grade, since age level 

expectations may not be appropriate for 

these children. The reference to 

‘‘instruction’’ will be added to 

emphasize that children may not be 

identified as having SLD if there is no 

documentation of appropriate 

instruction, consistent with the Act and 

the ESEA. Consistent with this change, 

we will add a reference to ‘‘Stateapproved grade-level standards’’ in 

§§ 300.309(a)(2)(i) and (ii). We will also 

combine proposed § 300.311(a)(5) and 

(6) into § 300.311(a)(5) to ensure 

consistency with the requirements in 

§ 300.309(a). 

Changes: We have modified 

§ 300.309(a)(1) and §§ 300.309(a)(2)(i) 

and (ii), and combined proposed 

§ 300.311(a)(5) and (6) into 

§ 300.311(a)(5) to ensure consistency 

with the requirements in § 300.309(a). 

Comment: Several commenters 

expressed support for including reading 

fluency in the list of areas to be 

considered when determining whether a 

child has an SLD. However, several 

commenters recommended removing 

reading fluency from the list in 

§ 300.309(a)(1), stating that a weakness 

in reading fluency, in isolation, does not 

indicate a reading disability. 

Discussion: No assessment, in 

isolation, is sufficient to indicate that a 

child has an SLD. Including reading 

fluency in the list of areas to be 

considered when determining whether a 

child has an SLD makes it more likely 

that a child who is gifted and has an 

SLD would be identified. Fluency 

assessments are very brief and highly 

relevant to instruction. We, therefore, do 

not believe that reading fluency should 

be removed from § 300.309(a)(1). 

Changes: None. 

Comment: Many commenters stated 

that eligibility criteria based on RTI 

models will result in dramatic increases 

in referrals, special education 

placements, and legal problems. One 

commenter stated that the eligibility 

criteria in § 300.309 do not provide 

sufficient checks and balances to ensure 

that only those children who truly 

require special education are identified 

as having SLD. A few commenters 

stated that using an RTI model would 

result in incorrectly identifying 

underachieving children as having SLD. 

Discussion: We do not believe that 

eligibility criteria based on RTI models 

will result in dramatic increases in 

referrals and special education 

placements. Well-implemented RTI 

models and models that identify 

problems early and promote 

intervention have reduced, not 

increased, the number of children 

identified as eligible for special 

education services and have helped 

raise achievement levels for all children 

in a school.8 We believe that the 

regulations do provide sufficient checks 

to ensure that only children who need 

special education and related services 

are identified as having SLD. 

Changes: None. 

Comment: Several commenters stated 

that the language in § 300.309(a)(2)(ii) is 

very confusing and should be rewritten. 

Many commenters stated that the word 

‘‘or’’ instead of ‘‘and’’ should be used 

between § 300.309(a)(2)(i) and 

§ 300.309(a)(2)(ii), because otherwise a 

child could be identified with an SLD 

because he or she failed to meet passing 

criteria on a State assessment, and 

failure to make sufficient progress on a 

State-approved assessment alone is not 

grounds for a determination that a child 

has an SLD. Several commenters stated 

that the phrase, ‘‘pattern of strengths 

and weaknesses in performance, 

achievement, or both’’ is a typographical 

error because it is repeated twice. 

Discussion: We do not agree that 

‘‘and’’ should be used instead of ‘‘or’’

between § 300.309(a)(2)(i) and (ii), 

because this would subject the child to 

two different identification models. We 

agree that failing a State assessment 

alone is not sufficient to determine 

whether a child has an SLD. However, 

failing a State assessment may be one 

factor in an evaluation considered by 

the eligibility group. As required in 

§ 300.304(b)(1), consistent with section 

614(b)(2)(A) of the Act, the evaluation 

must use a variety of assessment tools 

and strategies to gather relevant 

information about the child. Further, 

§ 300.304(b)(2), consistent with section 

614(b)(2)(B) of the Act, is clear that 

determining eligibility for special 

education and related services cannot be 

based on any single measure or 

assessment as the sole criterion for 

determining whether a child is a child 

with a disability. 

We agree that § 300.309(a)(2)(ii) could 

be stated more clearly and will rewrite 

it to state that the eligibility group can 

determine that a child has an SLD if the 

child meets the criteria in 

§ 300.309(a)(1) and exhibits a pattern of 

strengths and weaknesses in 

performance, achievement, or both, 

relative to age and State-approved 

grade-level standards, or intellectual 

development, that is determined by the 

group to be relevant to the identification 

of an SLD. 

Changes: We have changed 

§ 300.309(a)(2)(ii) for clarity. 


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Comment: Several commenters 

requested a definition of ‘‘Stateapproved results.’’ One commenter 

stated that the language was extremely 

confusing and that ‘‘State-approved 

results’’ could be interpreted to mean 

approved results that are equivalent to 

proficiency on State assessments under 

the ESEA, and this could lead to 

eligibility determinations for a very 

large group of older children with poor 

reading performance for whom it would 

be nearly impossible to make sufficient 

progress to become proficient readers. 

This commenter recommended 

changing the language to refer to a 

child’s failure to achieve a rate of 

learning to make sufficient progress 

based on ‘‘State-defined criteria.’’

Another commenter recommended 

substituting ‘‘State achievement 

standards’’ for ‘‘State approved results.’’

Discussion: The intention is to refer to 

State assessments approved under the 

ESEA. We have changed ‘‘Stateapproved results’’ to ‘‘State-approved 

grade-level standards.’’ We believe this 

change adequately addresses the 

commenters concerns. 

Changes: We have removed ‘‘Stateapproved results’’ and inserted in its 

place ‘‘State-approved grade-level 

standards’’ in § 300.309 and § 300.311. 

Comment: One commenter stated that 

including ‘‘State-approved results’’ in 

§ 300.309(a)(2)(i) means that there is no 

Federal definition of SLD. 

Discussion: States must develop 

criteria for determining whether a child 

has an SLD that are consistent with the 

Federal requirements in §§ 300.307 

through 300.311 and the definition of 

SLD in § 300.8(c)(10). 

Changes: None. 

Comment: A few commenters stated 

that using the criteria in § 300.309(a)(2), 

a child could meet State standards and 

still be identified as a child with an 

SLD. 

Discussion: We agree with the 

commenters. Accelerated growth 

toward, and mastery of, State-approved 

grade-level standards are goals of 

special education. Furthermore, as 

stated in § 300.101, the fact that a child 

is advancing from grade to grade does 

not make a child with a disability 

ineligible for special education and 

related services. However, consistent 

with § 300.8, the group making the 

eligibility determination must conclude 

both that the child has an SLD and, that, 

because of that disability, the child 

needs special education and related 

services. 

Changes: None. 

Comment: Many commenters 

requested more detail and specific 

guidelines on RTI models, such as 

information on who initiates the RTI 

process and who should be involved in 

the process; how one ensures there is a 

strong leader for the RTI process; the 

skills needed to implement RTI models; 

the role of the general education 

teacher; how to determine that a child 

is not responsive to instruction, 

particularly a child with cultural and 

linguistic differences; the number of 

different types of interventions to be 

tried; the responsibility for monitoring 

progress; the measurement of treatment 

integrity; and ways to document 

progress. One commenter stated that it 

is imperative that the regulations allow 

the flexibility necessary to 

accommodate the array of RTI models 

already in use. 

Several commenters requested that 

the Department define and set a 

standard for responsiveness that calls 

for demonstrated progress and 

improvement in the rate of learning, to 

indicate that a child can function in the 

classroom. Several commenters stated 

that there would be a dramatic increase 

in the number of children identified 

with an SLD without a clearly defined 

system in place. 

Discussion: There are many RTI 

models and the regulations are written 

to accommodate the many different 

models that are currently in use. The 

Department does not mandate or 

endorse any particular model. Rather, 

the regulations provide States with the 

flexibility to adopt criteria that best 

meet local needs. Language that is more 

specific or prescriptive would not be 

appropriate. For example, while we 

recognize that rate of learning is often a 

key variable in assessing a child’s 

response to intervention, it would not 

be appropriate for the regulations to set 

a standard for responsiveness or 

improvement in the rate of learning. As 

we discussed earlier in this section, we 

do not believe these regulations will 

result in significant increases in the 

number of children identified with SLD. 

Changes: None. 

Comment: One commenter stated that, 

without additional clarity, eligibility 

criteria will vary substantially among 

States and that States will have 

definitions that are suited to their 

individual preferences, rather than a 

universal sense of what constitutes 

eligibility under SLD based on the 

research and national standards of 

professional practice. 

Discussion: State eligibility criteria 

must meet the requirements in 

§§ 300.307 through 300.111 and LEAs 

must use these State-adopted criteria. 

We believe that, although these 

provisions allow States some flexibility 

in how children with SLD are 

identified, the requirements in these 

provisions will ensure that SLD criteria 

do not vary substantially across States. 

Changes: None. 

Comment: One commenter stated that, 

without more clarity in the 

requirements for RTI models, there 

would be an increase in the number of 

eligibility disputes between parents and 

school districts. 

Discussion: We do not believe more 

clarity in the requirements for RTI 

models is necessary. States can avoid 

disputes over eligibility determinations 

by developing clear criteria, consistent 

with the regulatory parameters, and 

providing staff with the necessary 

guidance and support to implement the 

criteria. 

Changes: None. 

Comment: One commenter urged the 

Department to encourage States to 

convene a group of education, 

disability, and parent stakeholders to 

discuss and design a model approach to 

early identification of children with 

SLD. 

Discussion: The Department agrees 

that it is important to identify children 

with SLD early and to provide the 

necessary instruction and supports to 

avoid referrals to special education. The 

extent to which States involve other 

interested parties (e.g., disability groups, 

parent groups) in the design or 

development of such a system is a 

decision that should be made by each 

State. 

Changes: None. 

Comment: A few commenters stated 

that professional development 

requirements to implement RTI models 

should be incorporated into the 

regulations so RTI models are not 

haphazardly implemented. One 

commenter stated that before RTI can be 

used systematically as part of the 

special education identification process, 

school districts must have 

administrative support at all levels, 

ongoing professional development for 

all staff, and coordination with 

institutions of higher education. Several 

commenters recommended encouraging 

States to develop efficient, collaborative 

evaluation systems. One commenter 

recommended requiring regular 

education teachers to address the needs 

of children with different learning 

styles, identify early and appropriate 

interventions for children with 

behavioral challenges, and understand 

and use data and assessments to 

improve classroom practices and 

learning. 

Discussion: We agree that 

administrative support, professional 

development, and coordination with 

teacher training programs would be 


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helpful in the effective implementation 

of RTI models. We also agree that 

efficient and collaborative evaluation 

systems should be developed, and that 

all teachers, including regular education 

teachers, should be trained to address 

the needs of children with different 

learning styles, identify early and 

appropriate interventions for children 

with behavioral challenges, and 

understand and use data and 

assessments to improve classroom 

practices and learning. However, 

professional development requirements 

are a State responsibility, consistent 

with § 300.156 and section 612(a)(14) of 

the Act, and it would be inappropriate 

for the Department to include specific 

professional development requirements 

in these regulations. 

Changes: None. 

Comment: One commenter stated that 

if a State prohibits the use of a 

discrepancy model, there would not be 

sufficient time or funds necessary to 

effectively train staff. Several 

commenters asked that there be a 

transition period so that personnel can 

be adequately trained in RTI or other 

forms of assessment and observation. 

Discussion: It is not necessary for 

these regulations to require a transition 

period for implementing RTI models, 

particularly because there are many 

schools and districts currently 

implementing RTI models. Under the 

requirements in section 614(b)(6) of the 

Act, which took effect July 1, 2005, 

States should have developed 

mechanisms to permit LEAs to use RTI 

models. States may need to make 

adjustments based on these final 

regulations. Nothing in these regulations 

requires an LEA to drop current 

practices in favor of a new model with 

no transition. Obviously, a plan would 

need to be developed when changing to 

an RTI model, including strategies for 

implementation and professional 

development. 

Changes: None. 

Comment: Many commenters stated 

that the use of RTI models would be 

costly, requiring massive staff training 

and resources. Many commenters 

recommended ways in which the 

Department could support States in 

improving identification and 

interventions for children with SLD. 

Commenters’ recommendations 

included the following: long-term, 

Statewide pilot studies on assessments 

and interventions for children with 

SLD; methods to increase the use of RTI; 

guidance on establishing appropriate 

timelines for instructional interventions; 

and information on new scientifically 

based approaches to identifying 

children with SLD. 

Discussion: The Department 

recognizes the need for technical 

assistance and training to implement 

RTI models and is directing technical 

assistance funds under Part D of the Act, 

administered by the Department’s Office 

of Special Education Programs (OSEP), 

toward this effort. OSEP plans to 

develop and disseminate an RTI 

resource kit and devote additional 

resources to technical assistance 

providers to assist States in 

implementing RTI models. OSEP will 

also continue to identify and develop 

model RTI implementation sites and 

evaluate SLD identification models in 

math and reading. In addition, the 

Comprehensive Center on Instruction, 

jointly funded by OSEP and the Office 

of Elementary and Secondary Education 

(OESE), will provide technical 

assistance to States on RTI 

implementation. 

Changes: None. 

Comment: Many commenters 

supported examining the pattern of 

strengths and weaknesses in 

determining whether a child is 

considered to have an SLD. A number 

of commenters stated that it is important 

that groups use a process to determine 

whether a child responds to scientific, 

research-based interventions, as well as 

consider relevant, empirically validated 

patterns of strengths and weaknesses in 

achievement, performance, or both, 

relative to intellectual development. 

One commenter stated that ‘‘pattern of 

strengths and weaknesses in 

performance’’ in § 300.309(a)(2)(ii) is 

insufficiently defined and without a 

clearer definition of ‘‘pattern,’’ schools 

will continue the wait-to-fail model. 

One commenter recommended 

clarifying the meaning of ‘‘weakness,’’

stating that weakness does not mean 

failure, and that there may be specific 

actions that could address weaknesses 

in performance that would result in 

failure if left alone. 

Discussion: Patterns of strengths and 

weaknesses commonly refer to the 

examination of profiles across different 

tests used historically in the 

identification of children with SLD. We 

believe that the meaning of ‘‘pattern of 

strengths and weaknesses’’ is clear and 

does not need to be clarified in these 

regulations. 

Changes: None. 

Comment: Some commenters stated 

that using a pattern of strengths and 

weaknesses in a child’s performance to 

identify a child with an SLD could be 

misinterpreted to identify children, 

other than children with disabilities, 

who are underperforming due to 

cultural factors, environmental or 

economic disadvantage, or low effort. 

Discussion: Section 300.309(a)(3) is 

clear that children should not be 

identified with SLD if the 

underachievement is primarily the 

result of a visual, hearing, or motor 

disability; mental retardation; emotional 

disturbance; cultural factors; or 

environmental or economic 

disadvantage. The eligibility group 

makes the determination after the 

evaluation of the child is completed. 

Therefore, we believe that there is 

minimal risk that a child who is 

underachieving due to these factors will 

be identified as having an SLD. 

Changes: None. 

Comment: Some commenters 

recommended using ‘‘cognitive ability’’

in place of ‘‘intellectual development’’

because ‘‘intellectual development’’

could be narrowly interpreted to mean 

performance on an IQ test. One 

commenter stated that the term 

‘‘cognitive ability’’ is preferable because 

it reflects the fundamental concepts 

underlying SLD and can be assessed 

with a variety of appropriate assessment 

tools. A few commenters stated that the 

reference to identifying a child’s pattern 

of strengths and weaknesses that are not 

related to intellectual development 

should be removed because a cognitive 

assessment is critical and should always 

be used to make a determination under 

the category of SLD. 

Discussion: We believe the term 

‘‘intellectual development’’ is the 

appropriate reference in this provision. 

Section 300.309(a)(2)(ii) permits the 

assessment of patterns of strengths and 

weakness in performance, including 

performance on assessments of 

cognitive ability. As stated previously, 

‘‘intellectual development’’ is included 

as one of three methods of comparison, 

along with age and State-approved 

grade-level standards. The term 

‘‘cognitive’’ is not the appropriate 

reference to performance because 

cognitive variation is not a reliable 

marker of SLD, and is not related to 

intervention. 

Changes: None. 

Comment: One commenter reviewed 

the list of factors in § 300.309(a)(3) that 

must be ruled out as primary reasons for 

a child’s performance and asked 

whether children with other health 

impairments (OHI), traumatic brain 

injury (TBI), or speech impairments 

would overlap with the SLD definition. 

Several commenters noted that many 

children with hearing, visual, or motor 

disabilities; mental retardation; or 

emotional disturbances (ED) also have 

concomitant learning disabilities that go 

unidentified, and that these children 

end up with lower academic and 

functional achievement levels than they 


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should because an important 

contributing factor to their learning 

problems has not been addressed. 

Several commenters recommended 

adding language to the regulations 

stating that a child with a disability 

other than an SLD may also be 

identified with an SLD. 

Discussion: Children with one of the 

disabilities in § 300.8 should be 

identified as a child with a disability 

using the category that is most 

appropriate for the child. Some children 

may be identified under other disability 

categories, such as OHI, TBI, ED, or 

speech impairment, and may also have 

low achievement and even meet SLD 

criteria. Services must meet the child’s 

needs and cannot be determined by the 

child’s eligibility category. We believe it 

is unnecessary to add language 

regarding SLD as a concomitant 

disability. 

Changes: None. 

Comment: One commenter asked 

what kind of assessment identifies 

culture as a primary cause of academic 

performance deficits and recommended 

removing the requirement in 

§ 300.309(a)(3)(iv) unless there are 

objective methods to determine whether 

a child’s low performance is a result of 

cultural factors. 

Discussion: The identification of the 

effect of cultural factors on a child’s 

performance is a judgment made by the 

eligibility group based on multiple 

sources of information, including the 

home environment, language 

proficiency, and other contextual factors 

gathered in the evaluation. The 

Department believes that the 

identification of children with SLD will 

improve with models based on 

systematic assessments of a child’s 

response to appropriate instruction, the 

results of which are one part of the 

information reviewed during the 

evaluation process to determine 

eligibility for special education and 

related services. States and public 

agencies must follow the evaluation 

procedures in §§ 300.304 and 300.305 

and section 614(b) of the Act, including 

using assessments and other evaluation 

materials that do not discriminate on a 

racial or cultural basis, consistent with 

§ 300.304(c)(1)(i) and section 

614(b)(3)(A)(i) of the Act. 

Changes: None. 

Comment: Many commenters 

recommended that limited English 

proficiency be among the factors that 

the eligibility group must rule out as a 

primary factor affecting a child’s 

performance. 

Discussion: Section 300.306(b)(1)(iii), 

consistent with section 614(b)(5)(C) of 

the Act, is clear that a child must not 

be identified as a child with a disability 

if the determinant factor for that 

determination is limited English 

proficiency. However, we agree that it is 

important to re-emphasize this 

requirement in § 300.309 and will add 

this to the list of factors that the 

eligibility group must rule out as a 

primary factor affecting a child’s 

performance. 

Changes: We have added a new 

paragraph (vi) to § 300.309(a)(3) to 

include ‘‘limited English proficiency’’ in 

the list of factors that must be ruled out 

as a primary factor affecting a child’s 

performance before determining that a 

child is eligible for special education 

services under the category of SLD. 

Comment: Numerous commenters 

supported the requirement in 

§ 300.309(b)(1) for data demonstrating 

that a child suspected of having an SLD 

has been provided with high-quality, 

research-based instruction in regular 

education settings delivered by 

qualified personnel. Several 

commenters stated that this requirement 

should apply to all children and asked 

why this requirement is confined to 

only children suspected of having SLD. 

One commenter stated that if schools 

would use proven best practices, there 

would be fewer children in need of 

special education in the later grades. 

However, one commenter stated that it 

is incorrect to assume that any child 

who is not responding to interventions 

must have an SLD when there are a 

myriad of reasons why children may not 

be responding to instruction. One 

commenter recommended adding ‘‘to 

the extent practicable’’ to acknowledge 

that scientific research-based 

interventions are not available in many 

areas, particularly in mathematics. One 

commenter recommended decreasing 

the emphasis on research-based 

instruction. 

Discussion: Sections 300.306(b)(1)(i) 

and (ii), consistent with section 

614(b)(5)(A) and (B) of the Act, 

specifically state that children should 

not be identified for special education if 

the achievement problem is due to lack 

of appropriate instruction in reading or 

mathematics. This issue is especially 

relevant to SLD because lack of 

appropriate instruction in these areas 

most commonly leads to identifying a 

child as having an SLD. All children 

should be provided with appropriate 

instruction provided by qualified 

personnel. This is an important tenet of 

the Act and the ESEA. Both the Act and 

the ESEA focus on doing what works as 

evidenced by scientific research and 

providing children with appropriate 

instruction delivered by qualified 

teachers. 

Changes: None. 

Comment: We received a number of 

comments concerning the requirement 

for high-quality, research-based 

instruction provided by qualified 

personnel. One commenter stated that it 

would be difficult for rural school 

districts to meet this requirement 

because of staffing requirements in the 

regular education setting. Several 

commenters stated that the requirement 

for high-quality, research-based 

instruction exceeds statutory authority 

and should be removed, because it 

provides a basis for challenging any 

determination under the category of 

SLD. One commenter asked for 

clarification regarding the legal basis for 

providing high-quality, research-based 

instruction if the child is not 

determined eligible for special 

education. Another commenter stated 

that attorneys will read § 300.309(b) as 

providing a legal entitlement to ESEA, 

research-based instruction and databased documentation for every child 

considered for eligibility under the 

category of SLD, and that when this 

standard is not met, will bring the 

matter to a due process hearing and 

request compensatory education. 

Numerous commenters requested a 

definition of high-quality, researchbased instruction. One commenter 

asked who validates that the research 

meets the highest quality. Another 

commenter asked that the regulations 

specify how much research a program 

must undergo before it is deemed to be 

research-based. One commenter stated 

that the Department must address how 

States determine whether a child has 

been provided with a high-quality, 

research-based instructional program; 

whether appropriate classroom 

interventions were delivered; and 

whether an intervention has been 

successful. One commenter stated that 

the absence of additional clarification 

would result in great disparity in States’

policies and lead to inappropriate 

interventions and procedures. One 

commenter recommended that there be 

evidence that the instruction is effective 

for the child’s age and cultural 

background. 

A few commenters recommended that 

children who are not progressing 

because they have not received 

research-based instruction by a qualified 

teacher should immediately receive 

intensive, high-quality, research-based 

instruction by qualified personnel. One 

commenter expressed concern that 

§ 300.309(b) restricts referrals to only 

those children who have received highquality, research-based instruction from 

qualified teachers. One commenter 

stated that a child’s eligibility to receive 


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special education services under the 

category of SLD appears to be 

contingent on the LEA’s commitment to 

providing effective regular education 

services by qualified staff, and, as such, 

a child with an SLD is held hostage by 

a system that is not working. One 

commenter asked whether the eligibility 

group can make a determination that a 

child has an SLD in the absence of a 

child’s response to high-quality 

research-based instruction. 

Several commenters stated that the 

lack of research-based instruction by a 

qualified teacher should not limit a 

child’s eligibility for services. Another 

commenter recommended clarifying 

that a child should not be found 

ineligible under the category of SLD 

because the child either did not respond 

to a scientific, research-based 

intervention during a truncated 

evaluation, or because the child was not 

provided an opportunity to respond to 

such an intervention. 

Discussion: Watering down a focus on 

appropriate instruction for any children, 

including children with disabilities or 

children living in rural areas would be 

counter to both the Act and the ESEA. 

However, we agree that the requirement 

for high quality, research-based 

instruction exceeds statutory authority. 

The Act indicates that children should 

not be eligible for special education if 

the low achievement is due to lack of 

appropriate instruction in reading or 

math. Therefore, we will change the 

regulations to require that the eligibility 

group consider evidence that the child 

was provided appropriate instruction 

and clarify that this means evidence that 

lack of appropriate instruction was the 

source of underachievement. 

The eligibility group should not 

identify a child as eligible for special 

education services if the child’s low 

achievement is the result of lack of 

appropriate instruction in reading or 

math. Eligibility is contingent on the 

ability of the LEA to provide 

appropriate instruction. Determining the 

basis of low achievement when a child 

has been given appropriate instruction 

is the responsibility of the eligibility 

group. 

Whether a child has received 

‘‘appropriate instruction’’ is 

appropriately left to State and local 

officials to determine. Schools should 

have current, data-based evidence to 

indicate whether a child responds to 

appropriate instruction before 

determining that a child is a child with 

a disability. Children should not be 

identified as having a disability before 

concluding that their performance 

deficits are not the result of a lack of 

appropriate instruction. Parents of 

children with disabilities have due 

process rights that allow them to file a 

complaint on any matter that relates to 

the identification, evaluation, and 

educational placement of their child 

with a disability, and the provision of 

FAPE to their child. 

Changes: We have revised the 

introductory material in § 300.309(b) to 

emphasize that the purpose of the 

review is to rule out a lack of 

appropriate instruction in reading or 

math as the reason for a child’s 

underachievement. We have also 

revised § 300.309(b)(1) to refer to 

appropriate instruction rather than highquality, research-based instruction, and 

removed the cross reference to the 

ESEA. 

Comment: One commenter stated that 

many reading programs claim to be 

research-based, but lack credible 

evidence of the program’s effectiveness. 

Discussion: Programs that claim to be 

research-based, but which are not based 

on sound scientific research, should not 

be considered research-based 

instruction by a State or LEA. 

Changes: None. 

Comment: One commenter asked 

what criteria should be used to 

determine that the child was provided 

with appropriate high quality, researchbased instruction, especially when the 

child has been home schooled or 

attends a private school. One 

commenter asked about children 

referred for evaluation from charter 

schools and expressed concern that 

these children would not be eligible 

under the category of SLD because they 

did not have instruction delivered by 

qualified personnel. 

Discussion: As part of the evaluation, 

the eligibility group must consider 

whether the child received appropriate 

instruction from qualified personnel. 

For children who attend private schools 

or charter schools or who are homeschooled, it may be necessary to obtain 

information from parents and teachers 

about the curricula used and the child’s 

progress with various teaching 

strategies. The eligibility group also may 

need to use information from current 

classroom-based assessments or 

classroom observations. On the basis of 

the available information, the eligibility 

group may identify other information 

that is needed to determine whether the 

child’s low achievement is due to a 

disability, and not primarily the result 

of lack of appropriate instruction. The 

requirements for special education 

eligibility or the expectations for the 

quality of teachers or instructional 

programs are not affected, and do not 

differ, by the location or venue of a 

child’s instruction. 

Changes: None. 

Comment: Many commenters 

requested a definition of ‘‘qualified 

personnel.’’ One commenter stated that 

teachers should be trained to deliver the 

program of instruction and simply 

saying they should be highly qualified 

is not sufficient. One commenter 

recommended removing the phrase 

‘‘qualified personnel’’ in § 300.309(b)(1), 

because it is likely to be interpreted to 

mean that instruction must be delivered 

by highly qualified teachers, as defined 

in the ESEA. 

Discussion: Section 300.156 and 

section 614(a)(14) of the Act are clear 

that each State is responsible for 

establishing and maintaining personnel 

qualifications to ensure that personnel 

are appropriately and adequately 

prepared and trained, including that 

those personnel have the content 

knowledge and skills to serve children 

with disabilities. Consistent with 

§ 300.18 and section 602(10) of the Act, 

a public school teacher, including a 

special education teacher, who teaches 

core academic subjects must meet the 

highly qualified teacher standards under 

the Act. The term that is used in 

§ 300.309(b)(1), ‘‘qualified personnel,’’

does not, and should not be interpreted 

to, require that private school teachers 

be ‘‘highly qualified’’ to deliver the 

instruction discussed in § 300.309(b)(1). 

Changes: None. 

Comment: One commenter asked 

whether the regulations require an LEA 

to provide high-quality, research-based 

instruction in the regular education 

setting prior to, or as part of, the referral 

process before the group can determine 

whether a child has an SLD. One 

commenter recommended that researchbased interventions occur prior to a 

referral to special education. Several 

commenters stated that an evaluation to 

assess all areas of suspected disability 

should follow an assessment of a child’s 

response to instruction. 

Discussion: What is important is that 

the group making the eligibility decision 

has the information that it needs to rule 

out that the child’s underachievement is 

a result of a lack of appropriate 

instruction. That could include 

evidence that the child was provided 

appropriate instruction either before, or 

as a part of, the referral process. 

Evidence of appropriate instruction, 

including instruction delivered in an 

RTI model, is not a substitute for a 

complete assessment of all of the areas 

of suspected need. As discussed earlier 

in this section, we have revised 

§ 300.309(b) to make this clear. 

Changes: As discussed previously, we 

have revised § 300.309(b). 


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Comment: One commenter 

recommended that data be maintained 

on the number of children identified 

with SLD. 

Discussion: Data are maintained on 

the number of children identified with 

SLD. Section 618 of the Act requires 

States to report annually to the 

Department the number and percentage 

of children with disabilities by 

disability category, in addition to race, 

ethnicity, limited English proficiency 

status, and gender. 

Changes: None. 

Comment: Many commenters 

recommended reinforcing the role of 

parents in determining whether a child 

has an SLD by adding language to 

§ 300.309(b) stating that the child’s 

parents and the group of qualified 

professionals must consider whether the 

child is a child with a disability. 

Discussion: Section 300.306(a)(1), 

consistent with section 614(b)(4)(A) of 

the Act, is clear that the parent of the 

child is included in eligibility 

determinations. Section 300.309(a) 

cross-references the group in § 300.306, 

which includes the parent. We believe 

this adequately addresses the role of the 

parent and that no changes are 

necessary. 

Changes: None. 

Comment: One commenter requested 

a definition of ‘‘data-based 

documentation.’’

Discussion: Data-based 

documentation refers to an objective 

and systematic process of documenting 

a child’s progress. This type of 

assessment is a feature of strong 

instruction in reading and math and is 

consistent with § 300.306(b)(1)(i) and 

(ii) and section 614(b)(5)(A) and (B) of 

the Act, that children cannot be 

identified for special education if an 

achievement problem is due to lack of 

appropriate instruction in reading or 

math. 

Changes: None. 

Comment: Numerous commenters 

supported requiring data-based 

documentation of repeated assessments 

of achievement at reasonable intervals 

to be provided to parents during the 

time the child is receiving instruction. 

One commenter emphasized the 

importance of documenting that the 

interventions used are data based and 

implemented with fidelity. One 

commenter stated that data-based 

documentation should be provided to 

all parents of children with disabilities, 

not just children suspected of having 

SLD. However, several commenters 

stated that requiring data-based 

documentation of repeated assessments 

is an additional bureaucratic 

requirement that is overly prescriptive 

and costly, and will require additional 

paperwork. 

Discussion: We believe that one of the 

most important aspects of good teaching 

is the ability to determine when a child 

is learning and then to tailor instruction 

to meet the child’s individual needs. 

Effective teachers use data to make 

informed decisions about the 

effectiveness of a particular 

instructional strategy or program. A 

critical hallmark of appropriate 

instruction is that data documenting a 

child’s progress are systematically 

collected and analyzed and that parents 

are kept informed of the child’s 

progress. Assessments of a child’s 

progress are not bureaucratic, but an 

essential component of good 

instruction. 

Changes: None. 

Comment: Several commenters 

requested definitions for ‘‘repeated 

assessments’’ and ‘‘reasonable 

intervals.’’

Discussion: Instructional models vary 

in terms of the frequency and number of 

repeated assessments that are required 

to determine a child’s progress. It would 

be inappropriate for the Department to 

stipulate requirements in Federal 

regulations that would make it difficult 

for districts and States to implement 

instructional models they determine 

appropriate to their specific 

jurisdictions. 

Changes: None. 

Comment: One commenter 

recommended removing the 

requirement for data-based 

documentation of repeated assessments 

of achievement at reasonable intervals 

because it would make it impossible to 

determine eligibility if a child is new to 

a school district and district personnel 

do not have a child’s records with such 

information. 

Discussion: We do not believe 

removing the requirement is the 

appropriate solution to the commenter’s 

problem. States will need to adopt 

criteria for determining how to provide 

such data for children new to a district. 

Children should not be identified as 

having SLD if there is no evidence of 

appropriate instruction. 

Changes: None. 

Comment: One commenter expressed 

concern that § 300.309(b)(2), requiring 

parents to be informed of their child’s 

repeated failure to perform well on 

assessments, could be interpreted to 

refer to the assessments under the ESEA 

and that this would mean that a child 

must perform poorly over a period of 

several school years to be considered for 

eligibility under the category of SLD. 

Discussion: While the results of a 

child’s performance on assessments 

under the ESEA may be included as 

data documenting a child’s progress, 

relying exclusively on data from 

Statewide assessments under the ESEA 

would likely not meet the requirement 

for repeated assessments at ‘‘reasonable 

intervals,’’ as required by these 

regulations. It is possible that a State 

could develop other assessments tied to 

the State approved test that would meet 

these requirements. 

Changes: None. 

Comment: Numerous commenters 

asked how long an intervention should 

continue before determining a child has 

not made adequate progress and a 

referral for an evaluation to determine 

eligibility for special education is made. 

Several commenters recommended that 

if a child is not making progress within 

45 days, an evaluation should take 

place. Other commenters recommended 

a time limit of 90 days. One commenter 

recommended the regulations include a 

range of active intervention days, not 

just a waiting period, within which the 

IEP Team expects to notice a change, 

and recommended between 45–75 

school days. One commenter suggested 

6–10 weeks as an appropriate period of 

time. 

A few commenters recommended 

requiring States to establish reasonable 

time limits for decision making. Several 

commenters recommended requiring the 

IEP Team and the parents to agree on an 

appropriate period of time. 

Several commenters stated that unless 

a timeline is specified in the 

regulations, there would be different 

standards occurring throughout the 

country. A few commenters expressed 

concern that if time limits were not 

clarified, school districts and parents 

would interpret the timelines 

differently, which would result in 

contentious situations and litigation. 

One commenter stated that a parent 

could sue for compensatory services if, 

after requesting an evaluation, the LEA 

requires an assessment of how the child 

responds to high quality research-based 

instruction. 

Several commenters stated that the 

lack of a specific timeline means that an 

evaluation could be indefinitely delayed 

and children denied services. Several 

commenters recommended adding 

language to the regulations to ensure 

that RTI models could not be used to 

delay an evaluation of a child suspected 

of having a disability, access to special 

education and related services, or 

protections under the Act. 

In addition to requesting a definition 

of an ‘‘appropriate period of time,’’ a 

few commenters requested a definition 

of ‘‘adequate progress’’ and 

recommended adding language to 


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require States to define ‘‘adequate 

progress.’’ One commenter stated that a 

child’s rate of learning needs to be 

examined carefully. One commenter 

offered a definition of a 

‘‘developmentally appropriate rate’’ as 

the time or the number of repetitions 

required to have at least 85 percent of 

children at the same age or grade level 

acquire and retain the particular skill or 

academic levels, as established by 

research or by experience with the 

delivery of that curriculum or program. 

Discussion: Instructional models vary 

in terms of the length of time required 

for the intervention to have the intended 

effect on a child’s progress. It would not 

be appropriate for the Department to 

establish timelines or the other 

requirements proposed by the 

commenters in Federal regulations, 

because doing so would make it difficult 

for LEAs to implement models specific 

to their local school districts. These 

decisions are best left to State and local 

professionals who have knowledge of 

the instructional methods used in their 

schools. 

The Department believes that good 

instruction depends on repeated 

assessments of a child’s progress. This 

allows teachers to make informed 

decisions about the need to change their 

instruction to meet the needs of the 

child, and also provides parents with 

information about their child’s progress 

so that they can support instruction and 

learning at home. Parents should be 

informed if there are concerns about 

their child’s progress and should be 

aware of the strategies being used to 

improve and monitor their child’s 

progress. 

We understand the commenters’

requests for more specific details on 

timelines and measures of adequate 

progress. However, as noted above, 

these decisions are best left to 

professionals who have knowledge 

about the instructional models and 

strategies used in their States and 

districts. 

We also understand the commenters’

concerns that the requirements in 

§ 300.309(b) may result in untimely 

evaluations or services and that parents 

must be fully informed about the 

school’s concerns about their child’s 

progress and interventions provided by 

the school. Therefore, we will combine 

proposed § 300.309(c) and (d), and 

revise the new § 300.309(c) to ensure 

that the public agency promptly 

requests parental consent to evaluate a 

child suspected of having an SLD who 

has not made adequate progress when 

provided with appropriate instruction, 

which could include instruction in an 

RTI model, and whenever a child is 

referred for an evaluation. We will also 

add a new § 300.311(a)(7)(ii) to ensure 

that the parents of a child suspected of 

having an SLD who has participated in 

a process that evaluates the child’s 

response to scientific, research-based 

intervention, are notified about the 

State’s policies regarding collection of 

child performance data and the general 

education services that will be 

provided; strategies to increase their 

child’s rate of learning; and their right 

to request an evaluation at any time. If 

parents request an evaluation and 

provide consent, the timeframe for 

evaluation begins and the information 

required in § 300.309(b) must be 

collected (if it does not already exist) 

before the end of that period. 

Changes: We have combined 

proposed § 300.309(c) and (d), and 

revised the new paragraph (c) in 

§ 300.309 to require the public agency to 

promptly request parental consent to 

evaluate a child suspected of having an 

SLD who has not made adequate 

progress when provided appropriate 

instruction, and whenever a child is 

referred for an evaluation. We also have 

added a new § 300.311(a)(7)(ii) to 

require that the eligibility report include 

evidence that when a child has 

participated in an RTI process, the 

parents were informed of State policies 

regarding child performance data that 

would be collected and the general 

education services that would be 

provided; strategies to support the 

child’s rate of learning; and a parent’s 

right to request an evaluation at any 

time. 

Comment: Many commenters 

recommended clarifying when parental 

consent for evaluation should be 

obtained and when the 60-day timeline 

to complete an evaluation begins. 

Several commenters recommended 

ensuring that the 60-day timeline for 

evaluation applies regardless of the 

evaluation model used. One commenter 

asked how scientific research-based 

interventions could be completed 

within a 60-day evaluation timeline. 

One commenter stated that 60 days may 

not be enough time to appropriately 

determine whether a child responds to 

instruction, particularly for children 

who have not had exposure to such 

interventions (e.g., children entering the 

public school system for the first time). 

One commenter asked if the intent of 

the regulations is to allow a 

determination that a child has an SLD 

to take place outside the timeline for an 

initial evaluation, and stated that 

without clarification of the intersection 

between an RTI process (that may, by 

definition, require additional time 

beyond that which is permitted for an 

evaluation) and the required period of 

time for an initial assessment, the 

regulations would cause confusion and 

result in improper evaluations and 

eligibility determinations. 

Several commenters recommended 

that the regulations address the need for 

an extension of the timeline and allow 

States to set an alternative timeline 

without a written agreement. Several 

commenters requested adding a 

provision for an extended timeline, with 

parental consent, in exceptional 

circumstances. Several commenters 

stated that the language regarding an 

extension of timelines is confusing. 

Discussion: Section 300.309(c), as 

revised, clarifies that if a child has not 

made adequate progress after an 

appropriate period of time, a referral for 

an evaluation must be made. As 

required in § 300.301(c), the initial 

evaluation must be conducted within 60 

days of receiving consent for an 

evaluation (or if the State establishes a 

timeframe within which the evaluation 

must be completed, within that 

timeframe). Models based on RTI 

typically evaluate the child’s response 

to instruction prior to the onset of the 

60-day period, and generally do not 

require as long a time to complete an 

evaluation because of the amount of 

data already collected on the child’s 

achievement, including observation 

data. RTI models provide the data the 

group must consider on the child’s 

progress when provided with 

appropriate instruction by qualified 

professionals as part of the evaluation. 

Section 300.309(b)(1) requires that the 

eligibility group consider data on the 

child’s progress when provided with 

appropriate instruction by qualified 

professionals as part of this evaluation. 

These data, along with other relevant 

information, will assist the eligibility 

group in determining whether the 

child’s low achievement is attributable 

to a lack of appropriate instruction. As 

required in § 300.306(b)(1)(i) and (ii), 

consistent with section 614(b)(5)(A) and 

(B) of the Act, a child cannot be 

identified as a child with a disability if 

the determinant factor for that 

determination is lack of appropriate 

instruction in reading or math. 

Based on their review of the existing 

data, and input from the child’s parents, 

the eligibility group must decide, on a 

case-by-case basis, depending on the 

needs of the child and the information 

available regarding the child, what 

additional data, if any, are needed to 

determine whether the child is a child 

with a disability, and the educational 

needs of the child. If the eligibility 

group determines that additional data 

are needed and that these data cannot be 


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obtained within the 60-day timeframe 

(or the timeframe established by the 

State), new § 300.309(c) (proposed 

§ 300.309(d)) allows the extension of the 

timeframe with mutual written 

agreement of the child’s parent and the 

eligibility group. 

Changes: None. 

Comment: One commenter asked how 

the 60-day timeframe would be followed 

if the time extends over school breaks. 

Discussion: The 60-day timeframe 

refers to 60 calendar days and would 

include school breaks. 

Changes: None. 

Comment: Several commenters stated 

that the regulations appear to set up a 

separate process and procedure for the 

evaluation and identification of children 

with SLD, and then impose the 

timeframe and procedures that apply to 

the evaluation of all other disability 

categories. One commenter stated that 

the timeframe for evaluating children 

with SLD is less stringent than for other 

disability categories and is, therefore, 

discriminatory. 

Discussion: Although there are 

additional criteria and procedures for 

evaluating and identifying children 

suspected of having SLD, the group 

must also comply with the procedures 

and timelines that apply to all 

evaluations, including evaluations for 

SLD. Evaluation of children suspected 

of having SLD must follow the same 

procedures and timeframes required in 

§§ 300.301 through 300.306, in addition 

to those in §§ 300.307 through 300.311. 

Changes: None. 

Comment: One commenter stated that 

‘‘appropriate period of time’’ should be 

replaced with ‘‘reasonable period of 

time’’ because courts are accustomed to 

deciding what constitutes a reasonable 

timeframe in various evaluation 

contexts. 

Discussion: It is not necessary to 

change ‘‘appropriate period of time’’ to 

‘‘reasonable period of time,’’ because the 

terms here have similar meanings and 

are commonly understood to be 

synonymous. 

Changes: None. 

Comment: One commenter requested 

that the regulations clarify who should 

refer a child for an evaluation to 

determine eligibility for special 

education services. 

Discussion: Under § 300.301(b), and 

consistent with the requirements in 

§ 300.300 and section 614(a)(1)(D) of the 

Act, either a parent of a child or a public 

agency may initiate a request for an 

evaluation at any time to determine if 

the child is a child with a disability. We 

do not believe that further clarification 

is necessary. 

Changes: None. 

Comment: One commenter stated that 

a school district should retain its 

discretion not to evaluate a child subject 

to the parent’s right to contest the 

decision through due process 

procedures. 

Discussion: The commenter’s concern 

is already addressed in § 300.111, which 

provides that an LEA must identify, 

locate, and evaluate children who are in 

need of special education and related 

services. If an LEA refuses to evaluate a 

child, the LEA must provide prior 

written notice, consistent with § 300.503 

and section 615(b)(3) of the Act. The 

parent can challenge this decision 

through a due process hearing. 

Changes: None. 

Observation (§ 300.310) 

Comment: Many commenters 

recommended removing the observation 

requirements in § 300.310, stating that 

they are costly and overly prescriptive 

and have no statutory basis. One 

commenter stated that the requirements 

for determining eligibility under the 

category of SLD are so specific that the 

observation requirements are 

unnecessary. 

Discussion: The observation 

requirements for children suspected of 

having SLD have been in the regulations 

since before 1983. Important 

information can be obtained about a 

child through observation in the 

classroom, or for a child less than 

school age, in an environment 

appropriate for a child of that age. 

Objective observations are essential to 

assessing a child’s performance and 

should be a part of routine classroom 

instruction and are not costly or overly 

prescriptive. We believe the observation 

requirements are an important matter to 

regulate clearly. We will, therefore, 

change § 300.310(a) through § 300.310(c) 

to clearly state that the public agency 

must ensure appropriate observation 

and documentation of the child’s 

academic performance and behavior in 

the areas of difficulty to determine 

whether a child has an SLD. 

Changes: We have changed 

§ 300.310(a) through § 300.310(c) to 

clearly state the observation 

requirements in determining whether a 

child has an SLD. 

Comment: Several commenters 

supported requiring a member of the 

group to be trained in observation. 

Many commenters requested 

clarification regarding what it means to 

be trained in observation. One 

commenter stated that there are no 

established training protocols or 

uniform professional standards for 

conducting an observation. 

Discussion: We agree that the 

requirement for an individual to be 

trained in observation is unclear and 

should be removed. States are 

responsible for determining specific 

personnel qualification requirements, 

and, for the reasons stated under 

§ 300.308, States and LEAs should 

determine appropriate group 

membership. 

Changes: We have removed the 

phrase ‘‘trained in observation’’ from 

§ 300.310(a). 

Comment: Several commenters stated 

that the public agency should determine 

the most appropriate individual to 

conduct the observation. One 

commenter recommended specifying a 

reading specialist to conduct the 

observation when the child’s learning 

problems involve reading. Another 

commenter stated that the observer 

should not be limited to a member of 

the eligibility group. One commenter 

stated that it is not necessary to obtain 

parental consent for the observation. 

Discussion: The person conducting 

the observation should be a member of 

the eligibility group because 

information from the observation will be 

used in making the eligibility 

determination. If information is 

available from an observation conducted 

as part of routine classroom instruction 

that is important for the eligibility group 

to consider, the eligibility group should 

include the person who conducted that 

routine classroom. This will eliminate 

redundant observations and save time 

and resources. Parental consent is not 

required for observations conducted as 

part of routine classroom instruction 

and monitoring of the child’s 

performance before the child is referred 

for an evaluation. 

If an observation has not been 

conducted, or additional observation 

data are needed, the decision as to 

which person should conduct the 

observation is best left to members of 

the eligibility group, based on the type 

of information that is needed to make 

the eligibility determination and 

identify the child’s needs. Parental 

consent is required for observations 

conducted after the child is suspected of 

having a disability and is referred for an 

evaluation. We will revise § 300.310 to 

clarify the different ways in which 

observation data may be obtained and to 

clarify that parental consent is required 

for observations conducted after the 

child is suspected of having a disability 

and is referred for an evaluation. 

Changes: We have revised § 300.310 

to specify in paragraph (a) that the 

public agency must ensure that the 

child is observed in the child’s learning 

environment. A new § 300.310(b) has 


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been added to require the eligibility 

group to use the information obtained 

from the routine classroom observation 

or conduct a new observation and to 

require parental consent for 

observations conducted after the child is 

suspected of having a disability and is 

referred for an evaluation. Proposed 

§ 300.310(b) has been redesignated as 

new § 300.310(c). 

Comment: One commenter requested 

clarification regarding the definition of 

an ‘‘appropriate’’ environment in which 

to conduct the observation of a child 

who is less than school age, as well as 

guidance in determining what such an 

environment would be for children who 

are out of school. 

Discussion: The eligibility group is in 

the best position to determine the 

environment appropriate for a child 

who is less than school age or out of 

school. 

Changes: None. 

Comment: One commenter requested 

clear guidance about the working 

relationship between the special 

education teacher and the general 

education teacher in conducting an 

observation. 

Discussion: We decline to provide 

specific guidance on the working 

relationship between the special 

education teacher and the general 

education teacher in conducting an 

observation because this relationship 

will necessarily vary depending on how 

classrooms are structured and teacher 

responsibilities assigned. Such 

decisions are best made at the local 

level. Generally, we would expect that 

the child’s general education teacher 

would have data from routine classroom 

instruction and would work with the 

other members of the eligibility group to 

determine what additional data, if any, 

are needed to determine whether a child 

has an SLD. A special education teacher 

who is experienced in working with 

children with SLD, for example, might 

have suggestions on ways to structure a 

particular observation session to obtain 

any additional information that is 

needed, and may be able to assist the 

general education teacher in gathering 

the data. 

Changes: None. 

Comment: One commenter 

recommended requiring an observation 

for any child suspected of having a 

disability, not just those suspected of 

having an SLD. 

Discussion: Observation data will 

generally be a part of the existing data 

reviewed for any child suspected of 

having a disability. Section 

300.305(a)(1) requires the eligibility 

group for any child suspected of having 

a disability to review existing evaluation 

data, including classroom-based 

observations and observations by 

teachers and related services providers. 

We do not believe that requiring an 

observation of children suspected of 

other disabilities is necessary, however, 

as identification of those other 

disabilities is not always as dependent 

on classroom performance and behavior 

as is identification of children with 

SLD. 

Changes: None. 

Specific Documentation for the 

Eligibility Determination (Proposed 

Written Report) (§ 300.311) 

Comment: Several commenters 

supported the requirements for the 

written report, stating that they provide 

a useful framework for practitioners. 

However, several commenters stated 

that the requirements for the written 

report should be removed because they 

go beyond the requirements of the Act 

and impose additional procedural and 

paperwork burdens for school 

personnel. Several commenters stated 

that the report is much more detailed 

than the evaluation and eligibility report 

for children with other disabilities, and 

stated that this could discourage schools 

from evaluating children suspected of 

having SLD. 

Discussion: Section 614(b)(4)(B) of the 

Act requires the public agency to 

provide a copy of the evaluation report 

and the documentation of determination 

of eligibility to the parents for all 

children evaluated under the Act. 

Section 300.311 specifies the content for 

the evaluation report for children 

suspected of having SLD. States and 

LEAs have more discretion over the 

specific content of an evaluation report 

for children suspected of having a 

disability under the other disability 

categories. Therefore, whether the SLD 

evaluation report is more detailed or 

burdensome than other evaluation 

reports would depend on State and local 

requirements. We believe that the 

elements of the report specified in 

§ 300.311 provide important checks to 

prevent misidentification and ensure 

that children who actually have SLD are 

identified. 

Changes: None. 

Comment: Several commenters 

recommended that the written report 

include statements regarding the 

existence of a psychological processing 

disorder and the basis for making the 

determination; whether the child 

achieved commensurate with the child’s 

age and ability; whether the child 

achieved commensurate with the child’s 

age and intellectual development; 

whether the child achieved 

commensurate with the child’s peers; 

and whether there are strengths and 

weaknesses in performance or cognitive 

abilities in one or more of the areas in 

§ 300.309(a) that require special 

education and related services. 

Discussion: We decline to change the 

content of the written report in the 

manner recommended by the 

commenters because the statements that 

commenters recommended be included 

in the written report are inconsistent 

with the eligibility requirements for 

children with SLD in § 300.309. 

Changes: None. 

Comment: One commenter 

recommended including an assurance 

that the eligibility determination was 

made in accordance with 

§ 300.306(c)(1), regarding procedures for 

determining eligibility and placement, 

and § 300.8(c)(10), regarding the 

definition of specific learning disability. 

Discussion: Section 300.311(b) 

requires each member of the eligibility 

group to certify in writing whether the 

report reflects the particular member’s 

conclusion about whether the child has 

an SLD, and if it does not reflect his or 

her conclusion, submit a separate 

statement presenting his or her 

conclusions. There is no need for any 

additional assurances. 

Changes: None. 

Comment: One commenter stated that 

including ‘‘evaluation report’’ in the 

description of the written report is 

confusing because it is unclear whether 

the evaluation report is something 

additional to the written report. 

Discussion: The information required 

in the written report in § 300.311 is a 

part of the documentation of eligibility 

required in § 300.306(a)(2). Section 

300.306(b) and (c) lists the requirements 

for eligibility determinations for all 

children suspected of having a 

disability, including children suspected 

of having SLD. Section 300.311 provides 

specific elements that must be 

addressed in the report for children 

suspected of having SLD. Two separate 

reports are not necessary as long as the 

information in § 300.311 is included in 

the documentation of the eligibility 

determination in § 300.306(a)(2). We 

agree that this should be clarified. 

Therefore, we will change the heading 

for § 300.311 from ‘‘Written report’’ to 

‘‘Specific documentation for the 

eligibility determination’’ and will 

modify the language in § 300.311(a) 

accordingly. 

Changes: We have changed the 

heading for § 300.311 and modified 

§ 300.311(a) to clarify that the 

requirements in § 300.311 are in 

addition to the requirements for the 

documentation of the eligibility 


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determination required in 

§ 300.306(a)(2). 

Comment: Several commenters 

requested that the written report include 

the determination of the group 

concerning the effects of cultural 

factors, limited English proficiency, and 

environmental or economic 

disadvantage to be consistent with all 

the elements in § 300.309(a)(3). 

Discussion: We agree that it is 

important to emphasize the importance 

of considering such factors in 

determining eligibility under SLD and 

will add these factors in § 300.311(a). 

Changes: We have added a new 

paragraph (6) to § 300.311(a) to require 

the written report to include a statement 

on the effects of cultural factors, limited 

English proficiency, environmental, or 

economic disadvantage. 

Comment: Several commenters 

requested clarification of what happens 

if a group member disagrees with the 

report and agreement is never reached. 

Other commenters asked whether 

services are delayed pending a group 

consensus; whether the submission of a 

separate statement is synonymous with 

a veto for eligibility; whether it matters 

which group member submits a separate 

report; and whether each group member 

has equal standing. 

Discussion: The eligibility group 

should work toward consensus, but 

under § 300.306, the public agency has 

the ultimate responsibility to determine 

whether the child is a child with a 

disability. Parents and school personnel 

are encouraged to work together in 

making the eligibility determination. If 

the parent disagrees with the public 

agency’s determination, under 

§ 300.503, the public agency must 

provide the parent with prior written 

notice and the parent’s right to seek 

resolution of any disagreement through 

an impartial due process hearing, 

consistent with the requirements in 

§ 300.503 and section 615(b)(3) of the 

Act. 

Every effort should be made to resolve 

differences between parents and school 

staff through voluntary mediation or 

some other informal dispute resolution 

process. However, as stated in 

§ 300.506(b)(1)(ii) and section 

615(e)(2)(A)(ii) of the Act, mediation or 

other informal procedures may not be 

used to deny or delay a parent’s right to 

a due process hearing, or to deny any 

other rights afforded under Part B of the 

Act. 

Changes: None. 

Individualized Education Programs 

Definition of Individualized Education 

Program (§ 300.320) 

General (§ 300.320(a)) 

We received numerous comments 

requesting that we require the IEP to 

include additional content that is not in 

the Act. Under section 614(d)(1)(A)(ii)(I) 

of the Act, the Department cannot 

interpret section 614 of the Act to 

require public agencies to include 

additional information in a child’s IEP 

that is not explicitly required under the 

Act. Therefore, we generally have not 

included these comments in our 

analysis and discussion of § 300.320. 

Comment: One commenter requested 

that § 300.320 refer to a ‘‘student with 

a disability’’ instead of a ‘‘child with a 

disability.’’

Discussion: The words ‘‘child’’ and 

‘‘student’’ are used interchangeably 

throughout the Act. The regulations 

follow the statutory language whenever 

possible. In § 300.320, we used the term 

‘‘child with a disability,’’ consistent 

with section 614(d) of the Act. 

Changes: None. 

Comment: Many commenters 

recommended that the regulations 

include a definition of ‘‘functional’’ as 

it is used, for example, in ‘‘functional 

performance’’ in § 300.320(a)(1) and 

‘‘functional goals’’ in § 300.320(a)(2). 

Some commenters suggested defining 

‘‘functional’’ as the acquisition of 

essential and critical skills needed for 

children with disabilities to learn 

specific daily living, personal, social, 

and employment skills, or the skills 

needed to increase performance and 

independence at work, in school, in the 

home, in the community, for leisure 

time, and for postsecondary and other 

life long learning opportunities. One 

commenter recommended that the 

regulations include examples of 

functional skills and how functional 

skills should be measured. 

Discussion: It is not necessary to 

include a definition of ‘‘functional’’ in 

these regulations because we believe it 

is a term that is generally understood to 

refer to skills or activities that are not 

considered academic or related to a 

child’s academic achievement. Instead, 

‘‘functional’’ is often used in the context 

of routine activities of everyday living. 

We do not believe it is necessary to 

include examples of functional skills in 

the regulations because the range of 

functional skills is as varied as the 

individual needs of children with 

disabilities. We also decline to include 

examples of how functional skills are 

measured because this is a decision that 

is best left to public agencies, based on 

the needs of their children. However, it 

should be noted that the evaluation 

procedures used to measure a child’s 

functional skills must meet the same 

standards as all other evaluation 

procedures, consistent with 

§ 300.304(c)(1). 

Changes: None. 

Comment: One commenter 

recommended revising § 300.320(a) to 

state that ‘‘an IEP includes’’ rather than 

‘‘an IEP must include’’ in order to reflect 

the specific language in section 614(d) 

of the Act. The commenter stated that 

use of the word ‘‘must’’ limits the 

contents of an IEP to the items listed in 

§ 300.320(a). 

Discussion: The word ‘‘must’’ is used 

in § 300.320(a) to clarify that an IEP is 

required to include the items listed in 

§ 300.320(a). We believe it is important 

to retain this language in § 300.320(a). 

Under section 614(d)(1)(A)(ii)(I) of the 

Act, section 614 of the Act cannot be 

interpreted to require content in the IEP 

beyond that which is specified in the 

Act. 

Changes: None. 

Comment: One commenter requested 

clarifying the meaning of ‘‘appropriate’’

as used, for example, in 

§ 300.320(a)(1)(ii) to refer to a child’s 

participation in ‘‘appropriate’’ activities. 

Discussion: The word ‘‘appropriate’’

in these regulations does not have a 

different meaning from its common 

usage. Generally, the word 

‘‘appropriate’’ is used to mean 

‘‘suitable’’ or ‘‘fitting’’ for a particular 

person, condition, occasion, or place. 

Changes: None. 

Comment: Some commenters 

recommended requiring the IEP to 

include a statement of the relevant 

social and cultural background of a 

child and how those factors affect the 

appropriate participation, performance, 

and placement of the child in special 

education. 

Discussion: Section 614(d)(1)(A)(ii)(I) 

of the Act precludes the Department 

from interpreting section 614 of the Act 

to require public agencies to include 

information in a child’s IEP other than 

what is explicitly required in the Act. 

Therefore, we cannot require the IEP to 

include the statement requested by the 

commenters. However, a child’s social 

or cultural background is one of many 

factors that a public agency must 

consider in interpreting evaluation data 

to determine if a child is a child with 

a disability under § 300.8 and the 

educational needs of the child, 

consistent with § 300.306(c)(1)(i). 

Changes: None. 

Comment: One commenter stated that 

adapted physical education should be 

part of a child’s IEP. Another 


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commenter recommended that travel 

training be required in the IEP. 

Discussion: The definition of special 

education in new § 300.39 (proposed 

§ 300.38) includes adapted physical 

education and travel training. We do not 

believe adapted physical education and 

travel training should be mandated as 

part of an IEP because, as with all 

special education and related services, 

each child’s IEP Team determines the 

special education and related services 

that are needed to meet each child’s 

unique needs in order for the child to 

receive FAPE. In addition, section 

614(d)(1)(A)(ii)(I) of the Act prohibits 

the Department from interpreting 

section 614 of the Act to require public 

agencies to include information in a 

child’s IEP that is not explicitly required 

under the Act. 

Changes: None. 

Comment: One commenter 

recommended that IEPs include the 

array of new tools used with 

nondisabled children, so that children 

with disabilities have access to the 

materials they need to progress in the 

general education curriculum. 

Discussion: There is nothing in the 

Act that requires new tools or the same 

tools and materials used by nondisabled 

children to be used with children with 

disabilities or be specified in children’s 

IEPs. Therefore, we cannot make the 

requested change because section 

614(d)(1)(A)(ii)(I) of the Act prohibits 

the Department from interpreting 

section 614 of the Act to require public 

agencies to include information in a 

child’s IEP that is not explicitly required 

under the Act. Each child’s IEP Team 

determines the special education and 

related services, as well as 

supplementary aids, services, and 

supports that are needed to meet the 

child’s needs in order to provide FAPE 

consistent with § 300.320(a)(4) and 

section 614(d)(1)(A)(i)(IV) of the Act. 

Changes: None. 

Present Levels of Academic 

Achievement and Functional 

Performance (§ 300.320(a)(1)) 

Comment: A few commenters stated 

that § 300.320(a)(1) requires an IEP to 

include a statement of the child’s 

present levels of academic achievement, 

and recommended that the regulations 

define ‘‘academic achievement.’’

Discussion: ‘‘Academic achievement’’

generally refers to a child’s performance 

in academic areas (e.g., reading or 

language arts, math, science, and 

history). We believe the definition could 

vary depending on a child’s 

circumstance or situation, and therefore, 

we do not believe a definition of 

‘‘academic achievement’’ should be 

included in these regulations. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

clarify that not every child requires a 

functional performance statement or 

functional annual goals. Some 

commenters stated that requiring 

functional assessments for all children 

places an unnecessary burden on an 

LEA, does not add value for every child, 

and creates a potential for increased 

litigation. One commenter 

recommended that § 300.320(a)(1), 

regarding the child’s present levels of 

performance, and § 300.320(a)(2), 

regarding measurable annual goals, 

clarify that functional performance and 

functional goals should be included in 

a child’s IEP only if determined 

appropriate by the child’s IEP Team. 

Discussion: We cannot make the 

changes requested by the commenters. 

Section 614(d)(1)(A)(i)(I) of the Act 

requires an IEP to include a statement 

of the child’s present levels of academic 

achievement and functional 

performance. 

Changes: None. 

Comment: One commenter requested 

that the regulations require a child’s 

present levels of performance to be 

aligned with the child’s annual goals. 

Another commenter stated that the 

content of the IEP should be aligned 

with the State’s core curriculum content 

standards and the knowledge and skills 

needed for children with disabilities to 

become independent, productive, and 

contributing members of their 

communities and the larger society. 

Discussion: The IEP Team’s 

determination of how the child’s 

disability affects the child’s 

involvement and progress in the general 

education curriculum is a primary 

consideration in the development of the 

child’s annual IEP goals. Section 

300.320(a)(1)(i), consistent with section 

614(d)(1)(A)(i)(I)(aa) of the Act, requires 

the statement of a child’s present levels 

of performance in the IEP to include 

how the child’s disability affects the 

child’s involvement and progress in the 

general education curriculum. This 

directly corresponds with the provision 

in § 300.320(a)(2)(i)(A) and section 

614(d)(1)(A)(i)(II)(aa) of the Act, which 

requires the IEP to include measurable 

annual goals designed to meet the 

child’s needs that result from the child’s 

disability to enable the child to be 

involved in and make progress in the 

general education curriculum. We do 

not believe further clarification is 

needed regarding the alignment of a 

child’s present levels of performance 

with the child’s annual goals. 

With regard to the alignment of the 

IEP with the State’s content standards, 

§ 300.320(a)(1)(i) clarifies that the 

general education curriculum means the 

same curriculum as all other children. 

Therefore, an IEP that focuses on 

ensuring that the child is involved in 

the general education curriculum will 

necessarily be aligned with the State’s 

content standards. Congress 

acknowledged, in section 601(c)(5)(A) of 

the Act, that ensuring access to the 

general education curriculum in the 

regular classroom, to the maximum 

extent possible, is also effective in 

preparing children with disabilities to 

lead productive and independent adult 

lives. We do not believe further 

clarification is necessary to address the 

commenters’ concerns. 

Changes: None. 

Measurable Annual Goals 

(§ 300.320(a)(2)) 

Comment: One commenter requested 

clarification as to whether IEP goals 

must be specific to a particular 

discipline (e.g., physical therapy goals, 

occupational therapy goals). One 

commenter recommended that goals be 

explicitly defined and objectively 

measured. Another commenter 

recommended requiring IEP goals to 

have specific outcomes and measures on 

an identified assessment tool. One 

commenter recommended clarifying 

that an IEP Team is permitted, under 

certain circumstances, to write goals 

that are intended to be achieved in less 

than one year. 

Discussion: Section 300.320(a)(2)(i), 

consistent with section 

614(d)(1)(A)(i)(II) of the Act, requires 

the IEP to include measurable annual 

goals. Further, § 300.320(a)(3)(i), 

consistent with section 

614(d)(1)(A)(i)(III) of the Act, requires 

the IEP to include a statement of how 

the child’s progress toward meeting the 

annual goals will be measured. The Act 

does not require goals to be written for 

each specific discipline or to have 

outcomes and measures on a specific 

assessment tool. Furthermore, to the 

extent that the commenters are 

requesting that we mandate that IEPs 

include specific content not in section 

614(d)(1)(A)(i) of the Act, under section 

614(d)(1)(A)(ii)(I), we cannot interpret 

section 614 to require that additional 

content. IEPs may include more than the 

minimum content, if the IEP Team 

determines the additional content is 

appropriate. 

Changes: None. 

Comment: Some commenters 

recommended requiring related services 

in every child’s IEP. The commenters 

stated that related services are necessary 


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to enhance the overall health and wellbeing of the child to prevent secondary 

conditions; ensure that the child 

progresses towards independent 

functioning and community integration; 

increase the child’s ability to function 

and learn in his or her educational 

environment; develop social interaction 

skills to enhance a child’s ability to 

communicate, build relationships, and 

reinforce other positive behavior skills; 

and further advance the child’s ability 

to complete his or her own educational 

requirements and goals. 

Discussion: To require related services 

for every child with a disability would 

be inconsistent with the concept of 

individualization that has been part of 

the Act since its inception in 1975. 

Related services are only required to the 

extent that such services are necessary 

to enable the child to benefit from 

special education. Related services, as 

with any other service in an IEP, are 

determined on an individual basis by 

the child’s IEP Team. 

Changes: None. 

Comment: Many commenters opposed 

the removal of benchmarks and shortterm objectives as required components 

of the IEP and recommended that States 

and LEAs be permitted to require 

benchmarks and short-term objectives 

for all children with disabilities. Many 

commenters recommended that the 

regulations allow the IEP Team to 

determine whether to include shortterm objectives in a child’s IEP to 

measure progress in functional areas 

that are not measurable through other 

means. 

Discussion: Benchmarks and shortterm objectives were specifically 

removed from section 614(d)(1)(A)(i)(II) 

of the Act. However, because 

benchmarks and short-term objectives 

were originally intended to assist 

parents in monitoring their child’s 

progress toward meeting the child’s 

annual goals, we believe a State could, 

if it chose to do so, determine the extent 

to which short-term objectives and 

benchmarks would be used. However, 

consistent with § 300.199(a)(2) and 

sections 608(a)(2) and 614(d)(1)(A)(ii)(I) 

of the Act, a State that chooses to 

require benchmarks or short-term 

objectives in IEPs in that State would 

have to identify in writing to the LEAs 

located in the State and to the Secretary 

that such rule, regulation, or policy is a 

State-imposed requirement, which is 

not required by Part B of the Act or the 

Federal regulations. 

Changes: None. 

Comment: A few commenters 

supported the requirement in 

§ 300.320(a)(2)(ii) for benchmarks or 

short-term objectives to be developed 

for children who take alternate 

assessments aligned to alternate 

achievement standards. However, a few 

commenters stated that limiting shortterm objectives to children who take 

alternate assessments is not acceptable 

because the one percent limit on the 

percentage of children who may take 

alternate assessments is arbitrary. 

Discussion: The requirement to 

develop short-term objectives or 

benchmarks covers all children with 

disabilities who are assessed using 

alternate assessments aligned to 

alternate achievement standards, 

consistent with section 

614(d)(1)(A)(i)(I)(cc) of the Act. The one 

percent cap referred to by the 

commenter is not a limit on the number 

of children who may take an alternate 

assessment based on alternate 

achievement standards. Rather, it is a 

limit on the number of proficient and 

advanced scores that may be included 

in calculating adequate yearly progress 

(AYP) under the ESEA, consistent with 

34 CFR § 200.13(c)(1)(ii). As noted 

previously, the requirement to include 

benchmarks or short-term objectives for 

all children with disabilities was 

specifically removed from section 

614(d)(1)(A)(i)(II) of the Act. 

Changes: None. 

Comment: One commenter stated that 

the IEP should not include benchmarks 

for alternate achievement standards 

because this would be teaching to the 

test and would lower expectations for 

children. 

Discussion: Section 300.320(a)(2)(ii) 

requires benchmarks or short-term 

objectives only for children with 

disabilities who take alternate 

assessments aligned to alternate 

achievement standards. By ‘‘teaching to 

the test,’’ we assume that the commenter 

believes that a benchmark or short-term 

objective must be written for each 

alternate achievement standard. There is 

no such requirement in the Act or these 

regulations. 

Changes: None. 

Comment: One commenter requested 

clarification on how schools should 

determine which children in 

kindergarten through grade two must 

have short-term objectives or 

benchmarks in their IEPs. Another 

commenter requested clarification on 

how the requirements for benchmarks or 

short-term objectives apply to 

preschoolers. 

Discussion: Section 300.320(a)(2)(ii), 

consistent with section 

614(d)(1)(A)(i)(I)(cc) of the Act, requires 

an IEP to include benchmarks or shortterm objectives for children with 

disabilities who take an alternate 

assessment aligned to alternate 

achievement standards. This would 

apply to preschool children and 

children with disabilities in 

kindergarten through grade two only if 

these children are assessed in a State or 

districtwide assessment program and 

the State has opted to develop an 

alternate assessment based on alternate 

achievement standards. Under title I of 

the ESEA, States are only required to 

assess children in grades 3 through 8 

and once in high school, so it is unlikely 

that even States that choose to develop 

alternate achievement standards will 

include this age population in a 

Statewide assessment program or 

develop an alternate achievement 

standard for these children. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

require IEP Team members, including 

the parents, to be involved in 

developing short-term objectives. 

Discussion: Sections 300.320 through 

300.324 and section 614(d) of the Act 

are clear that the IEP Team, which 

includes the parent, is responsible for 

developing benchmarks or short-term 

objectives for children who take 

alternate assessments aligned to 

alternate achievement standards. 

Changes: None. 

Comment: One commenter 

recommended clarifying that goals and 

objectives must be aligned with the 

State’s alternate assessment. 

Discussion: Section 612(a)(16)(C)(ii) of 

the Act requires alternate assessments to 

be aligned with the State’s challenging 

academic content standards and 

academic achievement standards, and if 

the State has adopted alternate 

academic achievement standards 

permitted under 34 CFR § 200.1(d), to 

measure the achievement of children 

with disabilities against those standards. 

Section 614(d)(1)(A)(i)(II) of the Act 

requires the IEP to include a statement 

of measurable annual goals, including 

academic and functional goals, designed 

to meet the child’s needs that result 

from the child’s disability to enable the 

child to be involved in and make 

progress in the general education 

curriculum. However, there is nothing 

in the Act that requires a child’s IEP 

goals to be aligned with the State’s 

alternate assessment based on alternate 

achievement standards. Additionally, 

for some children, goals may be needed 

for activities that are not closely related 

to a State’s academic content and 

academic achievement standards. 

Changes: None. 

Comment: A few commenters stated 

that the regulations should be more 

specific about what must be included in 

an IEP goal if benchmarks or short-term 


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objectives are not required in every 

child’s IEP. 

Discussion: The regulations are clear 

on the requirements for IEP goals. 

Section 300.320(a)(2)(i), consistent with 

section 614(d)(1)(A)(i)(II) of the Act, 

requires that annual IEP goals be 

measurable and designed to meet the 

child’s needs that result from the child’s 

disability to enable the child to be 

involved in and make progress in the 

general education curriculum, and to 

meet each of the child’s other 

educational needs that result from the 

child’s disability. We believe that these 

requirements will ensure that progress 

toward achieving a child’s annual goals 

can be objectively monitored and 

measured. We do not believe that 

additional specificity is needed. 

Changes: None. 

Comment: One commenter suggested 

requiring SEAs to ensure that LEAs 

receive professional development in 

writing measurable goals and effective 

methods of measuring progress toward 

achieving those goals. 

Discussion: We do not believe that the 

requested requirement should be 

included in the regulations. State and 

local officials are in the best position to 

determine the training and professional 

development needs of their personnel. 

Changes: None. 

Comment: One commenter 

recommended retaining current 

§ 300.350, regarding the responsibilities 

of the public agency to provide special 

education and related services to a child 

with a disability in accordance with the 

child’s IEP and to make a good-faith 

effort to assist the child to achieve the 

goals and objectives or benchmarks in 

the IEP. 

Discussion: The requirement in 

current § 300.350(a)(1), regarding a 

public agency’s responsibility to 

provide special education and related 

services to a child with a disability in 

accordance with the child’s IEP, is 

unnecessary, because entitlement to 

FAPE under the Act includes the 

provision of special education and 

related services in accordance with an 

IEP. Paragraphs (a)(2) and (b) in current 

§ 300.350, regarding accountability for a 

child achieving his or her goals, are 

unnecessary because other Federal laws, 

such as title I of the ESEA, already 

provide sufficient motivation for agency 

effort to assist children with disabilities 

in making academic progress. Current 

§ 300.350(c), regarding the rights of 

parents to invoke due process 

procedures if a parent feels that efforts 

are not being made to achieve the IEP 

goals, is unnecessary because it merely 

provides explanatory information 

regarding the due process procedures 

for parents and children that are 

available in §§ 300.500 through 520. 

Changes: None. 

Periodic Progress Reports 

(§ 300.320(a)(3)(ii)) 

Comment: A few commenters 

supported the language in 

§ 300.320(a)(3)(ii), which requires the 

IEP to include a description of when 

periodic reports on the child’s progress 

toward meeting the annual goals will be 

provided. However, many commenters 

recommended retaining current 

§ 300.347(a)(7), which requires parents 

of a child with a disability to be 

informed about their child’s progress at 

least as often as parents of nondisabled 

children and for the report to include 

information on the extent to which the 

child’s progress is sufficient to enable 

the child to achieve the goals by the end 

of the year. 

One commenter recommended 

requiring progress reports to be 

provided with enough time to allow 

changes in the IEP if the goals will not 

be met by the end of the year. A few 

commenters recommended requiring the 

reports to explain, in reasonable detail 

and with specific progress measures, the 

extent to which the child is making 

progress on each of the annual goals in 

the child’s IEP. Another commenter 

recommended requiring LEAs to report 

progress in measurable terms. The 

commenter stated that many LEAs 

convert a measurable objective or goal 

into subjective and vague language, 

such as ‘‘adequate progress,’’ which 

does not provide objective 

measurements of achievement. Another 

commenter recommended requiring 

progress reports to be specifically linked 

to the measurable outcomes of a child’s 

annual goals. 

Numerous commenters requested that 

progress reports be provided with 

school report cards. However, one 

commenter stated that not all school 

districts have quarterly report cards, 

and, therefore, the regulations should 

require progress reports to be issued at 

the same time as other report cards in 

the district. 

Discussion: Section 300.320(a)(3)(ii) 

follows the language in section 

614(d)(1)(A)(i)(III) of the Act and 

requires the IEP to include a description 

of when periodic reports on the child’s 

progress toward meeting the annual 

goals will be provided. The Act does not 

require report cards or quarterly report 

cards. Report cards and quarterly report 

cards are used as examples in 

§ 300.320(a)(3)(ii) of when periodic 

reports on the child’s progress toward 

meeting the annual goals might be 

provided. The specific times that 

progress reports are provided to parents 

and the specific manner and format in 

which a child’s progress toward meeting 

the annual goals is reported is best left 

to State and local officials to determine. 

In addition, under section 

614(d)(1)(A)(ii)(I) of the Act we cannot 

interpret section 614 of the Act to 

require additional information in a 

child’s IEP that is not specifically 

required by the Act. 

Changes: None. 

Statement of Special Education and 

Related Services (§ 300.320(a)(4)) 

Comment: One commenter 

recommended requiring the regular 

education teacher to offer modifications 

for every assignment given to a child 

with a disability. 

Discussion: It would be inconsistent 

with the Act to implement the 

commenter’s recommendation. 

Consistent with § 300.320(a)(4) and 

section 614(d)(1)(A)(i)(IV) of the Act, the 

child’s IEP Team determines the special 

education and related services, and 

supplementary aids, services, and other 

supports that are needed for the child to 

advance appropriately toward meeting 

the child’s annual goals. 

Changes: None. 

Comment: A significant number of 

commenters recommended the 

regulations include a definition of 

‘‘peer-reviewed research,’’ as used in 

§ 300.320(a)(4). One commenter 

recommended that the definition of 

peer-reviewed research be consistent 

with the work of the National Research 

Council. 

Discussion: ‘‘Peer-reviewed research’’

generally refers to research that is 

reviewed by qualified and independent 

reviewers to ensure that the quality of 

the information meets the standards of 

the field before the research is 

published. However, there is no single 

definition of ‘‘peer reviewed research’’

because the review process varies 

depending on the type of information to 

be reviewed. We believe it is beyond the 

scope of these regulations to include a 

specific definition of ‘‘peer-reviewed 

research’’ and the various processes 

used for peer reviews. 

Changes: None. 

Comment: Some commenters 

recommended revising § 300.320(a)(4) to 

require special education and related 

services, and supplementary aids and 

services, to be based on ‘‘evidencedbased practices’’ rather than ‘‘peerreviewed research.’’ A few commenters 

recommended revising § 300.320(a)(4) to 

require special education and related 

services, and supplementary aids and 

services to be based on peer-reviewed 

research, evidenced-based practices, 


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and emerging best practices. Many 

commenters recommended clarifying 

the meaning and intent of the phrase ‘‘to 

the extent practicable.’’ One commenter 

recommended requiring all IEP Team 

meetings to include a focused 

discussion on research-based methods 

and to provide parents with prior 

written notice when the IEP Team 

refuses to provide documentation of 

research-based methods. 

Discussion: Section 300.320(a)(4) 

incorporates the language in section 

614(d)(1)(A)(i)(IV) of the Act, which 

requires that special education and 

related services and supplementary aids 

and services be based on peer-reviewed 

research to the extent practicable. The 

Act does not refer to ‘‘evidenced-based 

practices’’ or ‘‘emerging best practices,’’

which are generally terms of art that 

may or may not be based on peerreviewed research. Therefore, we 

decline to change § 300.320(a)(4) in the 

manner suggested by the commenters. 

The phrase ‘‘to the extent practicable,’’

as used in this context, generally means 

that services and supports should be 

based on peer-reviewed research to the 

extent that it is possible, given the 

availability of peer-reviewed research. 

We do not believe further clarification is 

necessary. 

We decline to require all IEP Team 

meetings to include a focused 

discussion on research-based methods 

or require public agencies to provide 

prior written notice when an IEP Team 

refuses to provide documentation of 

research-based methods, as we believe 

such requirements are unnecessary and 

would be overly burdensome. 

Changes: None. 

Comment: One commenter 

recommended clear guidance on the 

responsibilities of States, school 

districts, and school personnel to 

provide special education and related 

services, and supplementary aids and 

services that are based on peer-reviewed 

research. One commenter requested 

clarification that the requirement for 

special education and related services, 

and supplementary aids and services to 

be based on peer-reviewed research 

does not mean that the service with the 

greatest body of research is the service 

necessarily required for FAPE. Another 

commenter requested that the 

regulations clarify that the failure of a 

public agency to provide special 

education and related services, and 

supplementary aids and services based 

on peer-reviewed research, does not 

result in a denial of FAPE, and that the 

burden of proof is on the moving party 

when the denial of FAPE is at issue. 

Discussion: Section 612(d)(1)(A)(i)(IV) 

of the Act requires special education 

and related services, and supplementary 

aids and services, to be based on peerreviewed research to the extent 

practicable. States, school districts, and 

school personnel must, therefore, select 

and use methods that research has 

shown to be effective, to the extent that 

methods based on peer-reviewed 

research are available. This does not 

mean that the service with the greatest 

body of research is the service 

necessarily required for a child to 

receive FAPE. Likewise, there is nothing 

in the Act to suggest that the failure of 

a public agency to provide services 

based on peer-reviewed research would 

automatically result in a denial of FAPE. 

The final decision about the special 

education and related services, and 

supplementary aids and services that 

are to be provided to a child must be 

made by the child’s IEP Team based on 

the child’s individual needs. 

With regard to the comment regarding 

the burden of proof when the denial of 

FAPE is at issue, we have addressed this 

issue in the Analysis of Comments and 

Changes section for subpart E. 

Changes: None. 

Comment: Several commenters 

recommended including a construction 

clause in the regulations to clarify that 

no child should be denied special 

education and related services, or 

supplementary aids and services, based 

on a lack of available peer-reviewed 

research on a particular service to be 

provided. 

Discussion: We do not believe that the 

recommended construction clause is 

necessary. Special education and related 

services, and supplementary aids and 

services based on peer-reviewed 

research are only required ‘‘to the extent 

practicable.’’ If no such research exists, 

the service may still be provided, if the 

IEP Team determines that such services 

are appropriate. A child with a 

disability is entitled to the services that 

are in his or her IEP whether or not they 

are based on peer-reviewed research. 

The IEP Team, which includes the 

child’s parent, determines the special 

education and related services, and 

supplementary aids and services that 

are needed by the child to receive FAPE. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

clarify that the reference to ‘‘peerreviewed research’’ does not require an 

IEP to include instructional 

methodologies. However, a few 

commenters recommended that the 

regulations require all elements of a 

program provided to a child, including 

program methodology, to be specified in 

the child’s IEP. 

Discussion: There is nothing in the 

Act that requires an IEP to include 

specific instructional methodologies. 

Therefore, consistent with section 

614(d)(1)(A)(ii)(I) of the Act, we cannot 

interpret section 614 of the Act to 

require that all elements of a program 

provided to a child be included in an 

IEP. The Department’s longstanding 

position on including instructional 

methodologies in a child’s IEP is that it 

is an IEP Team’s decision. Therefore, if 

an IEP Team determines that specific 

instructional methods are necessary for 

the child to receive FAPE, the 

instructional methods may be addressed 

in the IEP. 

Changes: None. 

Comment: A few commenters 

requested that the regulations require 

programs provided to a child with a 

disability to be research-based with 

demonstrated effectiveness in 

addressing the particular needs of a 

child. 

Discussion: While the Act clearly 

places an emphasis on practices that are 

based on scientific research, there is 

nothing in the Act that requires all 

programs provided to children with 

disabilities to be research-based with 

demonstrated effectiveness in 

addressing the particular needs of a 

child where not practicable. We do not 

believe the recommended change 

should be made because, ultimately, it 

is the child’s IEP Team that determines 

the special education and related 

services that are needed by the child in 

order for the child to receive FAPE. 

Changes: None. 

Comment: A few commenters 

recommended that § 300.320(a)(4) 

specifically refer to assistive technology 

devices as supplementary aids that must 

be provided to the child. 

Discussion: It is not necessary to refer 

to assistive technology devices in 

§ 300.320(a)(4). Section 300.324(a)(2)(v), 

consistent with section 614(d)(3)(B)(v) 

of the Act, already requires the IEP 

Team to consider whether the child 

needs assistive technology devices and 

services. 

Changes: None. 

Participation With Nondisabled 

Children (§ 300.320(a)(5)) 

Comment: Many commenters 

recommended that § 300.320(a)(5), 

regarding the participation of children 

with disabilities with nondisabled 

children, follow the language in section 

614(d)(1)(A)(i)(V) of the Act and use the 

term ‘‘regular class’’ instead of ‘‘regular 

educational environment.’’ One 

commenter stated that parents, school 

staff, and the community consider the 

‘‘regular class’’ to be the place where a 


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child’s nondisabled peers go to school, 

while ‘‘regular educational 

environment’’ is interpreted to be 

anywhere in the school, such as down 

the hallway, in a separate wing of the 

school, or across the lunch room. One 

commenter stated that the term ‘‘regular 

education environment’’ could be 

interpreted to mean only special classes 

such as art, music, and gym. A few 

commenters recommended defining 

‘‘regular education environment’’ to 

mean the participation of children with 

disabilities with their nondisabled peers 

in the regular classroom and other 

educational settings, including 

nonacademic settings. 

Discussion: We agree that use of the 

term ‘‘regular educational environment’’

may be misinterpreted. Therefore, we 

will revise § 300.320(a)(5) to require the 

IEP to include an explanation of the 

extent, if any, to which the child will 

not participate with nondisabled 

children in the regular class. 

Changes: We have changed 

§ 300.320(a)(5) to refer to the ‘‘regular 

class’’ instead of the ‘‘regular education 

environment.’’

Comment: One commenter 

recommended adding language to 

§ 300.320(a)(5) for preschool children 

with disabilities and stated that ‘‘regular 

education environment’’ should be 

replaced with ‘‘settings with typically 

developing peers.’’

Discussion: Section 300.320(a)(5) 

follows the language in section 

614(d)(1)(A)(i)(V) of the Act and applies 

to all children with disabilities covered 

by Part B of the Act, which includes 

preschool children under section 619 of 

the Act. We do not believe it is 

necessary to change the regulations in 

the manner suggested by the commenter 

because the ‘‘regular class’’ includes a 

preschool setting with typically 

developing peers. 

Changes: None. 

Statewide and Districtwide Assessments 

(§ 300.320(a)(6)) 

Comment: A few commenters 

recommended requiring parents to be 

informed in writing of the consequences 

of their child taking an alternate 

assessment, including any effect on the 

child’s eligibility for graduation with a 

regular high school diploma. The 

commenters stated that providing this 

information to parents is particularly 

important in States that require passing 

a State exam in order to obtain a regular 

high school diploma. 

Discussion: Section 612(a)(16) of the 

Act requires that the State (or, in the 

case of a districtwide assessment, the 

LEA) develop and implement guidelines 

for the participation of children with 

disabilities in alternate assessments, 

including alternate assessments aligned 

to alternate achievement standards 

permitted under 34 CFR 200.1(d). 

Section 200.6(a)(2)(iii)(A)(2) of the 

ESEA title I regulations requires States 

to inform parents that their child’s 

achievement will be measured against 

alternate achievement standards. 

We acknowledge that these 

requirements do not specifically require 

a public agency to inform parents of any 

potential consequences of a child 

participating in an alternate assessment. 

The commenters’ recommendation will 

be considered along with other 

comments we have received in response 

to the NPRM proposing changes to 

§ 300.160, which was published in the 

Federal Register on December 15, 2005 

(70 FR 74624). As noted elsewhere in 

this preamble, the final regulations for 

§ 300.160, regarding participation in 

assessments, will be published in a 

separate final rule. 

Changes: None. 

Comment: One commenter 

recommended defining ‘‘appropriate 

accommodations’’ and ‘‘individual 

appropriate accommodations’’ as 

accommodations that are needed to 

meet the child’s unique needs that 

maintain and preserve test validity, 

reliability, and technical testing 

standards. 

Discussion: Section 

614(d)(1)(A)(i)(VI)(aa) of the Act 

requires that the IEP include a statement 

of any individual appropriate 

accommodations that are necessary to 

measure the academic and functional 

performance of the child on State and 

districtwide assessments. The 

requirements in proposed § 300.160, 

published in the Federal Register on 

December 15, 2005, provide additional 

information about accommodations and 

the participation of children with 

disabilities in State and districtwide 

assessments. As noted elsewhere in this 

preamble, the final § 300.160 will be 

published in a separate final rule. We 

will consider the commenter’s 

recommendation along with other 

comments received in response to the 

NPRM proposing changes to § 300.160. 

Changes: None. 

Comment: One commenter 

recommended changing the word 

‘‘must’’ in § 300.320(a)(6)(ii) to state that 

if an IEP Team determines that the child 

will take an alternate assessment, the 

IEP ‘‘will’’ include a statement of why 

the child cannot participate in the 

regular assessment. The commenter 

stated that ‘‘will’’ is less coercive and 

more in line with the consensus 

decision-making model of IEP Team 

meetings. 

Discussion: Generally, we have used 

the word ‘‘must’’ for regulations that 

describe what a public agency must do 

and the word ‘‘will’’ when referring to 

what the IEP Team has determined a 

child will do. While we understand the 

commenter’s concern, we believe it is 

unnecessary to change 

§ 300.320(a)(6)(ii). 

Changes: None. 

Comment: One commenter 

recommended that § 300.320(a)(6) 

clarify that a child with the most 

significant cognitive disabilities, who 

has been determined by the IEP Team to 

be unable to make progress toward the 

regular achievement standards even 

with the best instruction, will be taught 

and assessed based on alternate 

achievement standards. 

Discussion: It would be inappropriate 

to require a child with the most 

significant cognitive disabilities to be 

taught and assessed based on alternate 

achievement standards. Consistent with 

section 614(d)(1)(A)(i)(VI)(bb) of the 

Act, the child’s IEP Team is responsible 

for determining the particular 

assessment that is appropriate for a 

child. Under § 200.1(d) of the ESEA title 

I regulations, a State is permitted, but 

not required, to adopt alternate 

achievement standards and develop an 

alternate assessment based on those 

standards for children with the most 

significant cognitive disabilities. There 

is no requirement under the Act or the 

ESEA that a State develop an alternate 

assessment based on alternate 

achievement standards. 

Changes: None. 

Comment: One commenter stated that 

§ 300.320(a)(6) should include 

information about alternate assessments 

because there will be children who will 

not be successful with generic 

accommodations. 

Discussion: Section 612(a)(16)(C) of 

the Act provides information regarding 

alternate assessments and the 

requirements for alternate assessments 

under the Act. As noted elsewhere in 

this preamble, the final regulations for 

§ 300.160, which will incorporate the 

requirements in section 612(a)(16) of the 

Act and provide further clarification 

regarding the participation of children 

with disabilities in assessments, will be 

published in a separate document. We 

will consider the commenter’s 

recommendation along with other 

comments received in response to the 

NPRM proposing changes to § 300.160. 

Changes: None. 

Comment: One commenter suggested 

revising § 300.320(a)(6)(i), which 

requires the IEP to include a statement 

of any individual appropriate 

accommodations that are necessary to 


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‘‘measure’’ the academic and functional 

performance of the child on State and 

districtwide assessments. The 

commenter recommended revising the 

statement to require the IEP to include 

a statement of any individual 

appropriate accommodations that are 

necessary to allow the child to 

‘‘participate’’ in assessments. 

Discussion: To change the regulation 

in the manner suggested by the 

commenter would be inconsistent with 

the Act. Section 300.320(a)(6)(i) reflects 

the language in section 

614(d)(1)(A)(i)(VI)(aa) of the Act and 

requires accommodations that are 

necessary to measure a child’s 

performance. Accommodations that 

allow a child to ‘‘participate’’ in 

assessments could include 

accommodations that invalidate the 

child’s test score, thereby resulting in an 

assessment that does not ‘‘measure’’ a 

child’s performance. 

Changes: None. 

Initiation, Frequency, Location, and 

Duration of Services (§ 300.320(a)(7)) 

Comment: One commenter 

recommended clarifying that the term 

‘‘duration’’ in § 300.320(a)(7), regarding 

services and modifications in the IEP, 

refers to the length of a particular 

service session and not the entire IEP. 

Discussion: The meaning of the term 

‘‘duration’’ will vary, depending on 

such things as the needs of the child, 

the service being provided, the 

particular format used in an IEP, and 

how the child’s day and IEP are 

structured. What is required is that the 

IEP include information about the 

amount of services that will be provided 

to the child, so that the level of the 

agency’s commitment of resources will 

be clear to parents and other IEP Team 

members. The amount of time to be 

committed to each of the various 

services to be provided must be 

appropriate to the specific service, and 

clearly stated in the IEP in a manner 

that can be understood by all involved 

in the development and implementation 

of the IEP. 

Changes: None. 

Comment: One commenter requested 

that the regulations require the IEP to 

include information about the person(s) 

providing the services, rather than just 

a listing of the services. 

Discussion: The Act does not require 

the IEP to include information about the 

specific person(s) providing the 

services. Section 614(d)(1)(A)(ii)(I) of 

the Act precludes the Department from 

interpreting section 614 of the Act to 

require public agencies to include 

information in the IEP beyond what is 

specifically required by the Act. 

Changes: None. 

Transition Services (§ 300.320(b)) 

Comment: Many commenters 

disagreed with changing the age at 

which transition services must be 

provided to a child with a disability 

from 14 years to 16 years. One 

commenter recommended that 

transition services begin at age 13. 

Another commenter recommended that 

transition services begin before high 

school, because if there is a choice of 

high schools, transition goals may be a 

determining factor in the selection 

process. A few commenters requested 

that the regulations clarify that States 

may continue to begin transition 

services with the first IEP after the child 

turns age 14. Some commenters 

recommended that transition begin two 

to four full school years before the child 

is expected to graduate because some 

children may exit school at age 17. 

Numerous commenters recommended 

that the regulations clarify that States 

have discretion to require transition 

services to begin before age 16 for all 

children in the State. However, a few 

commenters recommended removing 

the phrase ‘‘or younger if determined 

appropriate by the IEP Team’’ in 

§ 300.320(b) because the language is not 

in the Act and promotes additional 

special education services. 

A few commenters recommended that 

the regulations require transition 

planning to begin earlier than age 16 if 

necessary for the child to receive FAPE. 

Other commenters recommended 

clarifying that, in order for transition 

services to begin by age 16, transition 

assessments and other pre-planning 

needs that would facilitate movement to 

post-school life must be completed prior 

to the child’s 16th birthday. One 

commenter recommended requiring 

transition planning to begin no later 

than the child’s freshman year in high 

school and that this planning include 

selecting assessment instruments and 

completing assessments that will lead to 

the development of transition goals and 

objectives in the child’s IEP. 

Discussion: Section 

614(d)(1)(A)(i)(VIII) of the Act requires 

that transition services begin no later 

than the first IEP to be in effect when 

the child turns 16. Because IEP Team 

decisions must always be 

individualized, we have included the 

phrase ‘‘or younger if determined 

appropriate by the IEP Team’’ in 

§ 300.320(b). 

The Act does not require transition 

planning or transition assessments, as 

recommended by some commenters. 

Therefore, consistent with section 

614(d)(1)(A)(ii)(I) of the Act, we cannot 

interpret section 614 of the Act to 

require that IEPs include this 

information because it is beyond what is 

specifically required in the Act. 

The Department believes that a State 

could require transition services, if it 

chose to do so, to begin before age 16 

for all children in the State. However, 

consistent with § 300.199(a)(2) and 

section 608(a)(2) of the Act, a State that 

chooses to require transition services 

before age 16 for all children would 

have to identify in writing to its LEAs 

and to the Secretary that such rule, 

regulation, or policy is a State-imposed 

requirement that is not required by Part 

B of the Act and Federal regulations. 

Changes: None. 

Comment: A few commenters 

recommended that § 300.320(b) clarify 

that the child is a participating IEP 

Team member and that the IEP Team is 

required to consider the child’s 

preferences in developing transition 

goals and services. 

Discussion: The clarification 

requested is not needed because 

§ 300.321(b)(1) already requires the 

public agency to invite a child with a 

disability to attend the child’s IEP Team 

meeting, if a purpose of the meeting is 

to consider the child’s postsecondary 

goals and the transition services needed 

to assist the child to reach those goals. 

In addition, § 300.321(b)(2) requires the 

public agency to take steps to ensure 

that the child’s preferences and interests 

are considered, if the child does not 

attend the IEP Team meeting. We 

believe that this is sufficient 

clarification that, for the purposes 

mentioned by the commenter, the child 

is a participating IEP Team member. 

Changes: None. 

Comment: A few commenters 

requested that the regulations clarify 

whether ‘‘transition assessments’’ are 

formal evaluations or competency 

assessments. One commenter stated that 

transition assessments should be 

different for a college-bound child with 

a disability than for a child with severe 

disabilities whose future is a group 

home. 

Discussion: We do not believe the 

requested clarification is necessary 

because the specific transition 

assessments used to determine 

appropriate measurable postsecondary 

goals will depend on the individual 

needs of the child, and are, therefore, 

best left to States and districts to 

determine on an individual basis. 

Changes: None. 

Comment: One commenter requested 

clarification of the term ‘‘postsecondary 

goals.’’ Another commenter 

recommended defining ‘‘postsecondary 


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goals’’ in the definition section of these 

regulations. 

Discussion: We do not believe it is 

necessary to include a definition of 

‘‘postsecondary goals’’ in the 

regulations. The term is generally 

understood to refer to those goals that a 

child hopes to achieve after leaving 

secondary school (i.e., high school). 

Changes: None. 

Comment: One commenter requested 

clarification regarding whether 

§ 300.320(b)(1) requires measurable 

postsecondary goals in each of the areas 

of training, education, employment, 

and, independent living skills. 

Discussion: Beginning not later than 

the first IEP to be in effect when the 

child turns 16 years of age, section 

614(d)(1)(A)(i)(VIII)(aa) of the Act 

requires a child’s IEP to include 

measurable postsecondary goals in the 

areas of training, education, and 

employment, and, where appropriate, 

independent living skills. Therefore, the 

only area in which postsecondary goals 

are not required in the IEP is in the area 

of independent living skills. Goals in 

the area of independent living are 

required only if appropriate. It is up to 

the child’s IEP Team to determine 

whether IEP goals related to the 

development of independent living 

skills are appropriate and necessary for 

the child to receive FAPE. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations retain 

the requirement in current 

§ 300.347(b)(1) that requires IEPs to 

include a statement of the transition 

service needs of the child under 

applicable components of the child’s 

IEP that focus on the child’s courses of 

study (such as participation in 

advanced-placement courses or a 

vocational education program). 

Discussion: The requirement referred 

to by the commenter is already in the 

regulations. Section 300.320(b)(2) 

includes a reference to ‘‘courses of 

study’’ as part of transition services, 

consistent with section 

614(d)(1)(A)(i)(VIII)(bb) of the Act. The 

examples in current § 300.347(b)(2) (i.e., 

advanced placement course or a 

vocational education program) are not 

included in § 300.320(b)(2) because we 

do not believe they are necessary to 

understand and implement the 

requirement. 

Changes: None. 

Comment: Several commenters 

recommended that the regulations 

explicitly require transition services to 

include vocational and career training 

through work-study and documentation 

of accommodations needed in the 

workplace. 

Discussion: The Act does not require 

IEPs to include vocational and career 

training or documentation of workplace 

accommodations. Consistent with 

section 614(d)(1)(A)(ii)(I) of the Act, we 

cannot interpret section 614 of the Act 

to require IEPs to include information 

beyond what is specifically required in 

the Act. It is up to each child’s IEP Team 

to determine the transition services that 

are needed to meet the unique transition 

needs of the child. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

clarify that schools can use funds 

provided under Part B of the Act to 

support children in transitional 

programs on college campuses and in 

community-based settings. 

Discussion: We do not believe that the 

clarification requested by the 

commenters is necessary to add to the 

regulations because, as with all special 

education and related services, it is up 

to each child’s IEP Team to determine 

the special education and related 

services that are needed to meet each 

child’s unique needs in order for the 

child to receive FAPE. Therefore, if a 

child’s IEP Team determines that a 

child’s needs can best be met through 

participation in transitional programs 

on college campuses or in communitybased settings, and includes such 

services on the child’s IEP, funds 

provided under Part B of the Act may 

be used for this purpose. 

Changes: None. 

Comment: One commenter 

recommended more accountability for 

transition services. 

Discussion: The Act contains 

significant changes to the monitoring 

and enforcement requirements under 

Part B of the Act. Section 300.600, 

consistent with section 616(a) of the 

Act, requires the primary focus of 

monitoring to be on improving 

educational results and functional 

outcomes for children with disabilities. 

The provisions in section 616(a) and 

(b)(2)(C)(ii) of the Act set forth the 

responsibility of States to monitor the 

implementation of the Act, enforce the 

Act, and annually report on 

performance of the State and each LEA. 

Section 300.600(c), consistent with 

section 616(a)(3) of the Act, requires 

States to measure performance in 

monitoring priority areas using 

quantifiable indicators and such 

qualitative indicators as are needed to 

adequately measure performance. 

Section 300.601 reflects statutory 

language in section 616(b) of the Act 

and requires States to have a 

performance plan that evaluates their 

efforts to implement the requirement 

and purposes of the Act. Transition 

services are specifically being addressed 

in State performance plans. We believe 

that these changes to the monitoring and 

enforcement requirements will ensure 

that States and LEAs are held 

accountable for the transition services 

they provide. 

Changes: None. 

Comment: One commenter requested 

that the regulations be revised to 

include an affirmative statement that 

transition services can be used to drive 

the IEP for the child. 

Discussion: It would be inappropriate 

to include such a requirement in these 

regulations because, while section 

614(d)(1)(A)(i)(VIII) of the Act includes 

transition services in a child’s IEP, there 

is no suggestion that it be the only 

component or the component that 

governs a child’s IEP. 

Changes: None. 

Transfer of Rights at Age of Majority 

(§ 300.320(c)) 

Comment: One commenter 

recommended that the regulations 

specify how the child is to be informed 

of the transfer of rights. The commenter 

also recommended that the regulations 

require public agencies to explain to the 

child the rights that will transfer to the 

child on reaching the age of majority. 

Discussion: The specific manner in 

which a child is informed about his or 

her rights is best left to States, districts, 

and IEP Teams to decide, based on their 

knowledge of the child and any unique 

local or State requirements. Section 

300.320(c), consistent with section 

614(d)(1)(A)(i)(VIII)(cc) of the Act, 

already requires the IEP to include a 

statement that the child has been 

informed of the child’s rights under Part 

B of the Act, if any, that will transfer to 

the child on reaching the age of 

majority. We do not believe further 

clarification is necessary. 

Changes: None. 

Comment: One commenter stated that 

§ 300.320(c) is redundant with 

§ 300.520. 

Discussion: Sections 300.320 and 

300.520 are related, but not redundant. 

Section 300.320(c) requires the IEP to 

include a statement that the child has 

been informed of the child’s rights 

under Part B of the Act that will transfer 

to the child on reaching the age of 

majority. Section 300.520 provides 

additional information about the 

transfer of rights as part of the 

procedural safeguards for parents and 

children under the Act. 

Changes: None. 


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Construction (§ 300.320(d)) 

Comment: One commenter stated that 

§ 300.320(d)(2) constrains States and 

LEAs from adding elements to the IEP 

and misses the opportunity to make 

sense of the one percent and two 

percent rules under the ESEA. One 

commenter recommended that the 

regulations explicitly state that nothing 

limits a State from adding its own 

mandatory components of the IEP, 

especially given the purpose and intent 

to align the Act with the ESEA. 

Discussion: There is nothing in the 

Act that limits States and LEAs from 

adding elements to the IEP, so long as 

the elements are not inconsistent with 

the Act or these regulations, and States 

do not interpret the Act to require these 

additional elements. Section 300.320(d), 

consistent with section 

614(d)(1)(A)(ii)(I) of the Act, does not 

prohibit States or LEAs from requiring 

IEPs to include information beyond that 

which is explicitly required in section 

614 of the Act. However, if a State 

requires IEPs to include information 

beyond that which is explicitly required 

in section 614 of the Act, the State must 

identify in writing to its LEAs and the 

Secretary that it is a State-imposed 

requirement and not one based on the 

Act or these regulations, consistent with 

§ 300.199(a)(2) and section 608(a)(2) of 

the Act. 

Changes: None. 

IEP Team (§ 300.321) 

Comment: One commenter 

recommended that the regulations 

clarify whether regular education 

teachers are required at every IEP Team 

meeting. 

Discussion: Consistent with 

§ 300.321(a)(2) and section 

614(d)(1)(B)(ii) of the Act, a regular 

education teacher is a required member 

of an IEP Team if the child is, or may 

be, participating in the regular 

education environment. In such cases, 

the regular education teacher would be 

expected to attend each IEP Team 

meeting, unless the regular education 

teacher has been excused from attending 

a meeting, pursuant to § 300.321(e) and 

section 614(d)(1)(C) of the Act. We do 

not believe further clarification is 

necessary. 

Changes: None. 

Comment: Many comments were 

received recommending that the IEP 

Team include additional members 

beyond those required by § 300.321(a). 

Several commenters stated that 

occupational therapists should be part 

of the IEP Team because of their unique 

training in assisting children to learn in 

changing environments. A few 

commenters recommended that a 

recreation therapist or specialist be 

included on the IEP Team. Other 

commenters stated that a practitioner 

skilled in assistive technology should be 

included. Several commenters 

recommended that the IEP Team 

include individuals with knowledge or 

special expertise regarding the related 

services needs of a child. 

Some commenters stated that 

individuals from the child welfare 

system should be included as members 

of the IEP Team and should be invited 

to attend IEP Team meetings when the 

purpose of the meeting is to consider 

transition services for a child who is a 

ward of the State or in the custody of 

the child welfare agency. The 

commenters recommended that the IEP 

Team should specifically include any of 

the following individuals: The child’s 

attorney or guardian ad litem, court 

appointed special advocate, caseworker, 

foster parent, caretaker, or judge. 

Discussion: It would be inappropriate 

to require that individuals with specific 

professional knowledge or qualifications 

attend all IEP Team meetings. These 

decisions should be made on a case-bycase basis in light of the needs of a 

particular child. Section 300.321(a)(6), 

consistent with section 614(d)(1)(B)(vi) 

of the Act, already allows other 

individuals who have knowledge or 

special expertise regarding the child, 

including related services personnel, as 

appropriate, to be included as members 

of a child’s IEP Team at the discretion 

of the parent or the agency. Therefore, 

we decline to make the changes 

recommended by the commenters. 

However, it should be noted that if a 

public agency wishes to invite officials 

from another agency, such as officials of 

the child welfare agency that are not 

representing the child, the public 

agency must obtain parental consent for 

the individual to participate in the IEP 

Team meeting because confidential 

information about the child from the 

child’s education records would be 

shared at the meeting. 

Changes: None. 

Comment: A few commenters 

recommended that the IEP Team 

include a representative of the private 

school or facility when an IEP is 

developed for a child in a private 

school. 

Discussion: We believe the 

commenters’ concerns are already 

addressed in the regulations. Section 

300.325(a) requires that, before a public 

agency places a child with a disability 

in, or refers a child to, a private school 

or facility, the agency must initiate and 

conduct a meeting to develop an IEP for 

the child and must ensure that a 

representative of the private school or 

facility attends the meeting. 

Changes: None. 

Comment: A few commenters stated 

that the IEP Team should include other 

persons whose presence on the IEP 

Team would be beneficial to the child, 

regardless of their academic 

qualifications. Other commenters 

recommended that the IEP Team 

include credentialed and licensed 

personnel, even though it is important 

to recognize that people who are not 

credentialed have important roles to 

play. 

Discussion: We believe the 

commenters’ concerns are already 

addressed. Section 614(d)(1)(B)(vi) of 

the Act states that other individuals 

who have knowledge or special 

expertise regarding the child may be 

included as members of a child’s IEP 

Team at the discretion of the parent or 

the agency. Consistent with 

§ 300.321(c), the party (parents or public 

agency) who invites the individual to be 

a member of the IEP Team determines 

the knowledge or special expertise of 

such individual. 

Changes: None. 

Comment: Several commenters 

recommended that the IEP Team 

include an IEP manager who would 

communicate with IEP members not in 

attendance, ensure that the IEP 

requirements are met, and assume 

responsibility for implementing the IEP. 

Discussion: The Act does not require 

an IEP Team manager as a part of the 

IEP Team. While having one individual 

manage the provision of services under 

the IEP might be a good practice in 

particular circumstances, we decline to 

require IEP Team managers for all IEPs 

because, in many cases, it would be 

unnecessary. In addition, to ensure that 

all IEP Team members are aware of their 

responsibilities regarding the 

implementation of a child’s IEP, 

§ 300.323(d) requires that the child’s IEP 

be accessible to each regular education 

teacher, special education teacher, 

related services provider, and any other 

service provider who is responsible for 

its implementation. 

Changes: None. 

Comment: A few commenters 

recommended that the special education 

teacher on a child’s IEP Team should be 

required to have expertise in the area of 

the child’s disability. The commenters 

stated that this is especially important 

for children with dyslexia and children 

with other learning disabilities. 

A few commenters recommended that 

the child’s future teacher be required to 

attend an end-of-the-year IEP Team 

meeting. 


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Discussion: Section 612(d)(1)(B)(iii) of 

the Act requires that not less than one 

special education teacher of the child 

(or where appropriate, not less than one 

special education provider of the child) 

be included on the IEP Team. Decisions 

as to which particular teacher(s) or 

special education provider(s) are 

members of the IEP Team and whether 

IEP Team meetings are held at the end 

of the school year or some other time, 

are best left to State and local officials 

to determine, based on the needs of the 

child. 

Changes: None. 

Comment: A few commenters 

recommended defining ‘‘regular 

education environment’’ in 

§ 300.321(a)(2) to mean the regular 

classroom and the non-academic 

environment. A few commenters 

requested that the regulations require 

children to be in the regular classroom 

and in nonacademic activities with their 

nondisabled peers. 

Discussion: It is not necessary to 

define ‘‘regular education environment’’

or to repeat that children with 

disabilities should be included in the 

regular classroom and in nonacademic 

activities with their nondisabled peers. 

The LRE requirements in §§ 300.114 

through 300.120, consistent with section 

612(a)(5) of the Act, are clear that each 

public agency must ensure that, to the 

maximum extent appropriate, children 

with disabilities are educated with 

children who are nondisabled. Section 

300.117, consistent with section 

612(a)(5) of the Act, is clear that this 

includes nonacademic and 

extracurricular services and activities. 

Changes: None. 

Comment: A few commenters stated 

that a special education provider should 

be allowed to substitute for a special 

education teacher only when the child 

does not have a special education 

teacher because the role of a special 

education teacher is different from the 

role of a special education provider. 

Discussion: The recommended change 

is not appropriate. Section 300.321(a)(2) 

incorporates the language in section 

614(d)(1)(B)(iii) of the Act and requires 

the IEP Team to include not less than 

one special education teacher, or where 

appropriate, not less than one special 

education provider. The special 

education provider may substitute when 

there is no special education teacher. 

However, the Act leaves open the 

possibility that there may be other 

appropriate circumstances when a 

special education provider could 

substitute for a special education 

teacher. These are decisions best left to 

State and local officials. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

define ‘‘special education teacher’’ and 

‘‘special education provider,’’ as used in 

§ 300.321(a)(3). 

Discussion: Section 300.321(a)(3), 

consistent with section 614(d)(1)(B)(iii) 

of the Act, requires that the IEP Team 

include not less than one special 

education teacher, or where appropriate, 

not less than one special education 

provider of the child. This is not a new 

requirement. The same requirement is 

in current § 300.344(a)(3). As noted in 

Attachment I of the March 12, 1999 final 

regulations, the special education 

teacher or provider who is a member of 

the child’s IEP Team should be the 

person who is, or will be, responsible 

for implementing the IEP. For example, 

if the child’s disability is a speech 

impairment, the special education 

teacher or special education provider 

could be the speech language 

pathologist. We do not believe that 

further clarification is needed. 

Changes: None. 

Comment: Many commenters 

recommended that the regulations 

require the IEP Team to include a 

representative of the public agency who 

has the authority to commit resources. 

One commenter stated that the failure of 

this individual to attend an IEP Team 

meeting lengthens the decision-making 

process, delays services, and removes 

parents from equal participation in an 

IEP Team meeting. 

Discussion: Section 300.321(a)(4) 

incorporates the language in section 

614(d)(1)(B)(iv) of the Act and requires 

the IEP Team to include a representative 

of the public agency who is qualified to 

provide or supervise the provision of 

specially designed instruction to meet 

the unique needs of children with 

disabilities; is knowledgeable about the 

general education curriculum; and is 

knowledgeable about the availability of 

LEA resources. 

A public agency may determine 

which specific staff member will serve 

as the agency representative in a 

particular IEP Team meeting, so long as 

the individual meets these 

requirements. It is important, however, 

that the agency representative have the 

authority to commit agency resources 

and be able to ensure that whatever 

services are described in the IEP will 

actually be provided. However, we do 

not need to regulate in the manner 

suggested, as the public agency will be 

bound by the IEP that is developed at an 

IEP Team meeting. 

Changes: None. 

Comment: One commenter 

recommended that the IEP Team 

include an individual who is qualified 

to conduct individual diagnostic 

assessments. 

Discussion: Section 300.321(a)(5) 

follows the language in section 

614(d)(1)(B)(v) of the Act and requires 

the IEP Team to include an individual 

who can interpret the instructional 

implications of evaluation results. An 

individual who is qualified to conduct 

a particular assessment does not 

necessarily have the skills or knowledge 

to assist the IEP Team in determining 

the special education, related services, 

and other supports that are necessary in 

order for the child to receive FAPE. 

Therefore, we do not believe that it is 

necessary to require that the IEP Team 

also include an individual who can 

conduct diagnostic assessments. 

Changes: None. 

Comment: A few commenters 

expressed concern that IEP Team 

meetings are being used by parent 

advocates to train parents of other 

children, and by attorneys to train their 

associates about the school’s IEP 

process. In order to prevent this, these 

commenters stated that the regulations 

should identify the specific knowledge 

and expertise that an individual must 

have to be included on an IEP Team. 

One commenter expressed concern 

about confidentiality rights; the lack of 

credentials for advocates; and the lack 

of authority for a parent or school 

district to prevent advocates from 

participating in an IEP Team meeting. 

Discussion: Section 614(d)(1)(B)(vi) of 

the Act allows other individuals who 

have knowledge or special expertise 

regarding the child to be included on a 

child’s IEP Team. Section 300.321(c) 

provides that the determination of the 

knowledge or special expertise of these 

individuals must be made by the party 

(parents or public agency) who invited 

the individual to be a member of the IEP 

Team. We continue to believe that this 

determination is best left to parents and 

the public agency. We also believe that 

it would be inappropriate to regulate on 

the specific knowledge and expertise 

that an individual must have to be 

included on an IEP Team because it 

would be burdensome for both parents 

and public agencies. 

Additionally, nothing in the Act 

prevents parents from consenting to 

have an observer who is not a member 

of the IEP Team present at the meeting, 

as the parent can consent to the sharing 

of confidential information about the 

child. With that exception, it should be 

emphasized that a person who does not 

have knowledge and special expertise 

regarding the child and who is not 

requested to be present at the IEP Team 

meeting by the parent or public agency 

would not be permitted to be a member 


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of the IEP Team or be permitted to 

attend the IEP Team meeting as an 

observer. 

Changes: None. 

Comment: A few commenters 

recommended changing § 300.321(a)(7) 

to clarify that a parent has the right to 

bring their child to any or all IEP Team 

meetings at any age. 

Discussion: We do not believe that the 

additional clarification requested by the 

commenters is necessary. Section 

614(d)(1)(B)(vii) of the Act clearly states 

that the IEP Team includes the child 

with a disability, whenever appropriate. 

Generally, a child with a disability 

should attend the IEP Team meeting if 

the parent decides that it is appropriate 

for the child to do so. If possible, the 

agency and parent should discuss the 

appropriateness of the child’s 

participation before a decision is made, 

in order to help the parent determine 

whether or not the child’s attendance 

would be helpful in developing the IEP 

or directly beneficial to the child, or 

both. 

Until the child reaches the age of 

majority under State law, unless the 

rights of the parent to act for the child 

are extinguished or otherwise limited, 

only the parent has the authority to 

make educational decisions for the child 

under Part B of the Act, including 

whether the child should attend an IEP 

Team meeting. 

Changes: None. 

Transition Services Participants 

(§ 300.321(b)) 

Comment: A few commenters 

recommended requiring the public 

agency to invite the child with a 

disability to attend the child’s IEP Team 

meeting no later than age 16 or at least 

two years prior to the child’s expected 

graduation, whichever comes first. 

Discussion: The commenters’

concerns are addressed in § 300.321(b), 

which requires the public agency to 

invite a child with a disability to attend 

the child’s IEP Team meeting if a 

purpose of the meeting will be the 

consideration of the postsecondary goals 

for the child and the transition services 

needed to assist the child in reaching 

the child’s postsecondary goals. 

Furthermore, a child’s IEP must include 

transition services beginning not later 

than the first IEP to be in effect when 

the child turns 16, or younger, if 

determined appropriate by the IEP 

Team, consistent with § 300.320(b). 

Changes: None. 

Comment: One commenter requested 

that the regulations clarify that parents 

and children are not required to use the 

transition services offered by agencies 

that the school invites to the IEP Team 

meeting. 

Discussion: There is nothing in the 

Act or these regulations that requires a 

parent or child to participate in 

transition services that are offered by 

agencies that the public agency has 

invited to participate in an IEP Team 

meeting. However, if the IEP Team 

determines that such services are 

necessary to meet the needs of the child, 

and the services are included on the 

child’s IEP, and the parent (or a child 

who has reached the age of majority) 

disagrees with the services, the parent 

(or the child who has reached the age of 

majority) can request mediation, file a 

due process complaint, or file a State 

complaint to resolve the issue. We do 

not believe further clarification in the 

regulations is necessary. 

Changes: None. 

Comment: A few commenters 

recommended requiring the public 

agency to include all the notice 

requirements in § 300.322(b) with the 

invitation to a child to attend his or her 

IEP Team meeting. The commenters 

stated that children need to be fully 

informed about the details and purpose 

of the meeting in order for them to 

adequately prepare and, therefore, 

should have the same information that 

is provided to other members of the IEP 

Team. 

Discussion: We decline to make the 

suggested change. We believe it would 

be overly burdensome to require a 

public agency to include all the notice 

requirements in § 300.322(b) with an 

invitation to a child to attend his or her 

IEP Team meeting, particularly because 

the information is provided to the 

child’s parents who can easily share this 

information with the child. However, 

when a child with a disability reaches 

the age of majority under State law, the 

public agency must provide any notice 

required by the Act to both the child 

and the parents, consistent with 

§ 300.520 and section 615(m)(1)(A) of 

the Act. 

Changes: None. 

Comment: One commenter requested 

clarification regarding the public 

agency’s responsibility to invite a child 

who has not reached the age of majority 

to the child’s IEP Team meeting when 

a parent does not want the child to 

attend. 

Discussion: Section 300.321(b)(1) 

requires the public agency to invite a 

child with a disability to attend the 

child’s IEP Team meeting if a purpose 

of the meeting will be the consideration 

of the postsecondary goals for the child 

and the transition services needed to 

assist the child in reaching those goals, 

regardless of whether the child has 

reached the age of majority. However, 

until the child reaches the age of 

majority under State law, unless the 

rights of the parent to act for the child 

are extinguished or otherwise limited, 

only the parent has the authority to 

make educational decisions for the child 

under Part B of the Act, including 

whether the child should attend an IEP 

Team meeting. 

Changes: None. 

Comment: A few commenters 

expressed concern that § 300.321(b) 

does not require children to have 

sufficient input as a member of the IEP 

Team and recommended requiring the 

IEP Team to more strongly consider the 

child’s preferences and needs. 

Discussion: Section 300.321(a)(7) 

includes the child as a member of the 

IEP Team, when appropriate, and 

§ 300.321(b)(1) requires the public 

agency to invite the child to the child’s 

IEP Team meeting when the purpose of 

the meeting will be the consideration of 

the postsecondary goals for the child 

and the transition services needed to 

assist the child in reaching those goals. 

Further, if the child does not attend the 

IEP Team meeting, § 300.321(b)(2) 

requires the public agency to take other 

steps to ensure that the child’s 

preferences and interests are 

considered. We believe this is sufficient 

to ensure that the child’s preferences 

and needs are considered and do not 

believe that any changes to § 300.321(b) 

are necessary. 

Changes: None. 

Comment: One commenter stated that 

the requirements in § 300.321(b), 

regarding transition services 

participants, are not in the Act, are too 

rigid, and should be modified to provide 

more flexibility for individual children. 

Discussion: We believe that, although 

not specified in the Act, the 

requirements in § 300.321(b) are 

necessary to assist children with 

disabilities to successfully transition 

from high school to employment, 

training, and postsecondary education 

opportunities. We believe it is critical 

for children with disabilities to be 

involved in determining their transition 

goals, as well as the services that will be 

used to reach those goals. Section 

300.321(b), therefore, requires the 

public agency to invite the child to 

attend IEP Team meetings in which 

transition goals and services will be 

discussed. If the child does not attend 

the IEP Team meeting, § 300.321(b)(2) 

requires the public agency to take other 

steps to ensure that the child’s 

preferences and interests are 

considered. 

We also believe that, when it is likely 

that a child will be involved with other 


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agencies that provide or pay for 

transition services or postsecondary 

services, it is appropriate (provided that 

the parent, or a child who has reached 

the age of majority, consents) for 

representatives from such agencies to be 

invited to the child’s IEP Team meeting. 

The involvement and collaboration with 

other public agencies (e.g., vocational 

rehabilitation agencies, the Social 

Security Administration) can be helpful 

in planning for transition and in 

providing resources that will help 

children when they leave high school. 

We believe that children with 

disabilities will benefit when transition 

services under the Act are coordinated 

with vocational rehabilitation services, 

as well as other supports and programs 

that serve all children moving from 

school to adult life. Therefore, we 

decline to change the requirements in 

§ 300.321(b). 

Changes: None. 

Comment: One commenter stated that 

§ 300.321(b)(1), which requires the 

public agency to invite the child to an 

IEP Team meeting when transition is to 

be considered, duplicates 

§ 300.321(a)(7), which requires a child 

with a disability to be invited to his or 

her IEP Team meeting, whenever 

possible. 

Discussion: These two provisions are 

not redundant. Section 300.321(a)(7) 

requires the public agency to include 

the child with a disability, when 

appropriate (not ‘‘whenever possible,’’

as stated by the commenter), in the 

child’s IEP Team meeting, and, thus, 

provides discretion for the parent and 

the public agency to determine when it 

is appropriate to include the child in the 

IEP Team meeting. Section 300.321(b), 

on the other hand, requires a public 

agency to invite a child to attend an IEP 

Team meeting when the purpose of the 

meeting will be to consider the 

postsecondary goals for the child and 

the transition services needed to assist 

the child to reach those goals. The 

Department believes it is important for 

a child with a disability to participate in 

determining the child’s postsecondary 

goals and for the IEP Team to consider 

the child’s preferences and interests in 

determining those goals. 

Changes: None. 

Comment: Many commenters 

recommended removing the 

requirement in § 300.321(b)(3) for 

parental consent (or consent of a child 

who has reached the age of majority) 

before inviting personnel from 

participating agencies to attend an IEP 

Team meeting because it is burdensome, 

may reduce the number of agencies 

participating in the IEP Team meeting, 

and may limit the options for transition 

services for the child. The commenters 

stated that this consent is unnecessary 

under FERPA, and inconsistent with 

§ 300.321(a)(6), which allows the parent 

or the agency to include other 

individuals in the IEP Team who have 

knowledge or special expertise 

regarding the child. 

Discussion: Section 300.321(b)(3) was 

included in the regulations specifically 

to address issues related to the 

confidentiality of information. Under 

section 617(c) of the Act the Department 

must ensure the protection of the 

confidentiality of any personally 

identifiable data, information, and 

records collected or maintained by the 

Secretary and by SEAs and LEAs 

pursuant to Part B of the Act, 

irrespective of the requirements under 

FERPA. We continue to believe that a 

public agency should be required to 

obtain parental consent (or the consent 

of a child who has reached the age of 

majority) before inviting representatives 

from other participating agencies to 

attend an IEP Team meeting, consistent 

with § 300.321(b)(3). 

We do not believe that the 

requirements in § 300.321(b)(3) are 

inconsistent with § 300.321(a)(6). 

Section 300.321(a)(6) permits other 

individuals who have knowledge or 

special expertise regarding the child to 

attend the child’s IEP Team meeting at 

the discretion of the parent or the public 

agency. It is clear that in § 300.321(b)(3), 

the individuals invited to the IEP Team 

meeting are representatives from other 

agencies who do not necessarily have 

special knowledge or expertise 

regarding the child. In these situations, 

we believe that consent should be 

required because representatives of 

these agencies are invited to participate 

in a child’s IEP Team meeting only 

because they may be providing or 

paying for transition services. We do not 

believe that representatives of these 

agencies should have access to all the 

child’s records unless the parent (or the 

child who has reached the age of 

majority) gives consent for such a 

disclosure. Therefore, we believe it is 

important to include the requirement for 

consent in § 300.321(b)(3). 

Changes: None. 

Comment: Some commenters 

recommended removing the phrase, ‘‘to 

the extent appropriate’’ in 

§ 300.321(b)(3) and requiring public 

agencies to invite a representative of any 

participating agency that is likely to be 

responsible for providing or paying for 

transition services to the IEP Team 

meeting. 

Discussion: We disagree with the 

recommended change because the 

decision as to whether to invite a 

particular agency to participate in a 

child’s IEP Team meeting is a decision 

that should be left to the public agency 

and the parent (or the child with a 

disability who has reached the age of 

majority). 

Changes: None. 

Comment: Numerous commenters 

recommended retaining current 

§ 300.344(b)(3)(ii), which requires the 

public agency to take steps to ensure the 

participation of invited agencies in the 

planning of any transition services 

when the agencies do not send a 

representative to the IEP Team meeting. 

These commenters stated that the 

participation of other agencies is vital to 

ensuring that the child receives the 

necessary services. One commenter 

requested that the regulations clarify 

that, aside from inviting other agencies 

to attend a child’s IEP Team meeting, 

public agencies have no obligation to 

obtain the participation of agencies 

likely to provide transition services. 

Discussion: The Act has never given 

public agencies the authority to compel 

other agencies to participate in the 

planning of transition services for a 

child with a disability, including when 

the requirements in § 300.344(b)(3)(ii) 

were in effect. Without the authority to 

compel other agencies to participate in 

the planning of transition services, 

public agencies have not been able to 

meet the requirement in current 

§ 300.344(b)(3)(ii) to ‘‘ensure’’ the 

participation of other agencies in 

transition planning. Therefore, while we 

believe that public agencies should take 

steps to obtain the participation of other 

agencies in the planning of transition 

services for a child, we believe it is 

unhelpful to retain current 

§ 300.344(b)(3)(ii). 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

require the public agency to put parents 

in touch with agencies providing 

transition services. 

Discussion: We do not believe it is 

necessary to regulate to require public 

agencies to put parents in touch with 

agencies providing transition services. 

As a matter of practice, public agencies 

regularly provide information to 

children and parents about transition 

services during the course of planning 

and developing transition goals and 

determining the services that are 

necessary to meet the child’s transition 

goals. 

Changes: None. 

Comment: One commenter asked 

whether a parent could exclude an 

individual from the IEP Team. 

Discussion: A parent can refuse to 

provide consent only for the public 


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agency to invite other agencies that are 

likely to be responsible for providing or 

paying for transition services. A parent 

may not exclude any of the required 

members of the IEP Team. 

Changes: None. 

IEP Team Attendance (§ 300.321(e)) 

Comment: We received many 

comments from individuals expressing 

concern about allowing IEP Team 

members to be excused from attending 

an IEP Team meeting. A few 

commenters recommended that the 

regulations require all IEP Team 

members to attend all IEP Team 

meetings without exception. One 

commenter stated that excusing 

members from attending IEP Team 

meetings interrupts the flow of the 

meeting and takes away time from 

discussing the child’s needs. Another 

commenter expressed concern that the 

integrity of the IEP Team meeting 

process depends on a discussion to 

determine the services that are 

necessary to meet the child’s unique 

needs, and that the richness of this 

discussion may be diminished if IEP 

Team members are allowed to be 

excused too frequently and the IEP 

Team must rely on written input. 

Several commenters recommended 

that the regulations acknowledge that, 

in most circumstances, interactive 

discussion in IEP Team meetings is 

preferable to written input. Many 

commenters requested that the 

multidisciplinary scope of the IEP Team 

meeting be maintained. One commenter 

stated that written input from an 

excused IEP Team member is not 

sufficient and will be burdensome for 

both the writer and the readers. 

Discussion: Section 614(d)(1)(C) of the 

Act allows a parent of a child with a 

disability and the LEA to agree that the 

attendance of an IEP Team member at 

an IEP Team meeting, in whole or in 

part, is not necessary under certain 

conditions. Allowing IEP Team 

members to be excused from attending 

an IEP Team meeting is intended to 

provide additional flexibility to parents 

in scheduling IEP Team meetings and to 

avoid delays in holding an IEP Team 

meeting when an IEP Team member 

cannot attend due to a scheduling 

conflict. 

Changes: None. 

Comment: Many commenters stated 

that the excusal provisions in § 300.321 

should be optional for States and that 

States should be allowed to require that 

all IEP Team members attend each IEP 

Team meeting. Several commenters 

recommended allowing States to 

determine the circumstances or 

conditions under which attendance at 

the IEP Team meeting is not required. A 

few commenters recommended 

clarifying whether a State must have 

policies and procedures to excuse IEP 

Team members. 

Discussion: Under section 

614(d)(1)(C) of the Act, a State must 

allow a parent and an LEA to agree to 

excuse a member of the IEP Team. 

Section 300.321(e) reflects this 

requirement and we do not have the 

authority to make this optional for 

States. We also do not have the 

authority to allow a State to restrict, or 

otherwise determine, when an IEP Team 

member can be excused from attending 

a meeting, or to prohibit the excusal of 

an IEP Team member when the LEA and 

parent agree to the excusal. Whether a 

State must have policies and procedures 

to excuse IEP Team members from 

attending an IEP Team meeting will 

depend on whether such policies and 

procedures are required by a State to 

implement this statutory requirement. 

However, every State must allow a 

parent and an LEA to agree to excuse an 

IEP Team member from attending an IEP 

Team meeting. 

Changes: None. 

Comment: Several commenters 

recommended that the regulations 

clarify whether the excusal agreement 

must meet the standard for informed 

consent. Some commenters stated that 

Congress intended excusal agreements 

to mean informed written consent. 

Other commenters stated that parents, 

not the public agency, can provide 

consent and therefore, only parents 

should be allowed to provide consent 

for excusing IEP Team members from 

IEP Team meetings. A few commenters 

recommended simplifying § 300.321(e) 

by eliminating the different procedures 

for different types of excusals. 

Discussion: Whether a parent must 

provide consent to excuse a member of 

the IEP Team from attending an IEP 

Team meeting depends on whether the 

member’s area of the curriculum or 

related services is being modified or 

discussed at the IEP Team meeting. We 

cannot eliminate the different 

procedures for different types of 

excusals because section 614(d)(1)(C) of 

the Act clearly differentiates between 

circumstances in which parental 

consent is required and when an 

agreement is required to excuse an IEP 

member from attending an IEP Team 

meeting. 

If the member’s area is not being 

modified or discussed, § 300.321(e)(1), 

consistent with section 614(d)(1)(C) of 

the Act, provides that the member may 

be excused from the meeting if the 

parent and LEA agree in writing that the 

member’s attendance is not necessary. 

An agreement is not the same as 

consent, but instead refers to an 

understanding between the parent and 

the LEA. Section 614(d)(1)(C) of the Act 

specifically requires that the agreement 

between a parent and an LEA to excuse 

a member’s attendance at an IEP Team 

meeting must be in writing. If, however, 

the member’s area is being modified or 

discussed, § 300.321(e)(2), consistent 

with section 614(d)(1)(C)(ii) of the Act, 

requires the LEA and the parent to 

provide written informed consent. 

Changes: None. 

Comment: One commenter asked 

whether parents must be provided any 

information when asked to excuse IEP 

Team members. A few commenters 

recommended that the request for an 

excusal include the reason for the 

request to excuse a member of the IEP 

Team, that it be written in the chosen 

language of the parent, and 

accompanied by written evaluations and 

recommendations of the excused IEP 

Team member. 

A few commenters recommended that 

no IEP Team member should be excused 

from attending an IEP Team meeting 

until the parent is informed about the 

purpose of the meeting for which the 

public agency proposes to excuse the 

IEP Team member; the IEP Team 

member’s name and position; the 

reason(s) the public agency wants to 

excuse the IEP Team member; the 

parent’s right to have the IEP Team 

member present; and the parent’s right 

to discuss with the IEP Team member 

any issues in advance of the meeting so 

the parent is adequately informed. The 

commenters stated that this notice 

should be included in any statement of 

parent’s rights that is distributed. 

Numerous commenters recommended 

that the regulations include specific 

language to clarify that, before agreeing 

to excuse an IEP Team member, serious 

consideration must be given to 

determining if written input will be 

sufficient to thoroughly examine what 

services are needed and whether 

changes to the current IEP are necessary. 

A few commenters recommended that 

parents be informed of the roles and 

responsibilities of the excused member 

prior to giving consent for the excusal. 

Some commenters stated that parents 

must understand that they have the 

right to disagree and not excuse a 

member of the IEP Team who the 

parents believe may be essential to 

developing or revising an IEP. One 

commenter recommended that the 

written agreement be required to 

include information that the parent was 

informed of the parent’s right to have all 

IEP Team members present. 


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One commenter recommended 

permitting States to establish additional 

procedural safeguards that guarantee 

that parents who consent to excuse an 

IEP member from a meeting do so freely 

and are aware of the implications of 

their decisions. Some commenters 

expressed concern that a parent could 

be pressured to agree to excuse an IEP 

Team member for what, in reality, are 

economic or staffing reasons. One 

commenter stated that parents should 

have the right to consent to excusal only 

after conferring with the individual to 

be excused. Some commenters 

recommended that parents be informed 

that they have a legal right to require an 

IEP Team member to participate in the 

meeting. 

A few commenters expressed concern 

that the permission to excuse IEP Team 

members from attending IEP Team 

meetings will be abused, particularly 

with language-minority parents who are 

often misinformed or misled by school 

districts. Some commenters stated that 

parents do not understand the roles of 

the various members and could easily 

be pressured into excusing vital 

members of the IEP Team. 

A few commenters recommended that 

the regulations include requirements to 

guard against excessive excusals. Some 

commenters stated that an LEA that 

routinely prevents general or special 

education teachers, or related services 

providers, from attending IEP Team 

meetings using the excusal provisions 

should be subject to monitoring and 

review. 

Discussion: When an IEP Team 

member’s area is not being modified or 

discussed, § 300.321(e)(1), consistent 

with section 614(d)(1)(C) of the Act, 

provides that the member may be 

excused from the meeting if the parent 

and LEA agree in writing that the 

member’s attendance is not necessary. 

We believe it is important to give public 

agencies and parents wide latitude 

about the content of the agreement and, 

therefore, decline to regulate on the 

specific information that an LEA must 

provide in a written agreement to 

excuse an IEP Team member from 

attending the IEP Team meeting when 

the member’s area of the curriculum or 

related services is not being modified or 

discussed. 

When an IEP Team member’s area is 

being modified or discussed, 

§ 300.321(e)(2), consistent with section 

614(d)(1)(C)(ii) of the Act, requires the 

LEA and the parent to provide written 

informed consent. Consistent with 

§ 300.9, consent means that the parent 

has been fully informed in his or her 

native language, or other mode of 

communication, and understands that 

the granting of consent is voluntary and 

may be revoked at any time. The LEA 

must, therefore, provide the parent with 

appropriate and sufficient information 

to ensure that the parent fully 

understands that the parent is 

consenting to excuse an IEP Team 

member from attending an IEP Team 

meeting in which the member’s area of 

the curriculum or related services is 

being changed or discussed and that if 

the parent does not consent the IEP 

Team meeting must be held with that 

IEP Team member in attendance. 

We believe that these requirements 

are sufficient to ensure that the parent 

is fully informed before providing 

consent to excuse an IEP Team member 

from attending an IEP Team meeting in 

which the member’s area of the 

curriculum will be modified or 

discussed, and do not believe that it is 

necessary to include in the regulations 

the more specific information that 

commenters recommended be provided 

to parents. 

We also do not believe it is necessary 

to add a regulation permitting States to 

establish additional procedural 

safeguards for parents who consent to 

excuse an IEP Team member, as 

recommended by one commenter, 

because we believe the safeguard of 

requiring consent will be sufficient to 

prevent parents from feeling pressured 

to excuse an IEP Team member. 

Furthermore, parents who want to 

confer with an excused team member 

may ask to do so before agreeing or 

consenting to excusing the member from 

attending the IEP Team meeting, but it 

would be inappropriate to add a 

regulation that limited parent rights by 

requiring a conference before the parent 

could agree or consent to the excusal of 

an IEP Team member. 

With regard to the recommendation 

that the notice state that the parent has 

a legal right to require an IEP Team 

member to participate in an IEP Team 

meeting, it is important to emphasize 

that it is the public agency that 

determines the specific personnel to fill 

the roles for the public agency’s 

required participants at the IEP Team 

meeting. A parent does not have a legal 

right to require other members of the 

IEP Team to attend an IEP Team 

meeting. Therefore, if a parent invites 

other public agency personnel who are 

not designated by the LEA to be on the 

IEP Team, they are not required to 

attend. 

An LEA may not routinely or 

unilaterally excuse IEP Team members 

from attending IEP Team meetings as 

parent agreement or consent is required 

in each instance. We encourage LEAs to 

carefully consider, based on the 

individual needs of the child and the 

issues that need to be addressed at the 

IEP Team meeting whether it makes 

sense to offer to hold the IEP Team 

meeting without a particular IEP Team 

member in attendance or whether it 

would be better to reschedule the 

meeting so that person could attend and 

participate in the discussion. However, 

we do not believe that additional 

regulations on this subject are 

warranted. 

An LEA that routinely excuses IEP 

Team members from attending IEP 

Team meetings would not be in 

compliance with the requirements of the 

Act, and, therefore, would be subject to 

the State’s monitoring and enforcement 

provisions. 

Changes: None. 

Comment: A few commenters 

requested clarification on whether 

excusals from IEP Team meetings apply 

to only regular education teachers, 

special education teachers, and related 

services providers, or to all individuals 

whose curriculum areas may be 

discussed at an IEP Team meeting. One 

commenter recommended clarifying 

that all IEP Team members, as defined 

in § 300.321, must be represented at the 

IEP Team meeting unless excused by the 

parents and the LEA. 

One commenter stated that 

§ 300.321(e) can be read to require that 

each individual invited to the IEP Team 

meeting by the parent or the public 

agency (who has knowledge or special 

expertise) must attend the meeting 

unless the parent and the agency agree 

in writing that they need not attend. The 

commenter recommended that the 

regulations clarify that the attendance of 

the other individuals invited to attend 

the IEP Team meeting by the parent and 

public agency is discretionary and that 

no waiver is needed to hold the IEP 

Team meeting without them. The 

commenter recommended revising 

§ 300.321(e)(1) to refer to ‘‘mandatory’’

members of the IEP Team. Another 

commenter expressed concern that it is 

not possible to pre-determine the areas 

of the curriculum that may be addressed 

at an IEP Team meeting, and 

recommended that excusals be 

permitted only for the IEP Team 

members identified by the public 

agency in § 300.321(a). 

One commenter recommended that 

the regulations allow teachers with 

classroom responsibilities to attend an 

IEP Team meeting for 15 to 20 minutes 

and leave the meeting when necessary. 

Some commenters requested 

clarification regarding situations in 

which there is more than one regular 

education teacher at an IEP Team 

meeting and whether one or both 


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teachers must have a written excusal to 

leave before the end of an IEP Team 

meeting. 

One commenter stated that it is 

unclear whether consent must be 

obtained if a speech pathologist or 

occupational therapist cannot attend a 

meeting because speech pathologists 

and occupational therapists are not 

required members of an IEP Team. 

Discussion: We believe that the 

excusals from IEP Team meetings apply 

to the members of the IEP Team in 

paragraphs (a)(2) through (5) in 

§ 300.321, that is, to the regular 

education teacher of the child (if the 

child is, or may be participating in the 

regular education environment); not less 

than one special education teacher of 

the child (or where appropriate, not less 

than one special education provider of 

the child); a representative of the public 

agency who meets the requirements in 

§ 300.321(a)(4); and an individual who 

can interpret the instructional 

implications of evaluation results. We 

do not believe it is necessary to require 

consent or a written agreement between 

the parent and the public agency to 

excuse individuals who are invited to 

attend IEP Team meetings at the 

discretion of the parent or the public 

agency because such individuals are not 

required members of an IEP Team. We 

will add new language to § 300.321(e) to 

clarify the IEP Team members for whom 

the requirements regarding excusals 

apply. 

With regard to situations in which 

there is more than one regular education 

teacher, the IEP Team need not include 

more than one regular education 

teacher. The regular education teacher 

who serves as a member of a child’s IEP 

Team should be a teacher who is, or 

may be, responsible for implementing a 

portion of the IEP so that the teacher can 

participate in discussions about how 

best to instruct the child. If the child has 

more than one regular education teacher 

responsible for carrying out a portion of 

the IEP, the LEA may designate which 

teacher or teachers will serve as the IEP 

member(s), taking into account the best 

interest of the child. An LEA could also 

agree that each teacher attend only the 

part of the meeting that involves 

modification to, or discussion of, the 

teacher’s area of the curriculum. 

Section 300.321(a)(3) requires the IEP 

Team to include not less than one 

special education teacher or where 

appropriate, not less than one special 

education provider of the child. As 

explained earlier, a special education 

provider is a person who is, or will be, 

responsible for implementing the IEP. 

Therefore, if a speech pathologist, 

occupational therapist, or other special 

education provider, other than the 

child’s special education teacher is on 

the IEP Team, written consent from the 

parent would be required for the speech 

pathologist, occupational therapist, or 

other special education provider to be 

excused from attending an IEP Team 

meeting, in whole or in part, when the 

IEP Team meeting involves a 

modification to, or discussion of, the 

IEP Team member’s related service or 

area of the curriculum. 

Changes: We have added language in 

§ 300.321(e)(1) to refer to paragraphs 

(a)(2) through (a)(5), and a reference to 

paragraph (e)(1) in § 300.321(e)(2) to 

clarify the IEP Team members for whom 

a parent and public agency must 

consent or agree in writing to excuse 

from an IEP Team meeting. 

Comment: A few commenters stated 

that excusal of the regular education 

teacher is already built into the 

requirements and questioned the 

circumstances under which a State 

might exceed these requirements. 

Discussion: Section 300.321(a)(2) does 

not require a regular education teacher 

to be part of the IEP Team for a child 

who is not participating in the regular 

education environment or is not 

anticipated to participate in the regular 

education environment. The excusals 

from IEP Team meetings in § 300.321(e) 

apply to a regular education teacher 

who is part of the IEP Team by virtue 

of the fact that the child with a 

disability is participating, or may be 

participating, in the regular education 

environment. 

Changes: None. 

Comment: Some commmenters 

recommended setting a limit as to how 

often teachers can be excused from IEP 

Team meetings. A few commenters 

recommended prohibiting the excusal of 

IEP Team members for initial IEP Team 

meetings. One commenter 

recommended allowing an IEP Team 

meeting to occur only if there is one 

person who cannot attend the meeting. 

Many commenters opposed the 

excusal of teachers, therapists, speech 

providers, and other experts who work 

with a child on an ongoing basis. A few 

commenters stated that regular 

education teachers should not be 

excused from IEP Team meetings 

because they have the content expertise 

that is critical to the IEP process. One 

commenter stated that the excusal of an 

LEA representative should not be 

allowed. 

A few commenters requested 

guidance to make it more difficult for 

IEP Team members to be excused from 

IEP Team meetings. Some commenters 

stated that excusing IEP Team members 

should only be done in limited 

circumstances and only when 

absolutely necessary. 

Some commenters recommended that 

the regulations provide an opportunity 

for the parents to challenge a public 

agency’s attempt to exclude staff 

members who believe their attendance 

is necessary at an IEP Team meeting. A 

few commenters suggested that the 

regulations prohibit excusal of 

personnel based on the cost of providing 

coverage in the classroom for a teacher 

to attend the IEP Team meeting, 

disagreements over appropriate services 

among staff, or scheduling problems. 

One commenter recommended that the 

regulations clearly state that teachers 

cannot be barred from attending an IEP 

Team meeting. 

Discussion: We decline to make the 

changes requested by the commenters 

because it would be inconsistent with 

section 614(d)(1)(C) of the Act to set a 

limit on the number of times an IEP 

Team member could be excused; 

prohibit excusals for initial IEP Team 

meetings; restrict the number of 

excusals per meeting; prohibit certain 

IEP Team members from being excused 

from attending an IEP Team meeting; or 

otherwise restrict or limit parents and 

LEAs from agreeing to excuse IEP Team 

members from attending an IEP Team 

meeting. Likewise, it would be 

inconsistent with section 614(d)(1)(C) of 

the Act for an LEA to unilaterally 

excuse an IEP Team member from 

attending an IEP Team meeting. 

The public agency determines the 

specific personnel to fill the roles for the 

public agency’s required participants at 

the IEP Team meeting. Whether other 

teachers or service providers who are 

not the public agency’s required 

participants at the IEP Team meeting 

can attend an IEP Team meeting is best 

addressed by State and local officials. 

Changes: None. 

Comment: A few commenters asked 

whether the regular teacher, the special 

education teacher, principal, or the LEA 

makes the decision with the parent to 

excuse an IEP member. Some 

commenters recommended that the 

regulations require the excused IEP 

Team member to agree to be excused 

from an IEP Team meeting. Other 

commenters stated that a teacher should 

be included as one of the parties that 

decide whether a teacher should be 

excused from attending the IEP Team 

meeting. 

Numerous commenters recommended 

that, before an IEP Team member is 

excused from attending an IEP Team 

meeting, sufficient notice must be given 

so that other IEP Team members can 

consider the request. Some commenters 

requested that the regulations clarify 


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whether the entire IEP Team must meet 

and then agree on whether a member’s 

attendance at the IEP Team meeting is 

needed. 

Discussion: It would not be 

appropriate to make the changes 

recommended by the commenters. 

There is no requirement that the 

excused IEP Team member agree to be 

excused from the IEP Team meeting, 

that a teacher be included as one of the 

parties that decides whether a teacher 

should be excused from attending the 

IEP Team meeting, or that other IEP 

Team members agree to excuse a 

member’s attendance. It is up to each 

public agency to determine the 

individual in the LEA with the authority 

to make the agreement (or provide 

consent) with the parent to excuse an 

IEP Team member from attending an IEP 

Team meeting. The designated 

individual must have the authority to 

bind the LEA to the agreement with the 

parent or provide consent on behalf of 

the LEA. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

specifically state that parents retain the 

right to change their mind to excuse an 

IEP Team member and have full IEP 

Team member participation, if it 

becomes apparent during the IEP Team 

meeting that the absence of an excused 

IEP Team member inhibits the 

development of the IEP. One commenter 

expressed concern that parents will be 

informed of excusals at the beginning of 

a meeting or be given a note, report, or 

letter from the absent IEP Team 

member. 

Discussion: The IEP Team is expected 

to act in the best interest of the child. 

As with any IEP Team meeting, if 

additional information is needed to 

finalize an appropriate IEP, there is 

nothing in the Act that prevents an IEP 

Team from reconvening after the needed 

information is obtained, as long as the 

IEP is developed in a timely manner, 

consistent with the requirements of the 

Act and these regulations. The parent 

can request an additional IEP Team 

meeting at any time and does not have 

to agree to excuse an IEP Team member. 

Likewise, if a parent learns at the IEP 

Team meeting that a required 

participant will not be at the meeting, 

the parent can agree to continue with 

the meeting and request an additional 

meeting if more information is needed, 

or request that the meeting be 

rescheduled. 

Changes: None. 

Comment: Several commenters 

recommended that the regulations 

specify the amount of time prior to an 

IEP Team meeting by which notice must 

be received by the parent about the 

LEA’s desire to excuse an IEP Team 

member from attending an IEP Team 

meeting. A few commenters 

recommended that an LEA’s request for 

excusal of an IEP Team member be 

provided to the parent 10 business days 

prior to the date of the IEP Team 

meeting and other commenters 

recommended five business days before 

an IEP Team meeting. 

One commenter recommended that 

the regulations specify when the 

parent’s written consent to excuse IEP 

Team members from the meeting must 

be received by the agency. Many 

commenters recommended that the 

regulations include language requiring 

that any agreement to excuse an IEP 

Team member from attending the IEP 

Team meeting be done in advance of the 

meeting. Some commenters stated that 

requiring an agreement in advance of an 

IEP Team meeting would allow the 

parent to review the IEP Team member’s 

written input prior to the IEP Team 

meeting and ensure that parental 

consent is informed. A few commenters 

recommended that the Act prohibit a 

written agreement from being signed 

before the meeting occurs. 

Discussion: The Act does not specify 

how far in advance of an IEP Team 

meeting a parent must be notified of an 

agency’s request to excuse a member 

from attending an IEP Team meeting or 

when the parent and LEA must sign a 

written agreement or provide consent to 

excuse an IEP Team member. Ideally, 

public agencies would provide parents 

with as much notice as possible to 

request that an IEP Team member be 

excused from attending an IEP Team 

meeting, and have agreements or 

consents signed at a reasonable time 

prior to the IEP Team meeting. 

However, this might not always be 

possible, for example, when a member 

has an emergency or an unavoidable 

scheduling conflict. To require public 

agencies to request an excusal or obtain 

a signed agreement or consent to excuse 

a member a specific number of days 

prior to an IEP Team meeting would 

effectively prevent IEP Team members 

from being excused from IEP Team 

meetings in many situations and, thus, 

be counter to the intent of providing 

additional flexibility to parents in 

scheduling IEP Team meetings. 

Furthermore, if an LEA requests an 

excusal at the last minute or a parent 

needs additional time or information to 

consider the request, the parent always 

has the right not to agree or consent to 

the excusal of the IEP Team member. 

We, therefore, decline to regulate on 

these matters. 

Changes: None. 

Comment: One commenter requested 

that the regulations clarify the 

timeframe in which the written input 

must be provided to the parent and the 

IEP Team. Another commenter 

expressed concern that without 

knowing whether the information 

submitted is sufficient to answer any of 

the parent’s questions, the parent could 

not agree, in any informed way, to 

excuse an IEP Team member from 

attending the IEP Team meeting. 

Several commenters recommended 

that written input be provided to 

parents a reasonable amount of time 

prior to the meeting and not at the 

beginning of the meeting. One 

commenter recommended requiring that 

parents receive written evaluations and 

recommendations from the excused 

member at least 10 business days before 

the IEP Team meeting. Another 

commenter recommended that written 

input be provided at least 10 school 

days in advance of the meeting; another 

commenter suggested no later than 

seven days before the meeting; a few 

commenters recommended at least five 

days in advance of the meeting; and 

some commenters recommended at least 

three business days before the meeting. 

A few commenters recommended 

requiring public agencies to send 

parents the written input of excused IEP 

Team members as soon as they receive 

it so that parents have sufficient time to 

consider the input. One commenter 

recommended that the regulations 

require the written input to be provided 

to IEP Team members and parents at the 

same time. 

Discussion: Section 614(d)(1)(C)(ii)(II) 

of the Act requires that input into the 

development of the IEP by the IEP Team 

member excused from the meeting be 

provided prior to the IEP Team meeting 

that involves a modification to, or 

discussion of the member’s area of the 

curriculum or related services. The Act 

does not specify how far in advance of 

the IEP Team meeting that the written 

input must be provided to the parent 

and IEP Team members. For the reasons 

stated earlier, we do not believe it is 

appropriate to impose a specific 

timeframe for matters relating to the 

excusal of IEP Team members. Parents 

can always reschedule an IEP Team 

meeting or request that an IEP Team 

meeting be reconvened if additional 

time is needed to consider the written 

information. 

Changes: None. 

Comment: A few commenters 

recommended language clarifying that 

IEP Team members who submit input 

prior to an IEP Team meeting may still 

attend the meeting. Other commenters 

requested that the regulations specify 


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that failure to provide prior written 

input, due to inadequate notice or 

unreasonable workloads, does not 

prohibit the excused member from 

attending the meeting in person. 

Discussion: The Act does not address 

circumstances in which an IEP Team 

member is excused from an IEP Team 

meeting, but desires to attend the 

meeting. We believe such circumstances 

are best addressed by local officials and 

are not appropriate to include in these 

regulations. 

Changes: None. 

Comment: A few commenters 

recommended that the format of the 

written input required in § 300.321(e) be 

flexible and not unduly burdensome. 

One commenter stated that no new form 

should be created for the written input. 

A few commenters recommended that 

the regulations clarify that the written 

input must be sufficient to allow the IEP 

Team to thoroughly examine the 

services needed and decide whether 

changes to the current IEP are needed. 

Other commenters recommended that 

the written input provide information 

about a child’s level of academic 

achievement and functional 

performance; recommendations for 

services, supports, and accommodations 

to improve academic and functional 

performance; revisions to the current 

annual goals; and other appropriate 

guidance. 

Other commenters recommended that 

the written input include the IEP Team 

member’s opinions regarding the child’s 

eligibility and services needed; the basis 

for the opinions, including any 

evaluations or other documents that 

formed the basis for the IEP Team 

member’s opinion; and whether the 

evaluations were conducted by the IEP 

Team member or another person. These 

commenters also recommended that the 

regulations require the excused IEP 

Team member to include a telephone 

number where the IEP Team member 

can be reached prior to the meeting if 

the parent wants to contact the member, 

and a telephone number where the 

member can be reached during the 

meeting in case immediate input during 

the meeting is required. 

A few commenters recommended 

prohibiting public agencies from giving 

the child the written input at school to 

take home to his or her parents. One 

commenter recommended that the 

written input be provided with the 

meeting notice required in § 300.322. 

Another commenter recommended that 

the regulations allow the written input 

to be provided to parents and other IEP 

Team members by electronic mail or 

other less formal methods. 

Discussion: The Act does not specify 

the format or content to be included in 

the written input provided by an 

excused member of the IEP Team. 

Neither does the Act specify the 

method(s) by which a public agency 

provides parents and the IEP Team with 

the excused IEP Team member’s written 

input. We believe that such decisions 

are best left to local officials to 

determine based on the circumstances 

and needs of the individual child, 

parent, and other members of the IEP 

Team, and therefore decline to regulate 

in this area. 

Changes: None. 

Comment: One commenter 

recommended requiring any IEP Team 

member who is excused from an IEP 

Team meeting to be trained in the 

updated IEP within one calendar week 

of the IEP Team meeting. A few 

commenters recommended that the 

excused IEP Team members be provided 

a copy of the new or amended IEP after 

the meeting. One commenter 

recommended that one person be 

designated to be responsible for sharing 

the information from the meeting with 

the excused IEP Team member and for 

communicating between the parent and 

the excused IEP Team member after the 

meeting. 

Discussion: Section 300.323(d) 

already requires each public agency to 

ensure that the child’s IEP is accessible 

to each regular education teacher, 

special education teacher, related 

services provider and other service 

provider who is responsible for its 

implementation, regardless of whether 

the IEP Team member was present or 

excused from an IEP Team meeting. 

How and when the information is 

shared with the IEP Team member who 

was excused from the IEP Team meeting 

is best left to State and local officials to 

determine. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

require the LEA to inform a parent when 

the absent IEP Team member will 

address the parent’s questions and 

concerns. Another commenter 

recommended that the regulations 

require the LEA to inform the parent of 

procedures for obtaining the requested 

information. 

Discussion: We do not believe it is 

appropriate to regulate on these matters. 

The manner in which the parent’s 

questions and concerns are addressed, 

and how the information is shared with 

the parent, are best left for State and 

local officials to determine. 

Changes: None. 

Comment: One commenter requested 

clarification on how the provisions in 

§ 300.321(e), which allow IEP Team 

members to be excused from IEP Team 

meetings, relate to revising an IEP 

without convening an IEP Team 

meeting. 

Discussion: The two provisions 

referred to by the commenter are 

independent provisions. Section 

300.321(e), consistent with section 

614(d)(1)(C) of the Act, describes the 

circumstances under which an IEP 

Team member may be excused from an 

IEP Team meeting. Section 

300.324(a)(4), consistent with section 

614(d)(3)(D) of the Act, permits the 

parent and the public agency to agree 

not to convene an IEP Team meeting to 

make changes to a child’s IEP after the 

annual IEP Team meeting has been held. 

Changes: None. 

Initial IEP Team Meeting for Child 

Under Part C (§ 300.321(f)) 

Comment: Several commenters 

recommended that the regulations 

require the public agency to inform 

parents of their right to request that the 

public agency invite their child’s Part C 

service coordinator to the initial IEP 

Team meeting. One commenter 

recommended that the regulations 

require parents to be informed of this 

option in writing. 

Discussion: Section 300.321(f), 

consistent with section 614(d)(1)(D) of 

the Act, requires the public agency, at 

the request of the parent, to send an 

invitation to the Part C service 

coordinator or other representatives of 

the Part C system to attend the child’s 

initial IEP Team meeting. We believe it 

would be useful to add a cross-reference 

to § 300.321(f) in § 300.322 to emphasize 

this requirement. 

Changes: We have added a crossreference to § 300.321(f) in § 300.322. 

Parent Participation (§ 300.322) 

Public Agency Responsibility—General 

(§ 300.322(a)) 

Comment: A few commenters 

recommended that the notice of the IEP 

Team meeting include a statement that 

the time and place of the meeting are 

negotiable and must be mutually agreed 

on by the parent and public agency. 

Other commenters recommended that 

the regulations emphasize the need for 

flexibility in scheduling meetings so 

that districts make every effort to secure 

parent participation in meetings. 

Many commenters requested that the 

regulations specify how far in advance 

a public agency must notify parents of 

an IEP Team meeting. One commenter 

recommended requiring that parents be 

notified a minimum of five school days 

before the date of the meeting. 


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Discussion: We do not agree with the 

changes recommended by the 

commenters. Section 300.322(a) already 

requires each public agency to take 

steps to ensure that one or both parents 

are present at each meeting, including 

notifying parents of the meeting early 

enough to ensure that they have an 

opportunity to attend, and scheduling 

the meeting at a mutually agreed on 

time and place. We believe that these 

requirements are sufficient to ensure 

that parents are provided the 

opportunity to participate in meetings. 

We also believe that State and local 

officials are in the best position to 

determine how far in advance parents 

must be notified of a meeting, as this 

will vary based on a number of factors, 

including, for example, the distance 

parents typically have to travel to the 

meeting location and the availability of 

childcare. 

Changes: None. 

Information Provided to Parents 

(§ 300.322(b)) 

Comment: Several comments were 

received requesting that additional 

information be provided to parents 

when the public agency notifies parents 

about an IEP Team meeting. One 

commenter recommended informing 

parents that they can request an IEP 

Team meeting at any time. Other 

commenters recommended that the 

notice include any agency requests to 

excuse an IEP Team member from 

attending the meeting, and any written 

input from an IEP Team member who is 

excused from the meeting. Another 

commenter recommended that parents 

receive all evaluation reports before an 

IEP Team meeting. A few commenters 

recommended that parents receive a 

draft IEP so that they have time to 

examine the child’s present levels of 

performance; prepare measurable goals; 

and consider appropriate programs, 

services, and placements. 

Discussion: The purpose of the notice 

requirement in § 300.322 is to inform 

parents about the IEP Team meeting and 

provide them with relevant information 

(e.g., the purpose, time, and place of the 

meeting, and who will be in 

attendance). This is not the same as the 

procedural safeguards notice that 

informs parents of their rights under the 

Act. 

If, at the time the IEP Team meeting 

notice is sent, a public agency is aware 

of the need to request that an IEP Team 

member be excused from the IEP Team 

meeting, the public agency could 

include this request with the meeting 

notice. We do not believe that it is 

appropriate to require that the request to 

excuse an IEP Team member from an 

IEP Team meeting be included in the 

meeting notice, because the public 

agency may not be aware of the need to 

request an excusal of a member at the 

time the IEP Team meeting notice is 

sent. For similar reasons, it is not 

appropriate to require that the IEP Team 

meeting notice include any written 

input from an IEP Team member who 

may be excused from the IEP Team 

meeting. 

As noted in § 300.306(a)(2), the public 

agency must provide a copy of an 

evaluation report and the 

documentation of determination of 

eligibility at no cost to the parent. 

Whether parents receive all evaluation 

reports before an IEP Team meeting, 

however, is a decision that is best left 

to State and local officials to determine. 

With respect to a draft IEP, we 

encourage public agency staff to come to 

an IEP Team meeting prepared to 

discuss evaluation findings and 

preliminary recommendations. 

Likewise, parents have the right to bring 

questions, concerns, and preliminary 

recommendations to the IEP Team 

meeting as part of a full discussion of 

the child’s needs and the services to be 

provided to meet those needs. We do 

not encourage public agencies to 

prepare a draft IEP prior to the IEP Team 

meeting, particularly if doing so would 

inhibit a full discussion of the child’s 

needs. However, if a public agency 

develops a draft IEP prior to the IEP 

Team meeting, the agency should make 

it clear to the parents at the outset of the 

meeting that the services proposed by 

the agency are preliminary 

recommendations for review and 

discussion with the parents. The public 

agency also should provide the parents 

with a copy of its draft proposals, if the 

agency has developed them, prior to the 

IEP Team meeting so as to give the 

parents an opportunity to review the 

recommendations of the public agency 

prior to the IEP Team meeting, and be 

better able to engage in a full discussion 

of the proposals for the IEP. It is not 

permissible for an agency to have the 

final IEP completed before an IEP Team 

meeting begins. 

Changes: None. 

Other Methods To Ensure Parent 

Participation (§ 300.322(c)) 

Comment: One commenter 

recommended that the regulations 

permit parents to provide input through 

a written report in order to document 

that the parents provided input into 

their child’s education. 

Discussion: Parents are free to provide 

input into their child’s IEP through a 

written report if they so choose. 

Therefore, we do not believe that a 

change is needed. 

Changes: None. 

Conducting an IEP Team Meeting 

Without a Parent in Attendance 

(§ 300.322(d)) 

Comment: Many commenters 

recommended that § 300.322(d) retain 

paragraphs (d)(1) through (d)(3) in 

current § 300.345, which provide 

examples of the types of records a 

public agency may keep to document its 

attempts to arrange a mutually agreed 

upon time and place for an IEP Team 

meeting. These examples include 

detailed records of telephone calls made 

or attempted and the results of those 

calls; copies of correspondence sent to 

the parents and any responses received; 

and detailed records of visits made to 

the parent’s home or place of 

employment and the results of those 

visits. A few commenters stated that 

removing these provisions violates 

section 607(b) of the Act. 

Discussion: We agree that these 

provisions are important to encourage 

parent participation in the IEP process, 

which is an important safeguard for 

ensuring FAPE under the Act. We will, 

therefore, add the requirements in 

current § 300.345(d)(1) through (d)(3) to 

§ 300.322(d). 

Changes: We have added the 

requirements in current § 300.345(d)(1) 

through (d)(3) to § 300.322(d). 

Comment: One commenter stated that 

parents who do not participate in IEP 

Team meetings when the school has 

made good-faith efforts to include them 

should be sanctioned. 

Discussion: There is nothing in the 

Act that would permit sanctioning a 

parent who does not participate in an 

IEP Team meeting, nor do we believe 

that it would be appropriate or helpful 

to do so. Sanctioning a parent is 

unlikely to engender the type of active 

participation at IEP Team meetings that 

would be desirable or helpful in 

developing, reviewing, or revising a 

child’s IEP. 

Changes: None. 

Comment: One commenter 

recommended that the regulations make 

explicit that the LEA can move forward 

and hold an IEP Team meeting without 

the parent, if notice has been provided 

consistent with § 300.322(a)(1) and 

(b)(1), and the parent does not 

participate. The commenter 

recommended that this requirement be 

consistent with the parent participation 

requirements for placement meetings in 

§ 300.501(c)(3) and (c)(4). 

Discussion: Section 300.322(d) 

explicitly allows a meeting to be 

conducted without a parent if the public 


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agency is unable to convince the parent 

to attend. The requirements for parent 

participation in IEP Team meetings in 

§ 300.322, and placement meetings in 

§ 300.501 are consistent. Section 

300.322(d) states that an IEP Team 

meeting may be conducted without a 

parent in attendance if the public 

agency is unable to convince a parent to 

attend the IEP Team meeting. Similarly, 

§ 300.501(c)(4) provides that a group, 

without the involvement of the parent, 

may make a placement decision if the 

public agency is unable to obtain the 

parent’s participation in the decision. In 

both cases, the public agency must keep 

a record of its attempts to obtain the 

parent’s involvement. 

Changes: None. 

Comment: One commenter expressed 

concern that allowing school districts to 

hold IEP Team meetings without 

parents could increase the overrepresentation of African American 

children placed in special education. 

Discussion: Section 300.322(a) 

requires a public agency to take steps to 

ensure that one or both parents are 

afforded the opportunity to participate 

in an IEP Team meeting, including 

notifying parents of the meeting early 

enough to ensure that they will have an 

opportunity to attend, and scheduling 

the meeting at a mutually agreed on 

time and place. Section 300.322(c) 

requires the public agency to use other 

methods to ensure parent participation 

if neither parent can attend an IEP Team 

meeting, including individual or 

conference telephone calls. Only when 

a public agency is unable to convince a 

parent to participate in an IEP Team 

meeting may the meeting be conducted 

without a parent. We disagree with the 

implication in the comment that parents 

of one race are less likely to participate 

in IEP Team meetings. 

Changes: None. 

Comment: Many commenters 

recommended retaining current 

§ 300.345(e), which requires the public 

agency to take whatever action is 

necessary to ensure that the parent 

understands the proceedings at an IEP 

Team meeting, including arranging for 

an interpreter for parents with deafness 

or whose native language is other than 

English. Some commenters stated that 

current § 300.345(e) is protected by 

section 607(b) of the Act and, therefore, 

cannot be removed. 

Many commenters acknowledged that 

there are other Federal laws that require 

public agencies to take appropriate 

measures to ensure that parents 

understand the proceedings at an IEP 

Team meeting, but stated that not all 

stakeholders are aware of the 

applicability of those other protections 

in IEP Team meetings. Several 

commenters expressed concern with the 

removal of current § 300.345(e) stating 

that other Federal laws are not 

enforceable at special education due 

process hearings. 

Discussion: We agree that current 

§ 300.345(e) is an important safeguard of 

parent participation for parents with 

deafness or whose native language is 

other than English. We will, therefore, 

add the requirements in current 

§ 300.345(e) to the regulations. 

Changes: We have added the 

requirements in current § 300.345(e) as 

new § 300.322(e), and redesignated the 

subsequent paragraph as § 300.322(f). 

Parent Copy of Child’s IEP (New 

§ 300.322(f)) (Proposed § 300.322(e)) 

Comment: One commenter 

recommended that the regulations 

clarify that the public agency must 

provide the parent a copy of any 

amended IEPs, in addition to the 

original IEP. 

Discussion: Section 300.324(a)(6), 

consistent with section 614(d)(3)(F) of 

the Act, requires the public agency to, 

upon request of the parent, provide the 

parent with a revised copy of the IEP 

with the amendments incorporated. We 

do not believe any further clarification 

is necessary. 

Changes: None. 

When IEPs Must Be in Effect (§ 300.323) 

Comment: Some commenters 

recommended retaining current 

§ 300.342(b)(1)(i) to ensure that an IEP is 

in effect before special education 

services are provided to a child. 

Discussion: We do not believe it is 

necessary to retain current 

§ 300.342(b)(1)(i) because we believe 

this requirement is implicit in 

§ 300.323(a), which requires each public 

agency to have an IEP in effect for each 

child with a disability in the public 

agency’s jurisdiction at the beginning of 

each school year. 

Changes: None. 

IEP or IFSP for Children Aged Three 

Through Five (§ 300.323(b)) 

Comment: One commenter 

recommended revising the regulations 

to clarify when an IEP must be in place 

for a child transitioning from an early 

intervention program under Part C of 

the Act to a preschool special education 

program under Part B of the Act whose 

third birthday occurs after the start of 

the school year. 

Discussion: The commenter’s concern 

is already addressed in the regulations. 

Section 300.101(b), consistent with 

section 612(a)(1)(A) of the Act, requires 

an IEP to be in effect no later than the 

child’s third birthday. However, 

§ 300.323(b)(1), consistent with section 

614(d)(2)(B) of the Act, provides that a 

State, at its discretion, may provide 

special education and related services to 

two-year-old children with disabilities 

who will turn three during the school 

year. In such cases, the State must 

ensure that an IEP is developed and in 

effect at the start of the school year in 

which the child turns three. 

Changes: None. 

Comment: One commenter stated that 

an IFSP that was incorrectly developed 

by the early intervention agency should 

not be the school district’s 

responsibility to correct. 

Discussion: The development of an 

IFSP for children from birth through age 

two is the responsibility of the 

designated lead agency responsible for 

early intervention programs under 

section 635(a)(10) in Part C of the Act. 

When a child turns age three, section 

612(a)(9) of the Act requires each State 

to ensure that an IEP has been 

developed and implemented. However, 

if a child turns age three and an LEA 

and a parent agree to use an IFSP in lieu 

of an IEP, as allowed under section 

614(d)(2)(B) of the Act, the LEA is 

responsible for ensuring that the 

requirements in § 300.323(b) are met. 

Therefore, if an IFSP was incorrectly 

developed by the early intervention 

agency and the public agency and the 

parent agree to use the IFSP in lieu of 

an IEP, the LEA is responsible for 

modifying the IFSP so that it meets the 

requirements in § 300.323(b). 

Section 300.323(b), consistent with 

section 614(d)(2)(B) of the Act, allows 

an IFSP to serve as an IEP for a child 

with a disability aged three through five 

(or at the discretion of the SEA, a twoyear old child with a disability, who 

will turn age three during the school 

year), under the following conditions: 

(a) using the IFSP as the IEP is 

consistent with State policy and agreed 

to by the agency and the child’s parents; 

(b) the child’s parents are provided with 

a detailed explanation of the differences 

between an IFSP and an IEP; (c) written 

informed consent is obtained from the 

parent if the parent chooses an IFSP; (d) 

the IFSP contains the IFSP content, 

including the natural environments 

statement; (e) the IFSP includes an 

educational component that promotes 

school readiness and incorporates preliteracy, language, and numeracy skills 

for children with IFSPs who are at least 

three years of age; and (f) the IFSP is 

developed in accordance with the IEP 

procedures under Part B of the Act. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 


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require the IEP Team to explain the 

changes in services and settings in the 

initial IEP Team meeting for a child 

transitioning from an early intervention 

program under Part C of the Act to a 

preschool program under Part B of the 

Act. 

Discussion: We do not believe it is 

necessary to change the regulations in 

the manner recommended by the 

commenter. Section 300.124, consistent 

with section 612(a)(9) of the Act, 

already requires States to have in effect 

policies and procedures to ensure that 

children transitioning from an early 

intervention program under Part C of 

the Act to a preschool program under 

Part B of the Act experience a smooth 

and effective transition to those 

preschool programs. In addition, each 

LEA is required to participate in 

transition planning conferences with the 

lead agency responsible for providing 

early intervention services and to have 

an IEP (or an IFSP, if consistent with 

§ 300.323(b) and section 636(d) of the 

Act) for the child developed and 

implemented by the child’s third 

birthday. We believe that in the course 

of the transition planning conferences 

and developing the child’s IEP, there 

would be many opportunities for 

discussions regarding the services 

provided under Parts B and C of the Act. 

Changes: None. 

Comment: One commenter stated that 

there is no statutory basis to require 

detailed explanations of the differences 

between an IEP and an IFSP or for 

written informed parental consent when 

an IFSP is used in lieu of an IEP. 

Discussion: We believe it is important 

to retain these requirements in 

§ 300.323(b)(2) because of the 

importance of the IEP as the statutory 

vehicle for ensuring FAPE to a child 

with a disability. Although the Act does 

not specifically require a public agency 

to provide detailed explanations to the 

parent of the differences between an IEP 

and an IFSP, we believe parents need 

this information to make an informed 

choice regarding whether to continue to 

use an IFSP in lieu of an IEP. Parents, 

for example, should understand that it 

is through the IEP that the child is 

entitled to the special education and 

related services that the child’s IEP 

Team determines are necessary to 

enable the child to be involved in and 

make progress in the general education 

curriculum and to receive FAPE. If a 

parent decides to use an IFSP in lieu of 

an IEP, the parent must understand that 

the child will not necessarily receive the 

same services and supports that are 

afforded under an IEP. For a parent to 

waive the right to an IEP, informed 

parental consent is necessary. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

explicitly state that the IFSP does not 

have to include all the elements of an 

IEP when the IFSP is used in lieu of an 

IEP. 

Discussion: Section 300.323(b)(1) 

provides that, in order for the IFSP to 

be used as the IEP, the IFSP must 

contain the IFSP content (including the 

natural environments statement) in 

section 636(d) of the Act and be 

developed in accordance with the IEP 

procedures under Part B of the Act. For 

children who are at least three years of 

age, the IFSP must also include an 

educational component that promotes 

school readiness and incorporates preliteracy, language, and numeracy skills. 

There is no requirement for the IFSP to 

include all the required elements in an 

IEP. We think this point is clear in the 

regulations and that no further 

clarification is necessary. 

Changes: None. 

Comment: Some commenters 

recommended changing 

§ 300.323(b)(2)(i) to require parental 

consent before a preschool-aged child 

receives an IFSP in States that have a 

policy under section 635(c) of the Act. 

Some commenters recommended that 

the regulations clarify whether States 

have flexibility to continue early 

intervention services until the end of 

the school year in which a child turns 

three. 

Discussion: Section 300.323(b) 

outlines the specific requirements that 

apply when an IFSP is used in lieu of 

an IEP for children aged three through 

five, as a means of providing FAPE for 

the child under Part B of the Act. This 

is not the same as the policy in section 

635(c) of the Act, which gives States the 

flexibility to provide early intervention 

services under Part C of the Act to three 

year old children with disabilities until 

they enter into, or are eligible under 

State law to enter into, kindergarten. 

Under § 300.323(b), when an IFSP is 

used in lieu of an IEP, the child 

continues to receive FAPE. This would 

not be the case under section 635(c) of 

the Act. Under section 635(c) of the Act, 

parents of children with disabilities 

who are eligible for preschool services 

under section 619 of the Act and 

previously received early intervention 

services under Part C of the Act, may 

choose to continue early intervention 

services until the child enters, or is 

eligible under State law to enter, 

kindergarten. The option to continue 

early intervention services is available 

only in States where the lead agency 

under Part C of the Act and the SEA 

have developed and implemented a 

State policy to provide this option. This 

option will be detailed in the Part C 

regulations, and not the Part B 

regulations, as it permits a continuation 

of eligibility and coverage under Part C 

of the Act, rather than FAPE under Part 

B of the Act. 

Parental consent is required under 

§ 300.323(b), when the IFSP is used in 

lieu of an IEP, and under section 635(c) 

of the Act, when a parent opts to 

continue early intervention services. 

Changes: None. 

Initial IEPs; Provision of Services 

(§ 300.323(c)) 

Comment: One commenter 

recommended removing the 

requirement for an IEP Team meeting to 

be conducted within 30 days of 

determining that the child needs special 

education and related services. Another 

commenter recommended extending the 

time to 60 days. A few commenters 

recommended that the regulations 

require the meeting to be held no later 

than 15 days after the eligibility 

determination. 

Discussion: The requirement to 

conduct a meeting to develop a child’s 

IEP within 30 days of the determination 

that a child needs special education and 

related services is longstanding, and has 

been included in the regulations since 

they were first issued in final form in 

1977. Experience has shown that many 

public agencies choose to conduct the 

meeting to develop the child’s IEP well 

before the 30-day timeline. Reducing the 

timeline to 15-days, as some 

commenters suggest, would be 

impractical, because there are situations 

when both public agencies and parents 

need additional time to ensure that 

appropriate individuals can be present 

at the meeting. Experience has 

demonstrated that the 30-day timeline 

for conducting a meeting to develop an 

IEP is a reasonable time to provide both 

public agencies and parents the 

opportunity to ensure that required 

participants can be present at the IEP 

Team meeting. Therefore, we decline to 

alter this longstanding regulatory 

provision. 

Changes: None. 

Accessibility of Child’s IEP to Teachers 

and Others (§ 300.323(d)) 

Comment: Many commenters 

recommended retaining current 

§ 300.342(b)(3)(i) and (b)(3)(ii), which 

require teachers and providers to be 

informed of their specific 

responsibilities for implementing an 

IEP, and the specific accommodations, 

modifications, and supports that must 

be provided to the child in accordance 

with the child’s IEP. Several 


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commenters stated that a child’s IEP 

should be readily accessible and all 

those involved in a child’s education 

should be required to read and 

understand it. 

Discussion: Section 300.323(d) 

requires that the child’s IEP be 

accessible to each regular education 

teacher, special education teacher, 

related services provider, and any other 

service provider who is responsible for 

its implementation. The purpose of this 

requirement is to ensure that teachers 

and providers understand their specific 

responsibilities for implementing an 

IEP, including any accommodations or 

supports that may be needed. We agree 

with the commenters’ recommendation 

and believe retaining current 

§ 300.342(b)(3)(i) and (b)(3)(ii) is 

necessary to ensure proper 

implementation of the child’s IEP and 

the provision of FAPE to the child. 

However, the mechanism that the public 

agency uses to inform each teacher or 

provider of his or her responsibilities is 

best left to the discretion of the public 

agency. 

Changes: We have restructured 

§ 300.323(d) and added a new paragraph 

(d)(2) to include the requirements in 

current § 300.342(b)(3)(i) and (b)(3)(ii). 

IEPs for Children Who Transfer Public 

Agencies in the Same State 

(§ 300.323(e), IEPs for Children Who 

Transfer From Another State 

§ 300.323(f), and Transmittal of Records 

§ 300.323(g)) (Proposed Program for 

Children Who Transfer Public Agencies 

(§ 300.323(e)) 

Comment: None. 

Discussion: Several technical changes 

are needed in proposed § 300.323(e) for 

clarity and improved readability. We 

believe that readability will be 

improved by reorganizing this provision 

into three separate paragraphs—

paragraph (e), which will address 

transfers within the same State, 

paragraph (f), which will address 

transfers from another State, and 

paragraph (g), which will address the 

transmittal of records. 

In addition, clarity will be improved 

by changing certain terms to align with 

terms that are more commonly used in 

this part. For example, while the Act 

uses the term ‘‘Program’’ in the title of 

this requirement (referring to an 

‘‘individualized education program’’), 

we believe it would be clearer to use 

‘‘IEP’’ throughout this provision. In 

addition, as noted in the discussion of 

§ 300.304(c)(5), we believe that it is 

important to include language stating 

that the requirements in § 300.323 are 

applicable to children with disabilities 

who have an IEP in effect in a previous 

public agency and who transfer to a new 

school within the same ‘‘school year,’’

rather than the same ‘‘academic year,’’

because ‘‘school year’’ is the term most 

commonly understood by parents and 

school officials. Further, it is important 

that the regulations clearly and 

consistently differentiate between the 

responsibilities of the ‘‘new’’ public 

agency and the ‘‘previous’’ public 

agency. 

Changes: We have restructured 

proposed § 300.323(e) into three 

separate paragraphs, and each paragraph 

has been re-named to comport with the 

three concepts in the statutory 

requirement. Proposed § 300.323(e)(1)(i) 

has been changed to new § 300.323(e), 

‘‘IEPs for children who transfer public 

agencies in the same State.’’ Proposed 

§ 300.323(e)(1)(ii) has been changed to 

new § 300.323(f), ‘‘IEPs for children who 

transfer from another State.’’ Proposed 

§ 300.323(e)(2) has been changed to new 

§ 300.323(g), ‘‘Transmittal of records.’’

We have substituted ‘‘IEP’’ for 

‘‘program’’ in new § 300.323(e) 

(proposed § 300.323(e)(1)(i)), and have 

made the following changes to new 

§ 300.323(e) (proposed 

§ 300.323(e)(1)(i)) and new § 300.323(f) 

(proposed § 300.323(e)(1)(ii)): (1) added 

language to clarify that the requirements 

apply to a child with a disability who 

has an IEP in effect in a previous public 

agency and transfers to a new school 

within the same school year; (2) 

replaced the term ‘‘is consistent with 

Federal and State law’’ with ‘‘meets the 

applicable requirements in §§ 300.320 

through 300.324;’’ and (3) clarified 

when a requirement applies to the 

‘‘new’’ public agency to which the child 

transfers versus the ‘‘previous’’ public 

agency. 

Comment: Several commenters 

requested that the regulations clarify the 

meaning of ‘‘comparable services.’’

Discussion: We do not believe it is 

necessary to define ‘‘comparable 

services’’ in these regulations because 

the Department interprets ‘‘comparable’’

to have the plain meaning of the word, 

which is ‘‘similar’’ or ‘‘equivalent.’’

Therefore, when used with respect to a 

child who transfers to a new public 

agency from a previous public agency in 

the same State (or from another State), 

‘‘comparable’’ services means services 

that are ‘‘similar’’ or ‘‘equivalent’’ to 

those that were described in the child’s 

IEP from the previous public agency, as 

determined by the child’s newlydesignated IEP Team in the new public 

agency. 

Changes: None. 

IEPs for Children Who Transfer From 

Another State (New § 300.323(f)) 

(Proposed § 300.323(e)(1)(ii)) 

Comment: One commenter requested 

clarification regarding the 

responsibilities of LEAs who receive a 

child transferring from out of State. 

Discussion: When a child transfers 

from another State, new § 300.323(f) 

(proposed § 300.323(e)(1)(ii)), consistent 

with section 614(d)(2)(C)(i)(II) of the 

Act, requires the LEA, in consultation 

with the parents, to provide the child 

with FAPE, including services 

comparable to those in the IEP from the 

previous public agency, until such time 

as the new public agency conducts an 

evaluation (if determined to be 

necessary) and adopts a new IEP. 

Changes: None. 

Comment: Several commenters 

requested that the regulations clarify 

what happens when a child transfers to 

a State with eligibility criteria that are 

different from the previous public 

agency’s criteria. 

Discussion: Under § 300.323(f)(1), if 

the new public agency determines that 

an evaluation of the child is necessary 

to determine whether the child is a 

child with a disability under the new 

public agency’s criteria, the new public 

agency must conduct the evaluation. 

Until the evaluation is conducted, 

§ 300.323(f) requires the new public 

agency, in consultation with the parent, 

to provide the child with FAPE, 

including services comparable to those 

described in the IEP from the previous 

public agency. The specific manner in 

which this is accomplished is best left 

to State and local officials and the 

parents to determine. We do not believe 

that any further clarification is 

necessary. 

Changes: None. 

Comment: One commenter requested 

clarification about whether parental 

consent must be obtained for the new 

public agency to evaluate a child with 

an IEP who transfers from another State. 

Another commenter requested that the 

regulations clarify that an evaluation of 

a child who transfers from another State 

is considered a reevaluation. 

One commenter requested that the 

regulations address circumstances in 

which comparable services are 

considered unreasonable in the State 

receiving the child. Some commenters 

stated that the stay-put provision should 

be imposed by the new State if the 

parent disagrees with the new public 

agency about the comparability of 

services. 

Discussion: New § 300.323(f) 

(proposed § 300.323(e)(1)(ii)), consistent 

with section 614(d)(2)(C)(i)(II) of the 


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Act, states that, in the case of a child 

with a disability who enrolls in a new 

school in another State, the public 

agency, in consultation with the 

parents, must provide FAPE to the 

child, until such time as the public 

agency conducts an evaluation pursuant 

to §§ 300.304 through 300.306, if 

determined necessary by the public 

agency, and develops a new IEP, if 

appropriate, that is consistent with 

Federal and State law. The evaluation 

conducted by the new public agency 

would be to determine if the child is a 

child with a disability and to determine 

the educational needs of the child. 

Therefore, the evaluation would not be 

a reevaluation, but would be an initial 

evaluation by the new public agency, 

which would require parental consent. 

If there is a dispute between the parent 

and the public agency regarding what 

constitutes comparable services, the 

dispute could be resolved through the 

mediation procedures in § 300.506 or, as 

appropriate, the due process hearing 

procedures in §§ 300.507 through 

300.517. We believe these options 

adequately address circumstances in 

which comparable services are 

considered unreasonable. 

With regard to the comment that the 

stay-put provisions should be imposed 

by the new State if the parent disagrees 

with the new public agency about the 

comparability of services, stay-put 

would not apply, because the evaluation 

is considered an initial evaluation and 

not a reevaluation. 

Changes: None. 

Comment: A few commenters 

requested clarification regarding the 

responsibilities of the new public 

agency for a child with a disability who 

moves during the summer. 

Discussion: Section 614(d)(2)(a) is 

clear that at the beginning of each 

school year, each LEA, SEA, or other 

State agency, as the case may be, must 

have an IEP in effect for each child with 

a disability in the agency’s jurisdiction. 

Therefore, public agencies need to have 

a means for determining whether 

children who move into the State during 

the summer are children with 

disabilities and for ensuring that an IEP 

is in effect at the beginning of the school 

year. 

Changes: None. 

Comment: Some commenters 

requested clarification regarding what a 

new public agency should do when a 

child’s IEP is developed (or revised) by 

the child’s previous public agency at the 

end of a school year (or during the 

summer), for implementation during the 

next school year, and the child moves 

to the new public agency before the next 

school year begins (e.g., during the 

summer). 

Discussion: This is a matter to be 

decided by each individual new public 

agency. However, if a child’s IEP from 

the previous public agency was 

developed (or reviewed and revised) at 

or after the end of a school year for 

implementation during the next school 

year, the new public agency could 

decide to adopt and implement that IEP, 

unless the new public agency 

determines that an evaluation is needed. 

Otherwise, the newly designated IEP 

Team for the child in the new public 

agency could develop, adopt, and 

implement a new IEP for the child that 

meets the applicable requirements in 

§§ 300.320 through 300.324. 

Changes: None. 

Transmittal of Records (New 

§ 300.323(g)) (Proposed § 300.323(e)(2)) 

Comment: Several commenters 

recommended that the regulations 

require the previous public agency to 

transmit a child’s records to the new 

public agency within 15 business days 

after receiving the request. Other 

commenters recommended that the 

regulations require a specific timeframe 

for the school to obtain and review the 

previous educational placement and 

services of the transfer child. 

Discussion: New § 300.323(g) 

(proposed § 300.323(e)(2)) follows the 

language in section 614(d)(2)(C)(ii) of 

the Act, and requires the new public 

agency to take reasonable steps to 

promptly obtain the child’s records from 

the previous public agency in which the 

child was enrolled. New § 300.323(g) 

(proposed § 300.323(e)(2)) also requires 

the previous public agency to take 

reasonable steps to promptly respond to 

the request from the new public agency. 

There is nothing in the Act that would 

prevent a State from requiring its public 

agencies to obtain a child’s records or 

respond to requests for a child’s records 

within a specific timeframe. This is an 

issue appropriately left to States to 

determine. 

Changes: None. 

Development of IEP 

Development, Review, and Revision of 

IEP (§ 300.324) 

Comment: A few commenters 

recommended requiring all IEP 

members to sign the IEP. 

Discussion: There is nothing in the 

Act that requires IEP members to sign 

the IEP and we believe it would be 

overly burdensome to impose such a 

requirement. 

Changes: None. 

Comment: A few commenters 

requested that the regulations require 

the IEP Team to consider the social and 

cultural background of the child in the 

development, review, or revision of the 

child’s IEP. 

Discussion: Under § 300.306(c)(1)(i), a 

child’s social or cultural background is 

one of many factors that a public agency 

must consider in interpreting evaluation 

data to determine if a child is a child 

with a disability under § 300.8 and the 

educational needs of the child. We do 

not believe it is necessary to repeat this 

requirement in § 300.324. 

Changes: None. 

Comment: A few commenters 

recommended retaining current 

§ 300.343(a), regarding the public 

agency’s responsibility to initiate and 

conduct meetings to develop, review, 

and revise a child’s IEP. 

Discussion: It is not necessary to 

retain § 300.343(a) because the 

requirements for the public agency to 

initiate and conduct meetings to 

develop, review, and revise a child’s IEP 

are covered in § 300.112 and § 300.201. 

Section 300.112, consistent with section 

614(a)(4) of the Act, requires the State 

to ensure that an IEP (or an IFSP that 

meets the requirements of section 636(d) 

of the Act) is developed, reviewed, and 

revised for each child with a disability. 

Section 300.201, consistent with section 

613(a)(1) of the Act, requires LEAs to 

have in effect policies, procedures, and 

programs that are consistent with the 

State policies and procedures 

established under §§ 300.101 through 

300.163, and §§ 300.165 through 

300.174, which include the 

requirements related to developing, 

reviewing, and revising an IEP for each 

child with a disability. 

Changes: None. 

Comment: A few commenters 

recommended retaining current 

§ 300.346(a)(1)(iii), regarding the IEP 

Team’s consideration of the results of 

the child’s performance on any general 

State or districtwide assessment 

programs in developing the child’s IEP. 

The commenter stated that it is 

important to retain this requirement 

because such testing informs the IEP 

Team of the child’s success in the 

general education curriculum. 

Discussion: The Department agrees 

that State and districtwide assessments 

provide important information 

concerning the child’s academic 

performance and success in the general 

education curriculum. However, current 

§ 300.346(a)(1)(iii) was removed, 

consistent with section 614(d)(3)(A)(iv) 

of the Act. Because the language from 

current § 300.346(a)(1)(iii) was 

specifically excluded from the Act, we 

do not believe it is appropriate to retain 

it in the regulations. We do not believe 


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that an explicit regulation is needed, 

however, because § 300.324(a)(1)(iv) 

requires the IEP Team, in developing 

each child’s IEP, to consider the 

academic, developmental, and 

functional needs of the child. A child’s 

performance on State or districtwide 

assessments logically would be 

included in the IEP Team’s 

consideration of the child’s academic 

needs. In addition, as a part of an initial 

evaluation or reevaluation, § 300.305(a) 

requires the IEP Team to review existing 

evaluation data, including data from 

current classroom based, local, and 

State assessments. 

Changes: None. 

Consideration of Special Factors 

(§ 300.324(a)(2)) 

Comment: Many commenters 

recommended changing 

§ 300.324(a)(2)(i) to require that the 

positive behavioral interventions and 

supports for a child whose behavior 

impedes the child’s learning or that of 

others be based on a functional 

behavioral assessment. 

Discussion: Section 300.324(a)(2)(i) 

follows the specific language in section 

614(d)(3)(B)(i) of the Act and focuses on 

interventions and strategies, not 

assessments, to address the needs of a 

child whose behavior impedes the 

child’s learning or that of others. 

Therefore, while conducting a 

functional behavioral assessment 

typically precedes developing positive 

behavioral intervention strategies, we do 

not believe it is appropriate to include 

this language in § 300.324(a)(2)(i). 

Changes: None. 

Comment: A few commenters 

recommended that § 300.324(a)(2)(i) 

refer specifically to children with 

internalizing and externalizing 

behaviors. 

Discussion: We do not believe it is 

necessary to make the recommended 

change because § 300.324(a)(2)(i) is 

written broadly enough to include 

children with internalizing and 

externalizing behaviors. 

Changes: None. 

Comment: Many commenters 

expressed concern that the 

consideration of special factors in 

§ 300.324(a)(2)(i) is not sufficient to 

address the behavioral needs of children 

with disabilities in the IEP process and 

recommended strengthening the 

regulations by encouraging school 

districts to utilize research-based 

positive behavioral supports and 

systematic and individual researchbased interventions. One commenter 

recommended training teachers 

regarding the use of positive behavioral 

interventions and supports. 

Discussion: We do not believe that the 

changes recommended by the 

commenters need to be made to 

§ 300.324(a)(2)(i). Whether a child needs 

positive behavioral interventions and 

supports is an individual determination 

that is made by each child’s IEP Team. 

Section 300.321(a)(2)(i) requires the IEP 

Team, in the case of a child whose 

behavior impedes the child’s learning or 

that of others, to consider the use of 

positive behavioral supports, and other 

strategies to address that behavior. We 

believe that this requirement 

emphasizes and encourages school 

personnel to use positive behavioral 

interventions and supports. 

In addition, the regulations reflect the 

Department’s position that high-quality 

professional development, including the 

use of scientifically based instructional 

practices, is important to ensure that 

personnel have the skills and 

knowledge necessary to improve the 

academic achievement and functional 

performance of children with 

disabilities. Section 300.207, consistent 

with section 613(a)(3) of the Act, 

requires each LEA to ensure that all 

personnel necessary to carry out Part B 

of the Act are appropriately and 

adequately prepared, subject to the 

requirements in § 300.156 and section 

2122 of the ESEA. 

Section 300.156(a), consistent with 

section 612(a)(14) of the Act, clearly 

states that each State must establish and 

maintain qualifications to ensure that 

personnel are appropriately and 

adequately prepared and trained, and 

have the content knowledge and skills 

to serve children with disabilities. 

Further, section 2122(b)(1)(B) of the 

ESEA requires an LEA’s application to 

the State for title II funds (Preparing, 

training, and recruiting high quality 

teachers and principals) to address how 

the LEA’s activities will be based on a 

review of scientifically based research. 

In addition, the implementation of 

early intervening services in § 300.226 

specifically focuses on professional 

development for teachers and other 

school staff to enable such personnel to 

deliver scientifically based academic 

and behavioral interventions, and 

providing educational and behavioral 

evaluations, services, and supports. We 

expect that the professional 

development activities and the services 

authorized under § 300.226(b)(1) will be 

derived from scientifically based 

research. 

Finally, because the definition of 

scientifically based research is 

important to the implementation of Part 

B of the Act, a reference to section 

9101(37) of the ESEA has been added in 

new § 300.35, and the full definition of 

the term has been included in the 

discussion to the new § 300.35. Under 

the definition, scientifically based 

research must be accepted by a peerreviewed journal or approved by a panel 

of independent experts through a 

comparably rigorous, objective, and 

scientific review. In short, we believe 

that the Act and the regulations place a 

strong emphasis on research based 

supports and interventions, including 

positive behavioral interventions and 

supports. 

Changes: None. 

Comment: One commenter 

recommended requiring positive 

behavioral interventions and supports 

for all children identified as having an 

emotional disturbance. 

Discussion: Section 300.324(a)(2)(i), 

consistent with section 614(d)(3)(B)(i) of 

the Act, requires the IEP Team to 

consider the use of positive behavioral 

interventions and supports, and other 

strategies to address the behavior of a 

child whose behavior impedes the 

child’s learning or that of others. We do 

not believe there should be a 

requirement that the IEP Team consider 

such interventions, supports, and 

strategies for a particular group of 

children, or for all children with a 

particular disability, because such 

decisions should be made on an 

individual basis by the child’s IEP 

Team. 

Changes: None. 

Comment: A few commenters 

expressed concern that the regulations 

regarding special factors for the IEP 

Team to consider in developing IEPs 

imply that particular methods, 

strategies, and techniques should be 

used. 

Discussion: The requirements in 

§ 300.324 are not intended to imply that 

a particular method, strategy, or 

technique should be used to develop a 

child’s IEP. For example, while 

§ 300.324(a)(2)(i) requires the IEP Team 

to consider the use of positive 

behavioral interventions and supports, 

and other strategies, it does not specify 

the particular interventions, supports, or 

strategies that must be used. 

Changes: None. 

Comment: Some commenters 

recommended that the special factors 

for a child who is blind or visually 

impaired include a requirement for a 

clinical low vision evaluation to 

determine whether the child has the 

potential to utilize optical devices for 

near and distance information before 

providing instruction in Braille and the 

use of Braille. 

Discussion: Section 614(d)(3)(B)(iii) of 

the Act requires instruction in Braille to 

be provided unless the IEP Team 


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determines that instruction in Braille or 

in the use of Braille is not appropriate 

for the child. However, the Act does not 

require a clinical low vision evaluation, 

and we do not believe it would be 

appropriate to include such a 

requirement in the regulations. Whether 

a clinical low vision evaluation is 

conducted is a decision that should be 

made by the child’s IEP Team. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

include language requiring that 

instruction in Braille be considered at 

all stages of IEP development, review, 

and revision. These commenters also 

stated that consideration should be 

given to providing services and supports 

to improve a child’s skills in the areas 

of socialization, independent living, 

orientation and mobility, and the use of 

assistive technology devices. 

Discussion: The issues raised by the 

commenters are already covered in the 

regulations. Section 300.324(a)(2)(iii), 

consistent with section 614(d)(3)(B)(iii) 

of the Act, requires the IEP Team, in the 

case of a child who is blind or visually 

impaired, to provide for instruction in 

Braille and the use of Braille, unless the 

IEP Team determines (after an 

evaluation of the child’s reading and 

writing skills, needs, and appropriate 

reading and writing media) that 

instruction in Braille or the use of 

Braille is not appropriate. As noted 

earlier, a new paragraph (b)(2) has been 

added to § 300.324 to require the IEP 

Team to consider the special factors in 

§ 300.324(a)(2) when the IEP is reviewed 

and revised. This includes considering 

instruction in Braille and the use of 

Braille for a child who is blind or 

visually impaired. 

In addition, § 300.324(a)(1)(iv) 

requires the IEP Team to consider, for 

all children with disabilities, the 

academic, developmental, and 

functional needs of the child, which 

could include, as appropriate, the 

child’s need to develop skills in the 

areas of socialization, independent 

living, and orientation and mobility. 

Consideration of a child’s needs for 

assistive technology devices and 

services is required by 

§ 300.324(a)(2)(v). 

Changes: None. 

Comment: Several commenters 

recommended that the regulations 

require IEP Teams, for a child who is 

deaf, to consider the child’s 

communication abilities, ensure that the 

child can access language and 

communicate with peers and adults, 

and ensure that the child has an 

educational placement that will meet 

the child’s communication needs. The 

commenters also recommended that the 

IEP Team be required to consider the 

qualifications of the staff delivering the 

child’s educational program. 

Discussion: The commenters’

concerns are already addressed in the 

regulations. Section 300.324(a)(2)(iv), 

consistent with section 614(d)(3)(B)(iv) 

of the Act, requires the IEP Team to 

consider the communication needs of 

the child, and in the case of a child who 

is deaf or hard of hearing, consider the 

child’s language and communication 

needs, opportunities for direct 

communications with peers and 

professional personnel in the child’s 

language and communication mode, 

academic level, and full range of needs, 

including opportunities for direct 

instruction in the child’s language and 

communication mode. 

With respect to the commenters’

recommendation regarding qualified 

staff to deliver the child’s educational 

program, § 300.156, consistent with 

section 612(a)(14) of the Act, requires 

the SEA to establish and maintain 

qualifications to ensure that personnel 

necessary to carry out the purposes of 

the Act are appropriately and 

adequately prepared and trained to 

serve children with disabilities. 

Changes: None. 

Comment: Some commenters 

suggested that § 300.324(a)(2)(iv) 

explain that: (a) a primary language 

assessment and assessment of 

communication abilities may be 

required to determine the child’s most 

effective language; (b) program and 

placement decisions must be based on 

such assessments; (c) a child must be in 

an educational placement where the 

child may communicate with peers and 

adults; and (d) a deaf child’s 

educational placement must include a 

sufficient number of peers and adults 

who can communicate fluently in the 

child’s primary language. 

Discussion: It is not necessary to 

include in the regulations the additional 

language recommended by the 

commenters. Section 300.324(a)(1)(iii), 

consistent with section 614(d)(3)(A)(iii) 

of the Act, requires the IEP Team to 

consider, among other things, the results 

of the initial or most recent evaluation 

of the child, which for a child who is 

deaf, may include an assessment of a 

child’s communication abilities. 

Further, § 300.324(a)(2)(iv), consistent 

with section 614(d)(3)(B)(iv) of the Act, 

requires the IEP Team to consider 

opportunities for direct communications 

with peers and professional personnel 

in the child’s language and 

communication mode, academic level, 

and full range of needs, including 

opportunities for direct instruction in 

the child’s language and communication 

mode. We believe this adequately 

addresses the commenters’ concerns. 

Changes: None. 

Comment: One commenter requested 

that emotional issues be considered an 

additional special factor that can 

impede learning. The commenter stated 

that emotional issues can be addressed 

through individual interventions 

focused on the child’s needs and 

systemic interventions to improve the 

overall school climate. 

Discussion: Section 614(d)(3)(B) of the 

Act does not include emotional issues 

as a special factor to be considered by 

the IEP Team. We decline to add it to 

the regulations because there are already 

many opportunities for the IEP Team to 

consider the affect of emotional issues 

on a child’s learning. For example, 

§ 300.324(a)(1), consistent with section 

614(d)(3)(A) of the Act, requires the IEP 

Team to consider the strengths of the 

child; the concerns of the parents for 

enhancing the education of their child; 

the results of the initial evaluation or 

most recent evaluation of the child; and 

the academic, developmental, and 

functional needs of the child, all of 

which could be affected by emotional 

issues and would, therefore, need to be 

considered by the IEP Team. 

Changes: None. 

Comment: A few commenters 

requested that children with medical 

conditions that are degenerative be 

added to the list of special factors 

considered by the IEP Team. The 

commenters stated that the IEP Team 

should consider the need for children 

with degenerative conditions to 

maintain their present levels of 

functioning by including related 

therapeutic services prior to the loss of 

their abilities, such as occupational and 

physical therapy, and other services to 

address the child’s needs in the areas of 

self-help, mobility, and communication. 

Discussion: Section 614(d)(3)(B) of the 

Act does not include consideration of 

children with degenerative conditions 

as a special factor. We decline to add it 

to the regulations because we believe 

that the regulations already address the 

commenters’ concerns. As with any 

child with a disability, the child’s IEP 

Team, which includes the parent, 

determines the special education and 

related services that are needed in order 

for the child to receive FAPE. For 

children with degenerative diseases, 

this may include related services such 

as physical and occupational therapy (or 

other services to address the child’s 

needs in the areas of self-help, mobility, 

and communication) to help maintain 

the child’s present levels of functioning 

for as long as possible in order for the 


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child to benefit from special education. 

In addition, as part of an evaluation or 

reevaluation, § 300.305 requires the IEP 

Team and other qualified professionals, 

as appropriate, to review existing 

evaluation data on the child to 

determine the child’s needs, which may 

include evaluations and information 

from parents, as well as medical 

professionals who know the child and 

the child’s specific medical condition. 

S. Rpt. No. 108–185, p. 33, and H. 

Rpt. No. 108–77, p. 112, recognized the 

special situations of children with 

medical conditions that are degenerative 

(i.e., diseases that result in negative 

progression and cannot be fully 

corrected or fully stabilized). For 

children with degenerative diseases 

who are eligible for services under the 

Act, both reports state that special 

education and related services can be 

provided to help maintain the child’s 

present levels of functioning for as long 

as possible in order for the child to fully 

benefit from special education services. 

The reports also state, ‘‘The IEP Team 

can include related services designed to 

provide therapeutic services prior to 

loss of original abilities to extend 

current skills and throughout the child’s 

enrollment in school. These services 

may include occupational and physical 

therapy, self-help, mobility, and 

communication, as appropriate.’’

Changes: None. 

Comment: Some commenters stated 

that the IEP Team’s review of the special 

factors in § 300.324(a)(2) is duplicative 

and should be eliminated. 

Discussion: The requirements in 

§ 300.324(a)(2) are directly from section 

614(d)(3)(B) of the Act and cannot be 

removed. 

Changes: None. 

Comment: Many commenters 

recommended that the regulations retain 

current § 300.346(b) and require the IEP 

Team to consider the special factors in 

§ 300.324(a)(2) when the IEP is reviewed 

and revised. The commenters stated that 

these special factors may affect a child’s 

instructional needs and ability to obtain 

FAPE beyond the period when an IEP is 

initially developed. 

Discussion: The Department agrees 

that the IEP Team should consider the 

special factors in § 300.324(a)(2) when 

an IEP is reviewed and revised. We will, 

therefore, add this requirement to the 

regulations. 

Changes: A new paragraph (b)(2) has 

been added to § 300.324 to require the 

IEP Team to consider the special factors 

in § 300.324(a)(2) when the IEP is 

reviewed and revised. Proposed 

§ 300.324(b)(2) has been redesignated 

accordingly. 

Comment: One commenter requested 

changing § 300.324(a)(2)(v), regarding 

the IEP Team’s consideration of a 

child’s need for assistive technology 

devices and services, to require assistive 

technology devices and services that are 

needed for a child to be included in the 

child’s IEP. 

Discussion: Section 300.320(a)(4) 

requires the IEP to include a statement 

of the special education and related 

services and supplementary aids and 

services to be provided to the child, or 

on behalf of the child. This would 

include any assistive technology devices 

and services determined by the IEP 

Team to be needed by the child in order 

for the child to receive FAPE. Therefore, 

it is unnecessary to repeat this in 

§ 300.324(a)(2)(v). 

Changes: None. 

Agreement (§ 300.324(a)(4)) 

Comment: Many commenters 

expressed concern that permitting 

changes to a child’s IEP without an IEP 

Team meeting will be detrimental to the 

child’s overall education. Several 

commenters requested that 

§ 300.324(a)(4) clarify whether such 

changes to the IEP can only be made 

between the annual IEP Team meetings 

to review the IEP and not in place of an 

annual IEP Team meeting. These 

commenters also requested clarification 

regarding the types of revisions that 

could be made without an IEP Team 

meeting. A few commenters 

recommended limiting the 

circumstances under which an IEP may 

be revised without convening an IEP 

Team meeting. One commenter 

requested that the regulations include 

safeguards to ensure that key elements 

of a child’s IEP are not altered without 

a discussion of the changes with the 

parent. 

Discussion: Section 300.324(a)(4), 

consistent with section 614(d)(3)(D) of 

the Act, allows a parent and a public 

agency to agree not to convene an IEP 

Team meeting to make changes to the 

child’s IEP, and instead, to develop a 

written document to amend or modify 

the child’s current IEP. The Act does not 

place any restrictions on the types of 

changes that may be made, so long as 

the parent and the public agency agree. 

Accordingly, we do not believe it would 

be appropriate to include restrictions on 

such changes in the regulations. 

We do not believe that an amendment 

to an IEP can take the place of an annual 

IEP Team meeting. It is unnecessary to 

regulate on this issue because section 

614(d)(4)(A)(i) of the Act clearly 

requires the IEP Team to review the 

child’s IEP annually to determine 

whether the annual goals for the child 

are being achieved. We believe that the 

procedural safeguards in §§ 300.500 

through 520 are sufficient to ensure that 

a child’s IEP is not changed without 

prior notice by a public agency and an 

opportunity to discuss any changes with 

the public agency. 

Changes: None. 

Comment: Several commenters asked 

whether the agreement to make changes 

to a child’s IEP without an IEP Team 

meeting must be in writing. Many 

commenters recommended requiring 

informed written consent to amend an 

IEP without an IEP Team meeting. 

Discussion: Section 614(d)(3)(D) of the 

Act does not require the agreement 

between the parent and the public 

agency to be in writing. In addition, the 

parent is not required to provide 

consent, as defined in § 300.9, to amend 

the IEP without an IEP Team meeting. 

However, it would be prudent for the 

public agency to document the terms of 

the agreement in writing, in the event 

that questions arise at a later time. Of 

course, changes to the child’s IEP would 

have to be in writing. 

Changes: None. 

Comment: One commenter requested 

that the regulations include safeguards 

to ensure that key elements of a child’s 

prior IEP program are not altered 

without discussion of the change with 

parents, and that parents are provided 

with information that will allow them to 

fully consider the alternatives. 

Discussion: Section 300.324(a)(4), 

consistent with section 614(d)(3)(D) of 

the Act, permits the public agency and 

the parent to agree to amend the child’s 

IEP without an IEP Team meeting. If the 

parent needs further information about 

the proposed change or believes that a 

discussion with the IEP Team is 

necessary before deciding to change the 

IEP, the parent does not have to agree 

to the public agency’s request to amend 

the IEP without an IEP Team meeting. 

Changes: None. 

Comment: A few commenters 

recommended that when an IEP is 

changed without an IEP Team meeting, 

all personnel with responsibility for 

implementing the revised IEP should be 

informed of the changes with respect to 

their particular responsibilities and 

have access to the revised IEP. Some 

commenters recommended that once the 

parent has approved the IEP changes, 

the IEP Team members should be 

notified and trained on the amended IEP 

within one calendar week of the 

changes. 

Discussion: We agree that when the 

parent and the public agency agree to 

change the IEP without an IEP Team 

meeting, it is important that the 

personnel responsible for implementing 


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the revised IEP be notified and informed 

of the changes with respect to their 

particular responsibilities. We will add 

language to address this in 

§ 300.324(a)(4). We do not believe that 

it is necessary to regulate on the 

timeframe within which a public agency 

must make the IEP accessible to the 

service providers responsible for 

implementing the changes, or otherwise 

notify them of the changes, as this will 

vary depending on the circumstances 

(e.g., whether the changes are minor or 

major changes) and is, therefore, best 

left to State and local public agency 

officials to determine. 

Changes: We have restructured 

§ 300.324(a)(4) and added a new 

paragraph (a)(4)(ii) to require a public 

agency to ensure that the child’s IEP 

Team is informed of changes made to a 

child’s IEP when changes to the IEP are 

made without an IEP Team meeting. 

Comment: One commenter asked 

whether States must allow parents and 

school districts to agree to change the 

IEP without an IEP Team meeting. 

Discussion: The provisions in section 

614(d)(3)(D) of the Act are intended to 

benefit parents by providing the 

flexibility to amend an IEP without 

convening an IEP Team meeting. 

Therefore, a State must allow changes to 

an IEP without an IEP Team meeting 

when a parent and public agency agree 

not to convene an IEP Team meeting, 

and instead develop a written document 

to amend or modify a child’s current 

IEP, consistent with § 300.324(a)(4) and 

section 614(d)(3)(D) of the Act. 

Changes: None. 

Amendments (§ 300.324(a)(6)) 

Comment: Many commenters 

requested revising § 300.324(a)(6) to 

require public agencies to provide a 

copy of a revised IEP to the parent 

without requiring the parent to request 

the copy when amendments are made to 

the IEP. The commenters stated that this 

safeguard is needed to ensure that 

negotiated amendments are actually 

instituted. Some commenters 

recommended that, at a minimum, the 

parent should be provided with notice 

that they have the right to receive a copy 

of the revised IEP. 

Discussion: The requirement for a 

public agency to provide a parent with 

a revised copy of the IEP upon the 

request of a parent is in section 

614(d)(3)(F) of the Act. There is nothing 

in the Act that would prevent a school 

from providing a copy of a revised IEP 

to a parent whenever amendments are 

made. However, under the Act, the 

school is not required to provide the 

parent a copy of the revised IEP absent 

the parent’s request for a copy. It would 

be inconsistent with the Act to include 

such a requirement in the regulations. 

Changes: None. 

Comment: Some commenters 

recommended that changes to the IEP 

should not take effect until a notice has 

been sent to the parent explaining the 

changes and written consent from the 

parent has been obtained. One 

commenter recommended that the 

regulations require a core group of the 

IEP Team to meet and address any 

changes to the IEP. 

Discussion: To implement the 

commenters’ recommendations would 

be inconsistent with the Act. Section 

614(d)(3)(F) of the Act cross-references 

section 614(d)(3)(D) of the Act, which 

provides that changes to the IEP may be 

made either by the entire IEP Team, 

which includes the parent, at an IEP 

Team meeting, or amended without an 

IEP Team meeting when the parent and 

public agency agree. The phrase ‘‘at an 

IEP Team meeting’’ following ‘‘by the 

entire IEP Team’’ was inadvertently 

omitted in § 300.324(a)(6). We will, 

therefore, add the phrase to clarify that 

changes to an IEP may be made by the 

entire IEP Team at an IEP Team 

meeting, or amended without an IEP 

Team meeting when the parent and 

public agency agree. 

Changes: We have added the phrase 

‘‘at an IEP Team meeting’’ following ‘‘by 

the entire IEP Team.’’

Failure To Meet Transition Objectives 

(§ 300.324(c)) 

Comment: One commenter 

recommended that § 300.324(c) 

emphasize collaboration between public 

agencies providing education and 

transportation in order to resolve 

problems concerning a child’s 

transportation IEP objectives related to 

transition. 

Discussion: Section 300.321(b)(3) 

requires the IEP Team to invite a 

representative of any agency that is 

likely to be responsible for providing or 

paying for transition services, when 

appropriate, and with the consent of the 

parent (or a child who has reached the 

age of majority). In addition, 

§ 300.154(a), consistent with section 

612(a)(12) of the Act, requires each State 

to ensure that an interagency agreement 

or other mechanism for interagency 

coordination is in effect between each 

non-educational public agency and the 

SEA, in order to ensure that services 

needed to ensure FAPE are provided. 

Section 300.154(b) and section 

612(a)(12)(B)(i) of the Act specifically 

refer to interagency agreements or other 

mechanisms for interagency 

coordination with agencies assigned 

responsibility under State policy to 

provide special education or related 

services relating to transition. This 

would include a public agency that is 

responsible for transportation under 

State policy. We believe this is 

sufficient to address the commenter’s 

concern. 

Changes: None. 

Comment: A few commenters 

requested that § 300.324(c)(1) clarify 

that public agencies are under a legal 

obligation to provide services related to 

the transition objectives in a child’s IEP. 

Discussion: It is not necessary to 

include additional language in 

§ 300.324(c)(1). Section 300.101, 

consistent with section 612(a)(1)(A) of 

the Act, requires each SEA to ensure 

that the special education and related 

services that are necessary for the child 

to receive FAPE are provided in 

conformity with the child’s IEP. If an 

agency, other than the public agency, 

fails to provide the transition services 

described in the IEP, the public agency 

must reconvene the IEP Team to 

develop alternative strategies to meet 

the transition objectives for the child set 

out in the child’s IEP, consistent with 

section 614(d)(6) of the Act and 

§ 300.324(c)(1). 

Changes: None. 

Children With Disabilities in Adult 

Prisons (§ 300.324(d)) 

Comment: A few commenters stated 

that guidance is needed regarding what 

requirements apply when serving 

incarcerated children with disabilities. 

One commenter recommended requiring 

that children with disabilities 

incarcerated in local jails continue with 

their established school schedules and 

IEP services, which States may provide 

directly or through an LEA. 

Discussion: No change to the 

regulations is needed. Section 

300.324(d)(1), consistent with section 

614(d)(7) of the Act, specifies the 

requirements of the Act that do not 

apply to children with disabilities who 

are convicted as adults under State law 

and incarcerated in adult prisons. If a 

child with a disability is incarcerated, 

but is not convicted as an adult under 

State law and is not incarcerated in an 

adult prison, the requirements of the 

Act apply. Whether the special 

education and related services are 

provided directly by the State or 

through an LEA is a decision that is best 

left to States and LEAs to determine. 

Changes: None. 

Comment: One commenter stated that 

SEAs and LEAs should not be allowed 

to restrict the types of services provided 

to children with disabilities simply 

because they are incarcerated. 


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Discussion: We disagree with the 

commenter. The Act allows services to 

be restricted for a child with a disability 

who is convicted as an adult under State 

law and incarcerated in an adult prison. 

Section 614(d)(7)(B) of the Act states 

that the IEP Team of a child with a 

disability who is convicted as an adult 

under State law and incarcerated in an 

adult prison may modify the child’s IEP 

or placement if the State has 

demonstrated a bona fide security or 

compelling penological interest that 

cannot otherwise be accommodated. 

Further, the LRE requirements in 

§ 300.114 and the requirements related 

to transition services in § 300.320 do not 

apply. 

Changes: None. 

Private School Placements by Public 

Agencies (§ 300.325) 

Comment: One commenter stated that 

§ 300.325, regarding private school 

placements by public agencies, is not in 

the Act and should be removed. 

Discussion: We disagree with the 

commenter. Section 612(a)(10)(B) of the 

Act provides that children with 

disabilities who are placed in private 

schools and facilities are provided 

special education and related services, 

in accordance with an IEP, and have all 

the rights the children would have if 

served by a public agency. In order to 

comply with this statutory requirement, 

§ 300.325 explains the responsibilities 

of the public agency that places a child 

with a disability in a private school or 

facility with respect to developing, 

reviewing, and revising the child’s IEP. 

Changes: None. 

Comment: A few commenters 

requested clarifying § 300.325(b)(1), 

which allows the private school or 

facility to initiate and conduct IEP Team 

meetings to review and revise the 

child’s IEP at the discretion of the 

public agency. The commenters stated 

that this should be changed to ‘‘only 

with the consent of the public agency.’’

Discussion: We do not believe the 

suggested change is necessary. Section 

300.325(c) is clear that for publiclyplaced children with disabilities, even if 

a private school or facility implements 

a child’s IEP, responsibility for 

compliance with Part B of the Act 

remains with the public agency and the 

SEA. Therefore, it is up to the public 

agency to determine whether the private 

school or facility can initiate and 

conduct an IEP Team meeting to review 

and revise a child’s IEP. 

Changes: None. 

Educational Placements (§ 300.327) 

Comment: A few commenters stated 

that the terms ‘‘educational placement’’

and ‘‘placement’’ are used throughout 

the regulations and recommended that 

only one of the terms be used to avoid 

confusion. A few commenters suggested 

that the term ‘‘educational placement’’

be defined to include location, supports, 

and services provided. 

Discussion: The terms ‘‘educational 

placement’’ and ‘‘placement’’ are used 

throughout the Act, and we have 

followed the language of the Act 

whenever possible. We do not believe it 

is necessary to define ‘‘educational 

placement.’’ Section 300.116, consistent 

with section 612(a)(5) of the Act, states 

that the determination of the 

educational placement of a child with a 

disability must be based on a child’s 

IEP. The Department’s longstanding 

position is that placement refers to the 

provision of special education and 

related services rather than a specific 

place, such as a specific classroom or 

specific school. 

Changes: None. 

Alternative Means of Meeting 

Participation (§ 300.328) 

Comment: One commenter requested 

that electronic mail be used as an 

alternative means of communication for 

administrative matters if the parents and 

the public agency agree. 

Discussion: There is nothing in the 

Act or these regulations that prohibits 

the use of electronic mail to carry out 

administrative matters under section 

615 of the Act, so long as the parent of 

the child with a disability and the 

public agency agree. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

clarify that video conferences may be 

used to allow general education teachers 

to participate in IEP Team meetings. 

Discussion: The regulations already 

address the use of video conferences. 

Section 300.328, consistent with section 

614(f) of the Act, allows the use of video 

conferences and other alternative means 

of meeting participation if the parent of 

the child with a disability and the 

public agency agree. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

specify that the cost of using alternative 

means of meeting participation shall be 

borne by the LEA and not the parent. 

Discussion: If a public agency uses an 

alternative means of meeting 

participation that results in additional 

costs, the public agency is responsible 

for paying the additional costs. We do 

not believe it is necessary to include 

this additional language in the 

regulations. Section 300.101, consistent 

with section 612(a)(1)(A) of the Act, 

requires that the public education 

provided to children with disabilities 

must be free and appropriate. The 

benefits of including parents in the IEP 

process by providing alternative means 

by which parents can participate is an 

important part of ensuring that a child 

receives FAPE and far outweighs any 

additional costs for the alternative 

means of participation that a public 

agency may incur. 

Changes: None. 

Comment: A few commenters 

recommended requiring the parent’s 

agreement to use alternative means of 

meeting participation to conform to the 

consent requirements in § 300.9. 

Discussion: Section 614(f) of the Act 

allows the parent and a public agency 

to agree to use alternative means of 

meeting participation. Consent, as 

defined in § 300.9 is not required by the 

Act. Therefore, we do not believe it 

should be required by regulation. 

Changes: None. 

Comment: One commenter 

recommended that there be additional 

requirements when using alternative 

means of meeting participation. The 

commenter stated that parents should be 

informed of their right to refuse a 

telephone conference and should be 

required to provide consent at least 

seven days prior to the meeting. 

Another commenter recommended 

clarifying that alternative means of 

meeting should only be used when 

necessary. 

Discussion: Section 614(f) of the Act 

allows a parent and a public agency to 

agree to use alternative means of 

meeting participation. The Act does not 

specify any additional requirements or 

restrictions. We view this provision as 

providing flexibility for parents and 

public agencies in arranging convenient 

meetings and believe that additional 

requirements would be inconsistent 

with that purpose. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

require LEAs to provide the parent with 

an IEP in a timely manner (within five 

business days) when alternative means 

of meeting participation are used for an 

IEP Team meeting. The commenter 

stated this was necessary so that the 

parent can verify the contents of the IEP. 

Discussion: New 300.322(f) (proposed 

§ 300.322(e)) requires the public agency 

to give the parent a copy of the child’s 

IEP at no cost to the parent. We believe 

the specific timeframe in which the 

public agency provides a copy of the IEP 

to the parent is best left to the public 

agency to determine. 

Changes: None. 


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Comment: One commenter stated that 

the requirements for alternative means 

of meeting participation in § 300.328 

should be placed in the regulations 

following § 300.321, because the 

requirements add flexibility to the 

special education process. 

Discussion: The requirements in 

§ 300.328, regarding alternative means 

of meeting participation, apply to IEP 

Team meetings as well as placement 

meetings, and carrying out 

administrative matters under section 

615 of the Act. Therefore, it would not 

be appropriate to move § 300.328 to the 

location in the regulations suggested by 

the commenter. 

Changes: None. 

Subpart E—Procedural Safeguards 

Due Process Procedures for Parents and 

Children 

Opportunity To Examine Records; 

Parent Participation in Meetings 

(§ 300.501) 

Comment: One commenter 

recommended adding language in 

§ 300.501(a) stating that parents have 

the right to obtain a free copy of all 

education records. 

Discussion: Section 300.501(a), 

consistent with section 615(b)(1) of the 

Act, affords parents an opportunity to 

inspect and review all education records 

with respect to the identification, 

evaluation, and educational placement 

of the child, and the provision of FAPE 

to the child. Specific procedures for 

access to records are contained in the 

confidentiality provisions in §§ 300.613 

through 300.621. A participating 

agency, consistent with § 300.613(b)(2), 

however, must provide copies of a 

child’s education records to a parent, if 

failure to do so would effectively 

prevent a parent from exercising the 

right to inspect and review the records, 

such as if a parent lives outside of 

commuting distance of the agency. This 

provision is consistent with the access 

rights afforded under FERPA in 34 CFR 

99.10(d)(1). 

We decline to make the change 

requested by the commenter because 

such a change would impose a 

significant new burden on public 

agencies that is not necessary. Public 

agencies, however, are free to provide 

copies whenever requested by the 

parent, if they choose to do so. We have, 

however, made a change to this section 

to correct the cross-references to the 

procedures for inspection and review of 

records. 

Changes: We have corrected the crossreferences to the procedures for 

inspection and review of records to 

§§ 300.613 through 300.621. 

Comment: One commenter 

recommended adding a provision to 

§ 300.501 that would give parents the 

opportunity to prepare their own reports 

and provide information that would 

become part of the child’s education 

record. 

Discussion: The Act and these 

regulations encourage parental input 

and involvement in all aspects of a 

child’s educational program, and 

provide many opportunities for parents 

to provide information that becomes 

part of the child’s education record. For 

example, § 300.304(a)(1), consistent 

with section 614(b)(2)(A) of the Act, 

requires any evaluation to include 

information provided by the parent; 

§ 300.305(a)(2), consistent with section 

614(c)(1)(B) of the Act, requires the 

review of existing data for evaluations 

and reevaluations to include input from 

the child’s parents; § 300.306(a)(1), 

consistent with section 614(b)(4) of the 

Act, requires the parent to be part of the 

group that determines whether the child 

is a child with a disability and the 

educational needs of the child; and 

§ 300.321(a)(1), consistent with section 

614(d)(1)(B)(i) of the Act, requires the 

IEP Team that is responsible for 

developing, reviewing and revising the 

child’s IEP to include the parent. In 

addition, § 300.322(a) specifies the steps 

a public agency must take to ensure that 

one or both parents are present at the 

IEP Team meeting and afforded the 

opportunity to participate in the 

meeting. Therefore, we do not believe 

that it is necessary to regulate on this 

issue. However, if a parent provides a 

report for the child’s education record 

and the public agency chooses to 

maintain a copy of the written report, 

that report becomes part of the child’s 

education record and is subject to the 

confidentiality of information 

requirements in §§ 300.610 through 

300.627, and FERPA and its 

implementing regulations in 34 CFR 

part 99. 

Changes: None. 

Comment: Many commenters 

suggested adding language in 

§ 300.501(b)(2) requiring the public 

agency to take whatever action is 

necessary to ensure that parents 

understand the proceedings at any of 

the meetings described in this section. 

The commenters stated that this 

requirement is not unnecessarily 

duplicative and removing it gives the 

impression that interpreters are no 

longer required. Several commenters 

recommended that if school staff 

determines that a parent has difficulty 

understanding the procedural 

safeguards, the public agency must 

explain the parent’s rights at any time 

that a change in services is 

contemplated. 

Discussion: It is not necessary to add 

language to § 300.501(b)(2) to require a 

public agency to take whatever action is 

necessary to ensure that parents 

understand the proceedings at any of 

the meetings described in this section. 

Public agencies are required by other 

Federal statutes to take appropriate 

actions to ensure that parents who 

themselves have disabilities and limited 

English proficient parents understand 

proceedings at any of the meetings 

described in this section. The other 

Federal statutory provisions that apply 

in this regard are Section 504 of the 

Rehabilitation Act of 1973 and its 

implementing regulations in 34 CFR 

part 104 (prohibiting discrimination on 

the basis of disability by recipients of 

Federal financial assistance), title II of 

the Americans With Disabilities Act and 

its implementing regulations in 28 CFR 

part 35 (prohibiting discrimination on 

the basis of disability by public entities, 

regardless of receipt of Federal funds), 

and title VI of the Civil Rights Act of 

1964 and its implementing regulations 

in 34 CFR part 100 (prohibiting 

discrimination on the basis of race, 

color, or national origin by recipients of 

Federal financial assistance). 

As noted in the Analysis of Comments 

and Changes section to subpart D, we 

have retained the requirements in 

current § 300.345(e), which require the 

public agency to take whatever action is 

necessary to ensure that the parent 

understands the proceedings at an IEP 

Team meeting, including arranging for 

an interpreter for parents with deafness 

or whose native language is other than 

English. This requirement is in new 

§ 300.322(e). We have also included a 

cross reference to new § 300.322(e) in 

§ 300.501(c)(2) to clarify that. 

It is not necessary to include 

regulations to require a public agency to 

explain the procedural safeguards to 

parents any time that a change in 

services is contemplated. Section 

300.503 already requires prior written 

notice to be given to the parents of a 

child with a disability a reasonable time 

before the public agency proposes (or 

refuses) to initiate or change the 

identification, evaluation, or 

educational placement of the child, or 

the provision of FAPE to the child. As 

required in § 300.503(b)(4), the prior 

written notice must include a statement 

that the parents have protections under 

the procedural safeguards of this part. 

Consistent with §§ 300.503(c) and 

300.504(d), the prior written notice and 

the procedural safeguards notice, 

respectively, must be written in 

language understandable to the general 


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public and provided in the native 

language or other mode of 

communication of the parent, unless it 

is clearly not feasible to do so. If the 

native language or other mode of 

communication of the parent is not a 

written language, the public agency 

must take steps to ensure that the notice 

is translated orally or by other means to 

the parent in his or her native language 

or other mode of communication and 

that the parent understands the content 

of the notice. 

Changes: None. 

Comment: Several commenters stated 

that § 300.501(b)(3) implies that 

teaching methodologies and lesson 

plans must be included in the IEP, 

which exceeds the requirements of the 

Act. The commenters recommended 

removing ‘‘if those issues are not 

addressed in the child’s IEP’’ from 

§ 300.501(b)(3). 

Discussion: We agree that the phrase 

referred to by the commenters is 

confusing and open to misinterpretation 

and are removing it from 

§ 300.501(b)(3). 

Changes: We have removed the 

phrase ‘‘if those issues are not addressed 

in the child’s IEP’’ from § 300.501(b)(3) 

for clarity. 

Comment: Many commenters 

recommended requiring a public agency 

to make several attempts to involve 

parents in placement decisions and 

requested that § 300.501 be changed to 

require a public agency to maintain: (1) 

Detailed records of telephone calls made 

or attempted and the results of those 

calls; (2) copies of correspondence sent 

to parents and any responses received; 

and (3) detailed records of visits made 

to a parent’s home or place of 

employment and the results of those 

visits. 

Discussion: We do not believe the 

additional language requested by the 

commenters is necessary. Section 

300.501(c)(4) requires a public agency to 

maintain a record of its attempts to 

contact parents prior to making a 

placement decision without parent 

participation. We believe this 

requirement is sufficient to ensure that 

a public agency holding a placement 

meeting with neither parent in 

attendance takes the necessary steps to 

contact parents and maintain 

appropriate documentation of its 

attempts to ensure parent participation. 

As a matter of practice, public agencies 

use a variety of methods to contact 

parents depending on the ways they 

find to be most efficient and effective for 

a particular situation. Public agencies 

take seriously their obligation to include 

parents in placement decisions and are 

in the best position to determine the 

records they need to demonstrate that 

they have taken appropriate steps to 

include parents in placement decisions 

before holding a placement meeting 

without a parent in attendance. 

Changes: None. 

Comment: A few commenters 

recommended that placement meetings 

not be held, or decisions made, without 

a representative of the child. The 

commenters recommended appointing a 

surrogate parent when the biological or 

adoptive parent refuses to attend, or is 

unable to participate, in the placement 

meeting. 

Discussion: There is no statutory 

authority to permit the appointment of 

a surrogate parent when a parent is 

either unable or unwilling to attend a 

meeting in which a decision is made 

relating to a child’s educational 

placement. In section 615(b)(2) of the 

Act, a public agency does not have the 

authority to appoint a surrogate parent 

where a child’s parent is available or 

can be identified and located after 

reasonable efforts, but refuses, or is 

unable, to attend a meeting or otherwise 

represent the child. 

Changes: None. 

Independent Educational Evaluation 

(§ 300.502) 

Comment: One commenter suggested 

adding language to § 300.502 requiring 

evaluators who conduct independent 

educational evaluations (IEEs) to be 

licensed by the State. 

Discussion: We are not changing the 

regulations in the manner requested by 

the commenter because the regulations 

already require that the standards be the 

same for all evaluators, as long as the 

agency’s criteria for evaluators do not 

prohibit a parent from obtaining an IEE. 

An IEE is defined in § 300.502(a)(3)(i) as 

an evaluation conducted by a qualified 

examiner who is not employed by the 

public agency responsible for the 

education of the child in question. 

Section 300.502(e) provides that in 

order for an IEE to be at public expense, 

the criteria under which the evaluation 

is obtained, including the location of the 

evaluation and the qualifications of the 

examiner, must be the same as the 

criteria that the public agency uses 

when it initiates an evaluation, to the 

extent those criteria are consistent with 

the parent’s right to an IEE. Except for 

these criteria, § 300.502(e)(2) provides 

that a public agency may not impose 

conditions or timelines related to 

obtaining an IEE at public expense. 

Consistent with applicable agency 

criteria, it would be appropriate for a 

public agency to require an IEE 

examiner to hold, or be eligible to hold, 

a particular license when a public 

agency requires the same licensure for 

personnel who conduct the same types 

of evaluations for the agency. In 

contrast, it would be inconsistent with 

a parent’s right to an IEE for a public 

agency to require all evaluators to be 

licensed, if only individuals employed 

by a public agency may obtain a license. 

Changes: None. 

Comment: One commenter requested 

clarification regarding parental rights to 

an IEE when a public agency is using a 

response to intervention process to 

determine whether a child has SLD. 

Discussion: If a parent disagrees with 

the results of a completed evaluation 

that includes a review of the results of 

a child’s response to intervention 

process, the parent has a right to an IEE 

at public expense, subject to the 

conditions in § 300.502(b)(2) through 

(b)(4). The parent, however, would not 

have the right to obtain an IEE at public 

expense before the public agency 

completes its evaluation simply because 

the parent disagrees with the public 

agency’s decision to use data from a 

child’s response to intervention as part 

of its evaluation to determine if the 

child is a child with a disability and the 

educational needs of the child. 

Changes: None. 

Comment: One commenter requested 

clarification regarding a public agency’s 

right to limit the amount it pays for an 

IEE and asked whether a public agency 

can place limits on the frequency of an 

IEE (e.g., a single IEE in an evaluation 

cycle or in a child’s school career). 

Discussion: It is the Department’s 

longstanding position that public 

agencies should not be required to bear 

the cost of unreasonably expensive IEEs. 

This position is reflected in the 

regulatory provisions. Section 

300.502(a)(2) provides that if a parent 

requests an IEE at public expense, the 

public agency must provide the parent 

with information about where an IEE 

may be obtained and the agency criteria 

applicable for IEEs. In order for an 

evaluation to be at public expense, 

§ 300.502(e)(1) requires that the criteria 

under which an IEE is obtained, 

including the location of the IEE and the 

qualifications of the examiner, be the 

same as the criteria that the public 

agency uses when it initiates an 

evaluation, to the extent that those 

criteria are consistent with a parent’s 

right to an IEE. In addition, 

§ 300.502(e)(2) states that, except for the 

criteria described above, a public agency 

may not impose conditions or timelines 

related to obtaining an IEE at public 

expense. 

Although it is appropriate for a public 

agency to establish reasonable cost 

containment criteria applicable to 


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personnel used by the agency, as well as 

to personnel used by parents, a public 

agency would need to provide a parent 

the opportunity to demonstrate that 

unique circumstances justify selection 

of an evaluator whose fees fall outside 

the agency’s cost containment criteria. 

Section 300.502(b)(2) provides that if 

the parent requests an IEE at public 

expense, the public agency either must 

ensure that the IEE is provided at public 

expense or file a due process complaint 

notice to request a hearing to 

demonstrate that the agency’s 

evaluation is appropriate. 

We do not, however, believe that the 

parent should be limited to one IEE at 

public expense in a child’s school 

career. In the school career of a child, 

there could be more than one point 

when there is a legitimate disagreement 

between a parent and the public agency 

over evaluations of the child. 

Nevertheless, we do believe that it is 

important to clarify that a parent is not 

entitled to more than one IEE at public 

expense when the parent disagrees with 

a specific evaluation or reevaluation 

conducted or obtained by the public 

agency. Therefore, we are adding a new 

paragraph (b)(5) in § 300.502 to clarify 

that a parent is entitled to only one IEE 

each time the public agency conducts an 

evaluation with which the parent 

disagrees. This regulatory provision is 

consistent with a parent’s statutory right 

to an IEE at public expense, while 

recognizing that public agencies should 

not be required to bear the cost of more 

than one IEE when a parent disagrees 

with an evaluation conducted or 

obtained by the public agency. 

Changes: We have added a new 

paragraph (b)(5) in § 300.502 to clarify 

that a parent is entitled to only one IEE 

at public expense each time the public 

agency conducts an evaluation with 

which the parent disagrees. 

Comment: Some commenters 

suggested adding language allowing an 

evaluator conducting an IEE the 

opportunity to review existing data, 

receive input from the child’s parents, 

determine what additional data are 

needed to determine the scope of the 

evaluation, and select the instruments 

appropriate to evaluate the child. The 

commenters also stated that the public 

agency should not restrict the scope of 

the evaluation. 

Discussion: We do not believe it is 

necessary to add language to the 

regulations regarding the review of 

existing data, input from the child’s 

parents, the scope of the evaluation, or 

the instruments used to evaluate the 

child, because an IEE must meet the 

agency criteria that the public agency 

uses when it initiates an evaluation, 

consistent with § 300.502(e). 

Section 300.305(a) provides that, as 

part of an initial evaluation (if 

appropriate) and as part of any 

reevaluation under this part, the IEP 

Team and other qualified professionals, 

as appropriate, must review existing 

evaluation data on the child, including 

input from the child’s parents. Since the 

review of existing evaluation data and 

input from the child’s parents are part 

of the public agency’s evaluation, they 

would also be appropriate elements in 

an IEE. 

Similarly, § 300.304(b)(1) provides 

that an evaluation conducted by a 

public agency must use a variety of 

assessment tools and strategies to gather 

relevant functional, developmental, and 

academic information about the child, 

including information provided by the 

parent, that may assist in determining 

whether the child is a child with a 

disability under § 300.8, and the content 

of the child’s IEP, including information 

related to enabling the child to be 

involved in and progress in the general 

education curriculum (or for a preschool 

child to participate in appropriate 

activities). These requirements also 

apply to an IEE conducted by an 

independent evaluator, since these 

requirements will be a part of the 

agency’s criteria. 

Generally, the purpose of an 

evaluation under the Act is to determine 

whether the child is a child with a 

disability, and in the case of a 

reevaluation, whether the child 

continues to have a disability, and the 

educational needs of the child. It would 

be inconsistent with the Act for a public 

agency to limit the scope of an IEE in 

a way that would prevent an 

independent evaluator from fulfilling 

these purposes. 

Changes: None. 

Comment: Some commenters 

recommended adding language to the 

regulations requiring a parent to provide 

consent for release of education records 

when a hearing officer orders an LEA to 

provide an IEE at public expense. 

Discussion: Consistent with 

§ 300.622(b), parental consent is not 

required for a public agency to release 

education records to a hearing officer 

because a hearing officer is an official of 

a participating agency, as defined in 

§ 300.611(c). However, when a hearing 

officer orders an IEE, parental consent 

would be required under § 300.622(a) 

for a public agency to release education 

records to the independent evaluator 

who will conduct the IEE, since in these 

situations, the independent evaluator is 

not an official of a participating agency. 

If a parent refuses to consent to the 

release of education records to an 

independent evaluator, a hearing officer 

could decide to dismiss the complaint. 

Therefore, we are not changing the 

regulations in the manner suggested by 

the commenter. 

Changes: None. 

Comment: A few commenters 

requested clarification regarding what 

an LEA must do to satisfy the 

requirement in § 300.502(c)(1) that a 

public agency consider the results of an 

evaluation obtained by a parent at 

private expense. The commenters stated 

that public agencies often ignore the 

results of an IEE and recommended 

requiring public agencies to explain 

why an IEE was rejected. 

Discussion: Section 300.502(c)(1) 

imposes an affirmative obligation on a 

public agency to consider the results of 

a parent-initiated evaluation at private 

expense in any decision regarding the 

provision of FAPE to the child, if that 

evaluation meets agency criteria. The 

requirement, however, does not mean 

that the public agency is compelled to 

consider the parent-initiated evaluation 

at private expense in its decision 

regarding the provision of FAPE, if it 

does not meet agency criteria. If the 

agency believes that the parent-initiated 

evaluation does not meet agency 

criteria, it would be appropriate for the 

agency to explain to the parent why it 

believes that the parent-initiated 

evaluation does not meet agency 

criteria. 

Changes: None. 

Comment: Several commenters 

indicated that permitting any party to 

use the results from a privately-funded 

IEE as evidence at a due process hearing 

may discourage parents from initiating 

and paying for evaluations of their 

child. 

Discussion: If a parent obtains an 

evaluation at private expense, there is 

nothing in the Act or these regulations 

that requires a parent to share that 

evaluation with the public agency. A 

privately-funded evaluation that is not 

shared with a public agency would not 

be considered an IEE under this 

regulation. If, however, the parent 

chooses to share the evaluation with the 

public agency, that evaluation may be 

presented by any party as evidence in a 

due process hearing, in accordance with 

§ 300.502(c)(2). Similarly, if a public 

agency reimburses a parent for an IEE, 

and the parent disagrees with the results 

of the IEE, there is nothing in the Act 

or these regulations that would prevent 

a public agency from introducing that 

evaluation in a due process hearing over 

the parent’s objection. We disagree with 

the commenters to the extent that they 

believe that parents should have an 


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expectation of privacy regarding an 

evaluation that is publicly-funded or for 

which they seek public funding. We 

believe it is necessary to change 

§ 300.502(c)(2) to ensure that public 

agencies have the opportunity to 

introduce the results of publicly-funded 

IEEs at due process hearings. 

Changes: We have added language in 

§ 300.502(c) to permit any party to 

present the results of a publicly-funded 

IEE. We have also clarified that if a 

parent shares a privately-funded IEE 

with the public agency, the privatelyfunded IEE may be used as evidence in 

a due process hearing. 

Comment: One commenter 

recommended that the regulations 

prohibit the testimony of experts who 

did not evaluate the child before the due 

process hearing, unless the other party 

has an equal opportunity to evaluate the 

child at public expense, both parties 

consent to such testimony, or the 

hearing officer or judge orders the 

evaluation. 

Discussion: It would be inappropriate 

to regulate in the manner recommended 

by the commenter. Such determinations 

are made on a case-by-case basis in light 

of the specific facts of each case at the 

discretion of the hearing officer. We 

believe that the hearing officer, as the 

designated trier of fact under the Act, is 

in the best position to determine 

whether expert testimony should be 

admitted and what weight, if any, 

should be accorded that expert 

testimony. We would expect that these 

decisions will be governed by 

commonly applied State evidentiary 

standards, such as whether the 

testimony is relevant, reliable, and 

based on sufficient facts and data. 

Changes: None. 

Prior Notice by the Public Agency; 

Content of Notice (§ 300.503) 

Comment: One commenter stated that 

the prior written notice be given to 

parents as soon as possible, but no later 

than 15 days before the public agency 

proposes to initiate or refuse a change. 

Another commenter recommended 

requiring IEP Teams to carefully 

consider all the data and options before 

making a decision to change a child’s 

placement or refuse the parent’s request 

for services. 

Discussion: Section 300.503(a) 

incorporates section 615(b)(3) of the Act 

and requires a public agency to provide 

parents with written notice that meets 

the requirements in § 300.503(b) a 

reasonable time before the public 

agency proposes or refuses to initiate or 

change the identification, evaluation, or 

educational placement of the child, or 

the provision of FAPE to the child. We 

do not believe that it is necessary to 

substitute a specific timeline to clarify 

what is meant by the requirement that 

the notice be provided within a 

reasonable period of time, because we 

are not aware of significant problems in 

the timing of prior written notices. In 

addition, prior written notice is 

provided in a wide variety of 

circumstances for which any one 

timeline would be too rigid and, in 

many cases, might prove unworkable. 

We do not believe that it is necessary 

to add a requirement that IEP Teams 

carefully consider all the data and 

options before making a decision to 

change a child’s placement or refuse the 

parent’s request for services. Section 

300.306(c) already requires the group of 

professionals and the parent of the child 

to carefully consider information from a 

variety of sources before determining a 

child’s eligibility and placement. 

Furthermore, the requirements for 

developing, reviewing, and revising a 

child’s IEP in § 300.324, ensure that IEP 

Teams carefully consider all available 

information in developing an IEP, 

including information from the child’s 

parents. 

Changes: None. 

Comment: One commenter suggested 

permitting the prior written notice to be 

the IEP itself, rather than requiring a 

separate document. 

Discussion: There is nothing in the 

Act or these regulations that would 

prohibit a public agency from using the 

IEP as part of the prior written notice so 

long as the document(s) the parent 

receives meet all the requirements in 

§ 300.503. 

Changes: None. 

Comment: One commenter asked how 

a parent would know that the public 

agency is refusing to initiate or change 

the identification, evaluation, or 

placement of a child without an IEP 

Team meeting. Another commenter 

stated that prior written notice should 

be provided in advance of an IEP Team 

meeting, not at the IEP Team meeting, 

so that parents could prepare for the 

meeting. The commenter suggested 

adding language to the regulations 

requiring that the notice be given a 

reasonable time before an IEP Team 

meeting. 

Discussion: The commenter confuses 

the Act’s prior written notice 

requirements with the requirements 

governing IEP Team meetings. Section 

300.503(a), consistent with section 

615(b)(3) of the Act, requires prior 

written notice whenever a public agency 

proposes to initiate or change (or refuses 

to initiate or change) the identification, 

evaluation, or educational placement of 

a child, or the provision of FAPE to a 

child. A public agency meets the 

requirements in § 300.503 so long as the 

prior written notice is provided a 

reasonable time before the public 

agency implements the proposal (or 

refusal) described in the notice. A 

public agency is not required to convene 

an IEP Team meeting before it proposes 

a change in the identification, 

evaluation, or educational placement of 

the child, or the provision of FAPE to 

the child. The proposal, however, 

triggers the obligation to convene an IEP 

Team meeting. Providing prior written 

notice in advance of meetings could 

suggest, in some circumstances, that the 

public agency’s proposal was 

improperly arrived at before the meeting 

and without parent input. Therefore, we 

are not changing § 300.503 to require the 

prior written notice to be provided prior 

to an IEP Team meeting. 

Changes: None. 

Comment: A few commenters 

recommended retaining current 

§ 300.503(a)(2), which provides that if 

the prior written notice relates to an 

action that also requires parental 

consent, the agency may give notice at 

the same time it requests parental 

consent. 

Discussion: It is not necessary to 

explain in the regulations that prior 

written notice can be provided at the 

same time as parental consent is 

requested, because parental consent 

cannot be obtained without the requisite 

prior written notice. The removal of this 

regulatory provision, however, is not 

intended to prohibit a public agency 

from giving prior written notice at the 

same time that parental consent is 

sought, should the agency choose to do 

so. 

Changes: None. 

Comment: One commenter asked that 

the public agency be required to provide 

a description of all the proposals made 

by anyone on the IEP Team and the 

reasons why one proposal was chosen 

over another. 

Discussion: Section 300.503(b)(1) and 

(b)(2) require the prior written notice to 

include a description of the action 

proposed or refused by the agency and 

an explanation of why the agency 

proposes or refuses to take the action. 

We do not believe that the change 

suggested by the commenter is needed 

because § 300.503(b)(6) and (b)(7) 

already require that the prior written 

notice include a description of the other 

options that the IEP Team considered, 

the reasons why those options were 

rejected, and a description of other 

factors that are relevant to the agency’s 

proposal or refusal. 

Changes: None. 


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Comment: One commenter suggested 

requiring the SEA to provide a list of 

resources for parents to obtain 

assistance in understanding the 

requirements of the Act, including 

providing easy access to the information 

on the State’s Web site. 

Discussion: Section 300.503(b)(5), 

consistent with section 615(c)(1)(D) of 

the Act, already requires the prior 

written notice to include sources for 

parents to contact to obtain assistance in 

understanding the provisions of this 

part. The Department believes that 

parents should have easy access to 

information regarding resources to 

understand the provisions of the Act. 

For many parents, this may include 

accessing such information on the 

State’s Web site. Each State is in the best 

position to determine whether including 

this information on its Web site would 

be helpful for parents. Therefore, we 

decline to add this requirement to the 

regulations. 

Changes: None. 

Comment: One commenter 

recommended removing § 300.503(c)(2), 

regarding the public agency’s 

responsibilities when the parent’s native 

language or other mode of 

communication is not a written 

language. The commenter 

recommended, instead, requiring a 

public agency to use procedures that 

involve little or no cost. One commenter 

stated that § 300.503(c)(2) should be 

removed because all but paragraph 

(c)(2)(ii), regarding ensuring that the 

parent understands the content of the 

prior written notice, exceed statutory 

requirements. 

Discussion: For parents whose mode 

of communication is not a written 

language, § 300.503(c)(2) requires the 

public agency to ensure that the notice 

is translated orally or by other means to 

the parent and that the parent 

understands the content of the notice. 

We decline to remove § 300.503(c) 

because we believe that these rights, as 

well as the other rights enumerated in 

§ 300.503(c), are essential to ensure that 

public agencies provide all parents the 

requisite prior written notice in a 

meaningful and understandable manner. 

Changes: None. 

Procedural Safeguards Notice 

(§ 300.504) 

Comment: Many comments were 

received regarding when the procedural 

safeguards notice must be provided to 

parents. One commenter stated that 

these requirements add paperwork and 

procedural burdens. Several 

commenters expressed concern that 

parents will have knowledge of their 

procedural safeguards only when they 

file a State complaint or request a due 

process hearing. Some commenters 

recommended deleting the requirement 

in § 300.504(a)(2) for the public agency 

to give parents the procedural 

safeguards notice upon receipt of the 

first State complaint or due process 

hearing in the school year. Other 

commenters suggested amending 

§ 300.504(a)(2) to require that the 

procedural safeguards notice be 

provided to parents upon receipt of the 

first due process complaint in that 

school year. Some commenters asked 

whether parents would receive a copy of 

the procedural safeguards notice only 

upon the first filing of a State complaint 

or a due process complaint, but not 

twice, if a parent submits a complaint 

and also a request for a due process 

hearing in the same school year. 

One commenter was concerned that 

the parents of a child with a disability 

who transfers into a new school will not 

be notified of their procedural rights in 

a timely manner. 

Discussion: Section 300.504(a) reflects 

the new statutory language in section 

615(d)(1) of the Act, regarding the 

timing of the procedural safeguards 

notice. Section 300.504(a)(1) and (4), 

consistent with section 615(d)(1)(A) of 

the Act, states that a copy of the 

procedural safeguards must be given to 

parents one time a year, except that a 

copy must also be given to parents upon 

initial referral or parent request for 

evaluation; upon receipt of the first 

State complaint and due process 

complaint in that school year; and upon 

request by a parent. There is no longer 

a requirement that the procedural 

safeguards notice be given to parents 

upon notification of each IEP Team 

meeting, as in current § 300.504(a). 

We disagree that § 300.504(a)(2) 

should be removed. The Department 

intends for parents to receive a copy of 

the procedural safeguards notice upon 

receipt of the first State complaint under 

§§ 300.151 through 300.153 and upon 

receipt of the first due process 

complaint under § 300.507 in a school 

year because we believe that parents 

particularly need a clear understanding 

of their rights when they embark on 

these processes and might not have 

available copies of the procedural 

safeguards notice provided earlier in the 

year, or the notice they previously 

received may be outdated. We are 

changing § 300.504(a)(2) to make this 

clear. We also are changing § 300.504(a) 

to specify that the statutory phrase ‘‘one 

time a year’’ refers to ‘‘one time a school 

year.’’

Regarding the concern that a parent 

whose child transfers to a new school 

district might not receive appropriate 

notice of the Act’s procedural 

safeguards, we do not believe that 

additional clarification is necessary. We 

believe that these regulatory provisions 

are sufficient to ensure that the parent 

of a child who changes school districts 

receives the requisite notice in a timely 

manner. When the child with a 

disability transfers to a new school 

district, that school district would have 

an obligation to ensure that the child’s 

parents are provided notice at least once 

in that school year and at the other 

times specified in § 300.504(a). 

We believe that the requirements in 

§ 300.504(a) are necessary to ensure that 

parents have information about the due 

process procedures when they are most 

likely to need them and do not view 

these requirements as unduly 

burdensome. 

Changes: Section 300.504(a)(2) has 

been changed to require public agencies 

to provide parents with a copy of the 

procedural safeguards notice upon 

receipt of the first State complaint under 

§§ 300.151 through 300.153 in a school 

year and upon receipt of the first due 

process complaint under § 300.507 in a 

school year. We have also changed 

paragraph (a) in § 300.504 to clarify that 

the statutory phrase ‘‘one time a year’’

refers to a ‘‘school’’ year. 

Comment: Several commenters 

recommended that the procedural 

safeguards notice be given to parents 

when a decision has been made to take 

disciplinary action. Another commenter 

recommended that the procedural 

safeguards notice be given at the time a 

manifestation determination is 

reviewed. 

Discussion: Section 615(k)(1)(H) of the 

Act requires public agencies to provide 

parents with a copy of the procedural 

safeguards notice not later than the date 

on which the decision to take 

disciplinary action is made. Therefore, 

we are adding this requirement in 

§ 300.504(a). We will not add a 

requirement for public agencies to 

provide parents with a copy of the 

procedural safeguards notice following 

the manifestation determination 

conducted under § 300.530(e), because 

it would be unnecessarily duplicative to 

require a procedural safeguards notice 

to be provided both prior to and after a 

decision to take disciplinary action has 

been made. 

Changes: A new paragraph (3) has 

been added in § 300.504(a) to require 

the procedural safeguards notice to be 

provided to parents in accordance with 

the discipline procedures in 

§ 300.530(h). The subsequent paragraph 

has been renumbered, consistent with 

this change. 


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Comment: Some commenters 

requested that public agencies inform 

parents when the procedural safeguards 

notice has been revised, so that parents 

can request the updated version. 

Discussion: Section 300.504(c), 

consistent with section 615(d) of the 

Act, lists the required contents of the 

procedural safeguards notice. If these 

requirements change because of changes 

made to the Act, public agencies would 

be required to change their procedural 

safeguards notice accordingly. Such 

changes, along with any additional 

changes to a State’s rules, would be 

subject to the public participation 

requirements in § 300.165 and section 

612(a)(19) of the Act. 

Changes: None. 

Comment: One commenter 

recommended requiring that the 

procedural safeguards notice include a 

parent’s right to request the credentials 

of any teacher who supports the child 

in the educational environment, as well 

as documentation regarding the type of 

supervision provided for any teacher 

who is supervised by a highly qualified 

teacher. 

Discussion: The content of the 

procedural safeguards notice is based on 

the items listed in section 615(d)(2) of 

the Act, which do not include providing 

information about teachers’ credentials 

and personnel qualifications in a 

procedural safeguards notice, as 

requested by the commenter. Nor is 

there any requirement elsewhere in the 

Act for public agencies to provide 

information about teachers’ credentials 

and personnel qualifications. 

Section 1111(h)(6) of the ESEA, 

however, requires LEAs to inform 

parents about the quality of a school’s 

teachers in title I schools. Under the 

ESEA, an LEA that accepts title I, part 

A funding must notify parents of 

students in title I schools that they can 

request information regarding their 

child’s teacher, including, at a 

minimum: (1) whether the teacher has 

met State requirements for licensure and 

certification for the grade level(s) and 

subject-matter(s) in which the teacher 

provides instruction; (2) whether the 

teacher is teaching under emergency or 

other provisional status through which 

State qualification or licensing criteria 

has been waived; (3) the college major 

and any other graduate certifications or 

degrees held by the teacher, and the 

field of discipline of the certifications or 

degrees; and (4) whether the child is 

provided services by paraprofessionals, 

and if so, their qualifications. In 

addition, each title I school must 

provide each parent timely notice that 

the parent’s child has been assigned, or 

has been taught for four or more 

consecutive weeks, by a teacher who is 

not highly qualified. These 

requirements also apply to special 

education teachers who teach core 

academic subjects in title I schools. 

Changes: None. 

Comment: Numerous commenters 

expressed concern with allowing LEAs 

to post the procedural safeguards notice 

on the school’s Web site. Several 

commenters asked whether directing a 

parent to the Web site constitutes 

distribution of the notice under the Act. 

One commenter suggested adding 

specific language to the regulations 

stating that posting the notice on the 

school Web site does not replace other 

Part B requirements regarding 

distribution of the notice. 

Discussion: Section 300.504(b), 

incorporates section 615(d)(1)(B) of the 

Act, and permits, but does not require, 

a public agency to post a current copy 

of the procedural safeguards notice on 

its Web site, if one exists. The public 

agency would not meet its obligation in 

§ 300.504(a) by simply directing a 

parent to the Web site. Rather, a public 

agency must still offer parents a printed 

copy of the procedural safeguards 

notice. If, however, a parent declines the 

offered printed copy of the notice and 

indicates a clear preference to obtain the 

notice electronically on their own from 

the agency’s Web site, it would be 

reasonable for the public agency to 

document that it offered a printed copy 

of the notice that the parent declined. 

Posting the procedural safeguards notice 

on a public agency’s Web site is clearly 

optional and for the convenience of the 

public and does not replace the 

distribution requirements in the Act. We 

do not believe it is necessary to add a 

regulation to clarify this. 

Changes: None. 

Comment: None. 

Discussion: As noted in the Analysis 

of Comments and Changes section for 

subpart B, § 300.152(c)(1) has been 

amended to require that States set aside 

any part of a State complaint filed under 

§§ 300.151 through 300.153 that is being 

addressed in a due process hearing until 

the conclusion of the hearing, and 

resolve any issue that is not a part of the 

due process hearing decision within the 

60-day timeline for State complaints 

(unless the timeline is extended, 

consistent with § 300.152(b)). This 

change was made to address those 

limited occasions when a parent files 

both a State complaint and a due 

process hearing on the same or similar 

issues. While the Department does not 

encourage the dual filing of complaints, 

we are aware that this occasionally 

occurs and it is important for the 

regulations to be clear as to how such 

situations should be handled. In light of 

this change, we are amending the 

requirement in § 300.504(c)(5), 

regarding the contents of the procedural 

safeguards notice, to inform parents of 

the opportunity to present and resolve 

complaints through the due process 

complaint and the State complaint 

procedures. 

Changes: We have removed the ‘‘or’’

in § 300.504(c)(5) and replaced it with 

‘‘and’’ to require that the procedural 

safeguards notice include a full 

explanation of the opportunity to 

present and resolve complaints through 

the due process complaint and the State 

complaint procedures. 

Comment: None. 

Discussion: We are aware of the fact 

that over the years there has been much 

confusion about exactly what must be 

included in the procedural safeguards 

notice. To help clear up this confusion, 

the Department is publishing a model 

procedural safeguards notice on its Web 

site today in accordance with section 

617(e) of the Act. In addition to making 

this model procedural safeguards notice 

available on the Department’s Web site, 

we also are amending the crossreferences in § 300.504(c) to identify the 

specific regulatory provisions that 

include procedural safeguards for which 

an explanation must be provided in the 

procedural safeguards notice. 

Changes: We have revised the crossreferences to specific regulatory sections 

in the introductory paragraph of 

§ 300.504(c), consistent with the content 

listed in § 300.504(c)(1) through (13). 

Comment: A few commenters asked 

that the regulations require a State to 

develop its procedural safeguards notice 

with the State’s PTIs and CPRCs to 

ensure that it is appropriate for parents. 

One commenter recommended 

including contact information for PTIs 

and CPRCs in the notice. 

Discussion: Section 300.165 and 

section 612(a)(19) of the Act require 

each State to ensure that there are 

public hearings, adequate notice of the 

hearings, and an opportunity for 

comment available to the general public, 

including individuals with disabilities 

and parents of children with 

disabilities, prior to adopting any 

policies and procedures to comply with 

Part B of the Act. There is nothing in the 

Act or these regulations that would 

prevent a public agency from consulting 

representatives of PTIs, CPRCs, or other 

advocacy organizations for assistance in 

developing the procedural safeguards 

notice so that it is appropriate for 

parents and the general public. 

It would be unnecessarily prescriptive 

to require States to consult with 

representatives from particular 


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organizations in developing their 

procedural safeguards notice or to 

require that a State’s procedural 

safeguards notice include contact 

information for particular organizations. 

We believe that such decisions are best 

left to States. 

Changes: None. 

Comment: Several commenters 

suggested requiring the procedural 

safeguards notice to explain how a 

resolution meeting works and the 

responsibilities of parents who 

participate in a resolution meeting. 

Some commenters recommended 

requiring public agencies to inform 

parents in writing about the differences 

between mediation and resolution 

meetings including the differences in 

confidentiality rules; whether attorneys’

fees may be reimbursed; the effect of 

resolution and mediation sessions on 

due process hearing timelines; and the 

requirements governing the execution of 

resolution and mediation agreements. 

Discussion: Section 300.504(c)(6), 

consistent with section 615(d)(2)(E)(iii) 

of the Act, requires the procedural 

safeguards notice to include a full 

explanation regarding the availability of 

mediation to resolve complaints. In 

addition, § 300.504(c)(5) requires the 

procedural safeguards notice to provide 

a full explanation of the opportunity for 

parents to present and resolve 

complaints through the due process 

complaint and State complaint 

procedures, including the time period in 

which to file a complaint, the 

opportunity for the agency to resolve the 

complaint, and the differences between 

the due process complaint and the State 

complaint procedures, including the 

jurisdiction of each procedure, what 

issues may be raised, filing and 

decisional timelines, and relevant 

procedures. Because resolution 

meetings are part of the due process 

procedures, consistent with § 300.510 

and section 615(f)(1)(B) of the Act, the 

explanation of due process procedures 

would necessarily include information 

about how the resolution meeting works 

and the responsibilities of the parties in 

the resolution meeting. 

We do not believe it is necessary to 

require the procedural safeguards notice 

to explain the differences between 

mediation and resolution meetings 

because the differences will be apparent 

from the clear explanations of the 

respective procedures that are already 

required in the notice. However, there is 

nothing in the Act or these regulations 

that would prohibit a State from 

describing the differences between 

mediation and resolution meetings in its 

procedural safeguards notice, if it chose 

to do so. 

Changes: None. 

Comment: Several commenters 

requested clarification regarding the 

differences between the State complaint 

and due process complaint procedures 

that are required to be included in the 

procedural safeguards notice. Some 

commenters requested clarification 

regarding the meaning of the phrases 

‘‘jurisdiction of each procedure’’ and 

‘‘what issues may be raised’’ in State 

complaints versus due process 

complaints. 

Discussion: It is important for public 

agencies to include an explanation of 

the State complaint procedures in 

§§ 300.151 through 300.153 and the due 

process complaint procedures in 

§ 300.507 in the procedural safeguards 

notice to assist parents in understanding 

the differences between these 

procedures. The reference to 

‘‘jurisdictional issues’’ addresses the 

scope of the State complaint and due 

process complaint procedures. An 

organization or individual may file a 

State complaint under §§ 300.151 

through 300.153 alleging that a public 

agency has violated a requirement of the 

Act for a violation that occurred not 

more than one year prior to the date on 

which the complaint is received, unless 

one of the exceptions in § 300.153(c) is 

applicable. The Department’s 

longstanding position is that a State 

must resolve any complaint, and may 

not remove from the jurisdiction of its 

State complaint procedures complaints 

regarding the identification, evaluation, 

or educational placement of the child, 

or the provision of FAPE to the child 

simply because those issues also could 

be the subject of a due process 

complaint. We view the State complaint 

procedures as a very important tool in 

a State’s exercise of its general 

supervision responsibilities, consistent 

with sections 612(a)(11) and 616(a) of 

the Act, to monitor LEA implementation 

of the requirements in Part B of the Act. 

These responsibilities extend to both 

systemic and child-specific issues. 

A parent or a public agency may file 

a due process complaint under 

§ 300.507 on any matter relating to the 

identification, evaluation, or 

educational placement of the child, or 

the provision of FAPE to such child for 

an alleged violation that occurred not 

more than two years (or, within the 

timeframe established by the State) 

before the date the parent or public 

agency knew or should have known 

about the alleged action that forms the 

basis of the complaint. 

Changes: None. 

Electronic Mail (§ 300.505) 

Comment: One commenter requested 

that the regulations clarify that a parent 

who elects to receive notices by 

electronic mail must do so in writing. 

Discussion: Section 300.505, which 

incorporates section 615(n) of the Act, 

permits public agencies to make the 

electronic mail option available for 

notices required in section 615 of the 

Act, including the prior written notice, 

procedural safeguards notice, and due 

process complaint notice. It would be an 

unnecessary paperwork burden to 

require a parent who elects to receive 

notices by electronic mail to do so in 

writing, particularly when there are 

other methods available to document 

such a request, for example, by the LEA 

making a notation of the parent’s verbal 

request. We believe public agencies 

should have the flexibility to determine 

whether and how to document that a 

parent elects to receive these notices by 

electronic mail. 

Changes: None. 

Mediation (§ 300.506) 

Comment: Several commenters stated 

that the S. Rpt. No. 108–185 expressed 

Congressional intent for a hearing 

officer to have the same plenary power 

over a due process hearing as a Federal 

or State judge. The commenters, 

therefore, recommended permitting a 

hearing officer to require mediation. 

Discussion: Section 300.506(a) 

incorporates section 615(e)(1) of the Act 

and requires public agencies to establish 

and implement procedures to allow 

parties to resolve disputes involving any 

matter under Part B of the Act, 

including matters arising prior to the 

filing of a due process complaint, to 

resolve disputes through a mediation 

process. Section 615(e)(2)(A)(i) of the 

Act requires the public agency to 

ensure, among other things, that the 

mediation process is voluntary on the 

part of the parties. In light of these 

explicit statutory requirements, we do 

not believe that a hearing officer can 

order that the parties to a due process 

complaint engage in mediation. 

Changes: None. 

Comment: One commenter suggested 

that the regulations include language to 

ensure that the mediation process is not 

used to deny or delay a parent’s right to 

have a State complaint investigated. 

Discussion: We do not believe that 

additional language is necessary to 

address the commenter’s concern. 

Section 300.506(a) requires each public 

agency to ensure that procedures are 

established and implemented to allow 

parties to resolve disputes involving any 

matter under Part B of the Act, 


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including matters arising prior to the 

filing of a due process complaint, to 

resolve disputes through mediation. We 

believe that parties could use mediation 

prior to, or after, filing a State 

complaint. 

Section 300.506(b)(1)(ii), consistent 

with section 615(e)(2)(A)(ii) of the Act, 

is clear that mediation cannot be used 

to deny or delay a parent’s right to a 

hearing on the parent’s due process 

complaint, or to deny other rights 

afforded under Part B of the Act. ‘‘Other 

rights under Part B of the Act’’ include 

a parent’s right to file a State complaint 

and to have that complaint resolved 

within applicable timelines. If the 

parties involved voluntarily wish to 

engage in mediation once the complaint 

is filed, and the mediation is not 

successful in resolving the dispute, the 

entity responsible for resolving the 

complaint at the State level must ensure 

that the complaint is resolved within 

the applicable timelines in § 300.152. 

Mediation is not an exceptional 

circumstance that would justify 

extension of the 60-day timeline for 

issuing the final decision in a State 

complaint, unless the parties agree 

otherwise. However, as provided in 

§ 300.152(b)(1)(ii), the parent and the 

public agency involved can agree to 

extend the time limit to engage in 

mediation to resolve the complaint. 

Changes: None. 

Comment: One commenter 

recommended allowing parties in a 

dispute to engage in mediation and have 

the mediator facilitate the IEP Team 

meeting to incorporate the terms of the 

mediation agreement into the child’s 

IEP. 

Discussion: Although not required by 

the Act, there is nothing in the Act that 

would prohibit the parties in a dispute 

to agree during mediation to have the 

mediator facilitate an IEP Team meeting 

and to incorporate the terms of the 

mediation agreement into the child’s 

IEP. 

Changes: None. 

Comment: Some commenters 

suggested defining ‘‘effective mediation 

techniques’’ as techniques recognized 

by any State or national accreditation or 

professional mediation association. The 

commenters also recommended 

requiring a formal training and 

certification process for mediators, 

which is created and paid for by the 

SEA. 

Discussion: We decline to define 

‘‘effective mediation techniques’’ in the 

manner suggested by the commenters. 

States have used a number of successful 

techniques over the years to resolve 

disputes between parents and public 

agencies, and we do not want to restrict 

a State’s discretion by providing a 

particular definition. Whether formal 

training and certification for mediators 

is required is a decision best left to each 

State, depending on State policy. 

Changes: None. 

Comment: A few commenters 

recommended requiring mediators to be 

unbiased and knowledgeable in laws, 

regulations, and best practices related to 

children with disabilities. Some 

commenters recommended requiring the 

list of mediators to include information 

on the mediator’s qualifications. Other 

commenters recommended that the list 

of mediators and their qualifications be 

provided to parents and the public. 

Discussion: We do not believe 

additional regulations regarding the 

qualifications of mediators are 

necessary. Section 300.506(b)(3), 

consistent with section 615(e)(2)(C) of 

the Act, requires States to maintain a list 

of individuals who are qualified 

mediators and knowledgeable in the 

laws and regulations relating to the 

provision of special education and 

related services. In addition, 

§ 300.506(c)(1)(ii) requires impartial 

mediators who do not have a personal 

or professional interest that would 

conflict with the person’s objectivity. 

Parents do not select the mediator to 

mediate a particular case. Rather, 

§ 300.506(b)(3)(ii) requires that the 

process for selecting mediators be 

impartial. Therefore, we do not believe 

that public agencies should be required 

to provide the list of mediators and their 

qualifications to parents and the public. 

However, there is nothing in the Act 

that would prohibit a State from making 

this information available to parents and 

the public, if it chooses to do so. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify whether the public agency is 

required to offer parents who choose not 

to use the mediation process an 

opportunity to meet with a disinterested 

party. 

Discussion: We believe the regulations 

are clear. Section 300.506(b)(2), 

consistent with section 615(e)(2)(B) of 

the Act, states that a public agency may 

establish procedures to offer parents and 

schools that choose not to use 

mediation, an opportunity to meet with 

a disinterested party who would explain 

the benefits of, and encourage the use 

of, mediation. Therefore, States may 

establish such procedures, but are not 

required to do so. No further 

clarification is necessary. 

Changes: None. 

Comment: One commenter objected to 

the requirement in § 300.506(b)(3)(ii) 

that States select mediators on a 

random, rotational, or other impartial 

basis, and requested retaining current 

§ 300.506(b)(2)(ii), which permits the 

parties to agree on a mediator when the 

mediator is not selected on a random 

basis. 

Discussion: Section 300.506(b)(3)(ii) 

replaces current § 300.506(b)(2)(ii) and 

requires the State to select mediators on 

a random, rotational, or other impartial 

basis. These provisions are sufficient to 

ensure that the selection of the mediator 

is not biased, while providing SEAs 

additional flexibility in selecting 

mediators. Selecting mediators on an 

impartial basis would include 

permitting the parties involved in a 

dispute to agree on a mediator. 

Changes: None. 

Comment: One commenter requested 

a definition of ‘‘timely manner’’ in 

§ 300.506(b)(5), regarding the 

scheduling of mediation sessions. 

Discussion: Section 300.506(b)(5) 

incorporates section 615(e)(2)(E) of the 

Act and requires that the scheduling of 

each session in the mediation process be 

completed in a timely manner. It is not 

necessary to define ‘‘timely manner’’

because this requirement must be read 

consistent with the State’s responsibility 

to ensure that the mediation process 

does not operate to deny or delay a 

parent’s right to a hearing on a due 

process complaint, or to deny other 

rights afforded under Part B of the Act. 

Changes: None. 

Comment: Many commenters stated 

that mediation discussions should 

remain confidential and not be used in 

any subsequent due process hearings or 

proceedings. The commenters 

recommended that the phrase ‘‘arising 

from that dispute’’ in § 300.506(b)(6)(i) 

and § 300.506(b)(8) be removed. The 

commenters viewed these provisions as 

permitting confidentiality to apply only 

to the current issue in dispute, and not 

in other subsequent actions. Some 

commenters expressed concern that 

mediation could be used as ‘‘discovery’’

for some future dispute between parties, 

or for a simultaneous dispute between 

the same public agency and some other 

children, or disputes involving the same 

lawyers but different parties. 

Discussion: We agree with the 

commenters that the phrase ‘‘arising 

from that dispute’’ should be removed 

in § 300.506(b)(6)(i) or § 300.506(b)(8). 

We believe that it is important to 

preserve the integrity of the mediation 

process to ensure that mediation 

discussions remain confidential and not 

be used in subsequent due process 

hearings or civil proceedings. To ensure 

that we do not interfere with the 

evidentiary privilege laws of States that 

might not participate in the Part B 


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program (a possibility, but not a current 

actuality), we are adding new language 

that limits the confidentiality provision 

to apply to due process hearings and 

proceedings in any Federal court and 

any State court of a State participating 

in Part B of the Act. 

Changes: We have removed the 

phrase ‘‘arising from that dispute’’ from 

§ 300.506(b)(6)(i). We also have removed 

the phrase ‘‘proceedings arising from 

that dispute’’ and replaced it with 

‘‘proceeding of any Federal court or 

State court of a State receiving 

assistance under this part’’ from 

§ 300.506(b)(8). 

Comment: None. 

Discussion: Following the publication 

of the NPRM, the Department 

reconsidered the subject of 

confidentiality pledges prior to the 

commencement of mediation. Section 

300.506(b)(9) was included in the 

NPRM in light of note 208 of Conf. Rpt. 

No. 108–779, p. 216, which indicates 

the Conference committee’s intention 

that parties could be required to sign 

confidentiality pledges prior to the 

commencement of mediation, without 

regard to whether the mediation 

ultimately resolves the dispute. 

However, § 300.506(b)(8), already 

requires that discussions that occur 

during the mediation process be 

confidential and not be used as 

evidence in any subsequent due process 

hearing or civil proceeding. Therefore, 

we are removing § 300.506(b)(9). 

Removing § 300.506(b)(9), however, is 

not intended to prevent States from 

allowing parties to sign a confidentiality 

pledge to ensure that discussions during 

the mediation process remain 

confidential, irrespective of whether the 

mediation results in a resolution. 

Changes: Paragraph (b)(9) in § 300.506 

has been removed. 

Comment: A few commenters 

expressed concern regarding the 

requirement in § 300.506(c)(1)(ii) that 

mediators must not have a personal or 

professional interest that conflicts with 

‘‘the person’s objectivity.’’ The 

commenters stated that disputes will 

arise and compromise the integrity of 

the proceedings without a mechanism to 

determine whether a conflict exists. 

Discussion: Section 300.506(c)(1)(ii) 

incorporates section 615(e) of the Act, 

and provides that mediators must not 

have a personal or professional interest 

that would conflict with the person’s 

objectivity. SEAs have an interest in 

ensuring that their mediators are seen as 

impartial persons so that the parties to 

disputes will be willing to use 

mediation to resolve those disputes. We 

do not believe that further regulation is 

needed, as the SEAs’ interest in 

ensuring that mediators are seen as 

impartial should be sufficient to provide 

for mechanisms to resolve conflicts to 

the extent needed in that State. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify that a mediator cannot be 

employed simultaneously as a hearing 

officer. 

Discussion: Case-by-case 

determinations would need to be made 

as to whether there is a conflict of 

interest in the situation that the 

commenter describes. For example, we 

believe that a conflict would arise if a 

mediator was subsequently assigned as 

a hearing officer for the same matter. We 

believe that the requirements in 

§ 300.506(c)(1)(ii), applicable to 

mediators, and the corresponding 

requirements in § 300.511(c)(1)(i)(B), 

applicable to hearing officers, which 

prohibit a mediator and a hearing officer 

from having a personal or professional 

interest that would conflict with the 

person’s objectivity at the mediation or 

the hearing, are sufficient to ensure that 

mediators and hearing officers are fair 

and unbiased. 

Changes: None. 

Filing a Due Process Complaint 

(§ 300.507) 

Comment: Some commenters 

recommended changing the section 

heading in § 300.507 from ‘‘Filing a due 

process complaint’’ to ‘‘Requesting a 

due process hearing’’ to avoid confusion 

with the State complaint process. A few 

commenters requested that the 

regulations clarify that a request for due 

process hearing may be made regarding 

any matter pertaining to the 

identification, evaluation, educational 

placement, or provision of FAPE for a 

child. 

Discussion: We do not believe that 

changing the heading to this section is 

necessary or that further clarification is 

needed regarding the matters about 

which a due process complaint can be 

filed. Section 300.507(a) and section 

615(b)(6)(A) of the Act are clear that a 

parent or public agency may file a due 

process complaint on any matter 

relating to the identification, evaluation, 

or educational placement of the child, 

or the provision of FAPE to the child. 

A party must file a due process 

complaint in accordance with 

§§ 300.507 through 300.508 prior to the 

opportunity for a due process hearing 

under this part. If the LEA does not 

resolve the complaint to the satisfaction 

of the parents during the resolution 

process, the disputed issues that were 

raised in the due process complaint 

would be the subject of a due process 

hearing. 

Changes: None. 

Comment: Several commenters 

objected to the removal of current 

§ 300.507(a)(2), which requires the 

public agency to inform the parent 

about the availability of mediation when 

a hearing is initiated. The commenters 

stated that the notice about the 

availability of mediation should be 

expanded, not eliminated. 

Discussion: Section 615(e)(1) of the 

Act expands the availability of 

mediation by requiring public agencies 

to offer mediation to resolve disputes 

about any matter under this part. 

Current § 300.507(a)(2) was replaced by 

§ 300.506(a), which incorporates section 

615(e)(1) of the Act, and requires 

mediation to be available to resolve 

disputes involving any matter under 

this part, including matters arising prior 

to the filing of a due process complaint. 

Section 300.506(a), therefore, expands 

the availability of mediation beyond 

that required in current § 300.507(a)(2). 

Therefore, there is no need to add the 

provision requested by the commenter. 

Changes: None. 

Comment: A few commenters stated 

that the requirement in § 300.507(a) 

places the burden on the parent to file 

a due process complaint. 

Discussion: Section 300.507(a), 

consistent with section 615(b)(6) of the 

Act, permits either a parent or a public 

agency to file a due process complaint. 

Section 615(b)(7) of the Act is clear that 

a parent or a public agency must file a 

due process complaint notice before a 

due process hearing may commence. 

Changes: None. 

Comment: Many commenters 

supported the time limit for submitting 

a due process complaint. Some 

commenters stated that the regulations 

should clarify that, while States may 

adopt an explicit statute of limitations 

that is shorter than two years, they may 

not adopt a time period that is longer 

than two years. Other commenters 

recommended that the regulations 

clarify that if a State has an explicit time 

limit for requesting a due process 

hearing the State time limit must be 

reasonable. A few commenters 

recommended requiring States to 

conduct public hearings and provide an 

opportunity for public comment before 

the State establishes a reasonable time 

limit for filing a due process complaint. 

Still other commenters stated that the 

regulations should include a statement 

that common-law directives regarding 

statutes of limitations should not 

override the Act or State regulatory time 

limits. 


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Some commenters expressed concern 

that reducing the statute of limitations 

from three years to two years makes it 

impossible to protect the rights of 

children. The commenters stated that 

parents and school districts will be 

discouraged from participating in 

alternative dispute resolution options 

because of the short timeframe for filing 

a due process complaint. 

Discussion: Section 300.507(a)(2) and 

section 615(b)(6)(B) of the Act are clear 

that a due process complaint must 

allege a violation that occurred not more 

than two years before the date the 

parent or public agency knew, or should 

have known, about the alleged action 

that forms the basis of the due process 

complaint, or if the State has an explicit 

time limit for filing a due process 

complaint, in the time allowed by that 

State law. 

There is nothing in the Act that would 

preclude a State from having a time 

limit for filing a complaint that is 

shorter or longer than two years. We 

believe that the Act leaves this decision 

to the States. A State choosing to adopt 

a time limit for requesting a hearing, 

other than the two year time limit in the 

Act, must comply with the public 

participation requirements in § 300.165 

and section 612(a)(19) of the Act, which 

require that prior to the adoption of any 

policies and procedures needed to 

comply with Part B of the Act 

(including any amendments to such 

policies and procedures), the State must 

ensure that there are public hearings, 

adequate notice of the hearings, and an 

opportunity for public comment. 

However, if a State already has an 

explicit time limit in statute or 

regulation, and has met the 

requirements in § 300.165 and section 

612(a)(19) of the Act in establishing that 

requirement, new public hearings and 

public comment periods are not 

required. 

It is not necessary to clarify that 

common-law directives regarding 

statutes of limitations should not 

override the Act or State regulatory 

timelines, as the commenters 

recommended, because the Act and 

these regulations prescribe specific 

limitation periods which supersede 

common law directives in this regard. 

Changes: None. 

Comment: One commenter suggested 

that the regulations allow extensions of 

the statute of limitations when a 

violation is continuing or the parent is 

requesting compensatory services for a 

violation that occurred not more than 

three years prior to the date the due 

process complaint is received. 

Discussion: Section 615(f)(3)(D) of the 

Act provides explicit exceptions to the 

timeline for requesting a due process 

hearing. Section 300.511(f) incorporates 

these provisions. These exceptions do 

not include when a violation is 

continuing or where a parent is 

requesting compensatory services for a 

violation that occurred not more than 

three years from the date that the due 

process complaint was filed. Therefore, 

we do not believe that the regulations 

should be changed. 

Changes: None. 

Comment: One commenter suggested 

removing § 300.507(b), which requires a 

public agency to inform parents of any 

free or low-cost legal and other relevant 

services in the area. The commenter 

stated that schools should voluntarily 

provide this information to parents. One 

commenter requested clarification 

regarding the meaning of ‘‘other relevant 

services’’ about which the public agency 

must inform parents. Another 

commenter requested that public 

agencies post information about free or 

low-cost legal services on their Web 

sites. 

Discussion: The provisions in 

§ 300.507(b) are protected by section 

607(b) of the Act and require the public 

agency to inform parents about the 

availability of free or low-cost legal and 

other relevant services, if the parent 

requests such information or the parent 

or the agency requests a due process 

hearing. Generally, ‘‘other relevant 

services’’ refers to other sources that 

parents could consult for information, 

such as parent centers. 

The Department believes that parents 

should have easy access to information 

about any free or low-cost legal and 

other relevant services in the area. 

Making the information available on the 

State’s Web site may be a good way of 

providing parents easily accessible 

information, but it may not be effective 

in all cases. Each State is in the best 

position to determine whether including 

this information on its Web site would 

be helpful for parents. Therefore, we 

decline to add this as a requirement in 

these regulations, as recommended by 

the commenter. 

Changes: None. 

Comment: None. 

Discussion: Upon internal review, we 

determined that it would be clearer for 

§ 300.507(b)(2) to state that the parents 

or the agency files a due process 

complaint, rather than request a hearing 

under § 300.507. 

Changes: We have amended the 

language of § 300.507(b)(2) to refer to 

filing a due process complaint rather 

than requesting a hearing. 

Due Process Complaint (§ 300.508) 

Comment: A few commenters 

expressed concern regarding the use of 

similar terminology for due process 

complaints and State complaints. Some 

commenters stated that the State 

complaint procedures may mistakenly 

be considered a pre-requisite to 

commencing a due process hearing. A 

few commenters requested changing the 

heading in § 300.508 from ‘‘Due process 

complaint’’ to ‘‘Requesting a due 

process hearing’’ to avoid unnecessary 

confusion. 

Discussion: Section 615(b)(7)(B) of the 

Act states that a party may not have a 

hearing on a due process complaint or 

engage in a resolution meeting until the 

party, or the attorney representing the 

party, files a due process complaint that 

meets the requirements in § 300.508(b). 

There is no requirement that a party file 

a State complaint prior to filing a due 

process hearing, and we believe that the 

regulation is sufficiently clear about this 

point. Renaming this section 

‘‘Requesting a due process hearing’’

could incorrectly suggest that there is no 

requirement to file a due process 

complaint prior to a due process 

hearing. Therefore, we decline to change 

the name of the heading, as requested by 

the commenters. 

Changes: None. 

Comment: A few commenters 

requested clarification regarding when a 

determination about the sufficiency of a 

due process complaint must be made 

and who makes the determination. One 

commenter stated that any party who 

alleges that a notice is insufficient 

should be required to state in writing 

the basis for that belief, including the 

information that is missing or 

inadequate. 

Many commenters recommended 

removing the phrase ‘‘or engage in a 

resolution meeting’’ in § 300.508(c). The 

commenters expressed concern that 

requiring parties to engage in a 

resolution meeting before a due process 

hearing will delay the due process 

hearing, particularly when the parties 

must wait for a hearing officer to 

determine the sufficiency of a due 

process complaint before holding a 

resolution meeting. One commenter 

requested that the regulations state that 

the public agency may not deny or delay 

a parent’s right to a due process hearing. 

A few commenters recommended that 

the regulations clarify that a resolution 

meeting cannot be held until the 

complaint is deemed sufficient. 

Some commenters questioned the 

appropriateness of requiring a 

substantive response to a due process 

complaint during a resolution meeting 


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before the complaint is determined to be 

sufficient. Other commenters asked 

whether the 10-day timeline for the 

party receiving the complaint to 

respond to the due process complaint 

resets when a party deems a due process 

complaint to be insufficient or when a 

hearing officer rules that the complaint 

is insufficient. 

One commenter asked whether two 

resolution meetings are required when 

the sufficiency of the complaint is 

challenged, and whether the 30-day 

resolution period is reset by an 

insufficient complaint. The same 

commenter asked whether the 

resolution meeting should be scheduled 

within 50 days of receiving the parent’s 

original due process complaint, if 

insufficiency has been determined or is 

pending. 

Discussion: Section 300.510(a), 

consistent with section 615(f)(1)(B) of 

the Act, requires the LEA, within 15 

days of receiving notice of the parent’s 

due process complaint, and prior to the 

initiation of a hearing, to convene a 

meeting with the parent and the 

relevant members of the IEP Team to 

discuss the parent’s due process 

complaint so that the LEA has an 

opportunity to resolve the dispute. 

Section 300.508(d)(1), consistent with 

section 615(c)(2)(A) and (D) of the Act, 

provides that the due process complaint 

must be deemed sufficient unless the 

party receiving the due process 

complaint notifies the hearing officer 

and the other party in writing, within 15 

days of receipt of the due process 

complaint, that the due process 

complaint does not meet the 

requirements in § 300.508(b). If the 

party receiving the due process 

complaint notice believes the complaint 

is insufficient, the hearing officer 

determines the sufficiency of the 

complaint. There is no requirement that 

the party who alleges that a notice is 

insufficient state in writing the basis for 

the belief. 

Section 300.508(d)(2), consistent with 

section 615(c)(2)(D) of the Act, states 

that the hearing officer must make a 

determination within five days of 

receiving notice that the party believes 

the complaint is insufficient and 

immediately notify the parties in 

writing of that determination. 

If the hearing officer determines that 

the notice is not sufficient, the hearing 

officer’s decision will identify how the 

notice is insufficient, so that the filing 

party can amend the notice, if 

appropriate. We are not further 

regulating on how the sufficiency claim 

is raised, however, as we believe that 

this matter is more appropriately 

addressed by each State, in light of their 

other hearing procedures. 

Section 615(b)(7)(B) of the Act, 

provides that a party may not have a 

hearing on a due process complaint 

until the party or the party’s attorney 

files a due process complaint that meets 

the content standards in section 

615(b)(7)(A) of the Act, which are 

reflected in § 300.508(b). If the 

complaint is determined to be 

insufficient and is not amended, the 

complaint could be dismissed. 

We agree with S. Rpt. No. 108–185, p. 

38, which states that the resolution 

meeting should not be postponed when 

the LEA believes that a parent’s 

complaint is insufficient. While the 

period to file a sufficiency claim is the 

same as the period for holding the 

resolution meeting, parties receiving 

due process complaint notices should 

raise their sufficiency claims as early as 

possible, so that the resolution period 

will provide a meaningful opportunity 

for the parties to resolve the dispute. 

In order to resolve ambiguity on the 

relationship of a sufficiency claim to the 

resolution meeting, we are revising 

§ 300.508(c) to remove the reference, 

which is not statutory, to the resolution 

meeting. There is no need to hold more 

than one resolution meeting, impose 

additional procedural rules, or 

otherwise adjust the resolution timeline. 

We do not believe it is necessary to 

add language to the regulations stating 

that a public agency may not deny or 

delay a parent’s right to a due process 

hearing. We believe that the timelines 

and requirements for filing a due 

process complaint, and the timelines for 

hearing officer decisions regarding the 

sufficiency of a complaint will 

safeguard against due process hearings 

being unfairly or unnecessarily delayed. 

Changes: We have removed the words 

‘‘or engage in a resolution meeting’’ in 

§ 300.508(c) for clarity. 

Comment: One commenter stated that 

the timeline for filing a due process 

hearing should begin when the due 

process complaint is deemed sufficient. 

However, some commenters stated that 

the timeline should begin when a party 

files a due process complaint notice. 

Several commenters stated that a 

hearing officer should be allowed to 

determine whether an amended 

complaint relates to the original 

complaint for purposes of determining 

the time limit for filing a due process 

complaint. 

Discussion: We do not believe that a 

separate filing of a due process 

complaint notice and due process 

complaint, with separate timelines, is 

required by the Act, as those 

distinctions would be unnecessarily 

burdensome and cumbersome. Section 

615(b)(7)(A)(i) of the Act describes the 

due process complaint notice as being 

filed ‘‘in the complaint,’’ and we have 

organized our regulation consistent with 

this provision. 

Section 300.507(a)(2), consistent with 

section 615(b)(6)(B) of the Act, states 

that a due process complaint must 

allege a violation that occurred not more 

than two years (or the time allowed by 

State law), before the date the parent or 

public agency knew, or should have 

known, about the alleged action that 

forms the basis of the due process 

complaint. Section 615(f)(3)(D) of the 

Act provides exceptions to the timeline 

if a parent was prevented from filing a 

due process complaint, which are 

reflected in § 300.511(f). It is up to 

hearing officers to determine whether a 

specific complaint is within the 

allowable timeline, including whether 

an amended complaint relates to a 

previous complaint. 

Changes: None. 

Comment: Many commenters stated 

that the process for amending a due 

process complaint is complex and 

unnecessarily complicated, and will 

force parents to seek the services of an 

attorney and make the relationship 

between parties more adversarial. One 

commenter recommended allowing a 

hearing request to be amended up to 

five days before the parties meet to set 

a hearing schedule, rather than five days 

before the hearing. 

Discussion: We do not agree that the 

process for amending a due process 

complaint is complex and unnecessarily 

complicated. Section 300.508(d)(3) and 

section 615(c)(2)(E) of the Act allow the 

party filing the due process complaint 

an opportunity to amend the complaint 

to ensure that the complaint accurately 

sets out their differences with the other 

party. The complaint can be amended 

only if the parties mutually agree in 

writing to the amendment and are given 

the opportunity for a resolution 

meeting, or the hearing officer grants 

permission to amend the complaint at 

any time not later than five days before 

the due process hearing begins. This 

process ensures that the parties 

involved understand and agree on the 

nature of the complaint before the 

hearing begins. We, therefore, decline to 

change these regulations, and see no 

reason to change the timeline for 

amending a complaint in the manner 

suggested by the commenter. 

Section 300.508(d)(4) and section 

615(c)(2)(E)(ii) of the Act provide that 

when a due process complaint is 

amended, the timelines for the 

resolution meeting and the time period 

for resolving the complaint begin again 


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with the filing of the amended due 

process complaint. 

Changes: None. 

Comment: Some commenters stated 

that parents who are filing a due process 

complaint without the assistance of an 

attorney should have more flexibility 

when the sufficiency of the complaint is 

determined. The commenters stated that 

parents should be able to receive 

assistance from their State’s due process 

office to complete the due process 

complaint so that it meets the standard 

for sufficiency. 

Discussion: To assist parents in filing 

a due process complaint, § 300.509 and 

section 615(b)(8) of the Act require each 

State to develop a model due process 

complaint form. While there is no 

requirement that States assist parents in 

completing the due process complaint 

form, resolution of a complaint is more 

likely when both parties to the 

complaint have a clear understanding of 

the nature of the complaint. Therefore, 

the Department encourages States, to the 

extent possible, to assist a parent in 

completing the due process complaint 

so that it meets the standards for 

sufficiency. However, consistent with 

section 615(c)(2)(D) of the Act, the final 

decision regarding the sufficiency of a 

due process complaint is left to the 

discretion of the hearing officer. 

Changes: None. 

Comment: One commenter stated that 

parents who file a due process 

complaint without the assistance of an 

attorney should be allowed to amend 

their complaint without having to start 

the process all over again, as long as 

their statement provides the information 

LEAs need to proceed toward 

resolution. A few commenters stated 

that a formal amendment should not be 

required for minor insufficiencies, such 

as leaving out the child’s address or 

name of the child’s school, especially if 

the LEA already has this information. 

Many commenters recommended that 

a hearing officer be allowed to permit a 

party to amend the due process 

complaint, unless doing so would 

prejudice the opposing party. The 

commenters stated that, at a minimum, 

the regulations should state that hearing 

officers must follow the standard that 

permits them to freely grant 

amendments, regardless of timelines, 

when justice so requires. 

Discussion: Section 300.508(d)(3), 

consistent with section 615(c)(2)(E) of 

the Act, provides that a party may only 

amend its complaint in two 

circumstances: (1) if the other party 

consents in writing to the amendment 

and is given the opportunity to resolve 

the complaint in a resolution meeting 

convened under § 300.510, or (2) if the 

hearing officer grants permission for the 

amendment, but only at a time not later 

than five days before the hearing begins. 

Therefore, we do not believe further 

clarification is necessary. With regard to 

parents who file a due process 

complaint without the assistance of an 

attorney or for minor deficiencies or 

omissions in complaints, we would 

expect that hearing officers would 

exercise appropriate discretion in 

considering requests for amendments. 

Changes: None. 

Comment: One commenter suggested 

adding language to the regulations 

stating that an LEA may request and, as 

a matter of right, be granted one 10-day 

extension to respond to a parent’s due 

process complaint. 

Discussion: Section 615(c)(2)(B)(ii) of 

the Act provides that the receiving party 

must provide the party that filed the 

complaint a response to the complaint 

within 10 days of receiving the 

complaint. The Act makes no provision 

for extending this time period, and we 

do not believe it would be appropriate 

to amend the regulations in this manner. 

Allowing an LEA additional time to 

respond to a parent’s due process 

complaint could be used to unduly 

delay the due process hearing, to the 

detriment of the interests of the child. 

Changes: None. 

Comment: A few commenters 

expressed concern that the regulations 

appear to require parents to be 

represented by an attorney in due 

process proceedings and requested that 

the regulations permit a party in a due 

process hearing to be represented by a 

non-attorney advocate. The commenters 

stated that this would allow more 

uniform access to assistance across all 

socio-economic groups and decrease the 

formality of hearings. 

Discussion: We are considering the 

issue of non-attorney representation of 

parties in a due process hearing under 

the Act, in light of State rules 

concerning the unauthorized practice of 

law. We anticipate publishing a notice 

of proposed rulemaking in the near 

future seeking public comment on this 

issue. 

Changes: None. 

Comment: One commenter requested 

clarification regarding whether there is 

legal significance or consequence to a 

responding party who fails to file the 

required response to a due process 

complaint or to an LEA that fails to send 

both the prior written notice and the 

due process complaint notice. 

Discussion: The Act does not establish 

consequences for parents who are the 

receiving parties to complaints if they 

fail to respond to a due process 

complaint notice. However, either 

party’s failure to respond to, or to file, 

the requisite notices could increase the 

likelihood that the resolution meeting 

will not be successful in resolving the 

dispute and that a more costly and timeconsuming due process hearing will 

occur. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

specifically state that a party has a right 

to seek immediate intervention from a 

hearing officer to resolve pre-hearing 

issues and disputes. 

Discussion: Section 300.508, 

consistent with section 615(b) and (c) of 

the Act, sets out the requirements and 

timelines for filing a due process 

complaint. We do not believe the further 

clarification requested by the 

commenter is necessary because the due 

process complaint procedures are 

intended to resolve pre-hearing issues 

and disputes and allow parties to seek 

immediate resolution by a hearing 

officer, when necessary, regarding the 

sufficiency of a due process complaint 

and amendments to a complaint. 

Changes: None. 

Comment: One commenter requested 

that the regulations require a hearing 

officer to dismiss a complaint when the 

hearing officer determines that all issues 

and allegations are insufficient to go 

forward. 

Discussion: We do not believe that 

Federal regulations on this matter are 

required, as we believe that States and 

individual hearing officers are in a 

better position to decide on the utility 

of, or need for, dismissals. 

Changes: None. 

Model Forms (§ 300.509) 

Comment: None. 

Discussion: In reviewing this section, 

we realized that the language in 

paragraph (a) might incorrectly be read 

to suggest that parties other than parents 

and public agencies could file due 

process complaints. 

Changes: We have amended the 

language of § 300.509(a) to clarify that 

only parents and public agencies can 

file due process complaints, while 

parents, public agencies, and other 

parties can file State complaints. 

Comment: One commenter suggested 

including a statement in § 300.509 

clarifying that parents can use a model 

form, create their own form, or use a 

form created by their attorney, as long 

as it meets the requirements of the Act. 

Discussion: We agree that the use of 

the model forms should not be required 

by an SEA or LEA, and that parents (or 

other parties filing a State complaint) 

may use some other form of notice, so 

long as their notice meets the content 


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requirements of the Act. We are 

clarifying this in § 300.509. 

Changes: We have restructured 

§ 300.509 and clarified that SEAs or 

LEAs cannot require the use of the 

model forms. We have added a new 

paragraph (b) to § 300.509 to provide 

that parents and other parties may use 

another form, so long as the form that 

is used meets the content requirements 

in § 300.508(b) for filing a due process 

complaint, or the requirements in 

§ 300.153(b) for filing a State complaint. 

Comment: A few commenters 

requested language requiring the State 

to work with the State PTI and CPRC to 

develop the model forms so that they 

are written in a manner that parents can 

understand. 

Discussion: It would be overregulating to require a State to work 

with a particular group or groups to 

develop their model forms. We believe 

that such decisions are best made by 

each State and, therefore, decline to 

require a State to work with the State 

PTI and CPRC to develop the model 

forms. However, States must comply 

with the public participation 

requirements in § 300.165 and section 

612(a)(19) of the Act prior to adopting 

a model form. To meet the public 

participation requirements, the State 

must ensure that there are public 

hearings and an opportunity for 

comment available to the general public, 

including individuals with disabilities 

and parents of children with 

disabilities. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

clarify that a hearing officer may not 

determine that a due process complaint 

is insufficient in any State that has not 

developed the model forms required in 

§ 300.509. 

Discussion: It would be inappropriate 

to prohibit a hearing officer from finding 

that a complaint is insufficient if the 

receiving party properly challenges the 

sufficiency of the complaint in 

accordance with § 300.508(d)(1) because 

the State has failed to develop the 

model forms in accordance with 

§ 300.509 and section 615(b)(8) of the 

Act. Development of the model forms is 

a State responsibility and parties to a 

due process hearing should not be 

penalized because a State fails to meet 

the requirements in section 615(b)(8) of 

the Act. The Department is authorized 

to impose sanctions on a State, in 

accordance with section 616(d), (e), and 

(g) of the Act, if it fails to develop the 

model forms required in § 300.509. 

Changes: None. 

Comment: One commenter 

recommended that model forms should 

be developed to assist education 

agencies in filing a due process 

complaint. 

Discussion: We disagree with the 

commenter. We believe that the due 

process complaint requirements in 

§ 300.508 provide sufficient information 

for education agencies that wish to file 

a due process complaint. 

Changes: None. 

Resolution Process (§ 300.510) 

Resolution Meeting (§ 300.510(a)) 

Comment: One commenter expressed 

concern that the resolution process 

under the due process complaint 

procedures could limit the State 

complaint procedures as a means of 

resolving disputes. 

Discussion: The due process 

complaint procedures and the State 

complaint procedures are separate and 

distinct. The State complaint 

procedures remain a viable alternative 

to the due process procedures for 

parents to resolve disputes with public 

agencies in a less formal and more costeffective manner. 

Changes: None. 

Comment: Several commenters 

recommended that the regulations 

require an LEA to notify the parent, 

within five days of receiving a due 

process complaint, whether the LEA 

intends to convene a resolution meeting 

or waive the session. The commenters 

recommended that the notice include a 

signature line for a parent to indicate an 

agreement to waive the resolution 

meeting. 

Discussion: Section 615(f)(1)(B) of the 

Act requires an LEA to convene a 

resolution meeting with the parent and 

the relevant member(s) of the IEP Team 

within 15 days of receiving notice of the 

parent’s due process complaint. The 

purpose of the meeting is for the parent 

to discuss the due process complaint 

and the facts that form the basis of the 

due process complaint so that the LEA 

has an opportunity to resolve the 

dispute. We do not believe it is 

necessary to require an LEA to notify 

the parent within five days of receiving 

a due process complaint about the 

LEA’s intention to convene or waive the 

resolution process. An LEA that wishes 

to engage in a resolution meeting will 

need to contact the parent to arrange the 

meeting soon after the due process 

complaint is received in order to ensure 

that the resolution meeting is held 

within 15 days. 

Section 300.510(a)(3) provides that 

the resolution meeting does not need to 

be held if the parent and the LEA agree 

in writing to waive the meeting, or if the 

parent and LEA agree to use the 

mediation process to resolve the 

complaint. The manner in which the 

LEA and parent come to an agreement 

to waive the resolution meeting is left to 

the discretion of States and LEAs. We 

do not believe that there is a need to 

regulate further in this area. 

Changes: None. 

Comment: Some commenters asked 

whether the requirements for resolution 

meetings apply when an LEA initiates a 

due process hearing. A few commenters 

recommended that the requirements for 

resolution meetings should not apply 

when an LEA initiates a due process 

hearing. 

Discussion: Section 615(f)(1)(B)(i) of 

the Act requires an LEA to convene a 

resolution meeting when a parent files 

a due process complaint. Consistent 

with section 615(f)(1)(B)(i)(IV) of the 

Act, the resolution meeting provides an 

opportunity for the parents of the child 

to discuss their complaint, and the facts 

that form the basis of the complaint, so 

that the LEA has an opportunity to 

resolve the complaint. There is no 

provision requiring a resolution meeting 

when an LEA is the complaining party. 

The Department’s experience has shown 

that LEAs rarely initiate due process 

proceedings. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

clarify that, in addition to their attorney, 

parents may bring other participants to 

the resolution meeting, such as an 

advocate or family friend. Other 

commenters recommended that neither 

party should be permitted to bring an 

attorney to the resolution meeting. Some 

commenters recommended requiring 

parents to notify the LEA at least one 

day before the resolution meeting 

whether their attorney will be 

participating in the resolution meeting. 

Other commenters, however, stated that 

parents should not be required to notify 

the LEA in advance of the meeting 

whether the parent plans to bring 

anyone to the meeting. 

Discussion: Section 615(f)(1)(B)(i) of 

the Act states that an LEA must convene 

a resolution meeting with the parents 

and the relevant members of the IEP 

Team who have specific knowledge of 

the facts identified in the due process 

complaint that includes a representative 

of the public agency who has decisionmaking authority on behalf of that 

agency, and may not include the LEA’s 

attorney unless the parent is 

accompanied by an attorney. 

Section 300.510(a)(4) states that the 

parent and the LEA determine the 

relevant members of the IEP Team to 

attend the resolution meeting. We do 

not believe it is necessary to clarify that 


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a parent may bring other participants, 

such as an advocate or family friend, to 

the resolution meeting because section 

614(d)(1)(B)(vi) of the Act and 

§ 300.321(a)(6) are clear that the IEP 

Team may include, at the discretion of 

the parent or the agency, other 

individuals who have knowledge or 

special expertise regarding the child. 

Therefore, such individuals could 

attend the resolution meeting if the LEA 

or parent determined that such 

individuals are relevant members of the 

IEP Team. 

We do not believe it is necessary to 

regulate on whether a parent must 

provide advance notice to the LEA that 

the parent intends to bring an attorney 

to the resolution meeting because we 

expect that it would not be in the 

interest of the parent to withhold such 

information prior to a resolution 

meeting so as to appear at the resolution 

meeting with an attorney without 

advance notice to the public agency. In 

such cases, the public agency could 

refuse to hold the resolution meeting 

until it could arrange the attendance of 

its attorney (within the 15-day period). 

The parent would incur additional 

expenses from having to bring their 

attorney to two resolution meetings. 

Changes: None. 

Comment: Some commenters 

requested clarification regarding 

whether the parent and the LEA must 

agree to the parties who will attend the 

resolution meeting, or whether the 

parent and the LEA can decide 

independently who will attend the 

meeting. The commenters 

recommended that any disputes 

regarding who should attend the 

resolution meeting should be resolved 

in a timely manner and the meeting 

should proceed with all the disputed 

participants when there is no agreement 

within the 15-day period. Some 

commenters stated that allowing parents 

to determine which members of the IEP 

Team should attend the resolution 

meeting exceeds statutory authority. 

Discussion: Section 615(f)(1)(B)(i) of 

the Act requires the LEA to convene a 

resolution meeting with the parent and 

the relevant member(s) of the IEP Team 

who have specific knowledge of the 

facts identified in the complaint. 

Section 300.510(a)(4) requires the parent 

and the LEA to determine the relevant 

members of the IEP Team who will 

attend the meeting. We urge LEAs and 

parents to act cooperatively in 

determining who will attend the 

resolution meeting, as a resolution 

meeting is unlikely to result in any 

resolution of the dispute if the parties 

cannot even agree on who should 

attend. The parties should keep in mind 

that the resolution process offers a 

valuable chance to resolve disputes 

before expending what can be 

considerable time and money in due 

process hearings. We decline to regulate 

further on how to resolve disputes about 

who should attend these meetings in the 

absence of information about specific 

problems in the process. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

provide information on how a 

resolution meeting should proceed. 

Several commenters expressed concern 

that the regulations offer no guidance on 

the protocol or structure of resolution 

meetings, and do not specify whether an 

impartial mediator or facilitator should 

conduct the meeting. 

Discussion: Section 615(f)(1)(B)(i)(IV) 

of the Act states that the purpose of a 

resolution meeting is for parents to 

discuss their due process complaint and 

the facts that form the basis of the due 

process complaint so that the LEA has 

an opportunity to resolve the dispute. 

We do not believe that it is necessary or 

appropriate to regulate on the specific 

structure or protocol for resolution 

meetings as doing so could interfere 

with the LEA and the parent in their 

efforts to resolve the complaint in the 

resolution meeting. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

address the need for families to receive 

training in dispute resolution. 

Discussion: There is nothing in the 

Act that would prevent a public agency 

from offering training in dispute 

resolution or referring parents to 

organizations that provide training in 

dispute resolution. Such matters are 

best left to local and State officials to 

determine, based on the training needs 

of parents and families. Therefore, we 

decline to regulate on this matter. 

Changes: None. 

Comment: One commenter 

recommended allowing parents to 

participate in resolution meetings 

through alternative means (e.g., 

teleconferences) and alternative 

procedures (e.g., participation by a 

child’s court-appointed advocate) when 

parents are unavailable (e.g., military 

service, hospitalization). 

Discussion: We understand that 

circumstances beyond a parent’s control 

(e.g., military service, hospitalization) 

may prevent a parent from attending a 

resolution meeting in person. If the LEA 

notifies the parent of its intent to 

schedule a resolution meeting within 15 

days of receiving notice of the parent’s 

due process complaint, and the parent 

informs the LEA in advance of the 

meeting that circumstances prevent the 

parent from attending the meeting in 

person, it would be appropriate for an 

LEA to offer to use alternative means to 

ensure parent participation, such as 

those described in § 300.328, including 

videoconferences or conference 

telephone calls, subject to the parent’s 

agreement. 

There is no authority in the Act for an 

LEA to permit a court-appointed 

advocate to attend the resolution 

meeting in place of a parent, unless the 

public agency has appointed that 

individual as a surrogate parent in 

accordance with § 300.519, or the 

agency determines that the person is a 

person acting in the place of the 

biological or adoptive parent of the 

child in accordance with § 300.30(a)(4). 

Changes: None. 

Resolution Period (§ 300.510(b)) 

Comment: One commenter noted that 

§ 300.510(b)(1) states that if an LEA has 

not resolved a due process complaint 

within 30 days of the receipt of the 

complaint, the due process hearing 

‘‘must’’ occur, which is inconsistent 

with section 615(f)(1)(B)(ii) of the Act, 

which states that the due process 

hearing ‘‘may’’ occur. However, another 

commenter recommended retaining the 

language in § 300.510(b), in lieu of the 

permissive statutory language. 

Discussion: We believe that 

§ 300.510(b)(1) should be changed to be 

consistent with section 615(f)(1)(B)(ii) of 

the Act. A requirement that a due 

process hearing must occur when the 

resolution period is not successful in 

resolving the underlying dispute could 

prove unduly restrictive for the parties, 

particularly in situations where the 

parties agree to an extension of the 

resolution period or reach a settlement 

after the resolution period has expired. 

Therefore, we are changing 

§ 300.510(b)(1) to state that a due 

process hearing ‘‘may’’ occur if the 

parties have not resolved the dispute 

that formed the basis for the due process 

complaint by the end of the resolution 

period. 

Changes: Section 300.510(b)(1) has 

been changed by removing the word 

‘‘must’’ and replacing it with ‘‘may’’

prior to the word ‘‘occur’’ to reflect the 

language in section 615(f)(1)(B)(ii) of the 

Act. 

Comment: Some commenters 

recommended requiring LEAs to waive 

the resolution period when a parent can 

show that, prior to the filing of the 

complaint, the LEA had specific 

knowledge of the facts later identified in 

the complaint and had a reasonable time 

to resolve the issue, or did not notify the 

parent within five days of the resolution 


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meeting or inform the parent of their 

options. 

Discussion: Section 615(f)(1)(B)(i) of 

the Act provides two occasions when a 

resolution meeting need not occur: (1) 

when the parent and LEA agree in 

writing to waive the meeting; and (2) 

when the parent and LEA agree to use 

the mediation process in § 300.506. 

There are no provisions that allow a 

parent or an LEA to unilaterally waive 

the resolution meeting. In the 

circumstances mentioned by the 

commenter, the resolution meeting still 

is a required vehicle for the parent and 

the LEA to attempt to resolve their 

differences prior to initiating a due 

process hearing. 

Changes: None. 

Comment: We received numerous 

comments expressing concern about the 

resolution process and requesting 

changes to the regulations to ensure that 

the resolution process is used effectively 

to resolve disputes and not to delay or 

deny the right to a due process hearing. 

Some commenters requested that 

§ 300.510(b)(3) be removed because it 

allows a public agency to delay the due 

process hearing by scheduling 

resolution meetings at times or places 

that are inconvenient for the parent. 

Many commenters recommended that if 

an LEA fails to convene a resolution 

meeting within the required 15 days, 

bring the required personnel to a 

resolution meeting, or participate in a 

resolution meeting in good faith, the 45- 

day timeline for a hearing decision 

should begin on the date that the due 

process complaint notice was filed. 

Several commenters requested 

clarification on what is considered 

‘‘participation’’ or ‘‘good faith’’

participation in a resolution meeting 

and who decides if participation has 

occurred. A number of commenters 

recommended that the regulations 

permit a hearing officer to determine 

whether a parent or LEA has 

participated in the resolution meeting 

and whether the due process hearing 

can proceed. Another commenter 

requested clarification on when the 45- 

day timeline for a due process hearing 

begins when a hearing officer 

determines that a parent has 

participated. 

Several commenters asked how long a 

due process complaint remains open if 

the parent does not participate during 

the 30-day resolution period. A number 

of commenters requested clarification as 

to whether and how an LEA can dismiss 

a due process complaint when a parent 

refuses to participate in a resolution 

meeting. One commenter recommended 

that the regulations clarify the 

consequences of indefinitely delaying a 

due process hearing. 

Discussion: We do not agree that 

§ 300.510(b)(3) should be removed. This 

provision is based on H. Rpt. No. 108–

77, p. 114, that provides: 

[If] the parent and the LEA mutually agree 

that the meeting does not need to occur, the 

resolution meeting does not need to take 

place. However, unless such an agreement is 

reached, the failure of the party bringing the 

complaints to participate in the meeting will 

delay the timeline for convening a due 

process hearing until the meeting is held. 

We fully expect that only in very rare 

situations will an LEA fail to meet its 

obligation to convene a resolution 

meeting within 15 days of receiving 

notice of the parent’s due process 

complaint, delay the due process 

hearing by scheduling meetings at times 

or places that are inconvenient for the 

parent, or otherwise not participate in 

good faith in the resolution process. 

However, in instances of 

noncompliance, we believe parents 

should be able to request a hearing 

officer to allow the due process hearing 

to proceed. 

In situations where an LEA convenes 

a meeting with the parent and the 

relevant member or members of the IEP 

Team who have specific knowledge of 

the facts identified in the due process 

complaint, and the parent fails to 

participate in the resolution meeting, 

the LEA would need to continue to 

make diligent efforts throughout the 

remainder of the 30-day resolution 

period to convince the parent to 

participate in the resolution meeting. If, 

however, at the end of the 30-day 

resolution period, the LEA is still 

unable to convince the parent to 

participate in the resolution meeting, we 

believe that an LEA should be able to 

seek intervention by a hearing officer to 

dismiss the complaint. 

Therefore, we are adding language to 

the regulations to allow the parents to 

seek a hearing officer’s intervention in 

cases where an LEA fails to convene a 

resolution meeting within 15 days of 

receiving notice of a parent’s due 

process complaint or fails to participate 

in the resolution meeting. We also are 

adding language to allow an LEA, at the 

conclusion of the 30-day resolution 

period, to request a hearing officer to 

dismiss a complaint when the LEA is 

unable to obtain the participation of a 

parent in a resolution meeting despite 

making reasonable efforts to do so 

during the 30-day resolution period. 

Changes: We have added a new 

paragraph (b)(4) in § 300.510 to allow an 

LEA, at the conclusion of the 30-day 

resolution period to seek the 

intervention of a hearing officer to 

dismiss the parent’s complaint, if the 

LEA is unable to obtain the 

participation of the parent in the 

resolution meeting, after reasonable 

efforts have been made. 

We have also added a new paragraph 

(b)(5) to allow a parent to seek the 

intervention of a hearing officer to begin 

the due process hearing, if the LEA fails 

to hold the resolution meeting within 15 

days of receiving notice of a parent’s 

due process complaint or fails to 

participate in the resolution meeting. 

Comment: Some commenters stated 

that the 45-day timeline for a due 

process hearing should begin when both 

parties agree that the complaint will not 

be resolved in a resolution meeting or 

mediation session. Other commenters 

suggested that when a resolution 

meeting or mediation session is held 

and it is clear before the end of the 30- 

day resolution period that the LEA and 

the parent cannot resolve the dispute, 

the 45-day timeline should be allowed 

to begin prior to the end of the 30-day 

resolution period. A few commenters 

requested further clarification regarding 

how the timeline is counted once the 

parent participates in a resolution 

meeting. A few commenters 

recommended that the 45-day timeline 

for the hearing commence once both 

parties agree that the issue will not be 

resolved without a due process hearing. 

One commenter recommended that the 

regulations require the waiver to be in 

writing so that hearing officers have a 

specific point in time to know when 

they should be counting the 45 days. 

Discussion: We agree that the due 

process hearing should be allowed to 

proceed if the LEA and parent agree in 

writing to waive the resolution meeting. 

We also believe that the due process 

hearing should be allowed to proceed 

when an LEA and the parent agree to 

waive the remainder of the 30-day 

resolution period when it becomes 

apparent that the LEA and the parent 

will be unable to reach agreement 

through resolution or mediation. There 

may also be situations in which both 

parties agree to continue the mediation 

session beyond the 30-day resolution 

period. Therefore, we are adding 

language to the regulations to clarify 

these exceptions to the 30-day 

resolution period. 

The new language specifies that the 

45-day timeline for the due process 

hearing starts the day after one of the 

following events: (a) both parties agree 

in writing to waive the resolution 

meeting; (b) after either the mediation or 

resolution meeting starts, but before the 

end of the 30-day resolution period, 

both parties agree in writing that no 

agreement is possible; and (c) if both 


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parties agree in writing to continue the 

mediation at the end of the 30-day 

resolution period, but later the parent or 

public agency withdraws from the 

mediation process. 

Changes: We have added a new 

paragraph (c) in § 300.510 that specifies 

adjustments to the 30-day resolution 

period. Subsequent paragraphs have 

been renumbered accordingly. 

Comment: Some commenters 

recommended that the regulations 

require public agencies to document 

their attempts to ensure parent 

participation in resolution meetings, 

and to do so in the same manner that 

they are required to document their 

attempts to involve parents in IEP Team 

meetings. 

Discussion: We agree with the 

commenters and will add language to 

§ 300.510(b)(4) to make this clear. 

Changes: We have added language in 

§ 300.510(b)(4) to require an LEA to use 

the same procedures it uses in 

§ 300.322(d) to document its efforts to 

obtain the participation of a parent in a 

resolution meeting. We also have 

amended § 300.510(b)(4) to refer to ‘‘due 

process complaints,’’ for clarity. 

Written Settlement Agreement (New 

§ 300.510(d)) (Proposed § 300.510(c)) 

Comment: One commenter asked 

whether decisions agreed to in 

resolution meetings supersede previous 

IEP decisions and whether the IEP Team 

must reconvene to sanction the 

decisions made in a resolution meeting. 

One commenter recommended that if 

the resolution agreement includes IEPrelated matters, the agreement must 

state that the LEA will convene an IEP 

Team meeting within a specific number 

of days to revise the IEP accordingly or 

develop an IEP addendum, as 

appropriate. 

Discussion: Unless the agreement 

specifically requires that the IEP Team 

reconvene, there is nothing in the Act or 

these regulations that requires the IEP 

Team to reconvene following a 

resolution agreement that includes IEPrelated matters. We do not believe that 

it is necessary or appropriate to 

anticipate the elements of a particular 

settlement agreement, which may 

supersede an existing IEP. The contents 

of settlement agreements are left to the 

parties who execute a settlement 

agreement. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify whether the SEA, a hearing 

officer, or an administrative law judge 

has the authority to enforce a written 

resolution agreement. A few 

commenters recommended permitting a 

parent to seek assistance from the SEA 

to compel a school district to abide by 

a resolution agreement. The commenters 

stated that many families cannot afford 

legal representation and, in jurisdictions 

in which parents cannot represent 

themselves at the Federal district court 

level, this would, in essence, leave such 

parents without meaningful redress, 

except through the State court system. 

One commenter recommended that 

the regulations specify that a resolution 

agreement is enforceable in court 

without exhausting administrative 

remedies. The commenter stated that 

unless this is clearly stated, parents may 

be forced to proceed through a two-tier 

due process system, rather than proceed 

directly to court, which would be 

counter to the purpose of a resolution 

agreement. 

Several commenters suggested adding 

language in § 300.506(b)(7) clarifying 

that a written, signed mediation 

agreement can be enforced through a 

State’s administrative complaint 

process, as well as in State and Federal 

court. The commenters stated that such 

a provision would be consistent with 

Congressional intent to reduce litigation 

and permit parties to resolve 

disagreements in a more positive, less 

costly manner. The commenters also 

suggested permitting State- or circuitbased variation in enforcement 

mechanisms. 

Discussion: Section 615(f)(1)(B)(iii) of 

the Act provides that if an agreement is 

reached in a resolution meeting, the 

parties must execute a legally binding 

agreement that is signed by both the 

parent and a representative of the 

agency who has the authority to bind 

the agency, and is enforceable in any 

State court of competent jurisdiction or 

in a district court of the United States. 

These same requirements apply to 

agreements reached through mediation 

sessions, pursuant to section 

615(e)(2)(F)(iii) of the Act. The Act is 

clear that exhaustion of administrative 

remedies is not required since the Act 

provides that the agreement is 

enforceable in a State court of 

competent jurisdiction or in a district 

court of the United States. 

If a party to a resolution agreement or 

a mediation agreement believes that the 

agreement has been breached, we 

believe that, in addition to enforcement 

in a State court of competent 

jurisdiction or district court of the 

United States, States should be able to 

offer the option of using other available 

State mechanisms (e.g., State complaint 

procedures) to enforce resolution 

agreements and mediation agreements, 

as long as those other enforcement 

mechanisms are voluntary. 

Therefore, we are adding a new 

regulation on State enforcement 

mechanisms to clarify that States have 

the option of allowing resolution 

agreements and mediation agreements 

to be enforced through other 

mechanisms, provided that the other 

enforcement mechanisms do not operate 

to deny or delay the right of any party 

to the agreement to seek enforcement in 

an appropriate State or Federal court. 

Regarding the commenters’ suggestion 

of allowing State and circuit variations 

in enforcement mechanisms, we do not 

believe the Department has the 

authority to regulate in this area because 

doing so would interfere with matters 

reserved for State and Federal courts. In 

general, a written resolution or 

mediation agreement is a binding 

contract between the parties, and 

therefore, the validity and enforceability 

of that agreement would be reviewed in 

light of applicable State and Federal 

laws, including State contract laws. 

Changes: We have added a new 

§ 300.537 on State enforcement 

mechanisms to clarify that, 

notwithstanding §§ 300.506(b)(7) and 

new § 300.510(d)(2) (proposed 

§ 300.510(c)(2)), nothing in this part 

prevents a State from providing parties 

to a written agreement reached as a 

result of a mediation or resolution 

meeting other mechanisms to enforce 

that agreement, provided that such 

mechanisms are not mandatory and do 

not deny or delay the right of the parties 

to seek enforcement of the written 

agreement in a State court of competent 

jurisdiction or in a district court of the 

United States. We have also added a 

cross reference to new § 300.537 in new 

§ 300.510(d) (proposed § 300.510(c)), 

regarding written settlement 

agreements. 

Agreement Review Period (New 

§ 300.510(e)) (Proposed § 300.510(d)) 

Comment: Many commenters 

recommended including language in the 

regulations to ensure that parents are 

informed orally and in writing that 

either party to a resolution agreement 

may reconsider and void the resolution 

agreement within three business days. 

One commenter expressed concern that 

some parents lack the education or legal 

expertise of school districts, and will 

miss this important right unless 

informed both orally and in writing. A 

few commenters stated that this notice 

must be provided to parents in their 

native language or primary mode of 

communication. 

Discussion: Section 300.504(a), 

consistent with section 615(d)(1)(A) of 

the Act, requires a public agency to 

provide parents with a copy of the 


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procedural safeguards notice at least one 

time in a school year and under the 

exceptional circumstances specified in 

§ 300.504(a), which includes the first 

occurrence of the filing of a due process 

complaint in a school year. The 

procedural safeguards notice, which 

must be written in language 

understandable to the general public 

and in the native language of the parent, 

unless clearly not feasible to do so, must 

include a full explanation of the Act’s 

procedural safeguards. If the native 

language or other mode of 

communication of the parent is not a 

written language, § 300.503(c)(2) 

requires the public agency to take steps 

to ensure that the notice is translated 

orally or by other means for the parent 

in his or her native language or other 

mode of communication and that the 

parent understands the content of the 

notice. Under § 300.504(c)(5)(ii), the 

notice must inform parents about the 

opportunity to present and resolve a due 

process complaint in accordance with 

the resolution process required in 

§ 300.510 and section 615(f)(1)(B) of the 

Act, including a party’s right to void the 

resolution agreement within three 

business days of execution. We believe 

it would be overly burdensome to 

require public agencies to provide the 

procedural safeguards notice both orally 

and in writing to an individual parent, 

and, therefore, decline to change the 

regulation. 

Changes: None. 

Comment: Several commenters 

recommended that the regulations 

clarify whether discussions during the 

resolution meeting remain confidential. 

Discussion: We decline to regulate on 

this matter because the Act is silent 

regarding the confidentiality of 

resolution discussions. However, there 

is nothing in the Act or these 

regulations that would prohibit the 

parties from entering into a 

confidentiality agreement as part of 

their resolution agreement. A State 

could not, however, require that the 

participants in a resolution meeting 

keep the discussions confidential or 

make a confidentiality agreement a 

condition of a parent’s participation in 

the resolution meeting. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

require each SEA to develop a model 

settlement agreement form with 

appropriate release language, a 

withdrawal form to be filed with the 

hearing officer, and a confidentiality 

agreement. 

Discussion: The terms of settlement 

agreements will necessarily vary based 

on numerous factors, including the 

nature of the dispute and the specific 

resolution agreed to by the parties 

involved. Therefore, we do not believe 

it is practical or useful to require SEAs 

to develop a model settlement 

agreement form. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

define ‘‘days’’ in this section to mean 

‘‘business days.’’

Discussion: Under § 300.11(a), day 

means calendar day, unless otherwise 

indicated as a business day or school 

day. All references to day in § 300.510 

are calendar days, except for new 

§ 300.510(e) (proposed § 300.510(d)), 

which specifies that the parties may 

void a resolution agreement within 

three business days of the agreement’s 

execution. 

Changes: None. 

Impartial Due Process Hearing 

(§ 300.511) 

Comment: One commenter stated that 

section 615(f)(1)(A) of the Act refers to 

when a due process complaint is 

‘‘received’’ and recommended using this 

language in § 300.511(a), which refers to 

when a due process complaint is 

‘‘filed.’’ The commenter stated that 

LEAs are more likely to understand and 

relate to when a due process complaint 

is ‘‘received’’ versus when a due process 

complaint is ‘‘filed.’’

Discussion: We agree with the 

commenter and are changing 

§ 300.511(a) to be consistent with 

section 615(f)(1)(A) of the Act, which 

provides that a parent or the LEA must 

have the opportunity for an impartial 

due process hearing under this part 

when a due process complaint is 

received under section 615(b)(6) or (k) 

of the Act. 

Changes: For consistency with 

statutory language, we have changed the 

first clause in the first sentence of 

§ 300.511(a) by removing the words 

‘‘filed under § 300.507’’ and adding in 

their place the words ‘‘received under 

§ 300.507 or § 300.532’’. 

Comment: Some commenters 

recommended that the regulations 

clarify that a party has a right to seek 

immediate intervention from a hearing 

officer to resolve pre-hearing issues and 

disputes. One commenter recommended 

that the regulations clarify that hearing 

officers are empowered and obligated to 

promptly hear and decide all prehearing issues and disputes so that 

decisions can be made about whether to 

proceed to a hearing, as well as to focus 

and streamline the evidentiary hearing 

process. The commenter provided the 

following examples of pre-hearing 

issues that should be resolved prior to 

a hearing: the sufficiency of the 

complaint; the sufficiency of the 

response and notice pursuant to 

§ 300.508(e); the sufficiency of the 

response pursuant to § 300.508(f); 

motions for stay-put; the hearing 

schedule; the order of witnesses; the 

burden of proof; the burden of going 

forward; witness testimony by 

telephone or video conference; 

production of records; exchange of 

evidence; admissibility of evidence; and 

issuance and enforcement of subpoenas 

and subpoenas duces tecum. 

Discussion: Section 615(c)(2)(D) and 

(E) of the Act, respectively, address 

situations where it is necessary for 

hearing officers to make determinations 

regarding the sufficiency of a complaint 

and amendments to a complaint before 

a due process hearing. We do not 

believe it is necessary to regulate further 

on the other pre-hearing issues and 

decisions mentioned by the commenters 

because we believe that States should 

have considerable latitude in 

determining appropriate procedural 

rules for due process hearings as long as 

they are not inconsistent with the basic 

elements of due process hearings and 

rights of the parties set out in the Act 

and these regulations. The specific 

application of those procedures to 

particular cases generally should be left 

to the discretion of hearing officers who 

have the knowledge and ability to 

conduct hearings in accordance with 

standard legal practice. There is nothing 

in the Act or these regulations that 

would prohibit a hearing officer from 

making determinations on procedural 

matters not addressed in the Act so long 

as such determinations are made in a 

manner that is consistent with a parent’s 

or a public agency’s right to a timely 

due process hearing. 

Changes: None. 

Comment: One commenter stated that 

the Act does not provide adequate 

guidance on the specific set of legal 

procedures that must be followed in 

conducting a due process hearing and 

recommended that the regulations 

include guidance regarding the 

following: Limiting the use of hearsay 

testimony; requiring all testimony to be 

subject to cross-examination; the order 

of testimony; timelines; and the statute 

of limitations. The commenter stated 

that while timelines and the statute of 

limitations are addressed in the Act, 

there are no consequences for failure to 

comply. 

Discussion: In addition to addressing 

timelines, hearing rights, and statutes of 

limitations, the Act and these 

regulations also address a significant 

due process right relating to the 

impartiality and qualifications of 


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hearing officers. Under Section 615(f)(3) 

of the Act and § 300.511(c), a hearing 

officer must possess the knowledge and 

ability to conduct hearings in 

accordance with appropriate, standard 

legal practice. Hearing officers consider 

failure to comply with timelines and 

statutes of limitations on a case-by-case 

basis, depending on the specific 

circumstances in each case. We believe 

that the requirements for hearing 

officers are sufficient to ensure that 

proper legal procedures are used and 

that it is not appropriate to regulate on 

every applicable legal procedure that a 

hearing officer must follow, because 

those are matters of State law. 

Changes: None. 

Agency Responsible for Conducting the 

Due Process Hearing (§ 300.511(b)) 

Comment: One commenter noted that 

§ 300.511(b) refers to the State or a 

public agency holding a hearing, 

whereas the Act refers to the State or an 

LEA holding a hearing. The commenter 

requested clarification regarding 

whether any agency, other than an LEA, 

is permitted to hold a hearing under the 

Act. 

Discussion: The term ‘‘public agency’’

in these regulations is intended to 

address situations where an entity might 

satisfy the definition of public agency in 

§ 300.33, but would not satisfy the 

definition of LEA in § 300.28. As set 

forth in § 300.33, a public agency may 

be responsible for the education of a 

child with a disability. In these 

circumstances, the public agency would 

hold the due process hearing. 

Changes: None. 

Impartial Hearing Officer (§ 300.511(c)) 

Comment: A few commenters 

recommended revising 

§ 300.511(c)(1)(i)(B) to state that a 

hearing officer must not have a personal 

or professional conflict of interest. 

Discussion: Section 300.511(c)(1)(i)(B) 

incorporates the language in section 

615(f)(3)(A)(i)(II) of the Act and 

provides that a hearing officer must not 

be a person having a personal or 

professional interest that conflicts with 

the person’s objectivity in the hearing. 

The meaning of this requirement is clear 

and we do not believe it is necessary to 

change it to ensure continued 

compliance with this longstanding 

requirement. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

require the conduct of impartial hearing 

officers to be addressed by the State 

judicial code of conduct. 

Discussion: Under section 615(f)(3) of 

the Act and § 300.511(c), a hearing 

officer must possess the knowledge and 

ability to conduct hearings and to 

render and write decisions in 

accordance with appropriate, standard 

legal practice. We believe that this 

provides sufficient guidance. The 

application of State judicial code of 

conduct standards is a State matter. 

Changes: None. 

Comment: One commenter noted that 

§ 300.511(c)(1)(iii) and (iv) require a 

hearing officer to possess the knowledge 

and ability to conduct hearings and 

render and write decisions in 

accordance with appropriate, standard 

legal practice, and recommended that 

the regulations outline standard legal 

practice so that parents without attorney 

representation will have this 

information. 

Discussion: The requirements in 

§ 300.511(c)(1)(iii) and (iv) incorporate 

the requirements in section 

615(f)(3)(A)(iii) and (iv) of the Act. 

These requirements are general in 

nature and appropriately reflect the fact 

that standard legal practice will vary 

depending on the State in which the 

hearing is held. Accordingly, it would 

not be feasible to outline standard legal 

practice in these regulations, as 

recommended by the commenter. 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

require hearing officers to receive 

ongoing, periodic professional 

development regarding new regulations 

and court decisions so that their 

decisions reflect the latest developments 

and interpretations. A few commenters 

recommended requiring SEAs to 

provide training for hearing officers by 

trainers who are experienced in 

conducting hearings and writing 

decisions in accordance with standard 

legal practice. A few commenters 

recommended that the regulations 

require hearing officers to be informed 

that they are bound by the decisions of 

courts that govern their jurisdiction. 

Discussion: It is not necessary to 

regulate in the manner recommended by 

the commenters because this is a 

responsibility of each State. The Act 

prescribes minimum qualifications for 

hearing officers, which are reflected in 

§ 300.511(c). Pursuant to its general 

supervisory responsibility, each State 

must ensure that individuals selected to 

conduct impartial due process hearings 

meet the requirements in 

§ 300.511(c)(1)(ii) through (iv). States 

are in the best position to determine the 

required training and the frequency of 

the required training, consistent with 

State rules and policies. 

Changes: None. 

Comment: One commenter noted that 

the Act does not include the provision 

in § 300.511(c)(2), which provides that a 

person who otherwise qualifies to 

conduct a hearing is not an employee of 

the agency solely because he or she is 

paid by the agency to serve as a hearing 

officer. The commenter, therefore, 

recommended removing § 300.511(c)(2). 

Discussion: We do not agree that the 

provision should be removed. This 

provision is longstanding. Although the 

Act prohibits an individual who is 

employed by a public agency involved 

in the education or care of the child to 

be a hearing officer, we believe that it 

is important to continue to clarify that 

a person’s payment for serving as a 

hearing officer does not render that 

individual a public agency employee 

who is excluded from serving as a 

hearing officer. In many instances, 

public agencies retain hearing officers 

under contract. The fact that an 

individual is hired by a public agency 

solely for the purpose of serving as a 

hearing officer does not create an 

excluded employee relationship. Public 

agencies need to ensure that hearing 

officers conduct due process hearings 

and it is only reasonable that those 

persons are paid for their work as 

hearing officers. 

Changes: None. 

Comment: Some commenters 

requested that the regulations require 

SEAs to make the list of hearing officers 

and their qualifications available to the 

public. 

Discussion: Public agencies must 

maintain a list of persons who serve as 

hearing officers and a statement of their 

qualifications. However, there is 

nothing in the Act that requires a public 

agency to make information regarding 

the qualifications of hearing officers 

available to the public. Parents do not 

select the hearing officer to hear their 

complaints. Therefore, we do not 

believe that it is necessary to require 

public agencies to provide information 

regarding the qualifications of hearing 

officers to the public, and we decline to 

regulate in this regard. The commenter’s 

recommendation would impose an 

additional burden on public agencies 

that is not required by the Act. 

Changes: None. 

Subject Matter of Due Process Hearings 

(§ 300.511(d)) 

Comment: A few commenters 

requested that the regulations clarify 

that the party requesting the due process 

hearing may raise issues that are 

included in any amendments to the 

complaint. One commenter requested 

clarification regarding whether the party 

that the complaint is against can raise 


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other issues. A few commenters 

recommended that the regulations 

clarify that hearing officers may raise 

and resolve issues concerning 

noncompliance even if the party 

requesting the hearing does not raise the 

issues. 

Discussion: Section 300.508(d)(4) and 

section 615(c)(2)(E)(ii) of the Act 

provide that the applicable timeline for 

a hearing shall begin at the time that a 

party files an amended complaint, and 

makes clear that after the party files an 

amended complaint, timelines for the 

resolution meeting and the opportunity 

to resolve the complaint begin again. 

The issues raised in the amended 

complaint would be the subjects of the 

resolution meeting, and these issues 

also would be addressed in a due 

process hearing, if the LEA does not 

resolve the dispute to the satisfaction of 

the parent through the resolution 

process. 

The Act does not address whether the 

non-complaining party may raise other 

issues at the hearing that were not 

raised in the due process complaint, and 

we believe that such matters should be 

left to the discretion of hearing officers 

in light of the particular facts and 

circumstances of a case. The Act also 

does not address whether hearing 

officers may raise and resolve issues 

concerning noncompliance even if the 

party requesting the hearing does not 

raise the issues. Such decisions are best 

left to individual State’s procedures for 

conducting due process hearings. 

Changes: None. 

Comment: One commenter 

recommended that the Department 

include in the regulations language that 

allocates the burden of proof to the 

moving party. 

Discussion: Although the Act does not 

address allocation of the burden of proof 

in due process hearings brought under 

the Act, the U.S. Supreme Court 

recently addressed the issue. In Schaffer 

v. Weast, 546 U.S. —, 126 S. Ct. 528 

(2005) (Schaffer), the Court first noted 

that the term ‘‘burden of proof’’ is 

commonly held to encompass both the 

burden of persuasion (i.e., which party 

loses if the evidence is closely balanced) 

and the burden of production (i.e., the 

party responsible for going forward at 

different points in the proceeding). In 

Schaffer, only the burden of persuasion 

was at issue. The Court held that the 

burden of persuasion in a hearing 

challenging the validity of an IEP is 

placed on the party on which this 

burden usually falls—on the party 

seeking relief—whether that is the 

parent of the child with a disability or 

the school district. Since Supreme Court 

precedent is binding legal authority, 

further regulation in this area is 

unnecessary. In addition, we are not 

aware of significant questions regarding 

the burden of production that would 

require regulation. 

Changes: None. 

Timeline for Requesting a Hearing 

(§ 300.511(e)) and Exceptions to the 

Timeline (§ 300.511(f)) 

Comment: Some commenters stated 

that exceptions to the timeline in 

§ 300.511(f) should include situations in 

which a parent is unable to file a due 

process complaint because the parent is 

not literate or cannot write in English. 

One commenter recommended 

considering the parent’s degree of 

English fluency and other factors in 

determining the parent’s ability to have 

knowledge about the alleged action that 

is the basis for the due process 

complaint. 

Discussion: Section 300.511(f), 

consistent with section 615(f)(3)(D) of 

the Act, provides explicit exceptions to 

the statute of limitations for filing a due 

process complaint. These exceptions 

include situations in which the parent 

is prevented from filing a due process 

complaint because the LEA withheld 

from the parent information that is 

required to be provided to parents under 

these regulations, such as failing to 

provide prior written notice or a 

procedural safeguards notice that was 

not in the parent’s native language, as 

required by §§ 300.503(c) and 

300.504(d), respectively. Additionally, 

in States using the timeline in 

§ 300.511(e) (i.e., ‘‘within two years of 

the date the parent or agency knew or 

should have known about the alleged 

action that forms the basis of the 

complaint’’), hearing officers will have 

to make determinations, on a case-bycase basis, of factors affecting whether 

the parent ‘‘knew or should have 

known’’ about the action that is the 

basis of the complaint. Therefore, we 

decline to add additional exceptions to 

§ 300.511(f). 

Changes: None. 

Comment: Some commenters 

requested that the regulations clarify 

whether the statute of limitations in 

section 615(b)(6)(B) of the Act is the 

same statute of limitations in section 

615(f)(3)(C) of the Act. The commenters 

stated that the Act and regulations are 

confusing because the statute of 

limitations is mentioned twice and 

implies that the timeline for filing a 

complaint and filing a request for a due 

process hearing are different. 

Discussion: The statute of limitations 

in section 615(b)(6)(B) of the Act is the 

same as the statute of limitations in 

section 615(f)(3)(C) of the Act. Because 

we are following the structure of the 

Act, we have included this language in 

§§ 300.507(a)(2) and 300.511(e). 

Changes: None. 

Comment: Some commenters 

recommended that the regulations 

clarify that ‘‘misrepresentations’’ by an 

LEA in § 300.511(f)(1) include 

misleading, as well as false, statements. 

The commenters stated that misleading 

statements create the same obstacle for 

parents as false statements in terms of 

when parents know about an alleged 

violation. One commenter 

recommended that 

‘‘misrepresentations’’ include both 

intentional and unintentional 

misrepresentations. 

Discussion: We do not believe it is 

appropriate to define or clarify the 

meaning of ‘‘misrepresentations,’’ as 

requested by the commenters. Such 

matters are within the purview of the 

hearing officer. If the complaining party 

believes that the timeline in § 300.511(e) 

should not apply, the complaining party 

would need to ask the hearing officer to 

determine whether an untimely due 

process complaint can proceed to 

hearing based on misrepresentations by 

an LEA. The hearing officer would then 

determine whether the party’s allegation 

constitutes an exception to the 

applicable timeline. 

Changes: None. 

Additional Disclosure of Information 

(§ 300.512(b)) 

Comment: One commenter 

recommended that the regulations 

permit parties to mutually consent to 

waive the five-day timeline and 

exchange documents closer to the 

hearing date. 

Discussion: There is nothing in the 

Act or these regulations that would 

prevent the parties from agreeing to 

disclose relevant information to all 

other parties less than five business 

days prior to a due process hearing. 

Changes: None. 

Hearing Decisions (§ 300.513) 

Decision of Hearing Officer 

(§ 300.513(a)) 

Comment: Some commenters 

requested that the regulations clarify 

that LRE is a substantive, not a 

procedural, issue and that a hearing 

officer can base relief on the failure of 

an LEA to provide FAPE in the LRE to 

the maximum extent possible. A few 

commenters recommended that the 

regulations allow a hearing officer to 

dismiss a complaint or to rule on 

summary judgment if there is no claim 

or controversy to be adjudicated. The 

commenters stated that hearing officers 


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should be allowed to dismiss cases 

when the alleged violation does not 

focus on a substantive issue. 

Discussion: Section 300.513(a)(1) and 

section 615(f)(3)(E) of the Act provide 

that, in general, a decision made by a 

hearing officer must be made on 

substantive grounds based on a 

determination of whether the child 

received FAPE. Furthermore, 

§ 300.513(a)(3), consistent with section 

615(f)(3)(E)(iii) of the Act, allows a 

hearing officer to order an LEA to 

comply with procedural requirements 

under §§ 300.500 through 300.536. 

Although the Act and these 

regulations require that hearing officers 

base determinations of whether a child 

received FAPE on substantive grounds, 

hearing officers also may find that a 

child did not receive FAPE based on the 

specific procedural inadequacies set out 

in § 300.513(a)(2), consistent with 

section 615(f)(3)(E)(ii) of the Act. 

Hearing officers continue to have the 

discretion to dismiss complaints and to 

make rulings on matters in addition to 

those concerning the provision of FAPE, 

such as the other matters mentioned in 

§ 300.507(a)(1). To clarify this point, we 

are revising the heading of § 300.513(a) 

to refer to decisions of hearing officers 

about FAPE, and are revising 

§ 300.513(a)(1). The requirements in 

§§ 300.507 through 300.508 governing 

the content of the due process 

complaint, including requirements for 

sufficiency and complaint amendment, 

and requirements governing the 

resolution process in § 300.510 should 

help to ensure that due process 

complaints that are the subject of a due 

process hearing under this part contain 

claims that are appropriate for a hearing 

officer’s decision. 

Changes: We have reworded 

§ 300.513(a)(1) and revised the heading 

of § 300.513(a) to refer to decisions 

regarding FAPE. 

Construction Clause (§ 300.513(b)) 

Comment: Some commenters 

recommended that the construction 

clause in § 300.513(b) include that 

nothing in §§ 300.507 through 300.513 

shall be construed to affect the right of 

a parent to file a complaint with the 

SEA under §§ 300.151 through 300.153 

for a procedural violation that does not 

meet the requirements in 

§ 300.513(a)(2). 

Discussion: We decline to make the 

change requested because we think that 

these matters are already addressed in 

the regulations. Section 300.507(a) 

describes the matters on which a party 

can request a due process hearing. 

Section 300.151(a) provides that an 

organization or individual may file a 

signed written complaint alleging that a 

public agency has violated a 

requirement of Part B of the Act, which 

would include procedural violations 

that would not meet the standard in 

§ 300.507(a)(1). 

Changes: None. 

Finality of Hearing Decision; Appeal; 

Impartial Review (§ 300.514) 

Comment: One commenter 

recommended clarifying that 

§ 300.514(b) applies only to States with 

a two-tier due process system. 

Discussion: We believe that 

§ 300.514(b)(1) is clear that a State-level 

appeal of a due process decision is 

available only in States that have a twotiered due process system. This is a 

longstanding provision, which is 

consistent with section 615(g) of the 

Act. We do not believe further 

clarification in the text of the 

regulations is necessary. 

Changes: None. 

Timelines and Convenience of Hearings 

and Reviews (§ 300.515) 

Comment: One commenter 

recommended that the regulations 

clarify when the various timelines for 

resolution meetings and due process 

hearings start and stop. One commenter 

disagreed with § 300.515(a), stating that 

the 45-day timeline should begin when 

the public agency receives a request for 

a due process hearing. 

Discussion: We agree that clarification 

is needed regarding the various 

timelines for resolution meetings and 

due process hearings. As stated earlier 

in the Analysis of Comments and 

Changes in § 300.510, we have added a 

new paragraph (c) in § 300.510 to 

specify adjustments to the 30-day 

resolution period and when the 45-day 

timeline for due process hearings begins 

for these exceptions. In order to be 

consistent with this change, we are 

changing the introductory language in 

§ 300.515(a). 

Changes: We have changed the 

introductory language in § 300.515(a) to 

reference the adjustments to the 30-day 

timeline in new § 300.510(c). 

Comment: A few commenters 

recommended that the hearings and 

reviews be conducted at a time and 

place that are ‘‘mutually convenient’’ to 

the parent and child involved, rather 

than ‘‘reasonably convenient,’’ as 

required in § 300.515(d). Another 

commenter recommended that the 

hearings and reviews be conducted at a 

time and place that is reasonably 

convenient to ‘‘all parties involved.’’

Discussion: The Department believes 

that every effort should be made to 

schedule hearings at times and locations 

that are convenient for the parties 

involved. However, given the multiple 

individuals that may be involved in a 

hearing, it is likely that hearings would 

be delayed for long periods of time if the 

times and locations must be ‘‘mutually 

convenient’’ for all parties involved. 

Therefore, we decline to change this 

regulation. 

Changes: None. 

Civil Action (§ 300.516) 

Comment: Several commenters 

recommended that the regulations 

clarify that the 90-day timeline for a 

party aggrieved by the findings and 

decision of a due process hearing to file 

a civil action begins either from the date 

of a hearing officer’s decision or from 

the date of a State review officer’s 

decision, if the State has a two-tiered 

due process system. One commenter 

stated that many cases would be 

inappropriately dismissed if this 

regulation is not clarified. 

Discussion: We agree with the 

commenters and are clarifying that the 

party bringing the action has 90 days 

from the date of the decision of the 

hearing officer or the decision of the 

State review official to file a civil action, 

or, if the State has an explicit time 

limitation for bringing civil actions 

under Part B of the Act, in the time 

allowed by that State law. This change 

is needed to ensure that the applicable 

time limitation does not penalize parties 

in States with two-tier due process 

systems that require a party aggrieved 

by the due process hearing officer’s 

decision to file a State-level appeal prior 

to bringing a civil action in State or 

Federal court. 

Changes: We have added ‘‘or, if 

applicable, the decision of the State 

review official,’’ in § 300.516(b) to 

clarify the timeline for bringing a civil 

action in States that have a two-tiered 

due process system. 

Comment: Some commenters 

recommended that the regulations 

clarify that the State time limit for 

bringing a civil action under Part B of 

the Act can only be used if it is longer 

than 90 days. One commenter 

recommended that the regulations 

clarify whether State law may establish 

a time limit of less than the 90 days for 

filing a civil action. 

Discussion: Section 300.516(b) and 

section 615(i)(2)(B) of the Act provide 

that the party bringing the action shall 

have 90 days from the date of the 

decision of the hearing officer or the 

decision of the State review official to 

file a civil action or, if the State has an 

explicit time limitation for bringing civil 

actions under Part B of the Act, in the 

time allowed by that State law. There is 


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no requirement that would limit the 

State’s authority to set a time limit 

longer than or shorter than 90 days and 

we believe that the regulations are clear 

that a State may set a longer or shorter 

time limit under State law. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

require an LEA, at the conclusion of a 

due process hearing, to provide a parent 

who is not represented by counsel, a 

written notice regarding the time limit 

for filing a civil action. 

Discussion: Parents involved in a due 

process hearing would already have 

received information about the 

availability of a civil action and the 

timeline for filing a civil action when 

they received the procedural safeguards 

notice, in accordance with § 300.504. 

We decline to require an additional 

notice at the conclusion of a due process 

hearing, because this would impose an 

additional paperwork burden on public 

agencies. 

Changes: None. 

Attorneys’ Fees (§ 300.517) 

Comment: We received a number of 

comments seeking clarification of, or 

modifications to, the statutory language 

governing the award of attorneys’ fees. 

Some commenters recommended that 

the regulations require the SEA or LEA 

to affirmatively prove that the parent’s 

intent was improper in order to be 

awarded attorneys’ fees under this 

provision. A few commenters 

recommended modifying the regulations 

to expressly require a determination by 

a court that the complaint or cause of 

action was frivolous, unreasonable, or 

without foundation, before an award of 

attorneys’ fees can be considered. 

One commenter requested that the 

regulations clarify that section 

615(i)(3)(B)(i) of the Act seeks to codify 

the standards set forth in Christiansburg 

Garment Co. v. EEOC, 434 U.S. 412 

(1978), and that the principles set forth 

in this action (that attorneys’ fees may 

only be awarded to defendants in 

actions where the plaintiffs’ claims are 

frivolous, without foundation, or 

brought in bad faith) should apply in 

favor of school districts and parents, 

since either party can bring complaints. 

One commenter recommended that 

§ 300.517(a)(1)(ii) and (iii) be revised to 

refer to an attorney of a parent or a 

parent because there are many parents 

who are attorneys representing their 

children in due process hearings. 

Another commenter recommended 

including language that the parent must 

be the prevailing party on substantive 

grounds in order to claim an award of 

attorneys’ fees. 

Discussion: Section 300.517(a) 

incorporates the language in section 

615(i)(3)(B) of the Act. Further guidance 

on the interpretation of this statutory 

language is not appropriate since 

judicial interpretations of statutory 

provisions will necessarily vary based 

upon case-by-case factual 

determinations, consistent with the 

requirement that the award of 

reasonable attorneys’ fees is left to a 

court’s discretion. 

With regard to the recommendation 

that we include language that the parent 

must be the prevailing party on 

substantive grounds, we decline to 

regulate because we believe that the 

statutory provisions regarding attorneys’

fees are appropriately described in 

§ 300.517. Furthermore, section 

615(f)(3)(E) of the Act, reflected in 

§ 300.513, recognizes both that hearing 

officer determinations that a child did 

not receive FAPE, in some 

circumstances, may be based on 

procedural violations, and that hearing 

officers may order LEAs to comply with 

procedural requirements. Either of these 

circumstances, in appropriate cases, 

might result in a parent being 

determined to be a prevailing party for 

purposes of claiming attorneys’ fees. 

We decline to add language to 

§ 300.517(a)(1)(ii) to refer to a parent 

who is an attorney, because the 

reference to ‘‘an attorney of a parent’’

would include anyone serving as an 

attorney. 

Changes: None. 

Comment: One commenter 

recommended that § 300.517(a)(1)(iii), 

regarding attorneys’ fees, be changed to 

include non-attorney advocates who are 

acting on behalf of parents and provide 

that these individuals be held to the 

same standard as attorneys. Another 

commenter expressed concern regarding 

circuit court rulings that require SEAs to 

pay for expert witnesses for parents who 

cannot afford them. The commenter 

recommended that the regulations 

permit SEAs to establish a list of private 

experts who are willing to testify at due 

process hearings and to use funds 

provided under Part B of the Act to pay 

such experts when either party uses 

them. 

Discussion: Section 615(i)(3)(B) of the 

Act allows a court to award reasonable 

attorneys’ fees as a part of the costs to 

a parent who is the prevailing party. 

Although the Act also provides parents 

with the right to be accompanied and 

advised by individuals with special 

knowledge or training with respect to 

the problems of children with 

disabilities at a due process hearing, it 

does not provide for awarding attorneys’

fees to these other individuals. Lay 

advocates are, by definition, not 

attorneys and are not entitled to 

compensation as if they were attorneys. 

In addition, consistent with the 

Supreme Court’s recent decision in 

Arlington Central Sch. Dist. Bd. of Educ. 

v. Murphy, No. 05–18, U.S., 2006 U.S. 

LEXIS 5162 (June 26, 2006), if Congress 

wishes to allow recovery of experts’ fees 

by prevailing parents, it must include 

explicit language authorizing that 

recovery, which was not done in the 

Act. This would apply whether the 

expert was seeking payment for 

testifying or advocating. 

Changes: None. 

Comment: One commenter stated that 

attorneys’ fees should be available for 

resolution meetings because parents are 

required to attend these meetings before 

a due process hearing can begin. 

Another commenter recommended that 

the regulations clarify that the 

prohibition on attorneys’ fees for 

resolution activities applies to the 

resolution meeting, as well as any 

resolution agreement. One commenter 

requested that the regulations clarify 

that attorneys’ fees for resolution 

meetings will not be paid until a 

compromise is reached, and will be 

based on the resolution meeting itself 

and not the work that the attorney puts 

into preparing for the resolution 

meeting. 

Discussion: Section 300.517(c)(2)(iii) 

of the regulations, consistent with 

section 615(i)(3)(D)(iii) of the Act, 

specifies that the resolution meeting is 

not considered to be a meeting 

convened as a result of an 

administrative hearing or judicial action 

or an administrative hearing or judicial 

action for purposes of the attorneys’ fees 

provision. Accordingly, such fees may 

not be awarded for resolution meetings. 

While it is clear that attorneys’ fees 

may not be awarded for resolution 

meetings, the Act is silent as to whether 

attorneys’ fees are available for activities 

that occur outside the resolution 

meeting conducted pursuant to section 

615(f)(1)(B)(i) of the Act and 

§ 300.510(a). We decline to regulate on 

this issue because we believe these 

determinations will be fact-specific and 

should be left to the discretion of the 

court. 

Changes: None. 

Comment: A few commenters asked 

whether attorneys’ fees can be awarded 

for attending an IEP Team meeting that 

is convened as a result of a mediation 

session conducted prior to the filing of 

a due process complaint or for attending 

an IEP Team meeting that is convened 

as a result of a mediation session 

conducted at any time. 


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Discussion: Section 615(i)(3)(D)(ii) of 

the Act permits States to determine 

whether attorneys’ fees may be awarded 

for an IEP Team meeting that results 

from a mediation session described in 

§ 300.506. Section 300.517(c)(2)(ii), as 

proposed, inadvertently, limited States 

to considering awarding attorneys’ fees 

for an IEP Team meeting conducted as 

the result of a mediation arising prior to 

the filing of a due process request. This 

was an error and has been corrected to 

allow States the discretion to award 

attorneys’ fees for a meeting of the IEP 

Team conducted as a result of any 

mediation described in § 300.506. 

Changes: In order to be consistent 

with section 615(i)(3)(D)(ii) of the Act, 

we have revised § 300.517(c)(2)(ii) by 

placing a period after the reference to 

§ 300.506 and removing the rest of the 

sentence. 

Comment: One commenter 

recommended that attorneys’ fees 

should also apply to due process 

complaints brought by private schools 

or agencies, not just families. 

Discussion: Section 300.507(a)(1) 

permits a parent or a public agency to 

file a due process complaint under the 

Act. Private schools or agencies are not 

permitted to file a due process 

complaint under the Act. Under section 

615(f)(1)(A) of the Act, only the parents 

and public agency are authorized to 

request a due process hearing. 

Changes: None. 

Comment: One commenter requested 

that the regulations clarify in 

§ 300.517(c)(3) what standard will be 

used to determine whether a parent was 

substantially justified in rejecting a 

settlement offer. 

Discussion: It would be inappropriate 

to include a standard for determining 

whether a parent is substantially 

justified in rejecting a settlement offer 

because such matters will depend on 

the specific facts and circumstances in 

each case. The hearing officer, as the 

designated trier of fact under the Act, is 

in the best position to determine 

whether a parent was substantially 

justified in rejecting a settlement offer. 

We would expect that a hearing officer’s 

decision will be governed by commonly 

applied State evidentiary standards, 

such as whether the testimony is 

relevant, reliable, and based on 

sufficient facts and data. 

Changes: None. 

Child’s Status During Proceedings 

(§ 300.518) 

Comment: A few commenters 

requested clarification regarding 

whether the current educational 

placement is the last agreed-upon 

placement. One commenter requested 

clarification as to whether the pendent 

placement is the regular education class 

or a class or program selected by the 

child’s IEP Team. 

Discussion: We believe that there is 

no need for further regulations in this 

area. The current educational placement 

during the pendency of any 

administrative or judicial proceeding 

described in § 300.518 and section 

615(j) of the Act, refers to the setting in 

which the IEP is currently being 

implemented. The child’s current 

placement is generally not considered to 

be location-specific. 

Changes: None. 

Comment: One commenter 

recommended clarifying that an IFSP is 

not a child’s pendent placement as the 

child transitions from a Part C early 

intervention program to a Part B 

preschool program. 

Discussion: The programs under Parts 

B and C of the Act differ in their scope, 

eligibility, and the services available. 

Services under Part B of the Act are 

generally provided in a school setting. 

By contrast, services under Part C of the 

Act are provided, to the maximum 

extent appropriate, in the natural 

environment, which is often the infant 

or toddler’s home or other community 

program designed for typically 

developing infants or toddlers. The 

Department has long interpreted the 

current educational placement language 

in the stay-put provisions in section 

615(j) of the Act and § 300.518(a) as 

referring only to the child’s placement 

under Part B of the Act and not to the 

early intervention services received by 

the child under Part C of the Act. We 

believe that a child who previously 

received services under Part C of the 

Act, but has turned three and is no 

longer eligible under Part C of the Act, 

and is applying for initial services under 

Part B of the Act, does not have a 

‘‘current educational placement.’’

We are adding language to clarify that 

if the complaint involves an application 

for initial services under Part B of the 

Act from a child who has turned three 

and is no longer eligible under Part C of 

the Act, the public agency is not 

required to continue providing the early 

intervention services on the child’s 

IFSP. The provision clarifies that a 

public agency must obtain parental 

consent prior to the initial provision of 

special education and related services, 

consistent with § 300.300(b), and if a 

child is eligible under Part B of the Act 

and the parent provides consent under 

§ 300.300(b), the public agency must 

provide those special education and 

related services that are not in dispute 

between the parent and the public 

agency. 

Changes: We have added a new 

paragraph (c) in § 300.518 to clarify the 

Department’s longstanding policy that if 

a complaint involves an application for 

initial services under Part B of the Act 

from a child who has turned three and 

is no longer eligible under Part C of the 

Act, the public agency is not required to 

continue providing the early 

intervention services on the child’s 

IFSP. Proposed § 300.518(c) has been 

redesignated as new § 300.518(d). 

Comment: One commenter 

recommended revising § 300.518 to 

clearly state that during the pendency of 

any administrative or judicial 

proceeding, LEAs are not absolved of 

their obligation to fully comply with all 

substantive and procedural 

requirements in Part B of the Act, with 

the exception of requirements that are 

impossible to fulfill because of the stay 

put order or because of a parent’s 

refusal. 

Discussion: We do not agree that the 

change requested by the commenter is 

necessary. Section 615(j) of the Act and 

§ 300.518 provide that during the 

pendency of any administrative or 

judicial proceeding regarding a due 

process complaint under § 300.507, 

except as provided in § 300.533, unless 

the parent and the SEA or LEA agree to 

a proposed change in the educational 

placement of the child, the child 

remains in the current educational 

placement. Implicit in maintaining a 

child’s current educational placement is 

the requirement that the public agency 

must ensure that FAPE continues to be 

made available to the child. 

Changes: None. 

Comment: A few commenters 

recommended that stay put not apply to 

a child if the child’s parent fails to 

participate in a resolution meeting. 

Another commenter expressed concern 

about the applicability of the stay put 

provision when resolution meetings are 

delayed. 

Discussion: The Act now makes the 

resolution process a prerequisite to an 

impartial due process hearing. Under 

section 615(j) of the Act, a child must 

be maintained in the current 

educational placement while 

proceedings under the Act are pending, 

and paragraph (a) of § 300.518 clarifies 

that unless the parent and the public 

agency agree otherwise, the child 

involved in the complaint must remain 

in his or her current educational 

placement during the pendency of any 

administrative or judicial proceeding 

regarding a due process complaint 

under § 300.507. Thus, the Act is clear 

that the public agency must maintain 

the child’s current educational 

placement during the pendency of the 


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30-day resolution process, which is 

triggered once the parent files a due 

process complaint under this part, 

regardless of whether the due process 

complaint is resolved prior to a due 

process hearing. We believe it is 

important for this to be clear in the 

procedural safeguards notice. Therefore, 

we are changing § 300.504(c)(7) to 

clarify that the notice must inform 

parents about the child’s placement 

during the pendency of any due process 

complaint. 

Since a party must file a due process 

complaint as the first step in the hearing 

process, we also are making a change in 

§ 300.518(a) to refer to a due process 

complaint, rather than a request for a 

due process hearing. This change is 

needed to clarify that a child’s right to 

remain in the current educational 

placement attaches when a due process 

complaint is filed, regardless of whether 

the due process complaint results in a 

request for a due process hearing. 

Changes: We have removed the 

reference in § 300.504(c)(7) to due 

process ‘‘hearings’’ and added ‘‘any due 

process complaint’’ to clarify that the 

procedural safeguards notice must 

include information regarding the 

child’s placement during the pendency 

of any due process complaint. We also 

have changed § 300.518 by removing the 

words ‘‘request for a due process 

hearing’’ prior to the reference to 

§ 300.507 and adding, in their place, the 

words ‘‘due process complaint.’’

Comment: One commenter 

recommended including language to 

invalidate the stay put agreement if the 

original decision is reversed at the 

second tier hearing or in a judicial 

appeal. One commenter recommended 

providing interim financial relief for 

parents if an LEA appeals the decision 

of a due process hearing officer to 

maintain a child with a disability in a 

private school setting. 

Discussion: We are maintaining the 

provisions in proposed § 300.518(c), 

(new § 300.518(d)), but with one 

modification. The basis for this 

regulation is the longstanding judicial 

interpretation of the Act’s pendency 

provision that when a hearing officer’s 

decision is in agreement with the parent 

that a change in placement is 

appropriate, that decision constitutes an 

agreement by the State agency and the 

parent for purposes of determining the 

child’s current placement during 

subsequent appeals. See, e.g., Burlington 

School Committee v. Dept. of Educ., 471 

U.S. 359, 372 (1985); Susquenita School 

District v. Raelee S., 96 F.3d 78, 84 (3rd 

Cir. 1996); Clovis Unified Sch. Dist. v. 

Cal. Office of Administrative Hearings, 

903 F.2d 635, 641 (9th Cir. 1990). To 

clarify that new § 300.518(d) (proposed 

§ 300.518(c)) does not apply to a firsttier due process hearing decision in a 

State that has two tiers of administrative 

review, but only to a State-level hearing 

officer’s decision in a one-tier system or 

State review official’s decision in a twotier system that is in favor of a parent’s 

proposed placement, we are removing 

the reference to ‘‘local agency’’ in new 

§ 300.518(d). This change is made to 

align the regulation more closely with 

case law. 

With regard to the concern about 

providing financial relief for prevailing 

parents when an LEA appeals the 

decision of a due process hearing to 

maintain a child with a disability in a 

private school setting, we decline to 

regulate on this issue because such 

decisions are matters best left to State 

law, hearing officers, and courts. 

Changes: We have removed ‘‘or local 

agency’’ in new § 300.518(d) (proposed 

§ 300.518(c)) because a decision by a 

hearing officer or a State review official 

in favor of a parent’s proposed 

placement is an agreement between the 

parent and the State, not the local 

agency. 

Comment: One commenter 

recommended clarifying that any 

agreement by a parent to waive the stay 

put protection must comply with the 

requirements for consent in § 300.9. 

Discussion: Consent is required when 

a pending complaint involves an 

application for initial admission to 

public school. In this case, parental 

consent is required for the child to be 

placed in the public school until the 

completion of all proceedings, 

consistent with § 300.518(b) and section 

615(j) of the Act. Other waivers of the 

stay put protections while an 

administrative or judicial proceeding is 

pending, need only be by agreement 

between the parent and the public 

agency. 

Changes: None. 

Surrogate Parents (§ 300.519) 

Comment: A few commenters asked 

whether a student in the penal system 

has a right to a surrogate parent. 

Discussion: Students with disabilities 

in State correctional facilities do not 

have an automatic right to a surrogate 

parent solely by reason of their 

confinement at a correctional facility. 

Public agencies must make case-by-case 

determinations in accordance with the 

requirements in § 300.519, regarding 

whether a student with a disability in a 

State correctional facility needs a 

surrogate parent. Whether a student 

with a disability confined in a State 

correctional facility is considered a 

ward of the State, as defined in new 

§ 300.45 (proposed § 300.44) whose 

rights must be protected through the 

appointment of a surrogate parent, is a 

matter that must be determined under 

State law. 

Changes: None. 

Comment: One commenter 

recommended defining the term 

‘‘locate’’ as used in § 300.519. 

Discussion: ‘‘Locate,’’ as used in 

§ 300.519(a)(2), regarding a public 

agency’s efforts to locate a child’s 

parent, means that a public agency 

makes reasonable efforts to discover the 

whereabouts of a parent, as defined in 

§ 300.30, before assigning a surrogate 

parent. We do not believe that it is 

necessary to define ‘‘locate’’ in these 

regulations because it has the same 

meaning as the common meaning of the 

term. 

Changes: None. 

Duties of Public Agency (§ 300.519(b)) 

Comment: A number of comments 

were received regarding the procedures 

for assigning surrogate parents. One 

commenter recommended requiring 

LEAs to appoint a surrogate parent 

unless the juvenile court has already 

appointed one. The commenter stated 

that this would avoid situations in 

which the LEA and juvenile court each 

believe that the other is assuming this 

responsibility and a surrogate parent is 

never appointed. 

A few commenters recommended that 

the process for assigning surrogate 

parents within the 30-day timeframe be 

developed in collaboration with judges 

and other child advocates. Some 

commenters recommended that the 

regulations require the involvement of 

child welfare agencies, homeless 

liaisons, and any other party who has 

knowledge about the needs of homeless 

children or children in foster care in 

determining whether a surrogate parent 

is needed. 

Discussion: It is not necessary to 

amend the regulations in the manner 

recommended by the commenters. To 

ensure that the rights of children with 

disabilities are protected, § 300.519(b) 

requires public agencies to have a 

method for determining whether a child 

needs a surrogate parent and for 

assigning a surrogate parent to a child. 

Such methods would include 

determining whether a court has already 

appointed a surrogate parent, as 

provided under § 300.519(c). Therefore, 

it is unnecessary to add language 

requiring LEAs to appoint a surrogate 

parent unless the juvenile court has 

already appointed one, as requested by 

a commenter. Section 300.519(d)(1) 

allows a public agency to select a 

surrogate parent in any way permitted 


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under State law, and § 300.519(h) 

requires the SEA to make reasonable 

efforts to ensure the assignment of a 

surrogate parent not more than 30 days 

after a public agency determines that the 

child needs a surrogate parent. 

We believe that the determination of 

whether public agencies collaborate 

with other parties, such as child welfare 

agencies or homeless liaisons, in 

appointing surrogate parents is best left 

to State discretion. There is nothing in 

the Act that would prohibit a public 

agency from collaborating with judges 

and child advocates in establishing a 

process for assigning surrogate parents, 

as recommended by the commenter. 

However, in situations where a public 

agency involves other parties in 

determining whether a surrogate parent 

is needed, the public agency must 

ensure that the confidentiality of 

personally identifiable data, 

information, and records collected or 

maintained by SEAs and LEAs is 

protected in accordance with §§ 300.610 

through 300.627, and that the privacy of 

education records is protected under 

FERPA and its implementing 

regulations in 34 CFR part 99. 

Changes: None. 

Comment: One commenter 

recommended retaining current 

§ 300.370(b)(2), which specifically 

mentions the recruitment and training 

of surrogate parents as a State-level 

activity for which funds provided under 

Part B of the Act may be used. One 

commenter requested clarification as to 

who should provide training for 

surrogate parents. A few commenters 

recommended that PTIs in each State be 

responsible for training surrogate 

parents. 

Discussion: It is not necessary to 

retain current § 300.370(b)(2) in order to 

permit the continued use of funds 

provided under Part B of the Act for the 

recruitment and training of surrogate 

parents. Section 300.704(b) and section 

611(e)(2)(C)(i) of the Act provide that 

funds reserved for other State-level 

activities may be used for support and 

direct services, including technical 

assistance, personnel preparation, and 

professional development and training. 

This would include the recruitment and 

training of surrogate parents. 

Determinations regarding who should 

conduct the training for surrogate 

parents are best left to the discretion of 

State and local officials. There is 

nothing in the Act or these regulations 

that requires or prohibits surrogate 

parent training to be conducted by PTIs. 

Changes: None. 

Comment: A few commenters 

recommended that a child have the 

same surrogate parent for each IEP Team 

meeting, eligibility meeting, and other 

meetings in which a parent’s presence is 

requested by the public agency. 

Discussion: The Act and these 

regulations do not address the length of 

time that a surrogate parent must serve. 

Nor do we believe that it would be 

appropriate to impose a uniform rule in 

light of the wide variety of 

circumstances that might arise related to 

a child’s need for a surrogate parent. 

Even so, to minimize disruption for the 

child, public agencies should take steps 

to ensure that the individual appointed 

as a surrogate parent can serve in that 

capacity over the period of time that the 

child needs a surrogate. 

Changes: None. 

Wards of the State (§ 300.519(c)) 

Comment: Many commenters stated 

that the requirements for a surrogate 

parent for public wards of the State 

(when a judge overseeing a case 

appoints a surrogate parent) are less 

stringent than the requirements for 

surrogate parents for other children. The 

commenters stated that the 

requirements that surrogate parents 

have no personal or professional interest 

that conflicts with the interest of the 

child, and have knowledge and skills 

that ensure adequate representation of 

the child, as required in 

§ 300.519(d)(2)(ii) and (iii), respectively, 

should be required for surrogate parents 

for children who are wards of the State. 

One commenter recommended that 

court-appointed surrogate parents 

should have to meet Federal 

requirements for surrogate parents, not 

the requirements promulgated by LEAs. 

The commenter stated that courts may 

have jurisdiction over cases from more 

than one school district and should not 

have to apply different standards 

depending on which school district is 

involved. 

Discussion: The criteria for selecting 

surrogate parents in § 300.519(d)(2)(ii) 

and (iii), which apply to surrogate 

parents appointed by a public agency 

for children with disabilities under Part 

B of the Act, do not apply to the 

selection of surrogate parents for 

children who are wards of the State 

under the laws of the State. Section 

615(b)(2)(A)(i) of the Act provides that, 

in the case of a child who is a ward of 

the State, a surrogate parent may 

alternatively be appointed by the judge 

overseeing the child’s care, provided 

that the surrogate parent is not an 

employee of the SEA, the LEA, or any 

other agency that is involved in the 

education or care of the child. We 

decline to impose additional 

requirements for surrogate parents for 

children who are wards of the State 

beyond what is required in the Act, so 

as to interfere as little as possible with 

State practice in appointing individuals 

to act for the child. However, we would 

expect that in most situations, the courtappointed individuals will not have 

personal or professional interests that 

conflict with the interests of the child 

and will have the knowledge and skills 

to adequately represent the interests of 

the child. 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

clarify that if a parent under § 300.30 is 

known and the child is a ward of the 

State, the public agency must appoint a 

surrogate parent only if the public 

agency determines that a surrogate 

parent is needed to protect the 

educational interests of the child. The 

commenter stated that the public agency 

should not appoint a surrogate parent 

without approval of a court of 

competent jurisdiction if the parent is 

the biological or adoptive parent whose 

rights to make educational decisions for 

the child have not been terminated, 

suspended, or limited. 

Discussion: The commenters’ concern 

is already addressed in the regulations. 

Section 300.30(b)(1) provides that when 

there is more than one party attempting 

to act as a parent, the biological or 

adoptive parent must be presumed to be 

the parent, unless the biological or 

adoptive parent does not have legal 

authority to make educational decisions 

for the child. 

Changes: None. 

Comment: Some commenters noted 

that the regulations do not protect a 

child who is a ward of the tribe in the 

same manner as a child who is a ward 

of the State. The commenters stated that 

this means that American Indian 

children have less protection than 

children of other ethnicities and 

recommended that the regulations 

clarify that wards of the State include 

children who are wards of a tribe of 

competent jurisdiction. 

Discussion: The definition of State in 

new § 300.40 (proposed § 300.39) is 

based on section 602(31) of the Act, 

which does not include an Indian tribe 

or tribal governing body. Therefore, the 

Department does not have the authority 

to interpret ward of the State to include 

children who are wards of a tribe of 

competent jurisdiction. However this 

does not relieve States or the BIA of 

their responsibility to ensure that the 

rights of a child who is a ward of a tribe 

are protected through the appointment 

of a surrogate parent under § 300.519 

when no parent can be identified; when 

the agency cannot, after reasonable 

efforts, locate a parent; or when the 


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child is an unaccompanied homeless 

youth. 

Changes: None. 

Criteria for Selection of Surrogates 

(§ 300.519(d)) 

Comment: Many commenters 

recommended that the regulations 

require public agencies to develop 

procedures to terminate the 

appointment of a surrogate parent if the 

person does not perform the duties of a 

surrogate parent. The commenters stated 

that such procedures should be 

developed in collaboration with the 

child welfare agency, as well as any 

other party knowledgeable about a 

child’s need for surrogate assignments, 

including homeless liaisons, courtappointed special advocates, guardians 

ad litem, attorneys, or judges. 

Discussion: If a public agency learns 

that an individual appointed as a 

surrogate parent is not carrying out the 

responsibilities of a surrogate parent in 

§ 300.519(g), the public agency, 

consistent with its obligation to protect 

the rights of children with disabilities 

under the circumstances set out in 

§ 300.519(a), would need to take steps to 

terminate the appointment of a 

surrogate parent. It is up to each State 

to determine whether procedures to 

terminate surrogate parents are needed 

and whether to collaborate with other 

agencies as part of any procedures they 

may choose to develop. 

Changes: None. 

Comment: A few commenters stated 

that the regulations should specify that 

an LEA cannot replace a surrogate 

parent simply because the surrogate 

parent disagrees with an LEA. 

Discussion: As noted in the response 

to the prior comment, public agencies 

have a responsibility to ensure that a 

surrogate parent is carrying out their 

responsibilities, so there are some 

circumstances when removal may be 

appropriate. A mere disagreement with 

the decisions of a surrogate parent about 

appropriate services or placements for 

the child, however, generally would not 

be sufficient to give rise to a removal, 

as the role of the surrogate parent is to 

represent the interests of the child, 

which may not be the same as the 

interests of the public agency. We do 

not think a regulation is necessary, 

however, as we believe that the rights of 

the child with a disability are 

adequately protected under Section 504 

of the Rehabilitation Act (Section 504) 

and Title II of the Americans with 

Disabilities Act (Title II), which prohibit 

retaliation or coercion against any 

individual who exercises their rights 

under Federal law for the purpose of 

assisting children with disabilities by 

protecting rights protected under those 

statutes. See, 34 CFR 104.61, referencing 

34 CFR 100.7(e); 28 CFR 35.134. These 

statutes generally prohibit 

discrimination against individuals on 

the basis of disability by recipients of 

Federal financial assistance (Section 

504) and prohibit discrimination against 

individuals on the basis of disability by 

State and local governments (Title II). 

Changes: None. 

Non-Employee Requirement; 

Compensation (§ 300.519(e)) 

Comment: A few commenters 

recommended that the regulations state 

that a foster parent is not prohibited 

from serving as a surrogate parent for a 

child solely because the foster parent is 

an employee of the SEA, LEA, or other 

agency that is involved in the education 

or care of the child. 

Discussion: A child with a foster 

parent who is considered a parent, as 

defined in § 300.30(a), does not need a 

surrogate parent unless State law, 

regulations, or contractual obligations 

with a State or local entity prohibit a 

foster parent from acting as a parent, 

consistent with § 300.30(a)(2). 

Therefore, there is no need to change 

the regulations in the manner suggested 

by the commenters. 

Changes: None. 

Unaccompanied Homeless Youth 

(§ 300.519(f)) 

Comment: A few commenters 

requested clarification on how long the 

appointment should be for a temporary 

surrogate for an unaccompanied 

homeless youth. A few commenters also 

requested clarification on how the 

conflict of interest, and knowledge and 

skills requirements for surrogate parents 

apply to temporary surrogate parents for 

unaccompanied homeless youth. 

Discussion: Section 300.519(f) allows 

LEAs to appoint a temporary surrogate 

parent for a child who is an 

unaccompanied homeless youth, 

without regard to the requirement in 

§ 300.519(d)(2)(i) that a surrogate parent 

not be an employee of any agency 

involved in the education or care of the 

child. Thus, a temporary surrogate 

parent for an unaccompanied homeless 

youth may include State, LEA, or 

agency staff that is involved in the 

education or care of the child. 

The Act does not specify how long a 

temporary surrogate parent can 

represent the child. Nor do we believe 

it is necessary or appropriate to specify 

a time limit for a temporary surrogate 

parent, as the need for a temporary 

surrogate parent will vary depending on 

the specific circumstances and unique 

problems faced by each unaccompanied 

homeless youth. 

Section 300.519(f) specifically allows 

the appointment of a temporary 

surrogate parent without regard to the 

non-employee requirements in 

§ 300.519(d)(2)(i). There are no similar 

exceptions for the requirements in 

§ 300.519(d)(2)(ii) and (iii). Therefore, 

temporary surrogate parents for 

unaccompanied homeless youth must 

not have a personal or professional 

interest that conflicts with the interest 

of the child the surrogate parent 

represents, and must have the 

knowledge and skills that ensure 

adequate representation of the child, 

consistent with § 300.519(d)(2)(ii) and 

(iii), respectively. 

Changes: None. 

Surrogate Parent Responsibilities 

(§ 300.519(g)) 

Comment: A few commenters 

requested a definition of ‘‘surrogate 

parent.’’ Some commenters stated that 

§ 300.519(g) provides only general 

parameters regarding the 

responsibilities of surrogate parents and 

does not provide guidance on specific 

duties or responsibilities of surrogate 

parents. The commenters stated that, at 

a minimum, the regulations should 

require that States develop duties and 

responsibilities for surrogate parents, 

such as meeting with the child, 

participating in meetings, and reviewing 

the child’s education record. 

Discussion: We do not believe that it 

is necessary to define ‘‘surrogate parent’’

because § 300.519(g), consistent with 

section 615(b)(2) of the Act, clarifies 

that a surrogate parent is an individual 

who represents the child in all matters 

related to the identification, evaluation, 

and educational placement of the child, 

and the provision of FAPE to the child. 

This is a longstanding provision and is 

intended to describe the areas in which 

a surrogate parent may represent the 

child. 

We believe that the provisions in 

§ 300.519 are sufficient to ensure that 

public agencies fulfill their obligation to 

ensure that the rights of children are 

protected in the circumstances in 

§ 300.519(a). Therefore, we believe it is 

unnecessary, and would be over 

regulating, to specify in these 

regulations requirements for surrogate 

parents to meet and get to know the 

child prior to meetings, as 

recommended by one commenter. 

Likewise, we do not believe that it is 

necessary to require public agencies to 

develop specific duties and 

responsibilities for surrogate parents 

because public agencies already must 

ensure that a surrogate parent has the 


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knowledge and skills that ensure 

adequate representation of the child, 

consistent with § 300.519(d). However, 

if a public agency determined there was 

a need to specify the duties and 

responsibilities for surrogate parents, 

there is nothing in the Act or these 

regulations that would prohibit them 

from doing so. 

Changes: None. 

SEA Responsibility (§ 300.519(h)) 

Comment: Some commenters 

recommended requiring LEAs to report 

to the SEA when a child needs a 

surrogate parent so that the SEA can 

fulfill its obligation to ensure that 

surrogate parents are assigned within 

the 30-day timeframe required in 

§ 300.519(h). Some commenters 

requested clarification regarding what it 

means for the SEA to make ‘‘reasonable 

efforts’’ to appoint surrogate parents 

within the 30-day timeframe. The 

commenters recommended that SEAs 

track whether LEAs or courts appoint 

surrogate parents in a timely manner 

and provide technical assistance to 

LEAs and courts that fail to meet the 30- 

day timeframe. 

Some commenters stated that LEAs 

spend too much time determining that 

a surrogate parent is needed and 

prolong the decision that a surrogate 

parent is needed until the LEA is ready 

to appoint the surrogate parent. One 

commenter stated that children in 

residential care facilities often have an 

immediate need for a surrogate parent 

and waiting 30 days to appoint a 

surrogate parent could cause lasting 

damage to a child. 

Discussion: It would be overregulating to specify the specific 

‘‘reasonable efforts’’ that a State must 

take to ensure that a surrogate parent is 

appointed within the 30-day timeframe 

required in § 300.519(h), because what 

is considered a ‘‘reasonable effort’’ will 

vary on a case-by-case basis. We do not 

believe we should require LEAs to 

report to the State when a child in their 

district needs a surrogate parent or to 

require SEAs to track how long it takes 

LEAs and courts to appoint surrogate 

parents because to do so would be 

unnecessarily burdensome. States have 

the discretion to determine how best to 

monitor the timely appointment of 

surrogate parents by their LEAs. States 

also have discretion to use funds 

reserved for other State-level activities 

to provide technical assistance to LEAs 

and courts that fail to meet the 30-day 

timeframe, as requested by the 

commenters. 

Under their general supervisory 

authority, States have responsibility for 

ensuring that LEAs appoint surrogate 

parents for children who need them, 

consistent with the requirements in 

§ 300.519 and section 615(b)(2) of the 

Act. Therefore, if an LEA consistently 

fails to meet the 30-day timeframe or 

unnecessarily delays the appointment of 

a surrogate parent, the State is 

responsible for ensuring that measures 

are taken to remedy the situation. 

Changes: None. 

Transfer of Rights at Age of Majority 

(§ 300.520) 

Comment: A few commenters 

recommended clarifying § 300.520(a)(2) 

to mean that all rights transfer to 

children who have reached the age of 

majority under State law. 

Discussion: To change the regulation 

in the manner suggested by the 

commenters would be inconsistent with 

the Act. Section 615(m)(1)(D) of the Act 

allows, but does not require, a State to 

transfer all rights accorded to parents 

under Part B of the Act to children who 

are incarcerated in an adult or juvenile, 

State or local correctional institution 

when a child with a disability reaches 

the age of majority under State law. 

Changes: None. 

Comment: A few commenters stated 

that families are often unaware of the 

transfer of rights at the age of majority 

and recommended requiring schools to 

inform parents and students in writing 

of the transfer of rights one year prior 

to the day the student reaches the age 

of majority. 

Discussion: The commenters’

concerns are addressed elsewhere in the 

regulations. Section 300.320(c), 

consistent with section 

614(d)(1)(A)(VIII)(cc) of the Act, 

requires that, beginning not later than 

one year before the child reaches the age 

of majority under State law, the IEP 

must include a statement that the child 

has been informed of the child’s rights 

under Part B of the Act, if any, that will 

transfer to the child on reaching the age 

of majority. Section 300.322(f) 

(proposed § 300.322(e)) requires the 

public agency to give a copy of the 

child’s IEP to the parent, and, therefore, 

parents are informed as well. 

Changes: None. 

Comment: One commenter 

recommended that the regulations allow 

parents to continue to serve as the 

decision-maker and to retain the rights 

under the Act even in situations where 

the child is not determined to be 

incompetent under State law, if the 

student and parent agree in writing that 

the parent retains such rights. The 

commenter stated that a State may not 

have a mechanism to determine that the 

child does not have the ability to 

provide informed consent, as required 

in § 300.520(b), and if a State does have 

such a mechanism, it may be costly and 

time consuming for a parent to go to 

court to retain such rights. The 

commenter stated that an agreement 

between the parent and student should 

be a simple process whereby the student 

and parent both sign a form stating their 

agreement. 

Discussion: Section 300.520(b) 

recognizes that some States have 

mechanisms to determine that a child 

with a disability who has reached the 

age of majority under State law does not 

have the ability to provide informed 

consent with respect to his or her 

educational program, even though the 

child has not been determined 

incompetent under State law. In such 

States, the State must establish 

procedures for appointing the parent 

(or, if the parent is not available, 

another appropriate individual) to 

represent the educational interests of 

the child throughout the remainder of 

the child’s eligibility under Part B of the 

Act. Whether parents may retain the 

ability to make educational decisions for 

a child who has reached the age of 

majority and who can provide informed 

consent is a matter of State laws 

regarding competency. That is, the child 

may be able to grant the parent a power 

of attorney or similar grant of authority 

to act on the child’s behalf under 

applicable State law. We believe that the 

rights accorded individuals at the age of 

majority, beyond those addressed in the 

regulation, are properly matters for 

States to control. 

To ensure that this provision is clear, 

we are making minor changes to the 

language. These changes are not 

intended to change the meaning of 

§ 300.520(b) from the meaning in 

current § 300.517(b). 

Changes: We have changed 

§ 300.520(b) for clarity. 

Discipline Procedures (§§ 300.530 

through 300.536) 

Authority of School Personnel 

(§ 300.530) 

Case-by-Case Determination 

(§ 300.530(a)) 

Comment: Many commenters 

requested clarifying the phrase 

‘‘consider any unique circumstances on 

a case-by-case basis’’ in § 300.530(a) and 

what, if any, unique circumstances 

should be considered. A few of these 

commenters requested that the 

regulations include specific criteria to 

be used when making a case-by-case 

determination. Other commenters 

suggested clarifying that the purpose of 

a case-by-case determination is to not 

allow school personnel to remove a 


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child to an interim alternative 

educational setting for violating a code 

of student conduct when to do so would 

seem unjust under the circumstances. 

Some commenters suggested clarifying 

that the purpose of a case-by-case 

determination is to limit, not expand, 

disciplinary actions for a child with a 

disability. One commenter expressed 

concern that permitting school 

personnel to consider any unique 

circumstances on a case-by-case basis 

when determining a change in 

placement may result in schools 

applying this provision to cases for 

which it was not intended, potentially 

resulting in a denial of FAPE. Other 

commenters requested clarifying that a 

child’s disciplinary history, ability to 

understand consequences, and 

expression of remorse should be factors 

considered when making a case-by-case 

determination. A few commenters 

requested school personnel document 

any supports provided to a child with 

a disability prior to the child’s violation 

of a code of student behavior when 

making a case-by-case determination. 

Discussion: We believe that the 

regulations do not need to be amended 

to clarify ‘‘consider any unique 

circumstances on a case-by-case basis’’

because what constitutes ‘‘unique 

circumstances’’ is best determined at the 

local level by school personnel who 

know the individual child and all the 

facts and circumstances regarding a 

child’s behavior. We believe it would 

impede efforts of school personnel 

responsible for making a determination 

as to whether a change in placement for 

disciplinary purposes is appropriate for 

a child if the Department attempted to 

restrict or limit the interpretation of 

‘‘consider any unique circumstances on 

a case-by-case-basis.’’ Factors such as a 

child’s disciplinary history, ability to 

understand consequences, expression of 

remorse, and supports provided to a 

child with a disability prior to the 

violation of a school code could be 

unique circumstances considered by 

school personnel when determining 

whether a disciplinary change in 

placement is appropriate for a child 

with a disability. We believe providing 

school personnel the flexibility to 

consider whether a change in placement 

is appropriate for a child with a 

disability on a case-by-case basis and to 

determine what unique circumstances 

should be considered regarding a child 

who violates a code of conduct, as 

provided for under section 615(k)(1)(A) 

of the Act, will limit the inappropriate 

removal of a child with a disability from 

his or her current placement to an 

interim alternative educational setting, 

another setting, or suspension. We also 

decline the commenters’ suggestion to 

regulate further about the case-by-case 

determination in light of the discretion 

granted under the Act to school 

personnel in making this determination. 

Changes: None. 

Comment: Several commenters 

expressed concern that § 300.530(a) 

could be used to justify ignoring a 

manifestation determination when 

determining whether a change in 

placement is appropriate for a child. 

These commenters stated that the 

authority of school personnel to 

consider any unique circumstances on a 

case-by-case basis could be used to 

usurp the authority of the group making 

the manifestation determination and the 

IEP Team. Some commenters 

recommended removing the phrase 

‘‘consistent with the requirements of 

this section’’ in § 300.530(a) because it 

is not included in the Act and limits the 

individualized disciplinary options that 

might arise under this authority. 

Discussion: Section 300.530(a), 

consistent with section 615(k)(1)(A) of 

the Act, clarifies that, on a case-by-case 

basis, school personnel may consider 

whether a change in placement, that is 

otherwise permitted under the 

disciplinary procedures, is appropriate 

and should occur. It does not 

independently authorize school 

personnel, on a case-by-case basis, to 

institute a change in placement that 

would be inconsistent with § 300.530(b) 

through (i), including the requirement 

in paragraph (e) of this section regarding 

manifestation determinations. We are 

revising § 300.530(a) to clarify that any 

consideration regarding a change in 

placement under paragraph (a) of this 

section must be consistent with all other 

requirements in § 300.530. 

Changes: We have revised 

§ 300.530(a) to refer to the other 

requirements of § 300.530. 

Comment: One commenter 

recommended changing § 300.530(a) to 

include the role of the IEP Team when 

determining whether a change in 

placement is appropriate for a child 

with a disability who violates a code of 

student conduct. 

Discussion: We believe § 300.530(a), 

which follows the language in section 

615(k)(1)(A) of the Act, appropriately 

gives school personnel the authority to 

determine, on a case-by-case basis, 

whether a change in placement that is 

consistent with the other requirements 

of § 300.530, would be appropriate for a 

child with a disability who violates a 

code of student conduct and, therefore, 

we do not believe it is appropriate to 

define a role for the IEP Team in this 

paragraph. There is nothing, however, 

in the Act or these regulations that 

would preclude school personnel from 

involving parents or the IEP Team in 

making this determination. 

Changes: None. 

Comment: Some commenters 

requested clarifying who constitute 

‘‘school personnel’’ as used in 

§ 300.530(a). 

Discussion: We do not believe it is 

necessary or appropriate to clarify in 

these regulations the ‘‘school 

personnel’’ that may consider whether a 

change in placement for disciplinary 

reasons is appropriate for a child 

because such decisions are best made at 

the local school or district level and 

based on the circumstances of each 

disciplinary case. 

Changes: None. 

Comment: Several commenters 

requested that the regulations clarify the 

meaning of ‘‘violates a code of student 

conduct.’’ The commenters expressed 

concern that school personnel could use 

any minor infraction to remove a child. 

Discussion: Local school personnel 

have the necessary authority to protect 

the safety and well-being of all children 

in their school and, therefore, are in the 

best position to determine a code of 

student conduct that is uniform and fair 

for all children in their school. We, 

therefore, do not believe it is necessary 

or appropriate to clarify in § 300.530(a) 

the meaning of ‘‘violates a code of 

student conduct.’’

Changes: None. 

General (§ 300.530(b)) 

Comment: Several commenters 

requested removing ‘‘consecutive’’ from 

§§ 300.530 and 300.536 because there is 

no reference to consecutive school days 

in the Act. 

Discussion: We are not removing 

‘‘consecutive’’ from §§ 300.530 through 

300.536, as recommended by the 

commenters, because the Department 

has long interpreted the Act to permit 

children with disabilities who violate a 

code of student conduct to be removed 

from their current educational 

placement for not more than 10 

consecutive school days at a time, and 

that additional removals of 10 

consecutive school days or less in the 

same school year would be possible, as 

long as any removal does not constitute 

a change in placement. We do not 

believe the changes to section 615(k) of 

the Act justify any change in this 

position. Further, the Department’s 

position is consistent with S. Rpt. No. 

108–185, p. 43, which states that ‘‘a 

school may order a change in placement 

for a child who violates a code of 

student conduct to an appropriate 

interim educational setting, another 


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setting, or suspension, for 10 

consecutive school days or less, to the 

same extent that it would apply such a 

discipline measure to a child without a 

disability.’’

Changes: None. 

Comment: One commenter 

recommended replacing ‘‘school days’’

with ‘‘calendar days’’ in § 300.530 

because using ‘‘school days’’ in the 

regulations might create a disincentive 

for school personnel to find solutions 

and develop an appropriate IEP in a 

timely manner. 

Discussion: Section 615(k)(1)(B) of the 

Act clearly states that school personnel 

may remove a child with a disability 

who violates a code of student conduct 

from their current placement to an 

appropriate alternative education 

setting, other setting, or suspension, for 

not more than 10 ‘‘school days;’’

therefore, it would be inconsistent with 

section 615(k)(1)(B) of the Act to change 

‘‘school days’’ to ‘‘calendar days’’ as 

suggested by the commenter. 

Changes: None. 

Comment: One commenter requested 

that § 300.530 and all sections that 

pertain to discipline stipulate that 

children with disabilities must not be 

disciplined more severely than nondisabled children and disciplinary 

measures applied to them must not be 

longer in duration than those applied to 

non-disabled students. 

Discussion: We do not believe that it 

is necessary to change the regulations to 

state that children with disabilities must 

not be disciplined more severely than 

non-disabled children because 

§ 300.530(b)(1), consistent with section 

615(k)(1)(B) of the Act, is sufficiently 

clear that disciplinary measures are to 

be applied to children with disabilities 

to the extent they are applied to 

children without disabilities. Further, 

the manifestation determination 

provision in paragraph (e) of this 

section, and the right of a parent to 

request an expedited due process 

hearing in § 300.532, regarding the 

disciplinary placement or manifestation 

determination, are sufficient to ensure 

that schools implement disciplinary 

policies that provide for a uniform and 

fair way of disciplining children with 

disabilities in line with the discipline 

expectations for non-disabled students. 

A primary intent of Congress in revising 

section 615(k) of the Act was to provide 

for a uniform and fair way of 

disciplining all children—both for those 

children with disabilities and those 

children without disabilities. (S. Rpt. 

No. 108–185, p. 43; H. Rpt. No. 108–77, 

pp. 116–119). 

Changes: None. 

Comment: A few commenters 

requested clarifying the Department’s 

basis for the general authority of school 

personnel to remove a child with a 

disability for up to 10 consecutive 

school days, so as not to preclude 

subsequent short-term removals in the 

same school year. Many commenters 

expressed concern that permitting 

subsequent removals of up to 10 

consecutive school days in the same 

school year could be misapplied and 

result in a denial of services. Several 

commenters stated that § 300.530 is not 

clear as to whether students who are 

removed for more than 10 school days 

in a school year must continue to 

receive services. 

Discussion: The Department has long 

interpreted the Act to permit schools to 

remove a child with a disability who 

violates a code of student conduct from 

his or her current placement for not 

more than 10 consecutive school days, 

and that additional removals of 10 

consecutive school days or less in the 

same school year would be possible, as 

long as those removals do not constitute 

a change in placement. The 

requirements in § 300.530(b) do not 

permit using repeated disciplinary 

removals of 10 school days or less as a 

means of avoiding the change in 

placement options in § 300.536. We 

believe it is important for purposes of 

school safety and order to preserve the 

authority that school personnel have to 

be able to remove a child for a 

discipline infraction for a short period 

of time, even though the child already 

may have been removed for more than 

10 school days in that school year, as 

long as the pattern of removals does not 

itself constitute a change in placement 

of the child. 

On the other hand, discipline must 

not be used as a means of disconnecting 

a child with a disability from education. 

Section 300.530(d) clarifies, in general, 

that the child must continue to receive 

educational services so that the child 

can continue to participate in the 

general curriculum (although in another 

setting), and progress toward meeting 

the goals in the child’s IEP. 

Changes: None. 

Comment: Several commenters 

recommended retaining the 

Department’s long term policy that an 

in-school suspension would not be 

considered a part of the days of 

suspension as long as the child is 

afforded the opportunity to continue to 

appropriately progress in the general 

curriculum, continue to receive services 

specified on the child’s IEP, and 

continue to participate with 

nondisabled children to the extent they 

would have in their current placement. 

Other commenters recommended 

including in the regulations the 

commentary from the March 12, 1999 

Federal Register (64 FR 12619) 

regarding whether an in-school 

suspension or a bus suspension 

constitutes a day of removal. 

Discussion: It has been the 

Department’s long term policy that an 

in-school suspension would not be 

considered a part of the days of 

suspension addressed in § 300.530 as 

long as the child is afforded the 

opportunity to continue to appropriately 

participate in the general curriculum, 

continue to receive the services 

specified on the child’s IEP, and 

continue to participate with 

nondisabled children to the extent they 

would have in their current placement. 

This continues to be our policy. 

Portions of a school day that a child had 

been suspended may be considered as a 

removal in regard to determining 

whether there is a pattern of removals 

as defined in § 300.536. 

Whether a bus suspension would 

count as a day of suspension would 

depend on whether the bus 

transportation is a part of the child’s 

IEP. If the bus transportation were a part 

of the child’s IEP, a bus suspension 

would be treated as a suspension under 

§ 300.530 unless the public agency 

provides the bus service in some other 

way, because that transportation is 

necessary for the child to obtain access 

to the location where services will be 

delivered. If the bus transportation is 

not a part of the child’s IEP, a bus 

suspension is not a suspension under 

§ 300.530. In those cases, the child and 

the child’s parent have the same 

obligations to get the child to and from 

school as a nondisabled child who has 

been suspended from the bus. However, 

public agencies should consider 

whether the behavior on the bus is 

similar to behavior in a classroom that 

is addressed in an IEP and whether the 

child’s behavior on the bus should be 

addressed in the IEP or a behavioral 

intervention plan for the child. 

Because the determination as to 

whether an in-school suspension or bus 

suspension counts as a day of 

suspension under § 300.530 depends on 

the unique circumstances of each case, 

we do not believe that we should 

include these policies in our 

regulations. 

Changes: None. 

Services (§ 300.530(d)) 

Comment: Many commenters 

expressed concern that the change from 

‘‘continue to progress in the general 

curriculum’’ in current § 300.522(b)(1) 

to ‘‘continue to participate in the 


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general education curriculum’’ in 

§ 300.530(d)(1)(i) is a lower standard. 

They requested that we use the language 

from current § 300.522(b)(1). 

Discussion: Section 615(k)(1)(D)(i) of 

the Act and § 300.530(d)(1) provide that 

a child must continue to receive 

educational services so as to enable the 

child ‘‘to continue to participate in the 

general educational curriculum, 

although in another setting, and to 

progress toward meeting the goals set 

out in the child’s IEP.’’ We believe that 

using the statutory language in the 

regulation is appropriate because the 

Act specifically uses different language 

to describe a child’s relationship to the 

general education curriculum in periods 

of removal for disciplinary reasons than 

for services under the child’s regular IEP 

in section 614(d)(1)(A)(i)(IV) of the Act. 

Based on this difference, we decline to 

make the change requested. 

We caution that we do not interpret 

‘‘participate’’ to mean that a school or 

district must replicate every aspect of 

the services that a child would receive 

if in his or her normal classroom. For 

example, it would not generally be 

feasible for a child removed for 

disciplinary reasons to receive every 

aspect of the services that a child would 

receive if in his or her chemistry or auto 

mechanics classroom as these classes 

generally are taught using a hands-on 

component or specialized equipment or 

facilities. 

Changes: None. 

Comment: Many commenters 

recommended § 300.530(d) clarify that 

children with disabilities who violate a 

code of student conduct and are 

removed from their current placement 

to an interim alternative educational 

setting or another setting, or are 

suspended, are entitled to FAPE in 

accordance with section 612(a)(1) of the 

Act. Several commenters recommended 

revising § 300.530(d)(1)(i) to explicitly 

state that the educational services 

provided to a child removed for 

disciplinary reasons must include all 

the special education services, related 

services, supplementary aids and 

services, and accommodations required 

by the child’s IEP to ensure the child 

receives FAPE. Many commenters 

requested that the regulations clarify 

that LEAs must continue to implement 

a child’s IEP as written, including 

related services, while the child is in an 

interim alternative educational setting. 

Discussion: Section 612(a)(1)(A) of the 

Act provides that FAPE must be made 

available to all children with disabilities 

ages 3 through 21, inclusive, including 

children with disabilities who have 

been suspended or expelled from 

school. Further, section 615(k)(1)(D)(i) 

of the Act provides that if school 

personnel seek to order a change in 

placement of a child with a disability 

who violates a code of student conduct, 

the child must continue to receive 

education services (as provided in 

section 612(a)(1) of the Act) so as to 

enable him or her to continue to 

participate in the general curriculum, 

although in another setting (which 

includes an interim alternative 

education setting), and to progress 

toward meeting the goals set out in the 

child’s IEP. In other words, while 

children with disabilities removed for 

more than 10 school days in a school 

year for disciplinary reasons must 

continue to receive FAPE, we believe 

the Act modifies the concept of FAPE in 

these circumstances to encompass those 

services necessary to enable the child to 

continue to participate in the general 

curriculum, and to progress toward 

meeting the goals set out in the child’s 

IEP. An LEA is not required to provide 

children suspended for more than 10 

school days in a school year for 

disciplinary reasons, exactly the same 

services in exactly the same settings as 

they were receiving prior to the 

imposition of discipline. However, the 

special education and related services 

the child does receive must enable the 

child to continue to participate in the 

general curriculum, and to progress 

toward meeting the goals set out in the 

child’s IEP. 

Section 300.530(d) clarifies that 

decisions regarding the extent to which 

services would need to be provided and 

the amount of services that would be 

necessary to enable a child with a 

disability to appropriately participate in 

the general curriculum and progress 

toward achieving the goals on the 

child’s IEP may be different if the child 

is removed from his or her regular 

placement for a short period of time. For 

example, a child who is removed for a 

short period of time and who is 

performing at grade level may not need 

the same kind and amount of services to 

meet this standard as a child who is 

removed from his or her regular 

placement for 45 days under 

§ 300.530(g) or § 300.532 and not 

performing at grade level. 

We believe it is reasonable for school 

personnel (if the child is to be removed 

for more than 10 school days in the 

same school year and not considered a 

change in placement) and the IEP Team 

(if the child’s removal is a change in 

placement under § 300.536 and not a 

manifestation of the child’s disability or 

a removal pursuant to § 300.530(g)) to 

make informed educational decisions 

about the extent to which services must 

be provided for a child with a disability 

placed in an interim alternative 

educational setting, another setting, or 

suspension to enable the child to 

participate in the general education 

curriculum and make progress toward 

the goals of the child’s IEP. 

As stated above, we read the Act as 

modifying the concept of FAPE in 

circumstances where a child is removed 

from his or her current placement for 

disciplinary reasons. Specifically, we 

interpret section 615(k)(1)(D)(i) of the 

Act to require that the special education 

and related services that are necessary 

to enable the child to continue to 

participate in the general education 

curriculum and to progress toward 

meeting the goals set out in the child’s 

IEP, must be provided at public 

expense, under public supervision and 

direction, and, to the extent appropriate 

to the circumstances, be provided in 

conformity with the child’s IEP. We, 

therefore, believe § 300.530(d)(1) should 

be amended to be consistent with the 

Act by adding the reference to the FAPE 

requirements in § 300.101(a), and to 

ensure it is understood that the 

educational services provided to a child 

removed for disciplinary reasons are 

consistent with the FAPE requirements 

in section 612(a)(1) of the Act. 

We are making additional technical 

changes to paragraph (d)(1) to eliminate 

cross-references, where appropriate, and 

to provide greater clarity that children 

with disabilities removed for 

disciplinary reasons pursuant to 

paragraphs (c) and (g) of this section 

must continue to receive services and 

receive, as appropriate, a functional 

behavior assessment and behavior 

intervention services and modifications. 

We are, therefore, removing from 

paragraph (d)(1) of this section the 

phrase ‘‘except as provided in 

paragraphs (d)(3) and (d)(4)’’ and 

removing the reference to paragraph (b) 

of this section, which references the 

general authority for removing a child 

who violates a code of student conduct, 

as it is unnecessary. 

Changes: Section 300.530(d)(1)(i) has 

been amended to be consistent with 

section 615(k)(1)(D)(i) of the Act by 

cross-referencing the FAPE requirement 

in § 300.101(a). We have also revised 

paragraph (d)(1) by removing the 

reference to the exceptions for 

paragraph (d)(3) and (d)(4) of this 

section and removing the reference to 

paragraph (b) of this section. 

Comment: None. 

Discussion: In light of the changes 

made to proposed paragraph (d)(1) of 

this section by removing the phrase 

regarding the exceptions for paragraph 

(d)(3) and (d)(4) of this section, it is 

necessary to revise § 300.530(d)(2) to 


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accurately reflect when services may be 

provided in an interim alternative 

educational setting. 

Changes: We have modified 

§ 300.530(d)(2) to clarify that services 

required by paragraph (d)(1), (d)3), 

(d)(4), and (d)(5) of this section may be 

provided in an interim alternative 

educational setting. 

Comment: Several commenters stated 

that § 300.530(d)(3) is not clear and 

requested clarification as to whether 

children who are removed for more than 

10 school days in the same school year 

must continue to receive services. One 

commenter expressed concern that 

§ 300.530(d)(3), which clarifies that a 

public agency is only required to 

provide services to a child with a 

disability who is removed from his or 

her current placement for 10 school 

days or less in that school year if it 

provides services to a child without 

disabilities who is similarly removed, is 

unsupported by the Act and 

substantially undermines the rights 

afforded to children with disabilities 

removed from their current placement 

for disciplinary reasons. The commenter 

wanted this provision removed from the 

regulations. Other commenters 

requested clarifying the authority of 

school personnel with respect to the 

procedures in § 300.530(d)(3). 

Discussion: The Act and the 

regulations recognize that school 

officials need some reasonable degree of 

flexibility when disciplining children 

with disabilities who violate a code of 

student conduct. Interrupting a child’s 

participation in education for up to 10 

school days over the course of a school 

year, when necessary and appropriate to 

the circumstances, does not impose an 

unreasonable limitation on a child with 

a disability’s right to FAPE. Section 

300.530(d)(3) is consistent with section 

612(a)(1)(A) of the Act and current 

§ 300.121(d) and reflects the 

Department’s longstanding position that 

public agencies need not provide 

services to a child with a disability 

removed for 10 school days or less in a 

school year, as long as the public agency 

does not provide educational services to 

nondisabled children removed for the 

same amount of time. This position was 

affirmed by the Supreme Court in Honig 

v. Doe, 484 U.S. 305 (1988). We are 

amending § 300.530(d)(3) to replace 

‘‘need not’’ with ‘‘is only required to’’

for greater clarity. We also are amending 

paragraph (d)(3) of this section to write 

it in active voice and in the positive and 

removed the cross-reference to the 

general provision in paragraph (b) of 

this section, as it is not necessary. 

Changes: Technical changes have 

been made to § 300.530(d)(3) to remove 

the cross-reference to paragraph (b) of 

this section. We also amended this 

paragraph as stated above to provide 

greater clarity. 

Comment: Many commenters wanted 

us to remove the words ‘‘if any’’ from 

§ 300.530(d)(4). Several commenters 

thought that § 300.530(d)(4), which 

allows school personnel to determine 

the extent to which services are needed, 

‘‘if any,’’ gives public agencies the 

authority to deny special education 

services to students who have been 

suspended or expelled for more than 10 

school days in a school year. Other 

commenters also thought that including 

the phrase ‘‘if any’’ implies that special 

education services are not mandatory 

for a child who has been removed for 10 

or more non-consecutive days and do 

not constitute a change in placement. 

Discussion: We believe 

§ 300.530(d)(4) ensures that children 

with disabilities removed for brief 

periods of time receive appropriate 

services, while preserving the flexibility 

of school personnel to move quickly to 

remove a child when needed and 

determine how best to address the 

child’s needs. Paragraph (d)(4) of this 

section is not intended to imply that a 

public agency may deny educational 

services to children with disabilities 

who have been suspended or expelled 

for more than 10 school days in a school 

year, nor is § 300.530(d)(4) intended to 

always require the provision of services 

when a child is removed from school for 

just a few days in a school year. We 

believe the extent to which educational 

services need to be provided and the 

type of instruction to be provided would 

depend on the length of the removal, the 

extent to which the child has been 

removed previously, and the child’s 

needs and educational goals. For 

example, a child with a disability who 

is removed for only a few days and is 

performing near grade level would not 

likely need the same level of 

educational services as a child with a 

disability who has significant learning 

difficulties and is performing well 

below grade level. The Act is clear that 

the public agency must provide services 

to the extent necessary to enable the 

child to appropriately participate in the 

general curriculum and appropriately 

advance toward achieving the goals in 

the child’s IEP. 

We recognize the concern of the 

commenters that the phrase ‘‘if any’’

could imply that school personnel need 

not provide educational services to 

these children. Therefore, we are 

removing the phrase ‘‘if any’’ from 

paragraph (d)(4). For clarity, we are 

replacing the cross-reference to 

§ 300.530(d)(1) with the language from 

§ 300.530(d)(1)(i) and restructure the 

paragraph. 

Changes: The phrase ‘‘if any’’ has 

been removed from § 300.530(d)(4). For 

clarity, we have removed a cross 

reference in § 300.530(d)(4) and 

replaced it with the language from 

§ 300.530(d)(1)(i) and made technical 

edits to restructure the paragraph. 

Comment: One commenter questioned 

whether the ability of school personnel 

to remove a child from his or her 

current placement for disciplinary 

reasons means, if a child’s current 

placement is a special education 

classroom setting, school personnel may 

remove the child from special education 

services. 

Discussion: If the child’s current 

placement is a special education setting, 

the child could be removed from the 

special education setting to another 

setting for disciplinary reasons. 

Similarly, if the child with a disability 

who violated a school code of conduct 

receives services in a regular classroom, 

the child could be removed to an 

appropriate interim alternative 

educational setting, another setting, or 

suspension. Section 300.530(b), 

consistent with section 615(k)(1)(B) of 

the Act, provides that school personnel 

may remove a child with a disability 

who violates a code of student conduct 

from his or her current placement to an 

appropriate interim alternative 

educational setting, another setting, or 

suspension. However, § 300.530(d) is 

clear that the child who is removed for 

more than 10 school days in the same 

school year must continue to receive 

educational services, to enable the child 

to continue to participate in the general 

education curriculum, although in 

another setting, and to progress toward 

meeting the goals set out in his or her 

IEP. 

Changes: None. 

Comment: One commenter requested 

clarifying how many days a child with 

a disability may be placed in an interim 

alternative educational setting before 

the public agency must provide 

services. 

Discussion: School personnel may 

remove a child with a disability from 

his or her current placement to an 

interim alternative educational setting, 

another setting, or suspension for up to 

10 school days in the same school year 

without providing educational services. 

Beginning, however, on the eleventh 

cumulative day in a school year that a 

child with a disability is removed from 

the child’s current placement, and for 

any subsequent removals, educational 

services must be provided to the extent 

required in § 300.530(d), while the 

removal continues. 


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Changes: None. 

Comment: Numerous commenters 

recommended revising § 300.530(d)(4) 

to require that the parent be included in 

the consultation school personnel must 

have with at least one of the child’s 

teachers to determine the extent to 

which services are needed for a child 

with a disability who has been removed 

from his or her current placement for 

more than 10 school days (if the current 

removal is for not more than 10 

consecutive school days and is not a 

change in placement under § 300.536). 

Discussion: The provisions in 

§ 300.530(d)(4) only address the 

provision of services in those situations 

where a removal of a child with a 

disability from the child’s current 

placement is for a short period of time 

and the removal does not constitute a 

change in placement. In many instances, 

these short-term removals are for one or 

two days. We believe that, in these 

instances, it is reasonable for 

appropriate school personnel, in 

consultation with at least one of the 

teachers of a child, to determine how 

best to address the child’s needs during 

these relatively brief periods of removal. 

We believe it would place an 

unreasonable burden on school 

personnel to require that the parent be 

involved in making the determination of 

the extent to which services are needed 

for a child removed for such a short 

period of time. We do not believe 

requiring school personnel to make 

these decisions under these 

circumstances imposes an unreasonable 

limitation on a child with a disability’s 

right to FAPE. For these reasons, we do 

not believe § 300.530(d)(4) should be 

revised to require that the parent be 

included in the consultation. However, 

there is nothing in these regulations that 

would prohibit school personnel, if they 

choose to do so, from including parents 

in the consultation. 

Changes: None. 

Comment: One commenter requested 

that § 300.530(d)(4) be modified to 

include the requirement in current 

§ 300.121(d)(3)(i) that school personnel 

consult with the child’s special 

education teacher as opposed to any of 

the child’s teachers. The commenter 

stated that it makes sense that the 

special education teacher be considered 

the first choice for this role given that 

the special education teacher generally 

has the most knowledge of the child and 

the student’s educational needs. 

Discussion: The determination of 

which teacher school personnel should 

consult should be based on the facts and 

circumstances of each case, the needs of 

the child and the expertise of the child’s 

teachers. We agree that, in many cases, 

the special education teacher may be the 

most appropriate teacher with whom 

school personnel should consult. This, 

however, is not always the case. In light 

of the short-term nature of the removals 

under paragraph (d)(4) of the section 

and the need for school personnel to 

make quick decisions regarding 

services, we believe local school 

personnel need broad flexibility in 

making such decisions and are in the 

best position to determine the 

appropriate teacher with whom to 

consult. For these reasons, we are not 

amending § 300.530(d)(4) to require 

consultation with the child’s special 

education teacher as in current 

§ 300.121(d)(3)(i). There is nothing, 

however, in the Act or these regulations 

that would prohibit school personnel 

from consulting with one of the child’s 

special education teachers. 

Changes: None. 

Comment: Several commenters 

recommended the regulations clarify 

that a child placed in an appropriate 

interim alternative educational setting 

will participate in all State and 

districtwide assessments. 

Discussion: It is not necessary to 

include the language recommended by 

the commenters as section 612(a)(16)(A) 

of the Act is clear that the State must 

ensure that all children with disabilities 

are included in all general State and 

districtwide assessment programs, 

including assessments described in 

section 1111 of the ESEA, 20 U.S.C. 

6311, with appropriate accommodations 

and alternate assessments, if necessary, 

and as indicated in each child’s 

respective IEP. This requirement applies 

to children with disabilities who have 

been placed in an appropriate interim 

alternative education setting or another 

setting, or who are suspended. 

Changes: None. 

Comment: One commenter requested 

specifying in § 300.530(d) that LEAs 

must include children with disabilities 

placed in interim alternative 

educational settings in their 

determination of AYP. The writer 

expressed concern that LEAs may try to 

avoid accountability by placing children 

with disabilities in interim alternative 

educational settings. 

Discussion: The Act does not address 

the issue of AYP. However, title 1 of the 

ESEA is clear that children who are 

enrolled within a district for a full 

academic year must be included in the 

AYP reports of an LEA. (20 U.S.C. 7325) 

Title 1 of the ESEA does not provide an 

exception for children with disabilities 

placed in interim alternative 

educational settings. In addition, State 

agencies, LEAs, and schools must assess 

all children, regardless of whether a 

child is to be included for reporting or 

accountability purposes and regardless 

of the amount of time the child has been 

enrolled in the State agency, LEA, or 

school. The only public school children 

with disabilities enrolled in public 

settings who are exempted from 

participation in State and districtwide 

assessment programs under the Act are 

children with disabilities convicted as 

adults under State law and incarcerated 

in adult prisons (§ 300.324(d)(1)(i)). As 

AYP is addressed under title 1 of the 

ESEA, we do not need to regulate on 

this matter. 

Changes: None. 

Comment: A few commenters stated 

that § 300.530(d)(5) is inconsistent with 

section 615(k)(1)(E) of the Act, which 

requires that within 10 school days of 

any decision to change a child’s 

placement because of a violation of a 

code of conduct, the LEA, parent, and 

relevant members of the IEP Team (as 

determined by the parent and the LEA) 

shall consider whether the conduct was 

caused by or had a direct and 

substantial relationship to the disability 

or whether the conduct was caused by 

the failure of the LEA to implement the 

IEP. These commenters stated that 

§ 300.530(d)(5) gives the IEP Team 

control over determinations regarding 

services and placement, regardless of 

manifestation, and does not give control 

to the LEA, parent and relevant 

members of the IEP Team as provided 

in the Act. 

Discussion: We disagree with the 

commenters that § 300.530(d)(5) is 

inconsistent with section 615(k)(1)(E) of 

the Act because paragraph (d)(5) of this 

section describes who is responsible for 

determining the appropriate services for 

a child with a disability whose 

disciplinary removal is a change in 

placement under § 300.536, while 

section 615(k)(1)(E) of the Act describes 

who is responsible for making a 

manifestation determination. These are 

very different and distinct provisions. 

Further, section 615(k) of the Act does 

not specifically address who is 

responsible for determining the 

educational services to be provided a 

child with a disability whose 

disciplinary removal is a change in 

placement. Section 615(k)(1)(E) of the 

Act, consistent with § 300.530(e), 

provides that, within 10 school days of 

any decision to change the placement of 

a child with a disability because of a 

violation of a code of student conduct, 

the LEA, the parent, and relevant 

members of the IEP Team (as 

determined by the parent and the LEA) 

shall determine whether the child’s 

conduct was a manifestation of the 

child’s disability. We believe that in 


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instances where a child’s disciplinary 

removal constitutes a change in 

placement, and given the length of time 

of such removals, the IEP Team is the 

appropriate entity to determine the 

educational services necessary to enable 

the child to continue to participate in 

the general education curriculum, 

although in another setting, and to 

progress toward meeting the goals set 

out in the child’s IEP. Section 

300.530(d)(5) is clear that whenever a 

removal constitutes a change in 

placement under § 300.536, the child’s 

IEP Team determines the services the 

child will be provided. 

Changes: None. 

Comment: One commenter stated that 

the phrase ‘‘location in which services 

will be provided’’ as used in 

§ 300.530(d)(5) is not included in the 

Act. The commenter pointed out that 

section 615(k)(2) of the Act refers to the 

IEP Team’s ‘‘determination of setting.’’

The commenter stated that using the 

statutory language will make it less 

likely the IEP Team will interpret the 

regulations to require the IEP Team to 

determine the specific location of the 

services to be provided to a child 

removed from his or her current 

placement to an interim alternative 

educational setting. Several other 

commenters stated that the use of the 

phrase ‘‘location in which services will 

be provided’’ in paragraph (d)(5) of this 

section is confusing and recommended 

limiting the IEP Team responsibility to 

determining the setting (as required 

under section 615(k)(2) of the Act) and 

the services and not the specific 

location. 

Discussion: Section 615(k)(2) of the 

Act provides that the IEP Team is 

responsible for determining the interim 

alternative educational setting for a 

child with a disability for certain 

removals that are a change of placement. 

In § 300.531, for reasons described 

elsewhere in this preamble, we interpret 

this obligation to apply to all removals 

that constitute a change of placement for 

disciplinary reasons, as defined in 

§ 300.536. We interpret ‘‘setting’’ in this 

context to be the environment in which 

the child will receive services, such as 

an alternative school, alternative 

classroom, or home setting. In many 

instances, the location and the setting or 

environment in which the child will 

receive services are the same. It is 

possible, however, that a school may 

have available more than one location 

that meets the criteria of the setting 

chosen by the IEP Team. For example, 

an LEA may have available two 

alternative schools that meet the criteria 

of the interim alternative educational 

setting chosen by the IEP Team. In those 

cases school personnel would be able to 

assign the child to either of these 

locations, if the IEP Team has not 

specified a particular one. 

We are persuaded by the commenters 

and, therefore, are removing the 

reference to ‘‘location in which services 

will be provided’’ in paragraphs (d)(4) 

and (d)(5) of this section. We are also 

removing the phrase ‘‘is for more than 

10 consecutive school days or’’ from 

paragraphs (d)(5) of this section because 

it is unnecessary since such a removal 

is a change in placement under 

§ 300.536. 

Changes: We have amended 

paragraphs (d)(4) and (d)(5) of this 

section by removing the phrase 

‘‘location in which services will be 

provided.’’ We also have amended 

paragraph (d)(5) of this section by 

removing the phrase ‘‘is for more than 

10 consecutive school days or.’’

Manifestation Determination 

(§ 300.530(e)) 

Comment: Several commenters 

requested including in § 300.530(e) the 

following measures when determining 

the relationship between a behavior and 

a disability: (1) whether the child’s 

disability impaired the ability of the 

child to control the behavior; (2) 

whether the child understood the 

impact and consequences of the 

behavior; (3) whether the placement was 

appropriate; or (4) whether the IEP, the 

identified services, and their 

implementation were appropriate. 

Another commenter recommended 

clarifying that when a determination is 

made that a child’s behavior is not a 

manifestation of his or her disability, if 

the group does not consider whether the 

IEP and placement were appropriate, 

the parents have the right to file a 

complaint. 

Discussion: The language requested 

by the commenters was included in 

section 615(k)(4) of the Individuals with 

Disabilities Education Act Amendments 

of 1997, Public Law 105–17. Congress 

later removed the requirements 

mentioned by the commenters for 

conducting a review to determine 

whether a child’s behavior was a 

manifestation of the child’s disability 

and it would be beyond the authority of 

the Department to include the language 

in these regulations. Section 615(k)(1)(E) 

of the Act now requires the LEA, the 

parent, and relevant members of the IEP 

Team (as determined by the parent and 

the LEA), to determine whether a child’s 

behavior was a manifestation of the 

child’s disability based on two 

inquiries: (1) was the conduct caused 

by, or did it have a direct and 

substantial relationship to the child’s 

disability; or (2) was the conduct the 

direct result of the LEA’s failure to 

implement the child’s IEP? 

It is not necessary to clarify that a 

parent has the right to file a complaint, 

as the commenters suggest. Section 

300.532, consistent with section 

615(k)(3) of the Act, provides that a 

parent of a child with a disability who 

disagrees with any decision regarding 

placement under §§ 300.530 and 

300.531, or the manifestation 

determination under § 300.530(e), may 

request an expedited due process 

hearing, which must occur within 20 

school days of the date the complaint 

requesting the hearing is filed, and the 

determination by the hearing officer 

must be rendered within 10 school days 

after the hearing. 

Changes: None. 

Comment: Several commenters 

recommended that the observations 

used for the manifestation 

determination review be from both 

teachers and related service personnel. 

Some commenters requested 

§ 300.530(e) clarify that the phrase ‘‘all 

relevant information in the child’s file’’

includes a review of the child’s IEP, 

placement appropriateness, special 

education services, supplementary aids 

and services, and if the behavior 

intervention strategies were appropriate 

and consistent with the IEP. One 

commenter recommended documents 

and discussions at IEP Team meetings 

referencing the child’s behavior should 

be maintained and considered at a 

manifestation determination. 

Discussion: Section 300.530(e)(1), 

which tracks section 615(k)(1)(E) of the 

Act, requires a review of all relevant 

information in the child’s file, including 

the child’s IEP, any teacher 

observations, and any relevant 

information provided by the parents. 

We believe this clearly conveys that the 

list of relevant information in paragraph 

(e)(1) of the section is not exhaustive 

and may include other relevant 

information in the child’s file, such as 

the information mentioned by the 

commenters. It would be impractical to 

list all the possible relevant information 

that may be in a child’s file and, 

therefore, it is not necessary to further 

regulate on this matter. 

Changes: None. 

Comment: Several commenters 

requested clarifying that a manifestation 

determination under § 300.530(e) would 

not need to be conducted for removals 

of not more than 10 consecutive days or 

for removals that otherwise do not 

constitute a change in placement. 

Discussion: By including an 

introductory phrase to proposed 

§ 300.530(e)(1) we intended to clarify 


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that a manifestation determination need 

not be conducted for removals that will 

be for not more than 10 consecutive 

school days and will not constitute a 

change in placement under § 300.536. In 

other words, manifestation 

determinations are limited to removals 

that constitute a change in placement 

under § 300.536. Upon further 

consideration, we believe the phrase 

‘‘except for removals that will be for not 

more than 10 consecutive school days 

and will not constitute a change in 

placement under § 300.536’’ is 

unnecessary and confusing. We believe 

limiting § 300.530(e)(1) to the statutory 

language in section 615(k)(1)(E)(i) of the 

Act makes it sufficiently clear that 

within 10 school days of any decision 

to change the placement of a child with 

a disability because of a violation of a 

code of student conduct a manifestation 

determination must be conducted and, 

therefore, we are removing the 

introductory phrase as it is unnecessary. 

Changes: We have revised 

§ 300.530(e) by removing the 

introductory phrase ‘‘except for 

removals that will be for not more than 

10 consecutive school days and will not 

constitute a change in placement under 

§ 300.536.’’

Comment: A few commenters 

expressed concern that the 

manifestation determination is too 

narrow and does not account for the 

spectrum of inter-related and individual 

challenges associated with many 

disabilities. 

Discussion: We believe the criteria in 

§ 300.530(e)(1) that the LEA, parent, and 

relevant members of the IEP Team must 

determine whether a child’s conduct is 

a manifestation of the child’s disability 

is broad and flexible, and would include 

such factors as the inter-related and 

individual challenges associated with 

many disabilities. The revised 

manifestation provisions in section 615 

of the Act provide a simplified, common 

sense manifestation determination 

process that could be used by school 

personnel. The basis for this change is 

provided in note 237–245 of the Conf. 

Rpt., pp. 224–225, which states, ‘‘the 

Conferees intend to assure that the 

manifestation determination is done 

carefully and thoroughly with 

consideration of any rare or 

extraordinary circumstances presented.’’

The Conferees further intended that ‘‘if 

a change in placement is proposed, the 

manifestation determination will 

analyze the child’s behavior as 

demonstrated across settings and across 

time when determining whether the 

conduct in question is a direct result of 

the disability.’’ No further clarification 

is necessary. 

Changes: None. 

Comment: A few commenters 

recommended that the manifestation 

determination in § 300.530(e) include a 

case-by-case analysis of the disability of 

the child involved compared with the 

child’s conduct as many children with 

disabilities display behaviors that can 

be disruptive to a classroom, but these 

behaviors should not be considered a 

current disciplinary issue when the 

behaviors are characteristic of the 

disability. 

Discussion: We believe that it is not 

necessary to modify the regulations to 

include a requirement that a 

manifestation determination include a 

case-by-case analysis of the disability of 

the child because section 615(k)(1)(E) of 

the Act and § 300.530(e) are sufficiently 

clear that decisions regarding the 

manifestation determination must be 

made on a case-by-case basis. We 

believe the Act recognizes that a child 

with a disability may display disruptive 

behaviors characteristic of the child’s 

disability and the child should not be 

punished for behaviors that are a result 

of the child’s disability. The intent of 

Congress in developing section 

615(k)(1)(E) was that, in determining 

that a child’s conduct was a 

manifestation of his or her disability, it 

must be determined that ‘‘the conduct 

in question was caused by, or had a 

direct and substantial relationship to, 

the child’s disability, and was not an 

attenuated association, such as low selfesteem, to the child’s disability.’’ (Note 

237–245 of the Conf. Rpt., p. 225). The 

regulation, which follows the statutory 

language, thus accurately reflects the 

manner in which the Act describes the 

behavior of the child is to be considered 

in the manifestation determination. 

Further, section 615(k)(1)(F) of the 

Act and § 300.530(f) provide that if the 

LEA, the parent, and relevant members 

of the IEP Team make the determination 

that the behavior resulting in the 

removal was a manifestation of the 

child’s disability, the following actions 

must be implemented: (1) the IEP Team 

must conduct a functional behavioral 

assessment, unless the LEA had 

conducted a functional behavioral 

assessment before the behavior that 

resulted in the change in placement 

occurred, and implement a behavioral 

intervention plan for the child; (2) or if 

a behavioral intervention plan already 

has been developed, review the 

behavioral intervention plan, and 

modify it, as necessary, to address the 

behavior; and (3) return the child to the 

placement from which the child was 

removed (other than a 45-day placement 

under § 300.530(g)), unless the parent 

and the LEA agree to a change in 

placement as part of the modification of 

the behavioral intervention plan. 

Changes: None. 

Comment: One commenter 

recommended clarifying that when a 

determination is made that a child’s 

behavior is not a manifestation of his or 

her disability, if the group does not 

consider whether the placement was 

appropriate, the parents have the right 

to file a complaint. 

Discussion: The Act no longer 

requires that the appropriateness of the 

child’s IEP and placement be considered 

when making a manifestation 

determination. The Act now requires 

that the LEA, the parent, and relevant 

members of the IEP Team must, when 

making a manifestation determination, 

determine whether (1) the conduct in 

question was caused by, or had a direct 

and substantial relationship to, the 

child’s disability; or (2) the conduct in 

question was the direct result of the 

LEA’s failure to implement the IEP. 

However, § 300.532, consistent with 

section 615(k)(3) of the Act, does 

provide that a parent of a child with a 

disability who disagrees with any 

decision regarding placement under 

§§ 300.530 and 300.531, or the 

manifestation determination under 

§ 300.530(e), may request an expedited 

due process hearing, which must occur 

within 20 school days of the date the 

hearing is requested and must result in 

a determination within 10 school days 

after the hearing. 

Changes: None. 

Comment: Several commenters 

requested clarification on the potential 

range of consequences when a 

disciplinary change in placement has 

occurred for a child with a disability 

and the child’s behavior is determined 

to be a manifestation of his or her 

disability. 

Discussion: Under section 615(k)(1)(F) 

of the Act and section 504 of the 

Rehabilitation Act of 1973, if the 

behavior that resulted in the change of 

placement is determined to be a 

manifestation of a child’s disability, the 

child must be returned to the placement 

from which the child was removed 

(other than a 45-day placement under 

§§ 300.530(g), 300.532(b)(2), and 

300.533), unless the public agency and 

the parents otherwise agree to a change 

of placement. 

When the behavior is related to the 

child’s disability, proper development 

of the child’s IEP should include 

development of strategies, including 

positive behavioral interventions, 

supports, and other strategies to address 

that behavior, consistent with 

§ 300.324(a)(2)(i) and (a)(3)(i). When the 

behavior is determined to be a 


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manifestation of a child’s disability but 

has not previously been addressed in 

the child’s IEP, the IEP Team must 

review and revise the child’s IEP so that 

the child will receive services 

appropriate to his or her needs. 

Implementation of the behavioral 

strategies identified in a child’s IEP, 

including strategies designed to correct 

behavior by imposing disciplinary 

consequences, is appropriate under the 

Act and section 504, even if the 

behavior is a manifestation of the child’s 

disability. A change in placement that is 

appropriate and consistent with the 

child’s needs may be implemented 

subject to the parent’s procedural 

safeguards regarding prior notice 

(§ 300.503), mediation (§ 300.506), due 

process (§§ 300.507 through 300.517) 

and pendency (§ 300.518). 

Changes: None. 

Comment: Many commenters 

requested modifying § 300.530(e) to 

require that, if it is determined that the 

child’s behavior was a direct result of 

the LEA’s failure to implement the 

child’s IEP, it must take immediate steps 

to remedy those deficiencies. 

Discussion: If the LEA, the parent, and 

the relevant members of the IEP Team 

determine that the child’s conduct is a 

manifestation of the child’s disability 

because the child’s behavior was the 

direct result of the LEA’s failure to 

implement the IEP, the LEA has an 

affirmative obligation to take immediate 

steps to ensure that all services set forth 

in the child’s IEP are provided, 

consistent with the child’s needs as 

identified in the IEP. We agree with the 

commenters that these regulations 

should require that, if it is determined 

that the child’s behavior was a direct 

result of the LEA’s failure to implement 

the child’s IEP, the LEA must take 

immediate steps to remedy those 

deficiencies. Therefore, we are adding a 

new paragraph (e)(3) to this section, 

consistent with this obligation. 

Changes: We have added a new 

paragraph (3) to § 300.532(e) which 

provides that, if the LEA, the parent, 

and relevant members of the child’s IEP 

Team determine that the child’s 

behavior was a direct result of the LEA’s 

failure to implement the child’s IEP, the 

LEA must take immediate steps to 

remedy those deficiencies. 

Comment: A few commenters 

expressed concern that the absence of 

short-term objectives in the IEP hampers 

the ability to determine if the child’s 

conduct was the direct result of the 

LEA’s failure to implement the IEP. 

Discussion: We disagree with the 

commenters that the absence of shortterm objectives in the IEP will hinder 

the ability of the LEA, the parent, and 

relevant members of the IEP Team to 

determine whether a child’s conduct is 

the direct result of the LEA’s failure to 

implement the child’s IEP. The group 

members making the manifestation 

determination are required to review not 

only the IEP of the child, but all relevant 

information in the child’s folder, any 

teacher observations of the child, and 

any relevant information provided by 

the parents. We believe the information 

available to the group making the 

manifestation determination, when 

reviewed in its totality, is sufficient to 

make a manifestation determination. 

Changes: None. 

Determination That Behavior Was a 

Manifestation (§ 300.530(f)) 

Comment: Some commenters 

recommended requiring that, even if a 

child’s conduct is determined not to be 

a manifestation of the child’s disability 

pursuant to § 300.530(e), the IEP Team, 

in determining how the child will be 

provided services, must, at a minimum, 

consider whether to conduct a 

functional behavioral assessment and 

implement a behavior plan. One 

commenter requested that the 

requirement in § 300.530(f) for 

conducting a functional behavioral 

assessment be removed from this 

section and added to §§ 300.320 through 

300.324, regarding IEPs. 

Discussion: Section 300.530(f), 

consistent with section 615(k)(1)(F) of 

the Act, requires that a child with a 

disability receive, as appropriate, a 

functional behavioral assessment, and 

behavioral intervention plan and 

modifications, that are designed to 

address the child’s behavior if the 

child’s behavior that gave rise to the 

removal is a manifestation of the child’s 

disability. As provided in § 300.530(e), 

a manifestation determination is only 

required for disciplinary removals that 

constitute a change of placement under 

§ 300.536. However, we must recognize 

that Congress specifically removed from 

the Act a requirement to conduct a 

functional behavioral assessment or 

review and modify an existing 

behavioral intervention plan for all 

children within 10 days of a 

disciplinary removal, regardless of 

whether the behavior was a 

manifestation or not. 

We also recognize, though, that as a 

matter of practice, it makes a great deal 

of sense to attend to behavior of 

children with disabilities that is 

interfering with their education or that 

of others, so that the behavior can be 

addressed, even when that behavior will 

not result in a change in placement. In 

fact, the Act emphasizes a proactive 

approach to behaviors that interfere 

with learning by requiring that, for 

children with disabilities whose 

behavior impedes their learning or that 

of others, the IEP Team consider, as 

appropriate, and address in the child’s 

IEP, ‘‘the use of positive behavioral 

interventions, and other strategies to 

address the behavior.’’ (See section 

614(d)(3)(B)(i) of the Act). This 

provision should ensure that children 

who need behavior intervention plans to 

succeed in school receive them. For 

these reasons, we decline to make the 

changes suggested. 

Changes: None. 

Comment: Many commenters 

requested requiring that a functional 

behavioral assessment older than one 

year be considered invalid in a 

manifestation determination review. 

One commenter suggested that the 

regulations include language that 

requires the agency to conduct a new 

functional behavioral assessment when 

the child’s most recent functional 

assessment is not current. 

Discussion: We believe it would be 

inappropriate to specify through 

regulation what constitutes a ‘‘current’’

or ‘‘valid’’ functional behavioral 

assessment as such decisions are best 

left to the LEA, the parent, and relevant 

members of the IEP Team (as 

determined by the LEA and the parent) 

who, pursuant to section 615(k)(1)(E) of 

the Act, are responsible for making the 

manifestation determination. As a 

policy matter, a previously conducted 

functional behavioral assessment that is 

valid and relevant should be included 

in the information reviewed by the LEA, 

the parent, and relevant members of the 

IEP Team when making a manifestation 

determination. 

Changes: None. 

Special Circumstances (§ 300.530(g)) 

Comment: Some commenters 

recommended requiring that an 

appropriate permanent placement be in 

effect at the beginning of the next school 

year to ensure that a child is not held 

in the 45-school day interim alternative 

educational setting for a period that 

extends into the new academic year. 

Discussion: Interim alternative 

educational settings under section 

615(k)(1)(G) of the Act and § 300.530(g) 

are limited to not more than 45 school 

days, unless extended by the hearing 

officer under § 300.532(b)(3) because 

returning the child to his or her original 

placement would be substantially likely 

to cause injury to him or herself or to 

others. The 45-school day placement in 

an interim alternative educational 

setting, unless extended by 

§ 300.532(b)(3), is a maximum time limit 

for a change in placement to an 


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appropriate interim alternative 

educational setting. We decline to 

change the regulations as suggested by 

the commenters based on the school 

year ending before a child completes the 

ordered school day placement in an 

interim alternative educational setting 

(in this example 45 school days). There 

is nothing in the Act or these 

regulations that precludes the public 

agency from requiring the child to fulfill 

the remainder of the placement when a 

new school year begins as agency 

personnel have this flexibility under 

section 615(k)(1)(G) of the Act. 

Changes: None. 

Comment: Some commenters 

requested that the regulations clarify 

that a child’s home is not a suitable 

placement setting for an interim 

alternative educational setting for a 

child with a disability removed 

pursuant to § 300.530 for disciplinary 

reasons. 

Discussion: While the Act does not 

specify the alternative setting in which 

educational services must be provided, 

the Act is clear that the determination 

of an appropriate alternative 

educational setting must be selected ‘‘so 

as to enable the child to continue to 

participate in the general education 

curriculum, although in another setting, 

and to progress toward meeting the 

goals set out in the child’s IEP.’’ (See 

section 615(k)(1)(D)(i) of the Act). 

Further, section 615(k)(2) of the Act 

provides that the interim alternative 

educational setting must be determined 

by the IEP Team. What constitutes an 

appropriate interim alternative 

educational setting will depend on the 

circumstances of each individual case. 

Whether a child’s home would be an 

appropriate interim alternative 

educational setting under § 300.530 

would depend on the particular 

circumstances of an individual case 

such as the length of the removal, the 

extent to which the child previously has 

been removed from his or her regular 

placement, and the child’s individual 

needs and educational goals. In general, 

though, because removals under 

§§ 300.530(g) and 300.532 will be for 

periods of time up to 45 days, care must 

be taken to ensure that if home 

instruction is provided for a child 

removed under § 300.530, the services 

that are provided will satisfy the 

requirements for services for a removal 

under § 300.530(d) and section 

615(k)(1)(D) of the Act. We do not 

believe, however, that it is appropriate 

to include in the regulations that a 

child’s home is not a suitable placement 

setting for an interim alternative 

educational setting as suggested by the 

commenter. As stated above, the Act 

gives the IEP Team the responsibility of 

determining the alternative setting and 

we believe the IEP Team must have the 

flexibility to make the setting 

determination based on the 

circumstances and the child’s 

individual needs. 

Changes: None. 

Comment: One commenter expressed 

concern that the high standard of 

‘‘serious bodily injury’’ is unreasonable. 

The commenter states that school 

personnel should be given discretion to 

remove children for a 45 school-day 

period who have committed assault or 

otherwise acted dangerously. The 

commenter stated that the standard for 

having inflicted ‘‘serious bodily injury’’

would seldom be met without a child 

being incarcerated. Another commenter 

stated that the statutory definition of 

serious bodily injury is too narrow to 

have much practical value for school 

purposes since most injuries on school 

grounds are not related to the use of 

dangerous weapons. This commenter 

recommended expanding the definition 

to include more typical injuries that 

occur on school property, and not 

limiting the definition by the language 

in section 1365(3)(h) of title 18, United 

States Code. 

Discussion: Section 300.530(g)(3) 

incorporates the new provision in 

section 615(k)(1)(G)(iii) of the Act that 

permits school personnel to remove a 

child to an interim alternative 

educational setting for not more than 45 

school days without regard to whether 

the behavior is a manifestation of the 

child’s disability if the child has 

inflicted serious bodily injury upon 

another person while at school, on 

school premises, or at a school function. 

Section 615(k)(7)(D) of the Act is clear 

that the term serious bodily injury has 

the meaning given the term in section 

1365(3)(h) of title 18, United States 

Code. That provision defines serious 

bodily injury as bodily injury, which 

involves substantial risk of death; 

extreme physical pain; protracted and 

obvious disfigurement; or protracted 

loss or impairment of the function of a 

bodily member, organ, or mental 

faculty. Nothing in the Act permits the 

Department to expand the definition of 

serious bodily injury, as used in 

§ 300.530(g), to include a bodily injury 

beyond that included in 18 U.S.C. 

1365(3)(h). Therefore, we are not 

amending § 300.530(g)(3). 

Changes: None. 

Comment: One commenter 

recommended clarifying the distinction 

between the removal of a child to an 

interim alternative educational setting 

by school personnel for inflicting 

‘‘serious bodily injury upon another 

person’’ (§ 300.530(g)(3)) and the 

removal of the child by a hearing officer 

because maintaining the child’s current 

placement is ‘‘substantially likely to 

result in injury to the child or others’’

(§ 300.532(b)(2)(ii)). 

Discussion: The provision in 

§ 300.530(g)(3), consistent with section 

615(k)(1)(G)(iii) of the Act, indicates 

that school personnel have the 

discretion to remove a child with a 

disability who inflicts ‘‘serious bodily 

injury upon another person’’ from his or 

her current placement to an interim 

alternative educational setting for up to 

45 school days (defined in 18 U.S.C. 

1365(3)(h) as bodily injury), which 

involve substantial risk of death; 

extreme physical pain; protracted and 

obvious disfigurement; or protracted 

loss or impairment of the function of a 

bodily member, organ, or mental 

faculty. Section 300.530(g)(3) applies to 

school personnel’s unilateral removal of 

a child from the current educational 

placement. School officials must seek 

permission from the hearing officer 

under § 300.532 to order a change of 

placement of the child to an appropriate 

interim alternative educational setting. 

Hearing officers have the authority 

under § 300.532 to exercise their 

judgments after considering all factors 

and the body of evidence presented in 

an individual case when determining 

whether a child’s behavior is 

substantially likely to result in injury to 

the child or others. Given that the 

phrase ‘‘serious bodily injury,’’ as used 

in § 300.530(g), has a definitive meaning 

and the meaning of ‘‘substantially likely 

to result in injury to the child or others’’

is left to the judgment of the hearing 

officer, we do not believe further 

clarification is needed. 

Changes: None. 

Notification (§ 300.530(h)) 

Comment: Some commenters 

recommended clarifying that parental 

notification in § 300.530(h) must take 

place following disciplinary action 

proposing a removal of a child for more 

than 10 consecutive days or when there 

is a disciplinary change in placement. 

One commenter suggested that, to be 

consistent with the Act, the parental 

notification requirement should only 

pertain to disciplinary decisions made 

pursuant to § 300.530(g). 

Discussion: We agree with the 

commenters that the meaning of the 

term ‘‘disciplinary action’’ in section 

615(k)(1)(H) of the Act, regarding 

parental notification, is unclear. We 

believe that, on the one hand, it would 

be unreasonably burdensome to read the 

term as applying to every imposition of 

discipline, including those that might 


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not result in the child being removed 

from the regular educational 

environment at all. On the other hand, 

we think the suggestion that the term be 

applied only to removals under 

§ 300.530(g) would inappropriately 

narrow the application of the 

notification provision and result in 

parents not being notified for removals 

that could reasonably have a significant 

impact on a child’s education, such as 

a removal for 10 school days or more. 

Therefore, we agree with those 

commenters who suggested that 

paragraph (h) of this section should be 

amended to clarify that the requirement 

for parental notification applies to a 

removal that constitutes a change in 

placement of a child with a disability 

for a violation of a code of student 

conduct. 

Changes: Section 300.530(h) has been 

amended to clarify that on the date on 

which the decision is made to make a 

removal that constitutes a change in the 

placement of a child with a disability 

because of a violation of a code of 

student conduct, the LEA must notify 

the parents of that decision, and provide 

the parents the procedural safeguards 

notice described in § 300.504. 

Comment: One commenter stated that 

the requirement in § 300.530(h), which 

requires the LEA to provide the parents 

the procedural safeguards notice 

described in § 300.504 whenever the 

decision to take disciplinary action is 

made, is inconsistent with the Act and 

recommended revising § 300.530(h) to 

be consistent with section 615(k)(1)(H) 

of the Act. The commenter stated that 

section 615(k)(1)(H) of the Act requires 

the LEA to ‘‘notify’’ the parents of the 

decision to take disciplinary action and 

of all the procedural safeguards. The 

commenter stated that the statutory 

language implies that the LEA simply 

needs to remind (notify) the parent of 

the procedural safeguards given to them 

for the school year as required in section 

615(d)(1)(A)(i) through (iii) of the Act, 

not to ‘‘provide’’ the parents with the 

procedural safeguards notice as required 

in § 300.530(h). 

Discussion: The commenter is correct 

that section 615(k)(1)(H) of the Act does 

not specifically state that the LEA must 

‘‘provide a copy’’ of the procedural 

safeguards notice but, that the LEA must 

‘‘notify’’ the parent of the LEA’s 

decision to take disciplinary action and 

of all procedural safeguards accorded 

under section 615 of the Act. We 

believe, however, that implicit in the 

Act is a much higher standard for 

‘‘notify’’ than ‘‘remind’’ parents as 

suggested by the commenter. Further, in 

other places where ‘‘notify’’ is used in 

the Act, it is clear the meaning of the 

term is ‘‘to provide notice ‘‘ (for 

example, section 615(c)(2)(A) and (D) of 

the Act). We believe § 300.530(h), which 

requires the LEA to notify the parents of 

its decision to change the placement of 

their child with a disability because of 

a violation of a code of student conduct 

and provide the parents the procedural 

safeguards notice described in 

§ 300.504, is reasonable and consistent 

with the Act. 

Changes: None. 

Definitions (§ 300.530(i)) 

Comment: Many commenters stated 

that the definitions for serious bodily 

injury, controlled substance, and 

weapon are not readily available to 

school personnel and parents and 

requested that the full definitions be 

included in § 300.530(i) and not only 

referenced. 

Discussion: As we stated in the 

Analysis of Comments and Changes 

discussion for subpart A of this part, 

including the actual definitions of terms 

that are defined in statutes other than 

the Act is problematic because these 

definitions may change over time and 

the Department would need to amend 

the regulations each time an included 

definition that is defined in another 

statute changes. However, we are 

including the definitions of serious 

bodily injury from section 1365(h)(3) of 

title 18, United States Code, and 

dangerous weapon from section 

930(g)(2) of title 18, United States Code, 

here for reference. We are not including 

the definition of controlled substance 

from section 202(c) of the Controlled 

Substances Act because the definition is 

lengthy and frequently changes. 

The term serious bodily injury means 

bodily injury that involves—

1. A substantial risk of death; 

2. Extreme physical pain; 

3. Protracted and obvious 

disfigurement; or 

4. Protracted loss or impairment of the 

function of a bodily member, organ, or 

mental faculty. 

The term dangerous weapon means a 

weapon, device, instrument, material, or 

substance, animate or inanimate, that is 

used for, or is readily capable of, 

causing death or serious bodily injury, 

except that such term does not include 

a pocket knife with a blade of less than 

21⁄2 inches in length. 

Changes: None. 

Determination of Setting (§ 300.531) 

Comment: None. 

Discussion: In light of the 

restructuring of § 300.530 and the 

elimination of cross-references in that 

section, we are revising § 300.531 to 

include a cross-reference to paragraph 

(d)(5) of § 300.530 to make clear that, for 

a removal that is a change of placement 

under § 300.536, the child’s IEP Team 

must determine the appropriate interim 

alternative educational setting for the 

child. 

Changes: We have revised § 300.531 

to include a cross-reference to paragraph 

(d)(5) of § 300.530. 

Appeal (§ 300.532) 

Comment: Numerous commenters 

requested clarifying in the regulations 

that the public agency has the burden to 

prove to a hearing officer that removing 

the child is necessary because 

maintaining the current placement is 

substantially likely to result in injury to 

self or others. 

Discussion: Although the Act does not 

address allocation of the burden of proof 

in due process hearings brought under 

the Act, the U.S. Supreme Court 

recently addressed the issue. In 

Schaffer, the Court first noted that the 

term ‘‘burden of proof’’ is commonly 

held to encompass both the burden of 

persuasion (i.e., which party loses if the 

evidence is closely balanced) and the 

burden of production (i.e., the party 

responsible for going forward at 

different points in the proceeding). In 

Schaffer, only the burden of persuasion 

was at issue. The Court held that the 

burden of persuasion in a hearing 

challenging the validity of an IEP is 

placed on the party on which this 

burden usually falls—on the party 

seeking relief—whether that is the 

parent of the child with a disability or 

the LEA. Where the public agency has 

requested that a hearing officer remove 

a child to an interim alternative 

educational setting, the burden of 

persuasion is on the public agency. 

Since Supreme Court precedent is 

binding legal authority, further 

regulation in this area is unnecessary. 

Changes: None. 

Comment: Many commenters 

requested that the regulations clarify 

that the LEA has the burden of proof in 

determining whether the child’s 

behavior was or was not a manifestation 

of the child’s disability and that the IEP 

was appropriate and properly 

implemented. Other commenters 

expressed concern that the regulations, 

as written, put the burden on the parent 

to prove either that the conduct was 

caused by or had a direct and 

substantial relationship to the child’s 

disability or that the IEP was not being 

implemented. 

Discussion: The concept of burden of 

proof is not applicable to the 

manifestation determination, which 

does not occur in a hearing under the 

Act. Under § 300.530(e), the LEA, the 


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parent, and relevant members of the IEP 

Team (as determined by the parent and 

the LEA) are responsible for 

determining whether the child’s 

behavior is a manifestation of the child’s 

disability, by conducting a fair inquiry 

into the issues posed by 

§ 300.530(e)(1)(i) and (ii). If the parent 

disagrees with the manifestation 

determination, they have the right to 

appeal that decision by requesting a due 

process hearing under § 300.532. At the 

point a due process hearing is 

requested, the concept of burden of 

proof would be applicable. As stated 

above, the Supreme Court determined in 

Schaffer that the burden of proof 

ultimately is allocated to the moving 

party. 

Changes: None. 

Comment: A few commenters 

recommended requiring that the hearing 

officer must consider the 

appropriateness of the child’s current 

placement; consider whether the public 

agency has made reasonable efforts to 

minimize the risk of harm in the child’s 

current placement, including the use of 

supplementary aids and services; and 

determine that the interim alternative 

educational setting meets specified 

requirements. 

Discussion: We are not making 

changes to the regulations, regarding a 

hearing officer’s decision-making, to 

require a hearing officer to consider 

such factors as those suggested by the 

commenters because a hearing officer 

must have the ability to conduct 

hearings and render and write decisions 

in accordance with appropriate, 

standard legal practice and exercise his 

or her judgment in the context of all the 

factors involved in an individual case. 

Changes: None. 

Comment: Some commenters 

recommended clarifying the reference to 

a ‘‘hearing’’ in § 300.532(a) and an 

‘‘expedited hearing’’ in § 300.532(c). 

Some of these commenters stated that 

there seems to be a conflict between the 

two hearings. Other commenters 

questioned whether the hearing 

referenced in paragraphs (a) and (c) of 

this section must be conducted 

consistent with all the impartial due 

process hearing requirements. Another 

commenter suggested that a hearing 

requested pursuant to § 300.532 may be 

contrary to section 615(h) of the Act, 

which provides for the right to counsel, 

to cross-examine witnesses, and to 

present evidence and receive the record 

of due process hearings. 

Discussion: The hearing referenced in 

§ 300.532(a) and (c) is the same hearing 

and not separate hearings. Paragraph (a) 

in this section states that a parent of a 

child with a disability who disagrees 

with any decision regarding a 

placement, or the manifestation 

determination, or an LEA that believes 

that maintaining the current placement 

of the child is substantially likely to 

result in injury to the child or to others, 

may request a hearing. Paragraph (c) of 

this section clarifies that a hearing 

requested under paragraph (a) of this 

section is an impartial due process 

hearing consistent with the due process 

hearing requirements of §§ 300.510 

through 300.514 (including hearing 

rights, such as a right to counsel, 

presenting evidence and crossexamining witnesses, and obtaining a 

written decision), except that the 

timelines for the hearing are expedited 

and a State may establish different 

procedural rules for expedited due 

process hearings as long as the rules 

ensure the requirements in §§ 300.510 

through 300.514 are met. We believe 

these regulations will ensure that the 

basic protections regarding hearings 

under the Act are met, while enabling 

States to adjust other procedural rules 

they may have superimposed on due 

process hearings in light of the 

expedited nature of these hearings. 

Further, we believe it is important that 

all the due process protections in 

§§ 300.510 through 300.514 are 

maintained because of the importance of 

the rights at issue in these hearings. 

Changes: None. 

Comment: One commenter 

recommended the regulations clarify 

that a placement determination made by 

a hearing officer pursuant to his or her 

authority under § 300.532(b), regarding 

an appeal requested by a parent who 

disagrees with the placement of a child, 

is final and cannot be augmented by the 

SEA or LEA. 

Discussion: Section 300.514, 

consistent with section 615(i)(1)(A) of 

the Act, is clear that a hearing officer’s 

decision made in a hearing conducted 

pursuant to §§ 300.530 through 300.534 

is final, except that a party may appeal 

the decision under the provisions in 

§ 300.514(b). Absent a decision upon 

appeal, the SEA or the LEA may not 

augment or alter the hearing officer’s 

decision. We do not believe that the 

regulations need to be clarified. 

Changes: None. 

Comment: One commenter 

recommended clarifying whether there 

is a difference between ‘‘likely to result 

in injury to child or others’’ as used in 

§ 300.532(b)(2)(ii) and ‘‘child would be 

dangerous’’ as used in § 300.530(b)(3). 

The commenter suggested that 

§ 300.532(b)(3), which permits the LEA 

to return to the hearing officer to request 

continuation of an interim alternative 

education placement if the LEA believes 

the child would be dangerous if 

returned to the original placement, is a 

lesser standard than that required of the 

hearing officer in § 300.532(b)(2)(ii), 

which permits a hearing officer to order 

a change in placement to an appropriate 

interim alternative education setting if 

the hearing officer determines that 

maintaining the current placement of 

the child is substantially likely to result 

in injury to the child or to others. 

Discussion: There is no intended 

difference between the phrase ‘‘likely to 

result in injury to the child or others’’

as used in § 300.532(b)(2)(ii) and ‘‘child 

would be dangerous’’ as used in 

§ 300.532(b)(3). Section 300.532(b)(2)(ii) 

clarifies that the hearing officer can 

order a change in placement of a child 

with a disability to an interim 

alternative educational setting for not 

more than 45 school days if the hearing 

officer determines that maintaining the 

current placement of the child is 

substantially likely to result in injury to 

the child or others. To avoid confusion, 

the term ‘‘dangerous’’ is replaced with 

‘‘substantially likely to result in injury 

to the child or to others.’’

Changes: We have replaced the term 

‘‘dangerous’’ in § 300.532(b)(3) with 

‘‘substantially likely to result in injury 

to the child or to others.’’

Comment: A few commenters 

questioned whether the change from the 

heading ‘‘expedited due process 

hearings’’ in current § 300.528 to 

‘‘expedited hearing’’ in § 300.532(c) 

represents a change in the hearings that 

are available under § 300.532. 

Discussion: The removal of ‘‘due 

process’’ from the heading in current 

300.528 does not represent a substantive 

change. The change was made to track 

the statutory requirements in the Act. 

However, we believe it is important to 

clarify that an expedited hearing under 

§ 300.532(c) is a due process hearing 

and the heading to paragraph (c) has 

been amended to retain the heading in 

current § 300.528. We also have made 

additional technical and clarifying 

changes to paragraphs (c)(2) and (c)(3) of 

§ 300.532. In paragraph (c)(2) of this 

section, we are clarifying that an 

expedited hearing must occur within 20 

school days of the date the complaint 

requesting the hearing is filed and 

restructuring the paragraph for clarity. 

In paragraph (c)(3) of this section, we 

are clarifying that the meeting 

referenced in this paragraph is a 

resolution meeting. 

Changes: The heading in § 300.532(c) 

has been revised to clarify that a hearing 

under paragraph (c) of this section is an 

‘‘expedited due process hearing.’’ We 

have also made technical and clarifying 


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changes to paragraphs (c)(2) and (c)(3) of 

this section. 

Comment: Many commenters 

requested clarifying whether the 

requirements in § 300.508(d), regarding 

sufficiency of the complaint, apply to 

the expedited hearing requested under 

§ 300.532(c), pertaining to 

disagreements with a decision regarding 

disciplinary placements. 

Discussion: In light of the shortened 

timelines for conducting an expedited 

due process hearing under § 300.532(c), 

it is not practical to apply to the 

expedited due process hearing the 

sufficiency provision in § 300.508(d), 

which requires that the due process 

complaint must be deemed sufficient 

unless the party receiving the due 

process complaint notifies the hearing 

officer and the other party in writing, 

within 15 days of receipt of the due 

process complaint, that the receiving 

party believes the due process 

complaint does not include all the 

necessary content of a complaint as 

required in § 300.508(b). 

To identify the provisions that do 

apply when a parent requests a hearing 

under § 300.532(a), we have changed 

§ 300.532(a) to clarify that parents and 

the LEA may request a hearing under 

§ 300.532(a) by filing a complaint 

pursuant to §§ 300.507 and 300.508(a) 

and (b). 

Changes: We have changed 

§ 300.532(a) to provide that the parent 

and the LEA may request a hearing 

under this section by filing a complaint 

pursuant to §§ 300.507 and 300.508(a) 

and (b). 

Comment: Several commenters stated 

that section 615(k) of the Act does not 

require a resolution meeting as part of 

an expedited hearing and recommended 

removing the requirement in 

§ 300.532(c)(3)(i) that a resolution 

meeting must occur within seven days 

of the date an expedited hearing is 

requested under § 300.532(a). One 

commenter stated that, given the 

expedited timelines for the hearing and 

the decision, Congress did not intend 

for the resolution meeting to apply to an 

expedited hearing under section 

615(k)(4) of the Act. 

Discussion: We are not removing the 

requirement in § 300.532(c) requiring a 

resolution meeting because an 

expedited hearing under section 

615(k)(3) of the Act is a due process 

hearing subject to the provisions in 

section 615(f) of the Act, including the 

requirement that the LEA convene a 

resolution meeting when the parent files 

a due process complaint. Recognizing 

the need to promptly resolve a 

disagreement regarding a disciplinary 

decision, we believe the resolution 

meeting provides an opportunity for an 

LEA and parents to resolve a 

disagreement regarding a disciplinary 

placement or manifestation 

determination before the timeframe for 

conducting a due process hearing 

begins. In light of the requirement in 

section 615(k)(4)(B) of the Act that an 

expedited hearing must occur within 20 

school days of the date the complaint 

requesting the hearing is filed and a 

determination must be made within 10 

school days after the hearing, which is 

a much shorter time frame than the one 

for a due process complaint filed 

pursuant to 615(f) of the Act, we 

shortened the resolution meeting 

timeline to fit into the expedited hearing 

timeline. Recognizing the need to 

ensure that the resolution meeting does 

not delay the expedited hearing if an 

agreement is not reached, 

§ 300.532(c)(3) provides that the 

resolution meeting must occur within 

seven days of receiving notice of the 

parent’s due process complaint 

regarding a disciplinary placement 

under §§ 300.530 and 300.531, or the 

manifestation determination under 

§ 300.530(e), and the hearing may 

proceed unless the matter is resolved 

within 15 days of the receipt of the 

parent’s due process complaint 

requesting the expedited due process 

hearing, and all the applicable timelines 

for an expedited due process hearing 

under paragraph (c) of this section 

commence. However, the parties may 

agree to waive the resolution meeting or 

agree to use the mediation process. 

Changes: None. 

Comment: Several commenters noted 

that § 300.532(c)(3)(i) states that a 

resolution meeting must occur within 

seven days of the date the ‘‘hearing is 

requested,’’ while § 300.510(a)(1), 

consistent with section 615(f)(1)(B)(i)(I) 

of the Act, states that the resolution 

meeting must occur within 15 days of 

‘‘receiving notice of the due process 

complaint.’’ The commenters 

recommended that the Department 

amend § 300.532(c)(3)(i) to be consistent 

with § 300.510(a)(1). 

Discussion: We agree with the 

commenters that the language in 

§ 300.532(c)(3)(i) should be consistent 

with § 300.510(a)(1) and are amending 

§ 300.532(c)(3)(i) to state that a 

resolution meeting must occur within 

seven days of ‘‘receiving notice of the 

parent’s due process complaint’’ to be 

consistent with § 300.510(a)(1). In 

addition, for consistency, we are 

amending § 300.532(c)(3)(ii) to state that 

the due process hearing may proceed 

unless the matter has been resolved to 

the satisfaction of both parties within 15 

days of ‘‘the receipt of the parent’s due 

process complaint.’’

Changes: Paragraphs (c)(3)(i) and (ii) 

of § 300.532 have been amended as 

stated above. Paragraph (c)(3) of this 

section has also been amended to 

remove the cross-reference to 

§ 300.510(a)(3) and specific explanatory 

language has been inserted. 

Comment: One commenter asked 

whether the intent of § 300.532(c)(3)(ii) 

is to allow the expedited hearing to go 

forward if the parent fails to participate 

in the resolution meeting within 15 days 

of receipt of a hearing request or 

whether the resolution meeting and 

hearing would be indefinitely delayed 

in the context of the expedited hearing 

for the failure of a parent to participate 

in the resolution meeting. 

Discussion: Section 300.532(c)(3)(i) 

clearly states that the resolution meeting 

must occur within seven days of a 

public agency’s receiving notice of the 

parent’s due process complaint. It is not 

expected that parties will necessarily 

reach agreement during the resolution 

meeting; the parties often need time to 

consider the resolution options offered 

at the meeting. The intent of 

§ 300.532(c)(3)(ii) is to allow parties 

sufficient time to consider the 

resolution options discussed in the 

resolution meeting. However, if the 

parties do not reach agreement within 

15 days of receipt of the parent’s due 

process complaint, the expedited 

hearing may proceed and all the 

applicable timelines for an expedited 

due process hearing under paragraph (c) 

commence. Lack of parent participation 

in the resolution meeting would be 

addressed the same way it is in a regular 

due process hearing under § 300.510(b), 

except that the timeframes will differ. 

For these reasons, we believe it is 

unnecessary to clarify the regulations. 

Changes: None. 

Comment: Several commenters 

recommended removing proposed 

§ 300.532(c)(4), which allows a State to 

shorten the time periods for the 

disclosure of evidence, evaluations, and 

recommendations for expedited due 

process hearings to two business days, 

because it will not give a parent 

adequate time to prepare for hearings, 

especially when a parent doesn’t have a 

lawyer. One commenter stated that 

because LEAs have possession and 

control of education records, a 

reduction to two days for disclosure is 

unfair and creates a hardship on a 

parent in preparing for the hearing. 

Other commenters stated that this 

provision is inconsistent with section 

615(f)(2) of the Act, which requires that 

not less than five business days prior to 

a hearing, parties must disclose all 


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evaluations and recommendations that 

parties intend to use at a hearing. A few 

commenters stated that proposed 

§ 300.532(c)(4) diminishes the 

protections for children with disabilities 

and their parents found in the July 20, 

1983 regulations, and, therefore, violates 

section 607(b)(1) and (b)(2) of the Act. 

Discussion: We are persuaded by the 

commenters that limiting the disclosure 

time to two days would significantly 

impair the ability of the parties to 

prepare for the hearing, since one 

purpose of the expedited hearing is to 

provide protection to the child. We are 

removing proposed § 300.532(c)(4), 

which provides an exception to the 

normal five day disclosure requirement. 

Changes: We have removed proposed 

§ 300.532(c)(4) for the reason stated 

above. In addition, proposed paragraphs 

(c)(5) and (c)(6) of this section have been 

redesignated as paragraphs (c)(4) and 

(c)(5), respectively. A technical edit has 

been made to paragraph (c)(1) of this 

section to ensure the reference to 

proposed paragraphs (c)(2) through (5) 

of this section now reference paragraphs 

(c)(2) through (4) consistent with these 

changes. 

Comment: Numerous commenters 

expressed concern that proposed 

§ 300.532(c)(5) (new § 300.532(c)(4)), 

which permits States to establish a 

different set of procedural rules for 

expedited due process hearings, could 

permit States to re-write rules regarding 

basic procedural safeguards. One 

commenter expressed concern that 

proposed § 300.532(c)(5) may lead to 

abuse if the rules from §§ 300.511 

through 300.514 regarding complaints, 

sufficiency, raising new issues, losing 

on procedural grounds, and appeals are 

not part of the expedited due process 

hearing requirements. 

Discussion: We agree with the 

commenters that proposed 

§ 300.532(c)(5), as written, could be 

interpreted to give States authority to 

change due process rules provided for 

in the Act. Therefore, we are amending 

new § 300.532(c)(4) (proposed 

§ 300.532(c)(5)) to clarify that while a 

State may establish different Stateimposed procedural rules for expedited 

due process hearings conducted under 

this section than it has established for 

other due process hearings, the State 

must ensure that the requirements in 

§§ 300.510 through 300.514 are met. 

This will ensure that the basic 

protections regarding expedited 

hearings under the Act are met, while 

enabling States, in light of the expedited 

nature of these hearings, to adjust other 

procedural rules they have established 

for due process hearings. 

Changes: New § 300.532(c)(4) 

(proposed § 300.532(c)(5)) has been 

amended to clarify that a State may 

establish different State imposed rules 

for expedited due process hearings 

under § 300.532(c) than it has 

established for other due process 

hearings but, except for the timelines 

modified as in paragraph (c)(3) of 

§ 300.532, the State must ensure that the 

requirements in §§ 300.510 through 

300.514 are met. 

Placement During Appeals (§ 300.533) 

Comment: One commenter 

recommended retaining the ‘‘stay-put’’

requirement in current § 300.526(b). 

This section provides that if a child is 

placed in an interim alternative 

education setting and school personnel 

propose to change the child’s placement 

after expiration of the interim 

alternative educational placement, 

during the pendency of any proceeding 

to challenge the proposed change in 

placement, the child must remain in the 

child’s placement prior to the interim 

alternative educational setting. One 

commenter requested clarification as to 

whether the removal of current 

§ 300.526(b) represents a substantive 

change in the Department’s policy. 

Other commenters requested clarifying 

what the child’s placement would be 

after the 45-day interim alternative 

educational setting if the LEA requests 

another hearing under § 300.532(b)(3). 

Discussion: The Act changed the stayput provision applying to disciplinary 

actions. The provisions regarding stayput in current § 300.527(b) are not 

included in these regulations because 

the provisions upon which § 300.527(b) 

were based, were removed by Congress 

from section 615(k)(4) of the Act. We, 

therefore, are not revising the 

regulations in light of Congress’ clear 

intent that, when there is an appeal 

under section 615(k)(3) of the Act by the 

parent or the public agency, the child 

shall remain in the interim alternative 

educational setting chosen by the IEP 

Team pending the hearing officer’s 

decision or until the time period for the 

disciplinary action expires, whichever 

occurs first, unless the parent and the 

public agency agree otherwise. 

Section 300.533 reflects the statutory 

requirements in section 615(k)(4)(A) of 

the Act. For example, consistent with 

§ 300.533, if a child’s parents oppose a 

proposed change in placement at the 

end of a 45-day interim alternative 

educational placement, during the 

pendency of the proceeding to challenge 

the change in placement, the child 

remains in the interim alternative 

educational setting pending the decision 

of the hearing officer or until the 

expiration of the time period for the 

disciplinary action, whichever occurs 

first, unless the parent and the public 

agency agree otherwise. 

Changes: None. 

Comment: One commenter 

recommended that LEAs and SEAs not 

be allowed to have a policy prohibiting 

the IEP Team from deciding where the 

child would ‘‘stay-put’’ during an 

appeal under § 300.532. The commenter 

stated that the IEP Team should have 

the authority to maintain a child in his 

or her current placement when 

appropriate. 

Discussion: Section 300.531, 

consistent with section 615(k)(2) of the 

Act, provides that the IEP Team 

determines the interim alternative 

educational setting for removals that 

constitute a change in placement under 

§ 300.536. Additionally, section 

615(k)(4)(A) of the Act is clear that, 

during an appeal under section 

615(k)(3) of the Act, the child must 

remain in the interim alternative 

education setting pending the decision 

of the hearing officer or until the 

expiration of the time period for the 

disciplinary action expires, whichever 

comes first, unless the parent and the 

LEA agree otherwise. Thus, under the 

Act, whenever a hearing is requested 

under section 615(k)(3) of the Act by the 

parent or the LEA, it is the parties 

involved in the hearing (i.e., the parent 

and the LEA), not the IEP Team, that 

may agree to change the time period of 

the removal or the interim setting for the 

child. We, therefore, do not believe it is 

necessary or appropriate to regulate as 

suggested by the commenter. There is 

nothing in the Act or these regulations, 

however, which would prohibit the 

parents and the LEA from agreeing to 

involve the IEP Team in any decision to 

change the time period of the removal 

or interim alternative educational 

setting. 

Changes: None. 

Protections of Children Not Determined 

Eligible for Special Education and 

Related Services (§ 300.534) 

Comment: A few commenters 

requested including in § 300.534(b)(1) 

language allowing the parent of the 

child to express concerns about his or 

her child orally to supervisory or 

administrative personnel, rather than 

requiring written notification. Other 

commenters requested clarifying what it 

means for parents to ‘‘express concern’’

to school personnel. 

Discussion: Section 615(k)(5)(B)(i) of 

the Act clearly states that parents must 

express concern ‘‘in writing’’ to 

supervisory or administrative personnel, 

or a teacher of the child, that their child 


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is in need of special education and 

related services. To include the 

language recommended by the 

commenters in § 300.534(b)(1) to allow 

the parent of the child to orally express 

their concerns (as opposed to doing so 

in writing) is inconsistent with and 

would impermissibly broaden the 

requirements in the Act. We do not 

believe it is necessary to clarify the 

phrase ‘‘express concern’’ in 

§ 300.534(b) because we believe that, in 

the context of this section, it is 

understood to mean that a parent is 

concerned that his or her child is in 

need of special education and related 

services and expresses that concern in 

writing to the child’s teacher or 

administrative personnel. 

Changes: None. 

Comment: One commenter 

recommended adding to the basis of 

knowledge criteria in § 300.534(b) that if 

the child were currently receiving early 

intervening services under § 300.226 the 

LEA would be deemed to have 

knowledge that a child is a child with 

a disability. 

Discussion: A public agency will not 

be considered to have a basis of 

knowledge under § 300.534(b) merely 

because a child receives services under 

the coordinated, early intervening 

services in section 613(f) of the Act and 

§ 300.226 of these regulations. The basis 

of knowledge criteria is clearly stated in 

section 615(k)(5)(B) of the Act and 

§ 300.534. We do not believe that 

expanding the basis of knowledge 

provision, as recommended by the 

commenter, would be appropriate given 

the specific requirements in the Act. 

However, if a parent or a teacher of a 

child receiving early intervening 

services expresses a concern, in writing, 

to appropriate agency personnel, that 

the child may need special education 

and related services, the public agency 

would be deemed to have knowledge 

that the child is a child with a disability 

under this part. 

Changes: None. 

Comment: A few commenters 

recommended removing the 

requirement in § 300.534(b)(3) that the 

teacher of the child must express 

specific concerns regarding a child’s 

pattern of behavior directly to the 

director of special education of the LEA 

or to other supervisory personnel of the 

LEA ‘‘in accordance with the agency’s 

established child find or special 

education referral system.’’ One of the 

commenters stated that this language is 

confusing and is not required by the 

Act. One commenter requested 

clarifying whether the LEA would be 

deemed to have knowledge if the 

information was relayed by a child’s 

teacher in a written manner not 

consistent with the LEA’s referral 

system. 

Discussion: Since not all child find 

and referral processes in States and 

LEAs would necessarily meet the 

requirement in section 615(k)(5)(B)(iii) 

of the Act that the teacher of the child, 

or other personnel of the LEA, must 

express specific concerns about a 

pattern of behavior demonstrated by the 

child ‘‘directly to the director of special 

education of such agency or to other 

supervisory personnel of the agency,’’

we are removing from § 300.534(b)(3) 

the requirement that concerns be 

expressed in accordance with the 

agency’s established child find or 

special education referral system. 

We continue to believe the child find 

and special education referral system is 

an important function of schools, LEAs, 

and States. School personnel should 

refer children for evaluation through the 

agency’s child or special education 

referral system when the child’s 

behavior or performance indicates that 

they may have a disability covered 

under the Act. Having the teacher of a 

child (or other personnel) express his or 

her concerns regarding a child in 

accordance with the agency’s 

established child find or referral system 

helps ensure that the concerns 

expressed are specific, rather than 

casual comments, regarding the 

behaviors demonstrated by the child 

and indicate that the child may be a 

child with a disability under the Act. 

For these reasons, we would encourage 

those States and LEAs whose child find 

or referral processes do not permit 

teachers to express specific concerns 

directly to the director of special 

education of such agency or to other 

supervisory personnel of the agency, to 

change these processes to meet this 

requirement. 

Changes: In light of some State child 

find procedures, we have removed from 

§ 300.534(b)(3) the requirement that the 

teacher or other LEA personnel must 

express concerns regarding a child’s 

pattern of behavior in accordance with 

the agency’s established child find or 

special education referral system. 

Comment: Several commenters 

recommended clarifying that a child 

who was evaluated and determined 

ineligible for special education and 

related services years ago would not be 

an exception under § 300.534(c) to the 

basis of knowledge requirement in 

paragraph (b) of this section. Many 

commenters recommended that an 

evaluation and eligibility determination 

that is more than three years old not 

prevent deeming an LEA to have a basis 

of knowledge. One of these commenters 

specifically recommended revising 

§ 300.534(c)(1)(i) to clarify that a public 

agency would not be deemed to have 

knowledge that a child is a child with 

a disability if the parent of the child has 

not allowed an evaluation of the child 

pursuant to §§ 300.300 through 300.311 

‘‘within three years prior to the 

incident.’’

Discussion: The exceptions included 

in § 300.534(c) track the statutory 

requirements in section 615(k)(5)(C) of 

the Act. The intent of Congress in 

revising section 615(k)(5) of the Act was 

to ‘‘ensure that schools can 

appropriately discipline students, while 

maintaining protections for students 

whom the school had valid reason to 

know had a disability’’ and that the 

provisions in the Act should not have 

the ‘‘unintended consequence of 

providing a shield against the ability of 

a school district to be able to 

appropriately discipline a student.’’ (S. 

Rpt. No. 108–185, p. 46). We are not 

including time restrictions, as suggested 

by the commenters, to the exceptions in 

paragraph (c) of this section because we 

believe such restrictions are 

unnecessary and could have the 

unintended consequence of hindering 

the school’s ability to appropriately 

discipline a child. We believe the basis 

of knowledge provision in § 300.534(b) 

is sufficient to ensure that a school had 

valid reason to know that a child may 

need special education and related 

services. 

Changes: None. 

Comment: A few commenters 

recommended removing 

§ 300.534(c)(1)(i), which states that a 

public agency would not be deemed to 

have knowledge that a child is a child 

with a disability if the parent has not 

allowed an evaluation of the child 

pursuant to §§ 300.300 through 300.311. 

The commenters stated that this would 

deny children with disabilities FAPE 

and the procedural protections granted 

children with disabilities removed from 

their educational placement for 

disciplinary reasons. 

Discussion: The requirement in 

§ 300.534(c)(1)(i), regarding the 

exception to the basis of knowledge if a 

parent refuses to consent to an 

evaluation, is statutory. Further, 

§ 300.300(a)(3), consistent with section 

614(a)(1)(D)(ii)(I) of the Act, clearly 

states that the public agency may, but is 

not required to, pursue an initial 

evaluation of a child if the parents 

refuse to provide consent, or fail to 

respond to a request to provide consent, 

for the initial evaluation, by utilizing 

the Act’s due process procedures. If a 

public agency chooses not to utilize the 

Act’s due process procedures, the LEA 


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is not considered in violation of the 

requirement to provide FAPE. 

Changes: None. 

Comment: A few commenters 

recommended retaining in 

§ 300.534(c)(2) the language in current 

§ 300.527(c)(1)(i) to clarify that the 

evaluation used to determine whether a 

child is a child with a disability under 

this part must be conducted pursuant to 

§§ 300.300 through 300.311. 

Discussion: It is accurate that the 

evaluation referenced in § 300.534(c)(2) 

must be conducted consistent with the 

evaluation requirements in §§ 300.300 

through 300.311. We agree with the 

commenters that paragraph (c)(2) of this 

section should be amended to make 

clear that the evaluation conducted 

under this paragraph must be conducted 

consistent with the evaluation 

requirements in §§ 300.300 through 

300.311. 

Changes: We have amended 

paragraph (c)(2) to make clear that the 

evaluation under this provision must be 

conducted in accordance with 

§§ 300.300 through 300.311. 

Comment: A few commenters 

recommended amending § 300.534(d)(2) 

to require that if a request is made for 

an evaluation of a child during the time 

period in which the child is subjected 

to a disciplinary removal under 

§ 300.530, the evaluation must be 

completed within ten days of the 

parent’s request and that an eligibility 

determination be made within five days 

of the completion of the evaluation. 

Discussion: We do not believe a 

specific timeline for an expedited 

evaluation or an eligibility 

determination should be included in 

these regulations. What may be required 

to conduct an evaluation will vary 

widely depending on the nature and 

extent of a child’s suspected disability 

and the amount of additional 

information that would be necessary to 

make an eligibility determination. 

However, § 300.534(d)(2)(i), consistent 

with section 615(k)(5)(D)(ii) of the Act, 

specifies that the evaluation in these 

instances be ‘‘expedited’’, which means 

that an evaluation should be conducted 

in a shorter period of time than a typical 

evaluation conducted pursuant to 

section 614 of the Act, which must be 

conducted within 60 days of receiving 

parental consent for the evaluation. (See 

section 614(a)(1)(C)(i)(I) of the Act). 

Further, we believe it would be 

inappropriate to specify the timeframe 

from the completion of an evaluation to 

the determination of eligibility when 

there is no specific statutory basis to do 

so. The Department has long held that 

eligibility decisions should be made 

within a reasonable period of time 

following the completion of an 

evaluation. 

Changes: None. 

Comment: A few commenters stated 

that § 300.534(d)(2) seems to imply that 

when a request is made for an expedited 

evaluation of a child subjected to a 

disciplinary removal, the child would 

receive an educational placement and 

services pending the results of the 

evaluation. 

Discussion: We believe that 

§ 300.534(d) is clear. Section 300.534(d) 

does not require the provision of 

services to a child while an expedited 

evaluation is being conducted, if the 

public agency did not have a basis of 

knowledge that the child was a child 

with a disability. An educational 

placement under § 300.534(d)(2)(ii) may 

include a suspension or expulsion 

without services, if those measures are 

comparable to disciplinary measures 

applied to children without disabilities 

who engage in comparable behavior. Of 

course, States and LEAs are free to 

choose to provide services to children 

under § 300.534(d). 

Changes: None. 

Referral to and Action by Law 

Enforcement and Judicial Authorities 

(§ 300.535) 

Comment: One commenter stated that 

the requirement in § 300.535(b)(2), 

which requires a public agency 

reporting a crime to transmit copies of 

the child’s special education and 

disciplinary records only to the extent 

that the transmission is permitted by the 

Family Educational Rights and Privacy 

Act (FERPA), is beyond the scope of the 

Act and should be removed. 

Discussion: We do not believe that 

§ 300.535(b)(2) goes beyond the scope of 

the Act as sections 612(a)(8) and 617(c) 

of the Act direct the Secretary to take 

appropriate action, in accordance with 

FERPA, to assure the confidentiality of 

personally identifiable information 

contained in records collected or 

maintained by the Secretary and by 

SEAs and LEAs. We therefore are not 

removing this provision. We maintain 

that the provisions in section 

615(k)(6)(B) of the Act, as reflected in 

§ 300.535(b)(2), must be read consistent 

with the disclosures permitted under 

FERPA for the education records of all 

children. Under FERPA, personally 

identifiable information (such as the 

child’s status as a special education 

child) can only be released with 

parental consent, except in certain very 

limited circumstances. Therefore, the 

transmission of a child’s special 

education and disciplinary records 

under paragraph (b)(2) of this section 

without parental consent is permissible 

only to the extent that such 

transmission is permitted under FERPA. 

Changes: None. 

Change of Placement Because of 

Disciplinary Removals (§ 300.536) 

Comment: A few commenters 

expressed concern that the requirements 

in § 300.536 do not account for schools 

with zero tolerance policies. 

Discussion: We believe the provisions 

in §§ 300.530 through 300.536 do 

account for zero tolerance policies by 

providing public agencies the flexibility 

to implement discipline policies as they 

deem necessary to create safe 

classrooms and schools for teachers and 

children as long as those policies are 

fair and equitable for all children and 

protect the rights of children with 

disabilities. If a child with a disability 

is removed from his or her current 

placement and placed in an interim 

alternative educational setting, another 

setting, or suspended or expelled under 

the public agency’s zero tolerance 

policy, the disciplinary requirements in 

§§ 300.530 through 300.536 apply. 

Therefore, we do not believe it is 

necessary to include language in 

§ 300.536 regarding a public agency’s 

zero tolerance policy as such policies 

are irrelevant to what constitutes a 

change in placement for disciplinary 

removals under the Act. 

Changes: None. 

Comment: Many commenters 

recommended removing proposed 

§ 300.536(b) (new § 300.536(a)(2)) 

regarding a series of removals that 

constitute a change in placement stating 

it has no statutory basis. 

Discussion: We believe section 

615(k)(1)(B) of the Act regarding the 

authority of school personnel to remove 

children with disabilities for not more 

than 10 school days, to the same extent 

as nondisabled children, provides the 

statutory basis for proposed § 300.536(b) 

(new § 300.536(a)(2)). This section of the 

Act does not permit using repeated 

disciplinary removals of 10 school days 

or less as a means of avoiding the 

normal change in placement protections 

under Part B of the Act. 

Changes: None. 

Comment: Numerous commenters 

recommended removing the reference to 

manifestation determination in 

proposed § 300.536(b)(2) (new 

§ 300.536(a)(2)(ii)). Several of these 

commenters stated that it is unnecessary 

since the manifestation determination is 

reserved for removals longer than 10 

school days. Some commenters stated if 

the language in proposed paragraph 

(b)(1) of this section (new paragraph 

(a)(2)(i) of this section) that a series of 

removals constitutes a pattern because 


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the series of removals total more than 10 

school days in a school year is going to 

be retained, proposed paragraph (b)(2) 

of this section (new paragraph (a)(2)(ii) 

of this section) should be eliminated 

because it is excessive and has no basis 

in the Act. Other commenters found the 

manifestation determination 

requirement in proposed paragraph 

(b)(2) of this section ‘‘circular’’ because 

requiring a child’s behavior to be a 

manifestation of his or her disability 

before determining that a change in 

placement has occurred under proposed 

paragraph (b)(2) of this section (new 

paragraph (a)(2)(ii) of this section) and 

then requiring that a manifestation 

determination be conducted under 

§ 300.530(e), whenever a child’s 

removal constitutes a change in 

placement, is redundant and confusing. 

Discussion: We agree with the 

commenters that requiring that a child’s 

behavior must be a manifestation of the 

child’s disability before determining 

that a series of removals constitutes a 

change in placement under proposed 

paragraph (b) of this section (new 

paragraph (a)(2) of this section) should 

be removed. We believe it is sufficient 

for the public agency to conclude that 

a change in placement has occurred if 

a child has been subjected to a series of 

removals that total more than 10 school 

days in a school year, the behaviors are 

substantially similar in nature, and such 

additional factors as the length of each 

removal, the total amount of time the 

child has been removed, and the 

proximity of the removals to one 

another support the premise that the 

series of removals constitute a pattern. 

However, our removal of the 

manifestation determination under 

proposed paragraph (b)(2) of this section 

(new paragraph (a)(2) of this section) 

does not eliminate the obligation to 

conduct a manifestation determination 

under § 300.530(e) if the public agency’s 

determination is that the series of 

removals constitutes a change in 

placement. Section 300.530(e) requires 

that a manifestation determination be 

conducted within 10 school days of any 

decision to change the placement of a 

child with a disability because of a 

violation of a code of student conduct. 

Changes: We have restructured 

proposed § 300.536(b) as follows: 

Proposed paragraph (b)(1) of this section 

is redesignated as new paragraph 

(a)(2)(i); proposed paragraph (b)(2) of 

this section is redesignated as new 

paragraph (a)(2)(ii); proposed paragraph 

(b)(3) of this section is redesignated as 

paragraph (a)(2)(iii). We also removed 

from new paragraph (a)(2)(ii) of this 

section (proposed paragraph (b)(2) of 

this section) the requirement that a 

child’s behavior must have been a 

manifestation of the child’s disability 

before determining that a series of 

removals constitutes a change in 

placement under § 300.536. 

Comment: One commenter 

recommended revising proposed 

§ 300.536(b)(2) (new § 300.536(a)(2)(ii)) 

to clarify that the child’s behavior must 

be substantially similar to the child’s 

behavior in ‘‘previous’’ incidents that 

resulted in the series of removals. 

Discussion: Our intent in including 

new § 300.536(a)(2)(ii) (proposed 

§ 300.536(b)(2)) to these regulations is to 

assist in the appropriate application of 

the change in placement provisions in 

paragraph (a)(2) of this section. We 

concur with the commenter and believe 

adding the reference to ‘‘previous’’

incidents provides clarity to the 

provision that, when determining 

whether a child has been subjected to a 

series of removals that constitute a 

pattern under § 300.536(a)(2), school 

personnel should determine whether 

the child’s behavior that resulted in the 

removal is substantially similar to the 

previous incidents that resulted in the 

series of removals. 

Changes: New § 300.536(a)(2)(ii) 

(proposed § 300.536(b)(2)) has been 

amended to reference the child’s 

behavior in ‘‘previous’’ incidents that 

resulted in the series of removals. 

Comment: Many commenters 

requested the regulations define 

‘‘substantially similar behavior.’’ Many 

commenters expressed concern that 

there is no precedent or statutory 

support for the use of ‘‘substantially 

similar behavior’’ and requested 

explaining the statutory basis for 

including the provision. One 

commenter suggested including a 

provision in proposed § 300.536(b)(2) 

that substantially similar behaviors 

must have been recognized by the IEP 

Team or be included in the IEP as 

related to the child’s disability. One 

commenter stated that what constitutes 

‘‘substantially similar behavior’’ is 

highly subjective, prone to overuse, and 

likely to lead to litigation. 

Discussion: We are not changing the 

regulations because, in light of the 

Department’s longstanding position that 

a change in placement has occurred if 

a child has been subjected to a series of 

disciplinary removals that constitute a 

pattern, we believe requiring the public 

agency to carefully review the child’s 

previous behaviors to determine 

whether the behaviors, taken 

cumulatively, are substantially similar 

is an important step in determining 

whether a series of removals of a child 

constitutes a change in placement, and 

is necessary to ensure that public 

agencies appropriately apply the change 

in placement provisions. Whether the 

behavior in the incidents that resulted 

in the series of removals is 

‘‘substantially similar’’ should be made 

on a case-by-case basis and include 

consideration of any relevant 

information regarding the child’s 

behaviors, including, where 

appropriate, any information in the 

child’s IEP. However, we do not believe 

it is appropriate to require in these 

regulations that the ‘‘substantially 

similar behaviors’’ be recognized by the 

IEP Team or included in the child’s IEP 

as recommended by the commenter. The 

commenter is correct that what 

constitutes ‘‘substantially similar 

behavior’’ is a subjective determination. 

However, we believe that when the 

child’s behaviors, taken cumulatively, 

are objectively reviewed in the context 

of all the criteria in paragraph (a)(2) of 

this section for determining whether the 

series of behaviors constitutes a change 

in placement, the public agency will be 

able to make a reasonable determination 

as to whether a change in placement has 

occurred. Of course, if the parent 

disagrees with the determination by the 

public agency, the parent may request a 

due process hearing pursuant to 

§ 300.532. 

Changes: None. 

Comment: One commenter requested 

an explanation of what recourse parents 

have if they disagree with the public 

agency’s change in placement decision 

for a child who violates a code of 

student conduct. 

Discussion: If a parent of a child with 

a disability disagrees with any decision 

regarding a disciplinary change in 

placement of a child under §§ 300.530 

and 300.531, or the manifestation 

determination under § 300.530(e), the 

parent may request a due process 

hearing pursuant to § 300.532. 

Changes: None. 

Comment: Several commenters 

requested clarifying who determines 

whether a series of removals under 

proposed § 300.536(b) (new paragraph 

(a)(2) of this section) constitutes a 

change in placement. One commenter 

recommended adding in proposed 

paragraph (b) language from the 

Analysis of Comments and Changes to 

current § 300.520 clarifying that any 

decision regarding whether a pattern of 

removals constitutes a change in 

placement must be made on a case-bycase basis by the public agency. (March 

12, 1999 (64 FR 12618)). 

Discussion: Whether a pattern of 

removals constitutes a ‘‘change in 

placement’’ under new paragraph (a)(2) 

of this section (proposed § 300.536(b)) 

must be determined on a case-by-case 


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basis by the public agency. We agree it 

is important to clarify this position in 

these regulations and is necessary to 

ensure proper implementation of this 

section. We are including the language 

from the Federal Register of March 12, 

1999 (64 FR 12618), (as suggested by the 

commenter. 

Changes: A new paragraph (b) has 

been added to § 300.536 to clarify that 

the public agency (subject to review 

through the due process and judicial 

proceedings) makes the determination, 

on a case-by-case basis, whether a 

pattern of removals constitutes a change 

in placement. 

State Enforcement Mechanisms 

(§ 300.537) 

Comment: None. 

Discussion: New § 300.537 is 

addressed under the Analysis of 

Comments and Changes section for this 

subpart in response to comments on 

§ 300.510(d). 

Changes: We have added a new 

§ 300.537 on State enforcement 

mechanisms to clarify that, 

notwithstanding §§ 300.506(b)(7) and 

new 300.510(d)(2)(proposed 

§ 300.510(c)(2)), nothing in this part 

prevents a State from providing parties 

to a written agreement reached as a 

result of a mediation or resolution 

process other mechanisms to enforce 

that agreement, provided that such 

mechanisms are not mandatory and do 

not deny or delay the right of the parties 

to seek enforcement of the written 

agreement in a State court of competent 

jurisdiction or in a district court of the 

United States. We have also added a 

cross reference to new § 300.573 in new 

§ 300.510(d) (proposed § 300.510(c)), 

regarding written settlement 

agreements. 

Subpart F—Monitoring, Enforcement, 

Confidentiality, and Program 

Information 

Monitoring, Technical Assistance, and 

Enforcement 

State Monitoring and Enforcement 

(§ 300.600) 

Comment: Several commenters 

recommended modifying § 300.600 to 

include language from section 616(a)(1) 

and (a)(3) of the Act to clarify that the 

Department, like the States, has the 

authority and obligation to monitor and 

enforce Part B of the Act. The 

commenters recommended that the 

requirements in section 616(a)(1) of the 

Act be included in the regulations 

because improving accountability is one 

of the most important goals of this 

reauthorization and the Act mandates 

the Secretary to monitor and enforce the 

Act. 

Discussion: We take the responsibility 

to monitor and enforce compliance with 

the Act seriously, but that responsibility 

comes from the Act, and from the 

Department’s inherent authority to 

ensure that the laws it is charged with 

implementing are carried out, and not 

from these regulations. In general, we do 

not believe that it is necessary to 

include language on the responsibility 

of the Secretary in the regulations, as, 

under § 300.2, the regulations apply to 

States that receive payments under Part 

B of the Act and public agencies of 

those States, but not to the Department. 

Information on our monitoring and 

enforcement activities is available on 

the Department’s Web site at: http:// 

www.ed.gov/policy/speced/guid/idea/ 

monitor/index.html. 

Changes: None. 

Comment: Several commenters stated 

that the monitoring priority areas in 

section 616(a)(3) of the Act should be 

included in § 300.600. 

Discussion: We agree that the 

monitoring priority areas in section 

616(a)(3) of the Act related to State 

responsibilities should be included in 

the regulations because these provisions 

require each State to monitor its LEAs 

in each of the monitoring priority areas 

specified in the Act. Accordingly, we 

will add further clarification regarding 

the monitoring priority areas from 

section 616(a)(3) of the Act in § 300.600. 

Changes: A new paragraph (d) has 

been added to § 300.600 to include the 

State monitoring priority areas in 

section 616(a)(3) of the Act. 

Comment: One commenter expressed 

concern that there will be no 

accountability on the part of States and 

the Department for complying with the 

requirements in section 616(a)(1) and 

(a)(3) of the Act because the regulations 

do not reflect these requirements. 

Discussion: The requirements in 

section 616(a)(1) of the Act, relating to 

a State’s monitoring responsibilities, are 

included in the regulations in 

§ 300.600(a). Further, as indicated in the 

response to the previous comment, a 

provision regarding the State’s 

responsibility to monitor LEAs located 

in the State using the indicators in the 

monitoring priority areas in section 

616(a)(3) of the Act has been added in 

new § 300.600(d). Regarding the 

Secretary’s monitoring responsibility, 

section 616(a)(1) of the Act is clear that 

the Secretary must monitor 

implementation of Part B of the Act 

through the oversight of States’ exercise 

of general supervision and through the 

State performance plans. Sections 

616(a)(3) and 616(b) further describe the 

Secretary’s responsibilities to monitor 

States’ implementation of Part B of the 

Act. In addition, note 253–258 of the 

Conf. Rpt. No. 108–779, p. 232, provides 

that the Secretary must request such 

information from States and 

stakeholders as is necessary to 

implement the purposes of the Act, 

including the use of on-site monitoring 

visits and file reviews to enforce the 

requirements of the Act. We continue to 

believe it is unnecessary to include the 

Secretary’s obligations in the 

regulations. We also do not believe 

further clarification regarding State 

accountability is necessary in § 300.600. 

Changes: None. 

Comment: One commenter noted that 

§ 300.600(c) requires States to use 

quantifiable indicators and such 

qualitative indicators as are needed to 

adequately measure performance in the 

monitoring priority areas identified in 

section 616(a)(3) of the Act. The 

commenter expressed concern that this 

requirement expands the data collection 

burden on States and focuses on inputs, 

processes, and whether certain 

procedural rights are met, rather than 

focusing on educational results and 

outcomes for children with disabilities. 

Discussion: Section 300.600 reflects 

the requirements in the Act and 

Congress’ determination that collection 

of this data is necessary to fulfill the 

purposes of the Act. Specifically, 

section 616(b)(2) of the Act requires 

each State to develop a State 

performance plan that includes 

measurable and rigorous targets for the 

indicators established under the 

monitoring priority areas. As directed 

by section 616(a)(3) of the Act, the 

Secretary also has established 

quantifiable indicators in each of the 

monitoring priority areas listed in the 

Act and these regulations. These 

indicators focus on improving 

educational results and functional 

outcomes for children with disabilities, 

and include issues such as the provision 

of services in the LRE, participation and 

performance on Statewide assessments, 

and graduation and dropout rates. In 

addition, important systemic indicators, 

such as monitoring, mediation, and 

child find, are included. More 

information about State performance 

plans, the indicators, and the 

Department’s review of the State 

performance plans is available on the 

Department’s Web site at: http:// 

www.ed.gov/policy/speced/guid/idea/ 

bapr/index.html. 

Changes: None. 

Comment: One commenter 

recommended changing § 300.600 to 

require States to develop policies and 

procedures to analyze the performance 


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of each public agency; develop written 

policies and procedures to guide 

monitoring activities; and develop and 

maintain a stakeholder group, which 

would include public school 

administrators, advocates, family 

members, and others, to guide 

monitoring and enforcement activities. 

Discussion: Section 300.149(b), 

consistent with section 612(a)(11) of the 

Act, already requires States to have 

policies and procedures in effect to 

ensure compliance with the monitoring 

and enforcement requirements in 

§§ 300.600 through 300.602 and 

§§ 300.606 through 300.608. Sections 

300.167 through 300.169, consistent 

with section 612(a)(21) of the Act, 

require States to establish and maintain 

an advisory panel with broad and 

diverse representation to advise States 

on, among other things, developing 

evaluations and corrective action plans 

to address findings identified in Federal 

monitoring reports. Accordingly, we do 

not believe any modification of 

§ 300.600, regarding State monitoring 

procedures, is necessary. 

Changes: None. 

Comment: Several commenters 

recommended modifying § 300.600 to 

require States to establish a committee, 

which includes advocates to oversee 

monitoring and enforcement activities. 

A number of commenters suggested that 

this group, at a minimum, include 

representatives of PTIs; protection and 

advocacy groups; and parent, disability 

advocacy, and education organizations. 

Several commenters also 

recommended requiring the advisory 

committee to provide advice on the 

development of the State’s performance 

goals and indicators required in 

§ 300.157, the State’s performance plan, 

including measurable and rigorous 

targets required in § 300.601(a)(1) and 

(a)(3), the State’s report to the public 

required in § 300.602(b)(2), the State’s 

corrective action or improvement plan 

under § 300.604(b)(2)(i), and other State 

monitoring, improvement, and 

enforcement activities. 

Discussion: The State advisory panel, 

required in §§ 300.167 through 300.169, 

consistent with section 612(a)(21)(A) of 

the Act, addresses many of the 

commenters’ suggestions. The purpose 

of the State advisory panel, as stated in 

§ 300.167 and section 612(a)(21)(A) of 

the Act, is to provide policy guidance to 

the SEA with respect to special 

education and related services for 

children with disabilities. Pursuant to 

§ 300.168 and section 612(a)(21)(B) of 

the Act, a broad membership is 

required. The duties of the panel are, 

among other things, to advise the SEA 

on unmet needs, evaluations, and 

corrective action plans to address 

findings identified in Federal 

monitoring reports, consistent with 

§ 300.169 and section 612(a)(21)(D) of 

the Act. However, although we believe 

that broad stakeholder involvement in 

the development of the State 

performance plans and annual 

performance reports is very important, 

we decline to regulate that a specific 

group be involved in their development. 

We have, however, provided guidance 

in OSEP’s August 9, 2005 memorandum 

to States, Submission of Part B State 

Performance Plans and Annual 

Performance Reports, (OSEP Memo 05–

12), located at http://www.ed.gov/ 

policy/speced/guid/idea/bapr/ 

index.html, which directs States to 

provide information in their State 

performance plans on how they 

obtained broad input from stakeholders 

on the State performance plan. 

Accordingly, we find it unnecessary to 

add any further clarification in 

§ 300.600. 

Changes: None. 

Comment: Some commenters 

recommended modifying § 300.600(b)(2) 

to clarify that monitoring and 

enforcement activities also apply to 

programs under Part C of the Act. A few 

commenters suggested clarifying that 

Part C of the Act should be monitored 

to evaluate how well it serves infants 

and toddlers with disabilities and their 

families. 

Discussion: Section 300.600 applies 

only to Part B of the Act. However, the 

commenters are correct that the 

monitoring and enforcement activities 

in section 616 of the Act also apply to 

Part C of the Act, as provided in section 

642 of the Act. The Department will 

address this recommendation in the 

promulgation of regulations 

implementing Part C of the Act. 

Changes: None. 

Comment: A few commenters 

recommended clarifying that the 

monitoring priority in section 

616(a)(3)(A) of the Act, relating to the 

provision of FAPE in the LRE, should be 

based on the unique needs of the 

individual child. One commenter stated 

that the regulations should stress 

individualization when determining 

LRE. This commenter recommended 

including language from note 89 of the 

Conf. Rpt. No. 108–779, p. 186, which 

highlights Congress’ intent that each 

public agency ensure that a ‘‘continuum 

of alternative placements (instruction in 

regular classes, special classes, special 

schools, home instruction, and 

instruction in hospitals and institutions) 

is available to meet the needs of 

children with disabilities for special 

education and related services.’’

Discussion: Section 300.115, 

consistent with section 612(a)(5) of the 

Act, requires each public agency to 

ensure that a continuum of alternative 

placements (including instruction in 

regular classes, special classes, special 

schools, home instruction, and 

instruction in hospitals and institutions) 

is available to meet the needs of 

children with disabilities for special 

education and related services. The LRE 

provisions are intended to ensure that a 

child with a disability is served in a 

setting where the child can be educated 

successfully and that placement 

decisions are individually determined 

based on each child’s abilities and 

needs. We do not believe that the 

change recommended by the commenter 

is needed. 

Changes: None. 

Comment: One commenter 

recommended changing § 300.600 to 

specify that the Department’s 

monitoring of States for compliance 

with the LRE requirements in 

§§ 300.114 through 300.117 include a 

review of IEPs to determine if: (1) 

Placements were based on the 

individual unique needs of each child; 

(2) placements were requested by 

parents; (3) IEP Teams followed the IEP 

requirements in §§ 300.320 through 

300.328; (4) children received the 

services required to participate and 

progress in the general curriculum; (5) 

children are in appropriate 

environments; and (6) the educational 

and emotional advancements of 

children were considered. The 

commenter recommended adding 

language to direct individuals who 

monitor the implementation of the Act 

to look further than ‘‘numbers’’ when 

monitoring the LRE requirements. 

Discussion: As noted in section 

616(a)(1) of the Act, the Secretary 

monitors implementation of the Act 

through oversight of States’ exercise of 

general supervision and States’

performance plans. Section 616(a)(1) of 

the Act further states that the Secretary 

requires States to monitor and enforce 

the implementation of the Act by LEAs. 

The activities listed by the commenter 

are not the type of monitoring activities 

the Act requires the Secretary to 

undertake. The commenter’s listed 

activities are more appropriately the 

responsibilities of States as they monitor 

the implementation of the Act in their 

LEAs. 

Changes: None. 

Comment: One commenter 

recommended avoiding references to the 

Act in §§ 300.600 through 300.609 when 

references to the regulations could 

accomplish the same result. 


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Discussion: We agree with the 

commenter and will revise §§ 300.600 

through 300.609 accordingly. 

Changes: We have revised §§ 300.600 

through 300.609 by replacing statutory 

citations with relevant regulatory 

citations, where appropriate. 

Comment: One commenter 

recommended clarifying that racial 

disproportionality in educational 

placements falls within the monitoring 

priority areas for monitoring and 

enforcement. 

Discussion: New § 300.600(d), 

consistent with section 616(a)(3) of the 

Act, includes disproportionate 

representation of racial and ethnic 

groups in special education and related 

services (to the extent the representation 

is the result of inappropriate 

identification) as a monitoring priority. 

Because the monitoring priority area 

clearly refers to disproportionate 

representation to the extent the 

representation is a result of 

inappropriate identification of children 

with disabilities, and not placement, we 

do not believe we can include 

disproportionate representation 

resulting from educational placement 

within the scope of this monitoring 

priority area. 

Changes: None. 

Comment: One commenter 

recommended including a requirement 

in § 300.600(c) that States develop 

corrective action plans for each LEA 

monitored to improve performance in 

the monitoring priority areas. The 

commenter also suggested requiring that 

corrective action plans be completed by 

the State within one year of the 

monitoring report. 

Discussion: Section 300.600(a), 

consistent with section 616(a)(1)(C) of 

the Act, requires States to monitor 

implementation and enforcement of the 

Act. As discussed elsewhere in this 

section in response to comments 

regarding § 300.604 (Enforcement), we 

have revised § 300.600(a) to identify the 

specific enforcement actions included 

in § 300.604 that are appropriate for 

States to use with LEAs. The new 

§ 300.600(a) identifies specific methods 

that must be used to ensure correction 

when an LEA has been determined to 

need assistance for two consecutive 

years or to need intervention for three 

or more consecutive years. For example, 

§ 300.600(a) refers to § 300.604(b)(2)(i), 

which discusses the preparation of a 

corrective action or improvement plan. 

In addition, new § 300.608(b) clarifies 

that States can use other authority 

available to them to monitor and enforce 

the Act. States need the flexibility to 

select the most appropriate mechanism 

to ensure correction in a timely manner. 

Requiring that corrective action plans be 

developed in every instance is overly 

prescriptive when there are multiple 

methods that can be used. Accordingly, 

we do not think it is necessary to make 

the change suggested by the commenter. 

Changes: None. 

State Performance Plans and Data 

Collection (§ 300.601) 

Comment: One commenter expressed 

concern that § 300.601(a)(3) and (b)(1) 

over-regulate by requiring measurable 

and rigorous targets beyond those 

established in the Act. The commenter 

expressed concern that this would result 

in additional data collection and 

analyses and require substantial 

administrative staff time and additional 

costs at the State and local levels. The 

commenter stated that, while the 

Department may monitor any area and 

review any data, it is unnecessary to 

establish additional non-statutory 

indicators and targets. 

Discussion: Section 300.601(a)(3), 

consistent with section 616(a)(3) of the 

Act, requires the Secretary to establish 

indicators to adequately measure 

performance in the monitoring priority 

areas. Under section 616(b)(2)(A) of the 

Act, States are required to establish 

measurable and rigorous targets for the 

indicators established under the 

monitoring priority areas described in 

section 616(a)(3). The Department 

established indicators only in the three 

monitoring priority areas listed in new 

§ 300.600(d), consistent with section 

616(a)(3) of the Act. Given that States 

are required to establish targets for 

indicators established under the 

monitoring priority areas and indicators 

were established only under the three 

statutory monitoring priority areas, the 

Secretary is not requiring measurable 

and rigorous targets in areas beyond 

those established in the Act. We 

disagree with the commenter and do not 

believe the Department has overregulated in this area. 

Changes: None. 

Comment: A few commenters 

recommended changing § 300.601 to 

specify that States must provide an 

opportunity for public comment in 

developing the State performance plan. 

Discussion: We agree that the public 

should be represented in developing 

State performance plans. In note 253–

258 of the Conf. Rpt. No. 108–779, p. 

232, Congress stated its expectation that 

State performance plans, indicators, and 

targets be developed with broad 

stakeholder input and public 

dissemination. OSEP Memo 05–12 

requires States to provide information in 

the overview section of the State 

performance plan, clarifying how the 

State obtained broad input from 

stakeholders on the State performance 

plan. Furthermore, §§ 300.167 through 

300.169 clarify the State’s responsibility 

to establish and maintain an advisory 

panel, whose membership consists of 

broad and diverse representation, to 

advise States on many issues, including 

developing evaluations and reporting on 

data to the Secretary. Accordingly, we 

believe that no additional clarification is 

needed. 

Changes: None. 

Comment: One commenter expressed 

concern that the requirement in 

§ 300.601(a)(3) reflects a ‘‘one-size-fitsall’’ approach that is not in the Act 

because it requires the Secretary to 

establish indicators for the State 

performance plan and annual 

performance reports and requires States 

to collect data on each of the indicators. 

Discussion: Section 616(a)(3) of the 

Act requires the Secretary to establish 

quantifiable indicators in each of the 

monitoring priority areas, and 

qualitative indicators, as needed, to 

adequately measure performance. 

Section 300.601(a) reflects this 

requirement. The requirement that each 

State establish measurable and rigorous 

targets for the indicators established by 

the Secretary and collect relevant data is 

set forth in section 616(b)(2)(B) of the 

Act. We do not agree that this presents 

a one-size-fits-all approach because 

States set their own targets for 

indicators such as graduation, dropout, 

and performance on assessments, and 

identify improvement strategies specific 

to the unique circumstances of their 

State. In addition, OSEP Memo 05–12 

includes the indicators established by 

the Secretary and also indicates that 

States have the flexibility to establish 

their own indicators, in addition to the 

indicators established by the Secretary. 

Changes: None. 

Comment: One commenter 

recommended amending § 300.601 to 

specify that, as part of the State’s 

performance plan, measurable and 

rigorous targets are only required for the 

indicators established by the Secretary 

and are not required for any additional 

indicators established by the State. 

Discussion: Pursuant to the guidance 

in OSEP Memo 05–12, the Secretary has 

established indicators under the three 

monitoring priority areas in new 

§ 300.600(d), consistent with section 

616(a)(3) of the Act. States may choose 

to add additional indicators if there are 

other areas the State wishes to improve. 

If the State adds indicators to the State 

Performance Plan, the State must 

include measurable and rigorous targets 

for each additional indicator because 

the purpose of the State performance 


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plan is to evaluate the State’s efforts to 

implement the statutory requirements 

and describe how the State will 

improve. States are free to have 

additional indicators that are not 

included in the State performance plan 

and these indicators would not need to 

have measurable and rigorous targets. 

Changes: None. 

State Use of Targets and Reporting 

(§ 300.602) 

Comment: A few commenters 

recommended modifying 

§ 300.602(b)(1)(A) to require each LEA 

to work with an LEA monitoring 

stakeholder advisory committee that 

would advise the LEA on analyzing and 

reporting its performance on the targets 

in the State performance plan and on 

developing LEA plans. The commenters 

stated that, at a minimum, the advisory 

committee should include 

representatives of parents, disability 

advocacy groups, and other 

organizations. 

Discussion: There is nothing in 

section 616 of the Act that requires 

LEAs to establish local stakeholder 

groups. Given the wide variation in the 

size of LEAs across the country and the 

wide variety of issues facing those 

LEAs, we do not believe that a Federal 

requirement is appropriate. States have 

the discretion to establish (or have their 

LEAs establish) local advisory groups to 

advise the LEAs, if they so choose. 

Changes: None. 

Comment: One commenter 

recommended modifying § 300.602 to 

require each State to include LEA 

corrective action plans (including 

indicators, targets, findings, and 

timelines for LEAs to correct any 

findings) in the State’s report to the 

public on the performance of each LEA 

in the State on the targets in the State’s 

performance plan. 

Discussion: Section 300.602, 

consistent with section 616(b)(2)(C) of 

the Act, requires States to report 

annually on the performance of each 

LEA against targets in the State 

performance plan. We believe requiring 

States to include LEAs’ corrective action 

plans in the States’ public reports would 

create additional burden for States that 

is not required by the Act. 

Changes: None. 

Comment: Several commenters 

recommended revising § 300.602 to 

specify that the State performance plan 

and the public report on LEAs’

performance must be in language that is 

accessible to, and understandable by, all 

interested parties. 

Discussion: The Department expects 

the information that a State reports in its 

annual performance reports and in the 

public reports on LEA performance will 

be made available in an understandable 

and uniform format across the State, 

including alternative formats upon 

request, and, to the extent practicable, 

in a language that parents understand. 

We do not believe it is necessary to add 

a specific requirement to the regulations 

because other Federal laws and policies 

already require that information to 

parents be available in alternative 

formats and to parents who are limited 

English proficient. Specifically, Title VI 

of the Civil Rights Act of 1964 requires 

SEAs and LEAs to communicate to 

parents with limited English proficiency 

what is communicated to parents who 

are not limited English proficient. 

Under Title VI, SEAs and LEAs have 

flexibility in determining what mix of 

oral and written translation services 

may be necessary and reasonable for 

communicating this information. 

Similarly, Executive Order 13166 

requires that recipients of Federal 

financial assistance take reasonable 

steps to ensure meaningful access by 

individuals with limited English 

proficiency. For individuals with 

disabilities, title II of the Americans 

with Disabilities Act requires that State 

and local governments, and Section 504 

of the Rehabilitation Act of 1973 

requires that recipients of Federal 

financial assistance, ensure that their 

communications with individuals with 

disabilities are as effective as their 

communications with others, and that 

appropriate auxiliary aids and services 

are available when necessary to ensure 

effective communication. 

Changes: None. 

Comment: One commenter suggested 

that the annual performance report 

include cross-references or links to the 

State report card and local report cards 

on the academic performance of 

children with disabilities under the 

ESEA. 

Discussion: States may choose, but are 

not required, to include in the annual 

performance report the cross-references 

or links suggested by the commenter. 

States also may choose, but are not 

required, to use their ESEA report cards 

for reporting annually on the 

performance of LEAs on the indicators 

in the State performance plan. We do 

not believe it is appropriate to require 

States to cross-reference or link to ESEA 

report cards because it is overly 

burdensome and may create confusion 

because the indicators and timeframe 

for reporting may not be the same 

between the two reporting systems. 

Changes: None. 

Comment: One commenter 

recommended requiring States to post 

their monitoring reports of LEAs on the 

States’ Web site and make reports on 

monitoring activities for each LEA 

available to the public in written format 

and to the media. 

Discussion: States have the discretion 

to decide how these reports are made 

available to the public. There is nothing 

in the Act that requires States to post 

monitoring reports of LEAs on the 

States’ Web site or through other means. 

However, States may, if they wish, make 

such postings. 

Changes: None. 

Comment: One commenter suggested 

removing § 300.602(b)(1)(ii), which 

requires a State to include in its report 

to the public on the performance of each 

LEA, the most recent performance data 

on each individual LEA and the date the 

data were obtained, if the State collects 

these data through monitoring or 

sampling. 

Discussion: We believe that the data 

we are requiring the States to provide 

under § 300.602(b)(1)(ii) are necessary 

for the proper implementation of the 

Act. Providing the most recent LEA 

performance data and the date the data 

were obtained will reduce data burden 

while maintaining the States’

accountability for results, specifically 

related to indicator data that are more 

difficult to collect because those data 

are not collected through State-reported 

data collection systems under section 

618 of the Act. However, the proposed 

regulations were not as clear as they 

should have been about the conditions 

under which States may use monitoring 

and sampling data. Therefore, we are 

revising § 300.601(b) by adding a new 

provision that specifies that if the 

Secretary permits States to collect data 

on specific indicators through State 

monitoring or sampling, and a State 

chooses to collect data on those 

indicators through State monitoring or 

sampling, the State must collect data on 

those indicators on each LEA at least 

once during the period of the State 

performance plan. This will require that 

States collect data to assess each LEA’s 

performance on indicators for which 

State monitoring or sampling data are 

permitted during the period of the State 

performance plan, so that the public 

will receive specific information about 

each LEA. We also are revising 

§ 300.602(b)(1)(ii) to make clear that the 

required information about specific 

LEAs would only have to be included in 

the reports to the public on LEA 

performance required by 

§ 300.602(b)(1)(i)(A), which should 

prevent this provision from being 

interpreted to require LEA-specific 

reporting to the Secretary. 

Changes: We have renumbered 

§ 300.601(b)(2) as § 300.601(b)(3) and 


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added a new § 300.601(b)(2) to specify 

that, if permitted by the Secretary, if a 

State collects data on an indicator 

through State monitoring or sampling, 

the State must collect data on the 

indicator at least once during the period 

of the State performance plan. We also 

have revised § 300.602(b)(1)(ii) to 

provide a more specific reference to the 

public report required under 

§ 300.602(b)(1)(i)(A). 

Comment: One commenter 

recommended that § 300.602 specify 

that data on disproportionality be 

reported to the public, pursuant to 

sections 616(b)(2)(C) and 618 of the Act. 

Discussion: The provisions in 

§ 300.602 already include the 

requirement suggested by the 

commenter. Section 300.602, consistent 

with section 616(b)(2)(C) of the Act, 

requires each State to use the targets 

established in its State performance 

plan and the monitoring priority areas 

described in § 300.600(d), to analyze the 

performance of each LEA in the State, 

and to report annually to the public on 

such performance. As described in new 

§ 300.600(d), the monitoring priority 

areas on which the State will report 

include the disproportionate 

representation of racial and ethnic 

groups in special education and related 

services, to the extent the 

disproportionate representation is the 

result of inappropriate identification. 

Accordingly, States are required to 

report this information to the public. 

States must establish targets on each of 

the indicators set by the Secretary. 

We also note that § 300.642(a), 

consistent with section 618(b) of the 

Act, requires that data collected 

pursuant to section 618 of the Act be 

reported publicly. These data will 

include State-level data on the number 

and percentage of children with 

disabilities by race and ethnicity on a 

number of measures, including 

identification as children with 

disabilities, placement, graduation and 

drop-out, and discipline. Accordingly, 

we do not believe any further changes 

to the regulations are necessary. 

Changes: None. 

Secretary’s Review and Determination 

Regarding State Performance (§ 300.603) 

Comment: One commenter expressed 

concern that the tone and substance of 

the monitoring and enforcement 

provisions in §§ 300.603 through 

300.609, related to approval or 

disapproval by the Secretary of the 

State’s performance plan and 

interventions against the SEA, are 

overly prescriptive and negative. The 

commenter stated that enforcement 

provisions applicable to all elementary 

school and secondary school programs 

already exist in GEPA. 

Discussion: We do not agree that the 

enforcement provisions are overly 

prescriptive. These enforcement 

provisions simply reflect the statutory 

requirements in section 616(d) and (e) of 

the Act. These provisions are more 

specific than the provisions in GEPA. 

Changes: None. 

Comment: A few commenters 

recommended including in the 

regulations the provisions in section 

616(c) of the Act, regarding the process 

the Secretary must follow if the 

Secretary finds that a State performance 

plan does not meet the requirements in 

section 616 of the Act. 

Discussion: We believe that the 

review process spelled out in section 

616(c) of the Act is sufficiently clear and 

that regulations are not necessary. 

Further, under the statutory framework, 

the State performance plans were due to 

the Department by December 3, 2005, 

and the Department’s review of the State 

performance plans for the six-year 

period of federal fiscal years 2005 

through 2011 has already been 

completed. Accordingly, we believe it is 

unnecessary to add further clarification 

regarding the Secretary’s responsibilities 

in § 300.603. 

Changes: None. 

Comment: One commenter 

recommended that the Department’s 

process for approval of targets in State 

performance plans be rational, 

consistent, and transparent. For 

example, the commenter suggested that 

as the Department responds to and 

negotiates with a State regarding the 

State’s targets, the process should be 

open so that States can learn from the 

Department’s discussions with other 

States. 

Discussion: We agree with the 

commenter. Accordingly, the 

Department has posted its analyses of 

each State’s performance plan on the 

Department’s Web site at: http:// 

www.ed.gov/fund/data/report/idea/ 

partbspap/index.html. In so doing, the 

Department’s analyses are transparent 

and provide States with the opportunity 

to review the Department’s responses to 

other States’ performance plans. 

Changes: None. 

Enforcement (§ 300.604) 

Comment: A few commenters 

recommended changing the 

enforcement requirements in § 300.604 

to clarify the actions a State must take 

relating to enforcement. The 

commenters stated that it is essential 

that States understand their explicit 

authority under the Act to take certain 

enforcement actions against LEAs if the 

State is identified as a State that needs 

assistance, needs intervention, or needs 

substantial intervention. The 

commenters stated that some of the 

enforcement mechanisms available to 

the Secretary in section 616(e) of the 

Act, such as requiring entry into a GEPA 

compliance agreement or referral to the 

Office of the Inspector General, may 

have no direct counterpart under State 

law and therefore, would not be 

available to States. 

Discussion: The Department agrees 

that it is important to clarify the specific 

enforcement actions that States must 

use against an LEA if the LEA is 

determined to need assistance, 

intervention, or substantial intervention. 

We are revising § 300.600(a) to identify 

the specific enforcement actions 

identified in § 300.604 that are 

appropriate for a State, as opposed to 

the Federal government, to use if it 

determines that an LEA needs assistance 

or intervention in implementing the 

requirements of Part B of the Act. 

Changes: We have revised 

§ 300.600(a) to require States to enforce 

Part B of the Act in accordance with the 

enforcement mechanisms identified in 

§ 300.604(a)(1) and (a)(3), (b)(2)(i) and 

(b)(2)(v), and (c)(2). 

Comment: One commenter 

recommended including in §§ 300.600 

through 300.609 a method for 

individuals or organizations to inform 

the Department about compliance issues 

in their district or State. 

Discussion: The Department is 

committed to obtaining input from 

individuals and organizations as part of 

its monitoring process, and has a system 

for receiving and responding to citizen 

complaints about LEA and State 

compliance. However, detailed 

operational procedures for monitoring 

State activities are not typically 

included in regulations. Accordingly, 

we believe it is unnecessary to provide 

further clarification regarding specific 

monitoring procedures in §§ 300.600 

through 300.609. 

Changes: None. 

Comment: One commenter 

recommended clarifying in § 300.604 

that withholding State administrative 

funds would only occur following the 

Secretary’s determination that, for three 

or more consecutive years, the State 

needs intervention in implementing the 

requirements of Part B of the Act. 

Discussion: Section 300.604(b)(2)(iii), 

consistent with section 616(e)(2)(iii) of 

the Act, clearly delineates that 

consideration of withholding State 

administrative funds occurs following a 

‘‘needs intervention’’ determination by 

the Secretary for three or more 

consecutive years. Therefore, we do not 


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believe it is necessary to add further 

clarification regarding the withholding 

of State administrative funds. 

Changes: None. 

State Enforcement and Rule of 

Construction (§§ 300.608 and 300.609) 

Comment: One commenter 

recommended including in § 300.608 a 

provision that would allow an SEA to 

use any means authorized by law to 

effect compliance when it is determined 

that an LEA is not meeting the 

requirements of Part B of the Act, 

including the targets in the State’s 

performance plan. 

Discussion: The enforcement scheme 

outlined in §§ 300.600(a), 300.604, and 

300.608 represents the minimum steps 

that a State must take to enforce 

compliance with the Act. (The 

minimum enforcement steps the 

Department must take are specified in 

§ 300.604.) However, we believe that the 

regulations should be clear that States 

have the flexibility to use other 

mechanisms to bring about compliance, 

just as section 616(g) of the Act and 

§ 300.609 recognize that the Department 

needs the flexibility to use the authority 

in GEPA to monitor and enforce the Act, 

in addition to the enforcement program 

laid out in section 616(e) of the Act. 

Therefore, we will add to § 300.608 a 

new provision noting that States are not 

restricted from using any other authority 

available to them to monitor and enforce 

the Act. Taking steps under any such 

authority, however, does not relieve a 

State from complying with the 

requirements of §§ 300.600(a), 300.604, 

and 300.608(a). 

Changes: We have designated 

proposed § 300.608 as § 300.608(a) and 

added a new paragraph (b) to specify 

that States are not restricted from 

utilizing any other authority available to 

them to monitor and enforce the Act. 

We also have clarified in § 300.609 that 

the reference to ‘‘authority under 

GEPA’’ includes the provisions of 34 

CFR parts 76, 77, 80, and 81, including 

the imposition of special conditions 

under 34 CFR 80.12. 

Confidentiality of Information 

Confidentiality (§ 300.610) and 

Definitions (§ 300.611) 

Comment: None. 

Discussion: Both §§ 300.610 and 

300.611 contained incorrect references 

to § 300.628, which does not exist. We 

have revised those references. 

Changes: We have removed the 

incorrect references to § 300.628 in 

§§ 300.610 and 300.611 and replaced 

them with references to § 300.627 and 

§ 300.625, respectively. 

Notice to Parents (§ 300.612) 

Comment: One commenter stated that 

§ 300.612 exceeds the authority under 

sections 612(a)(8) and 617(c) of the Act. 

Discussion: Proposed § 300.612 

incorrectly referenced the requirements 

in § 300.121. The correct reference is 

§ 300.123, which requires each State to 

have policies and procedures to ensure 

that public agencies in the State protect 

the confidentiality of personally 

identifiable information. We will make 

this correction in § 300.612. With this 

correction, § 300.612 requires the SEA 

to give notice to parents that fully 

informs them about the requirements 

regarding the confidentiality of 

personally identifiable information. 

We do not agree that § 300.612 

exceeds the authority under sections 

612(a)(8) and 617(c) of the Act. Section 

612(a)(8) of the Act requires agencies in 

the State to comply with section 617(c) 

of the Act, and section 617(c) of the Act 

gives the Secretary the authority to take 

appropriate measures to protect the 

confidentiality of any personally 

identifiable data, information, and 

records collected or maintained by the 

Secretary and by SEAs and LEAs. This 

is a longstanding requirement in the 

regulations that we do not believe 

should be changed. 

Changes: We have changed 

§ 300.612(a) by removing the incorrect 

reference to § 300.121 and replacing it 

with a reference to § 300.123. 

Comment: One commenter expressed 

concern that summaries of the policies 

and procedures that participating 

agencies must follow regarding storage, 

disclosure to third parties, retention, 

and destruction of personally 

identifiable information would not be 

adequate to fully inform parents. 

Discussion: Section 300.612(a)(3) is a 

longstanding requirement that has been 

in the Part B regulations since they were 

published in 1977. The Department’s 

experience in administering this 

program indicates that the requirement 

to include a summary of policies that 

participating agencies must follow 

regarding storage, disclosure to third 

parties, retention, and destruction of 

personally identifiable information is an 

effective way for parents to be informed 

about these requirements. Parents who 

desire additional information regarding 

their rights, consistent with these 

policies, can request the additional 

information from the SEA. SEAs are 

encouraged to comply with such 

requests without undue delay. 

Changes: None. 

Comment: One commenter 

recommended requiring the SEA to post 

its confidentiality of personally 

identifiable information notice for 

parents on the State’s Web site. 

Discussion: We believe that it is up to 

each State to determine whether posting 

this notice on the State’s Web site will 

serve the needs of parents and public 

agencies in the State. We, therefore, 

decline to regulate on this matter. 

Changes: None. 

Amendment of Records at Parent’s 

Request (§ 300.618) and Opportunity for 

a Hearing (§ 300.619) 

Comment: A few commenters 

requested clarification regarding how 

parents can register their disagreement 

with information in their child’s record 

and request that their child’s record be 

changed. 

Discussion: Sections 300.618, 

300.619, and 300.621 all address the 

process that parents must use to seek 

changes in their child’s records if they 

believe the record is inaccurate, 

misleading, or otherwise in violation of 

the privacy or other rights of the child. 

When a parent requests that a change be 

made in the child’s record, under 

§ 300.618, agencies must amend the 

information within a reasonable time or 

inform parents of the agency’s refusal to 

amend the information and the parent’s 

right to a hearing to challenge the public 

agency’s determination. If parents want 

to challenge the accuracy of information 

in the child’s education records, they 

may do so by requesting a hearing under 

§ 300.619 (by contacting the LEA staff 

member assigned that responsibility). 

Section 300.621 specifically provides 

that a hearing held under § 300.619 

must be conducted according to the 

procedures in 34 CFR 99.22. 34 CFR 

99.22, in turn, requires a hearing to meet 

the following minimum requirements: 

(a) The educational agency or 

institution shall hold the hearing within 

a reasonable time after it has received 

the request for the hearing from the 

parent or eligible student. 

(b) The educational agency or 

institution shall give the parent or 

eligible student notice of the date, time, 

and place, reasonably in advance of the 

hearing. 

(c) The hearing may be conducted by 

any individual, including an official of 

the educational agency or institution, 

who does not have a direct interest in 

the outcome of the hearing. 

(d) The educational agency or 

institution shall give the parent or 

eligible student a full and fair 

opportunity to present evidence 

relevant to the issues raised under 

§ 99.21. The parent or eligible student 

may, at their own expense, be assisted 

or represented by one or more 


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individuals of his or her own choice, 

including an attorney. 

(e) The educational agency or 

institution shall make its decision in 

writing within a reasonable period of 

time after the hearing. 

(f) The decision must be based solely 

on the evidence presented at the 

hearing, and must include a summary of 

the evidence and the reasons for the 

decision. 

The parent is not required, under the 

Act and these regulations, to follow the 

procedures that are applicable to filing 

a due process complaint under 

§§ 300.507 through 300.510. This is 

because the hearing authorized under 

§ 300.619 is for the explicit purpose of 

giving a parent the opportunity to 

challenge the information in education 

records when a parent believes the 

information is inaccurate, misleading, or 

otherwise in violation of the privacy or 

other rights of the child. We do not 

believe further clarification regarding 

the specific procedures in §§ 300.618 

and 300.619 is necessary. The 

procedures used for these hearings vary 

from State to State, and we believe it is 

best to give States the flexibility to 

develop their own procedures for such 

hearings, as long as they meet the 

requirements in § 300.621. 

Changes: None. 

Consent (§ 300.622) 

Comment: One commenter suggested 

requiring schools to obtain parental 

consent before disclosing personally 

identifiable information to any party, 

unless authorized by 34 CFR part 99. 

Another commenter requested 

clarification regarding the requirements 

in § 300.622. 

Discussion: We agree that § 300.622 

should be revised to more accurately 

reflect the Department’s policies 

regarding when parental consent is or is 

not required for disclosures of 

personally identifiable information to 

officials of participating agencies, and 

other individuals and entities. In some 

instances, current § 300.571 (proposed 

§ 300.622) has been construed to 

prohibit disclosures without parental 

consent under this part that would be 

permitted without parental consent 

under FERPA. Accordingly, when final 

regulations for this program were issued 

in 1999, we amended current 

§ 300.571(a) (proposed § 300.622(a)) to 

clarify that the release of disciplinary 

records to law enforcement authorities 

could occur without parental consent, to 

the extent that such disclosure was 

permitted under FERPA. In order to 

more clearly state the Department’s 

longstanding position that consent is 

required for disclosures of personally 

identifiable information to parties, other 

than officials of participating agencies 

collecting or using the information 

under this part, unless the information 

is contained in education records and 

the disclosure is allowed without 

parental consent under 34 CFR part 99, 

we are reorganizing § 300.622(a). 

Under FERPA and § 300.622(a), 

schools, generally, must have written 

permission from the parent (or child 

who has reached the age of majority) in 

order to release information from a 

child’s education records. However, 

there are exceptions to this general rule 

under FERPA that also apply to the 

records of children with disabilities and 

permit the release of information from 

education records without parental 

consent. Under 34 CFR 99.31(a), schools 

can disclose education records without 

consent under the circumstances 

specified in § 99.31 including if the 

disclosure meets one or more of the 

following conditions: 

School officials with legitimate 

educational interests, as determined by 

the educational agency or institution; 

Other schools where the student seeks 

or intends to enroll, subject to the 

requirements of § 99.34; 

Specified authorized representatives, 

subject to the requirements of § 99.35, in 

connection with an audit or evaluation 

of Federal or State-supported education 

programs, or compliance with or 

enforcement of Federal legal 

requirements which relate to those 

programs; 

Appropriate parties in connection 

with financial aid to a student for which 

the student has applied or which the 

student has received, if necessary for 

specified purposes; 

Organizations conducting certain 

studies for or on behalf of the school; 

Accrediting organizations; 

To comply with a judicial order or 

lawfully issued subpoena; 

Appropriate officials in cases of 

health and safety emergencies; and 

State and local authorities, within a 

juvenile justice system, pursuant to 

specific State law. 

We believe that the changes to 

§ 300.622(a) state more clearly that 

under § 300.622, disclosures of 

personally identifiable information from 

education records of children with 

disabilities can be made without 

parental consent if the disclosure 

without parental consent would be 

permissible under FERPA. For example, 

in a situation involving a health 

emergency, information from a child 

with a disability’s education records 

could be released to a hospital without 

parental consent in order to ensure that 

the child received appropriate 

emergency health services. 

Under proposed § 300.622(b), parental 

consent is not required for disclosures 

of personally identifiable information to 

officials of participating agencies for 

purposes of carrying out a requirement 

of this part. This is not a new 

requirement; proposed § 300.622(b) is 

the same as current § 300.571(b). 

However, we believe the requirement 

should be stated more clearly, and 

therefore, are changing the language in 

paragraph (b). We believe that this 

provision is particularly important to 

ensure that participating agencies have 

the information they need to carry out 

the requirements of this part in an 

effective manner. For example, if 

another State agency provides school 

health services under the Act, consent 

would not be required for a school nurse 

to have access to personally identifiable 

information in a child’s education 

records in order to provide the school 

health services that are included on the 

child’s IEP. 

However, despite the recognition that 

officials of participating agencies need 

access to records of children with 

disabilities to carry out the requirements 

of this part, there are important privacy 

concerns that we feel need to be 

protected in certain specified situations. 

We believe that parental consent should 

be required before personally 

identifiable information can be released 

to representatives of participating 

agencies who are likely to provide or 

pay for transition services in accordance 

with § 300.321(b)(3). Representatives of 

these agencies, generally, are invited to 

participate in a child’s IEP meeting 

because they may be providing or 

paying for transition services. We do not 

believe that the representatives of these 

agencies should have access to all the 

child’s records unless the parent (or the 

child who has reached the age of 

majority) gives consent for the 

disclosure. We are, therefore, adding a 

new paragraph (b)(2) in § 300.622 to 

make this clear. 

We also believe it is important to be 

clear about the confidentiality 

requirements for children who are 

placed in private schools by their 

parents, given the significant change in 

the child find requirements for these 

children. Under section 

612(a)(10)(A)(i)(II) of the Act, child find 

for these children now is the 

responsibility of the LEA in which the 

private school is located and not the 

child’s LEA of residence. We can 

anticipate situations in which there may 

be requests for information to be 

exchanged between the two LEAs, such 

as when a child is evaluated and 


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identified as a child with a disability by 

the LEA in which the private school is 

located and the child subsequently 

returns to public school in the LEA of 

residence. We believe under such 

circumstances parental consent should 

be required before personally 

identifiable information is released 

between officials of the LEA where a 

private school is located and the LEA of 

the parent’s residence. We believe that 

consent is important in these situations 

to protect the privacy of the child and 

the child’s family. Therefore, we are 

adding a new paragraph (b)(3) to 

§ 300.622 to make this clear. 

We are removing the requirement in 

proposed § 300.622(c) (current 

§ 300.571(c)), which requires the SEA to 

provide policies and procedures that are 

used in the event that a parent refuses 

to provide consent under this section. 

This is already included in 

§ 300.504(c)(3), which requires the 

procedural safeguards notice to include, 

among other things, a full explanation of 

the parental consent requirements and 

the opportunity to present and resolve 

complaints through the due process or 

State complaint procedures. 

Changes: We have reorganized 

§ 300.622 to more accurately reflect the 

Department’s policy regarding when 

parental consent is and is not required 

for disclosures of personally identifiable 

information to officials of participating 

agencies, and other individuals and 

entities. We made changes to 

§ 300.622(a) and added a new paragraph 

(b)(1) to clarify the Department’s 

longstanding policy that consent is 

required for disclosures of personally 

identifiable information to parties, 

unless the interested parties are officials 

of participating agencies, collecting or 

using the information under this part, or 

the information is contained in 

education records and the disclosure is 

allowed without parental consent under 

FERPA. We added a new paragraph 

(b)(2) to clarify that parental consent is 

required for the disclosure of 

information to participating agencies 

that likely may provide or pay for 

transition services. We also added a new 

paragraph (b)(3) to require parental 

consent for the disclosure of records of 

parentally placed private school 

children between LEAs. Finally, we 

removed the requirement in proposed 

§ 300.622(c) (current § 300.571(c)), 

because the information is included in 

§ 300.504(c)(3). 

Safeguards (§ 300.623) 

Comment: None. 

Discussion: We have corrected the 

incorrect reference to § 300.121 in the 

text of this regulation, which should 

have referred to the State eligibility 

requirement concerning confidentiality, 

and not the State eligibility requirement 

regarding procedural safeguards. 

Changes: We have removed the 

incorrect reference to § 300.121 and 

replaced it with a reference to § 300.123. 

Children’s Rights (§ 300.625) 

Comment: One commenter requested 

clarifying the requirement in 

§ 300.625(a) that children receive 

privacy rights similar to those received 

by parents. 

Discussion: Section 300.625 is the 

same as current § 300.574 and has been 

in the regulations since 1977. It 

provides that States must have policies 

and procedures concerning the extent to 

which children are afforded rights of 

privacy similar to those of parents, 

taking into consideration the age of the 

child and type or severity of disability. 

It does not require States to grant 

particular privacy rights to a child in 

addition to those that apply when the 

child reaches the age of majority, as 

specified in paragraphs (b) and (c) of 

§ 300.625. We do not believe further 

clarification is necessary. 

Changes: None. 

Comment: A few commenters stated 

that the notice to transfer parental rights 

to a child at the age of majority should 

be provided to the child and parents one 

year before the child reaches the age of 

majority. 

Discussion: We do not believe this 

change is necessary because the 

regulations in § 300.320(c) already 

address the notification requirement. 

Specifically, § 300.320(c) requires that, 

beginning no later than one year before 

the child reaches the age of majority 

under State law, the IEP must include 

a statement that the child has been 

informed of the child’s rights under Part 

B of the Act, if any, that will transfer to 

the child on reaching the age of majority 

under § 300.520. Because the 

regulations already contain the notice 

requirement, we do not believe it is 

necessary to add further clarification of 

this requirement to § 300.625. 

Changes: None. 

Enforcement (§ 300.626) 

Comment: None. 

Discussion: This provision, 

concerning State enforcement, should 

not refer to § 300.610, which is a 

requirement that applies to the 

Secretary. 

Changes: We have removed the 

incorrect reference to § 300.610 and 

replaced it with a reference to § 300.611. 

Annual report of children served—

information required in the report 

(§ 300.641) 

Comment: A few commenters stated 

that § 300.641 is inconsistent with the 

requirement in § 300.111(d), which 

states that the Act does not require the 

classification of children by their 

disability. The commenter noted that it 

is difficult to comply with the 

requirements for data collection and 

analysis without classifying children by 

their disability. 

Discussion: We do not believe there is 

any inconsistency between the 

requirements in § 300.641(c) and 

§ 300.111, as suggested by the 

commenter. Section 300.641(c) 

addresses counting children who have 

already been identified as having a 

disability and is consistent with the 

requirements in section 618 of the Act. 

Section 300.111 addresses child find 

and the determination of a child’s 

eligibility for special education and 

related services. The Act does not 

require children to be identified with a 

particular disability category for 

purposes of the delivery of special 

education and related services. In other 

words, while the Act requires that the 

Department collect aggregate data on 

children’s disabilities, it does not 

require that particular children be 

labeled with particular disabilities for 

purposes of service delivery, since a 

child’s entitlement under the Act is to 

FAPE and not to a particular disability 

label. 

Changes: None. 

Comment: A few commenters 

recommended removing § 300.641(c) 

because States have reporting policies in 

place that might not be consistent with 

these new requirements. Numerous 

commenters stated that LEAs often 

report children with vision and hearing 

loss who have an additional disability 

in the category of multiple disabilities, 

which has resulted in under-reporting of 

children who are deaf-blind. The 

commenters stated that an accurate 

count of children with deaf-blindness is 

necessary to ensure that these children 

receive the specialized communication 

services they need, and to ensure that a 

sufficient number of specialists are 

trained to meet the specialized needs of 

these children. One commenter stated 

that a child’s secondary disability 

should not affect the reporting of the 

child’s primary disability. Another 

commenter suggested referring to deafblindness as the primary disability, if a 

child has multiple disabilities. 

Discussion: The reporting 

requirements in § 300.641(c) are not 

new. Section 300.641(c) is the same as 


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current § 300.751(e); State reporting 

policies therefore should already be 

consistent with these regulations. 

Section 300.641(d) addresses how States 

must report a child with a disability 

who has more than one disability for 

purposes of the annual report of 

children served under the Act. 

Paragraph (d)(1) states that if a child has 

only two disabilities and those 

disabilities are deafness and blindness, 

and the child is not reported as having 

a developmental delay, that child must 

be reported under the category of deafblindness. Paragraph (d)(2) states that if 

a child has more than one disability and 

is not reported as having deaf-blindness 

or as having a developmental delay, the 

child must be reported under the 

category of multiple disabilities. We 

believe that § 300.641(d) is clear that 

children with deaf-blindness who have 

an additional disability must be 

included in the category of multiple 

disabilities. To designate deaf-blindness 

as the primary disability and include 

children with deaf-blindness who have 

an additional disability in the category 

of deaf-blindness would be inconsistent 

with the requirements in § 300.641(d). 

Although we do not believe that any 

changes to the requirements in 

§ 300.641(d) are necessary, we will 

review the instructions we provide to 

States regarding the reporting of 

children with deaf-blindness who have 

an additional disability and make any 

needed clarifications. 

Changes: None. 

Disproportionality (§ 300.646) 

Comment: One commenter requested 

clarification as to whether the 

determination of disproportionality is 

based solely on a numerical formula or 

on district policies, procedures, and 

practices. One commenter 

recommended amending the regulations 

to clarify that the determination of 

disproportionality is based on a review 

of LEA policies and procedures, and not 

just a numerical determination. Another 

commenter requested a definition of 

significant disproportionality. Several 

commenters requested that the 

regulations clarify that States need only 

address statistically significant 

disproportionality based on the use of 

reliable data. 

Discussion: Section 618(d)(1) of the 

Act is clear that the determination of 

significant disproportionality by race or 

ethnicity is based on a collection and 

examination of data and not on a 

district’s policies, procedures, or 

practices. This requirement is clearly 

reflected in § 300.646. We do not believe 

it is appropriate to change § 300.646 

because the commenter’s suggestion is 

inconsistent with the provisions in 

section 618(d) of the Act. 

With respect to the definition of 

significant disproportionality, each 

State has the discretion to define the 

term for the LEAs and for the State in 

general. Therefore, in identifying 

significant disproportionality, a State 

may determine statistically significant 

levels. The State’s review of its 

constituent LEAs’ policies, practices, 

and procedures for identifying and 

placing children with disabilities would 

occur in LEAs with significant 

disproportionality in identification, 

placement, or discipline, based on the 

examination of the data. The purpose of 

this review is to determine if the 

policies, practices, and procedures are 

consistent with the Act. Establishing a 

national standard for significant 

disproportionality is not appropriate 

because there are multiple factors at the 

State level to consider in making such 

determinations. For example, States 

need to consider the population size, 

the size of individual LEAs, and 

composition of State population. States 

are in the best position to evaluate those 

factors. The Department has provided 

guidance to States on methods for 

assessing disproportionality. This 

guidance can be found at: http:// 

www.ideadata.org/docs/ 

Disproportionality%20

Technical%20Assistance%20Guide.pdf. 

Changes: None. 

Comment: A few commenters 

suggested adding gender to the analysis 

of disproportionality. The commenters 

expressed concern that males are overidentified as children with disabilities. 

Discussion: Although States will be 

collecting data on the gender of children 

with disabilities for other purposes, the 

Act does not require an analysis for 

disproportionality on the basis of 

gender. We are concerned about 

increasing the burden on States. Given 

that there is no statement of 

congressional intent indicating the need 

to do this analysis, we do not believe it 

should be included in the regulations. 

Changes: None. 

Comment: One commenter expressed 

concern that the regulations are not 

consistent with the statutory 

requirements for data collection on 

suspension, expulsion, identification, 

and placement. 

Discussion: We disagree with the 

commenter. The regulations in 

§ 300.646 reflect the requirements in 

section 618(d) of the Act. 

Changes: None. 

Comment: Several commenters raised 

concerns and made recommendations 

regarding § 300.646(b)(2), which 

requires the State to require any LEA 

identified with significant 

disproportionality to reserve the 

maximum amount under section 613(f) 

of the Act for comprehensive, 

coordinated early intervening services 

to serve children in the LEA, 

particularly, but not exclusively 

children in those groups that were 

significantly overidentified. A few 

commenters recommended that LEAs 

not be required to reserve the maximum 

amount under section 613(f) of the Act. 

Several commenters recommended 

adding language in § 300.646(b)(2) to 

require LEAs to monitor the effect of 

early intervening services on 

disproportionate representation. 

Discussion: The requirements in 

§ 300.646(b)(2) follow the specific 

language in section 616(d) of the Act. To 

allow LEAs to reserve less than the 

maximum amount required in section 

613(f) of the Act when significant 

disproportionality is identified would 

be inconsistent with the Act. Therefore, 

we do not believe a change in this 

requirement is appropriate. 

As part of the requirements in 

§§ 300.600 through 300.604, States must 

report annually on indicators in three 

monitoring priority areas. One of the 

monitoring priority areas is 

disproportionality, for which there are 

two indicators. In addition to annually 

reviewing State performance on each 

indicator in each monitoring priority 

area, the State must review each LEA 

against indicators established for each 

monitoring priority area, so the State 

will be examining data annually to 

identify any disproportionality. If 

disproportionality is identified in LEAs, 

the policies, procedures, and practices 

of the LEAs will be examined to 

determine if they are leading to 

inappropriate identification, and, 

pursuant to section 618(d)(2)(C) of the 

Act and § 300.646(b)(3), the LEA will be 

required to report publicly on the 

revision of policies, practices, and 

procedures used in identification or 

placement. It is, therefore, unnecessary 

to add a requirement that LEAs monitor 

the effect of early intervening services 

on disproportionality because the LEAS 

will have to continue to publicly report 

on their revision of policies, practices 

and procedures until the significant 

disproportionality in the LEA is 

eliminated. We believe that the intent of 

the suggestion will be accomplished 

through this other requirement. 

Changes: None. 


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Subpart G—Authorization, Allotment, 

Use of Funds, and Authorization of 

Appropriations 

Outlying Areas, Freely Associated 

States, and the Secretary of the Interior 

(§ 300.701) 

Comment: None. 

Discussion: The requirements of Part 

B of the Act that were listed in the 

NPRM under § 300.701(a)(1)(ii)(A)(1) 

through (5) did not include all of the 

requirements that apply to freely 

associated States. To ensure that freely 

associated States do not interpret these 

regulations as including all of the 

requirements in Part B of the Act that 

apply to them, we are removing these 

provisions. Section 300.701(a)(1)(ii) and 

(2) clarifies that, consistent with section 

611(b)(1)(A)(ii) of the Act, freely 

associated States must meet the 

applicable requirements that apply to 

States under Part B of the Act. 

Changes: We have removed 

paragraphs (1) through (5) in 

§ 300.701(a)(1)(ii)(A). 

Technical Assistance (§ 300.702) 

Comment: One commenter requested 

that the regulations clarify whether the 

technical assistance funds referred to in 

§ 300.702 are available to both SEAs and 

lead agencies under Part C of the Act. 

Discussion: Section 300.702, 

consistent with section 611(c) of the 

Act, allows the Secretary to reserve 

funds under Part B of the Act to support 

technical assistance activities 

authorized in section 616(i) of the Act. 

Under section 642 of the Act, section 

616 applies to the early intervention 

programs for infants and toddlers with 

disabilities under Part C of the Act. 

Section 616(i) of the Act requires the 

Secretary to review the data collection 

and analysis capacity of States to ensure 

that data and information necessary for 

monitoring the implementation of Parts 

B and C of the Act are collected, 

analyzed, and accurately reported to the 

Secretary, and to provide technical 

assistance, as needed. Therefore the 

technical assistance referred to in 

§ 300.702 can be provided to both SEAs 

and lead agencies under Part C of the 

Act. 

Changes: None. 

Allocations to States (§ 300.703) 

Comment: A few commenters noted 

that States need additional funding to 

comply with these regulations. 

Discussion: The Department does not 

have the authority to allocate more 

funds than Congress appropriates. 

Section 300.703, consistent with section 

611(d) of the Act, describes how the 

appropriated funds must be distributed 

to States. 

Changes: None. 

State-Level Activities (§ 300.704) 

Comment: One commenter suggested 

adding language in the regulations 

requiring public agencies to provide 

technical assistance to personnel in 

residential treatment facilities. The 

commenter stated that this assistance 

would help residential treatment 

facilities meet the requirements of FAPE 

for the children they serve. 

Discussion: Section 300.704(a)(1), 

consistent with section 611(e)(1) of the 

Act, allows, but does not require, States 

to use funds reserved for State 

administration to provide technical 

assistance to other programs that 

provide services to children with 

disabilities, which could include 

residential treatment facilities providing 

services to children with disabilities 

under the Act. Section 300.704(b)(4)(i), 

consistent with section 611(e)(2)(C)(i) of 

the Act, allows, but does not require, 

States to use funds reserved for other 

State-level activities to provide support 

and direct services, including technical 

assistance, personnel preparation, and 

professional development and training, 

which could include technical 

assistance to staff who provide services 

to children with disabilities at 

residential treatment centers and other 

such facilities. Because the Act gives 

States the discretion to determine how 

to use these funds, so long as they are 

used in accordance with the 

requirements in Part B of the Act, the 

Department does not believe it would be 

appropriate to remove this discretion by 

regulation and require States to use 

these funds to provide technical 

assistance to particular types of 

facilities, as suggested by the 

commenter. 

Changes: None. 

Comment: We received a number of 

comments requesting that the 

regulations require States to use funds 

reserved for State-level activities for 

specific purposes. Some commenters 

stated that these funds should be used 

to find and train surrogate parents. 

Other commenters requested that these 

funds be used to support parent centers. 

One commenter requested that these 

funds be used for programs that employ 

well-researched best practices. Another 

commenter suggested that the funds be 

used for family involvement activities. 

One commenter requested that the 

regulations clarify that these funds may 

be used to purchase supplemental 

educational materials. 

Discussion: The Act does not require 

States to use their funds reserved for 

other State-level activities for the 

purposes requested by the commenters. 

The Act also does not prohibit the use 

of funds for these purposes. Instead, 

States have discretion in determining 

how these funds are used, so long as 

they are used to carry out the activities 

in § 300.704(b)(3) and (4). Therefore, we 

do not believe it would be appropriate 

to regulate as suggested by the 

commenters. 

Changes: None. 

Comment: One commenter stated that 

the term ‘‘maximize’’ in 

§ 300.704(b)(4)(v), regarding the use of 

funds to support the use of technology 

to maximize accessibility to the general 

education curriculum, was an 

‘‘affirmative duty’’ and, thus, required 

more detailed instruction. This 

commenter also stated that the term 

‘‘improve’’ in § 300.704(b)(4)(xi), 

regarding the use of funds to provide 

professional development to teachers 

who teach children with disabilities in 

order to improve academic 

achievement, was an ‘‘affirmative duty’’

and, thus, required more detailed 

instruction. 

Discussion: The language referred to 

by the commenter is from the Act. The 

activities noted by the commenter are 

authorized under the Act but are not 

required. The Department has reviewed 

§ 300.704(b)(4)(v) and (b)(4)(xi) and does 

not believe that additional detail is 

necessary, because States need the 

flexibility that the Act provides to 

appropriately meet the needs within the 

State. 

Changes: None. 

Comment: One commenter agreed 

with the provision in § 300.704(b)(4)(v) 

that allows States to use funds to 

support the use of technology to 

maximize access to the general 

education curriculum for children with 

disabilities. The commenter stated, 

however, that SEAs and LEAs would be 

unwilling to research and employ new 

technologies and asked who would be 

responsible for conducting this activity. 

Discussion: Supporting the use of 

technology to maximize accessibility to 

the general education curriculum is a 

State-level activity that States are 

permitted, but not required, to fund. 

States have considerable flexibility in 

determining what State-level activities 

will be funded, provided the 

requirements of Part B of the Act are 

met. How a State implements a 

particular activity or program is a matter 

best left to each State to decide. 

Changes: None. 

Comment: One commenter stated that 

§ 300.704(b)(4)(v), regarding the use of 

technology to maximize accessibility to 

the general education curriculum for 


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children with disabilities, lacked 

specificity and asked for definitions of 

the terms ‘‘universal design principles,’’

‘‘maximize accessibility to the general 

curriculum,’’ and ‘‘maximum extent.’’

Discussion: The definition of 

universal design, as used in the 

Assistive Technology Act of 1998, as 

amended, is included in the Analysis of 

Comments and Changes section for 

subpart A. We believe this will clarify 

the meaning of ‘‘universal design 

principles,’’ as used in 

§ 300.704(b)(4)(v). The term ‘‘maximize 

accessibility to the general education 

curriculum’’ is sufficiently specific in 

the context used and does not need 

further definition. The term ‘‘maximum 

extent’’ is not used in § 300.704(b)(4)(v). 

Changes: None. 

Local Educational Agency High Cost 

Fund (§ 300.704(c)) 

Comment: One commenter expressed 

concern that the regulations for the high 

cost fund, particularly the reference to 

the cost of room and board for a 

residential placement, would discourage 

educational placements in the LRE. The 

commenter stated that many children 

with disabilities are sent out of their 

school districts for special education 

and related services and asked that the 

regulations ensure that this practice 

does not increase. 

Discussion: The language regarding 

room and board in § 300.704(c)(4)(ii) 

was included to clarify that the cost of 

room and board for a necessary 

residential placement could be 

supported by the high cost fund. Section 

§ 300.704(c)(4)(ii) clarifies that the cost 

of room and board for a residential 

placement must be determined 

necessary and be consistent with the 

LRE requirements in § 300.114. We 

believe this is adequate to ensure that 

educational placements in the LRE are 

not discouraged. 

Changes: None. 

Comment: One commenter stated that 

reimbursements from a high cost fund 

would be difficult to compute and 

requested a template to assist LEAs in 

their calculations. Another commenter 

requested a list of specific procedures 

that would be excluded from coverage 

by a high cost fund. 

Discussion: How States implement the 

high cost fund is a matter left to the 

discretion of each State, so long as the 

State meets the requirements of Part B 

of the Act. Accordingly, the Department 

does not believe it would be appropriate 

to develop a template, prepared at the 

Federal level, or a list of specific 

procedures that would be excluded from 

coverage. Whether a particular 

expenditure is appropriate will vary 

with the specific facts and 

circumstances of the situation. 

Changes: None. 

Comment: One commenter asked 

whether high cost funds could be used 

for court-ordered placements. 

Discussion: Nothing in the Act or the 

regulations prohibits payment for 

providing special education and related 

services to high need children with 

disabilities in court-ordered placements, 

if a State wishes to fund such 

placements and the other provisions of 

Part B of the Act are met. 

Changes: None. 

Comment: A few commenters 

requested that the regulations include 

plans for continuing programs funded 

by high cost funds should these funds 

become unavailable. 

Discussion: The availability of Federal 

support for a high cost fund, as 

described in § 300.704(c) and section 

611(e)(3) of the Act, is based on a 

number of factors, including continued 

Federal appropriations for the Grants to 

States program and the continued 

authorization for such a fund under the 

Act. Funding of a high cost fund in a 

particular State is dependent on a 

State’s decision to use a portion of its 

State-level set-aside for a high cost fund. 

This is a matter of State discretion and 

is not appropriate for regulation at the 

Federal level. 

Changes: None. 

Comment: A few commenters 

requested an opportunity for public 

comment before a State implements a 

high cost fund. 

Discussion: Section 300.704(c)(3)(i), 

consistent with section 611(e)(3)(C)(ii) 

of the Act, requires an SEA to develop, 

annually review, and amend, as 

necessary, a State plan for a high cost 

fund. Under § 300.704(c)(3)(i)(A), the 

State plan must, among other 

components, establish, in consultation 

and coordination with representatives 

from LEAs, a definition of a high need 

child with a disability that meets certain 

criteria. This plan must be developed no 

later than 90 days after the State 

reserves funds for a high cost fund. 

Section 300.704(c)(3)(ii), consistent with 

section 611(e)(3)(C)(iii) of the Act, 

requires a State to make its final State 

plan for the high cost fund available to 

the public not less than 30 days before 

the beginning of the school year, 

including dissemination of such 

information on the State’s Web site. 

Although there is nothing in the Act 

that requires that the public be given the 

opportunity to comment on the State’s 

plan, there also is nothing in the Act 

that would prohibit a State from 

providing an opportunity for public 

comment prior to finalizing the State’s 

plan for the high cost fund. We believe 

the decision to provide opportunity for 

public comment is best left to each 

State. 

Changes: None. 

Comment: A few commenters asked if 

LEAs are obligated to participate in the 

State Medicaid program and whether 

States could limit the types of 

reimbursement to LEAs from Medicaid. 

Discussion: LEAs are not obligated 

under the Act to participate in a State 

Medicaid program. Title XIX of the 

Social Security Act of 1965, as 

amended, controls Medicaid 

reimbursement for medical assistance 

for eligible individuals and families 

with low incomes and resources. 

Therefore, it would not be appropriate 

to address in these regulations whether 

States, under the Act, could limit the 

type of Medicaid reimbursement to 

LEAs. 

Changes: None. 

Comment: One commenter asked if 

there was any intent to develop criteria 

for the development of innovative cost 

sharing consortia, as stated in 

§ 300.704(c)(1)(i)(B). The commenter 

stated that there are no regulations for 

submitting a State plan for innovative 

cost-sharing consortia, similar or 

parallel to the requirements associated 

with the high cost fund. 

Discussion: The commenter is correct 

that the proposed regulations would not 

require the development of a State plan 

for the high cost fund that includes 

information or criteria about the 

development of innovative cost-sharing 

consortia. It is important that, if a State 

elects to reserve funds for supporting 

innovative and effective ways of cost 

sharing under § 300.704(c)(1)(i)(B), the 

State, in its State plan under 

§ 300.704(c)(3)(i), include a description 

of how those funds will be used. 

Therefore, a change will be made to 

make this clear. 

Changes: A new paragraph (F) has 

been added to § 300.704(c)(3)(i) to 

clarify that, if a State elects to reserve 

funds for supporting innovative and 

effective ways of cost sharing, it must 

describe in its State plan how these 

funds will be used. 

Comment: One commenter asked 

whether State administrative funds 

could be used for administering the high 

cost fund. 

Discussion: Section 300.704(c)(2) is 

clear that a State cannot use any of the 

funds the State reserves for the high cost 

fund for costs associated with 

establishing, supporting, and otherwise 

administering the fund. However, a 

State may use funds reserved for State 

administration under § 300.704(a) for 

administering the high cost fund. 


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Changes: None. 

Comment: One commenter requested 

that the regulations require an SEA to 

describe in its State plan for the high 

cost fund the ways in which the SEA 

will work with State child welfare 

programs. 

Discussion: Section 300.704(c)(3) 

incorporates the language in section 

611(e)(3)(C) of the Act, regarding a State 

plan for the high cost fund. The Act 

does not require that the State plan 

include the ways in which the SEA will 

work with State child welfare agencies. 

However, there is nothing in the Act or 

these regulations that would prohibit a 

State from including such information 

in its plan if it chooses to do so. We 

believe that the decision whether to 

include this information in the State 

plan for the high cost fund is a matter 

best left to the State. 

Changes: None. 

Comment: A few commenters stated 

that parents, representatives of the State 

Advisory Panel, and other stakeholders 

should participate in developing the 

definition of a high need child for the 

purposes of the high cost fund. 

Discussion: Section 

300.704(c)(3)(i)(A), consistent with 

section 611(e)(3)(C)(i) of the Act, 

requires the SEA to establish a State 

definition of a high need child with a 

disability in consultation with LEAs. 

The Act does not require the 

involvement of parents, representatives 

of the State Advisory panel, or other 

stakeholders. However, there is nothing 

in the Act or these regulations that 

would prohibit a State from consulting 

with these or other groups, if the State 

chooses to do so. The Department 

believes that it would be inappropriate 

to require SEAs to consult with specific 

groups, because the appropriate groups 

for consultation will vary from State to 

State. 

Changes: None. 

Flexibility in Using Funds for Part C 

(§ 300.704(f)) 

Comment: A few commenters 

requested that § 300.704(f) require States 

that offer early intervention services to 

children with disabilities who are 

eligible for services under section 619 of 

the Act to notify families of the details 

of this program and a parent’s right to 

change immediately to special 

education services should the parent 

desire. Another commenter 

recommended that § 300.704(f) require 

LEAs to obtain parental consent before 

providing early intervention services to 

children eligible for services under 

section 619 of the Act. 

Discussion: Section 300.704(f) adopts 

the requirements of, and is consistent 

with, section 611(e)(7) of the Act. Under 

section 611(e)(7) of the Act, funds that 

are available under §§ 300.704(a)(1), 

300.705(c), and 300.814(e) may be used 

to develop and implement a State policy 

to provide services under Part C of the 

Act to children beyond the age of three. 

The provisions that authorize such 

programs are reflected in Part C of the 

Act, predominantly in section 635(c) of 

the Act, which contains specific notice 

and consent requirements. The notice of 

proposed rulemaking for Part C of the 

Act will address the notice, consent, 

and other requirements that apply to 

State lead agencies that elect to offer 

services to children with disabilities 

and their families beyond the age of 

three under section 635(c) of the Act. 

The public will have a separate 

opportunity to comment on the 

proposed regulations for Part C of the 

Act when they are published in the 

Federal Register. Accordingly, it would 

not be appropriate to include the 

requested information in these 

regulations implementing Part B of the 

Act. 

Changes: None. 

Allocation for State in Which By-Pass Is 

Implemented for Parentally-Placed 

Private School Children With 

Disabilities (§ 300.706) 

Comment: None. 

Discussion: We have determined that 

§ 300.706 is no longer applicable. Under 

section 611(d) of the Act, distribution of 

funds under Part B of the Act to States 

is not based on child count. Section 

300.191 details the amount of funds 

under Part B of the Act that the 

Secretary deducts from a State’s 

allocation if a by-pass is implemented. 

Changes: We have removed § 300.706, 

because it is no longer applicable. 

Use of amounts by Secretary of the 

Interior (§ 300.707) 

Definitions (§ 300.707(a)) 

Comment: A few commenters 

requested that the Department add a 

new definition of LEA and SEA for the 

purposes of regulations related to 

schools operated or funded by the 

Secretary of the Interior. One 

commenter stated that the regulations 

would be clearer if these terms were 

defined for BIA-funded schools, because 

the definition of state educational 

agency makes no mention of the BIA. 

Another commenter recommended 

defining LEAs as BIA-funded schools 

and defining SEA as the Secretary of the 

Interior for the purposes of regulations 

related to schools operated or funded by 

the Secretary of the Interior. 

Discussion: We believe the definition 

of local educational agency in § 300.28, 

with a specific reference to BIA-funded 

schools in § 300.28(c), and the 

definition of State educational agency 

in § 300.41, along with the requirements 

in §§ 300.707 through 300.716, provide 

sufficient clarity on the Secretary of the 

Interior’s responsibilities to implement 

the requirements of the Act. However, 

we understand that the definitions of 

local educational agency and State 

educational agency by themselves may 

not be directly applicable to the 

regulations related to schools operated 

or funded by the Secretary of the 

Interior. Therefore, the Department will 

consider taking action to clarify the 

definitions of local educational agency 

and State educational agency for the 

purpose of this regulation in the future. 

Changes: None. 

Comment: One commenter stated that 

the definition of tribal governing body of 

a school is similar to the definition of 

‘‘tribal governing body’’ in the principal 

statute governing BIA-funded schools 

(section 1141 of the Education 

Amendments of 1978, 25 U.S.C. 

2021(19)) and suggested using that 

definition if the intent was to define 

‘‘tribal governing body.’’ The 

commenter also noted that tribal 

governing body of a school is not used 

anywhere in the regulations. 

Discussion: The Department agrees 

that the definition of ‘‘tribal governing 

body’’ in 25 U.S.C. 2021(19) is a better 

definition than the definition of tribal 

governing body of a school. The 

definition is more accurate and defines 

a term used in these regulations. We are 

replacing the definition of tribal 

governing body of a school with the 

definition of tribal governing body, as 

defined in 25 U.S.C. 2021(19): Tribal 

governing body means, with respect to 

any school, the tribal governing body, or 

tribal governing bodies, that represent at 

least 90 percent of the children served 

by such school. 

Changes: The definition of tribal 

governing body of a school in 

§ 300.707(a)(2) has been replaced with 

the definition of tribal governing body 

from 25 U.S.C. 2021(19). 

Provision of Amounts for Assistance 

(§ 300.707(b)) 

Comment: One commenter suggested 

adding specific language to the 

regulations to require the Secretaries of 

the Interior and Education to meet the 

statutory deadlines for providing and 

distributing funds under Part B of the 

Act. 

Discussion: Section 300.707(b), 

consistent with section 611(h)(1)(A) of 

the Act, sets specific dates for the 

Secretary of the Interior to allocate 

funds provided to the Secretary of the 


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Interior under the Act to elementary 

schools and secondary schools for 

Indian children operated or funded by 

the Secretary of the Interior. The 

Secretary of the Interior must allocate 80 

percent of these funds by July 1 of each 

fiscal year, and the remaining 20 

percent by September 30 of each fiscal 

year. The Act does not require the 

Secretary of Education to meet any 

deadline for providing and distributing 

funds to the Secretary of the Interior. 

Provision of funds under Part B of the 

Act to the Department of the Interior 

(DOI) will always depend on whether 

the DOI has properly established and 

maintained its eligibility. Therefore, we 

do not believe it would be appropriate 

to establish such a deadline. 

Changes: None. 

Comment: One commenter stated that 

BIA-funded schools do not require State 

accreditation and asked how a program 

affiliated with a BIA-funded school 

could be mandated by the State to be 

accredited. 

Discussion: The commenter appears 

to be referring to current § 300.715(c), 

regarding counting children aged three 

through five who are enrolled in 

programs affiliated with BIA-funded 

schools that are State accredited. 

Current § 300.715(c) was removed 

because a State can no longer require a 

BIA-funded school to attain or maintain 

State accreditation. 

Changes: None. 

Comment: A few commenters 

recommended revising § 300.707(c) to 

clarify that, for children living on 

reservations who do not attend BIAfunded schools, the SEA in which the 

reservation is located is responsible for 

ensuring that the requirements of Part B 

of the Act are implemented, and if the 

reservation is in more than one State, 

the SEA in which the child resides is 

responsible. 

Discussion: The Department agrees 

that there is a need to clarify that States 

are responsible for serving Indian 

children on reservations located in their 

State who are not attending BIA-funded 

schools. We will revise § 300.707(c) to 

clarify that, for children on reservations 

who do not attend BIA-funded schools, 

the State in which the reservation is 

located must ensure that all the 

requirements of Part B of the Act are 

implemented. 

The Act does not address who is 

responsible if a reservation is located in 

more than one State. Under section 

612(a)(1)(A) of the Act, a State must 

make FAPE available to all children 

with disabilities residing in the State. 

Therefore, as a general matter, if a 

reservation is located in more than one 

State, the State in which the child 

resides would be responsible for 

ensuring that the requirements of Part B 

of the Act are met for that child. 

Changes: Section 300.707(c) has been 

revised to clarify that, for children on 

reservations who do not attend BIAfunded schools, the State in which the 

reservation is located must ensure that 

all the requirements of Part B of the Act 

are met. 

Use of Funds Under Part B of the Act 

(§ 300.710(a)) 

Comment: One commenter stated that 

the Secretary of the Interior has no 

statutory authority to reserve funds for 

administration under section 

611(h)(1)(A) of the Act, and therefore, 

§ 300.710 should be removed from the 

regulations. 

Discussion: The Secretary of the 

Interior may reserve funds for 

administration under § 300.710. Section 

300.707(b), consistent with section 

611(h)(1)(A) of the Act, requires the 

Secretary of Education to provide 

amounts to the Secretary of the Interior 

to meet the need for assistance for the 

education of children with disabilities 

on reservations aged 5 to 21, inclusive, 

enrolled in elementary schools and 

secondary schools for Indian children 

operated or funded by the Secretary of 

the Interior. The amount of such 

payment for any fiscal year must be 

equal to 80 percent of the amount 

allotted for the Secretary of the Interior 

under section 611(b)(2) of the Act for 

that fiscal year. 

Since the enactment of regulations 

implementing Pub. L. 94–142 in 1977, 

the regulations have permitted the 

Secretary of the Interior to use five 

percent of the funds under Part B of the 

Act allocated for the education of 

children with disabilities enrolled in 

BIA-funded schools for administration. 

The Act added the requirement in 

section 611(h)(1)(A) for 80 percent of 

the funds to be allocated to BIA-funded 

schools by July 1 of each fiscal year, and 

20 percent of the funds allocated by 

September 30 of each fiscal year. 

Congress’ intent in adding this 

requirement was to ensure that the 

Secretary of the Interior distributes 

funds under Part B of the Act quickly 

and efficiently to BIA-funded schools to 

ensure that they have the resources they 

need to provide services to children 

with disabilities. (See H. Rpt. 108–77, p. 

92.) There is no indication that Congress 

intended to eliminate the Department’s 

longstanding regulatory provision 

permitting the Secretary of the Interior 

to reserve funds for administration, 

which assist the Office of Indian 

Education Programs in carrying out its 

monitoring activities. Section 

611(h)(4)(F) of the Act specifically 

prohibits the Secretary of the Interior 

from using any of the 20 percent of the 

funds under Part B of the Act allocated 

for coordinating services for preschool 

children with disabilities for 

administrative purposes. However, there 

is no provision that prohibits the 

Secretary of the Interior from using any 

of the 80 percent of funds under Part B 

of the Act allocated to provide special 

education and related services in BIAfunded schools for administrative 

purposes. 

Changes: None. 

Early Intervening Services (§ 300.711) 

Comment: One commenter supported 

permitting BIA-funded schools to use 

funds under Part B of the Act for early 

intervening services, but stated that not 

all BIA-funded schools receive funds 

under Part B of the Act, because the BIA 

will not provide any such funds until a 

school uses 15 percent of its Indian 

School Equalization Program funds 

(ISEP). The commenter requested that 

the regulations specify that BIA-funded 

schools are permitted and encouraged to 

use their ISEP funds to provide early 

intervening services and that schools, 

upon doing so, would be eligible for 

funds under Part B of the Act. 

Discussion: While the Act requires 

that the Secretary of the Interior allocate 

funds under Part B of the Act to BIAfunded schools to meet the educational 

needs of children with disabilities, the 

Act does not establish requirements for 

how those funds must be distributed to 

BIA-funded schools. The Secretary of 

the Interior requires that BIA-funded 

schools use 15 percent of ISEP formula 

funds for special education services 

before receiving funds under Part B of 

the Act. While the Department 

understands the concern that not every 

BIA-funded school will have special 

education needs sufficient to meet the 

15 percent threshold and, therefore, may 

not receive any funds under Part B of 

the Act, the Department does not have 

the authority to permit or encourage 

BIA-funded schools to use their 15 

percent ISEP threshold funds to provide 

early intervening services or to require 

the Secretary of the Interior to provide 

Part B funds to those schools once they 

have spent 15 percent of their ISEP 

funds on early intervening services. 

Changes: None. 

Plan for Coordination of Services 

(§ 300.713) 

Comment: One commenter stated that 

the requirements in § 303.713 go beyond 

the legal authority of the Secretary of 

the Interior. The commenter stated that 

the Secretary of the Interior provides 


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services only in BIA-funded schools, 

and the Office of Indian Education 

Programs does not have jurisdiction 

over a State to ensure that the State is 

providing services to Indian children 

under Part B of the Act. In addition, the 

commenter stated that the term ‘‘all 

Indian children’’ was too broad, because 

the Secretary of the Interior is 

authorized to provide funding only for 

programs for children who are at least 

one-fourth Indian blood of a federally 

recognized tribe; residing on or near a 

reservation; and enrolled in a BIAfunded school. 

Discussion: Section 300.713(a) and 

section 611(h)(5) of the Act do not 

require the Secretary of the Interior to 

provide services or funding to Indian 

children who are not at least one-fourth 

Indian blood of a federally recognized 

tribe, residing on or near a reservation, 

and enrolled in a BIA-funded school. 

These sections require the Secretary of 

the Interior to develop and implement a 

plan for the coordination of services for 

all Indian children with disabilities 

residing on reservations covered under 

Part B of the Act. In order to clarify the 

Secretary of the Interior’s responsibility 

under this provision, we are revising 

§ 300.713(a) to clarify that reservations 

covered under Part B of the Act means 

reservations served by elementary 

schools and secondary schools for 

Indian children operated or funded by 

the Secretary of the Interior. 

Section 300.713(a) and section 

611(h)(5) of the Act require that the plan 

address the coordination of services for 

all Indian children residing on those 

reservations. This includes Indian 

children residing on those reservations 

that are enrolled in public schools in the 

local school district, as well as Indian 

children that are enrolled in BIA-funded 

schools. This also includes Indian 

students incarcerated in State, local, and 

tribal juvenile and adult correctional 

facilities. We are revising § 300.713(b) to 

ensure that the plan provides for 

coordination of services benefiting all 

Indian children with disabilities, 

including services provided by SEAs 

and State, local, and tribal juvenile and 

adult correctional facilities. 

Changes: Section 300.713(a) has been 

revised to require the Secretary of the 

Interior to develop and implement a 

plan for the coordination of services for 

all Indian children with disabilities 

residing on reservations served by 

elementary schools and secondary 

schools for Indian children operated or 

funded by the Secretary of the Interior. 

Section 300.713(b) has been revised to 

require the plan to provide for the 

coordination of services benefiting these 

children from whatever source, 

including SEAs, and State, local, and 

tribal juvenile and adult correctional 

facilities. 

Establishment of Advisory Board 

(§ 300.714) 

Comment: One commenter requested 

definitions of ‘‘collaboration’’ and 

‘‘collaborated teachers.’’

Discussion: We do not believe it is 

necessary to define ‘‘collaboration’’ in 

these regulations, because it is a 

commonly used term, which means 

working jointly with others, especially 

in an intellectual endeavor. Although 

the Act does not prohibit the 

Department from regulating on this 

issue, we do not believe it is necessary. 

The term ‘‘collaborated teachers’’ is not 

used in the Act or these regulations and, 

thus, is not appropriate for inclusion in 

the definitions in these regulations. 

Changes: None. 

Subpart H—Preschool Grants for 

Children with Disabilities 

Allocation for State in Which By-Pass Is 

Implemented for Parentally-Placed 

Private School Children With 

Disabilities (§ 300.811) 

Comment: None. 

Discussion: We have determined that 

§ 300.811, regarding allocation for a 

State in which by-pass is implemented 

for parentally-placed private school 

children with disabilities, is no longer 

applicable. Under section 619(c) of the 

Act, distribution of Part B funds to 

States is not based on child count. 

Section 300.191 details the amount of 

Part B funds the Secretary deducts from 

a State’s allocation if a by-pass is 

implemented. 

Changes: We are removing § 300.811 

from the final regulations. 

Subgrants to LEAs (§ 300.815) 

Comment: One commenter asked 

whether the base year that applies to 

section 611 of the Act also applies to 

section 619 of the Act. 

Discussion: The base year that applies 

to section 611 of the Act is not the same 

as the base year that applies to section 

619 of the Act. The formula for 

allocating funds to LEAs under sections 

611 and 619 of the Act is based on the 

amount of program funds received in a 

prior year (the base year), the relative 

numbers of children enrolled in public 

and private elementary schools and 

secondary schools within the LEA’s 

jurisdiction, and the relative numbers of 

children living in poverty. Under 

section 619(g)(1)(A) of the Act, the base 

year for allocating section 619 funds to 

LEAs under the Preschool Grant 

program is Federal fiscal year (FFY) 

1997. Under section 611(f)(2)(A) of the 

Act, the base year for allocating section 

611 funds to LEAs under the Grants to 

States for the Education of Children 

with Disabilities Program is FFY 1999. 

Changes: None. 

Executive Order 12866 

Costs and Benefits 

Under Executive Order 12866, we 

have assessed the costs and benefits of 

this regulatory action. 

Summary of Public Comments 

The Department received four 

comments on the role of school 

psychologists in administering IQ tests 

as described in the proposed analysis of 

the costs and benefits of this regulatory 

action. The first commenter stated that 

it is inaccurate to conclude that fewer 

school psychologists will be needed, 

and asserted that school psychologists 

typically do more than administer IQ 

tests to students. The second commenter 

stated that public agencies could realize 

savings under the proposed regulation 

by reducing the amount of time school 

psychologists spend conducting 

cognitive assessments to document IQ 

discrepancies. The third commenter 

requested that the Department remove 

all language suggesting that potential 

savings may result from the need for 

fewer school psychologists to 

administer IQ tests. The fourth 

commenter stated that time saved on 

formal assessments as a result of the 

need to conduct fewer IQ tests could be 

used by school psychologists to train 

school staff in research-validated 

instructional and behavioral 

interventions, and to engage in other 

pro-active pre-referral policies. 

All of these comments were 

considered in conducting the analysis of 

the costs and benefits of the final 

regulations. All of the Department’s 

estimates and assumptions on which 

they are based are described below. 

Summary of Costs and Benefits 

Costs and Benefits of Statutory Changes 

For the information of readers, the 

following is an analysis of the costs and 

benefits of the most significant statutory 

changes made by the Act that are 

incorporated into the final regulations 

governing the Assistance to States for 

the Education of Children with 

Disabilities program under Part B of the 

Act. In conducting this analysis, the 

Department examined the extent to 

which the regulations add to or reduce 

the costs for public agencies and others 

in relation to the costs of implementing 

the program regulations prior to the 

enactment of the new statute. Based on 


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this analysis, the Secretary has 

concluded that the statutory changes 

reflected in these final regulations will 

not impose significant net costs in any 

one year, and may result in savings to 

SEAs and LEAs. An analysis of specific 

provisions follows: 

Requirement for State Certification for 

Highly Qualified Special Education 

Teachers 

Section 300.156(c) requires that each 

person employed as a public school 

special education teacher who teaches 

in an elementary, middle, or secondary 

school be highly qualified, as defined in 

§ 300.18, by the deadline established in 

section 1119(a)(2) of the ESEA, no later 

than the end of the 2005–2006 school 

year. Section 300.18(b)(1) requires that 

every public elementary and secondary 

school special education teacher obtain 

full State certification as a special 

education teacher or pass the State 

special education teacher licensing 

examination, and hold a license to teach 

in the State as a special education 

teacher as one of the conditions of being 

considered highly qualified to teach as 

a special education teacher. Previously, 

special education teachers were not 

required by Federal law to be certified 

as special education teachers in their 

States. The regulations preclude 

teachers for whom the special education 

certification or licensure requirements 

have been waived on an emergency, 

temporary, or provisional basis from 

meeting the definition of a highly 

qualified special education teacher. 

Teachers employed by a public charter 

school are exempt from these 

requirements and are subject to the 

requirements for highly qualified 

teachers in their State’s public charter 

school law. 

The impact of the requirement in the 

final regulations that all special 

education teachers have full special 

education certification depends on 

whether States and districts comply 

with the requirement by helping 

existing teachers who lack certification 

acquire it, or by hiring new fullycertified teachers, or some combination 

of the two. 

According to State-reported data 

collected by the Department’s Office of 

Special Education Programs, 

certification or licensure requirements 

have been waived for eight percent of 

special education teachers, or 

approximately 30,000 teachers. If States 

and districts respond to the statutory 

change reflected in the final regulations 

by hiring certified teachers to fill these 

positions, it could cost well over $1 

billion to cover the salaries for a single 

year. (Occupational Employment and 

Wages Survey, November 2004, 

indicates a median national salary of 

$44,330 for elementary school teachers 

and $46,300 for secondary school 

teachers.) However, given that the Study 

of Personnel Needs in Special Education 

(SPENSE) found that in 1999–2000, 

12,241 positions for special education 

teachers were left vacant or filled by 

substitute teachers because suitable 

candidates could not be found, it is 

unlikely that States and districts can 

meet this requirement through hiring. 

The SPENSE study also found that 12 

percent of special education teachers 

who lack full certification in their main 

teaching assignment field are fully 

certified in their main teaching 

assignment field in another State. This 

means that States should be able to 

certify an estimated 3,600 additional 

special education teachers at relatively 

little expense through reciprocal 

certification agreements with other 

States. 

Responses to the 1999–2000 Schools 

and Staffing Survey indicate that nearly 

10 percent (approximately 3,000 

teachers) of special education teachers 

who lacked full certification, including 

those teaching under provisional, 

temporary, or emergency certification, 

were enrolled in a program to obtain 

State certification. If teachers already 

participating in a certification program 

are presumed to be within 10 semester 

hours of meeting their coursework 

requirements and the estimated cost of 

a semester hour in a university or 

college program is $200, then it would 

cost $6 million to help these teachers 

obtain full State certification. If teachers 

require more than 10 semester hours to 

complete their certification programs, it 

is unlikely they will be able to obtain 

certification through coursework in a 

timely manner. 

States and districts are unlikely to be 

able to meet these requirements entirely 

through reciprocity agreements and 

college and university programs. The 

above estimates involve fewer than 

7,000 of the approximately 30,000 

teachers who lack full certification. 

Other options States and districts might 

use to certify the more than 23,000 

remaining teachers include assessments 

of academic skill and subject matter 

knowledge and professional 

development. Assessment requirements 

for special education teachers vary 

across States and teaching assignment 

fields, but most States require at least 

two subject matter tests, a general test 

on core content knowledge, and a 

disability-specific test, for special 

education teacher certification. The 

average cost of each test is $75. The 

SPENSE study found that one-fourth of 

beginning special education teachers 

who took a certification test reported 

having to take it more than once before 

passing. If States and districts certified 

the remaining 23,000 teachers through 

existing assessments and 25 percent of 

the teachers took the tests twice, the 

cost would be approximately $4.3 

million. 

Some subset of special education 

teachers currently teaching through 

waivers will require additional training 

to obtain special education certification. 

The cost of certifying these teachers 

depends on State special education 

certification requirements and the types 

of professional development needed to 

help these teachers meet the 

requirements. Most studies in the year 

2000 found that district expenditures for 

professional development range from 

one to four percent of a district’s total 

budget or $2,062 per teacher. If 18,000 

teachers need additional training, 

costing an average expenditure of 

$2,000 per teacher for professional 

development, the cost of certifying these 

teachers through training would be $36 

million. 

Because there is little information 

available on what is required to 

implement these statutory changes and 

the cost of doing so, the Secretary 

concludes that the cost may be 

significant given the number of special 

education teachers who lack 

certification. The Secretary further 

concludes that the benefits of State 

certification may not necessarily 

outweigh the costs. 

The Secretary believes that teacher 

certification can be a valuable tool in 

ensuring that teachers have the 

knowledge and skills they need to help 

students meet high academic standards. 

Because the highly qualified teacher 

requirements in the ESEA, which focus 

on content knowledge, already applied 

to special education teachers providing 

instruction in core academic subjects, 

the benefits of requiring special 

education teachers to also meet State 

certification requirements for special 

education teachers will largely depend 

on the extent to which these 

requirements reflect pedagogical 

knowledge and other teacher 

characteristics that are likely to have a 

positive effect on achievement of 

students with disabilities. As of now, 

there is minimal research showing the 

relationship between special education 

certification and academic achievement 

for students with disabilities. 

Special Education Teachers Teaching to 

Alternate Achievement Standards 

Section 9101 of the ESEA requires 

that teachers of a core academic subject 


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have full State teacher certification, 

hold at least a bachelor’s degree, and be 

able to demonstrate knowledge of the 

subject matter they teach. Elementarylevel teachers may demonstrate subject 

matter expertise by passing a rigorous 

State test of their subject knowledge and 

teaching skills in reading, writing, 

mathematics, and other areas of the 

basic elementary school curriculum, but 

middle or secondary school teachers 

must demonstrate a high level of 

competence in each of the academic 

subjects that they teach. 

Section 300.18(c) permits special 

education teachers who teach core 

academic subjects exclusively to 

children who are assessed against the 

alternate achievement standards, 

established under 34 CFR 200.1(d), to 

fulfill the highly qualified teacher 

requirements in section 9101(23)(B) or 

(C) of the ESEA as applied to an 

elementary school teacher, or, in the 

case of instruction above the elementary 

level, to meet the requirements in 

section 9101(23)(B) or (C) for an 

elementary school teacher and have 

subject matter knowledge appropriate to 

the level of instruction being provided, 

as determined by the State, needed to 

effectively teach to those standards. 

The cost of demonstrating subject area 

competence depends on the number of 

special education teachers who teach 

core academic subjects exclusively to 

children assessed against alternate 

achievement standards, the number of 

these teachers who already would be 

considered highly qualified under 

section 9101(23) of the ESEA and the 

number who would not, and the cost of 

helping special education teachers who 

are not highly qualified meet the highly 

qualified teacher requirements for 

teaching core academic subjects at the 

middle and high school levels (or 

replacing them with highly qualified 

teachers). The final regulations will 

generate savings for public agencies to 

the extent that the cost of helping 

teachers demonstrate subject area 

competence at the elementary level and 

obtain the knowledge appropriate to the 

level of instruction needed to teach to 

alternate achievement standards is 

lower than the cost of demonstrating 

subject matter competence at the level 

(middle or high school) at which they 

are teaching. 

Under 34 CFR 200.1(d), States are 

permitted to assess up to one percent of 

students against alternate achievement 

standards. Based on estimated 2005–

2006 school enrollment data compiled 

by the National Center for Education 

Statistics (NCES), States could assess up 

to 257,650 students in the middle and 

secondary levels (grades 6–12) against 

alternate achievement standards. Based 

on a typical ratio of one teacher for 

every six students for instruction based 

on alternate achievement standards, as 

many as 43,000 special education 

teachers would be eligible to 

demonstrate that they fulfill the 

requirements for highly qualified 

teachers in section 9101 of the ESEA by 

demonstrating subject matter knowledge 

appropriate to the level of instruction 

being provided instead of the student’s 

grade level. The number of affected 

teachers would depend on the extent to 

which these special education teachers 

are teaching exclusively children 

assessed against alternate achievement 

standards. 

Although it is difficult to estimate the 

savings from these final regulations, the 

Secretary expects some savings to be 

produced because affected special 

education teachers are not required to 

demonstrate the same level of content 

knowledge as other middle and high 

school teachers of core academic 

subjects, thereby reducing the amount of 

additional coursework or professional 

development that is needed to meet 

State standards. The savings depend on 

the gap between what State standards 

require in terms of content knowledge 

for middle and high school teachers in 

various academic areas and what the 

affected teachers are able to demonstrate 

in the academic subjects they are 

teaching. Any savings will be offset in 

part by the cost of developing a means 

for the affected teachers to demonstrate 

subject matter knowledge appropriate to 

the level of instruction being provided. 

However, this cost is not expected to be 

significant. On balance, the Secretary 

concludes that the final regulations 

could produce significant savings 

without adversely affecting the quality 

of instruction provided to children 

assessed against alternate achievement 

standards. 

Special Education Teachers Teaching 

Multiple Subjects 

Section 300.18(d) permits special 

education teachers who are not new to 

the profession and teach two or more 

core academic subjects exclusively to 

children with disabilities to 

demonstrate competence in all the core 

academic subjects that the teacher 

teaches in the same manner as other 

elementary, middle, and secondary 

school teachers who are new to the 

profession under 34 CFR 200.56(c), 

including through a High Objective 

Uniform State Standards of Evaluation 

(HOUSSE) covering multiple subjects. 

The final regulations allow more time 

(two years after the date of employment) 

for new special education teachers who 

teach multiple subjects and who have 

met the highly qualified requirements 

for mathematics, language arts, or 

science to demonstrate competence in 

other core academic subjects that they 

teach, as required by 34 CFR 200.56(c). 

The final regulations also clarify in 

§ 300.18(e) that States have the option of 

developing separate HOUSSE standards 

for special education teachers, including 

a single HOUSSE for special education 

teachers of multiple subjects. States may 

not establish lesser standards for 

content knowledge for special education 

teachers, however. 

We are unable to estimate the number 

of new teachers who teach two or more 

core academic subjects exclusively to 

children with disabilities who might be 

affected by the additional time afforded 

by the regulation. However, the extent 

of savings relates to the number of 

subjects taught by teachers of multiple 

subjects and the benefits of enabling the 

affected teachers to take whatever 

coursework they need to demonstrate 

competence in those additional areas 

over a longer period of time. Under 

prior law, public agencies might have 

needed to employ additional teachers 

(or redeploy some existing teachers) in 

those subject areas in which their newly 

hired teachers could not immediately 

demonstrate competence. The Secretary 

concludes that the benefits of being able 

to hire teachers who are qualified in at 

least one subject area outweigh any 

costs to students being taught by 

teachers who currently do not meet the 

requirements in other areas but are 

working to demonstrate their knowledge 

in other areas in which they teach. 

Since States are not permitted to 

establish a lesser standard for the 

content knowledge requirements for 

special education teachers, they are not 

likely to realize additional savings due 

to reduced expenses for coursework or 

professional development for special 

education teachers who have not 

demonstrated content area knowledge. 

States may realize administrative 

savings, however, by being able to use 

separate HOUSSE standards that are 

both aligned with their licensing or 

certification standards for special 

education teachers and that cover 

multiple subjects. The Secretary 

concludes that the final regulations 

could produce administrative savings 

for States without adversely affecting 

the quality of instruction provided to 

children taught by special education 

teachers assessed through a separate 

mechanism that upholds the same 

standards for content knowledge. 


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Limitation on Number of Reevaluations 

in a Single Year 

Section 300.303(b)(1) prohibits 

conducting more than one reevaluation 

in a single year without the agreement 

of the school district and the parent. 

The previous regulations required 

reevaluations when conditions 

warranted one or at the request of either 

the child’s parent or teacher. 

Multiple evaluations in a single year 

are rare and are conducted when 

parents are not satisfied with the 

evaluation findings or methodology, 

children have a degenerative condition 

that affects the special education and 

related services needed, or very young 

children (ages three through four) are 

experiencing rapid development that 

may affect the need for services. The 

final regulations will not significantly 

affect the number of evaluations in the 

latter two instances because public 

agencies and parents are likely to agree 

that multiple evaluations are warranted. 

These cases, however, account for a very 

small number of the cases in which 

multiple evaluations are conducted each 

year. 

Because evaluation findings may be 

used to support requests for due process 

hearings, we can use data on the 

number of requests for due process 

hearings to estimate the number of cases 

in which more than one evaluation in a 

single year would have been conducted 

because parents were not satisfied with 

the evaluation findings or methodology. 

Based on data from the recent 

Government Accountability Office 

(GAO) report, ‘‘Special Education: 

Numbers of Formal Disputes Are 

Generally Low and States Are Using 

Mediation and Other Strategies to 

Resolve Conflicts’’ (GAO–03–897), in 

which States reported receiving 11,068 

requests for due process hearings during 

1999–2000, we estimate that States 

would receive 20 requests for every 

10,000 students with disabilities during 

the 2006–2007 school year. Based on the 

prevalence of complaints by parents, we 

estimate that, of the 1.7 million children 

estimated to be eligible for reevaluation 

in 2006–2007, multiple evaluations 

would have been requested by parents 

for an estimated 3,400 children. If we 

assume that these additional evaluations 

would cost about $1,000 each, public 

agencies could save $3.4 million under 

the final regulations by not agreeing to 

more than one evaluation of children in 

these instances. 

Triennial Evaluations 

The previous regulations required a 

school district to conduct an evaluation 

of each child served under the Act every 

three years to determine, among other 

things, whether the child was still 

eligible for special education. The 

previous regulations also permitted the 

evaluation team to dispense with 

additional tests to determine the child’s 

continued eligibility if the team 

concluded that this information was not 

needed and the parents provided 

consent. Section 300.303(b)(2) permits 

districts to dispense with the triennial 

evaluation when the child’s parents and 

the public agency agree that a 

reevaluation is unnecessary. The impact 

of this change depends on the following 

factors: the number of children eligible 

for a reevaluation, the cost of the 

evaluation, and the extent to which 

districts and parents agree to waive 

reevaluations. 

Published estimates of the cost of 

multidisciplinary evaluations range 

from $500 to $2,500, but these estimates 

may overestimate potential savings 

because testing is a significant factor in 

the cost of evaluations, and districts are 

already permitted to dispense with 

additional testing when extant data are 

sufficient for reevaluation. The extent to 

which States and districts eliminated 

unnecessary testing during triennial 

evaluations under the previous 

regulations is unclear, but program 

officers estimate that additional testing 

or observation by a school psychologist 

is not needed for as many as half of the 

approximately 1.7 million children 

eligible for triennial evaluations each 

year. In the estimated 850,000 cases in 

which additional testing is not needed, 

review of the extant data may still be 

warranted to determine if a child still 

needs special education and related 

services under the Act or to assess 

whether any additions or modifications 

to the special education and related 

services being provided are needed to 

help the child meet the child’s IEP 

goals. Even if additions or modifications 

to special education and related services 

are not likely, parents may not want to 

dispense with the triennial evaluation if 

they believe further information could 

be gained from the extant data or they 

want to compare their child’s progress 

against his or her previous assessments. 

If parents and the district agree that a 

reevaluation is not needed in 15 

percent, or 127,500, of these cases and 

a reevaluation using only extant data 

would have cost $150, the final 

regulations could save $19.125 million. 

These savings will be partially offset 

by increased administrative costs 

associated with obtaining consent from 

parents to dispense with reevaluation. 

To estimate the cost of obtaining 

parental consent, the Department 

assumes that schools could use a 

standard pre-printed document that 

would take approximately 15 minutes of 

administrative personnel time to fill out 

and send to parents. In addition, we 

estimate that an average of 2.5 

additional written notices or telephone 

calls would be needed to obtain 

consent, requiring 15 minutes of 

administrative personnel time per 

additional contact. At an average hourly 

compensation of $25, the cost to public 

agencies of obtaining parental consent 

would be $2.8 million, resulting in 

estimated net savings to public agencies 

from the final regulations of $16.3 

million. 

IEP Team Attendance 

Section 300.321(e)(1) permits certain 

members of the IEP Team to be excused 

from attending an IEP Team meeting, in 

whole or in part, if the parent of the 

child with a disability and the public 

agency agree in writing that the 

member’s attendance is not necessary 

because the member’s area of the 

curriculum or related services is not 

being modified or discussed. The 

previous regulations required that all 

IEP Team meetings include the parents 

of the child, at least one regular 

education teacher (if the child is, or may 

be, participating in the regular 

education environment), at least one 

special education teacher, a 

representative of the public agency, and 

someone who could interpret the 

instructional implications of the 

evaluation results (who may be one of 

the other required IEP Team members). 

The extent to which public agencies 

will realize savings from the final 

regulations depends on which team 

members are excused from how much of 

the meeting. If the average IEP Team 

meeting lasts 1.5 hours and requires a 

half an hour of teacher preparation, then 

we estimate that the opportunity costs 

for a teacher of attending a meeting 

(based on average compensation per 

hour of $48) would be $96. If we assume 

an average of 1.2 IEP Team meetings are 

held for each of the 6.947 million 

children with disabilities, then 8.34 

million IEP Team meetings will be held 

in 2006–2007. If one teacher could be 

excused from five percent of these 

meetings, the final regulation could 

result in savings of $40 million. 

These savings will be partially offset 

by increased administrative costs 

associated with obtaining written 

consent from parents and public agency 

staff. Based on the above estimate of the 

cost of obtaining consent from parents 

under § 300.303(b)(2), the Department 

estimates that the cost to public 

agencies of obtaining written consent 

from these parents would be $9.1 


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Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46747 

million, resulting in net savings to 

public agencies from the final 

regulations of $30.9 million. 

Section 300.321(e)(2) permits certain 

members of an IEP Team to be excused 

from attending an IEP Team meeting 

that involves a modification to or 

discussion of the member’s area of the 

curriculum or related service if the 

parent and the public agency consent in 

writing to the excusal and the member 

submits written input to the parent and 

the other members of the IEP Team prior 

to the meeting. The change is unlikely 

to generate notable savings because 

reduced time spent in meetings is likely 

to be offset by the time required to draft 

written input, send it to the parents and 

other IEP Team members, and secure 

the consent of parents and public 

agency to the excusal. In cases in which 

IEP Team meetings take longer than the 

average time of 1.5 hours, there are 

likely to be controversial issues or 

significant modifications to the IEP 

under discussion. Parents are 

presumably less likely to consent to the 

excusal of team members in these 

instances. 

Definition of Individualized Education 

Program (IEP) 

Section 300.320(a)(2)(i) requires that 

each IEP include a statement of 

measurable annual goals, including 

academic and functional goals, for the 

child. The previous regulations required 

that each IEP contain benchmarks or 

short-term objectives for each of the 

annual goals. By eliminating the need to 

develop benchmarks or short-term 

objectives, the final regulations could 

result in teachers spending less time on 

each IEP. Under § 300.320(a)(2)(ii), 

however, IEPs for the estimated 486,000 

children with disabilities who take 

alternate assessments aligned to 

alternate achievement standards would 

still be required to include a statement 

of benchmarks or short-term objectives. 

Based on average compensation for 

teachers of $48 per hour, a reduction in 

time as modest as 15 minutes could save 

approximately $12 per IEP or $77.5 

million total in opportunity costs for 

teachers related to the development of 

IEPs during the 2006–2007 school year 

for the 6.461 million children with 

disabilities who do not take alternate 

assessments aligned to alternate 

achievement standards. 

Amendments to an IEP 

When changes to a child’s IEP are 

needed after the annual IEP Team 

meeting for the school year has been 

held, § 300.324(a)(4) allows the parent 

of a child with a disability and the 

public agency to agree to forego a 

meeting and develop a written 

document to amend or modify the 

child’s current IEP. Under the previous 

regulations, the IEP Team was required 

to reconvene in order to make 

amendments to an IEP. Based on our 

estimate of an average of 1.2 IEP Team 

meetings per child per year, 

approximately 1.4 million IEP Team 

meetings beyond the required annual 

IEP Team meeting would be held during 

the 2006–2007 school year. If half of 

these meetings concerned amendments 

or modifications to an IEP and parents 

and agency representatives agreed to 

forego a meeting and develop a written 

document in half of these cases, then 

350,000 IEP Team meetings would not 

be needed. The combined opportunity 

costs for personnel participating in a 

typical IEP Team meeting are estimated 

at $307. If drafting a written document 

to amend or modify an IEP is assumed 

to cost half as much as a meeting, then 

this change could result in savings of 

$53.7 million. 

Procedural Safeguards Notice 

Section 300.504(a), which 

incorporates changes in section 

615(d)(1) of the Act, requires that a copy 

of the procedural safeguards notice be 

given to parents of children with 

disabilities only once a school year, 

except that a copy must also be given 

when an initial evaluation or parent 

request for an evaluation occurs; the 

first time a due process hearing is 

requested during a school year; when 

the decision to take disciplinary action 

is made; and when a parent requests the 

notice. The prior law required that a 

copy of the procedural safeguards notice 

be given to the parents upon initial 

referral for an evaluation, each 

notification of an IEP Team meeting, 

each reevaluation of the child, and the 

registration of each request for a due 

process hearing. Under the final 

regulations, a copy of the procedural 

safeguards notice no longer has to be 

given to parents with each notice for an 

IEP Team meeting or every time a 

request for a due process hearing is 

received. Instead, the document only 

has to be given to parents once a year, 

and the first time a due process hearing 

is requested in a year, when the 

decision to take disciplinary action is 

made, when a copy of the document is 

specifically requested by a parent, or 

when an initial evaluation or request for 

a reevaluation occurs. 

To determine the impact of this 

change, it is necessary to estimate the 

savings created by providing fewer 

notices to parents who are notified 

about more than one IEP Team meeting 

during the year or who file more than 

one request for a due process hearing. 

Given the small number of hearing 

requests in a year (about 20 per 10,000 

children with disabilities), our analysis 

will focus on the number of parents 

involved in more than one IEP Team 

meeting. Although we lack detailed data 

on the number of IEP Team meetings 

conducted each year, we estimate that 

approximately 6.947 million children 

with disabilities will be served in school 

year 2006–2007. For the vast majority of 

these children, we believe there will be 

only one IEP Team meeting during the 

year. For purposes of estimating an 

upper limit on savings, if we assume an 

average of 1.2 meetings per year per 

child, 1.39 million children will have 

two IEP Team meetings each year and 

the change reflected in § 300.504(a) will 

result in 1.39 million fewer procedural 

notices provided to parents. While some 

people may believe this change 

represents a significant reduction in 

paperwork for schools, the actual 

savings are likely to be minimal given 

the low cost of producing a notice of 

this size (about 10 pages) and the small 

amount of administrative staff time 

involved in providing this notice to 

parents (about 10 minutes). Taking all of 

this into consideration, total savings are 

unlikely to exceed $5 million. 

Due Process Request Notices 

Section 300.511(d) prohibits the party 

who requested the due process hearing 

from raising issues not raised in the due 

process request notice, unless the other 

party agrees. Under previous 

regulations, there was no prohibition on 

raising issues at due process hearings 

that were not raised in the due process 

notice. 

By encouraging the party requesting 

the hearing to clearly identify and 

articulate issues sooner, the final 

regulations could generate actual 

savings by facilitating early resolution of 

disagreements through less costly 

means, such as mediation or resolution 

meetings. But early identification of 

issues could come at the cost of more 

extensive involvement of attorneys 

earlier in the process. At the same time, 

prohibiting the party requesting the 

hearing from raising new issues at the 

time of the hearing could result in 

additional complaints or protracted 

conflict and litigation. On balance, net 

costs or savings are not likely to be 

significant. 

Using data from recent State data 

collections conducted by the 

Consortium for Appropriate Dispute 

Resolution in Special Education 

(CADRE), in which States reported 

receiving 12,914 requests for due 

process hearings during 2000–2001, we 


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estimate that there will be 

approximately 14,059 requests in 2006–

2007. Because some parties already hire 

attorneys or consult other resources 

such as advocates or parent training 

centers to develop the request for due 

process, the Department assumes that 

only a portion of the requests would be 

affected by this new requirement. 

Although we have no reliable data on 

average attorneys’ fees in due process 

cases, for purposes of this analysis, the 

Department assumes an hourly rate of 

$300 as an upper limit. The Department 

further assumes that each instance in 

which a party chooses to hire an 

attorney sooner as a result of this change 

will involve no more than three 

additional hours of work. Even if we 

assume that parties requesting the 

hearing will incur this additional cost in 

the case of 8,000 of the expected 

requests for due process, the total costs 

would not be significant (less than $8 

million), and could be outweighed by 

the benefits of early identification and 

resolution of issues. Although such 

benefits are largely unquantifiable, early 

identification and resolution of disputes 

would likely benefit all parties involved 

in disputes. 

Resolution Meetings 

Section 300.510 requires the parents, 

relevant members of the IEP Team, and 

a representative of the public agency to 

participate in a resolution meeting, prior 

to the initiation of a due process 

hearing, unless the parents and LEA 

agree to use mediation or agree to waive 

the requirement for a resolution 

meeting. The impact of these final 

regulations will depend on the 

following factors: the number of 

requests for due process hearings, the 

extent to which disagreements are 

already resolved without formal 

hearings, the likelihood that parties will 

agree to participate in mandatory 

resolution meetings instead of other 

potentially more expensive alternatives 

to due process hearings (e.g., 

mediation), and the likelihood that 

parties will avoid due process hearings 

by reaching agreement as a result of 

mandatory resolution meetings. 

Available data suggest that overall 

savings are not likely to be significant 

because of the small number of due 

process requests and the extent to which 

disagreements are already being 

successfully resolved through 

mediation. 

Based on data reported in a recent 

CADRE State data collection in which 

States reported receiving 12,914 

requests for due process hearings during 

2000–2001, we estimate that there will 

be approximately 14,059 requests for 

due process hearings in school year 

2006–2007. Based on data from the 

same study, we also estimate that the 

large majority of these disagreements 

will be successfully resolved through 

mediation or dropped. Out of the 12,914 

requests for school year 2000–2001, 

approximately 5,536 went to mediation 

and only 3,659 ended up in formal 

hearings. Assuming no change in the 

use and efficacy of mediation, we 

predict that 6,028 requests would go to 

mediation in school year 2006–2007. 

We further predict that another 4,047 

complaints will be dropped, leaving no 

more than 3,985 requests for due 

process hearings that would require 

resolution meetings. 

Because of the high cost of due 

process hearings and the low expected 

cost of conducting a resolution meeting, 

there would likely be some savings for 

all parties involved if resolution 

meetings were relatively successful in 

resolving disagreements. For example, 

California reports an average cost of 

$18,600 for a due process hearing, while 

Texas reports having spent an average of 

$9,000 for a hearing officer’s services. 

Anticipating that attorneys will 

participate in approximately 40 percent 

of the predicted 3,985 resolution 

meetings (including drafting legally 

binding agreements when parties reach 

agreement), we expect resolution 

meetings to cost just over twice the 

average cost of IEP Team meetings, or 

approximately $700 per meeting. Even 

with a very low success rate (eight 

percent), given the expected costs of 

these meetings compared to the high 

cost of conducting a hearing, all parties 

involved would likely realize some 

modest savings. However, because 

disputes that result in formal hearings 

tend to be the most difficult to resolve, 

we do not expect that mandatory 

resolution meetings will be highly 

successful in resolving such cases. By 

definition, these are cases in which the 

parties are not amenable to using 

existing alternatives to formal hearings 

such as mediation. Moreover, assuming 

an average cost of between $10,000 and 

$20,000 per due process hearing, even if 

as many as 20 percent of the 3,985 

complaints were successfully resolved 

through resolution meetings, net savings 

still would not exceed $10 million. 

(Note that it is unclear to what extent 

data on average mediation and due 

process hearing costs account for LEA 

opportunity costs (e.g., cost per teacher 

and/or administrator participating). To 

the extent that these data do not reflect 

the opportunity costs of participating 

LEA officials and staff, we have 

overestimated the potential savings from 

resolution meetings). 

Beyond those savings to all parties 

resulting from reductions in the total 

number of formal hearings, we also 

expect some additional savings to result 

from parties agreeing to participate in 

resolution meetings instead of 

mediation, particularly if the resolution 

meetings are as effective as mediation in 

resolving disagreements. However, 

unlike due process hearings, the 

expected cost of conducting a resolution 

meeting ($700 per meeting) is only 

somewhat less than the cost of a 

mediation session (between $600 and 

$1,800 per session). Because the cost 

differential between resolution meetings 

and mediations is relatively small 

(compared to the difference in cost 

between resolution meetings and due 

process hearings) the potential for 

savings generated by parties agreeing to 

resolution meetings instead of 

mediation is minimal. 

The Secretary concludes that 

requiring parties to participate in 

resolution meetings prior to due process 

hearings could generate modest savings 

for all parties to disputes, insofar as 

mandatory resolution meetings could 

result in fewer due process hearings and 

may be used as a less expensive 

alternative to mediation. 

Manifestation Determination Review 

Procedures 

Section 300.530(e) and (f) incorporate 

the change in the statutory standard for 

conducting manifestation determination 

reviews. Under the prior law, the IEP 

Team could conclude that the behavior 

of a child with a disability was not a 

manifestation of the child’s disability 

only after considering a list of factors, 

determining that the child’s IEP and 

placement were appropriate, and that 

FAPE, supplemental services, and 

behavioral intervention strategies were 

being provided in a manner consistent 

with the child’s IEP. Previous law also 

required the IEP Team to consider 

whether a child’s disability impaired 

the child’s ability to understand the 

impact and consequences of the 

behavior in question, and to control 

such behavior. The Act eliminated or 

substantially revised these 

requirements. The final regulations 

simply require an IEP Team to review 

all relevant information in the child’s 

file to determine if the conduct in 

question was caused by, or had a direct 

and substantial relationship to, the 

child’s disability, or if the conduct in 

question was the direct result of the 

LEA’s failure to implement the IEP. The 

purpose of the change in the law is to 

simplify the discipline process and 


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make it easier for school officials to 

discipline children with disabilities 

when discipline is appropriate and 

justified. 

Because fewer factors need to be 

considered during each manifestation 

determination review, the time required 

to conduct such reviews will likely be 

reduced, and some minimal savings 

may be realized. However, the more 

significant impact relates to secondary 

effects. Because it will be less 

burdensome for school personnel to 

conduct manifestation determinations, 

it is reasonable to expect an overall 

increase in the number of these reviews 

as school personnel take advantage of 

the streamlined process to pursue 

disciplinary actions against those 

children with disabilities who commit 

serious violations of student codes of 

conduct. This prediction is consistent 

with a recent GAO report (‘‘Student 

Discipline: Individuals with Disabilities 

Education Act’’ (GAO–01–210)), which 

found that a ‘‘sizable minority of 

principals’’ voiced concern that 

discipline policies under previous law 

impeded proper disciplinary action for 

students with disabilities, and that some 

of these comments ‘‘may have stemmed 

from the additional time and resources 

that principals reportedly use to 

discipline special education students 

compared with regular education 

students.’’ Even more importantly, the 

changes in the law will make it easier 

for review team members to conclude 

that the behavior in question is not a 

manifestation of a child’s disability, 

enabling school personnel to apply 

disciplinary sanctions in more cases 

involving children with disabilities. 

We have minimal data on the number 

of manifestation determination reviews 

being conducted. However, Statereported data for the 2002–2003 school 

year suggest that schools are conducting 

a relatively small number of 

manifestation reviews. According to 

these data, for every 1,000 children with 

disabilities, approximately 11 will be 

suspended or expelled for longer than 

10 days during the school year (either 

through a single suspension or as a 

result of multiple short-term 

suspensions)—the disciplinary action 

triggering a manifestation review. 

(Please note that we have no way of 

accurately estimating what portion of 

short-term suspensions that add up to 

10 days would be determined by school 

personnel to constitute a change in 

placement. Therefore, we assume, for 

purposes of this analysis, that 100 

percent of these instances would require 

a manifestation review because they 

would be deemed a change in 

placement). Based on a recent GAO 

study (‘‘Student Discipline: Individuals 

with Disabilities Education Act’’ (GAO–

01–210)), we assume that under 

previous law at least 85 percent of 

manifestation reviews resulted in 

disciplinary actions (e.g., long-term 

suspensions or expulsion). In other 

words, approximately 15 percent of all 

manifestation reviews did not result in 

disciplinary action because the behavior 

in question was determined to be a 

manifestation of the child’s disability. 

Without taking into consideration 

increases in the frequency of 

manifestation reviews, using suspension 

and expulsion data from previous years, 

we estimate that the total number of 

manifestation reviews in 2006–2007 

will be approximately 87,880. If we 

assume that the streamlining reflected 

in the regulations will produce a 20 

percent increase in the total number of 

manifestation reviews, we predict that 

17,576 additional meetings will occur, 

for a total of 105,456 meetings. 

Under the final regulations, the 

Secretary also expects an increase in the 

total number of manifestation reviews 

resulting in disciplinary actions, but it 

is not likely to be a significant increase. 

GAO’s finding that there is little 

practical difference in how school 

personnel disciplined regular and 

special education students under 

previous law suggests that manifestation 

reviews are already highly likely to 

result in disciplinary actions. 

The Secretary concludes that the final 

regulations will generate some minimal 

savings from the reduction in time 

required to conduct the manifestation 

reviews. Schools would also realize 

some qualitative benefits related to the 

increased likelihood that the outcome of 

the review will result in disciplinary 

action, thereby fostering a school 

environment that is safer, more orderly, 

and more conducive to learning. The 

Secretary acknowledges that the final 

regulations could create additional costs 

for parents of children who, but for this 

change, would not have been subject to 

disciplinary removals, to the extent that 

such parents disagree with the 

manifestation determination and choose 

to appeal it. On balance, the Secretary 

believes that the benefits likely to result 

from this change relating to school 

safety and order outweigh the costs to 

families. 

Authority To Remove Students With 

Disabilities to Interim Alternative 

Educational Settings 

Sections 300.530(g) through 300.532 

incorporate two significant statutory 

changes relating to the authority of 

school personnel to remove children 

with disabilities to interim alternative 

educational settings. First, the Act now 

gives school personnel the authority to 

remove to interim alternative 

educational settings children who have 

inflicted serious bodily injury to 

themselves, or others. Under previous 

law, school personnel were authorized 

to remove children to alternative 

settings only for misconduct involving: 

(1) The use and possession of weapons; 

and (2) the knowing possession, sale, or 

use of illegal drugs or controlled 

substances. The Act added the 

commission of serious bodily injury to 

this list. In cases involving serious 

bodily injury, school personnel would 

be able to unilaterally remove children 

with disabilities to interim alternative 

educational settings for up to 45 school 

days without having to request that a 

hearing officer review the facts to 

determine whether or not the child is 

substantially likely to harm him or 

herself or others. Second, the 45-day 

rule has changed. Under previous law, 

students could not be removed to 

interim alternative educational settings 

for more than 45 days. Now, under the 

Act, the comparable time limitation is 

45 school days. 

Although the addition of serious 

bodily injury significantly simplifies the 

process for removing a child who has 

engaged in such misconduct, the data 

suggest that the savings from the final 

regulations will be minimal. Recent 

Department of Justice data show that 

‘‘fighting without a weapon’’ is by far 

the most common type of serious 

misconduct engaged in by all students. 

However, State-reported data suggest 

that, of the 20,000 instances in 2002–

2003 in which children with disabilities 

were suspended or expelled for longer 

than 10 days, only 1,200 involved 

serious bodily injury or removal ‘‘by a 

hearing officer for likely injury.’’ We 

estimate that approximately 6.947 

million children with disabilities will 

be served during the 2006–2007 school 

year. Using these data, we project that 

there would have been approximately 

1,283 instances in 2006–2007 in which 

a school district might have requested 

approval from a hearing officer to 

remove a child for inflicting serious 

bodily injury, if the law had not been 

changed. Taking into account the time 

that would have been spent by both 

relevant school administrators and the 

hearing officers and their estimated 

hourly wages (about $125 per hour for 

hearing officers and $50 per hour for 

school administrators), we conclude 

that the unilateral authority afforded 

school officials under the final 

regulations produce only minimal 

savings (less than $1 million). 


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A much more significant benefit 

relates to the enhanced ability of school 

officials to provide for a safe and orderly 

environment for all students in the 

1,283 cases in which school officials 

would have been expected to seek and 

secure hearing officer approval for 

removing a child with a disability to an 

alternative setting and the other cases in 

which they might not have taken such 

action, but where removal of a child 

with a disability who has caused injury 

is justified and produces overall benefits 

for the school. 

The change in how days are to be 

counted (e.g., from ‘‘calendar days’’

under previous law to ‘‘school days’’

under the final regulations) allows 

school officials to extend placements in 

alternative settings for approximately 

two additional weeks. This generates 

some savings to the extent that it 

obviates the need for school officials to 

seek hearing officer approval to extend 

a child’s placement in an alternative 

setting. 

While school personnel are not 

required to use the new authority to 

remove children who have inflicted 

serious bodily injury or to remove 

children for the total amount of time 

that is authorized, we acknowledge that 

it would create additional costs for 

schools that choose to take full 

advantage of this authority because of 

the added costs of providing services in 

interim alternative educational settings. 

Using data from a recent GAO study 

(‘‘Student Discipline: Individuals with 

Disabilities Education Act’’ (GAO–01–

210)), we estimate that approximately 

3,007 children will be removed to an 

interim alternative educational setting 

in 2006–2007 for misconduct involving 

drugs or weapons and at least another 

1,283 for misconduct involving serious 

bodily injury. Although we do not have 

data on the costs of educating these 

children in an alternative setting for 45 

school days, the Secretary concludes 

that the costs of doing so will be 

outweighed by the qualitative benefits 

to schools associated with ensuring 

children a safe and orderly environment 

that is conducive to learning. 

Costs and Benefits of Non-Statutory 

Final Regulatory Provisions 

The following is an analysis of the 

costs and benefits of the non-statutory 

final regulatory provisions that includes 

consideration of the special effects these 

changes may have on small entities. 

The final regulations primarily affect 

SEAs and LEAs, which are responsible 

for carrying out the requirements of Part 

B of the Act as a condition of receiving 

Federal financial assistance under the 

Act. Some of the changes also affect 

children attending private schools and 

consequently indirectly affect private 

schools. 

For purposes of this analysis as it 

relates to small entities, the Secretary 

has focused on LEAs because these 

regulations most directly affect local 

public agencies. The analysis uses a 

definition of small school district 

developed by the NCES for purposes of 

its recent publication, Characteristics of 

Small and Rural School Districts. In that 

publication, NCES defines a small 

school district as ‘‘one having fewer 

students in membership than the sum of 

(a) 25 students per grade in the 

elementary grades it offers (usually K–

8) and (b) 100 students per grade in the 

secondary grades it offers (usually 9–

12)’’. Using this definition, 

approximately 38 percent of the 

Nation’s public agencies in the 2002–

2003 Common Core of Data were 

considered small and served three 

percent of the Nation’s students. 

Approximately 17 percent of children in 

small districts had IEPs. 

Both small and large districts will be 

affected economically by the final 

regulations, but no data are available to 

analyze the effect on small districts 

separately. For this reason, this analysis 

assumes that the effect of the final 

regulations on small entities will be 

roughly proportional to the number of 

children with disabilities served by 

those districts. 

For school year 2006–2007, we project 

that approximately 48.6 million 

children will be enrolled in public 

elementary and secondary schools. 

Using the NCES definition and 

assuming that all districts grew at the 

same rate between school years 2002–

2003 and 2005–2006, we estimate that 

in the 2006–2007 school year, 

approximately 1.46 million children 

will be enrolled in small districts. Based 

on the percentage of students in small 

districts with IEPs in 2002–2003, we 

estimate that in the 2006–2007 school 

year, these districts will serve 

approximately 248,000 children with 

disabilities of the 6.947 million children 

with disabilities served nationwide. 

There are many provisions in the final 

regulations that will result in economic 

impacts, both positive and negative. The 

following analysis estimates the impact 

of the final regulations that were not 

required by the Act: 

Procedures for Evaluating Children 

With Specific Learning Disabilities 

Section 300.307(a) requires that States 

adopt criteria for determining whether a 

child has a specific learning disability. 

Under the final regulations, States may 

not require that LEAs use criteria based 

on a severe discrepancy between 

intellectual ability and achievement for 

determining whether a child has a 

specific learning disability. The final 

regulations also require that criteria 

adopted by States permit the use of a 

process that determines if the child 

responds to scientific, research-based 

intervention. States are also permitted to 

use other alternative procedures to 

determine if a child has a specific 

learning disability. 

Before determining that a child has a 

specific learning disability, § 300.309(b) 

requires that the evaluation team 

consider data that demonstrate that 

prior to, or as part of the referral 

process, the child received appropriate 

instruction in regular education settings 

and that data-based documentation of 

repeated assessments of achievement 

during instruction was provided to the 

child’s parents. If the child has not 

made adequate progress under these 

conditions after an appropriate period of 

time, the final regulations further 

require that the public agency refer the 

child for an evaluation to determine if 

special education and related services 

are needed. Under the final regulations, 

the child’s parents and the team of 

qualified professionals, described in 

§ 300.306(a)(1), are permitted to extend 

the evaluation timelines described in 

§§ 300.301 through 300.303 by mutual 

written agreement. 

If the estimated number of initial 

evaluations each year is 1.7 million and 

the percentage of evaluations involving 

children with specific learning 

disabilities is equivalent to the 

percentage of all children served under 

Part B of the Act with specific learning 

disabilities, then the final regulations 

will affect approximately 816,000 

evaluations each year. Depending on the 

criteria adopted by their States pursuant 

to § 300.307(a), public agencies could 

realize savings under the final 

regulations by reducing the amount of a 

school psychologist’s time involved in 

conducting cognitive assessments that 

would have been needed to document 

an IQ discrepancy. However, these 

savings could be offset by increased 

costs associated with documenting 

student achievement through regular 

formal assessments of their progress, as 

required under § 300.309(b). 

Although the cost of evaluating 

children suspected of having specific 

learning disabilities might be affected by 

the final regulations, the Department 

expects that the most significant 

benefits of the changes will be achieved 

through improved identification of 

children suspected of having specific 

learning disabilities. By requiring that 

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discrepancy criterion, the final 

regulations facilitate more appropriate 

and timely identification of children 

with specific learning disabilities, so 

that they can benefit from researchbased interventions that have been 

shown to produce better achievement 

and behavioral outcomes. 

The final regulations may impose 

additional costs on small public 

agencies that currently lack capacity to 

conduct repeated assessments of 

achievement during instruction and 

provide parents with documentation of 

the formal assessments of their child’s 

progress. These costs are likely to be 

offset by reduced need for psychologists 

to administer intellectual assessments. 

To the extent that small districts may 

not employ school psychologists, the 

revised criteria may alleviate testing 

burdens felt disproportionately by small 

districts under an IQ discrepancy 

evaluation model. 

Transition Requirements 

Section 300.321(b) modifies previous 

regulations regarding transition services 

planning for children with disabilities 

who are 16 through 21 years old. Public 

agencies are still required to invite other 

agencies that are likely to be responsible 

for providing or paying for transition 

services to the child’s IEP Team 

meeting. If the invited agency does not 

send a representative, public agencies 

are no longer required to take additional 

steps to obtain the participation of those 

agencies in the planning of transition, as 

required under former 

§ 300.344(b)(3)(ii). 

Public agencies will realize savings 

from the change to the extent that they 

will not have to continue to contact 

agencies that declined to participate in 

IEP Team meetings on transition 

planning. In school year 2006–2007, we 

project that public agencies will 

conduct 1.193 million meetings for 

children with disabilities who are 16 

through 21 years old. We used data from 

the National Longitudinal Transition 

Study 2 (NLTS2) on school contacts of 

outside agency personnel to project the 

number of instances in which outside 

agencies would be invited to IEP Team 

meetings during the 2006–2007 school 

year. Based on these data, we project 

that schools will invite 1.492 million 

personnel from other agencies to IEP 

Team meetings for these students during 

the 2006–2007 school year. The NLTS2 

also collected data on the percentage of 

children with a transition plan for 

whom outside agency staff were actively 

involved in transition planning. Based 

on these data, we project that 432,800 

(29 percent) of the contacts will result 

in the active participation of outside 

agency personnel in transition planning 

for children with disabilities who are 

age 16 through 21. 

We base our estimate of the savings 

from the change on the projected 

1,059,200 (71 percent) instances in 

which outside agencies will not 

participate in transition planning 

despite school contacts that, under the 

previous regulations, would have 

included both an invitation to 

participate in the child’s IEP Team 

meeting and additional follow-up 

attempts. If public agencies made only 

one additional attempt to contact the 

outside agency and each attempt 

required 15 minutes of administrative 

personnel time, then the change will 

save $6.6 million (based on an average 

hourly compensation for office and 

administrative support staff of $25). 

Studies of best practices conducted by 

the National Center on Secondary 

Education and Transition indicate that 

effective transition planning requires 

structured interagency collaboration. 

Successful approaches cited in the 

studies included memoranda of 

understanding between relevant 

agencies and interagency teams or 

coordinators to ensure that educators, 

State agency personnel and other 

community service providers share 

information with parents and children 

with disabilities. The previous 

regulations focused on administrative 

contact instead of active strategic 

partnerships between agencies that 

facilitate seamless transitions for 

children with disabilities between 

school and adult settings. For this 

reason, the Department believes that the 

elimination of the non-statutory 

requirement that public agencies make 

additional attempts to contact other 

agencies will reduce administrative 

burden and allow public agencies to 

focus their efforts on interagency 

collaborative transition planning for 

children with disabilities. 

Paperwork Reduction Act of 1995 

The Paperwork Reduction Act of 1995 

does not require you to respond to a 

collection of information unless it 

displays a valid OMB control number. 

We display the valid OMB control 

numbers assigned to the collections of 

information in these final regulations at 

the end of the affected sections of the 

regulations. 

These final regulations include 9 

information collection requirements 

associated with the following 

provisions: §§ 300.100 through 300.176, 

§ 300.182, § 300.199, §§ 300.201 through 

300.213, § 300.224, § 300.226, 

§§ 300.506 through 300.507, § 300.511, 

§§ 300.601 through 300.602, § 300.640, 

§ 300.704, and § 300.804. A description 

of these provisions is given below with 

an estimate of the annual recordkeeping 

burden. Included in the estimate is the 

time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

each collection of information. 

Collection of Information: Annual 

State Application under Part B of the 

Act. §§ 300.100 through 300.176, 

§ 300.182, and § 300.804. Each State is 

eligible for assistance under Part B of 

the Act for a fiscal year if the State 

submits a plan that provides assurances 

to the Secretary that the State has in 

effect policies and procedures to ensure 

that the State meets the eligibility 

criteria under Part B of the Act and 

these final regulations. Under the Act, 

States are no longer required to have on 

file with the Secretary policies and 

procedures to demonstrate to the 

satisfaction of the Secretary that the 

State meets specific conditions for 

assistance under Part B of the Act. 

Information collection 1820–0030 has 

been revised to reflect this change in the 

Act and these regulations. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to average twelve hours for 

each response for 60 respondents, 

including the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Thus, the total annual reporting and 

recordkeeping burden for information 

collection 1820–0030 is estimated to be 

720 hours. 

Collection of Information: Part B State 

Performance Plan (SPP) and Annual 

Performance Report (APR). §§ 300.600 

through 300.602. Each State must have 

in place, not later than one year after the 

date of enactment of the Act, a 

performance plan that evaluates the 

State’s efforts to implement the 

requirements and purposes of Part B of 

the Act and these final regulations and 

describe how the State will improve 

such implementation. Each State shall 

report annually to the public on the 

performance of each LEA located in the 

State on the targets in the State’s 

performance plan. The State must report 

annually to the Secretary on the 

performance of the State under the 

State’s performance plan. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to average 325 hours for 

each response for 60 respondents, 

including the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 


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data needed, and completing and 

reviewing the collection of information. 

Thus, the total annual reporting and 

recordkeeping burden for information 

collection 1820–0624 is estimated to be 

19,500 hours. 

Collection of Information: Report of 

Children with Disabilities Receiving 

Special Education under Part B of the 

Individuals with Disabilities Education 

Act. §§ 300.640 through 300.645. Each 

State that receives assistance under Part 

B of the Act shall provide data each year 

to the Secretary and the public on 

children with disabilities by race/ 

ethnicity, disability, gender, and limited 

English proficiency status receiving 

special education and related services in 

each State. 

Annual reporting and recordkeeping 

burden for this collection is estimated to 

average 9 hours for each of 60 State 

agencies and 2 hours for LEAs in each 

State. Thus, the total annual reporting 

and recordkeeping burden for collection 

1820–0043 is 33,276 hours. 

Collection of Information: Report of 

Children with Disabilities Subject to 

Disciplinary Removal. § 300.640. Each 

State must provide data to the Secretary 

and the public by race, ethnicity, 

limited English proficiency status, 

gender, and disability category on 

children with disabilities who are 

removed to an interim alternative 

educational setting and the acts or items 

precipitating those removals. Data must 

also be reported by race, ethnicity, 

limited English proficiency status, 

gender, and disability category on the 

number of children with disabilities 

who are subject to long-term 

suspensions or expulsions. In addition, 

data must be reported on the number 

and percentage of children with 

disabilities who are removed to 

alternative educational settings or 

expelled as compared to children 

without disabilities, and on the 

incidence and duration of disciplinary 

actions, including suspensions of one 

day or more. Information collection 

1820–0621 has been revised to reflect 

the new statutory requirements and the 

final regulations. 

Annual reporting and record keeping 

burden for this collection of information 

is estimated to average 17.5 hours for 

each of an average of 260 LEAs per State 

to collect, review, and report the data 

and 74 hours per State agency (60) to 

collect, maintain, and report these data. 

Thus, the total annual reporting and 

recordkeeping burden for information 

collection 1820–0621 for all States (60) 

is estimated to be 277,440 hours. 

Collection of Information: Personnel 

(in Full-Time Equivalency of 

Assignments) Employed to Provide 

Special Education and Related Services 

for Children with Disabilities. § 300.640, 

§ 300.642, and § 300.645. Each LEA 

must ensure that all personnel are 

appropriately and adequately prepared 

and each SEA must establish and 

maintain qualifications to ensure that 

personnel are appropriately and 

adequately prepared and trained, 

including that those personnel have the 

content knowledge and skills to serve 

children with disabilities. To help 

ensure that these requirements are met, 

the Secretary must collect data that can 

be used to monitor these requirements. 

Information collection 1820–0518 has 

been revised to reflect the new statutory 

requirements and the final regulations. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to average 0.5 hours for 

each of an average of 260 LEAs per State 

and 2.5 hours for each of 60 State 

agencies. Thus, the total annual 

reporting and recordkeeping burden for 

information collection 1820–0518 for all 

States is 7,950 hours. 

Collection of Information: Report of 

Children with Disabilities Exiting 

Special Education. § 300.640. Each State 

must report to the Secretary children by 

race, ethnicity, limited English 

proficiency status, gender, and 

disability category, the number of 

children with disabilities aged 14 

through 21 who stopped receiving 

special education and related services 

because of program completion 

(including graduation with a regular 

secondary school diploma), or other 

reasons, and the reasons why those 

children stopped receiving special 

education and related services. 

Information collection 1820–0521 has 

been revised to reflect the new statutory 

requirements and the final regulations. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to average 6 hours for each 

of an average of 260 LEAs per State and 

11 hours for each of 60 State agencies. 

Thus, the total annual reporting and 

recordkeeping burden for information 

collection 1820–0521 for all States is 

94,260 hours. 

Collection of Information: Part B, 

Individuals with Disabilities Education 

Act Implementation of FAPE 

Requirements. § 300.640. Each State 

must provide to the Secretary and the 

public data on children with disabilities 

by race, ethnicity, limited English 

proficiency status, gender, and 

disability category who are receiving a 

free appropriate public education, 

participating in regular education, in 

separate classes, separate schools or 

facilities, or public or private residential 

facilities. Information collection 1820–

0517 has been revised to reflect the new 

statutory requirement. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to average 27 hours for each 

of an average of 260 LEAs per State and 

28 hours for each of 60 State agencies. 

Thus, the total annual reporting and 

recordkeeping burden for information 

collection 1820–0517 for all States is 

422,880 hours. 

Collection of Information: Report of 

Dispute Resolution Under Part B of the 

Individuals with Disabilities Education 

Act: Complaints, Mediations, and Due 

Process Hearings. § 300.640. Each State 

must report to the Secretary and the 

public, the number of due process 

complaints filed under section 615 of 

the Act and the number of hearings 

conducted; the number of hearings 

requested under section 615(k) of the 

Act and the number of changes in 

placement ordered as a result of those 

hearings; and the number of mediations 

held and the number of settlement 

agreements reached through those 

mediations. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to average 70 hours for each 

of 60 State agencies. Thus, the total 

annual reporting and recordkeeping 

burden for information collection 1820–

0677 is estimated to be 4,200 hours. 

Collection of Information: State and 

LEA Record Keeping and Reporting 

Requirements under Part B. § 300.132, 

§§ 300.134 through 300.136, §§ 300.151 

through 300.153, §§ 300.201 through 

300.213, § 300.224, § 300.226, § 300.504, 

§ 300.506, § 300.507, § 300.511, and 

§ 300.704. The Act requires States and 

LEAs to gather, maintain, and report 

various information and data, but the 

Act does not require this information 

and data to be submitted to the 

Department. In the NPRM, these 

requirements were reflected in separate 

information collections. For the purpose 

of clarity and efficiency we have 

combined these separate collections of 

information into one collection that 

reflects all the record keeping and 

reporting that must be completed at the 

State or LEA level, which do not require 

reporting to the Department. The 

following collections of information 

referenced in the NPRM are combined 

into information collection 1820–0600: 

LEA Application under Part B of the 

Act; List of Hearing Officers and 

Mediators, Complaint Procedures; LEA 

Consultation with Private School 

Representatives; Private School 

Complaint of Noncompliance with 

Consultation Requirements; 

Identification of State-Imposed Rules, 

Regulations, or Policies; Number of 


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Children with Disabilities Enrolled in 

Private Schools by Their Parents; State 

Plan for High Cost Fund; Free and LowCost Legal Services; and Confidentiality 

Pledge Prior to the Commencement of 

Mediation. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to approximately 6 hours 

for 79,194 respondents (LEAs and State 

agencies). The total annual reporting 

and recordkeeping burden for 

information collection 1820–0600 for all 

States and LEAs is 472,651 hours. 

Intergovernmental Review 

This program is subject to the 

requirements of Executive Order 12372 

and the regulations in 34 CFR part 79. 

The objective of the Executive order is 

to foster an intergovernmental 

partnership and a strengthened 

federalism by relying on processes 

developed by State and local 

governments for coordination and 

review of proposed Federal financial 

assistance. 

In accordance with this order, we 

intend this document to provide early 

notification of the Department’s specific 

plans and actions for this program. 

Assessment of Educational Impact 

In the NPRM published in the Federal 

Register on June 21, 2005, we requested 

comments on whether the proposed 

regulations would require transmission 

of information that any other agency or 

authority of the United States gathers or 

makes available. 

Based on the response to the NPRM 

and on our own review, we have 

determined that these final regulations 

do not require transmission of 

information that any other agency or 

authority of the United States gathers or 

makes available. 

Electronic Access to this Document 

You may view this document, as well 

as all other Department of Education 

documents published in the Federal 

Register, in text or portable document 

format (PDF) at the following site: 

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

To use PDF you must have Adobe 

Acrobat Reader, which is available free 

at this site. If you have questions about 

using PDF, call the U.S. Government 

Printing Office (GPO) toll free at 1–800–

293–4922; or in the Washington, DC 

area at (202) 512–1530. 

Note: The official version of this document 

is the document published in the Federal 

Register. Free Internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

List of Subjects 

34 CFR Part 300 

Administrative practice and 

procedure, Education of individuals 

with disabilities, Elementary and 

secondary education, Equal educational 

opportunity, Grant programs’education, 

Privacy, Private schools, Reporting and 

recordkeeping requirements. 

34 CFR Part 301 

Education of individuals with 

disabilities, Elementary and secondary 

education, Equal educational 

opportunity, Grant programs—

education, Infants and children, 

Reporting and recordkeeping 

requirements. 

Dated: July 31, 2006. 

Margaret Spellings, 

Secretary of Education. 

For the reasons discussed in this 

preamble, and under the authority of 20 

U.S.C. 1221(e)(3) and 1406, the 

Secretary amends title 34 of the Code of 

Federal Regulations as follows: 

■ 1. Part 300 is revised to read as 

follows: 

PART 300—ASSISTANCE TO STATES 

FOR THE EDUCATION OF CHILDREN 

WITH DISABILITIES 

Subpart A—General 

Purposes and Applicability 

Sec. 

300.1 Purposes. 

300.2 Applicability of this part to State and 

local agencies. 

Definitions Used in This Part 

300.4 Act. 

300.5 Assistive technology device. 

300.6 Assistive technology service. 

300.7 Charter school. 

300.8 Child with a disability. 

300.9 Consent. 

300.10 Core academic subjects. 

300.11 Day; business day; school day. 

300.12 Educational service agency. 

300.13 Elementary school. 

300.14 Equipment. 

300.15 Evaluation. 

300.16 Excess costs. 

300.17 Free appropriate public education. 

300.18 Highly qualified special education 

teachers. 

300.19 Homeless children. 

300.20 Include. 

300.21 Indian and Indian tribe. 

300.22 Individualized education program. 

300.23 Individualized education program 

team. 

300.24 Individualized family service plan. 

300.25 Infant or toddler with a disability. 

300.26 Institution of higher education. 

300.27 Limited English proficient. 

300.28 Local educational agency. 

300.29 Native language. 

300.30 Parent. 

300.31 Parent training and information 

center. 

300.32 Personally identifiable. 

300.33 Public agency. 

300.34 Related services. 

300.35 Scientifically based research. 

300.36 Secondary school. 

300.37 Services plan. 

300.38 Secretary. 

300.39 Special education. 

300.40 State. 

300.41 State educational agency. 

300.42 Supplementary aids and services. 

300.43 Transition services. 

300.44 Universal design. 

300.45 Ward of the State. 

Subpart B—State Eligibility 

General 

300.100 Eligibility for assistance. 

FAPE Requirements 

300.101 Free appropriate public education 

(FAPE). 

300.102 Limitation—exception to FAPE for 

certain ages. 

Other FAPE Requirements 

300.103 FAPE—methods and payments. 

300.104 Residential placement. 

300.105 Assistive technology. 

300.106 Extended school year services. 

300.107 Nonacademic services. 

300.108 Physical education. 

300.109 Full educational opportunity goal 

(FEOG). 

300.110 Program options. 

300.111 Child find. 

300.112 Individualized education programs 

(IEP). 

300.113 Routine checking of hearing aids 

and external components of surgically 

implanted medical devices. 

Least Restrictive Environment (LRE) 

300.114 LRE requirements. 

300.115 Continuum of alternative 

placements. 

300.116 Placements. 

300.117 Nonacademic settings. 

300.118 Children in public or private 

institutions. 

300.119 Technical assistance and training 

activities. 

300.120 Monitoring activities. 

Additional Eligibility Requirements 

300.121 Procedural safeguards. 

300.122 Evaluation. 

300.123 Confidentiality of personally 

identifiable information. 

300.124 Transition of children from the Part 

C program to preschool programs. 

300.125–300.128 [Reserved] 

Children in Private Schools 

300.129 State responsibility regarding 

children in private schools. 

Children With Disabilities Enrolled by Their 

Parents in Private Schools 

300.130 Definition of parentally-placed 

private school children with disabilities. 

300.131 Child find for parentally-placed 

private school children with disabilities. 


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300.132 Provision of services for parentallyplaced private school children with 

disabilities—basic requirement. 

300.133 Expenditures. 

300.134 Consultation. 

300.135 Written affirmation. 

300.136 Compliance. 

300.137 Equitable services determined. 

300.138 Equitable services provided. 

300.139 Location of services and 

transportation. 

300.140 Due process complaints and State 

complaints. 

300.141 Requirement that funds not benefit 

a private school. 

300.142 Use of personnel. 

300.143 Separate classes prohibited. 

300.144 Property, equipment, and supplies. 

Children With Disabilities in Private Schools 

Placed or Referred by Public Agencies 

300.145 Applicability of §§ 300.146 through 

300.147. 

300.146 Responsibility of SEA. 

300.147 Implementation by SEA. 

Children With Disabilities Enrolled by Their 

Parents in Private Schools When FAPE is at 

Issue 

300.148 Placement of children by parents 

when FAPE is at issue. 

SEA Responsibility for General Supervision 

and Implementation of Procedural 

Safeguards 

300.149 SEA responsibility for general 

supervision. 

300.150 SEA implementation of procedural 

safeguards. 

State Complaint Procedures 

300.151 Adoption of State complaint 

procedures. 

300.152 Minimum State complaint 

procedures. 

300.153 Filing a complaint. 

Methods of Ensuring Services 

300.154 Methods of ensuring services. 

Additional Eligibility Requirements 

300.155 Hearings relating to LEA eligibility. 

300.156 Personnel qualifications. 

300.157 Performance goals and indicators. 

300.158–300.161 [Reserved] 

300.162 Supplementation of State, local, 

and other Federal funds. 

300.163 Maintenance of State financial 

support. 

300.164 Waiver of requirement regarding 

supplementing and not supplanting with 

Part B funds. 

300.165 Public participation. 

300.166 Rule of construction. 

State Advisory Panel 

300.167 State advisory panel. 

300.168 Membership. 

300.169 Duties. 

Other Provisions Required for State 

Eligibility 

300.170 Suspension and expulsion rates. 

300.171 Annual description of use of Part B 

funds. 

300.172 Access to instructional materials. 

300.173 Overidentification and 

disproportionality. 

300.174 Prohibition on mandatory 

medication. 

300.175 SEA as provider of FAPE or direct 

services. 

300.176 Exception for prior State plans. 

300.177 States’ sovereign immunity. 

Department Procedures 

300.178 Determination by the Secretary that 

a State is eligible to receive a grant. 

300.179 Notice and hearing before 

determining that a State is not eligible to 

receive a grant. 

300.180 Hearing official or panel. 

300.181 Hearing procedures. 

300.182 Initial decision; final decision. 

300.183 Filing requirements. 

300.184 Judicial review. 

300.185 [Reserved] 

300.186 Assistance under other Federal 

programs. 

By-pass for Children in Private Schools 

300.190 By-pass—general. 

300.191 Provisions for services under a bypass. 

300.192 Notice of intent to implement a bypass. 

300.193 Request to show cause. 

300.194 Show cause hearing. 

300.195 Decision. 

300.196 Filing requirements. 

300.197 Judicial review. 

300.198 Continuation of a by-pass. 

State Administration 

300.199 State administration. 

Subpart C—Local Educational Agency 

Eligibility 

300.200 Condition of assistance. 

300.201 Consistency with State policies. 

300.202 Use of amounts. 

300.203 Maintenance of effort. 

300.204 Exception to maintenance of effort. 

300.205 Adjustment to local fiscal efforts in 

certain fiscal years. 

300.206 Schoolwide programs under title I 

of the ESEA. 

300.207 Personnel development. 

300.208 Permissive use of funds. 

300.209 Treatment of charter schools and 

their students. 

300.210 Purchase of instructional materials. 

300.211 Information for SEA. 

300.212 Public information. 

300.213 Records regarding migratory 

children with disabilities. 

300.214–300.219 [Reserved] 

300.220 Exception for prior local plans. 

300.221 Notification of LEA or State agency 

in case of ineligibility. 

300.222 LEA and State agency compliance. 

300.223 Joint establishment of eligibility. 

300.224 Requirements for establishing 

eligibility. 

300.225 [Reserved] 

300.226 Early intervening services. 

300.227 Direct services by the SEA. 

300.228 State agency eligibility. 

300.229 Disciplinary information. 

300.230 SEA flexibility. 

Subpart D—Evaluations, Eligibility 

Determinations, Individualized Education 

Programs, and Educational Placements 

Parental Consent 

300.300 Parental consent. 

Evaluations and Reevaluations 

300.301 Initial evaluations. 

300.302 Screening for instructional 

purposes is not evaluation. 

300.303 Reevaluations. 

300.304 Evaluation procedures. 

300.305 Additional requirements for 

evaluations and reevaluations. 

300.306 Determination of eligibility. 

Additional Procedures for Identifying 

Children With Specific Learning Disabilities 

300.307 Specific learning disabilities. 

300.308 Additional group members. 

300.309 Determining the existence of a 

specific learning disability. 

300.310 Observation. 

300.311 Specific documentation for the 

eligibility determination. 

Individualized Education Programs 

300.320 Definition of individualized 

education program. 

300.321 IEP Team. 

300.322 Parent participation. 

300.323 When IEPs must be in effect. 

Development of IEP 

300.324 Development, review, and revision 

of IEP. 

300.325 Private school placements by 

public agencies. 

300.326 [Reserved] 

300.327 Educational placements. 

300.328 Alternative means of meeting 

participation. 

Subpart E—Procedural Safeguards 

Due Process Procedures for Parents and 

Children 

300.500 Responsibility of SEA and other 

public agencies. 

300.501 Opportunity to examine records; 

parent participation in meetings. 

300.502 Independent educational 

evaluation. 

300.503 Prior notice by the public agency; 

content of notice. 

300.504 Procedural safeguards notice. 

300.505 Electronic mail. 

300.506 Mediation. 

300.507 Filing a due process complaint. 

300.508 Due process complaint. 

300.509 Model forms. 

300.510 Resolution process. 

300.511 Impartial due process hearing. 

300.512 Hearing rights. 

300.513 Hearing decisions. 

300.514 Finality of decision; appeal; 

impartial review. 

300.515 Timelines and convenience of 

hearings and reviews. 

300.516 Civil action. 

300.517 Attorneys’ fees. 

300.518 Child’s status during proceedings. 

300.519 Surrogate parents. 

300.520 Transfer of parental rights at age of 

majority. 

300.521–300.529 [Reserved] 


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Discipline Procedures 

300.530 Authority of school personnel. 

300.531 Determination of setting. 

300.532 Appeal. 

300.533 Placement during appeals. 

300.534 Protections for children not 

determined eligible for special education 

and related services. 

300.535 Referral to and action by law 

enforcement and judicial authorities. 

300.536 Change of placement because of 

disciplinary removals. 

300.537 State enforcement mechanisms. 

300.538–300.599 [Reserved] 

Subpart F—Monitoring, Enforcement, 

Confidentiality, and Program Information 

Monitoring, Technical Assistance, and 

Enforcement 

300.600 State monitoring and enforcement. 

300.601 State performance plans and data 

collection. 

300.602 State use of targets and reporting. 

300.603 Secretary’s review and 

determination regarding State 

performance. 

300.604 Enforcement. 

300.605 Withholding funds. 

300.606 Public attention. 

300.607 Divided State agency 

responsibility. 

300.608 State enforcement. 

300.609 Rule of construction. 

Confidentiality of Information 

300.610 Confidentiality. 

300.611 Definitions. 

300.612 Notice to parents. 

300.613 Access rights. 

300.614 Record of access. 

300.615 Records on more than one child. 

300.616 List of types and locations of 

information. 

300.617 Fees. 

300.618 Amendment of records at parent’s 

request. 

300.619 Opportunity for a hearing. 

300.620 Result of hearing. 

300.621 Hearing procedures. 

300.622 Consent. 

300.623 Safeguards. 

300.624 Destruction of information. 

300.625 Children’s rights. 

300.626 Enforcement. 

300.627 Department use of personally 

identifiable information. 

Reports—Program Information 

300.640 Annual report of children served—

report requirement. 

300.641 Annual report of children served—

information required in the report. 

300.642 Data reporting. 

300.643 Annual report of children served—

certification. 

300.644 Annual report of children served—

criteria for counting children. 

300.645 Annual report of children served—

other responsibilities of the SEA. 

300.646 Disproportionality. 

Subpart G—Authorization, Allotment, Use 

of Funds, Authorization of Appropriations 

Allotments, Grants, and Use of Funds 

300.700 Grants to States. 

300.701 Outlying areas, freely associated 

States, and the Secretary of the Interior. 

300.702 Technical assistance. 

300.703 Allocations to States. 

300.704 State-level activities. 

300.705 Subgrants to LEAs. 

300.706 [Reserved] 

Secretary of the Interior 

300.707 Use of amounts by Secretary of the 

Interior. 

300.708 Submission of information. 

300.709 Public participation. 

300.710 Use of funds under Part B of the 

Act. 

300.711 Early intervening services. 

300.712 Payments for education and 

services for Indian children with 

disabilities aged three through five. 

300.713 Plan for coordination of services. 

300.714 Establishment of advisory board. 

300.715 Annual reports. 

300.716 Applicable regulations. 

Definitions That Apply to This Subpart 

300.717 Definitions applicable to 

allotments, grants, and use of funds. 

Acquisition of Equipment and Construction 

or Alteration of Facilities 

300.718 Acquisition of equipment and 

construction or alteration of facilities. 

Subpart H—Preschool Grants for Children 

With Disabilities 

300.800 In general. 

300.801–300.802 [Reserved] 

300.803 Definition of State. 

300.804 Eligibility. 

300.805 [Reserved] 

300.806 Eligibility for financial assistance. 

300.807 Allocations to States. 

300.808 Increase in funds. 

300.809 Limitations. 

300.810 Decrease in funds. 

300.811 [Reserved] 

300.812 Reservation for State activities. 

300.813 State administration. 

300.814 Other State-level activities. 

300.815 Subgrants to LEAs. 

300.816 Allocations to LEAs. 

300.817 Reallocation of LEA funds. 

300.818 Part C of the Act inapplicable. 

Appendix A to Part 300—Excess Costs 

Calculation 

Appendix B to Part 300—Proportionate Share 

Calculation 

Appendix C to Part 300—National 

Instructional Materials Accessibility 

Standard (NIMAS) 

Appendix D to Part 300—Maintenance of 

Effort and Early Intervening Services 

Appendix E to Part 300—Index for IDEA—

Part B Regulations (34 CFR Part 300) 

Authority: 20 U.S.C. 1221e–3, 1406, 1411–

1419, unless otherwise noted. 

Subpart A—General 

Purposes and Applicability 

§ 300.1 Purposes. 

The purposes of this part are—

(a) To ensure that all children with 

disabilities have available to them a free 

appropriate public education that 

emphasizes special education and 

related services designed to meet their 

unique needs and prepare them for 

further education, employment, and 

independent living; 

(b) To ensure that the rights of 

children with disabilities and their 

parents are protected; 

(c) To assist States, localities, 

educational service agencies, and 

Federal agencies to provide for the 

education of all children with 

disabilities; and 

(d) To assess and ensure the 

effectiveness of efforts to educate 

children with disabilities. 

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

§ 300.2 Applicability of this part to State 

and local agencies. 

(a) States. This part applies to each 

State that receives payments under Part 

B of the Act, as defined in § 300.4. 

(b) Public agencies within the State. 

The provisions of this part—

(1) Apply to all political subdivisions 

of the State that are involved in the 

education of children with disabilities, 

including: 

(i) The State educational agency 

(SEA). 

(ii) Local educational agencies (LEAs), 

educational service agencies (ESAs), 

and public charter schools that are not 

otherwise included as LEAs or ESAs 

and are not a school of an LEA or ESA. 

(iii) Other State agencies and schools 

(such as Departments of Mental Health 

and Welfare and State schools for 

children with deafness or children with 

blindness). 

(iv) State and local juvenile and adult 

correctional facilities; and 

(2) Are binding on each public agency 

in the State that provides special 

education and related services to 

children with disabilities, regardless of 

whether that agency is receiving funds 

under Part B of the Act. 

(c) Private schools and facilities. Each 

public agency in the State is responsible 

for ensuring that the rights and 

protections under Part B of the Act are 

given to children with disabilities—

(1) Referred to or placed in private 

schools and facilities by that public 

agency; or 

(2) Placed in private schools by their 

parents under the provisions of 

§ 300.148. 

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

Definitions Used in This Part 

§ 300.4 Act. 

Act means the Individuals with 

Disabilities Education Act, as amended. 

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


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§ 300.5 Assistive technology device. 

Assistive technology device means 

any item, piece of equipment, or 

product system, whether acquired 

commercially off the shelf, modified, or 

customized, that is used to increase, 

maintain, or improve the functional 

capabilities of a child with a disability. 

The term does not include a medical 

device that is surgically implanted, or 

the replacement of such device. 

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

§ 300.6 Assistive technology service. 

Assistive technology service means 

any service that directly assists a child 

with a disability in the selection, 

acquisition, or use of an assistive 

technology device. The term includes—

(a) The evaluation of the needs of a 

child with a disability, including a 

functional evaluation of the child in the 

child’s customary environment; 

(b) Purchasing, leasing, or otherwise 

providing for the acquisition of assistive 

technology devices by children with 

disabilities; 

(c) Selecting, designing, fitting, 

customizing, adapting, applying, 

maintaining, repairing, or replacing 

assistive technology devices; 

(d) Coordinating and using other 

therapies, interventions, or services 

with assistive technology devices, such 

as those associated with existing 

education and rehabilitation plans and 

programs; 

(e) Training or technical assistance for 

a child with a disability or, if 

appropriate, that child’s family; and 

(f) Training or technical assistance for 

professionals (including individuals 

providing education or rehabilitation 

services), employers, or other 

individuals who provide services to, 

employ, or are otherwise substantially 

involved in the major life functions of 

that child. 

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

§ 300.7 Charter school. 

Charter school has the meaning given 

the term in section 5210(1) of the 

Elementary and Secondary Education 

Act of 1965, as amended, 20 U.S.C. 6301 

et seq. (ESEA). 

(Authority: 20 U.S.C. 7221i(1)) 

§ 300.8 Child with a disability. 

(a) General. (1) Child with a disability 

means a child evaluated in accordance 

with §§ 300.304 through 300.311 as 

having mental retardation, a hearing 

impairment (including deafness), a 

speech or language impairment, a visual 

impairment (including blindness), a 

serious emotional disturbance (referred 

to in this part as ‘‘emotional 

disturbance’’), an orthopedic 

impairment, autism, traumatic brain 

injury, an other health impairment, a 

specific learning disability, deafblindness, or multiple disabilities, and 

who, by reason thereof, needs special 

education and related services. 

(2)(i) Subject to paragraph (a)(2)(ii) of 

this section, if it is determined, through 

an appropriate evaluation under 

§§ 300.304 through 300.311, that a child 

has one of the disabilities identified in 

paragraph (a)(1) of this section, but only 

needs a related service and not special 

education, the child is not a child with 

a disability under this part. 

(ii) If, consistent with § 300.39(a)(2), 

the related service required by the child 

is considered special education rather 

than a related service under State 

standards, the child would be 

determined to be a child with a 

disability under paragraph (a)(1) of this 

section. 

(b) Children aged three through nine 

experiencing developmental delays. 

Child with a disability for children aged 

three through nine (or any subset of that 

age range, including ages three through 

five), may, subject to the conditions 

described in § 300.111(b), include a 

child—

(1) Who is experiencing 

developmental delays, as defined by the 

State and as measured by appropriate 

diagnostic instruments and procedures, 

in one or more of the following areas: 

Physical development, cognitive 

development, communication 

development, social or emotional 

development, or adaptive development; 

and 

(2) Who, by reason thereof, needs 

special education and related services. 

(c) Definitions of disability terms. The 

terms used in this definition of a child 

with a disability are defined as follows: 

(1)(i) Autism means a developmental 

disability significantly affecting verbal 

and nonverbal communication and 

social interaction, generally evident 

before age three, that adversely affects a 

child’s educational performance. Other 

characteristics often associated with 

autism are engagement in repetitive 

activities and stereotyped movements, 

resistance to environmental change or 

change in daily routines, and unusual 

responses to sensory experiences. 

(ii) Autism does not apply if a child’s 

educational performance is adversely 

affected primarily because the child has 

an emotional disturbance, as defined in 

paragraph (c)(4) of this section. 

(iii) A child who manifests the 

characteristics of autism after age three 

could be identified as having autism if 

the criteria in paragraph (c)(1)(i) of this 

section are satisfied. 

(2) Deaf-blindness means concomitant 

hearing and visual impairments, the 

combination of which causes such 

severe communication and other 

developmental and educational needs 

that they cannot be accommodated in 

special education programs solely for 

children with deafness or children with 

blindness. 

(3) Deafness means a hearing 

impairment that is so severe that the 

child is impaired in processing 

linguistic information through hearing, 

with or without amplification that 

adversely affects a child’s educational 

performance. 

(4)(i) Emotional disturbance means a 

condition exhibiting one or more of the 

following characteristics over a long 

period of time and to a marked degree 

that adversely affects a child’s 

educational performance: 

(A) An inability to learn that cannot 

be explained by intellectual, sensory, or 

health factors. 

(B) An inability to build or maintain 

satisfactory interpersonal relationships 

with peers and teachers. 

(C) Inappropriate types of behavior or 

feelings under normal circumstances. 

(D) A general pervasive mood of 

unhappiness or depression. 

(E) A tendency to develop physical 

symptoms or fears associated with 

personal or school problems. 

(ii) Emotional disturbance includes 

schizophrenia. The term does not apply 

to children who are socially 

maladjusted, unless it is determined 

that they have an emotional disturbance 

under paragraph (c)(4)(i) of this section. 

(5) Hearing impairment means an 

impairment in hearing, whether 

permanent or fluctuating, that adversely 

affects a child’s educational 

performance but that is not included 

under the definition of deafness in this 

section. 

(6) Mental retardation means 

significantly subaverage general 

intellectual functioning, existing 

concurrently with deficits in adaptive 

behavior and manifested during the 

developmental period, that adversely 

affects a child’s educational 

performance. 

(7) Multiple disabilities means 

concomitant impairments (such as 

mental retardation-blindness or mental 

retardation-orthopedic impairment), the 

combination of which causes such 

severe educational needs that they 

cannot be accommodated in special 

education programs solely for one of the 

impairments. Multiple disabilities does 

not include deaf-blindness. 

(8) Orthopedic impairment means a 

severe orthopedic impairment that 

adversely affects a child’s educational 


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performance. The term includes 

impairments caused by a congenital 

anomaly, impairments caused by 

disease (e.g., poliomyelitis, bone 

tuberculosis), and impairments from 

other causes (e.g., cerebral palsy, 

amputations, and fractures or burns that 

cause contractures). 

(9) Other health impairment means 

having limited strength, vitality, or 

alertness, including a heightened 

alertness to environmental stimuli, that 

results in limited alertness with respect 

to the educational environment, that—

(i) Is due to chronic or acute health 

problems such as asthma, attention 

deficit disorder or attention deficit 

hyperactivity disorder, diabetes, 

epilepsy, a heart condition, hemophilia, 

lead poisoning, leukemia, nephritis, 

rheumatic fever, sickle cell anemia, and 

Tourette syndrome; and 

(ii) Adversely affects a child’s 

educational performance. 

(10) Specific learning disability—(i) 

General. Specific learning disability 

means a disorder in one or more of the 

basic psychological processes involved 

in understanding or in using language, 

spoken or written, that may manifest 

itself in the imperfect ability to listen, 

think, speak, read, write, spell, or to do 

mathematical calculations, including 

conditions such as perceptual 

disabilities, brain injury, minimal brain 

dysfunction, dyslexia, and 

developmental aphasia. 

(ii) Disorders not included. Specific 

learning disability does not include 

learning problems that are primarily the 

result of visual, hearing, or motor 

disabilities, of mental retardation, of 

emotional disturbance, or of 

environmental, cultural, or economic 

disadvantage. 

(11) Speech or language impairment 

means a communication disorder, such 

as stuttering, impaired articulation, a 

language impairment, or a voice 

impairment, that adversely affects a 

child’s educational performance. 

(12) Traumatic brain injury means an 

acquired injury to the brain caused by 

an external physical force, resulting in 

total or partial functional disability or 

psychosocial impairment, or both, that 

adversely affects a child’s educational 

performance. Traumatic brain injury 

applies to open or closed head injuries 

resulting in impairments in one or more 

areas, such as cognition; language; 

memory; attention; reasoning; abstract 

thinking; judgment; problem-solving; 

sensory, perceptual, and motor abilities; 

psychosocial behavior; physical 

functions; information processing; and 

speech. Traumatic brain injury does not 

apply to brain injuries that are 

congenital or degenerative, or to brain 

injuries induced by birth trauma. 

(13) Visual impairment including 

blindness means an impairment in 

vision that, even with correction, 

adversely affects a child’s educational 

performance. The term includes both 

partial sight and blindness. 

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

§ 300.9 Consent. 

Consent means that—

(a) The parent has been fully informed 

of all information relevant to the activity 

for which consent is sought, in his or 

her native language, or other mode of 

communication; 

(b) The parent understands and agrees 

in writing to the carrying out of the 

activity for which his or her consent is 

sought, and the consent describes that 

activity and lists the records (if any) that 

will be released and to whom; and 

(c)(1) The parent understands that the 

granting of consent is voluntary on the 

part of the parent and may be revoked 

at anytime. 

(2) If a parent revokes consent, that 

revocation is not retroactive (i.e., it does 

not negate an action that has occurred 

after the consent was given and before 

the consent was revoked). 

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

§ 300.10 Core academic subjects. 

Core academic subjects means 

English, reading or language arts, 

mathematics, science, foreign languages, 

civics and government, economics, arts, 

history, and geography. 

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

§ 300.11 Day; business day; school day. 

(a) Day means calendar day unless 

otherwise indicated as business day or 

school day. 

(b) Business day means Monday 

through Friday, except for Federal and 

State holidays (unless holidays are 

specifically included in the designation 

of business day, as in 

§ 300.148(d)(1)(ii)). 

(c)(1) School day means any day, 

including a partial day that children are 

in attendance at school for instructional 

purposes. 

(2) School day has the same meaning 

for all children in school, including 

children with and without disabilities. 

(Authority: 20 U.S.C. 1221e–3) 

§ 300.12 Educational service agency. 

Educational service agency means—

(a) A regional public multiservice 

agency—

(1) Authorized by State law to 

develop, manage, and provide services 

or programs to LEAs; 

(2) Recognized as an administrative 

agency for purposes of the provision of 

special education and related services 

provided within public elementary 

schools and secondary schools of the 

State; 

(b) Includes any other public 

institution or agency having 

administrative control and direction 

over a public elementary school or 

secondary school; and 

(c) Includes entities that meet the 

definition of intermediate educational 

unit in section 602(23) of the Act as in 

effect prior to June 4, 1997. 

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

§ 300.13 Elementary school. 

Elementary school means a nonprofit 

institutional day or residential school, 

including a public elementary charter 

school, that provides elementary 

education, as determined under State 

law. 

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

§ 300.14 Equipment. 

Equipment means—

(a) Machinery, utilities, and built-in 

equipment, and any necessary 

enclosures or structures to house the 

machinery, utilities, or equipment; and 

(b) All other items necessary for the 

functioning of a particular facility as a 

facility for the provision of educational 

services, including items such as 

instructional equipment and necessary 

furniture; printed, published and audiovisual instructional materials; 

telecommunications, sensory, and other 

technological aids and devices; and 

books, periodicals, documents, and 

other related materials. 

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

§ 300.15 Evaluation. 

Evaluation means procedures used in 

accordance with §§ 300.304 through 

300.311 to determine whether a child 

has a disability and the nature and 

extent of the special education and 

related services that the child needs. 

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

§ 300.16 Excess costs. 

Excess costs means those costs that 

are in excess of the average annual perstudent expenditure in an LEA during 

the preceding school year for an 

elementary school or secondary school 

student, as may be appropriate, and that 

must be computed after deducting—

(a) Amounts received—

(1) Under Part B of the Act; 

(2) Under Part A of title I of the ESEA; 

and 

(3) Under Parts A and B of title III of 

the ESEA and; 


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(b) Any State or local funds expended 

for programs that would qualify for 

assistance under any of the parts 

described in paragraph (a) of this 

section, but excluding any amounts for 

capital outlay or debt service. (See 

Appendix A to part 300 for an example 

of how excess costs must be calculated.) 

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

§ 300.17 Free appropriate public 

education. 

Free appropriate public education or 

FAPE means special education and 

related services that—

(a) Are provided at public expense, 

under public supervision and direction, 

and without charge; 

(b) Meet the standards of the SEA, 

including the requirements of this part; 

(c) Include an appropriate preschool, 

elementary school, or secondary school 

education in the State involved; and 

(d) Are provided in conformity with 

an individualized education program 

(IEP) that meets the requirements of 

§§ 300.320 through 300.324. 

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

§ 300.18 Highly qualified special education 

teachers. 

(a) Requirements for special 

education teachers teaching core 

academic subjects. For any public 

elementary or secondary school special 

education teacher teaching core 

academic subjects, the term highly 

qualified has the meaning given the 

term in section 9101 of the ESEA and 34 

CFR 200.56, except that the 

requirements for highly qualified also—

(1) Include the requirements 

described in paragraph (b) of this 

section; and 

(2) Include the option for teachers to 

meet the requirements of section 9101 of 

the ESEA by meeting the requirements 

of paragraphs (c) and (d) of this section. 

(b) Requirements for special 

education teachers in general. (1) When 

used with respect to any public 

elementary school or secondary school 

special education teacher teaching in a 

State, highly qualified requires that—

(i) The teacher has obtained full State 

certification as a special education 

teacher (including certification obtained 

through alternative routes to 

certification), or passed the State special 

education teacher licensing 

examination, and holds a license to 

teach in the State as a special education 

teacher, except that when used with 

respect to any teacher teaching in a 

public charter school, highly qualified 

means that the teacher meets the 

certification or licensing requirements, 

if any, set forth in the State’s public 

charter school law; 

(ii) The teacher has not had special 

education certification or licensure 

requirements waived on an emergency, 

temporary, or provisional basis; and 

(iii) The teacher holds at least a 

bachelor’s degree. 

(2) A teacher will be considered to 

meet the standard in paragraph (b)(1)(i) 

of this section if that teacher is 

participating in an alternative route to 

special education certification program 

under which—

(i) The teacher—

(A) Receives high-quality professional 

development that is sustained, 

intensive, and classroom-focused in 

order to have a positive and lasting 

impact on classroom instruction, before 

and while teaching; 

(B) Participates in a program of 

intensive supervision that consists of 

structured guidance and regular ongoing 

support for teachers or a teacher 

mentoring program; 

(C) Assumes functions as a teacher 

only for a specified period of time not 

to exceed three years; and 

(D) Demonstrates satisfactory progress 

toward full certification as prescribed by 

the State; and 

(ii) The State ensures, through its 

certification and licensure process, that 

the provisions in paragraph (b)(2)(i) of 

this section are met. 

(3) Any public elementary school or 

secondary school special education 

teacher teaching in a State, who is not 

teaching a core academic subject, is 

highly qualified if the teacher meets the 

requirements in paragraph (b)(1) or the 

requirements in (b)(1)(iii) and (b)(2) of 

this section. 

(c) Requirements for special 

education teachers teaching to alternate 

achievement standards. When used 

with respect to a special education 

teacher who teaches core academic 

subjects exclusively to children who are 

assessed against alternate achievement 

standards established under 34 CFR 

200.1(d), highly qualified means the 

teacher, whether new or not new to the 

profession, may either—

(1) Meet the applicable requirements 

of section 9101 of the ESEA and 34 CFR 

200.56 for any elementary, middle, or 

secondary school teacher who is new or 

not new to the profession; or 

(2) Meet the requirements of 

paragraph (B) or (C) of section 9101(23) 

of the ESEA as applied to an elementary 

school teacher, or, in the case of 

instruction above the elementary level, 

meet the requirements of paragraph (B) 

or (C) of section 9101(23) of the ESEA 

as applied to an elementary school 

teacher and have subject matter 

knowledge appropriate to the level of 

instruction being provided and needed 

to effectively teach to those standards, 

as determined by the State. 

(d) Requirements for special 

education teachers teaching multiple 

subjects. Subject to paragraph (e) of this 

section, when used with respect to a 

special education teacher who teaches 

two or more core academic subjects 

exclusively to children with disabilities, 

highly qualified means that the teacher 

may either—

(1) Meet the applicable requirements 

of section 9101 of the ESEA and 34 CFR 

200.56(b) or (c); 

(2) In the case of a teacher who is not 

new to the profession, demonstrate 

competence in all the core academic 

subjects in which the teacher teaches in 

the same manner as is required for an 

elementary, middle, or secondary school 

teacher who is not new to the profession 

under 34 CFR 200.56(c) which may 

include a single, high objective uniform 

State standard of evaluation (HOUSSE) 

covering multiple subjects; or 

(3) In the case of a new special 

education teacher who teaches multiple 

subjects and who is highly qualified in 

mathematics, language arts, or science, 

demonstrate, not later than two years 

after the date of employment, 

competence in the other core academic 

subjects in which the teacher teaches in 

the same manner as is required for an 

elementary, middle, or secondary school 

teacher under 34 CFR 200.56(c), which 

may include a single HOUSSE covering 

multiple subjects. 

(e) Separate HOUSSE standards for 

special education teachers. Provided 

that any adaptations of the State’s 

HOUSSE would not establish a lower 

standard for the content knowledge 

requirements for special education 

teachers and meets all the requirements 

for a HOUSSE for regular education 

teachers—

(1) A State may develop a separate 

HOUSSE for special education teachers; 

and 

(2) The standards described in 

paragraph (e)(1) of this section may 

include single HOUSSE evaluations that 

cover multiple subjects. 

(f) Rule of construction. 

Notwithstanding any other individual 

right of action that a parent or student 

may maintain under this part, nothing 

in this part shall be construed to create 

a right of action on behalf of an 

individual student or class of students 

for the failure of a particular SEA or 

LEA employee to be highly qualified, or 

to prevent a parent from filing a 

complaint under §§ 300.151 through 

300.153 about staff qualifications with 

the SEA as provided for under this part. 

(g) Applicability of definition to 

ESEA; and clarification of new special 


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education teacher. (1) A teacher who is 

highly qualified under this section is 

considered highly qualified for purposes 

of the ESEA. 

(2) For purposes of § 300.18(d)(3), a 

fully certified regular education teacher 

who subsequently becomes fully 

certified or licensed as a special 

education teacher is a new special 

education teacher when first hired as a 

special education teacher. 

(h) Private school teachers not 

covered. The requirements in this 

section do not apply to teachers hired 

by private elementary schools and 

secondary schools including private 

school teachers hired or contracted by 

LEAs to provide equitable services to 

parentally-placed private school 

children with disabilities under 

§ 300.138. 

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

§ 300.19 Homeless children. 

Homeless children has the meaning 

given the term homeless children and 

youths in section 725 (42 U.S.C. 11434a) 

of the McKinney-Vento Homeless 

Assistance Act, as amended, 42 U.S.C. 

11431 et seq. 

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

§ 300.20 Include. 

Include means that the items named 

are not all of the possible items that are 

covered, whether like or unlike the ones 

named. 

(Authority: 20 U.S.C. 1221e–3) 

§ 300.21 Indian and Indian tribe. 

(a) Indian means an individual who is 

a member of an Indian tribe. 

(b) Indian tribe means any Federal or 

State Indian tribe, band, rancheria, 

pueblo, colony, or community, 

including any Alaska Native village or 

regional village corporation (as defined 

in or established under the Alaska 

Native Claims Settlement Act, 43 U.S.C. 

1601 et seq.). 

(c) Nothing in this definition is 

intended to indicate that the Secretary 

of the Interior is required to provide 

services or funding to a State Indian 

tribe that is not listed in the Federal 

Register list of Indian entities 

recognized as eligible to receive services 

from the United States, published 

pursuant to Section 104 of the Federally 

Recognized Indian Tribe List Act of 

1994, 25 U.S.C. 479a–1. 

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

§ 300.22 Individualized education program. 

Individualized education program or 

IEP means a written statement for a 

child with a disability that is developed, 

reviewed, and revised in accordance 

with §§ 300.320 through 300.324. 

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

§ 300.23 Individualized education program 

team. 

Individualized education program 

team or IEP Team means a group of 

individuals described in § 300.321 that 

is responsible for developing, reviewing, 

or revising an IEP for a child with a 

disability. 

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

§ 300.24 Individualized family service plan. 

Individualized family service plan or 

IFSP has the meaning given the term in 

section 636 of the Act. 

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

§ 300.25 Infant or toddler with a disability. 

Infant or toddler with a disability—

(a) Means an individual under three 

years of age who needs early 

intervention services because the 

individual—

(1) Is experiencing developmental 

delays, as measured by appropriate 

diagnostic instruments and procedures 

in one or more of the areas of cognitive 

development, physical development, 

communication development, social or 

emotional development, and adaptive 

development; or 

(2) Has a diagnosed physical or 

mental condition that has a high 

probability of resulting in 

developmental delay; and 

(b) May also include, at a State’s 

discretion—

(1) At-risk infants and toddlers; and 

(2) Children with disabilities who are 

eligible for services under section 619 

and who previously received services 

under Part C of the Act until such 

children enter, or are eligible under 

State law to enter, kindergarten or 

elementary school, as appropriate, 

provided that any programs under Part 

C of the Act serving such children shall 

include—

(i) An educational component that 

promotes school readiness and 

incorporates pre-literacy, language, and 

numeracy skills; and 

(ii) A written notification to parents of 

their rights and responsibilities in 

determining whether their child will 

continue to receive services under Part 

C of the Act or participate in preschool 

programs under section 619. 

(Authority: 20 U.S.C. 1401(16) and 1432(5)) 

§ 300.26 Institution of higher education. 

Institution of higher education—

(a) Has the meaning given the term in 

section 101 of the Higher Education Act 

of 1965, as amended, 20 U.S.C. 1021 et 

seq. (HEA); and 

(b) Also includes any community 

college receiving funds from the 

Secretary of the Interior under the 

Tribally Controlled Community College 

or University Assistance Act of 1978, 25 

U.S.C. 1801, et seq. 

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

§ 300.27 Limited English proficient. 

Limited English proficient has the 

meaning given the term in section 

9101(25) of the ESEA. 

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

§ 300.28 Local educational agency. 

(a) General. Local educational agency 

or LEA means a public board of 

education or other public authority 

legally constituted within a State for 

either administrative control or 

direction of, or to perform a service 

function for, public elementary or 

secondary schools in a city, county, 

township, school district, or other 

political subdivision of a State, or for a 

combination of school districts or 

counties as are recognized in a State as 

an administrative agency for its public 

elementary schools or secondary 

schools. 

(b) Educational service agencies and 

other public institutions or agencies. 

The term includes—

(1) An educational service agency, as 

defined in § 300.12; and 

(2) Any other public institution or 

agency having administrative control 

and direction of a public elementary 

school or secondary school, including a 

public nonprofit charter school that is 

established as an LEA under State law. 

(c) BIA funded schools. The term 

includes an elementary school or 

secondary school funded by the Bureau 

of Indian Affairs, and not subject to the 

jurisdiction of any SEA other than the 

Bureau of Indian Affairs, but only to the 

extent that the inclusion makes the 

school eligible for programs for which 

specific eligibility is not provided to the 

school in another provision of law and 

the school does not have a student 

population that is smaller than the 

student population of the LEA receiving 

assistance under the Act with the 

smallest student population. 

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

§ 300.29 Native language. 

(a) Native language, when used with 

respect to an individual who is limited 

English proficient, means the following: 

(1) The language normally used by 

that individual, or, in the case of a 

child, the language normally used by 

the parents of the child, except as 

provided in paragraph (a)(2) of this 

section. 

(2) In all direct contact with a child 

(including evaluation of the child), the 


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language normally used by the child in 

the home or learning environment. 

(b) For an individual with deafness or 

blindness, or for an individual with no 

written language, the mode of 

communication is that normally used by 

the individual (such as sign language, 

Braille, or oral communication). 

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

§ 300.30 Parent. 

(a) Parent means—

(1) A biological or adoptive parent of 

a child; 

(2) A foster parent, unless State law, 

regulations, or contractual obligations 

with a State or local entity prohibit a 

foster parent from acting as a parent; 

(3) A guardian generally authorized to 

act as the child’s parent, or authorized 

to make educational decisions for the 

child (but not the State if the child is a 

ward of the State); 

(4) An individual acting in the place 

of a biological or adoptive parent 

(including a grandparent, stepparent, or 

other relative) with whom the child 

lives, or an individual who is legally 

responsible for the child’s welfare; or 

(5) A surrogate parent who has been 

appointed in accordance with § 300.519 

or section 639(a)(5) of the Act. 

(b) (1) Except as provided in 

paragraph (b)(2) of this section, the 

biological or adoptive parent, when 

attempting to act as the parent under 

this part and when more than one party 

is qualified under paragraph (a) of this 

section to act as a parent, must be 

presumed to be the parent for purposes 

of this section unless the biological or 

adoptive parent does not have legal 

authority to make educational decisions 

for the child. 

(2) If a judicial decree or order 

identifies a specific person or persons 

under paragraphs (a)(1) through (4) of 

this section to act as the ‘‘parent’’ of a 

child or to make educational decisions 

on behalf of a child, then such person 

or persons shall be determined to be the 

‘‘parent’’ for purposes of this section. 

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

§ 300.31 Parent training and information 

center. 

Parent training and information 

center means a center assisted under 

sections 671 or 672 of the Act. 

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

§ 300.32 Personally identifiable. 

Personally identifiable means 

information that contains—

(a) The name of the child, the child’s 

parent, or other family member; 

(b) The address of the child; 

(c) A personal identifier, such as the 

child’s social security number or 

student number; or 

(d) A list of personal characteristics or 

other information that would make it 

possible to identify the child with 

reasonable certainty. 

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

§ 300.33 Public agency. 

Public agency includes the SEA, 

LEAs, ESAs, nonprofit public charter 

schools that are not otherwise included 

as LEAs or ESAs and are not a school 

of an LEA or ESA, and any other 

political subdivisions of the State that 

are responsible for providing education 

to children with disabilities. 

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

§ 300.34 Related services. 

(a) General. Related services means 

transportation and such developmental, 

corrective, and other supportive services 

as are required to assist a child with a 

disability to benefit from special 

education, and includes speechlanguage pathology and audiology 

services, interpreting services, 

psychological services, physical and 

occupational therapy, recreation, 

including therapeutic recreation, early 

identification and assessment of 

disabilities in children, counseling 

services, including rehabilitation 

counseling, orientation and mobility 

services, and medical services for 

diagnostic or evaluation purposes. 

Related services also include school 

health services and school nurse 

services, social work services in schools, 

and parent counseling and training. 

(b) Exception; services that apply to 

children with surgically implanted 

devices, including cochlear implants. 

(1) Related services do not include a 

medical device that is surgically 

implanted, the optimization of that 

device’s functioning (e.g., mapping), 

maintenance of that device, or the 

replacement of that device. 

(2) Nothing in paragraph (b)(1) of this 

section—

(i) Limits the right of a child with a 

surgically implanted device (e.g., 

cochlear implant) to receive related 

services (as listed in paragraph (a) of 

this section) that are determined by the 

IEP Team to be necessary for the child 

to receive FAPE. 

(ii) Limits the responsibility of a 

public agency to appropriately monitor 

and maintain medical devices that are 

needed to maintain the health and 

safety of the child, including breathing, 

nutrition, or operation of other bodily 

functions, while the child is transported 

to and from school or is at school; or 

(iii) Prevents the routine checking of 

an external component of a surgically 

implanted device to make sure it is 

functioning properly, as required in 

§ 300.113(b). 

(c) Individual related services terms 

defined. The terms used in this 

definition are defined as follows: 

(1) Audiology includes—

(i) Identification of children with 

hearing loss; 

(ii) Determination of the range, nature, 

and degree of hearing loss, including 

referral for medical or other professional 

attention for the habilitation of hearing; 

(iii) Provision of habilitative 

activities, such as language habilitation, 

auditory training, speech reading (lipreading), hearing evaluation, and speech 

conservation; 

(iv) Creation and administration of 

programs for prevention of hearing loss; 

(v) Counseling and guidance of 

children, parents, and teachers 

regarding hearing loss; and 

(vi) Determination of children’s needs 

for group and individual amplification, 

selecting and fitting an appropriate aid, 

and evaluating the effectiveness of 

amplification. 

(2) Counseling services means services 

provided by qualified social workers, 

psychologists, guidance counselors, or 

other qualified personnel. 

(3) Early identification and 

assessment of disabilities in children 

means the implementation of a formal 

plan for identifying a disability as early 

as possible in a child’s life. 

(4) Interpreting services includes—

(i) The following, when used with 

respect to children who are deaf or hard 

of hearing: Oral transliteration services, 

cued language transliteration services, 

sign language transliteration and 

interpreting services, and transcription 

services, such as communication access 

real-time translation (CART), C-Print, 

and TypeWell; and 

(ii) Special interpreting services for 

children who are deaf-blind. 

(5) Medical services means services 

provided by a licensed physician to 

determine a child’s medically related 

disability that results in the child’s need 

for special education and related 

services. 

(6) Occupational therapy—

(i) Means services provided by a 

qualified occupational therapist; and 

(ii) Includes—

(A) Improving, developing, or 

restoring functions impaired or lost 

through illness, injury, or deprivation; 

(B) Improving ability to perform tasks 

for independent functioning if functions 

are impaired or lost; and 

(C) Preventing, through early 

intervention, initial or further 

impairment or loss of function. 


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(7) Orientation and mobility 

services—

(i) Means services provided to blind 

or visually impaired children by 

qualified personnel to enable those 

students to attain systematic orientation 

to and safe movement within their 

environments in school, home, and 

community; and 

(ii) Includes teaching children the 

following, as appropriate: 

(A) Spatial and environmental 

concepts and use of information 

received by the senses (such as sound, 

temperature and vibrations) to establish, 

maintain, or regain orientation and line 

of travel (e.g., using sound at a traffic 

light to cross the street); 

(B) To use the long cane or a service 

animal to supplement visual travel 

skills or as a tool for safely negotiating 

the environment for children with no 

available travel vision; 

(C) To understand and use remaining 

vision and distance low vision aids; and 

(D) Other concepts, techniques, and 

tools. 

(8)(i) Parent counseling and training 

means assisting parents in 

understanding the special needs of their 

child; 

(ii) Providing parents with 

information about child development; 

and 

(iii) Helping parents to acquire the 

necessary skills that will allow them to 

support the implementation of their 

child’s IEP or IFSP. 

(9) Physical therapy means services 

provided by a qualified physical 

therapist. 

(10) Psychological services includes—

(i) Administering psychological and 

educational tests, and other assessment 

procedures; 

(ii) Interpreting assessment results; 

(iii) Obtaining, integrating, and 

interpreting information about child 

behavior and conditions relating to 

learning; 

(iv) Consulting with other staff 

members in planning school programs 

to meet the special educational needs of 

children as indicated by psychological 

tests, interviews, direct observation, and 

behavioral evaluations; 

(v) Planning and managing a program 

of psychological services, including 

psychological counseling for children 

and parents; and 

(vi) Assisting in developing positive 

behavioral intervention strategies. 

(11) Recreation includes—

(i) Assessment of leisure function; 

(ii) Therapeutic recreation services; 

(iii) Recreation programs in schools 

and community agencies; and 

(iv) Leisure education. 

(12) Rehabilitation counseling 

services means services provided by 

qualified personnel in individual or 

group sessions that focus specifically on 

career development, employment 

preparation, achieving independence, 

and integration in the workplace and 

community of a student with a 

disability. The term also includes 

vocational rehabilitation services 

provided to a student with a disability 

by vocational rehabilitation programs 

funded under the Rehabilitation Act of 

1973, as amended, 29 U.S.C. 701 et seq. 

(13) School health services and school 

nurse services means health services 

that are designed to enable a child with 

a disability to receive FAPE as described 

in the child’s IEP. School nurse services 

are services provided by a qualified 

school nurse. School health services are 

services that may be provided by either 

a qualified school nurse or other 

qualified person. 

(14) Social work services in schools 

includes—

(i) Preparing a social or 

developmental history on a child with 

a disability; 

(ii) Group and individual counseling 

with the child and family; 

(iii) Working in partnership with 

parents and others on those problems in 

a child’s living situation (home, school, 

and community) that affect the child’s 

adjustment in school; 

(iv) Mobilizing school and community 

resources to enable the child to learn as 

effectively as possible in his or her 

educational program; and 

(v) Assisting in developing positive 

behavioral intervention strategies. 

(15) Speech-language pathology 

services includes—

(i) Identification of children with 

speech or language impairments; 

(ii) Diagnosis and appraisal of specific 

speech or language impairments; 

(iii) Referral for medical or other 

professional attention necessary for the 

habilitation of speech or language 

impairments; 

(iv) Provision of speech and language 

services for the habilitation or 

prevention of communicative 

impairments; and 

(v) Counseling and guidance of 

parents, children, and teachers 

regarding speech and language 

impairments. 

(16) Transportation includes—

(i) Travel to and from school and 

between schools; 

(ii) Travel in and around school 

buildings; and 

(iii) Specialized equipment (such as 

special or adapted buses, lifts, and 

ramps), if required to provide special 

transportation for a child with a 

disability. 

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

§ 300.35 Scientifically based research. 

Scientifically based research has the 

meaning given the term in section 

9101(37) of the ESEA. 

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

§ 300.36 Secondary school. 

Secondary school means a nonprofit 

institutional day or residential school, 

including a public secondary charter 

school that provides secondary 

education, as determined under State 

law, except that it does not include any 

education beyond grade 12. 

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

§ 300.37 Services plan. 

Services plan means a written 

statement that describes the special 

education and related services the LEA 

will provide to a parentally-placed child 

with a disability enrolled in a private 

school who has been designated to 

receive services, including the location 

of the services and any transportation 

necessary, consistent with § 300.132, 

and is developed and implemented in 

accordance with §§ 300.137 through 

300.139. 

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

§ 300.38 Secretary. 

Secretary means the Secretary of 

Education. 

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

§ 300.39 Special education. 

(a) General. (1) Special education 

means specially designed instruction, at 

no cost to the parents, to meet the 

unique needs of a child with a 

disability, including—

(i) Instruction conducted in the 

classroom, in the home, in hospitals and 

institutions, and in other settings; and 

(ii) Instruction in physical education. 

(2) Special education includes each of 

the following, if the services otherwise 

meet the requirements of paragraph 

(a)(1) of this section—

(i) Speech-language pathology 

services, or any other related service, if 

the service is considered special 

education rather than a related service 

under State standards; 

(ii) Travel training; and 

(iii) Vocational education. 

(b) Individual special education terms 

defined. The terms in this definition are 

defined as follows: 

(1) At no cost means that all speciallydesigned instruction is provided 

without charge, but does not preclude 

incidental fees that are normally 

charged to nondisabled students or their 

parents as a part of the regular 

education program. 

(2) Physical education means—


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(i) The development of—

(A) Physical and motor fitness; 

(B) Fundamental motor skills and 

patterns; and 

(C) Skills in aquatics, dance, and 

individual and group games and sports 

(including intramural and lifetime 

sports); and 

(ii) Includes special physical 

education, adapted physical education, 

movement education, and motor 

development. 

(3) Specially designed instruction 

means adapting, as appropriate to the 

needs of an eligible child under this 

part, the content, methodology, or 

delivery of instruction—

(i) To address the unique needs of the 

child that result from the child’s 

disability; and 

(ii) To ensure access of the child to 

the general curriculum, so that the child 

can meet the educational standards 

within the jurisdiction of the public 

agency that apply to all children. 

(4) Travel training means providing 

instruction, as appropriate, to children 

with significant cognitive disabilities, 

and any other children with disabilities 

who require this instruction, to enable 

them to—

(i) Develop an awareness of the 

environment in which they live; and 

(ii) Learn the skills necessary to move 

effectively and safely from place to 

place within that environment (e.g., in 

school, in the home, at work, and in the 

community). 

(5) Vocational education means 

organized educational programs that are 

directly related to the preparation of 

individuals for paid or unpaid 

employment, or for additional 

preparation for a career not requiring a 

baccalaureate or advanced degree. 

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

§ 300.40 State. 

State means each of the 50 States, the 

District of Columbia, the 

Commonwealth of Puerto Rico, and 

each of the outlying areas. 

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

§ 300.41 State educational agency. 

State educational agency or SEA 

means the State board of education or 

other agency or officer primarily 

responsible for the State supervision of 

public elementary schools and 

secondary schools, or, if there is no such 

officer or agency, an officer or agency 

designated by the Governor or by State 

law. 

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

§ 300.42 Supplementary aids and services. 

Supplementary aids and services 

means aids, services, and other supports 

that are provided in regular education 

classes, other education-related settings, 

and in extracurricular and nonacademic 

settings, to enable children with 

disabilities to be educated with 

nondisabled children to the maximum 

extent appropriate in accordance with 

§§ 300.114 through 300.116. 

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

§ 300.43 Transition services. 

(a) Transition services means a 

coordinated set of activities for a child 

with a disability that—

(1) Is designed to be within a resultsoriented process, that is focused on 

improving the academic and functional 

achievement of the child with a 

disability to facilitate the child’s 

movement from school to post-school 

activities, including postsecondary 

education, vocational education, 

integrated employment (including 

supported employment), continuing and 

adult education, adult services, 

independent living, or community 

participation; 

(2) Is based on the individual child’s 

needs, taking into account the child’s 

strengths, preferences, and interests; 

and includes—

(i) Instruction; 

(ii) Related services; 

(iii) Community experiences; 

(iv) The development of employment 

and other post-school adult living 

objectives; and 

(v) If appropriate, acquisition of daily 

living skills and provision of a 

functional vocational evaluation. 

(b) Transition services for children 

with disabilities may be special 

education, if provided as specially 

designed instruction, or a related 

service, if required to assist a child with 

a disability to benefit from special 

education. 

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

§ 300.44 Universal design. 

Universal design has the meaning 

given the term in section 3 of the 

Assistive Technology Act of 1998, as 

amended, 29 U.S.C. 3002. 

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

§ 300.45 Ward of the State. 

(a) General. Subject to paragraph (b) 

of this section, ward of the State means 

a child who, as determined by the State 

where the child resides, is—

(1) A foster child; 

(2) A ward of the State; or 

(3) In the custody of a public child 

welfare agency. 

(b) Exception. Ward of the State does 

not include a foster child who has a 

foster parent who meets the definition 

of a parent in § 300.30. 

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

Subpart B—State Eligibility 

General 

§ 300.100 Eligibility for assistance. 

A State is eligible for assistance under 

Part B of the Act for a fiscal year if the 

State submits a plan that provides 

assurances to the Secretary that the 

State has in effect policies and 

procedures to ensure that the State 

meets the conditions in §§ 300.101 

through 300.176. 

(Approved by the Office of Management 

and Budget under control number 1820–

0030) 

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

FAPE Requirements 

§ 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 § 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 § 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)) 

§ 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: 


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(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 

§ 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 § 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 § 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 § 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 § 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 

§ 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 § 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)). 

§ 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)) 

§ 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 §§ 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 § 300.36; 

(2) Related services under § 300.34; or 

(3) Supplementary aids and services 

under §§ 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)) 

§ 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 §§ 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)) 

§ 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)) 


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§ 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)) 

§ 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)) 

§ 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)) 

§ 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 § 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 § 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 

§ 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 

§ 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)) 

§ 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 

§§ 300.320 through 300.324, except as 

provided in § 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)) 

§ 300.113 Routine checking of hearing 

aids and external components of surgically 

implanted medical devices. 

(a) Hearing aids. Each public agency 

must ensure that hearing aids worn in 

school by children with hearing 

impairments, including deafness, are 

functioning properly. 

(b) External components of surgically 

implanted medical devices. (1) Subject 

to paragraph (b)(2) of this section, each 

public agency must ensure that the 

external components of surgically 

implanted medical devices are 

functioning properly. 

(2) For a child with a surgically 

implanted medical device who is 

receiving special education and related 

services under this part, a public agency 

is not responsible for the post-surgical 

maintenance, programming, or 

replacement of the medical device that 

has been surgically implanted (or of an 

external component of the surgically 

implanted medical device). 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

(Authority: 20 U.S.C. 1401(1), 1401(26)(B)) 

Least Restrictive Environment (LRE) 

§ 300.114 LRE requirements. 

(a) General. (1) Except as provided in 

§ 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 

§§ 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 


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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)) 

§ 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 § 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)) 

§ 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 §§ 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 ageappropriate 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)) 

§ 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 

§ 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)) 

§ 300.118 Children in public or private 

institutions. 

Except as provided in § 300.149(d) 

(regarding agency responsibility for 

general supervision for some 

individuals in adult prisons), an SEA 

must ensure that § 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)) 

§ 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 

§ 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)) 

§ 300.120 Monitoring activities. 

(a) The SEA must carry out activities 

to ensure that § 300.114 is implemented 

by each public agency. 

(b) If there is evidence that a public 

agency makes placements that are 

inconsistent with § 300.114, the SEA 

must—

(1) Review the public agency’s 

justification for its actions; and 

(2) Assist in planning and 

implementing any necessary corrective 

action. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

Additional Eligibility Requirements 

§ 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 §§ 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)) 

§ 300.122 Evaluation. 

Children with disabilities must be 

evaluated in accordance with §§ 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)) 

§ 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 §§ 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)) 


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§ 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 

§ 300.323(b) and section 636(d) of the 

Act, an IFSP, has been developed and is 

being implemented for the child 

consistent with § 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)) 

§§ 300.125–300.128 [Reserved] 

Children in Private Schools 

§ 300.129 State responsibility regarding 

children in private schools. 

The State must have in effect policies 

and procedures that ensure that LEAs, 

and, if applicable, the SEA, meet the 

private school requirements in 

§§ 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 

§ 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 

§ 300.13 or secondary school in 

§ 300.36, other than children with 

disabilities covered under §§ 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)) 

§ 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 §§ 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 

§ 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 § 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)) 

§ 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 § 300.137, unless the 

Secretary has arranged for services to 

those children under the by-pass 

provisions in §§ 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 §§ 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 

§§ 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)) 

§ 300.133 Expenditures. 

(a) Formula. To meet the requirement 

of § 300.132(a), each LEA must spend 

the following on providing special 

education and related services 

(including direct services) to parentallyplaced 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 

§ 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 


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Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46767 

year for which Congress appropriated 

the funds, the LEA must obligate the 

remaining funds for special education 

and related services (including direct 

services) to parentally-placed private 

school children with disabilities during 

a carry-over period of one additional 

year. 

(b) Calculating proportionate amount. 

In calculating the proportionate amount 

of Federal funds to be provided for 

parentally-placed private school 

children with disabilities, the LEA, after 

timely and meaningful consultation 

with representatives of private schools 

under § 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 § 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)) 

§ 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 parentallyplaced 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 

§ 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 parentallyplaced 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 parentallyplaced 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 parentallyplaced 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)) 

§ 300.135 Written affirmation. 

(a) When timely and meaningful 

consultation, as required by § 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)) 

§ 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)) 

§ 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 

§§ 300.130 through 300.144 must be 

made in accordance with paragraph (c) 

of this section and § 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 §§ 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 

§ 300.138(b); and 

(2) Ensure that a representative of the 

religious or other private school attends 


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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)) 

§ 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 

§ 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 parentallyplaced private school child with a 

disability who has been designated to 

receive services under § 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 §§ 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 § 300.320, 

or for a child ages three through five, 

meet the requirements of § 300.323(b) 

with respect to the services provided; 

and 

(ii) Be developed, reviewed, and 

revised consistent with §§ 300.321 

through 300.324. 

(c) Provision of equitable services. (1) 

The provision of services pursuant to 

this section and §§ 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)) 

§ 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 

§ 300.133. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 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 §§ 300.504 through 

300.519 do not apply to complaints that 

an LEA has failed to meet the 

requirements of §§ 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 

§§ 300.504 through 300.519 apply to 

complaints that an LEA has failed to 

meet the child find requirements in 

§ 300.131, including the requirements in 

§§ 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 §§ 300.132 

through 300.135 and 300.137 through 

300.144 must be filed in accordance 

with the procedures described in 

§§ 300.151 through 300.153. 

(2) A complaint filed by a private 

school official under § 300.136(a) must 

be filed with the SEA in accordance 

with the procedures in § 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)) 

§ 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)) 

§ 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 §§ 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 

§§ 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)) 

§ 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. 


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(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 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 §§ 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 

§ 300.145 Applicability of §§ 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)) 

§ 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 §§ 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 § 300.18 and 

§ 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)) 

§ 300.147 Implementation by SEA. 

In implementing § 300.146, the SEA 

must—

(a) Monitor compliance through 

procedures such as written reports, onsite 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 

§ 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 §§ 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 §§ 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 § 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 § 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 


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46770 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 

(ii) Compliance with paragraph (d)(1) 

of this section would likely result in 

serious emotional harm to the child. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

SEA Responsibility for General 

Supervision and Implementation of 

Procedural Safeguards 

§ 300.149 SEA responsibility for general 

supervision. 

(a) The SEA is responsible for 

ensuring—

(1) That the requirements of this part 

are carried out; and 

(2) That each educational program for 

children with disabilities administered 

within the State, including each 

program administered by any other 

State or local agency (but not including 

elementary schools and secondary 

schools for Indian children operated or 

funded by the Secretary of the 

Interior)—

(i) Is under the general supervision of 

the persons responsible for educational 

programs for children with disabilities 

in the SEA; and 

(ii) Meets the educational standards of 

the SEA (including the requirements of 

this part). 

(3) In carrying out this part with 

respect to homeless children, the 

requirements of subtitle B of title VII of 

the McKinney-Vento Homeless 

Assistance Act (42 U.S.C. 11431 et seq.) 

are met. 

(b) The State must have in effect 

policies and procedures to ensure that it 

complies with the monitoring and 

enforcement requirements in §§ 300.600 

through 300.602 and §§ 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) 

§ 300.150 SEA implementation of 

procedural safeguards. 

The SEA (and any agency assigned 

responsibility pursuant to § 300.149(d)) 

must have in effect procedures to inform 

each public agency of its responsibility 

for ensuring effective implementation of 

procedural safeguards for the children 

with disabilities served by that public 

agency. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

State Complaint Procedures 

§ 300.151 Adoption of State complaint 

procedures. 

(a) General. Each SEA must adopt 

written procedures for—

(1) Resolving any complaint, 

including a complaint filed by an 

organization or individual from another 

State, that meets the requirements of 

§ 300.153 by—

(i) Providing for the filing of a 

complaint with the SEA; and 

(ii) At the SEA’s discretion, providing 

for the filing of a complaint with a 

public agency and the right to have the 

SEA review the public agency’s decision 

on the complaint; and 

(2) Widely disseminating to parents 

and other interested individuals, 

including parent training and 

information centers, protection and 

advocacy agencies, independent living 

centers, and other appropriate entities, 

the State procedures under §§ 300.151 

through 300.153. 

(b) Remedies for denial of appropriate 

services. In resolving a complaint in 

which the SEA has found a failure to 

provide appropriate services, an SEA, 

pursuant to its general supervisory 

authority under Part B of the Act, must 

address—

(1) The failure to provide appropriate 

services, including corrective action 

appropriate to address the needs of the 

child (such as compensatory services or 

monetary reimbursement); and 

(2) Appropriate future provision of 

services for all children with 

disabilities. 

(Approved by the Office of Management and 

Budget under control numbers 1820–0030 

and 1820–0600) 

(Authority: 20 U.S.C. 1221e–3) 

§ 300.152 Minimum State complaint 

procedures. 

(a) Time limit; minimum procedures. 

Each SEA must include in its complaint 

procedures a time limit of 60 days after 

a complaint is filed under § 300.153 to—

(1) Carry out an independent on-site 

investigation, if the SEA determines that 

an investigation is necessary; 

(2) Give the complainant the 

opportunity to submit additional 

information, either orally or in writing, 

about the allegations in the complaint; 

(3) Provide the public agency with the 

opportunity to respond to the 

complaint, including, at a minimum—

(i) At the discretion of the public 

agency, a proposal to resolve the 

complaint; and 

(ii) An opportunity for a parent who 

has filed a complaint and the public 

agency to voluntarily engage in 

mediation consistent with § 300.506; 

(4) Review all relevant information 

and make an independent 

determination as to whether the public 

agency is violating a requirement of Part 

B of the Act or of this part; and 

(5) Issue a written decision to the 

complainant that addresses each 

allegation in the complaint and 

contains—

(i) Findings of fact and conclusions; 

and 

(ii) The reasons for the SEA’s final 

decision. 

(b) Time extension; final decision; 

implementation. The SEA’s procedures 

described in paragraph (a) of this 

section also must—

(1) Permit an extension of the time 

limit under paragraph (a) of this section 

only if—

(i) Exceptional circumstances exist 

with respect to a particular complaint; 

or 

(ii) The parent (or individual or 

organization, if mediation or other 

alternative means of dispute resolution 

is available to the individual or 

organization under State procedures) 

and the public agency involved agree to 

extend the time to engage in mediation 

pursuant to paragraph (a)(3)(ii) of this 

section, or to engage in other alternative 

means of dispute resolution, if available 

in the State; and 

(2) Include procedures for effective 

implementation of the SEA’s final 

decision, if needed, including—

(i) Technical assistance activities; 

(ii) Negotiations; and 

(iii) Corrective actions to achieve 

compliance. 

(c) Complaints filed under this section 

and due process hearings under 

§ 300.507 and §§ 300.530 through 

300.532. (1) If a written complaint is 

received that is also the subject of a due 

process hearing under § 300.507 or 

§§ 300.530 through 300.532, or contains 

multiple issues of which one or more 

are part of that hearing, the State must 

set aside any part of the complaint that 

is being addressed in the due process 

hearing until the conclusion of the 

hearing. However, any issue in the 

complaint that is not a part of the due 

process action must be resolved using 

the time limit and procedures described 

in paragraphs (a) and (b) of this section. 

(2) If an issue raised in a complaint 

filed under this section has previously 


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been decided in a due process hearing 

involving the same parties—

(i) The due process hearing decision 

is binding on that issue; and 

(ii) The SEA must inform the 

complainant to that effect. 

(3) A complaint alleging a public 

agency’s failure to implement a due 

process hearing decision must be 

resolved by the SEA. 

Approved by the Office of Management and 

Budget under control numbers 1820–0030 

and 1820–0600) 

(Authority: 20 U.S.C. 1221e–3) 

§ 300.153 Filing a complaint. 

(a) An organization or individual may 

file a signed written complaint under 

the procedures described in §§ 300.151 

through 300.152. 

(b) The complaint must include—

(1) A statement that a public agency 

has violated a requirement of Part B of 

the Act or of this part; 

(2) The facts on which the statement 

is based; 

(3) The signature and contact 

information for the complainant; and 

(4) If alleging violations with respect 

to a specific child—

(i) The name and address of the 

residence of the child; 

(ii) The name of the school the child 

is attending; 

(iii) In the case of a homeless child or 

youth (within the meaning of section 

725(2) of the McKinney-Vento Homeless 

Assistance Act (42 U.S.C. 11434a(2)), 

available contact information for the 

child, and the name of the school the 

child is attending; 

(iv) A description of the nature of the 

problem of the child, including facts 

relating to the problem; and 

(v) A proposed resolution of the 

problem to the extent known and 

available to the party at the time the 

complaint is filed. 

(c) The complaint must allege a 

violation that occurred not more than 

one year prior to the date that the 

complaint is received in accordance 

with § 300.151. 

(d) The party filing the complaint 

must forward a copy of the complaint to 

the LEA or public agency serving the 

child at the same time the party files the 

complaint with the SEA. 

(Approved by the Office of Management and 

Budget under control numbers 1820–0030 

and 1820–0600) 

(Authority: 20 U.S.C. 1221e–3) 

Methods of Ensuring Services 

§ 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 § 300.5 relating to 

assistive technology devices, § 300.6 

relating to assistive technology services, 

§ 300.34 relating to related services, 

§ 300.41 relating to supplementary aids 

and services, and § 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—


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(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 § 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 § 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 

§§ 300.163 and 300.203. 

(h) Construction. Nothing in this part 

should be construed to alter the 

requirements imposed on a State 

Medicaid agency, or any other agency 

administering a public benefits or 

insurance program by Federal statute, 

regulations or policy under title XIX, or 

title XXI of the Social Security Act, 42 

U.S.C. 1396 through 1396v and 42 

U.S.C. 1397aa through 1397jj, or any 

other public benefits or insurance 

program. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

Additional Eligibility Requirements 

§ 300.155 Hearings relating to LEA 

eligibility. 

The SEA must not make any final 

determination that an LEA is not 

eligible for assistance under Part B of 

the Act without first giving the LEA 

reasonable notice and an opportunity 

for a hearing under 34 CFR 76.401(d). 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 300.156 Personnel qualifications. 

(a) General. The SEA must establish 

and maintain qualifications to ensure 

that personnel necessary to carry out the 

purposes of this part are appropriately 

and adequately prepared and trained, 

including that those personnel have the 

content knowledge and skills to serve 

children with disabilities. 

(b) Related services personnel and 

paraprofessionals. The qualifications 

under paragraph (a) of this section must 

include qualifications for related 

services personnel and 

paraprofessionals that—

(1) Are consistent with any Stateapproved 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)) 

§ 300.157 Performance goals and 

indicators. 

The State must—

(a) Have in effect established goals for 

the performance of children with 

disabilities in the State that—

(1) Promote the purposes of this part, 

as stated in § 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; 


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(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)) 

§§ 300.158–300.161 [Reserved] 

§ 300.162 Supplementation of State, local, 

and other Federal funds. 

(a) Expenditures. Funds paid to a 

State under this part must be expended 

in accordance with all the provisions of 

this part. 

(b) Prohibition against commingling. 

(1) Funds paid to a State under this part 

must not be commingled with State 

funds. 

(2) The requirement in paragraph 

(b)(1) of this section is satisfied by the 

use of a separate accounting system that 

includes an audit trail of the 

expenditure of funds paid to a State 

under this part. Separate bank accounts 

are not required. (See 34 CFR 76.702 

(Fiscal control and fund accounting 

procedures).) 

(c) State-level nonsupplanting. (1) 

Except as provided in § 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 § 300.164. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 300.163 Maintenance of State financial 

support. 

(a) General. A State must not reduce 

the amount of State financial support for 

special education and related services 

for children with disabilities, or 

otherwise made available because of the 

excess costs of educating those children, 

below the amount of that support for the 

preceding fiscal year. 

(b) Reduction of funds for failure to 

maintain support. The Secretary 

reduces the allocation of funds under 

section 611 of the Act for any fiscal year 

following the fiscal year in which the 

State fails to comply with the 

requirement of paragraph (a) of this 

section by the same amount by which 

the State fails to meet the requirement. 

(c) Waivers for exceptional or 

uncontrollable circumstances. The 

Secretary may waive the requirement of 

paragraph (a) of this section for a State, 

for one fiscal year at a time, if the 

Secretary determines that—

(1) Granting a waiver would be 

equitable due to exceptional or 

uncontrollable circumstances such as a 

natural disaster or a precipitous and 

unforeseen decline in the financial 

resources of the State; or 

(2) The State meets the standard in 

§ 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)) 

§ 300.164 Waiver of requirement regarding 

supplementing and not supplanting with 

Part B funds. 

(a) Except as provided under 

§§ 300.202 through 300.205, funds paid 

to a State under Part B of the Act must 

be used to supplement and increase the 

level of Federal, State, and local funds 

(including funds that are not under the 

direct control of SEAs or LEAs) 

expended for special education and 

related services provided to children 

with disabilities under Part B of the Act 

and in no case to supplant those 

Federal, State, and local funds. A State 

may use funds it retains under 

§ 300.704(a) and (b) without regard to 

the prohibition on supplanting other 

funds. 

(b) If a State provides clear and 

convincing evidence that all eligible 

children with disabilities throughout 

the State have FAPE available to them, 

the Secretary may waive for a period of 

one year in whole or in part the 

requirement under § 300.162 (regarding 

State-level nonsupplanting) if the 

Secretary concurs with the evidence 

provided by the State. 

(c) If a State wishes to request a 

waiver under this section, it must 

submit to the Secretary a written request 

that includes—

(1) An assurance that FAPE is 

currently available, and will remain 

available throughout the period that a 

waiver would be in effect, to all eligible 

children with disabilities throughout 

the State, regardless of the public 

agency that is responsible for providing 

FAPE to them. The assurance must be 

signed by an official who has the 

authority to provide that assurance as it 

applies to all eligible children with 

disabilities in the State; 

(2) All evidence that the State wishes 

the Secretary to consider in determining 

whether all eligible children with 

disabilities have FAPE available to 

them, setting forth in detail—

(i) The basis on which the State has 

concluded that FAPE is available to all 

eligible children in the State; and 

(ii) The procedures that the State will 

implement to ensure that FAPE remains 

available to all eligible children in the 

State, which must include—

(A) The State’s procedures under 

§ 300.111 for ensuring that all eligible 

children are identified, located and 

evaluated; 

(B) The State’s procedures for 

monitoring public agencies to ensure 

that they comply with all requirements 

of this part; 

(C) The State’s complaint procedures 

under §§ 300.151 through 300.153; and 

(D) The State’s hearing procedures 

under §§ 300.511 through 300.516 and 

§§ 300.530 through 300.536; 

(3) A summary of all State and 

Federal monitoring reports, and State 

complaint decisions (see §§ 300.151 

through 300.153) and hearing decisions 

(see §§ 300.511 through 300.516 and 

§§ 300.530 through 300.536), issued 

within three years prior to the date of 

the State’s request for a waiver under 

this section, that includes any finding 

that FAPE has not been available to one 

or more eligible children, and evidence 

that FAPE is now available to all 

children addressed in those reports or 

decisions; and 

(4) Evidence that the State, in 

determining that FAPE is currently 


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available to all eligible children with 

disabilities in the State, has consulted 

with the State advisory panel under 

§ 300.167. 

(d) If the Secretary determines that the 

request and supporting evidence 

submitted by the State makes a prima 

facie showing that FAPE is, and will 

remain, available to all eligible children 

with disabilities in the State, the 

Secretary, after notice to the public 

throughout the State, conducts a public 

hearing at which all interested persons 

and organizations may present evidence 

regarding the following issues: 

(1) Whether FAPE is currently 

available to all eligible children with 

disabilities in the State. 

(2) Whether the State will be able to 

ensure that FAPE remains available to 

all eligible children with disabilities in 

the State if the Secretary provides the 

requested waiver. 

(e) Following the hearing, the 

Secretary, based on all submitted 

evidence, will provide a waiver, in 

whole or in part, for a period of one year 

if the Secretary finds that the State has 

provided clear and convincing evidence 

that FAPE is currently available to all 

eligible children with disabilities in the 

State, and the State will be able to 

ensure that FAPE remains available to 

all eligible children with disabilities in 

the State if the Secretary provides the 

requested waiver. 

(f) A State may receive a waiver of the 

requirement of section 612(a)(18)(A) of 

the Act and § 300.164 if it satisfies the 

requirements of paragraphs (b) through 

(e) of this section. 

(g) The Secretary may grant 

subsequent waivers for a period of one 

year each, if the Secretary determines 

that the State has provided clear and 

convincing evidence that all eligible 

children with disabilities throughout 

the State have, and will continue to 

have throughout the one-year period of 

the waiver, FAPE available to them. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

(18)(C)(ii)) 

§ 300.165 Public participation. 

(a) Prior to the adoption of any 

policies and procedures needed to 

comply with Part B of the Act 

(including any amendments to those 

policies and procedures), the State must 

ensure that there are public hearings, 

adequate notice of the hearings, and an 

opportunity for comment available to 

the general public, including 

individuals with disabilities and parents 

of children with disabilities. 

(b) Before submitting a State plan 

under this part, a State must comply 

with the public participation 

requirements in paragraph (a) of this 

section and those in 20 U.S.C. 

1232d(b)(7). 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

1232d(b)(7)) 

§ 300.166 Rule of construction. 

In complying with §§ 300.162 and 

300.163, a State may not use funds paid 

to it under this part to satisfy State-law 

mandated funding obligations to LEAs, 

including funding based on student 

attendance or enrollment, or inflation. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

State Advisory Panel 

§ 300.167 State advisory panel. 

The State must establish and maintain 

an advisory panel for the purpose of 

providing policy guidance with respect 

to special education and related services 

for children with disabilities in the 

State. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 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)) 

§ 300.169 Duties. 

The advisory panel must—

(a) Advise the SEA of unmet needs 

within the State in the education of 

children with disabilities; 

(b) Comment publicly on any rules or 

regulations proposed by the State 

regarding the education of children with 

disabilities; 

(c) Advise the SEA in developing 

evaluations and reporting on data to the 

Secretary under section 618 of the Act; 

(d) Advise the SEA in developing 

corrective action plans to address 

findings identified in Federal 

monitoring reports under Part B of the 

Act; and 

(e) Advise the SEA in developing and 

implementing policies relating to the 

coordination of services for children 

with disabilities. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

Other Provisions Required for State 

Eligibility 

§ 300.170 Suspension and expulsion rates. 

(a) General. The SEA must examine 

data, including data disaggregated by 

race and ethnicity, to determine if 

significant discrepancies are occurring 

in the rate of long-term suspensions and 

expulsions of children with 

disabilities—

(1) Among LEAs in the State; or 

(2) Compared to the rates for 

nondisabled children within those 

agencies. 

(b) Review and revision of policies. If 

the discrepancies described in 

paragraph (a) of this section are 

occurring, the SEA must review and, if 

appropriate, revise (or require the 

affected State agency or LEA to revise) 

its policies, procedures, and practices 

relating to the development and 

implementation of IEPs, the use of 

positive behavioral interventions and 

supports, and procedural safeguards, to 

ensure that these policies, procedures, 

and practices comply with the Act. 


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(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 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 § 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 § 300.704 to meet State priorities 

based on input from LEAs. 

(b) If a State’s plans for use of its 

funds under § 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)) 

§ 300.172 Access to instructional 

materials. 

(a) General. The State must—

(1) Adopt the National Instructional 

Materials Accessibility Standard 

(NIMAS), published as appendix C to 

part 300, for the purposes of providing 

instructional materials to blind persons 

or other persons with print disabilities, 

in a timely manner after publication of 

the NIMAS in the Federal Register on 

July 19, 2006 (71 FR 41084); and 

(2) Establish a State definition of 

‘‘timely manner’’ for purposes of 

paragraphs (b)(2) and (b)(3) of this 

section if the State is not coordinating 

with the National Instructional 

Materials Access Center (NIMAC) or 

(b)(3) and (c)(2) of this section if the 

State is coordinating with the NIMAC. 

(b) Rights and responsibilities of SEA. 

(1) Nothing in this section shall be 

construed to require any SEA to 

coordinate with the NIMAC. 

(2) If an SEA chooses not to 

coordinate with the NIMAC, the SEA 

must provide an assurance to the 

Secretary that it will provide 

instructional materials to blind persons 

or other persons with print disabilities 

in a timely manner. 

(3) Nothing in this section relieves an 

SEA of its responsibility to ensure that 

children with disabilities who need 

instructional materials in accessible 

formats, but are not included under the 

definition of blind or other persons with 

print disabilities in § 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 

§ 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)) 

§ 300.173 Overidentification and 

disproportionality. 

The State must have in effect, 

consistent with the purposes of this part 

and with section 618(d) of the Act, 

policies and procedures designed to 

prevent the inappropriate 

overidentification or disproportionate 

representation by race and ethnicity of 

children as children with disabilities, 

including children with disabilities 

with a particular impairment described 

in § 300.8. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 300.174 Prohibition on mandatory 

medication. 

(a) General. The SEA must prohibit 

State and LEA personnel from requiring 

parents to obtain a prescription for 

substances identified under schedules I, 

II, III, IV, or V in section 202(c) of the 

Controlled Substances Act (21 U.S.C. 

812(c)) for a child as a condition of 

attending school, receiving an 

evaluation under §§ 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 

§ 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)) 

§ 300.175 SEA as provider of FAPE or 

direct services. 

If the SEA provides FAPE to children 

with disabilities, or provides direct 

services to these children, the agency—

(a) Must comply with any additional 

requirements of §§ 300.201 and 300.202 

and §§ 300.206 through 300.226 as if the 

agency were an LEA; and 


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(b) May use amounts that are 

otherwise available to the agency under 

Part B of the Act to serve those children 

without regard to § 300.202(b) (relating 

to excess costs). 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 300.176 Exception for prior State plans. 

(a) General. If a State has on file with 

the Secretary policies and procedures 

approved by the Secretary that 

demonstrate that the State meets any 

requirement of § 300.100, including any 

policies and procedures filed under Part 

B of the Act as in effect before, 

December 3, 2004, the Secretary 

considers the State to have met the 

requirement for purposes of receiving a 

grant under Part B of the Act. 

(b) Modifications made by a State. (1) 

Subject to paragraph (b)(2) of this 

section, policies and procedures 

submitted by a State in accordance with 

this subpart remain in effect until the 

State submits to the Secretary the 

modifications that the State determines 

necessary. 

(2) The provisions of this subpart 

apply to a modification to an 

application to the same extent and in 

the same manner that they apply to the 

original plan. 

(c) Modifications required by the 

Secretary. The Secretary may require a 

State to modify its policies and 

procedures, but only to the extent 

necessary to ensure the State’s 

compliance with this part, if—

(1) After December 3, 2004, the 

provisions of the Act or the regulations 

in this part are amended; 

(2) There is a new interpretation of 

this Act by a Federal court or a State’s 

highest court; or 

(3) There is an official finding of 

noncompliance with Federal law or 

regulations. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 300.177 States’ sovereign immunity. 

(a) General. A State that accepts funds 

under this part waives its immunity 

under the 11th amendment to the 

Constitution of the United States from 

suit in Federal court for a violation of 

this part. 

(b) Remedies. In a suit against a State 

for a violation of this part, remedies 

(including remedies both at law and in 

equity) are available for such a violation 

in the suit against a public entity other 

than a State. 

(c) Effective date. Paragraphs (a) and 

(b) of this section apply with respect to 

violations that occur in whole or part 

after the date of enactment of the 

Education of the Handicapped Act 

Amendments of 1990. 

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

Department Procedures 

§ 300.178 Determination by the Secretary 

that a State is eligible to receive a grant. 

If the Secretary determines that a 

State is eligible to receive a grant under 

Part B of the Act, the Secretary notifies 

the State of that determination. 

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

§ 300.179 Notice and hearing before 

determining that a State is not eligible to 

receive a grant. 

(a) General. (1) The Secretary does not 

make a final determination that a State 

is not eligible to receive a grant under 

Part B of the Act until providing the 

State—

(i) With reasonable notice; and 

(ii) With an opportunity for a hearing. 

(2) In implementing paragraph 

(a)(1)(i) of this section, the Secretary 

sends a written notice to the SEA by 

certified mail with return receipt 

requested. 

(b) Content of notice. In the written 

notice described in paragraph (a)(2) of 

this section, the Secretary—

(1) States the basis on which the 

Secretary proposes to make a final 

determination that the State is not 

eligible; 

(2) May describe possible options for 

resolving the issues; 

(3) Advises the SEA that it may 

request a hearing and that the request 

for a hearing must be made not later 

than 30 days after it receives the notice 

of the proposed final determination that 

the State is not eligible; and 

(4) Provides the SEA with information 

about the hearing procedures that will 

be followed. 

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

§ 300.180 Hearing official or panel. 

(a) If the SEA requests a hearing, the 

Secretary designates one or more 

individuals, either from the Department 

or elsewhere, not responsible for or 

connected with the administration of 

this program, to conduct a hearing. 

(b) If more than one individual is 

designated, the Secretary designates one 

of those individuals as the Chief 

Hearing Official of the Hearing Panel. If 

one individual is designated, that 

individual is the Hearing Official. 

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

§ 300.181 Hearing procedures. 

(a) As used in §§ 300.179 through 

300.184 the term party or parties means 

the following: 

(1) An SEA that requests a hearing 

regarding the proposed disapproval of 

the State’s eligibility under this part. 

(2) The Department official who 

administers the program of financial 

assistance under this part. 

(3) A person, group or agency with an 

interest in and having relevant 

information about the case that has 

applied for and been granted leave to 

intervene by the Hearing Official or 

Hearing Panel. 

(b) Within 15 days after receiving a 

request for a hearing, the Secretary 

designates a Hearing Official or Hearing 

Panel and notifies the parties. 

(c) The Hearing Official or Hearing 

Panel may regulate the course of 

proceedings and the conduct of the 

parties during the proceedings. The 

Hearing Official or Hearing Panel takes 

all steps necessary to conduct a fair and 

impartial proceeding, to avoid delay, 

and to maintain order, including the 

following: 

(1) The Hearing Official or Hearing 

Panel may hold conferences or other 

types of appropriate proceedings to 

clarify, simplify, or define the issues or 

to consider other matters that may aid 

in the disposition of the case. 

(2) The Hearing Official or Hearing 

Panel may schedule a prehearing 

conference with the Hearing Official or 

Hearing Panel and the parties. 

(3) Any party may request the Hearing 

Official or Hearing Panel to schedule a 

prehearing or other conference. The 

Hearing Official or Hearing Panel 

decides whether a conference is 

necessary and notifies all parties. 

(4) At a prehearing or other 

conference, the Hearing Official or 

Hearing Panel and the parties may 

consider subjects such as—

(i) Narrowing and clarifying issues; 

(ii) Assisting the parties in reaching 

agreements and stipulations; 

(iii) Clarifying the positions of the 

parties; 

(iv) Determining whether an 

evidentiary hearing or oral argument 

should be held; and 

(v) Setting dates for—

(A) The exchange of written 

documents; 

(B) The receipt of comments from the 

parties on the need for oral argument or 

evidentiary hearing; 

(C) Further proceedings before the 

Hearing Official or Hearing Panel 

(including an evidentiary hearing or oral 

argument, if either is scheduled); 

(D) Requesting the names of witnesses 

each party wishes to present at an 

evidentiary hearing and estimation of 

time for each presentation; or 

(E) Completion of the review and the 

initial decision of the Hearing Official or 

Hearing Panel. 


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(5) A prehearing or other conference 

held under paragraph (b)(4) of this 

section may be conducted by telephone 

conference call. 

(6) At a prehearing or other 

conference, the parties must be prepared 

to discuss the subjects listed in 

paragraph (b)(4) of this section. 

(7) Following a prehearing or other 

conference the Hearing Official or 

Hearing Panel may issue a written 

statement describing the issues raised, 

the action taken, and the stipulations 

and agreements reached by the parties. 

(d) The Hearing Official or Hearing 

Panel may require parties to state their 

positions and to provide all or part of 

the evidence in writing. 

(e) The Hearing Official or Hearing 

Panel may require parties to present 

testimony through affidavits and to 

conduct cross-examination through 

interrogatories. 

(f) The Hearing Official or Hearing 

Panel may direct the parties to exchange 

relevant documents or information and 

lists of witnesses, and to send copies to 

the Hearing Official or Panel. 

(g) The Hearing Official or Hearing 

Panel may receive, rule on, exclude, or 

limit evidence at any stage of the 

proceedings. 

(h) The Hearing Official or Hearing 

Panel may rule on motions and other 

issues at any stage of the proceedings. 

(i) The Hearing Official or Hearing 

Panel may examine witnesses. 

(j) The Hearing Official or Hearing 

Panel may set reasonable time limits for 

submission of written documents. 

(k) The Hearing Official or Hearing 

Panel may refuse to consider documents 

or other submissions if they are not 

submitted in a timely manner unless 

good cause is shown. 

(l) The Hearing Official or Hearing 

Panel may interpret applicable statutes 

and regulations but may not waive them 

or rule on their validity. 

(m)(1) The parties must present their 

positions through briefs and the 

submission of other documents and may 

request an oral argument or evidentiary 

hearing. The Hearing Official or Hearing 

Panel shall determine whether an oral 

argument or an evidentiary hearing is 

needed to clarify the positions of the 

parties. 

(2) The Hearing Official or Hearing 

Panel gives each party an opportunity to 

be represented by counsel. 

(n) If the Hearing Official or Hearing 

Panel determines that an evidentiary 

hearing would materially assist the 

resolution of the matter, the Hearing 

Official or Hearing Panel gives each 

party, in addition to the opportunity to 

be represented by counsel—

(1) An opportunity to present 

witnesses on the party’s behalf; and 

(2) An opportunity to cross-examine 

witnesses either orally or with written 

questions. 

(o) The Hearing Official or Hearing 

Panel accepts any evidence that it finds 

is relevant and material to the 

proceedings and is not unduly 

repetitious. 

(p)(1) The Hearing Official or Hearing 

Panel—

(i) Arranges for the preparation of a 

transcript of each hearing; 

(ii) Retains the original transcript as 

part of the record of the hearing; and 

(iii) Provides one copy of the 

transcript to each party. 

(2) Additional copies of the transcript 

are available on request and with 

payment of the reproduction fee. 

(q) Each party must file with the 

Hearing Official or Hearing Panel all 

written motions, briefs, and other 

documents and must at the same time 

provide a copy to the other parties to the 

proceedings. 

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

§ 300.182 Initial decision; final decision. 

(a) The Hearing Official or Hearing 

Panel prepares an initial written 

decision that addresses each of the 

points in the notice sent by the 

Secretary to the SEA under § 300.179 

including any amendments to or further 

clarifications of the issues, under 

§ 300.181(c)(7). 

(b) The initial decision of a Hearing 

Panel is made by a majority of Panel 

members. 

(c) The Hearing Official or Hearing 

Panel mails, by certified mail with 

return receipt requested, a copy of the 

initial decision to each party (or to the 

party’s counsel) and to the Secretary, 

with a notice stating that each party has 

an opportunity to submit written 

comments regarding the decision to the 

Secretary. 

(d) Each party may file comments and 

recommendations on the initial decision 

with the Hearing Official or Hearing 

Panel within 15 days of the date the 

party receives the Panel’s decision. 

(e) The Hearing Official or Hearing 

Panel sends a copy of a party’s initial 

comments and recommendations to the 

other parties by certified mail with 

return receipt requested. Each party may 

file responsive comments and 

recommendations with the Hearing 

Official or Hearing Panel within seven 

days of the date the party receives the 

initial comments and recommendations. 

(f) The Hearing Official or Hearing 

Panel forwards the parties’ initial and 

responsive comments on the initial 

decision to the Secretary who reviews 

the initial decision and issues a final 

decision. 

(g) The initial decision of the Hearing 

Official or Hearing Panel becomes the 

final decision of the Secretary unless, 

within 25 days after the end of the time 

for receipt of written comments and 

recommendations, the Secretary informs 

the Hearing Official or Hearing Panel 

and the parties to a hearing in writing 

that the decision is being further 

reviewed for possible modification. 

(h) The Secretary rejects or modifies 

the initial decision of the Hearing 

Official or Hearing Panel if the Secretary 

finds that it is clearly erroneous. 

(i) The Secretary conducts the review 

based on the initial decision, the written 

record, the transcript of the Hearing 

Official’s or Hearing Panel’s 

proceedings, and written comments. 

(j) The Secretary may remand the 

matter to the Hearing Official or Hearing 

Panel for further proceedings. 

(k) Unless the Secretary remands the 

matter as provided in paragraph (j) of 

this section, the Secretary issues the 

final decision, with any necessary 

modifications, within 30 days after 

notifying the Hearing Official or Hearing 

Panel that the initial decision is being 

further reviewed. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 300.183 Filing requirements. 

(a) Any written submission by a party 

under §§ 300.179 through 300.184 must 

be filed by hand delivery, by mail, or by 

facsimile transmission. The Secretary 

discourages the use of facsimile 

transmission for documents longer than 

five pages. 

(b) The filing date under paragraph (a) 

of this section is the date the document 

is—

(1) Hand-delivered; 

(2) Mailed; or 

(3) Sent by facsimile transmission. 

(c) A party filing by facsimile 

transmission is responsible for 

confirming that a complete and legible 

copy of the document was received by 

the Department. 

(d) If a document is filed by facsimile 

transmission, the Secretary, the Hearing 

Official, or the Hearing Panel, as 

applicable, may require the filing of a 

follow-up hard copy by hand delivery or 

by mail within a reasonable period of 

time. 

(e) If agreed upon by the parties, 

service of a document may be made 

upon the other party by facsimile 

transmission. 

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


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§ 300.184 Judicial review. 

If a State is dissatisfied with the 

Secretary’s final decision with respect to 

the eligibility of the State under section 

612 of the Act, the State may, not later 

than 60 days after notice of that 

decision, file with the United States 

Court of Appeals for the circuit in 

which that State is located a petition for 

review of that decision. A copy of the 

petition must be transmitted by the 

clerk of the court to the Secretary. The 

Secretary then files in the court the 

record of the proceedings upon which 

the Secretary’s decision was based, as 

provided in 28 U.S.C. 2112. 

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

§ 300.185 [Reserved] 

§ 300.186 Assistance under other Federal 

programs. 

Part B of the Act may not be 

construed to permit a State to reduce 

medical and other assistance available, 

or to alter eligibility, under titles V and 

XIX of the Social Security Act with 

respect to the provision of FAPE for 

children with disabilities in the State. 

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

By-pass for Children in Private Schools 

§ 300.190 By-pass—general. 

(a) If, on December 2, 1983, the date 

of enactment of the Education of the 

Handicapped Act Amendments of 1983, 

an SEA was prohibited by law from 

providing for the equitable participation 

in special programs of children with 

disabilities enrolled in private 

elementary schools and secondary 

schools as required by section 

612(a)(10)(A) of the Act, or if the 

Secretary determines that an SEA, LEA, 

or other public agency has substantially 

failed or is unwilling to provide for such 

equitable participation then the 

Secretary shall, notwithstanding such 

provision of law, arrange for the 

provision of services to these children 

through arrangements which shall be 

subject to the requirements of section 

612(a)(10)(A) of the Act. 

(b) The Secretary waives the 

requirement of section 612(a)(10)(A) of 

the Act and of §§ 300.131 through 

300.144 if the Secretary implements a 

by-pass. 

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

§ 300.191 Provisions for services under a 

by-pass. 

(a) Before implementing a by-pass, the 

Secretary consults with appropriate 

public and private school officials, 

including SEA officials, in the affected 

State, and as appropriate, LEA or other 

public agency officials to consider 

matters such as—

(1) Any prohibition imposed by State 

law that results in the need for a bypass; and 

(2) The scope and nature of the 

services required by private school 

children with disabilities in the State, 

and the number of children to be served 

under the by-pass. 

(b) After determining that a by-pass is 

required, the Secretary arranges for the 

provision of services to private school 

children with disabilities in the State, 

LEA or other public agency in a manner 

consistent with the requirements of 

section 612(a)(10)(A) of the Act and 

§§ 300.131 through 300.144 by 

providing services through one or more 

agreements with appropriate parties. 

(c) For any fiscal year that a by-pass 

is implemented, the Secretary 

determines the maximum amount to be 

paid to the providers of services by 

multiplying—

(1) A per child amount determined by 

dividing the total amount received by 

the State under Part B of the Act for the 

fiscal year by the number of children 

with disabilities served in the prior year 

as reported to the Secretary under 

section 618 of the Act; by 

(2) The number of private school 

children with disabilities (as defined in 

§§ 300.8(a) and 300.130) in the State, 

LEA or other public agency, as 

determined by the Secretary on the basis 

of the most recent satisfactory data 

available, which may include an 

estimate of the number of those children 

with disabilities. 

(d) The Secretary deducts from the 

State’s allocation under Part B of the Act 

the amount the Secretary determines is 

necessary to implement a by-pass and 

pays that amount to the provider of 

services. The Secretary may withhold 

this amount from the State’s allocation 

pending final resolution of any 

investigation or complaint that could 

result in a determination that a by-pass 

must be implemented. 

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

§ 300.192 Notice of intent to implement a 

by-pass. 

(a) Before taking any final action to 

implement a by-pass, the Secretary 

provides the SEA and, as appropriate, 

LEA or other public agency with written 

notice. 

(b) In the written notice, the 

Secretary—

(1) States the reasons for the proposed 

by-pass in sufficient detail to allow the 

SEA and, as appropriate, LEA or other 

public agency to respond; and 

(2) Advises the SEA and, as 

appropriate, LEA or other public agency 

that it has a specific period of time (at 

least 45 days) from receipt of the written 

notice to submit written objections to 

the proposed by-pass and that it may 

request in writing the opportunity for a 

hearing to show cause why a by-pass 

should not be implemented. 

(c) The Secretary sends the notice to 

the SEA and, as appropriate, LEA or 

other public agency by certified mail 

with return receipt requested. 

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

§ 300.193 Request to show cause. 

An SEA, LEA or other public agency 

in receipt of a notice under § 300.192 

that seeks an opportunity to show cause 

why a by-pass should not be 

implemented must submit a written 

request for a show cause hearing to the 

Secretary, within the specified time 

period in the written notice in 

§ 300.192(b)(2). 

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

§ 300.194 Show cause hearing. 

(a) If a show cause hearing is 

requested, the Secretary—

(1) Notifies the SEA and affected LEA 

or other public agency, and other 

appropriate public and private school 

officials of the time and place for the 

hearing; 

(2) Designates a person to conduct the 

show cause hearing. The designee must 

not have had any responsibility for the 

matter brought for a hearing; and 

(3) Notifies the SEA, LEA or other 

public agency, and representatives of 

private schools that they may be 

represented by legal counsel and submit 

oral or written evidence and arguments 

at the hearing. 

(b) At the show cause hearing, the 

designee considers matters such as—

(1) The necessity for implementing a 

by-pass; 

(2) Possible factual errors in the 

written notice of intent to implement a 

by-pass; and 

(3) The objections raised by public 

and private school representatives. 

(c) The designee may regulate the 

course of the proceedings and the 

conduct of parties during the pendency 

of the proceedings. The designee takes 

all steps necessary to conduct a fair and 

impartial proceeding, to avoid delay, 

and to maintain order. 

(d) The designee has no authority to 

require or conduct discovery. 

(e) The designee may interpret 

applicable statutes and regulations, but 

may not waive them or rule on their 

validity. 

(f) The designee arranges for the 

preparation, retention, and, if 

appropriate, dissemination of the record 

of the hearing. 


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(g) Within 10 days after the hearing, 

the designee—

(1) Indicates that a decision will be 

issued on the basis of the existing 

record; or 

(2) Requests further information from 

the SEA, LEA, other public agency, 

representatives of private schools or 

Department officials. 

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

§ 300.195 Decision. 

(a) The designee who conducts the 

show cause hearing—

(1) Within 120 days after the record of 

a show cause hearing is closed, issues 

a written decision that includes a 

statement of findings; and 

(2) Submits a copy of the decision to 

the Secretary and sends a copy to each 

party by certified mail with return 

receipt requested. 

(b) Each party may submit comments 

and recommendations on the designee’s 

decision to the Secretary within 30 days 

of the date the party receives the 

designee’s decision. 

(c) The Secretary adopts, reverses, or 

modifies the designee’s decision and 

notifies all parties to the show cause 

hearing of the Secretary’s final action. 

That notice is sent by certified mail with 

return receipt requested. 

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

§ 300.196 Filing requirements. 

(a) Any written submission under 

§ 300.194 must be filed by handdelivery, by mail, or by facsimile 

transmission. The Secretary discourages 

the use of facsimile transmission for 

documents longer than five pages. 

(b) The filing date under paragraph (a) 

of this section is the date the document 

is—

(1) Hand-delivered; 

(2) Mailed; or 

(3) Sent by facsimile transmission. 

(c) A party filing by facsimile 

transmission is responsible for 

confirming that a complete and legible 

copy of the document was received by 

the Department. 

(d) If a document is filed by facsimile 

transmission, the Secretary or the 

hearing officer, as applicable, may 

require the filing of a follow-up hard 

copy by hand-delivery or by mail within 

a reasonable period of time. 

(e) If agreed upon by the parties, 

service of a document may be made 

upon the other party by facsimile 

transmission. 

(f) A party must show a proof of 

mailing to establish the filing date under 

paragraph (b)(2) of this section as 

provided in 34 CFR 75.102(d). 

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

§ 300.197 Judicial review. 

If dissatisfied with the Secretary’s 

final action, the SEA may, within 60 

days after notice of that action, file a 

petition for review with the United 

States Court of Appeals for the circuit in 

which the State is located. The 

procedures for judicial review are 

described in section 612(f)(3) (B) 

through (D) of the Act. 

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

§ 300.198 Continuation of a by-pass. 

The Secretary continues a by-pass 

until the Secretary determines that the 

SEA, LEA or other public agency will 

meet the requirements for providing 

services to private school children. 

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

State Administration 

§ 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 Stateimposed requirement that is not 

required by Part B of the Act and 

Federal regulations; and 

(3) Minimize the number of rules, 

regulations, and policies to which the 

LEAs and schools located in the State 

are subject under Part B of the Act. 

(b) Support and facilitation. State 

rules, regulations, and policies under 

Part B of the Act must support and 

facilitate LEA and school-level system 

improvement designed to enable 

children with disabilities to meet the 

challenging State student academic 

achievement standards. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

(Authority: 20 U.S.C. 1407) 

Subpart C—Local Educational Agency 

Eligibility 

§ 300.200 Condition of assistance. 

An LEA is eligible for assistance 

under Part B of the Act for a fiscal year 

if the agency submits a plan that 

provides assurances to the SEA that the 

LEA meets each of the conditions in 

§§ 300.201 through 300.213. 

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

§ 300.201 Consistency with State policies. 

The LEA, in providing for the 

education of children with disabilities 

within its jurisdiction, must have in 

effect policies, procedures, and 

programs that are consistent with the 

State policies and procedures 

established under §§ 300.101 through 

300.163, and §§ 300.165 through 

300.174. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.202 Use of amounts. 

(a) General. Amounts provided to the 

LEA under Part B of the Act—

(1) Must be expended in accordance 

with the applicable provisions of this 

part; 

(2) Must be used only to pay the 

excess costs of providing special 

education and related services to 

children with disabilities, consistent 

with paragraph (b) of this section; and 

(3) Must be used to supplement State, 

local, and other Federal funds and not 

to supplant those funds. 

(b) Excess cost requirement—(1) 

General. (i) The excess cost requirement 

prevents an LEA from using funds 

provided under Part B of the Act to pay 

for all of the costs directly attributable 

to the education of a child with a 

disability, subject to paragraph (b)(1)(ii) 

of this section. 

(ii) The excess cost requirement does 

not prevent an LEA from using Part B 

funds to pay for all of the costs directly 

attributable to the education of a child 

with a disability in any of the ages 3, 4, 

5, 18, 19, 20, or 21, if no local or State 

funds are available for nondisabled 

children of these ages. However, the 

LEA must comply with the 

nonsupplanting and other requirements 

of this part in providing the education 

and services for these children. 

(2)(i) An LEA meets the excess cost 

requirement if it has spent at least a 

minimum average amount for the 

education of its children with 

disabilities before funds under Part B of 

the Act are used. 

(ii) The amount described in 

paragraph (b)(2)(i) of this section is 

determined in accordance with the 

definition of excess costs in § 300.16. 

That amount may not include capital 

outlay or debt service. 

(3) If two or more LEAs jointly 

establish eligibility in accordance with 

§ 300.223, the minimum average amount 

is the average of the combined 

minimum average amounts determined 

in accordance with the definition of 

excess costs in § 300.16 in those 

agencies for elementary or secondary 

school students, as the case may be. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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


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§ 300.203 Maintenance of effort. 

(a) General. Except as provided in 

§§ 300.204 and 300.205, funds provided 

to an LEA under Part B of the Act must 

not be used to reduce the level of 

expenditures for the education of 

children with disabilities made by the 

LEA from local funds below the level of 

those expenditures for the preceding 

fiscal year. 

(b) Standard. (1) Except as provided 

in paragraph (b)(2) of this section, the 

SEA must determine that an LEA 

complies with paragraph (a) of this 

section for purposes of establishing the 

LEA’s eligibility for an award for a fiscal 

year if the LEA budgets, for the 

education of children with disabilities, 

at least the same total or per capita 

amount from either of the following 

sources as the LEA spent for that 

purpose from the same source for the 

most recent prior year for which 

information is available: 

(i) Local funds only. 

(ii) The combination of State and local 

funds. 

(2) An LEA that relies on paragraph 

(b)(1)(i) of this section for any fiscal year 

must ensure that the amount of local 

funds it budgets for the education of 

children with disabilities in that year is 

at least the same, either in total or per 

capita, as the amount it spent for that 

purpose in the most recent fiscal year 

for which information is available and 

the standard in paragraph (b)(1)(i) of 

this section was used to establish its 

compliance with this section. 

(3) The SEA may not consider any 

expenditures made from funds provided 

by the Federal Government for which 

the SEA is required to account to the 

Federal Government or for which the 

LEA is required to account to the 

Federal Government directly or through 

the SEA in determining an LEA’s 

compliance with the requirement in 

paragraph (a) of this section. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.204 Exception to maintenance of 

effort. 

Notwithstanding the restriction in 

§ 300.203(a), an LEA may reduce the 

level of expenditures by the LEA under 

Part B of the Act below the level of 

those expenditures for the preceding 

fiscal year if the reduction is attributable 

to any of the following: 

(a) The voluntary departure, by 

retirement or otherwise, or departure for 

just cause, of special education or 

related services personnel. 

(b) A decrease in the enrollment of 

children with disabilities. 

(c) The termination of the obligation 

of the agency, consistent with this part, 

to provide a program of special 

education to a particular child with a 

disability that is an exceptionally costly 

program, as determined by the SEA, 

because the child—

(1) Has left the jurisdiction of the 

agency; 

(2) Has reached the age at which the 

obligation of the agency to provide 

FAPE to the child has terminated; or 

(3) No longer needs the program of 

special education. 

(d) The termination of costly 

expenditures for long-term purchases, 

such as the acquisition of equipment or 

the construction of school facilities. 

(e) The assumption of cost by the high 

cost fund operated by the SEA under 

§ 300.704(c). 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.205 Adjustment to local fiscal efforts 

in certain fiscal years. 

(a) Amounts in excess. 

Notwithstanding § 300.202(a)(2) and (b) 

and § 300.203(a), and except as 

provided in paragraph (d) of this section 

and § 300.230(e)(2), for any fiscal year 

for which the allocation received by an 

LEA under § 300.705 exceeds the 

amount the LEA received for the 

previous fiscal year, the LEA may 

reduce the level of expenditures 

otherwise required by § 300.203(a) by 

not more than 50 percent of the amount 

of that excess. 

(b) Use of amounts to carry out 

activities under ESEA. If an LEA 

exercises the authority under paragraph 

(a) of this section, the LEA must use an 

amount of local funds equal to the 

reduction in expenditures under 

paragraph (a) of this section to carry out 

activities that could be supported with 

funds under the ESEA regardless of 

whether the LEA is using funds under 

the ESEA for those activities. 

(c) State prohibition. Notwithstanding 

paragraph (a) of this section, if an SEA 

determines that an LEA is unable to 

establish and maintain programs of 

FAPE that meet the requirements of 

section 613(a) of the Act and this part 

or the SEA has taken action against the 

LEA under section 616 of the Act and 

subpart F of these regulations, the SEA 

must prohibit the LEA from reducing 

the level of expenditures under 

paragraph (a) of this section for that 

fiscal year. 

(d) Special rule. The amount of funds 

expended by an LEA for early 

intervening services under § 300.226 

shall count toward the maximum 

amount of expenditures that the LEA 

may reduce under paragraph (a) of this 

section. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.206 Schoolwide programs under title 

I of the ESEA. 

(a) General. Notwithstanding the 

provisions of §§ 300.202 and 300.203 or 

any other provision of Part B of the Act, 

an LEA may use funds received under 

Part B of the Act for any fiscal year to 

carry out a schoolwide program under 

section 1114 of the ESEA, except that 

the amount used in any schoolwide 

program may not exceed—

(1)(i) The amount received by the LEA 

under Part B of the Act for that fiscal 

year; divided by 

(ii) The number of children with 

disabilities in the jurisdiction of the 

LEA; and multiplied by 

(2) The number of children with 

disabilities participating in the 

schoolwide program. 

(b) Funding conditions. The funds 

described in paragraph (a) of this 

section are subject to the following 

conditions: 

(1) The funds must be considered as 

Federal Part B funds for purposes of the 

calculations required by § 300.202(a)(2) 

and (a)(3). 

(2) The funds may be used without 

regard to the requirements of 

§ 300.202(a)(1). 

(c) Meeting other Part B requirements. 

Except as provided in paragraph (b) of 

this section, all other requirements of 

Part B of the Act must be met by an LEA 

using Part B funds in accordance with 

paragraph (a) of this section, including 

ensuring that children with disabilities 

in schoolwide program schools—

(1) Receive services in accordance 

with a properly developed IEP; and 

(2) Are afforded all of the rights and 

services guaranteed to children with 

disabilities under the Act. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.207 Personnel development. 

The LEA must ensure that all 

personnel necessary to carry out Part B 

of the Act are appropriately and 

adequately prepared, subject to the 

requirements of § 300.156 (related to 

personnel qualifications) and section 

2122 of the ESEA. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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


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§ 300.208 Permissive use of funds. 

(a) Uses. Notwithstanding §§ 300.202, 

300.203(a), and 300.162(b), funds 

provided to an LEA under Part B of the 

Act may be used for the following 

activities: 

(1) Services and aids that also benefit 

nondisabled children. For the costs of 

special education and related services, 

and supplementary aids and services, 

provided in a regular class or other 

education-related setting to a child with 

a disability in accordance with the IEP 

of the child, even if one or more 

nondisabled children benefit from these 

services. 

(2) Early intervening services. To 

develop and implement coordinated, 

early intervening educational services in 

accordance with § 300.226. 

(3) High cost special education and 

related services. To establish and 

implement cost or risk sharing funds, 

consortia, or cooperatives for the LEA 

itself, or for LEAs working in a 

consortium of which the LEA is a part, 

to pay for high cost special education 

and related services. 

(b) Administrative case management. 

An LEA may use funds received under 

Part B of the Act to purchase 

appropriate technology for 

recordkeeping, data collection, and 

related case management activities of 

teachers and related services personnel 

providing services described in the IEP 

of children with disabilities, that is 

needed for the implementation of those 

case management activities. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.209 Treatment of charter schools 

and their students. 

(a) Rights of children with disabilities. 

Children with disabilities who attend 

public charter schools and their parents 

retain all rights under this part. 

(b) Charter schools that are public 

schools of the LEA. (1) In carrying out 

Part B of the Act and these regulations 

with respect to charter schools that are 

public schools of the LEA, the LEA 

must—

(i) Serve children with disabilities 

attending those charter schools in the 

same manner as the LEA serves children 

with disabilities in its other schools, 

including providing supplementary and 

related services on site at the charter 

school to the same extent to which the 

LEA has a policy or practice of 

providing such services on the site to its 

other public schools; and 

(ii) Provide funds under Part B of the 

Act to those charter schools—

(A) On the same basis as the LEA 

provides funds to the LEA’s other public 

schools, including proportional 

distribution based on relative 

enrollment of children with disabilities; 

and 

(B) At the same time as the LEA 

distributes other Federal funds to the 

LEA’s other public schools, consistent 

with the State’s charter school law. 

(2) If the public charter school is a 

school of an LEA that receives funding 

under § 300.705 and includes other 

public schools—

(i) The LEA is responsible for 

ensuring that the requirements of this 

part are met, unless State law assigns 

that responsibility to some other entity; 

and 

(ii) The LEA must meet the 

requirements of paragraph (b)(1) of this 

section. 

(c) Public charter schools that are 

LEAs. If the public charter school is an 

LEA, consistent with § 300.28, that 

receives funding under § 300.705, that 

charter school is responsible for 

ensuring that the requirements of this 

part are met, unless State law assigns 

that responsibility to some other entity. 

(d) Public charter schools that are not 

an LEA or a school that is part of an 

LEA. (1) If the public charter school is 

not an LEA receiving funding under 

§ 300.705, or a school that is part of an 

LEA receiving funding under § 300.705, 

the SEA is responsible for ensuring that 

the requirements of this part are met. 

(2) Paragraph (d)(1) of this section 

does not preclude a State from assigning 

initial responsibility for ensuring the 

requirements of this part are met to 

another entity. However, the SEA must 

maintain the ultimate responsibility for 

ensuring compliance with this part, 

consistent with § 300.149. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.210 Purchase of instructional 

materials. 

(a) General. Not later than December 

3, 2006, an LEA that chooses to 

coordinate with the National 

Instructional Materials Access Center 

(NIMAC), when purchasing print 

instructional materials, must acquire 

those instructional materials in the same 

manner, and subject to the same 

conditions as an SEA under § 300.172. 

(b) Rights of LEA. (1) Nothing in this 

section shall be construed to require an 

LEA to coordinate with the NIMAC. 

(2) If an LEA chooses not to 

coordinate with the NIMAC, the LEA 

must provide an assurance to the SEA 

that the LEA will provide instructional 

materials to blind persons or other 

persons with print disabilities in a 

timely manner. 

(3) Nothing in this section relieves an 

LEA of its responsibility to ensure that 

children with disabilities who need 

instructional materials in accessible 

formats but are not included under the 

definition of blind or other persons with 

print disabilities in § 300.172(e)(1)(i) or 

who need materials that cannot be 

produced from NIMAS files, receive 

those instructional materials in a timely 

manner. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.211 Information for SEA. 

The LEA must provide the SEA with 

information necessary to enable the SEA 

to carry out its duties under Part B of 

the Act, including, with respect to 

§§ 300.157 and 300.160, information 

relating to the performance of children 

with disabilities participating in 

programs carried out under Part B of the 

Act. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 0.212 Public information. 

The LEA must make available to 

parents of children with disabilities and 

to the general public all documents 

relating to the eligibility of the agency 

under Part B of the Act. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.213 Records regarding migratory 

children with disabilities. 

The LEA must cooperate in the 

Secretary’s efforts under section 1308 of 

the ESEA to ensure the linkage of 

records pertaining to migratory children 

with disabilities for the purpose of 

electronically exchanging, among the 

States, health and educational 

information regarding those children. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§§ 300.214–300.219 [Reserved] 

§ 300.220 Exception for prior local plans. 

(a) General. If an LEA or a State 

agency described in § 300.228 has on 

file with the SEA policies and 

procedures that demonstrate that the 

LEA or State agency meets any 

requirement of § 300.200, including any 

policies and procedures filed under Part 

B of the Act as in effect before December 

3, 2004, the SEA must consider the LEA 

or State agency to have met that 

requirement for purposes of receiving 

assistance under Part B of the Act. 


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(b) Modification made by an LEA or 

State agency. Subject to paragraph (c) of 

this section, policies and procedures 

submitted by an LEA or a State agency 

in accordance with this subpart remain 

in effect until the LEA or State agency 

submits to the SEA the modifications 

that the LEA or State agency determines 

are necessary. 

(c) Modifications required by the SEA. 

The SEA may require an LEA or a State 

agency to modify its policies and 

procedures, but only to the extent 

necessary to ensure the LEA’s or State 

agency’s compliance with Part B of the 

Act or State law, if—

(1) After December 3, 2004, the 

effective date of the Individuals with 

Disabilities Education Improvement Act 

of 2004, the applicable provisions of the 

Act (or the regulations developed to 

carry out the Act) are amended; 

(2) There is a new interpretation of an 

applicable provision of the Act by 

Federal or State courts; or 

(3) There is an official finding of 

noncompliance with Federal or State 

law or regulations. 

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

§ 300.221 Notification of LEA or State 

agency in case of ineligibility. 

If the SEA determines that an LEA or 

State agency is not eligible under Part B 

of the Act, then the SEA must—

(a) Notify the LEA or State agency of 

that determination; and 

(b) Provide the LEA or State agency 

with reasonable notice and an 

opportunity for a hearing. 

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

§ 300.222 LEA and State agency 

compliance. 

(a) General. If the SEA, after 

reasonable notice and an opportunity 

for a hearing, finds that an LEA or State 

agency that has been determined to be 

eligible under this subpart is failing to 

comply with any requirement described 

in §§ 300.201 through 300.213, the SEA 

must reduce or must not provide any 

further payments to the LEA or State 

agency until the SEA is satisfied that the 

LEA or State agency is complying with 

that requirement. 

(b) Notice requirement. Any State 

agency or LEA in receipt of a notice 

described in paragraph (a) of this 

section must, by means of public notice, 

take the measures necessary to bring the 

pendency of an action pursuant to this 

section to the attention of the public 

within the jurisdiction of the agency. 

(c) Consideration. In carrying out its 

responsibilities under this section, each 

SEA must consider any decision 

resulting from a hearing held under 

§§ 300.511 through 300.533 that is 

adverse to the LEA or State agency 

involved in the decision. 

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

§ 300.223 Joint establishment of eligibility. 

(a) General. An SEA may require an 

LEA to establish its eligibility jointly 

with another LEA if the SEA determines 

that the LEA will be ineligible under 

this subpart because the agency will not 

be able to establish and maintain 

programs of sufficient size and scope to 

effectively meet the needs of children 

with disabilities. 

(b) Charter school exception. An SEA 

may not require a charter school that is 

an LEA to jointly establish its eligibility 

under paragraph (a) of this section 

unless the charter school is explicitly 

permitted to do so under the State’s 

charter school statute. 

(c) Amount of payments. If an SEA 

requires the joint establishment of 

eligibility under paragraph (a) of this 

section, the total amount of funds made 

available to the affected LEAs must be 

equal to the sum of the payments that 

each LEA would have received under 

§ 300.705 if the agencies were eligible 

for those payments. 

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

§ 300.224 Requirements for establishing 

eligibility. 

(a) Requirements for LEAs in general. 

LEAs that establish joint eligibility 

under this section must—

(1) Adopt policies and procedures 

that are consistent with the State’s 

policies and procedures under 

§§ 300.101 through 300.163, and 

§§ 300.165 through 300.174; and 

(2) Be jointly responsible for 

implementing programs that receive 

assistance under Part B of the Act. 

(b) Requirements for educational 

service agencies in general. If an 

educational service agency is required 

by State law to carry out programs 

under Part B of the Act, the joint 

responsibilities given to LEAs under 

Part B of the Act—

(1) Do not apply to the administration 

and disbursement of any payments 

received by that educational service 

agency; and 

(2) Must be carried out only by that 

educational service agency. 

(c) Additional requirement. 

Notwithstanding any other provision of 

§§ 300.223 through 300.224, an 

educational service agency must 

provide for the education of children 

with disabilities in the least restrictive 

environment, as required by § 300.112. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.225 [Reserved] 

§ 300.226 Early intervening services. 

(a) General. An LEA may not use more 

than 15 percent of the amount the LEA 

receives under Part B of the Act for any 

fiscal year, less any amount reduced by 

the LEA pursuant to § 300.205, if any, in 

combination with other amounts (which 

may include amounts other than 

education funds), to develop and 

implement coordinated, early 

intervening services, which may include 

interagency financing structures, for 

students in kindergarten through grade 

12 (with a particular emphasis on 

students in kindergarten through grade 

three) who are not currently identified 

as needing special education or related 

services, but who need additional 

academic and behavioral support to 

succeed in a general education 

environment. (See Appendix D for 

examples of how § 300.205(d), regarding 

local maintenance of effort, and 

§ 300.226(a) affect one another.) 

(b) Activities. In implementing 

coordinated, early intervening services 

under this section, an LEA may carry 

out activities that include—

(1) Professional development (which 

may be provided by entities other than 

LEAs) for teachers and other school staff 

to enable such personnel to deliver 

scientifically based academic and 

behavioral interventions, including 

scientifically based literacy instruction, 

and, where appropriate, instruction on 

the use of adaptive and instructional 

software; and 

(2) Providing educational and 

behavioral evaluations, services, and 

supports, including scientifically based 

literacy instruction. 

(c) Construction. Nothing in this 

section shall be construed to either limit 

or create a right to FAPE under Part B 

of the Act or to delay appropriate 

evaluation of a child suspected of 

having a disability. 

(d) Reporting. Each LEA that develops 

and maintains coordinated, early 

intervening services under this section 

must annually report to the SEA on—

(1) The number of children served 

under this section who received early 

intervening services; and 

(2) The number of children served 

under this section who received early 

intervening services and subsequently 

receive special education and related 

services under Part B of the Act during 

the preceding two year period. 

(e) Coordination with ESEA. Funds 

made available to carry out this section 

may be used to carry out coordinated, 

early intervening services aligned with 

activities funded by, and carried out 

under the ESEA if those funds are used 


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to supplement, and not supplant, funds 

made available under the ESEA for the 

activities and services assisted under 

this section. 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.227 Direct services by the SEA. 

(a) General. (1) An SEA must use the 

payments that would otherwise have 

been available to an LEA or to a State 

agency to provide special education and 

related services directly to children with 

disabilities residing in the area served 

by that LEA, or for whom that State 

agency is responsible, if the SEA 

determines that the LEA or State 

agency—

(i) Has not provided the information 

needed to establish the eligibility of the 

LEA or State agency, or elected not to 

apply for its Part B allotment, under Part 

B of the Act; 

(ii) Is unable to establish and maintain 

programs of FAPE that meet the 

requirements of this part; 

(iii) Is unable or unwilling to be 

consolidated with one or more LEAs in 

order to establish and maintain the 

programs; or 

(iv) Has one or more children with 

disabilities who can best be served by a 

regional or State program or service 

delivery system designed to meet the 

needs of these children. 

(2) SEA administrative procedures. (i) 

In meeting the requirements in 

paragraph (a)(1) of this section, the SEA 

may provide special education and 

related services directly, by contract, or 

through other arrangements. 

(ii) The excess cost requirements of 

§ 300.202(b) do not apply to the SEA. 

(b) Manner and location of education 

and services. The SEA may provide 

special education and related services 

under paragraph (a) of this section in 

the manner and at the locations 

(including regional or State centers) as 

the SEA considers appropriate. The 

education and services must be 

provided in accordance with this part. 

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

§ 300.228 State agency eligibility. 

Any State agency that desires to 

receive a subgrant for any fiscal year 

under § 300.705 must demonstrate to 

the satisfaction of the SEA that—

(a) All children with disabilities who 

are participating in programs and 

projects funded under Part B of the Act 

receive FAPE, and that those children 

and their parents are provided all the 

rights and procedural safeguards 

described in this part; and 

(b) The agency meets the other 

conditions of this subpart that apply to 

LEAs. 

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

§ 300.229 Disciplinary information. 

(a) The State may require that a public 

agency include in the records of a child 

with a disability a statement of any 

current or previous disciplinary action 

that has been taken against the child 

and transmit the statement to the same 

extent that the disciplinary information 

is included in, and transmitted with, the 

student records of nondisabled children. 

(b) The statement may include a 

description of any behavior engaged in 

by the child that required disciplinary 

action, a description of the disciplinary 

action taken, and any other information 

that is relevant to the safety of the child 

and other individuals involved with the 

child. 

(c) If the State adopts such a policy, 

and the child transfers from one school 

to another, the transmission of any of 

the child’s records must include both 

the child’s current IEP and any 

statement of current or previous 

disciplinary action that has been taken 

against the child. 

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

§ 300.230 SEA flexibility. 

(a) Adjustment to State fiscal effort in 

certain fiscal years. For any fiscal year 

for which the allotment received by a 

State under § 300.703 exceeds the 

amount the State received for the 

previous fiscal year and if the State in 

school year 2003–2004 or any 

subsequent school year pays or 

reimburses all LEAs within the State 

from State revenue 100 percent of the 

non-Federal share of the costs of special 

education and related services, the SEA, 

notwithstanding §§ 300.162 through 

300.163 (related to State-level 

nonsupplanting and maintenance of 

effort), and § 300.175 (related to direct 

services by the SEA) may reduce the 

level of expenditures from State sources 

for the education of children with 

disabilities by not more than 50 percent 

of the amount of such excess. 

(b) Prohibition. Notwithstanding 

paragraph (a) of this section, if the 

Secretary determines that an SEA is 

unable to establish, maintain, or oversee 

programs of FAPE that meet the 

requirements of this part, or that the 

State needs assistance, intervention, or 

substantial intervention under 

§ 300.603, the Secretary prohibits the 

SEA from exercising the authority in 

paragraph (a) of this section. 

(c) Education activities. If an SEA 

exercises the authority under paragraph 

(a) of this section, the agency must use 

funds from State sources, in an amount 

equal to the amount of the reduction 

under paragraph (a) of this section, to 

support activities authorized under the 

ESEA, or to support need-based student 

or teacher higher education programs. 

(d) Report. For each fiscal year for 

which an SEA exercises the authority 

under paragraph (a) of this section, the 

SEA must report to the Secretary—

(1) The amount of expenditures 

reduced pursuant to that paragraph; and 

(2) The activities that were funded 

pursuant to paragraph (c) of this section. 

(e) Limitation. (1) Notwithstanding 

paragraph (a) of this section, an SEA 

may not reduce the level of 

expenditures described in paragraph (a) 

of this section if any LEA in the State 

would, as a result of such reduction, 

receive less than 100 percent of the 

amount necessary to ensure that all 

children with disabilities served by the 

LEA receive FAPE from the combination 

of Federal funds received under Part B 

of the Act and State funds received from 

the SEA. 

(2) If an SEA exercises the authority 

under paragraph (a) of this section, 

LEAs in the State may not reduce local 

effort under § 300.205 by more than the 

reduction in the State funds they 

receive. 

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

Subpart D—Evaluations, Eligibility 

Determinations, Individualized 

Education Programs, and Educational 

Placements 

Parental Consent 

§ 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 § 300.8 must, after providing 

notice consistent with §§ 300.503 and 

300.504, obtain informed consent, 

consistent with § 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 


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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 § 300.506 

or the due process procedures under 

§§ 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 § 300.111 and 

§§ 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 § 300.506 or the due process 

procedures under §§ 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 

§§ 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 

§ 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 § 300.111 

and §§ 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 §§ 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 

§ 300.322(d). 

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

1414(c)) 

Evaluations and Reevaluations 

§ 300.301 Initial evaluations. 

(a) General. Each public agency must 

conduct a full and individual initial 

evaluation, in accordance with 

§§ 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 § 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 § 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 § 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 


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parent and subsequent public agency 

agree to a specific time when the 

evaluation will be completed. 

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

§ 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)) 

§ 300.303 Reevaluations. 

(a) General. A public agency must 

ensure that a reevaluation of each child 

with a disability is conducted in 

accordance with §§ 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)) 

§ 300.304 Evaluation procedures. 

(a) Notice. The public agency must 

provide notice to the parents of a child 

with a disability, in accordance with 

§ 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 § 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 § 300.301(d)(2) and (e), to ensure 

prompt completion of full evaluations. 

(6) In evaluating each child with a 

disability under §§ 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)) 

§ 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 § 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 


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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 §§ 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)) 

§ 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 § 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 

§ 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 § 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 §§ 300.320 through 

300.324. 

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

Additional Procedures for Identifying 

Children With Specific Learning 

Disabilities 

§ 300.307 Specific learning disabilities. 

(a) General. A State must adopt, 

consistent with § 300.309, criteria for 

determining whether a child has a 

specific learning disability as defined in 

§ 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 § 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 § 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)) 

§ 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 § 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)) 

§ 300.309 Determining the existence of a 

specific learning disability. 

(a) The group described in § 300.306 

may determine that a child has a 

specific learning disability, as defined 

in § 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 Stateapproved 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 gradelevel 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 §§ 300.304 and 300.305; and 

(3) The group determines that its 

findings under paragraphs (a)(1) and (2) 


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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 

§§ 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 §§ 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 § 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)) 

§ 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 

§ 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 § 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 § 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)) 

§ 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 § 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 § 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 § 300.309(a)(1); and 

(ii)(A) The child does not make 

sufficient progress to meet age or Stateapproved grade-level standards 

consistent with § 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 

§ 300.309(a)(2)(ii); 

(6) The determination of the group 

concerning the effects of a visual, 

hearing, or motor disability; mental 

retardation; emotional disturbance; 

cultural factors; environmental or 

economic disadvantage; or limited 

English proficiency on the child’s 

achievement level; and 

(7) If the child has participated in a 

process that assesses the child’s 

response to scientific, research-based 

intervention—

(i) The instructional strategies used 

and the student-centered data collected; 

and 

(ii) The documentation that the 

child’s parents were notified about—

(A) The State’s policies regarding the 

amount and nature of student 

performance data that would be 

collected and the general education 

services that would be provided; 

(B) Strategies for increasing the 

child’s rate of learning; and 

(C) The parents’ right to request an 

evaluation. 

(b) Each group member must certify in 

writing whether the report reflects the 

member’s conclusion. If it does not 

reflect the member’s conclusion, the 

group member must submit a separate 

statement presenting the member’s 

conclusions. 

(Authority: 20 U.S.C. 1221e–3; 1401(30); 

1414(b)(6)) 

Individualized Education Programs 

§ 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 §§ 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 


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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 § 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)) 

§ 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 § 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)) 

§ 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 


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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 § 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 § 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 § 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 § 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)) 

§ 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 § 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 twoyear-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 §§ 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 §§ 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 §§ 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 


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(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 

§ 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 

§ 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 

§ 300.320(a)(2), and in the general 

education curriculum, if appropriate; 

(B) The results of any reevaluation 

conducted under § 300.303; 

(C) Information about the child 

provided to, or by, the parents, as 

described under § 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 § 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 

§ 300.320(a)(6) (relating to participation 

of children with disabilities in general 

assessments). 

(ii) The requirements in § 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 §§ 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)) 

§ 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 §§ 300.320 and 

300.324. 


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(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)) 

§ 300.326 [Reserved] 

§ 300.327 Educational placements. 

Consistent with § 300.501(c), each 

public agency must ensure that the 

parents of each child with a disability 

are members of any group that makes 

decisions on the educational placement 

of their child. 

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

§ 300.328 Alternative means of meeting 

participation. 

When conducting IEP Team meetings 

and placement meetings pursuant to 

this subpart, and subpart E of this part, 

and carrying out administrative matters 

under section 615 of the Act (such as 

scheduling, exchange of witness lists, 

and status conferences), the parent of a 

child with a disability and a public 

agency may agree to use alternative 

means of meeting participation, such as 

video conferences and conference calls. 

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

Subpart E—Procedural Safeguards 

Due Process Procedures for Parents 

and Children 

§ 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 §§ 300.500 

through 300.536. 

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

§ 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 §§ 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 § 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 § 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)) 

§ 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 

§ 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 

§§ 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 


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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)) 

§ 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)) 

§ 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 §§ 300.151 through 

300.153 and upon receipt of the first 

due process complaint under § 300.507 

in a school year; 

(3) In accordance with the discipline 

procedures in § 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 § 300.148, 

§§ 300.151 through 300.153, § 300.300, 

§§ 300.502 through 300.503, §§ 300.505 

through 300.518, § 300.520, §§ 300.530 

through 300.536 and §§ 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 § 300.503(c). 

(Approved by the Office of Management and 

Budget under control number 1820–0600) 

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

§ 300.505 Electronic mail. 

A parent of a child with a disability 

may elect to receive notices required by 

§§ 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)) 


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§ 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 

§ 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)) 

§ 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 

§ 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 § 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)) 

§ 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 


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46794 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 

complaint through a meeting held 

pursuant to § 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 § 300.510(a) and 

the time period to resolve in 

§ 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 § 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)) 

§ 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 

§§ 300.507(a) and 300.508(a) through (c) 

and to assist parents and other parties 

in filing a State complaint under 

§§ 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 

§ 300.508(b) for filing a due process 

complaint, or the requirements in 

§ 300.153(b) for filing a State complaint. 

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

§ 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 

§ 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 

§ 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 § 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 

§ 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 § 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 § 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)) 

§ 300.511 Impartial due process hearing. 

(a) General. Whenever a due process 

complaint is received under § 300.507 

or § 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 §§ 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, 


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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 § 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)) 

§ 300.512 Hearing rights. 

(a) General. Any party to a hearing 

conducted pursuant to §§ 300.507 

through 300.513 or §§ 300.530 through 

300.534, or an appeal conducted 

pursuant to § 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 § 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)) 

§ 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 §§ 300.500 through 300.536. 

(b) Construction clause. Nothing in 

§§ 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 

§ 300.514(b), if a State level appeal is 

available. 

(c) Separate request for a due process 

hearing. Nothing in §§ 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 § 300.512(a)(5) 

to the State advisory panel established 

under § 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)) 

§ 300.514 Finality of decision; appeal; 

impartial review. 

(a) Finality of hearing decision. A 

decision made in a hearing conducted 

pursuant to §§ 300.507 through 300.513 

or §§ 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 § 300.516. 

(b) Appeal of decisions; impartial 

review. (1) If the hearing required by 

§ 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 

§ 300.512 apply; 


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(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 

§ 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 § 300.516. 

(Authority: 20 U.S.C. 1415(g) and (h)(4), 

1415(i)(1)(A), 1415(i)(2)) 

§ 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 

§ 300.510(b), or the adjusted time 

periods described in § 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)) 

§ 300.516 Civil action. 

(a) General. Any party aggrieved by 

the findings and decision made under 

§§ 300.507 through 300.513 or 

§§ 300.530 through 300.534 who does 

not have the right to an appeal under 

§ 300.514(b), and any party aggrieved by 

the findings and decision under 

§ 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 § 300.507 or 

§§ 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 §§ 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)) 

§ 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 § 300.506. 

(iii) A meeting conducted pursuant to 

§ 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. 


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(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 § 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)) 

§ 300.518 Child’s status during 

proceedings. 

(a) Except as provided in § 300.533, 

during the pendency of any 

administrative or judicial proceeding 

regarding a due process complaint 

notice requesting a due process hearing 

under § 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 § 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)) 

§ 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 § 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)) 

§ 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 


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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)) 

§§ 300.521–300.529 [Reserved] 

Discipline Procedures 

§ 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 § 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 § 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 § 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 § 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 § 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 § 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 


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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)) 

§ 300.531 Determination of setting. 

The child’s IEP Team determines the 

interim alternative educational setting 

for services under § 300.530(c), (d)(5), 

and (g). 

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

§ 300.532 Appeal. 

(a) General. The parent of a child with 

a disability who disagrees with any 

decision regarding placement under 

§§ 300.530 and 300.531, or the 

manifestation determination under 

§ 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 

§§ 300.507 and 300.508(a) and (b). 

(b) Authority of hearing officer. (1) A 

hearing officer under § 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 § 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 §§ 300.507 and 

300.508(a) through (c) and §§ 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 

§ 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 §§ 300.510 through 

300.514 are met. 

(5) The decisions on expedited due 

process hearings are appealable 

consistent with § 300.514. 

(Authority: 

20 U.S.C. 1415(k)(3) and (4)(B), 

1415(f)(1)(A)) 

§ 300.533 Placement during appeals. 

When an appeal under § 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 §A300.530(c) or (g), 

whichever occurs first, unless the parent 

and the SEA or LEA agree otherwise. 

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

§ 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 

§§ 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 §§ 300.300 

through 300.311; or 

(ii) Has refused services under this 

part; or 

(2) The child has been evaluated in 

accordance with §§ 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 


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§ 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 

§§ 300.530 through 300.536 and section 

612(a)(1)(A) of the Act. 

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

§ 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)) 

§ 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 §§ 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)) 

§ 300.537 State enforcement mechanisms. 

Notwithstanding §§ 300.506(b)(7) and 

300.510(d)(2), which provide for 

judicial enforcement of a written 

agreement reached as a result of 

mediation or a resolution meeting, there 

is nothing in this part that would 

prevent the SEA from using other 

mechanisms to seek enforcement of that 

agreement, provided that use of those 

mechanisms is not mandatory and does 

not delay or deny a party the right to 

seek enforcement of the written 

agreement in a State court of competent 

jurisdiction or in a district court of the 

United States. 

(Authority: 20 U.S.C. 1415(e)(2)(F), 

1415(f)(1)(B)) 

§§ 300.538–300.599 [Reserved] 

Subpart F—Monitoring, Enforcement, 

Confidentiality, and Program 

Information 

Monitoring, Technical Assistance, and 

Enforcement 

§ 300.600 State monitoring and 

enforcement. 

(a) The State must monitor the 

implementation of this part, enforce this 

part in accordance with § 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 § 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)) 

§ 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 

§ 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 


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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)) 

§ 300.602 State use of targets and 

reporting. 

(a) General. Each State must use the 

targets established in the State’s 

performance plan under § 300.601 and 

the priority areas described in 

§ 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)) 

§ 300.603 Secretary’s review and 

determination regarding State performance. 

(a) Review. The Secretary annually 

reviews the State’s performance report 

submitted pursuant to § 300.602(b)(2). 

(b) Determination—(1) General. Based 

on the information provided by the 

State in the State’s annual performance 

report, information obtained through 

monitoring visits, and any other public 

information made available, the 

Secretary determines if the State—

(i) Meets the requirements and 

purposes of Part B of the Act; 

(ii) Needs assistance in implementing 

the requirements of Part B of the Act; 

(iii) Needs intervention in 

implementing the requirements of Part 

B of the Act; or 

(iv) Needs substantial intervention in 

implementing the requirements of Part 

B of the Act. 

(2) Notice and opportunity for a 

hearing. (i) For determinations made 

under paragraphs (b)(1)(iii) and 

(b)(1)(iv) of this section, the Secretary 

provides reasonable notice and an 

opportunity for a hearing on those 

determinations. 

(ii) The hearing described in 

paragraph (b)(2) of this section consists 

of an opportunity to meet with the 

Assistant Secretary for Special 

Education and Rehabilitative Services to 

demonstrate why the Department 

should not make the determination 

described in paragraph (b)(1) of this 

section. 

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

§ 300.604 Enforcement. 

(a) Needs assistance. If the Secretary 

determines, for two consecutive years, 

that a State needs assistance under 

§ 300.603(b)(1)(ii) in implementing the 

requirements of Part B of the Act, the 

Secretary takes one or more of the 

following actions: 

(1) Advises the State of available 

sources of technical assistance that may 

help the State address the areas in 

which the State needs assistance, which 

may include assistance from the Office 

of Special Education Programs, other 

offices of the Department of Education, 

other Federal agencies, technical 

assistance providers approved by the 

Secretary, and other federally funded 

nonprofit agencies, and requires the 

State to work with appropriate entities. 

Such technical assistance may 

include—

(i) The provision of advice by experts 

to address the areas in which the State 

needs assistance, including explicit 

plans for addressing the area for concern 

within a specified period of time; 

(ii) Assistance in identifying and 

implementing professional 

development, instructional strategies, 

and methods of instruction that are 

based on scientifically based research; 

(iii) Designating and using 

distinguished superintendents, 

principals, special education 

administrators, special education 

teachers, and other teachers to provide 

advice, technical assistance, and 

support; and 

(iv) Devising additional approaches to 

providing technical assistance, such as 

collaborating with institutions of higher 

education, educational service agencies, 

national centers of technical assistance 

supported under Part D of the Act, and 

private providers of scientifically based 

technical assistance. 

(2) Directs the use of State-level funds 

under section 611(e) of the Act on the 

area or areas in which the State needs 

assistance. 

(3) Identifies the State as a high-risk 

grantee and imposes special conditions 

on the State’s grant under Part B of the 

Act. 

(b) Needs intervention. If the 

Secretary determines, for three or more 

consecutive years, that a State needs 

intervention under § 300.603(b)(1)(iii) in 

implementing the requirements of Part 

B of the Act, the following shall apply: 

(1) The Secretary may take any of the 

actions described in paragraph (a) of 

this section. 

(2) The Secretary takes one or more of 

the following actions: 

(i) Requires the State to prepare a 

corrective action plan or improvement 

plan if the Secretary determines that the 

State should be able to correct the 

problem within one year. 

(ii) Requires the State to enter into a 

compliance agreement under section 

457 of the General Education Provisions 

Act, as amended, 20 U.S.C. 1221 et seq. 

(GEPA), if the Secretary has reason to 

believe that the State cannot correct the 

problem within one year. 

(iii) For each year of the 

determination, withholds not less than 

20 percent and not more than 50 percent 

of the State’s funds under section 611(e) 

of the Act, until the Secretary 

determines the State has sufficiently 

addressed the areas in which the State 

needs intervention. 

(iv) Seeks to recover funds under 

section 452 of GEPA. 

(v) Withholds, in whole or in part, 

any further payments to the State under 

Part B of the Act. 

(vi) Refers the matter for appropriate 

enforcement action, which may include 

referral to the Department of Justice. 

(c) Needs substantial intervention. 

Notwithstanding paragraph (a) or (b) of 

this section, at any time that the 

Secretary determines that a State needs 

substantial intervention in 

implementing the requirements of Part 

B of the Act or that there is a substantial 

failure to comply with any condition of 

an SEA’s or LEA’s eligibility under Part 

B of the Act, the Secretary takes one or 

more of the following actions: 

(1) Recovers funds under section 452 

of GEPA. 

(2) Withholds, in whole or in part, 

any further payments to the State under 

Part B of the Act. 

(3) Refers the case to the Office of the 

Inspector General at the Department of 

Education. 


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(4) Refers the matter for appropriate 

enforcement action, which may include 

referral to the Department of Justice. 

(d) Report to Congress. The Secretary 

reports to the Committee on Education 

and the Workforce of the House of 

Representatives and the Committee on 

Health, Education, Labor, and Pensions 

of the Senate within 30 days of taking 

enforcement action pursuant to 

paragraph (a), (b), or (c) of this section, 

on the specific action taken and the 

reasons why enforcement action was 

taken. 

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

§ 300.605 Withholding funds. 

(a) Opportunity for hearing. Prior to 

withholding any funds under Part B of 

the Act, the Secretary provides 

reasonable notice and an opportunity 

for a hearing to the SEA involved, 

pursuant to the procedures in 

§§ 300.180 through 300.183. 

(b) Suspension. Pending the outcome 

of any hearing to withhold payments 

under paragraph (a) of this section, the 

Secretary may suspend payments to a 

recipient, suspend the authority of the 

recipient to obligate funds under Part B 

of the Act, or both, after the recipient 

has been given reasonable notice and an 

opportunity to show cause why future 

payments or authority to obligate funds 

under Part B of the Act should not be 

suspended. 

(c) Nature of withholding. (1) If the 

Secretary determines that it is 

appropriate to withhold further 

payments under § 300.604(b)(2) or (c)(2), 

the Secretary may determine—

(i) That the withholding will be 

limited to programs or projects, or 

portions of programs or projects, that 

affected the Secretary’s determination 

under § 300.603(b)(1); or 

(ii) That the SEA must not make 

further payments under Part B of the 

Act to specified State agencies or LEAs 

that caused or were involved in the 

Secretary’s determination under 

§ 300.603(b)(1). 

(2) Until the Secretary is satisfied that 

the condition that caused the initial 

withholding has been substantially 

rectified—

(i) Payments to the State under Part B 

of the Act must be withheld in whole or 

in part; and 

(ii) Payments by the SEA under Part 

B of the Act must be limited to State 

agencies and LEAs whose actions did 

not cause or were not involved in the 

Secretary’s determination under 

§ 300.603(b)(1), as the case may be. 

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

§ 300.606 Public attention. 

Any State that has received notice 

under §§ 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 

§ 300.604. 

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

§ 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 

§ 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 § 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 

§ 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)) 

§ 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 

§ 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)) 

§ 300.609 Rule of construction. 

Nothing in this subpart shall be 

construed to restrict the Secretary from 

utilizing any authority under GEPA, 

including the provisions in 34 CFR parts 

76, 77, 80, and 81 to monitor and 

enforce the requirements of the Act, 

including the imposition of special 

conditions under 34 CFR 80.12. 

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

Confidentiality of Information 

§ 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 §§ 300.611 through 

300.627. 

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

§ 300.611 Definitions. 

As used in §§ 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)) 

§ 300.612 Notice to parents. 

(a) The SEA must give notice that is 

adequate to fully inform parents about 

the requirements of § 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 


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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)) 

§ 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 § 300.507 or 

§§ 300.530 through 300.532, or 

resolution session pursuant to 

§ 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)) 

§ 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)) 

§ 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)) 

§ 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)) 

§ 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)) 

§ 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 

§ 300.619. 

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

§ 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)) 

§ 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)) 

§ 300.621 Hearing procedures. 

A hearing held under § 300.619 must 

be conducted according to the 

procedures in 34 CFR 99.22. 

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

§ 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 § 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)) 

§ 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 


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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 § 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)) 

§ 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)) 

§ 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 § 300.520, the 

rights regarding educational records in 

§§ 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)) 

§ 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 §§ 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)) 

§ 300.627 Department use of personally 

identifiable information. 

If the Department or its authorized 

representatives collect any personally 

identifiable information regarding 

children with disabilities that is not 

subject to the Privacy Act of 1974, 5 

U.S.C. 552a, the Secretary applies the 

requirements of 5 U.S.C. 552a(b)(1) and 

(b)(2), 552a(b)(4) through (b)(11); 552a(c) 

through 552a(e)(3)(B); 552a(e)(3)(D); 

552a(e)(5) through (e)(10); 552a(h); 

552a(m); and 552a(n); and the 

regulations implementing those 

provisions in 34 CFR part 5b. 

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

Reports—Program Information 

§ 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)) 

§ 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 

§ 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)) 

§ 300.642 Data reporting. 

(a) Protection of personally 

identifiable data. The data described in 

section 618(a) of the Act and in 

§ 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)) 

§ 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 § 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)) 

§ 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 §§ 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)) 

§ 300.645 Annual report of children 

served—other responsibilities of the SEA. 

In addition to meeting the other 

requirements of §§ 300.640 through 

300.644, the SEA must—

(a) Establish procedures to be used by 

LEAs and other educational institutions 


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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 

§ 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 §§ 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)) 

§ 300.646 Disproportionality. 

(a) General. Each State that receives 

assistance under Part B of the Act, and 

the Secretary of the Interior, must 

provide for the collection and 

examination of data to determine if 

significant disproportionality based on 

race and ethnicity is occurring in the 

State and the LEAs of the State with 

respect to—

(1) The identification of children as 

children with disabilities, including the 

identification of children as children 

with disabilities in accordance with a 

particular impairment described in 

section 602(3) of the Act; 

(2) The placement in particular 

educational settings of these children; 

and 

(3) The incidence, duration, and type 

of disciplinary actions, including 

suspensions and expulsions. 

(b) Review and revision of policies, 

practices, and procedures. In the case of 

a determination of significant 

disproportionality with respect to the 

identification of children as children 

with disabilities, or the placement in 

particular educational settings of these 

children, in accordance with paragraph 

(a) of this section, the State or the 

Secretary of the Interior must—

(1) Provide for the review and, if 

appropriate revision of the policies, 

procedures, and practices used in the 

identification or placement to ensure 

that the policies, procedures, and 

practices comply with the requirements 

of the Act. 

(2) Require any LEA identified under 

paragraph (a) of this section to reserve 

the maximum amount of funds under 

section 613(f) of the Act to provide 

comprehensive coordinated early 

intervening services to serve children in 

the LEA, particularly, but not 

exclusively, children in those groups 

that were significantly overidentified 

under paragraph (a) of this section; and 

(3) Require the LEA to publicly report 

on the revision of policies, practices, 

and procedures described under 

paragraph (b)(1) of this section. 

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

Subpart G—Authorization, Allotment, 

Use of Funds, and Authorization of 

Appropriations 

Allotments, Grants, and Use of Funds 

§ 300.700 Grants to States. 

(a) Purpose of grants. The Secretary 

makes grants to States, outlying areas, 

and freely associated States (as defined 

in § 300.717), and provides funds to the 

Secretary of the Interior, to assist them 

to provide special education and related 

services to children with disabilities in 

accordance with Part B of the Act. 

(b) Maximum amount. The maximum 

amount of the grant a State may receive 

under section 611 of the Act is—

(1) For fiscal years 2005 and 2006—

(i) The number of children with 

disabilities in the State who are 

receiving special education and related 

services—

(A) Aged three through five, if the 

State is eligible for a grant under section 

619 of the Act; and 

(B) Aged 6 through 21; multiplied 

by—

(ii) Forty (40) percent of the average 

per-pupil expenditure in public 

elementary schools and secondary 

schools in the United States (as defined 

in § 300.717); and 

(2) For fiscal year 2007 and 

subsequent fiscal years—

(i) The number of children with 

disabilities in the 2004–2005 school 

year in the State who received special 

education and related services—

(A) Aged three through five if the 

State is eligible for a grant under section 

619 of the Act; and 

(B) Aged 6 through 21; multiplied by 

(ii) Forty (40) percent of the average 

per-pupil expenditure in public 

elementary schools and secondary 

schools in the United States (as defined 

in § 300.717); 

(iii) Adjusted by the rate of annual 

change in the sum of—

(A) Eighty-five (85) percent of the 

State’s population of children aged 3 

through 21 who are of the same age as 

children with disabilities for whom the 

State ensures the availability of FAPE 

under Part B of the Act; and 

(B) Fifteen (15) percent of the State’s 

population of children described in 

paragraph (b)(2)(iii)(A) of this section 

who are living in poverty. 

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

§ 300.701 Outlying areas, freely associated 

States, and the Secretary of the Interior. 

(a) Outlying areas and freely 

associated States. (1) Funds reserved. 

From the amount appropriated for any 

fiscal year under section 611(i) of the 

Act, the Secretary reserves not more 

than one percent, which must be used—

(i) To provide assistance to the 

outlying areas in accordance with their 

respective populations of individuals 

aged 3 through 21; and 

(ii) To provide each freely associated 

State a grant in the amount that the 

freely associated State received for fiscal 

year 2003 under Part B of the Act, but 

only if the freely associated State—

(A) Meets the applicable requirements 

of Part B of the Act that apply to States. 

(B) Meets the requirements in 

paragraph (a)(2) of this section. 

(2) Application. Any freely associated 

State that wishes to receive funds under 

Part B of the Act must include, in its 

application for assistance—

(i) Information demonstrating that it 

will meet all conditions that apply to 

States under Part B of the Act. 

(ii) An assurance that, 

notwithstanding any other provision of 

Part B of the Act, it will use those funds 

only for the direct provision of special 

education and related services to 

children with disabilities and to 

enhance its capacity to make FAPE 

available to all children with 

disabilities; 

(iii) The identity of the source and 

amount of funds, in addition to funds 

under Part B of the Act, that it will make 

available to ensure that FAPE is 

available to all children with disabilities 

within its jurisdiction; and 

(iv) Such other information and 

assurances as the Secretary may require. 

(3) Special rule. The provisions of 

Public Law 95–134, permitting the 

consolidation of grants by the outlying 

areas, do not apply to funds provided to 

the outlying areas or to the freely 

associated States under Part B of the 

Act. 

(b) Secretary of the Interior. From the 

amount appropriated for any fiscal year 

under section 611(i) of the Act, the 

Secretary reserves 1.226 percent to 

provide assistance to the Secretary of 

the Interior in accordance with 

§§ 300.707 through 300.716. 

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

§ 300.702 Technical assistance. 

(a) In general. The Secretary may 

reserve not more than one-half of one 

percent of the amounts appropriated 


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under Part B of the Act for each fiscal 

year to support technical assistance 

activities authorized under section 

616(i) of the Act. 

(b) Maximum amount. The maximum 

amount the Secretary may reserve under 

paragraph (a) of this section for any 

fiscal year is $25,000,000, cumulatively 

adjusted by the rate of inflation as 

measured by the percentage increase, if 

any, from the preceding fiscal year in 

the Consumer Price Index For All Urban 

Consumers, published by the Bureau of 

Labor Statistics of the Department of 

Labor. 

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

§ 300.703 Allocations to States. 

(a) General. After reserving funds for 

technical assistance under § 300.702, 

and for payments to the outlying areas, 

the freely associated States, and the 

Secretary of the Interior under § 300.701 

(a) and (b) for a fiscal year, the Secretary 

allocates the remaining amount among 

the States in accordance with 

paragraphs (b), (c), and (d) of this 

section. 

(b) Special rule for use of fiscal year 

1999 amount. If a State received any 

funds under section 611 of the Act for 

fiscal year 1999 on the basis of children 

aged three through five, but does not 

make FAPE available to all children 

with disabilities aged three through five 

in the State in any subsequent fiscal 

year, the Secretary computes the State’s 

amount for fiscal year 1999, solely for 

the purpose of calculating the State’s 

allocation in that subsequent year under 

paragraph (c) or (d) of this section, by 

subtracting the amount allocated to the 

State for fiscal year 1999 on the basis of 

those children. 

(c) Increase in funds. If the amount 

available for allocations to States under 

paragraph (a) of this section for a fiscal 

year is equal to or greater than the 

amount allocated to the States under 

section 611 of the Act for the preceding 

fiscal year, those allocations are 

calculated as follows: 

(1) Allocation of increase.—(i) 

General. Except as provided in 

paragraph (c)(2) of this section, the 

Secretary allocates for the fiscal year—

(A) To each State the amount the State 

received under this section for fiscal 

year 1999; 

(B) Eighty-five (85) percent of any 

remaining funds to States on the basis 

of the States’ relative populations of 

children aged 3 through 21 who are of 

the same age as children with 

disabilities for whom the State ensures 

the availability of FAPE under Part B of 

the Act; and 

(C) Fifteen (15) percent of those 

remaining funds to States on the basis 

of the States’ relative populations of 

children described in paragraph 

(c)(1)(i)(B) of this section who are living 

in poverty. 

(ii) Data. For the purpose of making 

grants under this section, the Secretary 

uses the most recent population data, 

including data on children living in 

poverty, that are available and 

satisfactory to the Secretary. 

(2) Limitations. Notwithstanding 

paragraph (c)(1) of this section, 

allocations under this section are 

subject to the following: 

(i) Preceding year allocation. No 

State’s allocation may be less than its 

allocation under section 611 of the Act 

for the preceding fiscal year. 

(ii) Minimum. No State’s allocation 

may be less than the greatest of—

(A) The sum of—

(1) The amount the State received 

under section 611 of the Act for fiscal 

year 1999; and 

(2) One third of one percent of the 

amount by which the amount 

appropriated under section 611(i) of the 

Act for the fiscal year exceeds the 

amount appropriated for section 611 of 

the Act for fiscal year 1999; 

(B) The sum of—

(1) The amount the State received 

under section 611 of the Act for the 

preceding fiscal year; and 

(2) That amount multiplied by the 

percentage by which the increase in the 

funds appropriated for section 611 of 

the Act from the preceding fiscal year 

exceeds 1.5 percent; or 

(C) The sum of—

(1) The amount the State received 

under section 611 of the Act for the 

preceding fiscal year; and 

(2) That amount multiplied by 90 

percent of the percentage increase in the 

amount appropriated for section 611 of 

the Act from the preceding fiscal year. 

(iii) Maximum. Notwithstanding 

paragraph (c)(2)(ii) of t his section, no 

State’s allocation under paragraph (a) of 

this section may exceed the sum of—

(A) The amount the State received 

under section 611 of the Act for the 

preceding fiscal year; and 

(B) That amount multiplied by the 

sum of 1.5 percent and the percentage 

increase in the amount appropriated 

under section 611 of the Act from the 

preceding fiscal year. 

(3) Ratable reduction. If the amount 

available for allocations to States under 

paragraph (c) of this section is 

insufficient to pay those allocations in 

full, those allocations are ratably 

reduced, subject to paragraph (c)(2)(i) of 

this section. 

(d) Decrease in funds. If the amount 

available for allocations to States under 

paragraph (a) of this section for a fiscal 

year is less than the amount allocated to 

the States under section 611 of the Act 

for the preceding fiscal year, those 

allocations are calculated as follows: 

(1) Amounts greater than fiscal year 

1999 allocations. If the amount available 

for allocations under paragraph (a) of 

this section is greater than the amount 

allocated to the States for fiscal year 

1999, each State is allocated the sum 

of—

(i) 1999 amount. The amount the 

State received under section 611 of the 

Act for fiscal year 1999; and 

(ii) Remaining funds. An amount that 

bears the same relation to any remaining 

funds as the increase the State received 

under section 611 of the Act for the 

preceding fiscal year over fiscal year 

1999 bears to the total of all such 

increases for all States. 

(2) Amounts equal to or less than 

fiscal year 1999 allocations.—(i) 

General. If the amount available for 

allocations under paragraph (a) of this 

section is equal to or less than the 

amount allocated to the States for fiscal 

year 1999, each State is allocated the 

amount it received for fiscal year 1999. 

(ii) Ratable reduction. If the amount 

available for allocations under 

paragraph (d) of this section is 

insufficient to make the allocations 

described in paragraph (d)(2)(i) of this 

section, those allocations are ratably 

reduced. 

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

§ 300.704 State-level activities. 

(a) State administration. (1) For the 

purpose of administering Part B of the 

Act, including paragraph (c) of this 

section, section 619 of the Act, and the 

coordination of activities under Part B 

of the Act with, and providing technical 

assistance to, other programs that 

provide services to children with 

disabilities—

(i) Each State may reserve for each 

fiscal year not more than the maximum 

amount the State was eligible to reserve 

for State administration under section 

611 of the Act for fiscal year 2004 or 

$800,000 (adjusted in accordance with 

paragraph (a)(2) of this section), 

whichever is greater; and 

(ii) Each outlying area may reserve for 

each fiscal year not more than five 

percent of the amount the outlying area 

receives under § 300.701(a) for the fiscal 

year or $35,000, whichever is greater. 

(2) For each fiscal year, beginning 

with fiscal year 2005, the Secretary 

cumulatively adjusts—

(i) The maximum amount the State 

was eligible to reserve for State 

administration under section 611 of the 

Act for fiscal year 2004; and 


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(ii) $800,000, by the rate of inflation 

as measured by the percentage increase, 

if any, from the preceding fiscal year in 

the Consumer Price Index For All Urban 

Consumers, published by the Bureau of 

Labor Statistics of the Department of 

Labor. 

(3) Prior to expenditure of funds 

under paragraph (a) of this section, the 

State must certify to the Secretary that 

the arrangements to establish 

responsibility for services pursuant to 

section 612(a)(12)(A) of the Act are 

current. 

(4) Funds reserved under paragraph 

(a)(1) of this section may be used for the 

administration of Part C of the Act, if 

the SEA is the lead agency for the State 

under that Part. 

(b) Other State-level activities. (1) 

States may reserve a portion of their 

allocations for other State-level 

activities. The maximum amount that a 

State may reserve for other State-level 

activities is as follows: 

(i) If the amount that the State sets 

aside for State administration under 

paragraph (a) of this section is greater 

than $850,000 and the State opts to 

finance a high cost fund under 

paragraph (c) of this section: 

(A) For fiscal years 2005 and 2006, 10 

percent of the State’s allocation under 

§ 300.703. 

(B) For fiscal year 2007 and 

subsequent fiscal years, an amount 

equal to 10 percent of the State’s 

allocation for fiscal year 2006 under 

§ 300.703 adjusted cumulatively for 

inflation. 

(ii) If the amount that the State sets 

aside for State administration under 

paragraph (a) of this section is greater 

than $850,000 and the State opts not to 

finance a high cost fund under 

paragraph (c) of this section—

(A) For fiscal years 2005 and 2006, 

nine percent of the State’s allocation 

under § 300.703. 

(B) For fiscal year 2007 and 

subsequent fiscal years, an amount 

equal to nine percent of the State’s 

allocation for fiscal year 2006 adjusted 

cumulatively for inflation. 

(iii) If the amount that the State sets 

aside for State administration under 

paragraph (a) of this section is less than 

or equal to $850,000 and the State opts 

to finance a high cost fund under 

paragraph (c) of this section: 

(A) For fiscal years 2005 and 2006, 

10.5 percent of the State’s allocation 

under § 300.703. 

(B) For fiscal year 2007 and 

subsequent fiscal years, an amount 

equal to 10.5 percent of the State’s 

allocation for fiscal year 2006 under 

§ 300.703 adjusted cumulatively for 

inflation. 

(iv) If the amount that the State sets 

aside for State administration under 

paragraph (a) of this section is equal to 

or less than $850,000 and the State opts 

not to finance a high cost fund under 

paragraph (c) of this section: 

(A) For fiscal years 2005 and 2006, 

nine and one-half percent of the State’s 

allocation under § 300.703. 

(B) For fiscal year 2007 and 

subsequent fiscal years, an amount 

equal to nine and one-half percent of the 

State’s allocation for fiscal year 2006 

under § 300.703 adjusted cumulatively 

for inflation. 

(2) The adjustment for inflation is the 

rate of inflation as measured by the 

percentage of increase, if any, from the 

preceding fiscal year in the Consumer 

Price Index for All Urban Consumers, 

published by the Bureau of Labor 

Statistics of the Department of Labor. 

(3) Some portion of the funds reserved 

under paragraph (b)(1) of this section 

must be used to carry out the following 

activities: 

(i) For monitoring, enforcement, and 

complaint investigation; and 

(ii) To establish and implement the 

mediation process required by section 

615(e) of the Act, including providing 

for the costs of mediators and support 

personnel; 

(4) Funds reserved under paragraph 

(b)(1) of this section also may be used 

to carry out the following activities: 

(i) For support and direct services, 

including technical assistance, 

personnel preparation, and professional 

development and training; 

(ii) To support paperwork reduction 

activities, including expanding the use 

of technology in the IEP process; 

(iii) To assist LEAs in providing 

positive behavioral interventions and 

supports and mental health services for 

children with disabilities; 

(iv) To improve the use of technology 

in the classroom by children with 

disabilities to enhance learning; 

(v) To support the use of technology, 

including technology with universal 

design principles and assistive 

technology devices, to maximize 

accessibility to the general education 

curriculum for children with 

disabilities; 

(vi) Development and implementation 

of transition programs, including 

coordination of services with agencies 

involved in supporting the transition of 

students with disabilities to 

postsecondary activities; 

(vii) To assist LEAs in meeting 

personnel shortages; 

(viii) To support capacity building 

activities and improve the delivery of 

services by LEAs to improve results for 

children with disabilities; 

(ix) Alternative programming for 

children with disabilities who have 

been expelled from school, and services 

for children with disabilities in 

correctional facilities, children enrolled 

in State-operated or State-supported 

schools, and children with disabilities 

in charter schools; 

(x) To support the development and 

provision of appropriate 

accommodations for children with 

disabilities, or the development and 

provision of alternate assessments that 

are valid and reliable for assessing the 

performance of children with 

disabilities, in accordance with sections 

1111(b) and 6111 of the ESEA; and 

(xi) To provide technical assistance to 

schools and LEAs, and direct services, 

including supplemental educational 

services as defined in section 1116(e) of 

the ESEA to children with disabilities, 

in schools or LEAs identified for 

improvement under section 1116 of the 

ESEA on the sole basis of the 

assessment results of the disaggregated 

subgroup of children with disabilities, 

including providing professional 

development to special and regular 

education teachers, who teach children 

with disabilities, based on scientifically 

based research to improve educational 

instruction, in order to improve 

academic achievement to meet or 

exceed the objectives established by the 

State under section 1111(b)(2)(G) of the 

ESEA. 

(c) Local educational agency high cost 

fund. (1) In general—

(i) For the purpose of assisting LEAs 

(including a charter school that is an 

LEA or a consortium of LEAs) in 

addressing the needs of high need 

children with disabilities, each State has 

the option to reserve for each fiscal year 

10 percent of the amount of funds the 

State reserves for other State-level 

activities under paragraph (b)(1) of this 

section—

(A) To finance and make 

disbursements from the high cost fund 

to LEAs in accordance with paragraph 

(c) of this section during the first and 

succeeding fiscal years of the high cost 

fund; and 

(B) To support innovative and 

effective ways of cost sharing by the 

State, by an LEA, or among a 

consortium of LEAs, as determined by 

the State in coordination with 

representatives from LEAs, subject to 

paragraph (c)(2)(ii) of this section. 

(ii) For purposes of paragraph (c) of 

this section, local educational agency 

includes a charter school that is an LEA, 

or a consortium of LEAs. 

(2)(i) A State must not use any of the 

funds the State reserves pursuant to 

paragraph (c)(1)(i) of this section, which 


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are solely for disbursement to LEAs, for 

costs associated with establishing, 

supporting, and otherwise 

administering the fund. The State may 

use funds the State reserves under 

paragraph (a) of this section for those 

administrative costs. 

(ii) A State must not use more than 5 

percent of the funds the State reserves 

pursuant to paragraph (c)(1)(i) of this 

section for each fiscal year to support 

innovative and effective ways of cost 

sharing among consortia of LEAs. 

(3)(i) The SEA must develop, not later 

than 90 days after the State reserves 

funds under paragraph (c)(1)(i) of this 

section, annually review, and amend as 

necessary, a State plan for the high cost 

fund. Such State plan must—

(A) Establish, in consultation and 

coordination with representatives from 

LEAs, a definition of a high need child 

with a disability that, at a minimum—

(1) Addresses the financial impact a 

high need child with a disability has on 

the budget of the child’s LEA; and 

(2) Ensures that the cost of the high 

need child with a disability is greater 

than 3 times the average per pupil 

expenditure (as defined in section 9101 

of the ESEA) in that State; 

(B) Establish eligibility criteria for the 

participation of an LEA that, at a 

minimum, take into account the number 

and percentage of high need children 

with disabilities served by an LEA; 

(C) Establish criteria to ensure that 

placements supported by the fund are 

consistent with the requirements of 

§§ 300.114 through 300.118; 

(D) Develop a funding mechanism 

that provides distributions each fiscal 

year to LEAs that meet the criteria 

developed by the State under 

paragraph(c)(3)(i)(B) of this section; 

(E) Establish an annual schedule by 

which the SEA must make its 

distributions from the high cost fund 

each fiscal year; and 

(F) If the State elects to reserve funds 

for supporting innovative and effective 

ways of cost sharing under paragraph 

(c)(1)(i)(B) of this section, describe how 

these funds will be used. 

(ii) The State must make its final State 

plan available to the public not less than 

30 days before the beginning of the 

school year, including dissemination of 

such information on the State Web site. 

(4)(i) Each SEA must make all annual 

disbursements from the high cost fund 

established under paragraph (c)(1)(i) of 

this section in accordance with the State 

plan published pursuant to paragraph 

(c)(3) of this section. 

(ii) The costs associated with 

educating a high need child with a 

disability, as defined under paragraph 

(c)(3)(i)(A) of this section, are only those 

costs associated with providing direct 

special education and related services to 

the child that are identified in that 

child’s IEP, including the cost of room 

and board for a residential placement 

determined necessary, consistent with 

§ 300.114, to implement a child’s IEP. 

(iii) The funds in the high cost fund 

remain under the control of the State 

until disbursed to an LEA to support a 

specific child who qualifies under the 

State plan for the high cost funds or 

distributed to LEAs, consistent with 

paragraph (c)(9) of this section. 

(5) The disbursements under 

paragraph (c)(4) of this section must not 

be used to support legal fees, court 

costs, or other costs associated with a 

cause of action brought on behalf of a 

child with a disability to ensure FAPE 

for such child. 

(6) Nothing in paragraph (c) of this 

section—

(i) Limits or conditions the right of a 

child with a disability who is assisted 

under Part B of the Act to receive FAPE 

pursuant to section 612(a)(1) of the Act 

in the least restrictive environment 

pursuant to section 612(a)(5) of the Act; 

or 

(ii) Authorizes an SEA or LEA to 

establish a limit on what may be spent 

on the education of a child with a 

disability. 

(7) Notwithstanding the provisions of 

paragraphs (c)(1) through (6) of this 

section, a State may use funds reserved 

pursuant to paragraph (c)(1)(i) of this 

section for implementing a placement 

neutral cost sharing and reimbursement 

program of high need, low incidence, 

catastrophic, or extraordinary aid to 

LEAs that provides services to high 

need children based on eligibility 

criteria for such programs that were 

created not later than January 1, 2004, 

and are currently in operation, if such 

program serves children that meet the 

requirement of the definition of a high 

need child with a disability as described 

in paragraph (c)(3)(i)(A) of this section. 

(8) Disbursements provided under 

paragraph (c) of this section must not be 

used to pay costs that otherwise would 

be reimbursed as medical assistance for 

a child with a disability under the State 

Medicaid program under Title XIX of 

the Social Security Act. 

(9) Funds reserved under paragraph 

(c)(1)(i) of this section from the 

appropriation for any fiscal year, but not 

expended pursuant to paragraph (c)(4) 

of this section before the beginning of 

their last year of availability for 

obligation, must be allocated to LEAs in 

the same manner as other funds from 

the appropriation for that fiscal year are 

allocated to LEAs under § 300.705 

during their final year of availability. 

(d) Inapplicability of certain 

prohibitions. A State may use funds the 

State reserves under paragraphs (a) and 

(b) of this section without regard to—

(1) The prohibition on commingling 

of funds in § 300.162(b). 

(2) The prohibition on supplanting 

other funds in § 300.162(c). 

(e) Special rule for increasing funds. 

A State may use funds the State reserves 

under paragraph (a)(1) of this section as 

a result of inflationary increases under 

paragraph (a)(2) of this section to carry 

out activities authorized under 

paragraph(b)(4)(i), (iii), (vii), or (viii) of 

this section. 

(f) Flexibility in using funds for Part 

C. Any State eligible to receive a grant 

under section 619 of the Act may use 

funds made available under paragraph 

(a)(1) of this section, § 300.705(c), or 

§ 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)) 

§ 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 § 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 § 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 


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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 § 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 § 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)) 

§ 300.706 [Reserved] 

Secretary of the Interior 

§ 300.707 Use of amounts by Secretary of 

the Interior. 

(a) Definitions. For purposes of 

§§ 300.707 through 300.716, the 

following definitions apply: 

(1) Reservation means Indian Country 

as defined in 18 U.S.C. 1151. 

(2) Tribal governing body has the 

definition given that term in 25 U.S.C. 

2021(19). 

(b) Provision of amounts for 

assistance. The Secretary provides 

amounts to the Secretary of the Interior 

to meet the need for assistance for the 

education of children with disabilities 

on reservations aged 5 to 21, inclusive, 

enrolled in elementary schools and 

secondary schools for Indian children 

operated or funded by the Secretary of 

the Interior. The amount of the payment 

for any fiscal year is equal to 80 percent 

of the amount allotted under section 

611(b)(2) of the Act for that fiscal year. 

Of the amount described in the 

preceding sentence, after the Secretary 

of the Interior reserves funds for 

administration under § 300.710, 80 

percent must be allocated to such 

schools by July 1 of that fiscal year and 

20 percent must be allocated to such 

schools by September 30 of that fiscal 

year. 

(c) Additional requirement. With 

respect to all other children aged 3 to 

21, inclusive, on reservations, the SEA 

of the State in which the reservation is 

located must ensure that all of the 

requirements of Part B of the Act are 

implemented. 

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

§ 300.708 Submission of information. 

The Secretary may provide the 

Secretary of the Interior amounts under 

§ 300.707 for a fiscal year only if the 

Secretary of the Interior submits to the 

Secretary information that—

(a) Meets the requirements of section 

612(a)(1), (3) through (9), (10)(B) 

through (C), (11) through (12), (14) 

through (16), (19), and (21) through (25) 

of the Act (including monitoring and 

evaluation activities); 

(b) Meets the requirements of section 

612(b) and (e) of the Act; 

(c) Meets the requirements of section 

613(a)(1), (2)(A)(i), (7) through (9) and 

section 613(i) of the Act (references to 

LEAs in these sections must be read as 

references to elementary schools and 

secondary schools for Indian children 

operated or funded by the Secretary of 

the Interior); 

(d) Meets the requirements of section 

616 of the Act that apply to States 

(references to LEAs in section 616 of the 

Act must be read as references to 

elementary schools and secondary 

schools for Indian children operated or 

funded by the Secretary of the Interior). 

(e) Meets the requirements of this part 

that implement the sections of the Act 

listed in paragraphs (a) through (d) of 

this section; 

(f) Includes a description of how the 

Secretary of the Interior will coordinate 

the provision of services under Part B of 

the Act with LEAs, tribes and tribal 

organizations, and other private and 

Federal service providers; 

(g) Includes an assurance that there 

are public hearings, adequate notice of 

the hearings, and an opportunity for 

comment afforded to members of tribes, 

tribal governing bodies, and affected 

local school boards before the adoption 

of the policies, programs, and 

procedures related to the requirements 

described in paragraphs (a) through (d) 

of this section; 

(h) Includes an assurance that the 

Secretary of the Interior provides the 

information that the Secretary may 

require to comply with section 618 of 

the Act; 

(i)(1) Includes an assurance that the 

Secretary of the Interior and the 

Secretary of Health and Human Services 

have entered into a memorandum of 

agreement, to be provided to the 

Secretary, for the coordination of 

services, resources, and personnel 

between their respective Federal, State, 

and local offices and with the SEAs and 

LEAs and other entities to facilitate the 

provision of services to Indian children 

with disabilities residing on or near 

reservations. 

(2) The agreement must provide for 

the apportionment of responsibilities 

and costs, including child find, 

evaluation, diagnosis, remediation or 

therapeutic measures, and (where 

appropriate) equipment and medical or 

personal supplies, as needed for a child 

with a disability to remain in a school 

or program; and 

(j) Includes an assurance that the 

Department of the Interior will 

cooperate with the Department in its 

exercise of monitoring and oversight of 

the requirements in this section and 

§§ 300.709 through 300.711 and 

§§ 300.713 through 300.716, and any 

agreements entered into between the 

Secretary of the Interior and other 

entities under Part B of the Act, and will 

fulfill its duties under Part B of the Act. 

The Secretary withholds payments 

under § 300.707 with respect to the 

requirements described in this section 

in the same manner as the Secretary 

withholds payments under section 

616(e)(6) of the Act. 


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

§ 300.709 Public participation. 

In fulfilling the requirements of 

§ 300.708 the Secretary of the Interior 

must provide for public participation 

consistent with § 300.165. 

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

§ 300.710 Use of funds under Part B of the 

Act. 

(a) The Secretary of the Interior may 

reserve five percent of its payment 

under § 300.707(b) in any fiscal year, or 

$500,000, whichever is greater, for 

administrative costs in carrying out the 

provisions of §§ 300.707 through 

300.709, 300.711, and 300.713 through 

300.716. 

(b) Payments to the Secretary of the 

Interior under § 300.712 must be used in 

accordance with that section. 

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

§ 300.711 Early intervening services. 

(a) The Secretary of the Interior may 

allow each elementary school and 

secondary school for Indian children 

operated or funded by the Secretary of 

the Interior to use not more than 15 

percent of the amount the school 

receives under § 300.707(b) for any 

fiscal year, in combination with other 

amounts (which may include amounts 

other than education funds), to develop 

and implement coordinated, early 

intervening services, which may include 

interagency financing structures, for 

children in kindergarten through grade 

12 (with a particular emphasis on 

children in kindergarten through grade 

three) who have not been identified as 

needing special education or related 

services but who need additional 

academic and behavioral support to 

succeed in a general education 

environment, in accordance with 

section 613(f) of the Act. 

(b) Each elementary school and 

secondary school for Indian children 

operated or funded by the Secretary of 

the Interior that develops and maintains 

coordinated early intervening services 

in accordance with section 613(f) of the 

Act and § 300.226 must annually report 

to the Secretary of the Interior in 

accordance with section 613(f) of the 

Act. 

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

§ 300.712 Payments for education and 

services for Indian children with disabilities 

aged three through five. 

(a) General. With funds appropriated 

under section 611(i) of the Act, the 

Secretary makes payments to the 

Secretary of the Interior to be 

distributed to tribes or tribal 

organizations (as defined under section 

4 of the Indian Self-Determination and 

Education Assistance Act) or consortia 

of tribes or tribal organizations to 

provide for the coordination of 

assistance for special education and 

related services for children with 

disabilities aged three through five on 

reservations served by elementary 

schools and secondary schools for 

Indian children operated or funded by 

the Department of the Interior. The 

amount of the payments under 

paragraph (b) of this section for any 

fiscal year is equal to 20 percent of the 

amount allotted under § 300.701(b). 

(b) Distribution of funds. The 

Secretary of the Interior must distribute 

the total amount of the payment under 

paragraph (a) of this section by 

allocating to each tribe, tribal 

organization, or consortium an amount 

based on the number of children with 

disabilities aged three through five 

residing on reservations as reported 

annually, divided by the total of those 

children served by all tribes or tribal 

organizations. 

(c) Submission of information. To 

receive a payment under this section, 

the tribe or tribal organization must 

submit the figures to the Secretary of the 

Interior as required to determine the 

amounts to be allocated under 

paragraph (b) of this section. This 

information must be compiled and 

submitted to the Secretary. 

(d) Use of funds. (1) The funds 

received by a tribe or tribal organization 

must be used to assist in child find, 

screening, and other procedures for the 

early identification of children aged 

three through five, parent training, and 

the provision of direct services. These 

activities may be carried out directly or 

through contracts or cooperative 

agreements with the BIA, LEAs, and 

other public or private nonprofit 

organizations. The tribe or tribal 

organization is encouraged to involve 

Indian parents in the development and 

implementation of these activities. 

(2) The tribe or tribal organization, as 

appropriate, must make referrals to 

local, State, or Federal entities for the 

provision of services or further 

diagnosis. 

(e) Biennial report. To be eligible to 

receive a grant pursuant to paragraph (a) 

of this section, the tribe or tribal 

organization must provide to the 

Secretary of the Interior a biennial 

report of activities undertaken under 

this section, including the number of 

contracts and cooperative agreements 

entered into, the number of children 

contacted and receiving services for 

each year, and the estimated number of 

children needing services during the 

two years following the year in which 

the report is made. The Secretary of the 

Interior must include a summary of this 

information on a biennial basis in the 

report to the Secretary required under 

section 611(h) of the Act. The Secretary 

may require any additional information 

from the Secretary of the Interior. 

(f) Prohibitions. None of the funds 

allocated under this section may be 

used by the Secretary of the Interior for 

administrative purposes, including 

child count and the provision of 

technical assistance. 

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

§ 300.713 Plan for coordination of 

services. 

(a) The Secretary of the Interior must 

develop and implement a plan for the 

coordination of services for all Indian 

children with disabilities residing on 

reservations served by elementary 

schools and secondary schools for 

Indian children operated or funded by 

the Secretary of the Interior. 

(b) The plan must provide for the 

coordination of services benefiting those 

children from whatever source, 

including tribes, the Indian Health 

Service, other BIA divisions, other 

Federal agencies, State educational 

agencies, and State, local, and tribal 

juvenile and adult correctional facilities. 

(c) In developing the plan, the 

Secretary of the Interior must consult 

with all interested and involved parties. 

(d) The plan must be based on the 

needs of the children and the system 

best suited for meeting those needs, and 

may involve the establishment of 

cooperative agreements between the 

BIA, other Federal agencies, and other 

entities. 

(e) The plan also must be distributed 

upon request to States; to SEAs, LEAs, 

and other agencies providing services to 

infants, toddlers, and children with 

disabilities; to tribes; and to other 

interested parties. 

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

§ 300.714 Establishment of advisory 

board. 

(a) To meet the requirements of 

section 612(a)(21) of the Act, the 

Secretary of the Interior must establish, 

under the BIA, an advisory board 

composed of individuals involved in or 

concerned with the education and 

provision of services to Indian infants, 

toddlers, children, and youth with 

disabilities, including Indians with 

disabilities, Indian parents or guardians 

of such children, teachers, service 

providers, State and local educational 

officials, representatives of tribes or 

tribal organizations, representatives 

from State Interagency Coordinating 

Councils under section 641 of the Act in 


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States having reservations, and other 

members representing the various 

divisions and entities of the BIA. The 

chairperson must be selected by the 

Secretary of the Interior. 

(b) The advisory board must—

(1) Assist in the coordination of 

services within the BIA and with other 

local, State, and Federal agencies in the 

provision of education for infants, 

toddlers, and children with disabilities; 

(2) Advise and assist the Secretary of 

the Interior in the performance of the 

Secretary of the Interior’s 

responsibilities described in section 

611(h) of the Act; 

(3) Develop and recommend policies 

concerning effective inter- and intraagency collaboration, including 

modifications to regulations, and the 

elimination of barriers to inter- and 

intra-agency programs and activities; 

(4) Provide assistance and 

disseminate information on best 

practices, effective program 

coordination strategies, and 

recommendations for improved early 

intervention services or educational 

programming for Indian infants, 

toddlers, and children with disabilities; 

and 

(5) Provide assistance in the 

preparation of information required 

under § 300.708(h). 

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

§ 300.715 Annual reports. 

(a) In general. The advisory board 

established under § 300.714 must 

prepare and submit to the Secretary of 

the Interior and to Congress an annual 

report containing a description of the 

activities of the advisory board for the 

preceding year. 

(b) Availability. The Secretary of the 

Interior must make available to the 

Secretary the report described in 

paragraph (a) of this section. 

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

§ 300.716 Applicable regulations. 

The Secretary of the Interior must 

comply with the requirements of 

§§ 300.103 through 300.108, 300.110 

through 300.124, 300.145 through 

300.154, 300.156 through 300.160, 

300.165, 300.170 through 300.186, 

300.226, 300.300 through 300.606, 

300.610 through 300.646, and 300.707 

through 300.716. 

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

Definitions that Apply to this Subpart 

§ 300.717 Definitions applicable to 

allotments, grants, and use of funds. 

As used in this subpart—

(a) Freely associated States means the 

Republic of the Marshall Islands, the 

Federated States of Micronesia, and the 

Republic of Palau; 

(b) Outlying areas means the United 

States Virgin Islands, Guam, American 

Samoa, and the Commonwealth of the 

Northern Mariana Islands; 

(c) State means each of the 50 States, 

the District of Columbia, and the 

Commonwealth of Puerto Rico; and 

(d) Average per-pupil expenditure in 

public elementary schools and 

secondary schools in the United States 

means—

(1) Without regard to the source of 

funds—

(i) The aggregate current 

expenditures, during the second fiscal 

year preceding the fiscal year for which 

the determination is made (or, if 

satisfactory data for that year are not 

available, during the most recent 

preceding fiscal year for which 

satisfactory data are available) of all 

LEAs in the 50 States and the District of 

Columbia); plus 

(ii) Any direct expenditures by the 

State for the operation of those agencies; 

divided by (2) The aggregate number of 

children in average daily attendance to 

whom those agencies provided free 

public education during that preceding 

year. 

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

and (g)) 

Acquisition of Equipment and 

Construction or Alteration of Facilities 

§ 300.718 Acquisition of equipment and 

construction or alteration of facilities. 

(a) General. If the Secretary 

determines that a program authorized 

under Part B of the Act will be 

improved by permitting program funds 

to be used to acquire appropriate 

equipment, or to construct new facilities 

or alter existing facilities, the Secretary 

may allow the use of those funds for 

those purposes. 

(b) Compliance with certain 

regulations. Any construction of new 

facilities or alteration of existing 

facilities under paragraph (a) of this 

section must comply with the 

requirements of—

(1) Appendix A of part 36 of title 28, 

Code of Federal Regulations (commonly 

known as the ‘‘Americans with 

Disabilities Accessibility Standards for 

Buildings and Facilities’’); or 

(2) Appendix A of subpart 101–19.6 of 

title 41, Code of Federal Regulations 

(commonly known as the ‘‘Uniform 

Federal Accessibility Standards’’). 

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

Subpart H—Preschool Grants for 

Children with Disabilities 

§ 300.800 In general. 

The Secretary provides grants under 

section 619 of the Act to assist States to 

provide special education and related 

services in accordance with Part B of the 

Act—

(a) To children with disabilities aged 

three through five years; and 

(b) At a State’s discretion, to two-yearold children with disabilities who will 

turn three during the school year. 

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

§§ 300.801–300.802 [Reserved] 

§ 300.803 Definition of State. 

As used in this subpart, State means 

each of the 50 States, the District of 

Columbia, and the Commonwealth of 

Puerto Rico. 

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

§ 300.804 Eligibility. 

A State is eligible for a grant under 

section 619 of the Act if the State—

(a) Is eligible under section 612 of the 

Act to receive a grant under Part B of the 

Act; and 

(b) Makes FAPE available to all 

children with disabilities, aged three 

through five, residing in the State. 

(Approved by the Office of Management and 

Budget under control number 1820–0030) 

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

§ 300.805 [Reserved] 

§ 300.806 Eligibility for financial 

assistance. 

No State or LEA, or other public 

institution or agency, may receive a 

grant or enter into a contract or 

cooperative agreement under subpart 2 

or 3 of Part D of the Act that relates 

exclusively to programs, projects, and 

activities pertaining to children aged 

three through five years, unless the State 

is eligible to receive a grant under 

section 619(b) of the Act. 

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

§ 300.807 Allocations to States. 

The Secretary allocates the amount 

made available to carry out section 619 

of the Act for a fiscal year among the 

States in accordance with §§ 300.808 

through 300.810. 

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

§ 300.808 Increase in funds. 

If the amount available for allocation 

to States under § 300.807 for a fiscal 

year is equal to or greater than the 

amount allocated to the States under 

section 619 of the Act for the preceding 


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fiscal year, those allocations are 

calculated as follows: 

(a) Except as provided in § 300.809, 

the Secretary—

(1) Allocates to each State the amount 

the State received under section 619 of 

the Act for fiscal year 1997; 

(2) Allocates 85 percent of any 

remaining funds to States on the basis 

of the States’ relative populations of 

children aged three through five; and 

(3) Allocates 15 percent of those 

remaining funds to States on the basis 

of the States’ relative populations of all 

children aged three through five who 

are living in poverty. 

(b) For the purpose of making grants 

under this section, the Secretary uses 

the most recent population data, 

including data on children living in 

poverty, that are available and 

satisfactory to the Secretary. 

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

§ 300.809 Limitations. 

(a) Notwithstanding § 300.808, 

allocations under that section are 

subject to the following: 

(1) No State’s allocation may be less 

than its allocation under section 619 of 

the Act for the preceding fiscal year. 

(2) No State’s allocation may be less 

than the greatest of—

(i) The sum of—

(A) The amount the State received 

under section 619 of the Act for fiscal 

year 1997; and 

(B) One-third of one percent of the 

amount by which the amount 

appropriated under section 619(j) of the 

Act for the fiscal year exceeds the 

amount appropriated for section 619 of 

the Act for fiscal year 1997; 

(ii) The sum of—

(A) The amount the State received 

under section 619 of the Act for the 

preceding fiscal year; and 

(B) That amount multiplied by the 

percentage by which the increase in the 

funds appropriated under section 619 of 

the Act from the preceding fiscal year 

exceeds 1.5 percent; or 

(iii) The sum of—

(A) The amount the State received 

under section 619 of the Act for the 

preceding fiscal year; and 

(B) That amount multiplied by 90 

percent of the percentage increase in the 

amount appropriated under section 619 

of the Act from the preceding fiscal 

year. 

(b) Notwithstanding paragraph (a)(2) 

of this section, no State’s allocation 

under § 300.808 may exceed the sum 

of—

(1) The amount the State received 

under section 619 of the Act for the 

preceding fiscal year; and 

(2) That amount multiplied by the 

sum of 1.5 percent and the percentage 

increase in the amount appropriated 

under section 619 of the Act from the 

preceding fiscal year. 

(c) If the amount available for 

allocation to States under § 300.808 and 

paragraphs (a) and (b) of this section is 

insufficient to pay those allocations in 

full, those allocations are ratably 

reduced, subject to paragraph (a)(1) of 

this section. 

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

(c)(2)(C)) 

§ 300.810 Decrease in funds. 

If the amount available for allocations 

to States under § 300.807 for a fiscal 

year is less than the amount allocated to 

the States under section 619 of the Act 

for the preceding fiscal year, those 

allocations are calculated as follows: 

(a) If the amount available for 

allocations is greater than the amount 

allocated to the States for fiscal year 

1997, each State is allocated the sum 

of—

(1) The amount the State received 

under section 619 of the Act for fiscal 

year 1997; and 

(2) An amount that bears the same 

relation to any remaining funds as the 

increase the State received under 

section 619 of the Act for the preceding 

fiscal year over fiscal year 1997 bears to 

the total of all such increases for all 

States. 

(b) If the amount available for 

allocations is equal to or less than the 

amount allocated to the States for fiscal 

year 1997, each State is allocated the 

amount the State received for fiscal year 

1997, ratably reduced, if necessary. 

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

§ 300.811 [Reserved] 

§ 300.812 Reservation for State activities. 

(a) Each State may reserve not more 

than the amount described in paragraph 

(b) of this section for administration and 

other State-level activities in accordance 

with §§ 300.813 and 300.814. 

(b) For each fiscal year, the Secretary 

determines and reports to the SEA an 

amount that is 25 percent of the amount 

the State received under section 619 of 

the Act for fiscal year 1997, 

cumulatively adjusted by the Secretary 

for each succeeding fiscal year by the 

lesser of—

(1) The percentage increase, if any, 

from the preceding fiscal year in the 

State’s allocation under section 619 of 

the Act; or 

(2) The rate of inflation, as measured 

by the percentage increase, if any, from 

the preceding fiscal year in the 

Consumer Price Index For All Urban 

Consumers, published by the Bureau of 

Labor Statistics of the Department of 

Labor. 

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

§ 300.813 State administration. 

(a) For the purpose of administering 

section 619 of the Act (including the 

coordination of activities under Part B 

of the Act with, and providing technical 

assistance to, other programs that 

provide services to children with 

disabilities), a State may use not more 

than 20 percent of the maximum 

amount the State may reserve under 

§ 300.812 for any fiscal year. 

(b) Funds described in paragraph (a) 

of this section may also be used for the 

administration of Part C of the Act. 

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

§ 300.814 Other State-level activities. 

Each State must use any funds the 

State reserves under § 300.812 and does 

not use for administration under 

§ 300.813—

(a) For support services (including 

establishing and implementing the 

mediation process required by section 

615(e) of the Act), which may benefit 

children with disabilities younger than 

three or older than five as long as those 

services also benefit children with 

disabilities aged three through five; 

(b) For direct services for children 

eligible for services under section 619 of 

the Act; 

(c) For activities at the State and local 

levels to meet the performance goals 

established by the State under section 

612(a)(15) of the Act; 

(d) To supplement other funds used to 

develop and implement a statewide 

coordinated services system designed to 

improve results for children and 

families, including children with 

disabilities and their families, but not 

more than one percent of the amount 

received by the State under section 619 

of the Act for a fiscal year; 

(e) To provide early intervention 

services (which must include an 

educational component that promotes 

school readiness and incorporates 

preliteracy, language, and numeracy 

skills) in accordance with Part C of the 

Act to children with disabilities who are 

eligible for services under section 619 of 

the Act and who previously received 

services under Part C of the Act until 

such children enter, or are eligible 

under State law to enter, kindergarten; 

or 

(f) At the State’s discretion, to 

continue service coordination or case 

management for families who receive 

services under Part C of the Act, 

consistent with § 300.814(e). 

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


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§ 300.815 Subgrants to LEAs. 

Each State that receives a grant under 

section 619 of the Act for any fiscal year 

must distribute all of the grant funds 

that the State does not reserve under 

§ 300.812 to LEAs in the State that have 

established their eligibility under 

section 613 of the Act. 

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

§ 300.816 Allocations to LEAs. 

(a) Base payments. The State must 

first award each LEA described in 

§ 300.815 the amount that agency would 

have received under section 619 of the 

Act for fiscal year 1997 if the State had 

distributed 75 percent of its grant for 

that year under section 619(c)(3), as 

such section was then in effect. 

(b) Base payment adjustments. For 

fiscal year 1998 and beyond—

(1) If a new LEA is created, the State 

must divide the base allocation 

determined under paragraph (a) of this 

section for the LEAs that would have 

been responsible for serving children 

with disabilities now being served by 

the new LEA, among the new LEA and 

affected LEAs based on the relative 

numbers of children with disabilities 

ages three through five currently 

provided special education by each of 

the LEAs; 

(2) If one or more LEAs are combined 

into a single new LEA, the State must 

combine the base allocations of the 

merged LEAs; and 

(3) If for two or more LEAs, 

geographic boundaries or administrative 

responsibility for providing services to 

children with disabilities ages three 

through five changes, the base 

allocations of affected LEAs must be 

redistributed among affected LEAs 

based on the relative numbers of 

children with disabilities ages three 

through five currently provided special 

education by each affected LEA. 

(c) Allocation of remaining funds. 

After making allocations under 

paragraph (a) of this section, the State 

must—

(1) Allocate 85 percent of any 

remaining funds to those LEAs on the 

basis of the relative numbers of children 

enrolled in public and private 

elementary schools and secondary 

schools within the LEA’s jurisdiction; 

and 

(2) Allocate 15 percent of those 

remaining funds to those LEAs in 

accordance with their relative numbers 

of children living in poverty, as 

determined by the SEA. 

(d) Use of best data. For the purpose 

of making grants under this section, 

States must apply on a uniform basis 

across all LEAs the best data that are 

available to them on the numbers of 

children enrolled in public and private 

elementary and secondary schools and 

the numbers of children living in 

poverty. 

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

§ 300.817 Reallocation of LEA funds. 

If an SEA determines that an LEA is 

adequately providing FAPE to all 

children with disabilities aged three 

through five residing in the area served 

by the LEA with State and local funds, 

the SEA may reallocate any portion of 

the funds under section 619 of the Act 

that are not needed by that LEA to 

provide FAPE to other LEAs in the State 

that are not adequately providing 

special education and related services to 

all children with disabilities aged three 

through five residing in the areas the 

other LEAs serve. 

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

§ 300.818 Part C of the Act inapplicable. 

Part C of the Act does not apply to 

any child with a disability receiving 

FAPE, in accordance with Part B of the 

Act, with funds received under section 

619 of the Act. 

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

Appendix A to Part 300—Excess Costs 

Calculation 

Except as otherwise provided, amounts 

provided to an LEA under Part B of the Act 

may be used only to pay the excess costs of 

providing special education and related 

services to children with disabilities. Excess 

costs are those costs for the education of an 

elementary school or secondary school 

student with a disability that are in excess of 

the average annual per student expenditure 

in an LEA during the preceding school year 

for an elementary school or secondary school 

student, as may be appropriate. An LEA must 

spend at least the average annual per student 

expenditure on the education of an 

elementary school or secondary school child 

with a disability before funds under Part B 

of the Act are used to pay the excess costs 

of providing special education and related 

services. 

Section 602(8) of the Act and § 300.16 

require the LEA to compute the minimum 

average amount separately for children with 

disabilities in its elementary schools and for 

children with disabilities in its secondary 

schools. LEAs may not compute the 

minimum average amount it must spend on 

the education of children with disabilities 

based on a combination of the enrollments in 

its elementary schools and secondary 

schools. 

The following example shows how to 

compute the minimum average amount an 

LEA must spend for the education of each of 

its elementary school children with 

disabilities under section 602(3) of the Act 

before it may use funds under Part B of the 

Act. 

a. First the LEA must determine the total 

amount of its expenditures for elementary 

school students from all sources—local, 

State, and Federal (including Part B)—in the 

preceding school year. Only capital outlay 

and debt services are excluded. 

Example: The following is an example of 

a computation for children with disabilities 

enrolled in an LEA’s elementary schools. In 

this example, the LEA had an average 

elementary school enrollment for the 

preceding school year of 800 (including 100 

children with disabilities). The LEA spent 

the following amounts last year for 

elementary school students (including its 

elementary school children with disabilities): 

(1) From State and local tax 

funds.

$6,500,000 

(2) From Federal funds ......... 600,000 

Total expenditures ....... 7,100,000 

Of this total, $60,000 was for capital outlay 

and debt service relating to the education of 

elementary school students. This must be 

subtracted from total expenditures. 

(1) Total Expenditures .......... $7,100,000 

(2) Less capital outlay and 

debt.

¥60,000 

Total expenditures for 

elementary school students less capital outlay and debt.

$7,040,000 

b. Next, the LEA must subtract from the 

total expenditures amounts spent for: 

(1) IDEA, Part B allocation, 

(2) ESEA, Title I, Part A allocation, 

(3) ESEA, Title III, Parts A and B 

allocation, 

(4) State and local funds for children with 

disabilities, and 

(5) State or local funds for programs under 

ESEA, Title I, Part A, and Title III, Parts A 

and B. 

These are funds that the LEA actually 

spent, not funds received last year but carried 

over for the current school year. 

Example: The LEA spent the following 

amounts for elementary school students last 

year: 

(1) From funds under IDEA, 

Part B allocation.

$ 200,000 

(2) From funds under ESEA, 

Title I, Part A allocation.

250,000 

(3) From funds under ESEA, 

Title III, Parts A and B 

allocation.

50,000 

(4) From State funds and 

local funds for children 

with disabilities.

500,000 

(5) From State and local 

funds for programs 

under ESEA, Title I, 

Part A, and Title III, 

Parts A and B.

150,000 

Total .............................. 1,150,000 

(1) Total expenditures less 

capital outlay and debt.

7,040,000 

(2) Other deductions ............. ¥1,150,000 

Total .............................. $5,890,000 

c. Except as otherwise provided, the LEA 

next must determine the average annual per 


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student expenditure for its elementary 

schools dividing the average number of 

students enrolled in the elementary schools 

of the agency during the preceding year 

(including its children with disabilities) into 

the amount computed under the above 

paragraph. The amount obtained through this 

computation is the minimum amount the 

LEA must spend (on the average) for the 

education of each of its elementary school 

children with disabilities. Funds under Part 

B of the Act may be used only for costs over 

and above this minimum. 

(1) Amount from Step b ........ $5,890,000 

(2) Average number of students enrolled.800 

(3) $5,890,000/800 Average 

annual per student expenditure.

$ 7,362 

d. Except as otherwise provided, to 

determine the total minimum amount of 

funds the LEA must spend for the education 

of its elementary school children with 

disabilities in the LEA (not including capital 

outlay and debt service), the LEA must 

multiply the number of elementary school 

children with disabilities in the LEA times 

the average annual per student expenditure 

obtained in paragraph c above. Funds under 

Part B of the Act can only be used for excess 

costs over and above this minimum. 

(1) Number of children with 

disabilities in the LEA’s 

elementary schools.

100 

(2) Average annual per student expenditure.$ 7,362 

(3) $7,362 x 100.

Total minimum amount 

of funds the LEA must 

spend for the education 

of children with disabilities enrolled in the 

LEA’s elementary 

schools before using 

Part B funds.

$ 736,200 

Appendix B to Part 300—Proportionate 

Share Calculation 

Each LEA must expend, during the grant 

period, on the provision of special education 

and related services for the parentally-placed 

private school children with disabilities 

enrolled in private elementary schools and 

secondary schools located in the LEA an 

amount that is equal to—

(1) A proportionate share of the LEA’s 

subgrant under section 611(f) of the Act for 

children with disabilities aged 3 through 21. 

This is an amount that is the same proportion 

of the LEA’s total subgrant under section 

611(f) of the Act as the number of parentallyplaced private school children with 

disabilities aged 3 through 21 enrolled in 

private elementary schools and secondary 

schools located in the LEA is to the total 

number of children with disabilities enrolled 

in public and private elementary schools and 

secondary schools located in the LEA aged 3 

through 21; and 

(2) A proportionate share of the LEA’s 

subgrant under section 619(g) of the Act for 

children with disabilities aged 3 through 5. 

This is an amount that is the same proportion 

of the LEA’s total subgrant under section 

619(g) of the Act as the total number of 

parentally-placed private school children 

with disabilities aged 3 through 5 enrolled in 

private elementary schools located in the 

LEA is to the total number of children with 

disabilities enrolled in public and private 

elementary schools located in the LEA aged 

3 through 5. 

Consistent with section 612(a)(10)(A)(i) of 

the Act and § 300.133 of these regulations, 

annual expenditures for parentally-placed 

private school children with disabilities are 

calculated based on the total number of 

children with disabilities enrolled in public 

and private elementary schools and 

secondary schools located in the LEA eligible 

to receive special education and related 

services under Part B, as compared with the 

total number of eligible parentally-placed 

private school children with disabilities 

enrolled in private elementary schools 

located in the LEA. This ratio is used to 

determine the proportion of the LEA’s total 

Part B subgrants under section 611(f) of the 

Act for children aged 3 through 21, and 

under section 619(g) of the Act for children 

aged 3 through 5, that is to be expended on 

services for parentally-placed private school 

children with disabilities enrolled in private 

elementary schools and secondary schools 

located in the LEA. 

The following is an example of how the 

proportionate share is calculated: 

There are 300 eligible children with 

disabilities enrolled in the Flintstone School 

District and 20 eligible parentally-placed 

private school children with disabilities 

enrolled in private elementary schools and 

secondary schools located in the LEA for a 

total of 320 eligible public and private school 

children with disabilities (note: 

proportionate share for parentally-placed 

private school children is based on total 

children eligible, not children served). The 

number of eligible parentally-placed private 

school children with disabilities (20) divided 

by the total number of eligible public and 

private school children with disabilities (320) 

indicates that 6.25 percent of the LEA’s 

subgrant must be spent for the group of 

eligible parentally-placed children with 

disabilities enrolled in private elementary 

schools and secondary schools located in the 

LEA. Flintstone School District receives 

$152,500 in Federal flow through funds. 

Therefore, the LEA must spend $9,531.25 on 

special education or related services to the 

group of parentally-placed private school 

children with disabilities enrolled in private 

elementary schools and secondary schools 

located in the LEA. (Note: The LEA must 

calculate the proportionate share of IDEA 

funds before earmarking funds for any early 

intervening activities in § 300.226). 

The following outlines the calculations for 

the example of how the proportionate share 

is calculated. 

Proportionate Share Calculation 

for Parentally-Placed Private 

School Children with Disabilities For Flintstone School 

District: 

Number of eligible children with 

disabilities in public schools 

in the LEA ................................ 300 

Number of parentally-placed eligible children with disabilities 

in private elementary schools 

and secondary schools located 

in the LEA ................................ 20 

Total number of eligible 

children ............................. 320 

FEDERAL FLOW-THROUGH FUNDS

TO FLINTSTONE SCHOOL DISTRICT

Total allocation to 

Flintstone .......................... $152,500 

Calculating Proportionate Share: 

Total allocation to Flinstone ....... 152,500 

Divided by total number of eligible children .............................. 320 

Average allocation per eligible 

child .......................................... 476.5625 

Multiplied by the number of parentally placed children with 

disabilities ................................ 20 

Amount to be expended for parentally-placed children with 

disabilities ................................ 9,531.25 

Appendix C to Part 300—National 

Instructional Materials Accessibility 

Standard (NIMAS) 

Under sections 612(a)(23)(A) and 674(e)(4) 

of the Individuals with Disabilities Education 

Act, as amended by the Individuals with 

Disabilities Education Improvement Act of 

2004, the Secretary of Education establishes 

the NIMAS. Under section 674(e)(4) of the 

Act, the NIMAS applies to print instructional 

materials published after July 19, 2006. The 

purpose of the NIMAS is to help increase the 

availability and timely delivery of print 

instructional materials in accessible formats 

to blind or other persons with print 

disabilities in elementary and secondary 

schools. 

Technical Specifications—The Baseline 

Element Set 

The Baseline Element Set details the 

minimum requirement that must be delivered 

to fulfill the NIMAS. It is the responsibility 

of publishers to provide this NIMASconformant XML content file, a package file 

(OPF), a PDF-format copy of the title page (or 

whichever page(s) contain(s) ISBN and 

copyright information), and a full set of the 

content’s images. All of the images included 

within a work must be provided in a folder 

and placeholders entered in the relevant 

XML document indicating their location (all 

images must be included). The preferred 

image type is SVG, next is either PNG or JPG 

format. Images should be rendered in the 

same size/proportion as their originals at 300 

dpi. Images should be named with relative 

path filenames in XML files (example: img 

id=‘‘staricon4’’ src=‘‘./images/U10C02/ 

staricon4.jpg’’ alt=‘‘star icon’’). 

NIMAS-conformant content must be valid 

to the NIMAS 1.1 [see ANSI/NISO Z39.86 

2005 or subsequent revisions]. In addition, 

files are required to use the tags from the 

Baseline Element Set when such tags are 

appropriate. Publishers are encouraged to 

augment the required Baseline Element Set 

with tags from the Optional Element Set 

(elements not included in the Standard) as 

applicable. For the purposes of NIMAS, 

appropriate usage of elements, both baseline 


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and optional, is defined by the DAISY 

Structure Guidelines. Files that do not follow 

these guidelines in the selection and 

application of tags are not conformant to this 

Standard. Both optional elements and 

appropriate structure guidelines may be 

located within Z39.86–2002 and Z39.86–

2005 available from http://www.daisy.org/ 

z3986/. Use of the most current standard is 

recommended. 

THE BASELINE ELEMENT SET

Element Description 

a. Document-level tags 

dtbook ..................................... The root element in the Digital Talking Book DTD. <dtbook> contains metadata in <head> and the contents 

itself in <book>. 

head ........................................ Contains metainformation about the book but no actual content of the book itself, which is placed in <book>. 

book ........................................ Surrounds the actual content of the document, which is divided into <frontmatter>, <bodymatter>, and 

<rearmatter>. <head>, which contains metadata, precedes <book>. 

meta ........................................ Indicates metadata about the book. It is an empty element that may appear repeatedly only in <head>. 

For the most current usage guidelines, please refer to http://www.daisy.org/z3986/ 

b. Structure and Hierarchy 

frontmatter ............................... Usually contains <doctitle> and <docauthor>, as well as preliminary material that is often enclosed in appropriate <level> or <level1> etc. Content may include a copyright notice, a foreword, an acknowledgements 

section, a table of contents, etc. <frontmatter> serves as a guide to the content and nature of a <book>. 

bodymatter .............................. Consists of the text proper of a book, as contrasted with preliminary material <frontmatter> or supplementary information in <rearmatter>. 

rearmatter ................................ Contains supplementary material such as appendices, glossaries, bibliographies, and indices. It follows the 

<bodymatter> of the book. 

level1 ....................................... The highest-level container of major divisions of a book. Used in <frontmatter>, <bodymatter>, and 

<rearmatter> to mark the largest divisions of the book (usually parts or chapters), inside which <level2> subdivisions (often sections) may nest. The class attribute identifies the actual name (e.g., part, chapter) of the 

structure it marks. Contrast with <level>. 

level2 ....................................... Contains subdivisions that nest within <level1> divisions. The class attribute identifies the actual name (e.g., 

subpart, chapter, subsection) of the structure it marks. 

level3 ....................................... Contains sub-subdivisions that nest within <level2> subdivisions (e.g., sub-subsections within subsections). The 

class attribute identifies the actual name (e.g., section, subpart, subsubsection) of the subordinate structure it 

marks. 

level4 ....................................... Contains further subdivisions that nest within <level3> subdivisions. The class attribute identifies the actual 

name of the subordinate structure it marks. 

level5 ....................................... Contains further subdivisions that nest within <level4> subdivisions. The class attribute identifies the actual 

name of the subordinate structure it marks. 

level6 ....................................... Contains further subdivisions that nest within <level5> subdivisions. The class attribute identifies the actual 

name of the subordinate structure it marks. 

h1 ............................................ Contains the text of the heading for a <level1> structure. 

h2 ............................................ Contains the text of the heading for a <level2> structure. 

h3 ............................................ Contains the text of the heading for a <level3> structure. 

h4 ............................................ Contains the text of the heading for a <level4> structure. 

h5 ............................................ Contains the text of the heading for a <level5> structure. 

h6 ............................................ Contains the text of the heading for a <level6> structure. 

For the most current usage guidelines, please refer to http://www.daisy.org/z3986/ 

c. Block elements 

author ...................................... Identifies the writer of a work other than this one. Contrast with <docauthor>, which identifies the author of this 

work. <author> typically occurs within <blockquote> and <cite>. 

blockquote ............................... Indicates a block of quoted content that is set off from the surrounding text by paragraph breaks. Compare with 

<q>, which marks short, inline quotations. 

list ............................................ Contains some form of list, ordered or unordered. The list may have an intermixed heading <hd> (generally 

only one, possibly with <prodnote>), and an intermixture of list items <li> and <pagenum>. If bullets and outline enumerations are part of the print content, they are expected to prefix those list items in content, rather 

than be implicitly generated. 

li ............................................... Marks each list item in a <list>. <li> content may be either inline or block and may include other nested lists. Alternatively it may contain a sequence of list item components, <lic>, that identify regularly occurring content, 

such as the heading and page number of each entry in a table of contents. 

hd ............................................ Marks the text of a heading in a <list> or <sidebar>. 

note ......................................... Marks a footnote, endnote, etc. Any local reference to <note id=‘‘yyy’’> is by <noteref idref=‘‘#yyy’’’’>. [Attribute 

id] 

p .............................................. Contains a paragraph, which may contain subsidiary <list> or <dl>. 

sidebar .................................... Contains information supplementary to the main text and/or narrative flow and is often boxed and printed apart 

from the main text block on a page. It may have a heading <hd>. 

cite ........................................... Marks a reference (or citation) to another document. 

dd ............................................ Marks a definition of the preceding term <dt> within a definition list <dl>. A definition without a preceding <dt> 

has no semantic interpretation, but is visually presented aligned with other <dd>. 

dl ............................................. Contains a definition list, usually consisting of pairs of terms <dt> and definitions <dd>. Any definition can contain another definition list. 


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THE BASELINE ELEMENT SET—Continued 

Element Description 

dt ............................................. Marks a term in a definition list <dl> for which a definition <dd> follows. 

For the most current usage guidelines, please refer to http://www.daisy.org/z3986/ 

d. Inline Elements 

em ........................................... Indicates emphasis. Usually <em> is rendered in italics. Compare with <strong>. 

q .............................................. Contains a short, inline quotation. Compare with <blockquote>, which marks a longer quotation set off from the 

surrounding text. 

strong ...................................... Marks stronger emphasis than <em>. Visually <strong> is usually rendered bold. 

sub .......................................... Indicates a subscript character (printed below a character’s normal baseline). Can be used recursively and/or 

intermixed with <sup>. 

sup .......................................... Marks a superscript character (printed above a character’s normal baseline). Can be used recursively and/or 

intermixed with <sub>. 

br ............................................. Marks a forced line break. 

line ........................................... Marks a single logical line of text. Often used in conjunction with <linenum> in documents with numbered lines. 

[Use only when line breaks must be preserved to capture meaning (e.g., poems, legal texts).] 

linenum .................................... Contains a line number, for example in legal text. [Use only when <line> is used, and only for lines numbered in 

print book.] 

pagenum ................................. Contains one page number as it appears from the print document, usually inserted at the point within the file 

immediately preceding the first item of content on a new page. [NB: Only valid when it includes an id attribute]. 

noteref ..................................... Marks one or more characters that reference a footnote or endnote <note>. Contrast with <annoref>. <noteref> 

and <note> are independently skippable. 

For the most current usage guidelines, please refer to http://www.daisy.org/z3986/ 

e. Tables 

table ........................................ Contains cells of tabular data arranged in rows and columns. A <table> may have a <caption>. It may have descriptions of the columns in <col>s or groupings of several <col> in <colgroup>. A simple <table> may be 

made up of just rows <tr>. A long table crossing several pages of the print book should have separate 

<pagenum> values for each of the pages containing that <table> indicated on the page where it starts. Note 

the logical order of optional <thead>, optional <tfoot>, then one or more of either <tbody> or just rows <tr>. 

This order accommodates simple or large, complex tables. The <thead> and <tfoot> information usually helps 

identify content of the <tbody> rows. For a multiple-page print <table> the <thead> and <tfoot> are repeated 

on each page, but not redundantly tagged. 

td ............................................. Indicates a table cell containing data. 

tr .............................................. Marks one row of a <table> containing <th> or <td> cells. 

For the most current usage guidelines, please refer to http://www.daisy.org/z3986/ 

f. Images 

imggroup ................................. Provides a container for one or more <img> and associated <caption>(s) and <prodnote>(s). A <prodnote> may 

contain a description of the image. The content model allows: 1) multiple <img> if they share a caption, with 

the ids of each <img> in the <caption imgref=‘‘id1 id2 ...’’>, 2) multiple <caption> if several captions refer to a 

single <img id=‘‘xxx’’> where each caption has the same <caption imgref=‘‘xxx’’>, 3) multiple <prodnote> if 

different versions are needed for different media (e.g., large print, braille, or print). If several <prodnote> refer 

to a single <img id=‘‘xxx’’>, each prodnote has the same <prodnote imgref=‘‘xxx’’>. 

img .......................................... Points to the image to be rendered. An <img> may stand alone or be grouped using <imggroup>. Note that providing extracted images is not a requirement of the NIMAS. If they are included, it is best to refer to them 

using <img> within the <imggroup> container. 

caption ..................................... Describes a <table> or <img>. If used with <table> it must follow immediately after the <table> start tag. If used 

with <imggroup> it is not so constrained. 

For the most current usage guidelines, please refer to http://www.daisy.org/z3986/ 

1. The Optional Elements and Guidelines for 

Use 

Publishers are encouraged to apply markup 

beyond the baseline (required) elements. The 

complete DTBook Element Set reflects the 

tags necessary to create the six types of 

Digital Talking Books and Braille output. 

Because of the present necessity to subdivide 

the creation of alternate format materials into 

distinct phases, the Panel determined that 

baseline elements would be provided by 

publishers, and optional elements would be 

added to the NIMAS-conformant files by 

third party conversion entities. In both 

circumstances the protocols for tagging 

digital files should conform to the most 

current ANSI/NISO Z39.86 specification. 

Content converters are directed to the most 

current DAISY Structure Guidelines (http:// 

www.daisy.org/z3986/) for guidance on their 

use. 

Since the publication of the original 

National File Format report from which the 

NIMAS technical specifications were 

derived, ANSI/NISO Z39.86–2002 was 

updated and is now ANSI/NISO Z39.86–

2005. It may be best to avoid using the 

following optional elements which are no 

longer included in ANSI/NISO Z39.86–2005: 

style, notice, hr, and levelhd. 

Also, the following new elements were 

introduced by ANSI/NISO Z39.86–2005 and 

should be considered optional elements for 

the NIMAS: bridgehead, byline, covertitle, 

dateline, epigraph, linegroup, and poem. 

Please refer to ANSI/NISO Z39.86–2005 for 

additional information regarding these 

elements. To access the ANSI/NISO Z39.86–

2005 specification, go to http:// 

www.daisy.org/z3986/. 

2. Package File 

A package file describes a publication. It 

identifies all other files in the publication 

and provides descriptive and access 

information about them. A publication must 

include a package file conforming to the 

NIMAS. The package file is based on the 


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Open eBook Publication Structure 1.2 

package file specification (For most recent 

detail please see http://www.openebook.org/ 

oebps/oebps1.2/download/oeb12- 

xhtml.htm#sec2). A NIMAS package file 

must be an XML-valid OeB PS 1.2 package 

file instance and must meet the following 

additional standards: 

The NIMAS Package File must include the 

following Dublin Core (dc:)metadata: 

dc:Title. 

dc:Creator (if applicable). 

dc:Publisher. 

dc:Date (Date of NIMAS-compliant file 

creation—yyyy-mm-dd). 

dc:Format (=‘‘NIMAS 1.0’’). 

dc:Identifier (a unique identifier for the 

NIMAS-compliant digital publication, e.g., 

print ISBN + ‘‘-NIMAS’’—exact format to 

be determined). 

dc:Language (one instance, or multiple in the 

case of a foreign language textbook, etc.). 

dc:Rights (details to be determined). 

dc:Source (ISBN of print version of textbook). 

And the following x-metadata items: 

nimas-SourceEdition (the edition of the print 

textbook). 

nimas-SourceDate (date of publication of the 

print textbook). 

The following metadata were proposed 

also as a means of facilitating recordkeeping, 

storage and file retrieval: 

dc:Subject (Lang Arts, Soc Studies, etc.). 

nimas-grade (specific grade level of the print 

textbook, e.g.; Grade 6). 

nimas gradeRange (specific grade range of the 

print textbook, e.g.; Grades 4–5). 

An additional suggestion references the use 

of: 

dc:audience:educationLevel (for the grade 

and gradeRange identifiers, noting that 

Dublin Core recommends using 

educationLevel with an appropriate 

controlled vocabulary for context, and 

recommends the U.S. Department of 

Education’s Level of Education vocabulary 

online at http://www.ed.gov/admin/ 

reference/index.jsp. Using educationLevel 

obviates the need for a separate field for 

gradeRange since dc elements can repeat 

more than once. A book used in more than 

one grade would therefore have two 

elements, one with value ‘‘Grade 4’’ and 

another with value ‘‘Grade 5.’’

A final determination as to which of these 

specific metadata elements to use needs to be 

clarified in practice. The package manifest 

must list all provided files (text, images, etc.). 

(Note: For purposes of continuity and to 

minimize errors in transformation and 

processing, the NIMAS-compliant digital text 

should be provided as a single document.) 

3. Modular Extensions 

The most current DAISY/NISO standard, 

formally the ANSI/NISO Z39.86, 

Specifications for the Digital Talking Book 

defines a comprehensive system for creating 

Digital Talking Books. A part of this standard 

is DTBook, an XML vocabulary that provides 

a core set of elements needed to produce 

most types of books. However, DTBook is not 

intended to be an exhaustive vocabulary for 

all types of books. 

Guidelines for the correct approach to 

extend the DAISY/NISO standard have been 

established. Mathematics, video support, 

testing, workbooks, music, dictionaries, 

chemistry, and searching are some of the 

extensions that have been discussed. Visit 

http://www.daisy.org/z3986/ to learn more 

about modular extensions. 

End 

Appendix D to Part 300—Maintenance of 

Effort and Early Intervening Services 

LEAs that seek to reduce their local 

maintenance of effort in accordance with 

§ 300.205(d) and use some of their Part B 

funds for early intervening services under 

§ 300.226 must do so with caution because 

the local maintenance of effort reduction 

provision and the authority to use Part B 

funds for early intervening services are 

interconnected. The decisions that an LEA 

makes about the amount of funds that it uses 

for one purpose affect the amount that it may 

use for the other. Below are examples that 

illustrate how §§ 300.205(d) and 300.226(a) 

affect one another. 

Example 1: In this example, the amount 

that is 15 percent of the LEA’s total grant (see 

§ 300.226(a)), which is the maximum amount 

that the LEA may use for early intervening 

services (EIS), is greater than the amount that 

may be used for local maintenance of effort 

(MOE) reduction (50 percent of the increase 

in the LEA’s grant from the prior year’s grant) 

(see § 300.205(a)). 

Prior Year’s Allocation .................. $900,000. 

Current Year’s Allocation .............. 1,000,000. 

Increase ........................................... 100,000. 

Maximum Available for MOE Reduction ........................................ 50,000. 

Maximum Available for EIS .......... 150,000. 

If the LEA chooses to set aside $150,000 for 

EIS, it may not reduce its MOE (MOE 

maximum $50,000 less $150,000 for EIS 

means $0 can be used for MOE). 

If the LEA chooses to set aside $100,000 for 

EIS, it may not reduce its MOE (MOE 

maximum $50,000 less $100,000 for EIS 

means $0 can be used for MOE). 

If the LEA chooses to set aside $50,000 for 

EIS, it may not reduce its MOE (MOE 

maximum $50,000 less $50,000 for EIS 

means $0 can be used for MOE). 

If the LEA chooses to set aside $30,000 for 

EIS, it may reduce its MOE by $20,000 (MOE 

maximum $50,000 less $30,000 for EIS 

means $20,000 can be used for MOE). 

If the LEA chooses to set aside $0 for EIS, 

it may reduce its MOE by $50,000 (MOE 

maximum $50,000 less $0 for EIS means 

$50,000 can be used for MOE). 

Example 2: In this example, the amount 

that is 15 percent of the LEA’s total grant (see 

§ 300.226(a)), which is the maximum amount 

that the LEA may use for EIS, is less than the 

amount that may be used for MOE reduction 

(50 percent of the increase in the LEA’s grant 

from the prior year’s grant) (see § 300.205(a)). 

Prior Year’s Allocation .................. $1,000,000. 

Current Year’s Allocation .............. 2,000,000. 

Increase ........................................... 1,000,000. 

Maximum Available for MOE Reduction ........................................ 500,000. 

Maximum Available for EIS .......... 300,000. 

If the LEA chooses to use no funds for 

MOE, it may set aside $300,000 for EIS (EIS 

maximum $300,000 less $0 means $300,000 

for EIS). 

If the LEA chooses to use $100,000 for 

MOE, it may set aside $200,000 for EIS (EIS 

maximum $300,000 less $100,000 means 

$200,000 for EIS). 

If the LEA chooses to use $150,000 for 

MOE, it may set aside $150,000 for EIS (EIS 

maximum $300,000 less $150,000 means 

$150,000 for EIS). 

If the LEA chooses to use $300,000 for 

MOE, it may not set aside anything for EIS 

(EIS maximum $300,000 less $300,000 means 

$0 for EIS). 

If the LEA chooses to use $500,000 for 

MOE, it may not set aside anything for EIS 

(EIS maximum $300,000 less $500,000 means 

$0 for EIS). 

Appendix E to Part 300—Index for 

IDEA—Part B Regulations (34 CFR Part 

300) 

ACCESS TO 

• Access rights (Parents) ............................................................................................................................................... 300.613. 

• Assistive technology devices in child’s home ......................................................................................................... 300.105(b). 

• Disciplinary records ................................................................................................................................................... 300.229. 

• Education records (Procedural safeguards notice) ................................................................................................... 300.504(c)(4). 

• General curriculum (Ensure access to) ..................................................................................................................... 300.39(b)(3)(ii). 

• Instructional materials (see §§ 300.172, 300.210). 

• List of employees who may have access to records ................................................................................................ 300.623(d). 

• Parent’s private insurance proceeds ......................................................................................................................... 300.154(e). 

• Record of access (Confidentiality) ............................................................................................................................ 300.614. 

ACCESSIBILITY STANDARDS (Regarding construction) 

• Americans with Disabilities Accessibility Standards for Buildings and Facilities ............................................... 300.718(b)(1). 

• Uniform Federal Accessibility Standards ................................................................................................................ 300.718(b)(2). 

ACCOMMODATIONS 

• In assessments ............................................................................................................................................................ 300.320(a)(6)(i). 

• State level activities in support of ............................................................................................................................ 300.704(b)(4)(x). 


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ACT (Definition) ............................................................................................................................................................ 300.4. 

ADD AND ADHD (See ‘‘Attention deficit disorder’’ and ‘‘Attention deficit hyperactivity disorder’’) 

ADDITIONAL DISCLOSURE OF INFORMATION REQUIREMENT .......................................................................... 300.512(b). 

ADULT CORRECTIONAL FACILITIES (See ‘‘Correctional facilities’’) 

ADULT PRISONS (Children with disabilities in) 

• Divided State agency responsibility ......................................................................................................................... 300.607. 

• FAPE requirements: 

Æ Exception to FAPE ............................................................................................................................................. 300.102(a)(2). 

Æ Modifications of IEP or placement .................................................................................................................... 300.324(d)(2). 

Æ Requirements that do not apply ........................................................................................................................ 300.324(d)(1). 

• Governor ..................................................................................................................................................................... 300.149(d). 

• Other public agency responsibility ........................................................................................................................... 300.149(d). 

ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See ‘‘Child with a disability,’’ § 300.8(c)(1)(i), (c)(3), 

(c)(4)(i), (c)(5), (c)(6), (c)(8), (c)(9)(ii), (c)(11), (c)(12)) 

ADVISORY BOARD 

(Secretary of the Interior) .............................................................................................................................................. 300.714. 

ADVISORY PANEL (See ‘‘State advisory panel’’) 

AGE–APPROPRIATE CLASSROOM ............................................................................................................................. 300.116(e). 

ALLOCATION(S) 

• By-pass for private school children (see § 300.191(d)). 

• To LEAs (see §§ 300.705(b), 300.816) 

• To Outlying areas ....................................................................................................................................................... 300.701(a). 

• To Secretary of the Interior ....................................................................................................................................... 300.707. 

• To States (see §§ 300.703, 300.807 through 300.810).

ALLOWABLE COSTS 

(By SEA for State administration) ................................................................................................................................ 300.704(a). 

ALTERATION OF FACILITIES ..................................................................................................................................... 300.718(b). 

ALTERNATE ASSESSMENTS 

• Aligned with alternate achievement standards ........................................................................................................ 300.320(a)(2)(ii). 

• Development and provision of in accordance with ESEA ...................................................................................... 300.704(b)(4)(x). 

• Participation determined by IEP Team .................................................................................................................... 300.320(a)(6)(ii). 

ALTERNATIVE PLACEMENTS (Continuum) .............................................................................................................. 300.115. 

ALTERNATIVE STRATEGIES to meet transition objectives ...................................................................................... 300.324(c)(1). 

AMENDMENTS 

• To LEA policies and procedures .............................................................................................................................. 300.220(b). 

• To State policies and procedures: 

Æ Made by State ..................................................................................................................................................... 300.176(b). 

Æ Required by the Secretary .................................................................................................................................. 300.176(c). 

ANNUAL GOALS (IEPs) 

• FAPE for children suspended or expelled (see §§ 300.101(a), 300.530(d)) 

• IEP content: 

Æ How progress will be measured ........................................................................................................................ 300.320(a)(3). 

Æ Special education and related services ............................................................................................................. 300.320(a)(4). 

Æ Statement of measurable annual goals .............................................................................................................. 300.320(a)(2)(i). 

• Review and revision of IEP ....................................................................................................................................... 300.324(b)(1). 

• Review of existing evaluation data ........................................................................................................................... 300.305(a). 

ANNUAL REPORT 

Of children served (see §§ 300.640 through 300.646) 

On education of Indian children .................................................................................................................................. 300.715. 

APPENDICES TO PART 300 (A through E) 

Excess Costs Calculation (see Appendix A) 

Proportionate Share Calculation (see Appendix B) 

National Instructional Materials Accessibility Standard (NIMAS) (see Appendix C) 

Maintenance of Effort and Early Intervening Services (see Appendix D) 

Index for IDEA—Part B Regulations (This Appendix E) 

APPLICABILITY OF THIS PART to State, local, and private agencies ..................................................................... 300.2. 

APPLICATION 

• Initial admission to public school ............................................................................................................................ 300.518(b). 

• Initial services ............................................................................................................................................................ 300.518(c). 

ASSESSMENT(S) 

• For specific learning disability (see § 300.309(a)(2)(ii), (b)(2)) 

• Functional behavioral assessment (see § 300.530(d)(1)(ii), (f)(1)(i)) 

• In evaluation (see §§ 300.304(b), (c), 300.305(a)(1)(ii), (c), (d)) 

• Of leisure function (in ‘‘Recreation’’) ....................................................................................................................... 300.34(c)(11)(i). 

ASSESSMENTS—STATE and DISTRICT-WIDE 

Alternate assessments (see § 300.320 (a)(2)(ii), (a)(6)(ii)) 

Performance indicators .................................................................................................................................................. 300.157. 

ASSISTANCE UNDER OTHER FEDERAL PROGRAMS ............................................................................................. 300.186. 

ASSISTIVE TECHNOLOGY (AT) 

• AT devices .................................................................................................................................................................. 300.5. 

• AT services ................................................................................................................................................................. 300.6. 


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• Consideration of special factors ................................................................................................................................ 300.324(a)(2)(v). 

• Hearing aids ............................................................................................................................................................... 300.113. 

• Requirement: 

Æ Ensure availability of ......................................................................................................................................... 300.105(a). 

Æ Use of AT in child’s home ................................................................................................................................. 300.105(b). 

• Surgically implanted medical devices (see §§ 300.5, 300.34(b), 300.113(b)) 

ASTHMA ........................................................................................................................................................................ 300.8(c)(9). 

ATTENTION DEFICIT DISORDER (ADD) .................................................................................................................... 300.8(c)(9). 

ATTENTION DEFICIT HYPERACTIVITY DISORDER (ADHD) .................................................................................. 300.8(c)(9). 

ATTORNEYS’ FEES ....................................................................................................................................................... 300.517. 

• Award of fees ............................................................................................................................................................. 300.517(c). 

• Prohibition on use of funds for ................................................................................................................................. 300.517(b). 

• When court reduces fee awards ................................................................................................................................ 300.517(c)(4). 

AUDIOLOGY .................................................................................................................................................................. 300.34(c)(1). 

AUTHORITY (A–O) 

• Of guardian ................................................................................................................................................................. 300.30(a)(3). 

• Of hearing officer (Discipline) .................................................................................................................................. 300.532(b). 

• Of school personnel (Discipline) .............................................................................................................................. 300.530. 

• Of Secretary to monitor and enforce ........................................................................................................................ 300.609. 

AUTHORITY (P–Z) 

• Parental authority to inspect and review records .................................................................................................... 300.613. 

• State complaint procedures ....................................................................................................................................... 300.151(b). 

• Waiver request (Signed by person with authority) .................................................................................................. 300.164(c)(1). 

AUTISM ......................................................................................................................................................................... 300.8(c)(1). 

AVERAGE PER-PUPIL EXPENDITURE 

(Definition) ..................................................................................................................................................................... 300.717(d). 

BASE PAYMENTS (to LEAs) (See § 300.705(b)(1), (b)(2)) 

BASIS OF KNOWLEDGE: Protection for children not yet eligible ............................................................................ 300.534(b). 

BEHAVIORAL ASSESSMENT (See ‘‘Functional behavioral assessment’’) 

BEHAVIORAL INTERVENTION(S) .............................................................................................................................. 300.530(f). 

• Assist in developing .................................................................................................................................................. 300.34(c)(10)(vi). 

• Behavioral intervention plan .................................................................................................................................... 300.530(f). 

• Consideration of by IEP Team .................................................................................................................................. 300.324(a)(2)(i). 

• Not a manifestation of disability .............................................................................................................................. 300.530(d). 

• Regular education teacher (Determination of) ......................................................................................................... 300.324(a)(3). 

• Suspension and expulsion rates ............................................................................................................................... 300.170(b). 

BENCHMARKS OR SHORT TERM OBJECTIVES ........................................................................................................ 300.320(a)(2)(ii). 

BENEFITS TO NONDISABLED (Permissive use of funds) ......................................................................................... 300.208(a)(1). 

BIA (See ‘‘Bureau of Indian Affairs’’) 

BLIND(NESS): Under ‘‘Visual impairment’’

• Access to instructional materials (see §§ 300.172, 300.210(b)(3)) 

• Consideration of special factors by IEP Team .......................................................................................................... 300.324(a)(2). 

• Definition .................................................................................................................................................................... 300.8(c)(13). 

BRAILLE (see §§ 300.29(b), 300.324(a)(2)(iii)) 

BUREAU OF INDIAN AFFAIRS (BIA) 

• BIA funded schools ................................................................................................................................................... 300.28(c). 

• In definition of ‘‘LEA’’ ............................................................................................................................................... 300.28(c). 

• See also §§ 300.21(c), 300.713(b), (d), 300.714 

• Use of funds ............................................................................................................................................................... 300.712(d). 

BUSINESS DAY 

• Definition .................................................................................................................................................................... 300.11(b). 

• See ‘‘Timelines,’’ ‘‘Timelines—Discipline’’

BY-PASS: Private school children with disabilities (see §§ 300.190 through 300.198) 

CALENDAR DAY 

• Definition .................................................................................................................................................................... 300.11(a). 

• See ‘‘Timelines,’’ ‘‘Timelines—Discipline’’

CERTIFICATION 

• Annual report of children served ............................................................................................................................. 300.643. 

CHANGE OF PLACEMENT BECAUSE OF DISCIPLINARY REMOVALS ................................................................. 300.536. 

CHARTER SCHOOLS 

• Applicability of this part to ...................................................................................................................................... 300.2(b)(1)(ii). 

• Definition .................................................................................................................................................................... 300.7. 

• Exception: joint establishment of eligibility ............................................................................................................ 300.223(b). 

• In definition of ‘‘Elementary school’’ ....................................................................................................................... 300.13. 

• In definition of ‘‘LEA’’ ............................................................................................................................................... 300.28(b)(2). 

• In definition of ‘‘Public agency’’ ............................................................................................................................... 300.33. 

• In definition of ‘‘Secondary school’’ ........................................................................................................................ 300.36.

• State-level activities regarding charter schools ........................................................................................................ 300.704(b)(4)(ix). 

• Treatment of charter schools and their students ..................................................................................................... 300.209. 

CHIEF EXECUTIVE OFFICER (CEO) 


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• Adult prisons (Assigned by Governor) ..................................................................................................................... 300.149(d). 

• Methods of ensuring services (see § 300.154(a), (c)) 

CHILD COUNT 

• Annual report of children served (see §§ 300.640 through 300.646) 

• Certification ................................................................................................................................................................ 300.643. 

• Criteria for .................................................................................................................................................................. 300.644. 

• Dates for count ........................................................................................................................................................... 300.641(a). 

• Indian children .......................................................................................................................................................... 300.712(b). 

• LEA records of private school children ................................................................................................................... 300.132(c). 

• Procedures for counting children served ................................................................................................................. 300.645(a). 

CHILD FIND 

• Basic requirement ...................................................................................................................................................... 300.111(a). 

• Children advancing from grade to grade .................................................................................................................. 300.111(c)(1). 

• Developmental delay ................................................................................................................................................. 300.111(b). 

• Highly mobile children ............................................................................................................................................. 300.111(c)(2). 

• Homeless children ..................................................................................................................................................... 300.111(a)(1)(i). 

• Indian children aged 3 through 5 ............................................................................................................................. 300.712(d)(1). 

• Migrant children ........................................................................................................................................................ 300.111(c)(2). 

• Private school children .............................................................................................................................................. 300.131(b). 

• Protections for children not determined eligible ..................................................................................................... 300.534. 

• Secretaries of the Interior and Health and Human Services (Memo of agreement) .............................................. 300.708(i)(2). 

CHILD WITH A DISABILITY (CWD) 

• Adversely affects educational performance (see § 300.8(c)(1)(i), (c)(3), (c)(4)(i), (c)(5), (c)(6), (c)(8), (c)(9)(ii), 

(c)(11), (c)(12), (c)(13)) 

• Children experiencing developmental delay(s) ....................................................................................................... 300.8(b)(1). 

• Children who need only a related service ............................................................................................................... 300.8(a)(2). 

• Definition .................................................................................................................................................................... 300.8(a)(1). 

• Individual disability terms (Defined) ....................................................................................................................... 300.8(c). 

• Requirement ............................................................................................................................................................... 300.111(b). 

• See ‘‘Developmental delay(s)’’

CHILD’S STATUS DURING PROCEEDINGS 

• Discipline (see §§ 300.530(f)(2), 300.533) 

• Pendency (Stay put) ................................................................................................................................................... 300.518. 

CHILDREN ADVANCING FROM GRADE TO GRADE 

• Child find ................................................................................................................................................................... 300.111(c)(1). 

• FAPE ........................................................................................................................................................................... 300.101(c). 

CHILDREN EXPERIENCING DEVELOPMENTAL DELAY(S) (See ‘‘Developmental delay(s)’’) 

CHILDREN’S RIGHTS (Confidentiality) ....................................................................................................................... 300.625. 

CIVIL ACTION—PROCEEDINGS .................................................................................................................................. 300.516. 

• Finality of review decision ....................................................................................................................................... 300.514(d). 

• Mediation ................................................................................................................................................................... 300.506(b)(6)(i). 

• Procedural safeguards notice .................................................................................................................................... 300.504(c)(12). 

• See ‘‘Court(s)’’

COCHLEAR IMPLANT (See ‘‘Surgically implanted medical device’’) ...................................................................... 300.34(b). 

CODE OF CONDUCT 

• Case-by-case determination ....................................................................................................................................... 300.530(a). 

• Manifestation determination review ......................................................................................................................... 300.530(e). 

• Protections for children not determined eligible ..................................................................................................... 300.534(a). 

COMMINGLING—PROHIBITION AGAINST ............................................................................................................... 300.162(b). 

COMMUNITY-BASED WAIVERS (Public benefits or insurance) .............................................................................. 300.154(d)(2)(iii). 

COMPLAINT(S): DUE PROCESS 

• Attorneys’ fees ............................................................................................................................................................ 300.517(a)(1). 

• Civil action ................................................................................................................................................................. 300.516(a). 

• Pendency .................................................................................................................................................................... 300.518(a). 

• Private school children (Complaints) ....................................................................................................................... 300.140(c). 

• See ‘‘Due process hearing(s) and reviews’’

COMPLAINT(S): STATE COMPLAINT PROCEDURES (A–P) 

• Adoption of State complaint procedures ................................................................................................................. 300.151(a). 

• Complaint investigations (SEA allocations for) ....................................................................................................... 300.704(b)(3)(i). 

• Filing a complaint ...................................................................................................................................................... 300.153(a). 

• Minimum State complaint procedures ..................................................................................................................... 300.152. 

• Private schools (State complaints) ............................................................................................................................ 300.140. 

• Procedural safeguards notice .................................................................................................................................... 300.504(c). 

• Provisions for services under by-pass ...................................................................................................................... 300.191(d). 

• Public agency failure to implement hearing decision ............................................................................................. 300.152(c)(3). 

COMPLAINT(S): STATE COMPLAINT PROCEDURES (Q–Z) 

• See also §§ 300.151 through 300.153 

• Time limit ................................................................................................................................................................... 300.152(a). 

• Waiver of nonsupplanting requirement ................................................................................................................... 300.163(c)(2). 

COMPLIANCE—COMPLY (A–M) 

• Child find requirements ............................................................................................................................................ 300.111(a). 

• Department procedures (If failure to comply) .......................................................................................................... 300.604(c). 

• FAPE requirement ...................................................................................................................................................... 300.101(a). 


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• LEA and State agency compliance ........................................................................................................................... 300.222(a). 

• LRE (State funding mechanism) ............................................................................................................................... 300.114(b). 

• Modifications of policies:.

Æ Made by LEA or State agency ............................................................................................................................ 300.176(b). 

Æ Required by SEA ................................................................................................................................................ 300.220(c). 

Æ Required by Secretary ........................................................................................................................................ 300.176(c). 

• Monitoring (See ‘‘Monitor; Monitoring activities’’); 

COMPLIANCE—COMPLY (N–Z) 

• Physical education ..................................................................................................................................................... 300.108. 

• Private school placement by parents ........................................................................................................................ 300.148(e). 

• Private school placements by public agencies: 

Æ IEP requirement .................................................................................................................................................. 300.325(c). 

Æ SEA (Monitor compliance) ................................................................................................................................ 300.147(a) 

• Public participation requirements ............................................................................................................................ 300.165. 

• SEA responsibility if LEA does not comply ............................................................................................................ 300.227(a). 

• State funding mechanism (LRE) ............................................................................................................................... 300.114(b). 

• COMPREHENSIVE EVALUATION ........................................................................................................................... 300.304(c)(6). 

CONDITION OF ASSISTANCE 

• LEA eligibility ............................................................................................................................................................ 300.200. 

• State eligibility ........................................................................................................................................................... 300.100. 

CONFIDENTIALITY (A–C) 

• Access rights .............................................................................................................................................................. 300.613. 

• Children’s rights ......................................................................................................................................................... 300.625. 

• Consent ....................................................................................................................................................................... 300.622. 

CONFIDENTIALITY (D–E) 

Definitions: 

Æ Destruction of information ................................................................................................................................. 300.611(a). 

Æ Education records ............................................................................................................................................... 300.611(b). 

Æ Participating agency ........................................................................................................................................... 300.611(c). 

• Department use of personally identifiable information .......................................................................................... 300.627. 

• Disciplinary information ........................................................................................................................................... 300.229. 

• Enforcement by SEA .................................................................................................................................................. 300.626. 

CONFIDENTIALITY (F–Z) 

• Family Educational Rights and Privacy Act: 

Æ Children’s rights ................................................................................................................................................. 300.625. 

Æ Disciplinary records ........................................................................................................................................... 300.535(b)(2). 

Æ In definition of ‘‘Education records’’ ................................................................................................................ 300.611(b). 

Æ Notice to parents ................................................................................................................................................ 300.612(a)(3). 

• Fees ............................................................................................................................................................................. 300.617. 

• Hearing procedures .................................................................................................................................................... 300.621. 

• List of types and location of information ................................................................................................................. 300.616. 

• Notice to parents ........................................................................................................................................................ 300.612(a). 

• Opportunity for a hearing ......................................................................................................................................... 300.619. 

• Parental authority to inspect and review records .................................................................................................... 300.613(b). 

• Record of access ......................................................................................................................................................... 300.614. 

• Records on more than one child ............................................................................................................................... 300.615. 

• Result of hearing ........................................................................................................................................................ 300.620. 

• Safeguards .................................................................................................................................................................. 300.623. 

• State eligibility requirement ...................................................................................................................................... 300.123. 

CONSENT (A–I) 

• Confidentiality (Records to non-agency officials) .................................................................................................... 300.622(a). 

• Definition .................................................................................................................................................................... 300.9. 

• IEP vs. IFSP ................................................................................................................................................................ 300.323(b)(2)(ii). 

• Initial evaluations ...................................................................................................................................................... 300.300(a). 

• Initial provision of services ....................................................................................................................................... 300.300(b). 

CONSENT (J–Z) 

• Not required: 

Æ Before administering a test or other evaluation to all children ...................................................................... 300.300(d)(1)(ii). 

Æ Before reviewing existing data .......................................................................................................................... 300.300(d)(1)(i). 

Æ When screening for instructional purposes ...................................................................................................... 300.302. 

• Private insurance (Accessing) ................................................................................................................................... 300.154(e)(1). 

• Reasonable efforts to obtain consent: 

Æ For initial evaluation .......................................................................................................................................... 300.300(a)(1)(iii). 

Æ For initial evaluations for wards of the State ................................................................................................... 300.300(a)(2). 

Æ For initial provision of services ........................................................................................................................ 300.300(b)(2). 

Æ Reasonable efforts requirements ........................................................................................................................ 300.300(d)(5). 

• Reevaluations ............................................................................................................................................................. 300.300(c)(2). 

• Release of information from education records ....................................................................................................... 300.622 

CONSIDERATION OF SPECIAL FACTORS (by IEP Team) ........................................................................................ 300.324(a)(2). 

CONSISTENCY WITH STATE POLICIES: LEA ........................................................................................................... 300.201. 

CONSTRUCTION 

• Accessibility standards .............................................................................................................................................. 300.718(b). 

• Exception to maintenance of effort (Termination of costly expenditures for construction) ................................. 300.204(d). 

• Private schools (No funds may be used for) ............................................................................................................ 300.144(e). 


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CONSTRUCTION CLAUSES (A–I) 

• Child find (Nothing requires classifying children by disability) ............................................................................ 300.111(d). 

• Civil action (Exhaust administrative remedies under Part B before filing a civil action) .................................... 300.516(e). 

• Early intervening services ......................................................................................................................................... 300.226(c). 

• Funding mandated by State law ............................................................................................................................... 300.166. 

• Hearing: right of parent to appeal decision .............................................................................................................. 300.513(b). 

• Highly qualified SEA or LEA staff ............................................................................................................................ 300.156(e). 

• Highly qualified teacher ............................................................................................................................................ 300.18(f). 

• IEP (Inclusion of additional information beyond explicit requirements) .............................................................. 300.320(d)(1). 

• IEP (Information in more than one component not required) ................................................................................ 300.320(d)(2). 

CONSTRUCTION CLAUSES (J–Z) 

• Prohibition on mandatory medication ..................................................................................................................... 300.174(b). 

• Referral to and action by law enforcement and judicial authorities ...................................................................... 300.535(a). 

• Secretary’s authority to monitor enforcement under GEPA .................................................................................... 300.609. 

• State Medicaid agency (Nothing alters requirements imposed under Titles XIX or XXI or other public benefits or insurance program).

300.154(h). 

• Transition service ...................................................................................................................................................... 300.324(c)(2). 

CONSUMER PRICE INDEX For All Urban Consumers (regarding rate of inflation) (See §§ 300.702(b), 

300.704(a)(2)(ii), (b)(2), 300.812(b)(2)) 

CONTENT OF IEP ......................................................................................................................................................... 300.320(a). 

CONTINUUM OF ALTERNATIVE PLACEMENTS (See ‘‘Least restrictive environment’’) ...................................... 300.115. 

CONTROLLED SUBSTANCE (Definition) .................................................................................................................... 300.530(i)(1). 

COORDINATION OF SERVICES 

• Methods of ensuring services .................................................................................................................................... 300.154(a). 

• Secretary of the Interior ............................................................................................................................................. 300.708(i)(1). 

Æ Advisory board (Service coordination within BIA) ......................................................................................... 300.714(b)(1). 

Æ Payments for children aged 3 through 5 ........................................................................................................... 300.712(a). 

Æ Plan for coordination of services ....................................................................................................................... 300.713. 

• See ‘‘Interagency agreements,’’ ‘‘Interagency coordination’’

• State advisory panel (Advise SEA on) ..................................................................................................................... 300.169(e). 

• Use of LEA funds for early intervening services ..................................................................................................... 300.208(a)(2). 

• Use of SEA allocations for transition ....................................................................................................................... 300.704(b)(4)(vi). 

CO-PAY OR DEDUCTIBLE (Public benefits or insurance) ......................................................................................... 300.154(d)(2)(ii). 

CORE ACADEMIC SUBJECTS 

• Definition .................................................................................................................................................................... 300.10. 

• See ‘‘Highly qualified special education teachers’’ ................................................................................................. 300.18. 

CORRECTIONAL FACILITIES 

• Applicability of this part to ...................................................................................................................................... 300.2(b)(1)(iv). 

• Divided State agency responsibility ......................................................................................................................... 300.607. 

• Exception to FAPE (Children in adult facilities) ..................................................................................................... 300.102(a)(2). 

• See also ‘‘Adult prisons’’

• State advisory panel (Representatives on) ............................................................................................................... 300.168(a)(11). 

• State juvenile-adult correctional facilities ................................................................................................................ 300.2(b)(1)(iv). 

• Transfer of rights to children in ............................................................................................................................... 300.520(a)(2). 

CORRECTIVE ACTION (PLAN) 

• Corrective actions to achieve compliance (see §§ 300.152(b)(2)(iii), 300.607) 

• Monitoring activities .................................................................................................................................................. 300.120(b)(2). 

• Needs intervention by Secretary ............................................................................................................................... 300.604(b)(2)(i). 

• State advisory panel (Advise SEA on) ..................................................................................................................... 300.169(d). 

COUNSELING SERVICES (Definition) ......................................................................................................................... 300.34(c)(2). 

COUNT (See ‘‘Child count’’) 

COURT(S) 

• Attorneys’ fees ............................................................................................................................................................ 300.517. 

• Civil action ................................................................................................................................................................. 300.516. 

• Court order: 

Æ Exception to FAPE for certain ages ................................................................................................................... 300.102(a)(1). 

• Judicial review: 

Æ By-pass ................................................................................................................................................................ 300.197. 

Æ Department procedures ...................................................................................................................................... 300.184. 

• New interpretation of Act by courts requiring modification .................................................................................. 300.176(c)(2). 

• Reimbursement for private school placement (see § 300.148(b) through (e)) 

CRIME (See ‘‘Reporting a crime’’) ................................................................................................................................ 300.535. 

CRITERIA (A–I) 

• Child count ................................................................................................................................................................. 300.644. 

• Child eligibility (Determinant factor) ....................................................................................................................... 300.306(b)(1). 

• IEP Team (Public agency representative) ................................................................................................................. 300.321(a)(4). 

• Independent educational evaluation ........................................................................................................................ 300.502. 

CRITERIA (J–Z) 

• Specific learning disability (see §§ 300.307, 300.309) 

• Surrogate parents ....................................................................................................................................................... 300.519(d). 

CURRENT PLACEMENT (Discipline) 

• Authority of hearing officer ...................................................................................................................................... 300.532(b). 

• Placement during appeals ......................................................................................................................................... 300.533. 


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DATA (A–L) 

• Allocation of remaining funds to LEAs .................................................................................................................... 300.816(d). 

• Average per-pupil expenditure (Definition) ............................................................................................................. 300.717(d). 

• By-pass (Provision of services under) ...................................................................................................................... 300.191(c)(2). 

• Determination of needed evaluation data ................................................................................................................ 300.305(c). 

• Disaggregated data ..................................................................................................................................................... 300.704(b)(4)(xi). 

• Evaluation data: 

Æ Procedures for determining eligibility and placement .................................................................................... 300.306(c). 

Æ Review of existing data ...................................................................................................................................... 300.305(a)(1). 

• Grants to States most recent data ............................................................................................................................. 300.703(c)(1)(ii). 

• LRE (Placements—meaning of evaluation data ........................................................................................................ 300.116(a)(1). 

DATA (M–Z) 

• Parental consent (Not required for reviewing existing evaluation data) ................................................................ 300.300(d)(1)(i). 

• State advisory council (Advise SEA on) .................................................................................................................. 300.169(c). 

• Suspension and expulsion rates ............................................................................................................................... 300.170(a). 

DAY 

• Business day (Definition) .......................................................................................................................................... 300.11(b). 

• Day (Calendar) ............................................................................................................................................................ 300.11(a). 

• Discipline (See ‘‘Timelines—Discipline’’) 

• School day (Definition) ............................................................................................................................................. 300.11(c). 

• See ‘‘Timelines’’.

DECREASE IN ENROLLMENT (Exception to LEA maintenance of effort) ................................................................ 300.204(b). 

DECREASE IN FUNDS (To States) ............................................................................................................................... 300.703(d). 

DEDUCTIBLE OR CO-PAY (Public benefits or insurance) ......................................................................................... 300.154(d)(2)(ii). 

DEFINITIONS (A–D) 

• Act ............................................................................................................................................................................... 300.4. 

• Assistive technology device ...................................................................................................................................... 300.5. 

• Assistive technology service ..................................................................................................................................... 300.6. 

• At no cost ................................................................................................................................................................... 300.39(b)(1). 

• Audiology ................................................................................................................................................................... 300.34(c)(1). 

• Autism ........................................................................................................................................................................ 300.8(c)(1). 

• Average per-pupil expenditure in public elementary and secondary schools in the United States .................... 300.717(d). 

• Business day ............................................................................................................................................................... 300.11(b). 

• Charter school ............................................................................................................................................................ 300.7. 

• Child with a disability ............................................................................................................................................... 300.8(a)(1). 

• Consent ....................................................................................................................................................................... 300.9. 

• Controlled substance ................................................................................................................................................. 300.530(i)(1). 

• Core academic subjects .............................................................................................................................................. 300.10. 

• Counseling services ................................................................................................................................................... 300.34(c)(2). 

• Day; business day; school day .................................................................................................................................. 300.11. 

• Deaf-blindness ............................................................................................................................................................ 300.8(c)(2). 

• Deafness ...................................................................................................................................................................... 300.8(c)(3). 

• Destruction (Of information) ..................................................................................................................................... 300.611(a). 

• Developmental delays(s) ............................................................................................................................................ 300.8(b). 

DEFINITIONS (E–H) 

• Early identification and assessment ......................................................................................................................... 300.34(c)(3). 

• Education records ...................................................................................................................................................... 300.611(b). 

• Educational service agency ....................................................................................................................................... 300.12. 

• Elementary school ...................................................................................................................................................... 300.13. 

• Emotional disturbance ............................................................................................................................................... 300.8(c)(4). 

• Equipment .................................................................................................................................................................. 300.14. 

• Evaluation ................................................................................................................................................................... 300.15. 

• Excess costs ................................................................................................................................................................ 300.16. 

• Extended school year services .................................................................................................................................. 300.106(b). 

• Free appropriate public education ........................................................................................................................... 300.17. 

• Freely associated States ............................................................................................................................................. 300.717(a). 

• Hearing impairment ................................................................................................................................................... 300.8(c)(5). 

• Highly qualified special education teacher .............................................................................................................. 300.18(b). 

• Homeless children ..................................................................................................................................................... 300.19. 

DEFINITIONS (I) 

• IEP Team .................................................................................................................................................................... 300.23. 

• Illegal drug ................................................................................................................................................................. 300.530(i)(2). 

• Include ........................................................................................................................................................................ 300.20. 

• Independent educational evaluation ........................................................................................................................ 300.502(a)(3)(i). 

• Indian .......................................................................................................................................................................... 300.21(a). 

• Indian tribe ................................................................................................................................................................. 300.21(b). 

• Individualized education program (IEP) .................................................................................................................. 300.22. 

• Individualized family service plan ........................................................................................................................... 300.24. 

• Infant or toddler with a disability ............................................................................................................................ 300.25. 

• Institution of higher education ................................................................................................................................. 300.26. 

• Interpreting services .................................................................................................................................................. 300.34(c)(4). 

DEFINITIONS (J–O) 

• Limited English proficient (LEP) .............................................................................................................................. 300.27. 

• Local educational agency (LEA) ............................................................................................................................... 300.28. 


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• Medical services ......................................................................................................................................................... 300.34(c)(5). 

• Mental retardation ..................................................................................................................................................... 300.8(c)(6). 

• Multiple disabilities ................................................................................................................................................... 300.8(c)(7). 

• Native language .......................................................................................................................................................... 300.29(a). 

• Occupational therapy ................................................................................................................................................ 300.34(c)(6). 

• Orientation and mobility services ............................................................................................................................ 300.34(c)(7). 

• Orthopedic impairment ............................................................................................................................................. 300.8(c)(8). 

• Other health impairment ........................................................................................................................................... 300.8(c)(9). 

• Outlying areas ............................................................................................................................................................ 300.717(b). 

DEFINITIONS (P–R) 

• Parent .......................................................................................................................................................................... 300.30(a). 

• Parent counseling and training ................................................................................................................................. 300.34(c)(8). 

• Parent training and information center .................................................................................................................... 300.31. 

• Parentally-placed private school children with disabilities ................................................................................... 300.130. 

• Participating agency (as used in ‘‘Confidentiality’’) ................................................................................................ 300.611(c). 

• Party or parties (Regarding procedures) ................................................................................................................... 300.181(a). 

• Personally identifiable ............................................................................................................................................... 300.32. 

• Physical education ..................................................................................................................................................... 300.39(b)(2). 

• Physical therapy ......................................................................................................................................................... 300.34(c)(9). 

• Psychological services ............................................................................................................................................... 300.34(c)(10). 

• Public agency ............................................................................................................................................................. 300.33. 

• Public expense ........................................................................................................................................................... 300.502(a)(3)(ii). 

• Recreation ................................................................................................................................................................... 300.34(c)(11). 

• Rehabilitation counseling services ........................................................................................................................... 300.34(c)(12). 

• Related services .......................................................................................................................................................... 300.34(a). 

DEFINITIONS (S) 

• School day .................................................................................................................................................................. 300.11(c). 

• School health services ............................................................................................................................................... 300.34(c)(13). 

• School nurse services ................................................................................................................................................ 300.34(c)(13). 

• Scientifically based research ..................................................................................................................................... 300.35. 

• Secondary school ....................................................................................................................................................... 300.36. 

• Secretary ..................................................................................................................................................................... 300.38. 

• Serious bodily injury ................................................................................................................................................. 300.530(i)(3). 

• Services plan .............................................................................................................................................................. 300.37. 

• Social work services in schools ................................................................................................................................ 300.34(c)(14). 

• Special education ....................................................................................................................................................... 300.39(a). 

• Specially designed instruction .................................................................................................................................. 300.39(b)(3). 

• Specific learning disability ....................................................................................................................................... 300.8(c)(10). 

• Speech-language pathology services ......................................................................................................................... 300.34(c)(15). 

• Speech or language impairment ............................................................................................................................... 300.8(c)(11). 

• State ............................................................................................................................................................................ 300.40. 

• State (Special definition) ........................................................................................................................................... 300.717(c). 

• State educational agency (SEA) ................................................................................................................................ 300.41. 

• Supplementary aids and services ............................................................................................................................. 300.42. 

DEFINITIONS (T–Z) 

• Transition services ..................................................................................................................................................... 300.43. 

• Transportation ............................................................................................................................................................ 300.34(c)(16). 

• Traumatic brain injury .............................................................................................................................................. 300.8(c)(12). 

• Travel training ............................................................................................................................................................ 300.38(b)(4). 

• Universal design ........................................................................................................................................................ 300.44. 

• Visual impairment including blindness ................................................................................................................... 300.8(c)(13). 

• Vocational education ................................................................................................................................................. 300.39(b)(5). 

• Ward of the State ....................................................................................................................................................... 300.45. 

• Weapon ....................................................................................................................................................................... 300.530(i)(4). 

DEPARTMENT OF LABOR, Bureau of Labor Statistics (Regarding rate of inflation) (see §§ 300.702(b), 

300.704(a)(2)(ii), (b)(2), 300.812(b)(2)) 

DEPARTMENT (U.S. Department of Education) 

• Enforcement: hearing procedures (see §§ 300.178 through 300.184) 

• Monitoring (Regarding Secretary of the Interior) ..................................................................................................... 300.708(a). 

• Personally identifiable information (Use of) ............................................................................................................ 300.627. 

DESTRUCTION OF INFORMATION ............................................................................................................................ 300.624(b). 

• Definition .................................................................................................................................................................... 300.611(a). 

DETERMINANT FACTOR for eligibility determination 

• Lack of instruction in reading or math (see § 300.306(b)(1)(i), (b)(1)(ii)) 

• Limited English proficiency ...................................................................................................................................... 300.306(b)(1)(iii). 

DEVELOPMENT, REVIEW, AND REVISION OF IEP .................................................................................................. 300.324. 

DEVELOPMENTAL DELAY(S) 

• In definition of ‘‘Child with a disability’’ ................................................................................................................ 300.8(b). 

• Requirements for using ‘‘Developmental delay’’ ..................................................................................................... 300.111(b). 

• State definition ........................................................................................................................................................... 300.111(b). 

• Using specified disability categories ........................................................................................................................ 300.111(d). 

DIABETES ...................................................................................................................................................................... 300.8(c)(9)(i). 

DIRECT SERVICES 

• For children in private schools (see §§ 300.132(a); 300.133(a); 300.134(d)(1)) 


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• Nature and location of services ................................................................................................................................ 300.227(b). 

• Payment by Secretary of the Interior ........................................................................................................................ 300.712(d). 

• SEA (Additional information) ................................................................................................................................... 300.175(a). 

• State-level activities ................................................................................................................................................... 300.704(b)(4)(i). 

• Use of LEA allocations for ........................................................................................................................................ 300.227(a). 

DISABILITY: ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See ‘‘Adversely affects educational 

performance’’) 

DISAGGREGATED DATA 

• Assessment results for subgroup of children with disabilities ............................................................................... 300.704(b)(4)(xi). 

• For suspension and expulsion by race and ethnicity .............................................................................................. 300.170(a). 

DISCIPLINE (A–B) 

• Alternative educational setting (see §§ 300.530(d)(1), (d)(2), (d)(4), (g), 300.531, 300.533) 

• Appeal ........................................................................................................................................................................ 300.532(a). 

• Behavioral interventions—intervention plan ........................................................................................................... 300.530(f). 

DISCIPLINE (C–H) 

• Change of placements for disciplinary removals ..................................................................................................... 300.536. 

• Child’s status during due process hearings .............................................................................................................. 300.518. 

• Determination of setting ............................................................................................................................................ 300.531. 

• Expedited due process hearings ............................................................................................................................... 300.532(c). 

• Functional behavioral assessment (see § 300.530(d)(1)(ii), (f)(1)(i)).

• Hearing officer (authority of) (see §§ 300.532(b), 300.533).

DISCIPLINE (I–Z) 

• IEP Team (relevant members) (see §§ 300.530(e)(1), (f), 300.531).

• Interim alternative educational setting (see §§ 300.530(b), (d)(2), (g), 300.531, 300.532(b)(2)(ii), 300.533).

• Manifestation determination ..................................................................................................................................... 300.530(e). 

• Placement during appeals ......................................................................................................................................... 300.533. 

• Protections for children not determined eligible ..................................................................................................... 300.534. 

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

• School personnel (Authority of) ............................................................................................................................... 300.530(b). 

• See ‘‘Timelines—Discipline’’.

DISCLOSURE 

• Additional disclosure of information requirement .................................................................................................. 300.512(b). 

• Consent required before disclosing: 

Æ Education records to public benefits or insurance agencies ........................................................................... 300.154(d)(2)(iv). 

Æ Personal information to non-agency officials ................................................................................................... 300.622(a). 

• Notice on disclosure of evaluation results ............................................................................................................... 300.504(c)(10). 

• Policies on disclosing information to 3rd parties .................................................................................................... 300.612(a)(3). 

• Prohibit evidence not disclosed ................................................................................................................................ 300.512(a)(3). 

DISPROPORTIONALITY ............................................................................................................................................... 300.646. 

DISPUTES 

• Interagency disputes (Methods of ensuring services): 

Æ Ensure services during pendency of dispute .................................................................................................... 300.154(a). 

Æ Procedures for resolving .................................................................................................................................... 300.154(a)(3). 

• Mediation (see also § 300.532(c)(3)) ......................................................................................................................... 300.506. 

Æ Attorneys’ fees for .............................................................................................................................................. 300.517(c)(2)(ii). 

Æ During discipline appeal process ...................................................................................................................... 300.532(c)(3). 

Æ During resolution process (see § 300.510(b)(3), (c)(3)) 

Æ Enforcement of agreement (see §§ 300.506(b)(7), 300.510(d)(2), 300.537) 

DIVIDED STATE AGENCY RESPONSIBILITY (Adult prisons) .................................................................................. 300.607. 

DIVORCE—SEPARATION (Authority to review records) ........................................................................................... 300.613(c). 

DROPOUT RATES (Performance indicators) ............................................................................................................... 300.157(a)(3). 

DUE PROCESS HEARING(S) AND REVIEWS (A–E) 

• Agency responsible for conducting hearing ............................................................................................................. 300.511(b). 

• Appeal of decisions; impartial review ..................................................................................................................... 300.514(b). 

• Attorneys’ fees ............................................................................................................................................................ 300.517(a). 

• Basic requirements (see §§ 300.507 through 300.514) 

• Child’s status during proceedings (Pendency) ......................................................................................................... 300.518. 

Æ Parent request for hearing (Discipline) ............................................................................................................. 300.532(a). 

• Civil action ................................................................................................................................................................. 300.516(a). 

• Evaluations disclosed at least 5 business days before hearing ............................................................................... 300.512(a)(3). 

• Expedited due process hearings (Discipline) ........................................................................................................... 300.532(c). 

DUE PROCESS HEARING(S) AND REVIEWS (F–I) 

• Failure to implement a due process hearing decision ............................................................................................ 300.152(c)(3). 

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

• Findings of fact and decisions (see § 300.512(a)(5), (c)(3)): 

Æ To State advisory panel (see §§ 300.513(d), 300.514(c)) 

• Hearing rights ............................................................................................................................................................. 300.512(a). 

• Impartial hearing officer ............................................................................................................................................ 300.511(c). 

Æ See ‘‘Hearing officer(s)’’

DUE PROCESS HEARING(S) AND REVIEWS (J–Z) 

• Parental rights at hearings ......................................................................................................................................... 300.512(c). 

• Party notice to other party ........................................................................................................................................ 300.508(c). 

Æ Model form to assist parents ............................................................................................................................. 300.509. 


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• Party request for hearing (Discipline) ....................................................................................................................... 300.532(a). 

• Pendency (Stay put) ................................................................................................................................................... 300.518. 

• Prohibit evidence not introduced 5 business days before hearing ......................................................................... 300.512(a)(3). 

• Record of hearing ....................................................................................................................................................... 300.512(c)(3). 

• See ‘‘Civil action—proceedings,’’ ‘‘Court(s)’’ ‘‘Procedural safeguards,’’ ‘‘Timelines’’

• Timelines and convenience of hearings—reviews (see §§ 300.506(b)(5), 300.511(e), 300.516(b)) 

EARLY IDENTIFICATION AND ASSESSMENT (Definition) ..................................................................................... 300.34(c)(3). 

EARLY INTERVENING SERVICES ............................................................................................................................... 300.226. 

• Adjustment to local fiscal efforts .............................................................................................................................. 300.205(d). 

• Do not limit/create right to FAPE ............................................................................................................................. 300.226(c). 

• For children not currently identified as needing special education or related services ...................................... 300.226(a). 

• Permissive use of funds ............................................................................................................................................. 300.208(a)(2). 

• Scientifically based literacy instruction ................................................................................................................... 300.226(b). 

• Use of funds: 

Æ By LEA ................................................................................................................................................................ 300.226(a). 

Æ By Secretary of the Interior ................................................................................................................................ 300.711. 

EDUCATION RECORDS (Definition) ............................................................................................................................ 300.611(b). 

EDUCATIONAL PLACEMENTS (LRE) ......................................................................................................................... 300.114. 

EDUCATIONAL SERVICE AGENCY (ESA) 

• Definition .................................................................................................................................................................... 300.12. 

• In definition of ‘‘LEA’’ ............................................................................................................................................... 300.28(b)(1). 

• Joint establishment of eligibility (Regarding ESAs) ................................................................................................. 300.224(b). 

Æ Additional requirements (Regarding LRE) ........................................................................................................ 300.224(c). 

ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965 (ESEA) 

• Coordination of early intervening services .............................................................................................................. 300.226(e). 

• Excess cost requirement ............................................................................................................................................ 300.202(b). 

• Schoolwide programs ................................................................................................................................................ 300.206(a). 

ELIGIBILITY (CHILD—STUDENT) (A–G) 

• Additional eligibility requirements (see §§ 300.121 through 300.124, 300.307 through 300.311) 

• Children with disabilities in adult prisons .............................................................................................................. 300.324(d). 

• Children with specific learning disabilities (Documentation of eligibility determination) .................................. 300.311(a). 

• Determinant factor for ............................................................................................................................................... 300.306(b)(1). 

• Determination of eligibility ....................................................................................................................................... 300.306. 

• Developmental delay (Non-use of term by LEA if not adopted by State) .............................................................. 300.111(b)(iv). 

• Documentation of eligibility (To parent) .................................................................................................................. 300.306(a)(2). 

• Graduation with regular diploma: termination (see §§ 300.102(a)(3), 300.305(e)(2)). 

ELIGIBILITY (CHILD—STUDENT) (H–Z) 

• Lack of instruction in reading or math .................................................................................................................... 300.306(b). 

• Limited English proficiency ...................................................................................................................................... 300.306(b). 

• Public benefits or insurance (Risk loss of eligibility) .............................................................................................. § 300.154(d)(2) (iii). 

• Termination of eligibility (see §§ 300.204(c), 300.305(e)(2)) 

• Transfer of rights (Special rule) ................................................................................................................................ 300.520(b). 

ELIGIBILITY (PUBLIC AGENCIES) 

• Hearings related to (See ‘‘Hearings—Hearing procedures’’) 

• Joint establishment of (see §§ 300.202(b)(3), 300.223(a), 300.224(a)) 

• LEA (See ‘‘LEA eligibility’’) Secretary of the Interior ............................................................................................. 300.712(e). 

• State (See ‘‘State eligibility’’) 

• State agency eligibility .............................................................................................................................................. 300.228. 

Æ See ‘‘State agencies’’

EMOTIONAL DISTURBANCE (Definition) .................................................................................................................. 300.8(c)(4). 

ENFORCEMENT 

• Department procedures (see §§ 300.600, 300.604, 300.605) 

• Referral to law enforcement authorities ................................................................................................................... 300.535. 

• State policies and procedures: 

Æ Enforcement mechanisms .................................................................................................................................. 300.537. 

Æ LEA not meeting requirements .......................................................................................................................... 300.608. 

Æ Regarding confidentiality ................................................................................................................................... 300.626. 

EPILEPSY ....................................................................................................................................................................... 300.8(c)(9)(i). 

EQUIPMENT 

• Acquisition of ............................................................................................................................................................. 300.718(a). 

• Definition .................................................................................................................................................................... 300.14. 

• Exception to maintenance of effort ........................................................................................................................... 300.204(d). 

• Placement in private school ...................................................................................................................................... 300.144. 

EVALUATION (A–G) 

• Assessments in (see §§ 300.304(b), (c) 300.305(c)). 

• Basic requirements (see §§ 300.301, 300.303, 00.324) 

• Comprehensive (Identify all special education needs) ............................................................................................ 300.304(c)(6). 

• Definition of ............................................................................................................................................................... 300.15. 

• Evaluation procedures ............................................................................................................................................... 300.304. 

• Evaluation report to parents ...................................................................................................................................... 300.306(a)(2). 

• Existing evaluation data (Review of) ........................................................................................................................ 300.305(a)(1). 

• Graduation (Evaluation not required for) ................................................................................................................. 300.305(e)(2). 

EVALUATION (H–Z) 


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• Independent educational evaluation (IEE) ............................................................................................................... 300.502. 

• Initial evaluation (see §§ 300.301, 300.305) 

• Observation in determining SLD .............................................................................................................................. 300.310. 

• Parent consent ............................................................................................................................................................ 300.300. 

• Parent right to evaluation at public expense ........................................................................................................... 300.502(b). 

• Reevaluation ............................................................................................................................................................... 300.303. 

EXCEPTION 

• Charter schools exception (Joint eligibility) ............................................................................................................. 300.223(b). 

• For prior local policies and procedures ................................................................................................................... 300.220. 

• For prior State policies and procedures ................................................................................................................... 300.176(a). 

• To FAPE: 

Æ For certain ages .................................................................................................................................................. 300.102. 

Æ For graduating with a regular diploma ............................................................................................................. 300.102(a)(3)(i). 

Æ For children in adult prisons (see §§ 300.102(a)(2), 300.324(d)). 

• To maintenance of effort ........................................................................................................................................... 300.204. 

• To reimbursement for parental placement ............................................................................................................... 300.148(e). 

EXCESS COSTS 

• Calculation of (see Appendix A—Excess Costs Calculation) 

• Definition .................................................................................................................................................................... 300.16. 

• Excess cost requirement ............................................................................................................................................ 300.202(b) 

• Joint establishment of eligibility ............................................................................................................................... 300.202(b)(3) 

• LEA requirement ........................................................................................................................................................ 300.202(b) 

• Limitation on use of Part B funds ............................................................................................................................ 300.202(b) 

• Meeting the excess cost requirement ........................................................................................................................ 300.202(b)(2) 

• See also §§ 300.163(a), 300.175(b), 300.202(a), 300.227(a)(2)(ii) 

EXISTING EVALUATION DATA (Review of) ............................................................................................................. 300.305(a)(1). 

EXPEDITED DUE PROCESS HEARINGS ..................................................................................................................... 300.532(c). 

• Authority of hearing officer ...................................................................................................................................... 300.532(b). 

• Party appeal (Hearing requested by parents) ........................................................................................................... 300.532(a). 

EXPULSION (See ‘‘Suspension and expulsion’’) 

EXTENDED SCHOOL YEAR SERVICES ...................................................................................................................... 300.106. 

EXTRACURRICULAR 

• IEP content ................................................................................................................................................................. 300.320(a)(4)(ii). 

• In supplementary aids and services ......................................................................................................................... 300.42. 

• Nonacademic services ............................................................................................................................................... 300.107. 

• Nonacademic settings ................................................................................................................................................ 300.117. 

FACILITIES 

• Alteration of ............................................................................................................................................................... 300.718. 

• Children in private schools or facilities (see §§ 300.130, 300.142(a), 300.144(b), (c), 300.147(c)) 

• Construction of ........................................................................................................................................................... 300.718. 

• Physical education (In separate facilities) ................................................................................................................ 300.108(d). 

• Private schools and facilities .................................................................................................................................... 300.2(c). 

• See also ‘‘Correctional facilities’’

• Termination of expenses for construction of ........................................................................................................... 300.204(d). 

FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA) (See ‘‘Confidentiality’’) 

FAPE (A–G) 

• Definition .................................................................................................................................................................... 300.17. 

• Documentation of exceptions .................................................................................................................................... 300.102(b). 

• Exception to FAPE: 

Æ For certain ages .................................................................................................................................................. 300.102(a). 

Æ For children receiving early intervention services .......................................................................................... 300.102(a)(4). 

Æ For children graduating with a regular diploma .............................................................................................. 300.102(a)(3). 

Æ For children in adult correctional facilities ..................................................................................................... 300.102(a)(2). 

• For children: 

Æ Advancing from grade to grade ......................................................................................................................... 300.101(c). 

Æ Beginning at age 3 .............................................................................................................................................. 300.101(b). 

Æ On Indian reservations ....................................................................................................................................... 300.707(c). 

Æ Suspended or expelled from school .................................................................................................................. 300.101(a). 

• General requirement .................................................................................................................................................. 300.101(a). 

FAPE (H–Z) 

• Methods and payments ............................................................................................................................................. 300.103. 

• Private school children with disabilities: 

Æ Placed by parents when FAPE is at issue ......................................................................................................... 300.148. 

Æ Placed in or referred by public agencies (see §§ 300.145 through 300.147) 

• Reallocation of LEA funds (FAPE adequately provided) ........................................................................................ 300.705(c). 

• Services (and placement) for FAPE: 

Æ Based on child’s needs (Not disability category) ............................................................................................. 300.304(c)(6). 

• State eligibility condition .......................................................................................................................................... 300.100. 

FAS (Freely associated States) ...................................................................................................................................... 300.717(a). 

FAX (FACSIMILE TRANSMISSION) 

• Department procedures (see §§ 300.183, 300.196(a) through (e)) 

FERPA (Family Educational Rights and Privacy Act) (See ‘‘Confidentiality’’) 

FILING A CLAIM (Private insurance) .......................................................................................................................... 300.154(e). 


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FILING A COMPLAINT (State complaint procedures) ............................................................................................... 300.153. 

FILING REQUIREMENTS 

• By-pass (Regarding private school children) ........................................................................................................... 300.196. 

• Department procedures ............................................................................................................................................. 300.183. 

• See §§ 300.178 through 300.186. 

FINALITY OF DECISION .............................................................................................................................................. 300.514. 

FORMULA 

• Allocations to LEAs ................................................................................................................................................... 300.705(b). 

• Allocations to States .................................................................................................................................................. 300.703. 

• Allocation to States when by-pass is implemented ................................................................................................. 300.191. 

• Allocation to States regarding section 619 (see §§ 300.807, 300.810). 

• Parentally-placed private school children ............................................................................................................... 300.133. 

• SEA set aside funds ................................................................................................................................................... 300.704(b). 

• See also § 300.171(a). 

FOSTER PARENT .......................................................................................................................................................... 300.30(a)(2). 

• See also § 300.45(b). 

FREELY ASSOCIATED STATES AND OUTLYING AREAS 

• Funding for ................................................................................................................................................................. 300.701(a). 

• Purpose of grants ....................................................................................................................................................... 300.700(a). 

FULL EDUCATIONAL OPPORTUNITY GOAL ........................................................................................................... 300.109. 

FUNCTIONAL BEHAVIORAL ASSESSMENT (see § 300.530(d)(1)(ii), (f)(1)(i)) 

FUNDING MECHANISM: LRE ...................................................................................................................................... 300.114(b). 

FUNDS (See ‘‘Use of funds’’) 

GENERAL CURRICULUM 

• Discipline (Continue participating in) ...................................................................................................................... 300.530(d)(1)(i). 

• Evaluation procedures: 

Æ Be involved and progress in .............................................................................................................................. 300.304(b)(1)(ii). 

Æ Review of existing evaluation data ................................................................................................................... 300.305(a)(1). 

• IEPs: 

Æ Measurable annual goals .................................................................................................................................... 300.320(a)(2)(i). 

Æ Present levels of educational performance ....................................................................................................... 300.320(a)(1). 

Æ Review and revision of IEPs .............................................................................................................................. 300.324(b)(1)(ii). 

Æ Special education and related services ............................................................................................................. 300.320(a)(4)(ii). 

• IEP Team .................................................................................................................................................................... 300.321(a)(4)(ii). 

• Specially designed instruction (Definition) ............................................................................................................. 300.39(b)(3). 

GOALS 

Annual goals (See ‘‘IEP’’ and ‘‘Annual goals’’). 

• Performance goals and indicators ............................................................................................................................. 300.157. 

Æ State and local activities to meet ...................................................................................................................... 300.814(c). 

Æ Use of State-level funds to meet ........................................................................................................................ 300.704(b)(4)(x). 

GOVERNOR (Adult prisons) ......................................................................................................................................... 300.149(d). 

• See also ‘‘Chief executive officer’’. 

GRADUATION 

• Evaluation not required for ....................................................................................................................................... 300.305(e)(2). 

• Exception to FAPE ..................................................................................................................................................... 300.102(a)(3)(i). 

• Graduation rates as performance indicators ............................................................................................................. 300.157(a)(3). 

• Written prior notice required .................................................................................................................................... 300.102(a)(3)(iii). 

GRANDPARENT OR STEPPARENT (In definition of ‘‘Parent’’) ................................................................................ 300.30(a)(4). 

GRANTS 

• Grants to States: ......................................................................................................................................................... 300.700. 

Æ Maximum amount .............................................................................................................................................. 300.700(b). 

Æ Purpose of ........................................................................................................................................................... 300.700(a). 

• See ‘‘Subgrants’’. 

GUARDIAN (In definition of ‘‘Parent’’) ....................................................................................................................... 300.30(a)(3). 

GUARDIANSHIP, SEPARATION, AND DIVORCE (Regarding parent’s authority to review records) ..................... 300.613(c). 

HEALTH AND HUMAN SERVICES (Secretary of) ...................................................................................................... 300.708(i)(1). 

HEARING AIDS: Proper functioning of ....................................................................................................................... 300.113(a). 

HEARING IMPAIRMENT 

• Definition .................................................................................................................................................................... 300.8(c)(5). 

• Related services, audiology ....................................................................................................................................... 300.34(c)(1). 

HEARING OFFICER(S) (A–B) 

• Additional disclosure of information requirement .................................................................................................. 300.512(b). 

• Attorneys’ fees ............................................................................................................................................................ 300.517(c)(2)(i). 

• Authority of (Discipline) ........................................................................................................................................... 300.532(b). 

Æ Basis of decisions ............................................................................................................................................... 300.513(a). 

HEARING OFFICER(S) (C–Z) 

• Change of placement: 

Æ Hearing officer decision agrees with parents ................................................................................................... 300.518(d). 

Æ Hearing officer may order .................................................................................................................................. 300.532(b)(2)(ii). 

• Expedited due process hearing (Discipline) ............................................................................................................. 300.532(c). 

• Impartial hearing officer ............................................................................................................................................ 300.511(c). 

• Parent appeal (Discipline) ......................................................................................................................................... 300.532(a). 


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• Placement during appeals ......................................................................................................................................... 300.533. 

• Private school placement when FAPE is at issue .................................................................................................... 300.148(b). 

• Reimbursement for private school placement by parents ....................................................................................... 300.148(c). 

• Requests for evaluations by ....................................................................................................................................... 300.502(d). 

HEARING RIGHTS ........................................................................................................................................................ 300.512. 

HEARINGS—HEARING PROCEDURES 

• Due process (See ‘‘Due process hearings’’). 

• Public hearings on policies and procedures ............................................................................................................ 300.165(a). 

• State and local eligibility: 

Æ LEA eligibility .................................................................................................................................................... 300.155. 

Æ Notification in case of LEA or State ineligibility ............................................................................................. 300.221. 

Æ State eligibility (Notice and hearing) (see §§ 300.178, 300.179, 300.181). 

HEART CONDITION ..................................................................................................................................................... 300.8(c)(9)(i). 

HEIGHTENED ALERTNESS TO ENVIRONMENTAL STIMULI (In ‘‘Other health impairment’’) ........................... 300.8(c)(9). 

HIGH COST FUND (LEA) ............................................................................................................................................. 300.704(c). 

HIGHLY MOBILE CHILDREN (e.g., homeless and migrant children) ....................................................................... 300.111(c)(2). 

HIGHLY QUALIFIED TEACHER (A–Q) 

• Alternative route to certification .............................................................................................................................. 300.18(b)(2). 

• Definition of ............................................................................................................................................................... 300.18. 

• Private school teachers .............................................................................................................................................. 300.18(h). 

HIGHLY QUALIFIED TEACHER (R–Z) 

• Requirements for in general ...................................................................................................................................... 300.18(b). 

• Requirements for teaching to alternate achievement standards ............................................................................. 300.18(c). 

• Requirements for teaching multiple subjects ........................................................................................................... 300.18(d). 

• Personnel qualifications ............................................................................................................................................ 300.156(c). 

HIGH NEED CHILD ....................................................................................................................................................... 300.704(c)(3)(i). 

HOMELESS CHILDREN 

• Child find ................................................................................................................................................................... 300.111(a)(1)(i). 

• Definition of ............................................................................................................................................................... 300.19. 

• McKinney-Vento Homeless Assistance Act (see §§ 300.19, 300.149(a)(3), 300.153(b)(4)(iii), 300.168(a)(5), 

300.508(b)(4)). 

• Surrogate parents for ................................................................................................................................................. 300.519(a)(4). 

HYPERACTIVITY (Attention deficit hyperactivity disorder) ..................................................................................... 300.8(c)(9)(i). 

INAPPLICABILITY (Of requirements that prohibit commingling and supplanting of funds) ................................. 300.704(d). 

IEE (See ‘‘Independent educational evaluation’’) 

IEP (A–I) 

• Agency responsibilities for transition services ........................................................................................................ 300.324(c)(1). 

• Basic requirements (see §§ 300.320 through 300.324). 

• Child participation when considering transition ..................................................................................................... 300.321(b)(1). 

• Consideration of special factors ................................................................................................................................ 300.324(a)(2). 

• Consolidation of IEP Team meetings ........................................................................................................................ 300.324(a)(5). 

• Content of IEPs ........................................................................................................................................................... 300.320(a). 

• Definition (see §§ 300.22, 300.320). 

• Development, review, and revision of ...................................................................................................................... 300.324. 

• IEP or IFSP for children aged 3 through 5 ............................................................................................................... 300.323(b). 

• IEP Team .................................................................................................................................................................... 300.321. 

IEP (J–Z) 

• Modifications of IEP or placement (FAPE for children in adult prisons) .............................................................. 300.324(d)(2)(i). 

• Modify/Amend without convening meeting (see § 300.324(a)(4), (a)(6)). 

• Parent participation ................................................................................................................................................... 300.322. 

• Alternative means ...................................................................................................................................................... 300.328. 

• Part C coordinator involvement ................................................................................................................................ 300.321(f). 

• Private school placements by public agencies ......................................................................................................... 300.325(a)(1). 

• Regular education teacher (See ‘‘IEP Team’’). 

• Review and revision of IEPs ..................................................................................................................................... 300.324(b). 

• SEA responsibility regarding private school ............................................................................................................ 300.325(c). 

• State eligibility requirement ...................................................................................................................................... 300.112. 

• Transition services ..................................................................................................................................................... 300.320(b). 

• When IEPs must be in effect ..................................................................................................................................... 300.323. 

IEP TEAM ...................................................................................................................................................................... 300.321. 

• Alternative educational setting (Determined by) ..................................................................................................... 300.531. 

• Consideration of special factors ................................................................................................................................ 300.324(a)(2). 

Æ Assistive technology ........................................................................................................................................... 300.324(a)(2)(v). 

Æ Behavioral interventions .................................................................................................................................... 300.324(a)(2)(i). 

Æ Braille needs ....................................................................................................................................................... 300.324(a)(2)(iii). 

Æ Communication needs (Deafness and other needs) ......................................................................................... 300.324(a)(2)(iv). 

Æ Limited English proficiency .............................................................................................................................. 300.324(a)(2)(ii). 

• Determination of knowledge or special expertise .................................................................................................... 300.321(c). 

• Discipline procedures (see §§ 300.530(e), 300.531). 

• Manifestation determination ..................................................................................................................................... 300.530(e). 

• Other individuals who have knowledge or special expertise (At parent or agency discretion) .......................... 300.321(a)(6). 

• Participation by private school (public agency placement) .................................................................................... 300.325(a). 

• Regular education teacher (see §§ 300.321(a)(2), 300.324(a)(3)). 


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IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN) 

• Definition .................................................................................................................................................................... 300.24. 

• Transition from Part C ............................................................................................................................................... 300.124. 

• IFSP vs. IEP ................................................................................................................................................................ 300.323(b). 

ILLEGAL DRUG (Definition—discipline) ..................................................................................................................... 300.530(i)(2). 

IMPARTIAL DUE PROCESS HEARING ....................................................................................................................... 300.511. 

• See ‘‘Due process hearings and reviews’’. 

IMPARTIAL HEARING OFFICER ................................................................................................................................. 300.511(c). 

IMPARTIALITY OF MEDIATOR .................................................................................................................................. 300.506(b)(1). 

INCIDENTAL BENEFITS (Permissive use of funds) ................................................................................................... 300.208. 

INCIDENTAL FEES (In definition of ‘‘at no cost’’ under ‘‘Special education’’) ....................................................... 300.39(b)(1). 

INCLUDE (Definition) .................................................................................................................................................... 300.20. 

INDEPENDENT EDUCATIONAL EVALUATION (IEE) ............................................................................................... 300.502. 

• Agency criteria (see § 300.502(a)(2), (b)(2)(ii), (c)(1), (e)). 

• Definition .................................................................................................................................................................... 300.502(a)(3)(i). 

• Parent-initiated evaluations ...................................................................................................................................... 300.502(c). 

• Parent right to ............................................................................................................................................................ 300.502(a)(1). 

• Procedural safeguards notice .................................................................................................................................... 300.504(c)(1). 

• Public expense (Definition under IEE) ..................................................................................................................... 300.502(a)(3)(ii). 

• Request by hearing officers ....................................................................................................................................... 300.502(d). 

• Use as evidence at hearing ........................................................................................................................................ 300.502(c)(2). 

INDIAN; INDIAN CHILDREN 

• Child find for Indian children aged 3 through 5 ..................................................................................................... 300.712(d). 

• Definition of ‘‘Indian’’ ............................................................................................................................................... 300.21(a). 

• Definition of ‘‘Indian tribe’’ ...................................................................................................................................... 300.21(b). 

• Early intervening services ......................................................................................................................................... 300.711. 

• Payments and use of amounts for: 

Æ Education and services for children aged 3 through 5 .................................................................................... 300.712(a). 

Æ Education of Indian children ............................................................................................................................. 300.707. 

• Plan for coordination of services .............................................................................................................................. 300.713. 

• Submission of information by Secretary of Interior ................................................................................................ 300.708. 

INDICATORS ................................................................................................................................................................. 300.157(b). 

• See ‘‘Performance goals and indicators’’. 

INDIVIDUALIZED EDUCATION PROGRAM (See ‘‘IEP’’) 

INDIVIDUALIZED FAMILY SERVICE PLAN (See ‘‘IFSP’’) 

INFORMED CONSENT (See ‘‘Consent’’) 

INITIAL EVALUATION ................................................................................................................................................. 300.301. 

• Consent before conducting ........................................................................................................................................ 300.300(a)(1)(i). 

Æ For ward of State ................................................................................................................................................ 300.300(a)(2). 

Æ Not construed as consent for initial placement ............................................................................................... 300.300(a)(1)(ii). 

Æ When not required ............................................................................................................................................. 300.300(a)(2). 

• Review of existing evaluation data ........................................................................................................................... 300.305(a). 

INSTITUTION OF HIGHER EDUCATION 

• Definition .................................................................................................................................................................... 300.26. 

INSTRUCTIONAL MATERIALS 

• Access to ..................................................................................................................................................................... 300.172. 

• Audio-visual materials .............................................................................................................................................. 300.14(b). 

• LEA purchase of ......................................................................................................................................................... 300.210. 

• NIMAC: 

Æ SEA coordination with ....................................................................................................................................... 300.172(c). 

Æ SEA rights and responsibilities if not coordinating ......................................................................................... 300.172(b). 

INSURANCE 

• Community-based waivers (see § 300.154(d)(2)(iii)(D)). 

• Financial costs ........................................................................................................................................................... 300.154(f)(2). 

• Financial responsibility of LEA/SEA ....................................................................................................................... 300.154(a)(1). 

• Out-of-pocket expense ............................................................................................................................................... 300.154(d)(2)(ii). 

• Private insurance ....................................................................................................................................................... 300.154(e). 

• Public benefits or insurance ...................................................................................................................................... 300.154(d). 

• Risk of loss of eligibility (see § 300.154(d)(2)(iii)(D)). 

INTERAGENCY AGREEMENTS 

• FAPE methods and payments (Joint agreements) .................................................................................................... 300.103(a). 

• LRE (Children in public/private institutions) .......................................................................................................... 300.114(a)(2)(i). 

• Methods of ensuring services .................................................................................................................................... 300.154(a). 

• SEA responsibility for general supervision .............................................................................................................. 300.149. 

• Secretary of Interior—with Health and Human Services Secretary ....................................................................... 300.708(i)(1). 

Æ Cooperative agreements (BIA and other agencies) ........................................................................................... 300.712(d). 

INTERAGENCY COORDINATION (See ‘‘Coordination of services,’’ ‘‘Interagency agreements’’) 

INTERAGENCY DISPUTES ........................................................................................................................................... 300.154(a)(3). 

INTERAGENCY RESPONSIBILITIES (Transition services) ........................................................................................ 300.320(b). 

INTERIM ALTERNATIVE EDUCATIONAL SETTING (See §§ 300.530(b), 300.531, 300.532(b)(2)(ii), 300.533) 

INTERPRETING SERVICES 


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• As a related service .................................................................................................................................................... 300.34(a). 

• Definition .................................................................................................................................................................... 300.34(c)(4). 

JOINT ESTABLISHMENT OF ELIGIBILITY (LEAs) .................................................................................................... 300.223. 

• See also §§ 300.202(b)(3), 300.224. 

JUDICIAL 

• Authorities (Referral to) ............................................................................................................................................. 300.535. 

• Finding of unreasonableness ..................................................................................................................................... 300.148(d)(3). 

• Proceeding (During pendency) .................................................................................................................................. 300.518(a). 

• Review ........................................................................................................................................................................ 300.197. 

• See also: 

Æ Civil action (see §§ 300.504(c)(12), 300.514(d), 300.516).

Æ Court(s) (see §§ 300.102(a)(1), 300.184, 300.148(c), (d)(3), 300.197, 300.516(a), (c), (d), 300.517(a), (c)).

JUVENILE-ADULT CORRECTIONS FACILITIES (See ‘‘Correctional facilities’’) 

LAW ENFORCEMENT AND JUDICIAL AUTHORITIES 

• Referral to ................................................................................................................................................................... 300.535. 

LEA (LOCAL EDUCATIONAL AGENCY) (A–C) 

• Allocations to LEAs ................................................................................................................................................... 300.705(b). 

Æ Reallocation of funds (If LEA is adequately providing FAPE) ........................................................................ 300.705(c). 

• Charter schools and LEAs (See ‘‘Charter schools’’). 

• Child count—LEAs: 

Æ Parentally-placed private school children with disabilities ............................................................................ 300.133(c). 

Æ Procedures for counting all children served (Annual report) ......................................................................... 300.645. 

Æ See also ‘‘Child count’’. 

• Child find—LEAs: 

Æ Parentally-placed private school children with disabilities ............................................................................ 300.131. 

Æ See also ‘‘Child find’’.

• Compliance (LEA and State agency) ........................................................................................................................ 300.222. 

• Consistency of LEA policies with State policies ..................................................................................................... 300.201. 

LEA (D–G) 

• Definition of LEA ....................................................................................................................................................... 300.28. 

• Developmental delay: Use of term by LEAs (see § 300.111(b)(2) through (b)(4)). 

• Direct services by SEA (If LEA is unable or unwilling to serve CWDs, etc.) ........................................................ 300.227. 

• Discipline and LEAs (See ‘‘Discipline’’). 

• Eligibility of LEA: 

Æ Condition of assistance (see §§ 300.200 through 300.213).

Æ Exception for prior local plans. ......................................................................................................................... 300.220. 

Æ Ineligibility of LEA (Notice by SEA) ................................................................................................................. 300.221. 

Æ SEA hearings on LEA eligibility ........................................................................................................................ 300.155. 

• Excess cost requirement—LEA: ................................................................................................................................ 300.202(b). 

Æ Use of amounts for excess costs ........................................................................................................................ 300.202(a)(2). 

Æ See also ‘‘Excess costs’’. 

LEA (H–L) 

• Hearings relating to LEA eligibility .......................................................................................................................... 300.155. 

• Information for SEA ................................................................................................................................................... 300.211. 

• Instructional materials (Purchase of) ........................................................................................................................ 300.210. 

• Joint establishment of eligibility (By two or more LEAs) ....................................................................................... 300.202(b)(3). 

Æ See also §§ 300.223, 300.224.

• LEA and State agency compliance ........................................................................................................................... 300.222. 

• LEA policies (Modification of) .................................................................................................................................. 300.220(b). 

Æ See ‘‘LEA eligibility,’’ ‘‘Eligibility of LEA’’. 

LEA (M–P) 

• Maintenance of effort regarding LEAs (See ‘‘Maintenance of effort’’). 

• Methods of ensuring services—LEAs (see § 300.154(a)(1) through (a)(4), (b)). 

• Migratory children with disabilities (Linkage with records under ESEA) ............................................................. 300.213. 

• Modification of policies by LEA ............................................................................................................................... 300.220(b). 

• Noncompliance of LEA (SEA determination) .......................................................................................................... 300.222(a). 

• Notice requirement (On LEA) ................................................................................................................................... 300.222(b). 

• Purchase of instructional materials .......................................................................................................................... 300.210. 

• Personnel shortages (Use of funds to assist LEAs in meeting) ............................................................................... 300.704(b)(4)(vii). 

• Public information (By LEA) ..................................................................................................................................... 300.212. 

LEA (R–T) 

• Reallocation of LEA funds (If LEA is adequately providing FAPE) ....................................................................... 300.705(c). 

• Reimbursement of LEAs by other agencies (See ‘‘Methods of ensuring services,’’ § 300.154(a)(2) through 

(a)(3), (b)(2)). 

• Review and revision of policies ................................................................................................................................ 300.170(b). 

• SEA reduction in payments to LEA ......................................................................................................................... 300.222(a). 

• SEA use of LEA allocations for direct services ........................................................................................................ 300.227. 

• Show cause hearing (By-pass requirement) ............................................................................................................. 300.194. 

• State-level nonsupplanting ........................................................................................................................................ 300.162(c). 

• Subgrants to LEAs ...................................................................................................................................................... 300.705(a). 

• Suspension and expulsion rates—LEAs ................................................................................................................... 300.170(a)(1). 

• Transition planning conferences (Part C to B) ......................................................................................................... 300.124(c). 

LEA (U–Z) 

• Use of amounts (by LEA) .......................................................................................................................................... 300.202. 


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Æ (See ‘‘Permissive use of funds’’). 

• Use of SEA allocations (Regarding LEAs) ................................................................................................................ 300.704. 

Æ For capacity-building, etc. (see § 300.704(b)(4)(viii)). 

Æ To assist in meeting personnel shortages (see § 300.704(b)(4)(vii)). 

LEA ELIGIBILITY (A–I) 

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

• Charter schools—public: 

Æ Rights of children with disabilities who attend public charter schools ......................................................... 300.209(a). 

Æ That are public schools of the LEA ................................................................................................................... 300.209(b). 

Æ That are LEAs ..................................................................................................................................................... 300.209(c). 

Æ That are not an LEA or a school that is part of an LEA .................................................................................. 300.209(d). 

Æ Treatment of charter schools and their students .............................................................................................. 300.209. 

Æ See also ‘‘Charter schools’’. 

• Condition of assistance .............................................................................................................................................. 300.200. 

Æ See §§ 300.201 through 300.213. 

• Consistency with State policies ................................................................................................................................ 300.201. 

• Information for SEA ................................................................................................................................................... 300.211. 

LEA ELIGIBILITY (M–Z) 

• Maintenance of effort ................................................................................................................................................. 300.203. 

Æ Exception to ........................................................................................................................................................ 300.204. 

• Migratory children with disabilities—records regarding ........................................................................................ 300.213. 

• Permissive use of funds ............................................................................................................................................. 300.208. 

Æ Administrative case management ...................................................................................................................... 300.208(b). 

Æ Early intervening services .................................................................................................................................. 300.208(a)(2). 

Æ High cost special education and related services ............................................................................................ 300.208(a)(3). 

Æ Services and aids that also benefit nondisabled children ............................................................................... 300.208(a)(1). 

• Personnel development ............................................................................................................................................. 300.207. 

• Records regarding migratory children with disabilities .......................................................................................... 300.213. 

• State prohibition (If LEA is unable to establish/maintain programs of FAPE) ...................................................... 300.205(c). 

• Treatment of charter schools and their students ..................................................................................................... 300.209. 

LEAD POISONING (Other health impairment) ........................................................................................................... 300.8(c)(9)(i). 

LEAST RESTRICTIVE ENVIRONMENT (LRE) 

• Children in public or private institutions ................................................................................................................ 300.118. 

• Continuum of alternative placements ...................................................................................................................... 300.115. 

• Educational service agency (Additional requirement regarding LRE) .................................................................... 300.224(c). 

• Monitoring activities .................................................................................................................................................. 300.120. 

• Nonacademic settings ................................................................................................................................................ 300.117. 

• Placements ................................................................................................................................................................ 300.116. 

• State eligibility requirements .................................................................................................................................... 300.114. 

• Additional requirement: State funding mechanism ................................................................................................ 300.114(b). 

• Technical assistance and training ............................................................................................................................. 300.119. 

LEISURE EDUCATION (Recreation) ............................................................................................................................. 300.34(c)(11)(iv). 

LEP (See ‘‘Limited English proficient’’) 

LEUKEMIA (Other health impairment) ........................................................................................................................ 300.8(c)(9)(i). 

LIMITED ENGLISH PROFICIENT (LEP) 

• Definition of ............................................................................................................................................................... 300.27. 

• Determinant factor in eligibility determination ....................................................................................................... 300.306(b)(1)(iii). 

• In development, review, and revision of IEP ........................................................................................................... 300.324(a)(2)(ii). 

• In ‘‘native language’’ (Definition) ............................................................................................................................. 300.29(a). 

• Special rule—LEP not determinant factor ................................................................................................................ 300.306(b)(1)(iii). 

LOCAL EDUCATIONAL AGENCY (See ‘‘LEA’’) 

LRE (See ‘‘Least restrictive environment’’) 

MAINTENANCE OF EFFORT (MOE–LEA) (A–R) 

• Amounts in excess (Reduce level) ............................................................................................................................ 300.205(a). 

• Exception to ............................................................................................................................................................... 300.204. 

• Maintenance of effort and early intervening services (see Appendix D).

• Maintenance of effort—LEA ...................................................................................................................................... 300.203. 

• Non-reduction of (State enforcement) ...................................................................................................................... 300.608. 

• Public benefits or insurance proceeds are not MOE ............................................................................................... 300.154(g)(2). 

Æ See ‘‘Methods of ensuring services’’. 

MAINTENANCE OF EFFORT (MOE–LEA) (S–Z) 

• SEA flexibility ............................................................................................................................................................ 300.230(a). 

• State enforcement (SEA must prohibit LEA from reducing MOE) ......................................................................... 300.608. 

MAINTENANCE OF STATE FINANCIAL SUPPORT ................................................................................................. 300.163. 

• Reduction of funds for failure to maintain support ................................................................................................ 300.163(b). 

• Subsequent years (Regarding a waiver) .................................................................................................................... 300.163(d). 

• Waivers: Exceptional or uncontrollable circumstances ........................................................................................... 300.163(c). 

MANIFESTATION DETERMINATION (See ‘‘Discipline’’) ......................................................................................... 300.530(e). 

McKINNEY-VENTO HOMELESS ASSISTANCE ACT 

• In definition of ‘‘Homeless children’’ ....................................................................................................................... 300.19. 

• In filing a State complaint ......................................................................................................................................... 300.153(b)(4)(iii). 

• SEA responsibility for general supervision (Regarding homeless children) .......................................................... 300.149(a)(3). 

• State advisory panel (Membership) .......................................................................................................................... 300.168(a)(5). 


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• Surrogate parents (Homeless child’s rights protected ............................................................................................. 300.519(a)(4). 

MEDIATION (A–O) 

• Benefits of (Meeting to explain) ................................................................................................................................ 300.506(b)(2)(ii). 

• Confidential discussions ........................................................................................................................................... 300.506(b)(6)(i). 

• Cost of (Borne by State) ............................................................................................................................................. 300.506(b)(4). 

• Disinterested party (To meet with parents and schools .......................................................................................... 300.506(b)(2). 

• Disputes (Resolve through mediation) ..................................................................................................................... 300.506(a). 

• Legally binding agreement ........................................................................................................................................ 300.506(b)(6). 

• Mediation procedures (By public agency to allow parties to resolve disputes) .................................................... 300.506(a). 

• Mediators:.

Æ Impartiality of ..................................................................................................................................................... 300.506(c). 

Æ List of .................................................................................................................................................................. 300.506(b)(3)(i). 

Æ Qualified and impartial (see § 300.506(b)(1)(iii)). 

• Meeting to explain benefits of .................................................................................................................................. 300.506(b)(2)(ii). 

• Not used as evidence in hearing ............................................................................................................................... 300.506(b)(8). 

• Not used to deny/delay right to hearing .................................................................................................................. 300.506(b)(1)(ii), 

• Opportunity to meet .................................................................................................................................................. 30.506(b)(2). 

MEDIATION (P–Z) 

• Parent training and information center .................................................................................................................... 300.506(b)(2)(i). 

• Procedural safeguards notice .................................................................................................................................... 300.504(c)(6). 

• Random selection of mediators ................................................................................................................................. 300.506(b)(3)(ii). 

• Use of SEA allocations to establish .......................................................................................................................... 300.704(b)(3)(ii). 

• Voluntary .................................................................................................................................................................... 300.506(b)(1)(i). 

• Written mediation agreement .................................................................................................................................... 300.506(b)(7). 

MEDICAID 

• Children covered by public benefits or insurance ................................................................................................... 300.154(d)(1). 

• Construction (Nothing alters requirements imposed under Titles XIX or XXI) .................................................... 300.154(h). 

• Financial responsibility of each non-educational public agency (e.g., State Medicaid) ....................................... 300.154(a)(1). 

• LEA high cost fund (Disbursements not medical assistance under State Medicaid) ............................................ 300.704(c)(8). 

• Medicaid reimbursement not disqualified because service in school context ...................................................... 300.154(b)(1)(ii). 

• Methods of ensuring services (see § 300.154(a)(1), (b)(1)(ii), (d), (g)(2), (h)).

• Proceeds from public or private insurance .............................................................................................................. 300.154(g)(1). 

• Public agency may use Medicaid ............................................................................................................................. 300.154(a)(1). 

• State Medicaid, etc., must precede financial responsibility of LEA ...................................................................... 300.154(a)(1). 

MEDICAL (A–L) 

• Assistance under other Federal programs ................................................................................................................ 300.186. 

• Assistive technology device (Does not include a surgically implanted medical device) ..................................... 300.5.

• LEA high cost fund (Disbursements not medical assistance under State Medicaid) ............................................ 300.704(c)(8). 

MEDICAL (M–Q) 

• Medical services in (‘‘Related services’’): 

Æ Audiology (Referral for) ..................................................................................................................................... 300.34(c)(1)(ii). 

Æ Definition of ........................................................................................................................................................ 300.34(c)(5). 

Æ For diagnostic purposes ..................................................................................................................................... 300.34(a). 

Æ Speech-language pathology (Referral for) ......................................................................................................... 300.34(c)(15)(iii). 

• Medical supplies, etc. (Memo of agreement between HHS and Interior) .............................................................. 300.708(i)(2). 

• Non-medical (Residential placement) ...................................................................................................................... 300.104. 

MEDICAL (R–Z) 

• Referral for medical services: 

Æ Audiology ........................................................................................................................................................... 300.34(c)(1)(ii). 

Æ Speech-language pathology services ................................................................................................................. 300.34(c)(15)(iii). 

• Related services: Exception; surgically implanted devices (‘‘Cochlear implants’’) ............................................... 300.34(b). 

• Routine checking of hearing aids and other devices ............................................................................................... 300.113. 

• SLD: Educationally relevant medical findings, if any ............................................................................................. 300.311(a)(4). 

MEDICATION 

• Prohibition on mandatory medication ..................................................................................................................... 300.174. 

MEETING(S) 

• Alternative means of meeting participation ............................................................................................................. 300.328. 

• Consolidation of IEP Team meetings ........................................................................................................................ 300.324(a)(5). 

• Equitable services determined (Parentally-placed private school CWDs) .............................................................. 300.137. 

• IEP Team meetings (See ‘‘IEP’’). 

• Mediation (Opportunity to meet) .............................................................................................................................. 300.506(b)(2). 

• Opportunity to examine records; participation in IEP Team meetings .................................................................. 300.501. 

• Parent participation in meetings (see § 300.506(b)(2), (b)(4)). 

• Private school placements by public agencies ......................................................................................................... 300.325. 

• Reviewing and revising IEPs (Private school placements) ...................................................................................... 300.325(b). 

• Services plan for private school children (Meetings) .............................................................................................. 300.137(c)(1). 

MENTAL RETARDATION (Definition) ........................................................................................................................ 300.8(c)(6). 

METHODS OF ENSURING SERVICES ......................................................................................................................... 300.154. 

MIGRANT CHILDREN 

• Child find ................................................................................................................................................................... 300.111(c)(2). 

• Records regarding migratory children (Linkage with ESEA) .................................................................................. 300.213. 

MINIMUM STATE COMPLAINT PROCEDURES ........................................................................................................ 300.152. 

• See ‘‘Complaints,’’ ‘‘State complaint procedures’’. 

MONITOR; MONITORING ACTIVITIES (A–N) 


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• Allowable costs for monitoring ................................................................................................................................. 300.704(b)(3)(i). 

• Children placed in private schools by public agencies ........................................................................................... 300.147(a). 

• Implementation by SEA ............................................................................................................................................ 300.147(a). 

• LRE (SEA monitoring activities) ............................................................................................................................... 300.120. 

• Monitoring activities (LRE) ....................................................................................................................................... 300.120. 

• Monitoring—Enforcement (Subpart F) ..................................................................................................................... 300.600. 

Æ Rule of construction (Use any authority under GEPA to monitor) ................................................................. 300.609. 

Æ Secretary’s review and determination regarding State performance .............................................................. 300.603(b)(1). 

Æ State exercise of general supervision ................................................................................................................ 300.600(d)(2). 

Æ State use of targets and reporting ...................................................................................................................... 300.602(a), (b)(1). 

MONITOR; MONITORING ACTIVITIES (O–Z) 

• Outlying areas, etc. (see § 300.701(a)(1)(ii)). 

• Private school children: SEA monitoring ................................................................................................................. 300.147(a). 

• SEA responsibility for general supervision .............................................................................................................. 300.149(b). 

• Secretary of the Interior ............................................................................................................................................. 300.708. 

• State advisory panel functions (Advise SEA on corrective action plans) .............................................................. 300.169(d). 

• Use of SEA allocations for monitoring ..................................................................................................................... 300.704(b)(3)(i). 

• Waiver (State’s procedures for monitoring) ............................................................................................................. 300.164(c)(2)(ii)(B). 

Æ Summary of monitoring reports ........................................................................................................................ 300.164(c)(3). 

MULTIPLE DISABILITIES (Definition) ........................................................................................................................ 300.8(c)(7). 

NATIONAL INSTRUCTIONAL MATERIALS ACCESS CENTER (NIMAC) ............................................................... 300.172(e)(1)(ii). 

NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY STANDARDS (NIMAS) ......................................... 300.172(e)(1)(iii). 

• See also Appendix C. 

NATIVE LANGUAGE 

• Confidentiality (Notice to parents) ........................................................................................................................... 300.612(a)(1). 

• Definition .................................................................................................................................................................... 300.29. 

• Definition of ‘‘Consent’’ ............................................................................................................................................. 300.9. 

• Evaluation procedures (Tests in native language) ................................................................................................... 300.304(c)(1)(ii). 

• Notice to parents: Confidentiality (In native language) ........................................................................................... 300.612(a)(1). 

• Prior notice: 

Æ Notice in native language .................................................................................................................................. 300.503(c)(1)(ii). 

Æ Notice translated orally ...................................................................................................................................... 300.503(c)(2)(i). 

Æ Steps if not a written language .......................................................................................................................... 300.503(c)(2). 

NATURE/LOCATION OF SERVICES (Direct services by SEA) .................................................................................. 300.227. 

NEPHRITIS (In ‘‘Other health impairment’’) ............................................................................................................... 300.8(c)(9)(i).

NIMAC (See ‘‘National Instructional Materials Access Center’’) 

NIMAS (See ‘‘National Instructional Materials Accessibility Standard’’) 

NONACADEMIC 

• Activities: Participate in (IEP content) ..................................................................................................................... 300.320(a)(4)(ii). 

• Services and extracurricular activities (Equal opportunity to participate in) ....................................................... 300.107(a). 

• Settings ....................................................................................................................................................................... 300.117. 

NONCOMMINGLING .................................................................................................................................................... 300.162(b). 

NONDISABLED (Children; students) (A–P) 

• At no cost (In definition of ‘‘special education’’) .................................................................................................... 300.39(b)(1). 

• Disciplinary information ........................................................................................................................................... 300.229(a). 

• Excess cost requirement ............................................................................................................................................ 300.202(b). 

• IEP (definition) (see § 300.320(a)(1)(i), (a)(4)(iii), (a)(5)).

• LRE (General requirement) ........................................................................................................................................ 300.114. 

• Nonacademic settings ................................................................................................................................................ 300.117. 

• Placement ................................................................................................................................................................... 300.116. 

• Program options ......................................................................................................................................................... 300.110. 

NONDISABLED (Children; students) (R–Z) 

• Regular physical education ....................................................................................................................................... 300.108(b). 

• Services and aids that also benefit nondisabled children ....................................................................................... 300.208(a)(1). 

• Special education (Definition: In definition of ‘‘at no cost’’) ................................................................................. 300.39(b)(1). 

• Supplementary aids and services ............................................................................................................................. 300.42. 

• Suspension and expulsion rates ............................................................................................................................... 300.170(a)(2). 

NONEDUCATIONAL (Public agency) 

• Medicaid service (May not be disqualified because in school context) ................................................................. 300.154(b)(1)(ii). 

• Methods of ensuring services (see § 300.154(a), (b)) 

• Obligation of ............................................................................................................................................................... 300.154(b). 

• Reimbursement for services by ................................................................................................................................. 300.154(b)(2). 

NON-MEDICAL CARE (Residential placement) .......................................................................................................... 300.104. 

NONSUPPLANTING 

• Excess cost requirement (Regarding children aged 3 through 5 and 18 through 21) ............................................ 300.202(b)(1)(ii). 

• LEA nonsupplanting .................................................................................................................................................. 300.202(b)(1)(ii). 

• SEA flexibility ............................................................................................................................................................ 300.230(a). 

• State-level activities (Inapplicability of certain provisions) ................................................................................... 300.704(d). 

• State-level nonsupplanting ........................................................................................................................................ 300.162(c). 

• Waiver of requirement ............................................................................................................................................... 300.164. 

NOTICES: By parents or parties 

• Attorneys’ fees: When court reduces fee award regarding due process request notice ........................................ 300.517(c)(4)(iv). 


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• Children enrolled by parents in private schools when FAPE is at issue ............................................................... 300.148(d)(1)(i). 

• Due process complaint (Notice before a hearing on a complaint) .......................................................................... 300.508(c). 

• Private school placement by parents (When FAPE is at issue) .............................................................................. 300.148(d)(1)(i). 

NOTICES: Public agency (A–M) 

• By-pass (Judicial review) ........................................................................................................................................... 300.197. 

• Children’s rights (Transfer of rights) ........................................................................................................................ 300.625(c). 

• Confidentiality (Notice to parents) ........................................................................................................................... 300.612. 

• Department procedures (Notice to States) ................................................................................................................ 300.179. 

Æ See ‘‘Judicial review’’ ......................................................................................................................................... 300.184. 

• Discipline (Notification) ............................................................................................................................................ 300.530(h). 

• Exception to FAPE (Graduation) ............................................................................................................................... 300.102(a)(3). 

• Hearings relating to LEA eligibility .......................................................................................................................... 300.155. 

• IEP meetings (Parent participation) .......................................................................................................................... 300.322(b). 

• Judicial review: If State dissatisfied with eligibility determination ....................................................................... 300.184. 

• LEA and State agency compliance ........................................................................................................................... 300.222. 

Æ Notification in case of ineligibility ................................................................................................................... 300.221(b). 

NOTICES: Public agency (N–P) 

• Notice before a hearing on a due process complaint .............................................................................................. 300.508(c). 

• Notice and hearing before State ineligible ............................................................................................................... 300.179. 

• Notice in understandable language .......................................................................................................................... 300.503(c). 

• Notification of LEA in case of ineligibility .............................................................................................................. 300.221(b). 

• Parent participation in meetings ............................................................................................................................... 300.501(b)(2). 

• Prior notice by public agency ................................................................................................................................... 300.503. 

• Private school placement by parents when FAPE is at issue (Public agency notice) ........................................... 300.148(d)(2). 

• Procedural safeguards notice .................................................................................................................................... 300.504. 

• Public attention .......................................................................................................................................................... 300.606. 

• Public participation (Notice of hearings) ................................................................................................................. 300.165(a). 

NOTICES: Public agency (Q–Z) 

• Secretary of the Interior (Submission of information) ............................................................................................. 300.708(g). 

• Secretary’s review and determination of State performance .................................................................................. 300.603(b)(2). 

• Transfer of parental rights ......................................................................................................................................... 300.520(a)(1)(i). 

• Use of electronic mail ................................................................................................................................................ 300.505. 

• Withholding funds ..................................................................................................................................................... 300.605. 

OCCUPATIONAL THERAPY ........................................................................................................................................ 300.34(c)(6). 

OPPORTUNITY TO EXAMINE RECORDS ................................................................................................................... 300.501. 

ORIENTATION AND MOBILITY SERVICES ............................................................................................................... 300.34(c)(7). 

ORTHOPEDIC IMPAIRMENT ....................................................................................................................................... 300.8(c)(8). 

OTHER HEALTH IMPAIRMENT .................................................................................................................................. 300.8(c)(9). 

OTHER INDIVIDUALS ON IEP TEAM ......................................................................................................................... 300.321(a)(6). 

OUTLYING AREAS—FREELY ASSOCIATED STATES 

• Allocations to States (General) .................................................................................................................................. 300.703(a). 

• Annual description of use of funds .......................................................................................................................... 300.171(c). 

• Definitions applicable to allotments, grants and use of funds: 

Æ Freely associated States ..................................................................................................................................... 300.717(a). 

Æ Outlying areas ..................................................................................................................................................... 300.717(b). 

• Definition of ‘‘State’’ (Includes ‘‘Outlying areas’’) ................................................................................................... 300.40. 

• Outlying areas and freely associated States ............................................................................................................. 300.701. 

• Purpose of grants ....................................................................................................................................................... 300.700(a). 

OUT-OF-POCKET EXPENSE (Public benefits or insurance) ...................................................................................... 300.154(d)(2)(ii). 

PARAPROFESSIONALS 

In ‘‘Personnel qualifications’’ ....................................................................................................................................... 300.156(b). 

PARENT (Definition) ..................................................................................................................................................... 300.30. 

PARENT: RIGHTS AND PROTECTIONS (A–G) 

• Appeal (Manifestation determination) ..................................................................................................................... 300.532. 

• Confidentiality (Authority to inspect and review records) ..................................................................................... 300.613(c). 

• Consent (See ‘‘Consent’’) 

• Counseling and training (Definition) ........................................................................................................................ 300.34(c)(8). 

• Definition of ‘‘Parent’’ ............................................................................................................................................... 300.30. 

Æ Foster parent ....................................................................................................................................................... 300.30(a)(2). 

Æ Grandparent or stepparent ................................................................................................................................. 300.30(a)(4). 

Æ Guardian ............................................................................................................................................................. 300.30(a)(3). 

PARENT: RIGHTS AND PROTECTIONS (H–N) 

• Independent educational evaluation ........................................................................................................................ 300.502. 

Æ Parent-initiated evaluations ............................................................................................................................... 300.502(c). 

Æ Parent right to evaluation at public expense .................................................................................................... 300.502(b). 

• IEP and parent involvement: 

Æ Copy of child’s IEP ............................................................................................................................................. 300.322(f). 

Æ Informed of child’s progress .............................................................................................................................. 300.320(a)(3)(ii). 

Æ Option to invite other individuals .................................................................................................................... 300.321(a)(6). 

Æ Participation in meetings ................................................................................................................................... 300.322. 

Æ Team member ..................................................................................................................................................... 300.321(a)(1). 

• Informed consent (Accessing private insurance) ..................................................................................................... 300.154(e)(1). 

• Involvement in placement decisions ........................................................................................................................ 300.501(c). 


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• Meetings (Participation in) ........................................................................................................................................ 300.501(b). 

• Notice to public agency: 

Æ Before a hearing on a due process complaint .................................................................................................. 300.508(c). 

Æ Before removing child from public school ....................................................................................................... 300.148(d)(1)(ii). 

Æ Timeline for requesting a hearing ..................................................................................................................... 300.511(e). 

• Exceptions to timeline ................................................................................................................................ 300.511(f). 

Æ Opportunity to examine records ....................................................................................................................... 300.501(a). 

PARENT: RIGHTS AND PROTECTIONS (O–Z) 

• Parent counseling and training ................................................................................................................................. 300.34(c)(8). 

• Placement decisions (Involvement in) ..................................................................................................................... 300.501(c). 

• Request for hearing (Discipline) ............................................................................................................................... 300.532(a). 

• Right to an independent educational evaluation ..................................................................................................... 300.502(b). 

PARENTAL CONSENT (See ‘‘Consent’’) 

PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (A–E) 

• Annual count of the number of ................................................................................................................................ 300.133(c). 

• Bypass (see §§ 300.190 through 300.198) 

• Child find for ............................................................................................................................................................. 300.131. 

• Calculating proportionate amount ............................................................................................................................ 300.133(b). 

• Compliance ................................................................................................................................................................. 300.136. 

• Consultation with private schools ............................................................................................................................ 300.134. 

• Written affirmation .................................................................................................................................................... 300.135. 

• Definition of ............................................................................................................................................................... 300.130. 

• Due process complaints and State complaints ........................................................................................................ 300.140. 

• Equitable services determined .................................................................................................................................. 300.137. 

Æ Equitable services provided ............................................................................................................................... 300.138. 

• Expenditures .............................................................................................................................................................. 300.133. 

Æ Formula ............................................................................................................................................................... 300.133(a). 

PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (F–R) 

• No individual right to special education and related services ............................................................................... 300.137(a). 

• Property, equipment, and supplies ........................................................................................................................... 300.144. 

• Proportionate share of funds ..................................................................................................................................... 300.134(b). 

Æ See ‘‘Appendix B—Proportionate Share Calculation’’

• Provision of equitable services ................................................................................................................................. 300.138(c). 

• Religious schools (see §§ 300.131(a), 300.137(c), 300.139(a)) 

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

PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (S–T) 

• Separate classes prohibited ....................................................................................................................................... 300.143. 

• Services on private school premises ........................................................................................................................ 300.139(a). 

• Services plan (Definition) .......................................................................................................................................... 300.37. 

Æ For each child served under §§ 300.130 through 300.144 ............................................................................... 300.137(c). 

Æ See also §§ 300.132(b), 300.138(b), 300.140(a) 

• State eligibility requirement ...................................................................................................................................... 300.129. 

• Transportation (Cost of) ............................................................................................................................................. 300.139(b)(2). 

PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (U–Z) 

• Use of personnel: 

Æ Private school personnel .................................................................................................................................... 300.142(b). 

Æ Public school personnel ..................................................................................................................................... 300.142(a). 

• Written affirmation .................................................................................................................................................... 300.135. 

• Written explanation by LEA regarding services ...................................................................................................... 300.134(e). 

PARTICIPATING AGENCY 

• Confidentiality provisions: 

Æ Definition of participating agency ..................................................................................................................... 300.611(c). 

Æ See also §§ 300.613(c), 300.614, 300.616, 300.618, 300.623 

• IEP requirements (Transition services) ..................................................................................................................... 300.324(c). 

PENDENCY (Stay put) 

• Child’s status during due process proceedings ........................................................................................................ 300.518. 

• Placement during appeals (Discipline) ..................................................................................................................... 300.533. 

• Procedural safeguards notice .................................................................................................................................... 300.504(c)(7). 

PERFORMANCE GOALS AND INDICATORS 

• Assess progress toward achieving goals ................................................................................................................... 300.157(c). 

• Establishment of goals ............................................................................................................................................... 300.157. 

• Other State level activities ........................................................................................................................................ 300.814(c). 

• Performance goals and indicators ............................................................................................................................. 300.157. 

• State monitoring and enforcement ........................................................................................................................... 300.600(c). 

• State performance plans and data collection ........................................................................................................... 300.601. 

PERFORMANCE; PERFORMANCE PLANS (STATE) 

• Enforcement ............................................................................................................................................................... 300.604. 

• Public reporting and privacy .................................................................................................................................... 300.602(b). 

• Secretary’s review and determination regarding State performance ...................................................................... 300.603. 

• State performance plans and data collection ........................................................................................................... 300.601. 

• State performance report ........................................................................................................................................... 300.602(b)(2). 

• State use of targets and reporting ............................................................................................................................. 300.602. 

Æ Public reporting .................................................................................................................................................. 300.602(b)(1). 

Æ State performance report .................................................................................................................................... 300.602(b)(2). 


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PERMISSIVE USE OF FUNDS (LEAs) 

• Administrative case management ............................................................................................................................. 300.208(b). 

• Early intervening services ......................................................................................................................................... 300.208(a)(2). 

• High cost education and related services ................................................................................................................. 300.208(a)(3). 

• Permissive use of funds ............................................................................................................................................. 300.208. 

• Services and aids that also benefit nondisabled children ....................................................................................... 300.208(a)(1). 

PERSONALLY IDENTIFIABLE (PI) INFORMATION (A–H) 

• Confidentiality of (State eligibility requirement) ..................................................................................................... 300.123. 

• Consent (confidentiality) ........................................................................................................................................... 300.622(a). 

• Data collection (State performance plans) ............................................................................................................... 300.601(b)(3). 

• Definition of ‘‘personally identifiable’’ .................................................................................................................... 300.32. 

• Department use of information ................................................................................................................................. 300.627. 

• Destruction: 

Æ Definition of ........................................................................................................................................................ 300.611(a). 

Æ Destruction of information ................................................................................................................................. 300.624. 

• Hearing decisions to advisory panel and the public ............................................................................................... 300.513(d). 

PERSONALLY IDENTIFIABLE (PI) INFORMATION (I–Z) 

• Notice to parents (Confidentiality): 

Æ Children on whom PI information is maintained ............................................................................................ 300.612(a)(2). 

Æ Policies and procedures regarding disclosure to third parties, etc ................................................................. 300.612(a)(3). 

• Participating agency (Definition) .............................................................................................................................. 300.611(c). 

• Protection of PI information ...................................................................................................................................... 300.642(a). 

• See also § 300.610.

• Safeguards (Protect PI information) .......................................................................................................................... 300.623. 

PERSONNEL QUALIFICATIONS ................................................................................................................................. 300.156. 

PERSONNEL SHORTAGES 

• Use of SEA allocations to meet ................................................................................................................................. 300.704(b)(4)(vii). 

PHYSICAL EDUCATION.

• Definition .................................................................................................................................................................... 300.39(b)(2). 

• State eligibility requirement ...................................................................................................................................... 300.108. 

PHYSICAL THERAPY (Definition) ............................................................................................................................... 300.34(c)(9). 

PLACEMENT(S) (A–Co) 

• Adult prisons (CWDs in): 

Æ Last educational placement before incarceration ............................................................................................. 300.102(a)(2)(i). 

Æ Modifications to IEPs and placements .............................................................................................................. 300.324(d)(2). 

• Alternative means of meeting participation (Regarding ‘‘Placement meetings’’) .................................................. 300.328. 

• Change in placement: Graduation ............................................................................................................................ 300.102(a)(3)(iii). 

• Child’s placement during pendency of any complaint ........................................................................................... 300.504(c)(7). 

Æ See also ‘‘Pendency’’ (Child’s status during proceedings) .............................................................................. 300.518. 

• Children with disabilities in adult prisons: Placements regarding (see §§ 300.102(a)(2)(i), 300.324(d)(2)).

• Continuum of alternative placements (Continuum—LRE) ...................................................................................... 300.115. 

PLACEMENT(S) (Cu–L) 

• Current placement (see § 300.530(b)((2), (d) ) 

• Current ‘‘Educational placement:’’

Æ Change of placements because of disciplinary removals ................................................................................ 300.536. 

Æ Child’s status during proceedings ..................................................................................................................... 300.518(a). 

• Disciplinary changes in placement ........................................................................................................................... 300.530(c). 

• Discipline procedures and placements (see §§ 300.530 through 300.536).

• Educational placements (Parents in any group that makes placement decisions) ................................................ 300.327. 

• Graduation: A change in placement (Exception to FAPE) ...................................................................................... 300.102(a)(3)(iii). 

• Last educational placement (Before incarceration) .................................................................................................. 300.102(a)(2)(i). 

• Least restrictive environment (LRE) (see §§ 300.114 through 300.120) 

• Notification: LEA must notify parents of decision to change placement .............................................................. 300.530(h). 

PLACEMENT(S) (O–Z) 

• Pendency (Child’s status during proceedings) ......................................................................................................... 300.518. 

Placement of children by parents if FAPE is at issue ................................................................................................. 300.148. 

• Placements (LRE) ....................................................................................................................................................... 300.116. 

• Requirements for unilateral placement by parents of CWDs in private schools (In ‘‘Procedural safeguards notice’’).300.504(c)(9). 

• State funding mechanism (Must not result in placements that violate LRE) ........................................................ 300.114(b)(1). 

POLICY: POLICIES AND PROCEDURES 

• Condition of assistance (LEA eligibility) .................................................................................................................. 300.200. 

Æ Consistency with State policies ......................................................................................................................... 300.201. 

Æ See also §§ 300.200 through 300.213 

• Eligibility for assistance (State) ................................................................................................................................. 300.100. 

• Exception for prior policies on file: 

Æ With the SEA ...................................................................................................................................................... 300.220. 

Æ With the Secretary .............................................................................................................................................. 300.176(a). 

• FAPE policy ............................................................................................................................................................... 300.101(a). 

• Joint establishment of eligibility (Requirements) ..................................................................................................... 300.223. 

• Modifications of: 

Æ LEA or State agency policies ............................................................................................................................. 300.220(b). 

Æ Required by Secretary ........................................................................................................................................ 300.176(c). 

Æ State policies (By a State) .................................................................................................................................. 300.176(b). 


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• Public participation ................................................................................................................................................... 300.165. 

• Secretary of the Interior ............................................................................................................................................. 300.708. 

Æ Public participation ............................................................................................................................................ 300.709. 

Æ Submission of information ................................................................................................................................ 300.708. 

PREPONDERANCE OF EVIDENCE 

• Civil action ................................................................................................................................................................. 300.516(c)(3). 

PRESCHOOL GRANTS 

• Allocations to LEAs ................................................................................................................................................... 300.816. 

Æ Subgrants to LEAs .............................................................................................................................................. 300.815. 

• Other State-level activities ........................................................................................................................................ 300.814. 

Æ Provide early intervention services in accordance with Part C of the Act .................................................... 300.814(e). 

Æ Service coordination or case management ....................................................................................................... 300.814(f). 

• State administration ................................................................................................................................................... 300.813. 

• Use of funds for administration of Part C ................................................................................................................ 300.813(b). 

PRIOR NOTICE 

• By public agency ........................................................................................................................................................ 300.503. 

• Notice required before a hearing on a due process complaint ............................................................................... 300.508(c). 

• Procedural safeguards notice .................................................................................................................................... 300.504. 

PRISONS (See ‘‘Adult prisons’’) 

PRIVATE INSURANCE 

• Children with disabilities who are covered by ........................................................................................................ 300.154(e). 

Æ Proceeds from public benefits or insurance or private insurance .................................................................. 300.154(g). 

Æ Use of Part B funds ............................................................................................................................................ 300.154(f). 

PRIVATE SCHOOLS AND FACILITIES 

• Applicability of this part to State and local agencies: 

Æ CWDs placed in private schools by parents under § 300.148 ......................................................................... 300.2(c)(2). 

Æ CWDs referred to or placed in private schools by public agency ................................................................... 300.2(c)(1). 

PRIVATE SCHOOL CHILDREN ENROLLED BY THEIR PARENTS 

• Placement of children by parents when FAPE is at issue ...................................................................................... 300.148. 

• See ‘‘Parentally-placed private school children with disabilities’’

PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (A–D) 

• Applicability of this part to private schools ............................................................................................................ 300.2(c)(1). 

• Applicable standards (SEA to disseminate to private schools involved) .............................................................. 300.147(b). 

PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (E–Z) 

• Implementation by SEA (Must monitor, provide standards, etc.) .......................................................................... 300.147. 

• Monitor compliance ................................................................................................................................................... 300.147(a). 

• Input by private schools (Provide for) ...................................................................................................................... 300.147(c). 

• Responsibility of SEA ................................................................................................................................................ 300.146. 

PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (A–C) 

• Additional disclosure of information (5 business days before hearing) ................................................................ 300.512(b). 

• Agency responsible for conducting hearing ............................................................................................................. 300.511(b). 

• Appeal of hearing decisions; impartial review ........................................................................................................ 300.514(b). 

• Attorneys’ fees ............................................................................................................................................................ 300.517. 

• Child’s status during proceedings ............................................................................................................................ 300.518. 

• Civil action ................................................................................................................................................................. 300.516. 

• Consent (Definition) ................................................................................................................................................... 300.9. 

• Court (See ‘‘Court(s)’’) 

PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (D–H) 

• Electronic mail (Parent may elect to receive notices by) ........................................................................................ 300.505. 

• Evaluation (Definition) .............................................................................................................................................. 300.15. 

• Evaluations: Hearing officer requests for ................................................................................................................. 300.502(d). 

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

• Findings and decision to advisory panel and public .............................................................................................. 300.513(d). 

• Hearing rights ............................................................................................................................................................. 300.512. 

PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (I–Pa) 

• Impartial due process hearing ................................................................................................................................... 300.511. 

• Impartial hearing officer ............................................................................................................................................ 300.511(c). 

• Impartiality of mediator ............................................................................................................................................ 300.506(c). 

• Independent educational evaluation ........................................................................................................................ 300.502. 

Æ Definition ............................................................................................................................................................ 300.502(a)(3)(i). 

• Jurisdiction of district courts .................................................................................................................................... 300.516(d). 

Æ See ‘‘Court(s)’’

• Mediation ................................................................................................................................................................... 300.506. 

Æ Opportunity to meet with a disinterested party ............................................................................................... 300.506(b)(2). 

• Model form to assist parties in filing a due process or State complaint ............................................................... 300.509. 

• Notice required before a hearing on a due process complaint ............................................................................... 300.508(c). 

• Opportunity to examine records ............................................................................................................................... 300.501(a). 

• Parental consent ......................................................................................................................................................... 300.300. 

• Parent-initiated evaluations ...................................................................................................................................... 300.502(c). 

• Parent involvement in placement decisions ............................................................................................................ 300.501(c). 

• Parent participation in meetings ............................................................................................................................... 300.501(b). 

• Parental rights at hearings ......................................................................................................................................... 300.512(c). 

• Parent right to evaluation at public expense ........................................................................................................... 300.502(b). 

Æ Public expense (Definition) ............................................................................................................................... 300.502(a)(3)(ii). 


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PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (Pe–Z) 

• Pendency .................................................................................................................................................................... 300.518. 

• Personally identifiable (Definition) .......................................................................................................................... 300.32. 

• Prior notice by public agency ................................................................................................................................... 300.503. 

• Procedural safeguards notice .................................................................................................................................... 300.504. 

• Prohibition on introduction of undisclosed evidence 5 business days before hearing ........................................ 300.512(a)(3). 

• Record of hearing ....................................................................................................................................................... 300.512(a)(4). 

• Resolution process ..................................................................................................................................................... 300.510. 

• SEA implementation of ............................................................................................................................................. 300.150. 

• See ‘‘Civil Action Proceedings,’’ ‘‘Court(s),’’ ‘‘Hearing Officer(s),’’ ‘‘Timelines’’

• Surrogate parents ....................................................................................................................................................... 300.519. 

• Timelines and convenience of hearings ................................................................................................................... 300.515. 

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

PROCEDURAL SAFEGUARDS NOTICE ...................................................................................................................... 300.504. 

• Internet Web site (Notice on) .................................................................................................................................... 300.504(b). 

PROCEEDS FROM PUBLIC BENEFITS OR INSURANCE OR PRIVATE INSURANCE ............................................. 300.154(g). 

PROGRAM INCOME (Not treated as proceeds from insurance) ................................................................................ 300.154(g.) 

PROGRAM MODIFICATIONS OR SUPPORTS (IEP content) ..................................................................................... 300.320(a)(4). 

PROPORTIONATE SHARE CALCULATION (See Appendix B) 

PROTECTIONS FOR CHILDREN NOT DETERMINED ELIGIBLE (Discipline) .......................................................... 300.534.

PSYCHOLOGICAL SERVICES (Definition) .................................................................................................................. 300.34(c)(10). 

PUBLIC AGENCY (Definition) ...................................................................................................................................... 300.33. 

PUBLIC BENEFITS OR INSURANCE ........................................................................................................................... 300.154(d). 

PUBLIC BENEFITS OR INSURANCE OR PRIVATE INSURANCE (Proceeds from) ................................................. 300.154(g). 

PUBLIC CHARTER SCHOOLS (See ‘‘Charter schools’’) 

PUBLIC EXPENSE (Definition under IEE) ................................................................................................................... 300.502(a)(3)(ii). 

PUBLIC HEARINGS (On policies) 

• State eligibility ........................................................................................................................................................... 300.165(a). 

• Secretary of the Interior ............................................................................................................................................. 300.708(g). 

PUBLIC INFORMATION (LEA) .................................................................................................................................... 300.212. 

PUBLIC NOTICE 

• LEA and State agency compliance ........................................................................................................................... 300.222(b). 

• Public attention (If State has received a notice under § 300.603) .......................................................................... 300.606. 

PURPOSES (Of this Part 300) ....................................................................................................................................... 300.1. 

QUALIFIED PERSONNEL ............................................................................................................................................. 300.156. 

• Related services definitions (see § 300.34(c)(2), (c)(5), (c)(6), (c)(7), (c)(9), (c)(12), (c)(13)). 

RATE OF INFLATION (In the Consumer Price Index for All Urban Consumers) (see §§ 300.702(b), 

300.704(a)(2)(ii), 300.704(b)(2), 300.812(b)(2)). 

REALLOCATION OF LEA FUNDS (If SEA determines LEA adequately providing FAPE) (see §§ 300.705(c), 

300.817)). 

RECORDS (A–D) 

• Access rights (Parents’ right to inspect) ................................................................................................................... 300.613. 

Æ Fees for records .................................................................................................................................................. 300.617. 

Æ Records on more than one child ....................................................................................................................... 300.615. 

• Civil action (Court shall receive records) ................................................................................................................. 300.516(c)(1). 

• Conducting IEP Team meetings without parents (Records of attempts to convince parents) .............................. 300.322(d).

Confidentiality (See ‘‘Confidentiality’’) 

• Consent to release records ......................................................................................................................................... 300.622(b). 

Disciplinary records: 

Æ Determination that behavior not manifestation ................................................................................................ 300.530(e). 

Æ Disciplinary information .................................................................................................................................... 300.229(c). 

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

RECORDS (E–Z) 

• Education records (Definition) .................................................................................................................................. 300.611(b). 

• Of parentally-placed private school CWDs (LEA to SEA) ....................................................................................... 300.132(c). 

• Opportunity to examine records ............................................................................................................................... 300.501(a). 

• Procedural safeguards notice (Access to education records) .................................................................................. 300.504(c)(4). 

• Record of access ......................................................................................................................................................... 300.614. 

• See also ‘‘Transfer during academic year’’

RECREATION (Definition) ............................................................................................................................................ 300.34(c)(11). 

REDUCTION OF FUNDS FOR FAILURE TO MAINTAIN SUPPORT ........................................................................ 300.163(b). 

REEVALUATION 

• Frequency of occurrence ........................................................................................................................................... 300.303(b). 

• Parental consent required before conducting .......................................................................................................... 300.300(c)(1). 

Æ If parent fails to consent .................................................................................................................................... 300.300(c)(1)(ii). 

• Parental consent not required for: 

Æ Administering a test that all children take ....................................................................................................... 300.300(d)(1)(ii). 

Æ Reviewing existing data ..................................................................................................................................... 300.300(d)(1)(i). 

• Parent refusal to consent ........................................................................................................................................... 300.300(c)(1)(ii). 

• Review of existing evaluation data ........................................................................................................................... 300.305(a). 

• Revision of IEP (To address reevaluation) ............................................................................................................... 300.324(b)(1)(ii). 


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REFERRAL (A–M) 

• Discipline: 

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

Æ Protections for children not determined eligible ............................................................................................. 300.534. 

• Enforcement (Referral for) ......................................................................................................................................... 300.604(b)(2)(vi). 

• Indian children (Referral for services or further diagnosis) .................................................................................... 300.712(d)(2). 

• Medical attention (Referral for): 

Æ Audiology ........................................................................................................................................................... 300.34(c)(1)(ii). 

Æ Speech-language pathology services ................................................................................................................. 300.34(c)(15)(iii). 

REFERRAL (N–Z) 

• Nonacademic and extracurricular services (Referral to agencies regarding assistance to individuals with disabilities).300.107(b). 

• Prior notice (If not initial referral for evaluation) .................................................................................................... 300.503(b)(4). 

• Private school placement when FAPE is at issue (Reimbursement when no referral by public agency) ............ 300.148(c). 

• Procedural safeguards notice (Upon initial referral for evaluation) ....................................................................... 300.504(a)(1). 

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

REGULAR EDUCATION TEACHER 

• Access to IEP .............................................................................................................................................................. 300.323(d). 

• IEP Team member ...................................................................................................................................................... 300.321(a)(2). 

• Participate in IEP development ................................................................................................................................ 300.324(a)(3). 

Æ Behavioral interventions .................................................................................................................................... 300.324(a)(3)(i). 

Æ Supplementary aids and services ...................................................................................................................... 300.324(a)(3)(ii). 

REGULATIONS 

• Applicable regulations (Secretary of the Interior) ................................................................................................... 300.716. 

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

REHABILITATION 

• Assistive technology service (see § 300.6(d), (f)) 

• Rehabilitation Act of 1973 (see §§ 300.34(c)(12), 300.516(e)) 

• Rehabilitation counseling services: 

Æ Definition ............................................................................................................................................................ 300.34(c)(12). 

Æ In vocational rehabilitation (VR) programs ...................................................................................................... 300.34(c)(12). 

• Transition services (State VR agency responsibility) .............................................................................................. 300.324(c)(2). 

REHABILITATION COUNSELING SERVICES ............................................................................................................. 300.34(c)(12). 

REIMBURSEMENT 

• Methods of ensuring services (see § 300.154(a)(3), (b)(1)(ii), (b)(2), (g)(2)) 

• Private school placement when FAPE is at issue: 

Æ Limitation on reimbursement ............................................................................................................................ 300.148(d). 

Æ Reimbursement for private school placement .................................................................................................. 300.148(c). 

Æ Subject to due process procedures .................................................................................................................... 300.148(b). 

• Reimbursement by non-educational public agency ................................................................................................. 300.154(b)(2). 

• Reimbursement by SEA to LEA ................................................................................................................................ 300.704(c)(7). 

RELATED SERVICES 

• Definition .................................................................................................................................................................... 300.34. 

• Observations by teachers and related services providers regarding existing evaluation data .............................. 300.305(a)(1)(iii). 

RELATION OF PART B TO OTHER FEDERAL PROGRAMS ..................................................................................... 300.186. 

RELIGIOUS SCHOOLS 

• Child find for parentally-placed private school children ....................................................................................... 300.131(a). 

• Child find for out-of-State children .......................................................................................................................... 300.131(f). 

• Formula for LEA expenditures on ............................................................................................................................ 300.133(a). 

• See ‘‘Parentally-placed private school children with disabilities’’

• Services plan for each child served .......................................................................................................................... 300.137(c). 

• Services provided on-site .......................................................................................................................................... 300.139(a). 

REMEDIES FOR DENIAL OF APPROPRIATE SERVICES ........................................................................................... 300.151(b). 

REPORTS (A–C) 

• Annual report of children served ............................................................................................................................. 300.640. 

Æ See also §§ 300.641 through 300.646 

• Annual report to Secretary of Interior by advisory board on Indian children ...................................................... 300.715(a). 

• Biennial report (Indian tribes) .................................................................................................................................. 300.712(e). 

• Child count (Annual report of children served) ...................................................................................................... 300.641. 

REPORTS (D–Z) 

• Evaluation reports to parents .................................................................................................................................... 300.306(a)(2). 

• Monitoring compliance of publicly placed children in private schools (e.g., written reports) ............................ 300.147(a). 

• Monitoring reports (Waiver of nonsupplanting requirement) ................................................................................. 300.164(c)(3). 

• Performance goals (Progress reports) ........................................................................................................................ 300.157(c). 

• Secretary’s report to States regarding 25% of funds ............................................................................................... 300.812(b). 

REPORT CARDS ............................................................................................................................................................ 300.320(a)(3)(ii). 

REPORTING A CRIME to law enforcement and judicial authorities ......................................................................... 300.535. 

RESIDENTIAL PLACEMENTS ...................................................................................................................................... 300.104. 

REVOKE CONSENT AT ANY TIME (In definition of ‘‘Consent’’) ............................................................................. 300.9(c)(1). 

RHEUMATIC FEVER ..................................................................................................................................................... 300.8(c)(9)(i). 

RISK OF LOSS OF ELIGIBILITY FOR INSURANCE ................................................................................................... 300.154(d)(2)(iii)(D). 

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• Definition .................................................................................................................................................................... 300.11(c). 

• See ‘‘Timelines,’’ ‘‘Timelines—Discipline’’

SCHOOL HEALTH SERVICES AND SCHOOL NURSE SERVICES ............................................................................ 300.34(c)(13). 

SCHOOL PERSONNEL 

• Content of IEP ............................................................................................................................................................ 300.320(a)(4). 

• Development, review, and revision of IEP ............................................................................................................... 300.324(a)(4). 

• Disciplinary authority ................................................................................................................................................ 300.530. 

• Use of private school personnel ............................................................................................................................... 300.142(b). 

• Use of public school personnel ................................................................................................................................ 300.142(a). 

SCHOOLWIDE PROGRAMS ......................................................................................................................................... 300.206. 

SEA RESPONSIBILITY 

• For all education programs ....................................................................................................................................... 300.149. 

• For direct services ...................................................................................................................................................... 300.227. 

• For each parentally-placed private school child designated to receive services ................................................... 300.132(b). 

• For impartial review .................................................................................................................................................. 300.514(b)(2). 

• Prohibition of LEA from reducing maintenance of effort ....................................................................................... 300.608. 

SECRETARY 

• Determination that a State is eligible ....................................................................................................................... 300.178. 

• Notice and hearing before determining that a State is not eligible ........................................................................ 300.179. 

• Waiver of nonsupplanting requirement ................................................................................................................... 300.164. 

SECRETARY OF THE INTERIOR 

• Advisory board establishment .................................................................................................................................. 300.714. 

Æ Annual report by advisory board ...................................................................................................................... 300.715. 

• Biennial report (By tribe or tribal organization) ...................................................................................................... 300.712(e). 

• Eligibility (see §§ 300.708 through 300.716) 

• Payments for: 

Æ Children aged 3 through 5 ................................................................................................................................. 300.712. 

Æ Child find and screening ................................................................................................................................... 300.712(d). 

• Plan for coordination of services .............................................................................................................................. 300.713. 

• Use of funds for early intervening services .............................................................................................................. 300.711. 

SEPARATION—DIVORCE (Authority to review records) ........................................................................................... 300.613(c). 

SERVICES PLAN for parentally-placed private school children (see §§ 300.132(b), 300.137(c) 300.138(b)) 

SERVICES THAT ALSO BENEFIT NONDISABLED CHILDREN ................................................................................ 300.208(a)(1). 

SHORTAGE OF PERSONNEL (Policy to address) ....................................................................................................... 300.704(b)(4)(vii). 

SHORT TERM OBJECTIVES OR BENCHMARKS ........................................................................................................ 300.320(a)(2)(ii). 

SHOULD HAVE KNOWN (Regarding due process complaint) .................................................................................. 300.511(e). 

SHOW CAUSE HEARING ............................................................................................................................................. 300.194. 

• Decision ...................................................................................................................................................................... 300.195. 

• Implementation of by-pass (see §§ 300.192(b)(2), 300.193) 

• Right to legal counsel ................................................................................................................................................ 300.194(a)(3). 

SICKLE CELL ANEMIA ................................................................................................................................................. 300.8(c)(9)(i). 

SLD (See ‘‘Specific Learning Disability’’) 

SOCIAL WORK SERVICES IN SCHOOLS (Definition) ............................................................................................... 300.34(b)(14). 

SPECIAL FACTORS (IEP Team) ................................................................................................................................... 300.324(a)(2). 

SPECIAL EDUCATION (Definition) ............................................................................................................................. 300.39. 

SPECIAL EDUCATION PROVIDER .............................................................................................................................. 300.321(a)(3). 

SPECIAL EDUCATION TEACHER 

• IEP accessible to ......................................................................................................................................................... 300.323(d). 

• On IEP Team .............................................................................................................................................................. 300.321(a)(3). 

• Requirements regarding highly qualified ................................................................................................................. 300.18. 

SPECIAL RULE 

• Adjustments to local efforts ...................................................................................................................................... 300.205(d). 

• For child’s eligibility determination ......................................................................................................................... 300.306(b). 

• For increasing funds .................................................................................................................................................. 300.704(e). 

• Methods of ensuring services .................................................................................................................................. 300.154(c). 

• LEA high cost fund .................................................................................................................................................... 300.704(c). 

• Regarding outlying areas and freely associated States ............................................................................................ 300.701(a)(3). 

• Regarding transfer of rights ....................................................................................................................................... 300.520(b). 

• Regarding use of FY 1999 amount ............................................................................................................................ 300.703(b). 

• State advisory panel (Parent members) .................................................................................................................... 300.168(b). 

SPECIFIC LEARNING DISABILITY 

• Definition .................................................................................................................................................................... 300.8(c)(10). 

• Evaluation requirements and report (see §§ 300.306(a), 300.307 through 300.311) 

• Other alternative research-based procedures ........................................................................................................... 300.307(a)(3). 

• Response to scientific, research-based intervention (see §§ 300.307(a)(2), 300.309(a)(2)(i), 300.311(a)(7)) 

• Scientifically based research: 

Æ Definition ............................................................................................................................................................ 300.35. 

Æ Enforcement ........................................................................................................................................................ 300.604(a)(1)(ii). 

• Severe discrepancy .................................................................................................................................................... 300.307(a)(1). 

SPEECH-LANGUAGE PATHOLOGY SERVICES 

• Definition .................................................................................................................................................................... 300.34(b)(15). 


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• Speech or language impairment (Definition) ........................................................................................................... 300.8(c)(11). 

STATE 

• Definition .................................................................................................................................................................... 300.40. 

• Special definition for grants ...................................................................................................................................... 300.717(c). 

• Sovereign immunity .................................................................................................................................................. 300.177. 

STATE ADMINISTRATION (Use of funds for) (see §§ 300.704(a), 300.812(a)). 

STATE ADVISORY PANEL .......................................................................................................................................... 300.167 

• Due process hearings (Findings and decisions to State advisory panel) (see §§ 300.513(d)(1), 300.514(c)(1)) 

• Duties .......................................................................................................................................................................... 300.169. 

• Establishment ............................................................................................................................................................. 300.167. 

• Membership ................................................................................................................................................................ 300.168. 

• Waiver of nonsupplant requirement (State has consulted with advisory panel regarding provision of FAPE) 300.164(c)(4). 

STATE AGENCIES 

• Applicability of Part B to other State agencies ........................................................................................................ 300.2(b)(1)(iii). 

• Compliance (LEA and State agency) ........................................................................................................................ 300.222. 

• Eligibility (LEA and State agency): 

Æ General conditions (see §§ 300.200 through 300.213) 

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

• State advisory panel (Membership) .......................................................................................................................... 300.168. 

• State agency eligibility .............................................................................................................................................. 300.228. 

• State Medicaid agency ............................................................................................................................................... 300.154(a)(1), (h). 

STATE COMPLAINT PROCEDURES (see §§ 300.151 through 300.153) 

• See ‘‘Complaint(s): State complaint procedures’’

STATE ELIGIBILITY 

• Condition of assistance .............................................................................................................................................. 300.100. 

• Department procedures (see §§ 300.178 through 300.186) 

• Determination of eligibility (By the Secretary) ........................................................................................................ 300.178. 

• General conditions ..................................................................................................................................................... 300.100. 

• Notice and hearing before determining that a State is not eligible ........................................................................ 300.179. 

• Specific conditions (see §§ 300.101 through 300.176) 

STATE JUVENILE AND ADULT CORRECTIONAL FACILITIES ............................................................................... 300.2(b)(1)(iv). 

• See also ‘‘Correctional facilities,’’ ‘‘Adult prisons’’

STATE-LEVEL ACTIVITIES (With Part B funds) ........................................................................................................ 300.704. 

STATE-LEVEL NONSUPPLANTING ............................................................................................................................ 300.162(c). 

• Waiver by Secretary ................................................................................................................................................... 300.162(c)(2). 

• Waiver of requirement ............................................................................................................................................... 300.164. 

STATE MAINTENANCE OF EFFORT .......................................................................................................................... 300.163. 

SUBGRANT(S) 

• State agency eligibility .............................................................................................................................................. 300.228. 

• To LEAs ...................................................................................................................................................................... 300.705(a). 

STATE MEDICAID AGENCY 

• Methods of ensuring services .................................................................................................................................... 300.154(a)(1). 

• See also ‘‘Medicaid’’

STATE SCHOOLS 

• Applicability of this part to schools for children with deafness or blindness ...................................................... 300.2(b)(1)(iii). 

STATE VOCATIONAL REHABILITATION AGENCY (See ‘‘Rehabilitation’’) 

STATES’ SOVEREIGN IMMUNITY .............................................................................................................................. 300.177. 

STAY-PUT (Child’s status during proceedings) .......................................................................................................... 300.518. 

• See also ‘‘Pendency’’

SUBSTANTIAL LIKELIHOOD OF INJURY (Discipline) ............................................................................................. 300.532(a). 

SUPPLEMENTARY AIDS AND SERVICES 

• Definition .................................................................................................................................................................... 300.42. 

• IEP content ................................................................................................................................................................. 300.320(a)(4). 

• In ‘‘assistive technology’’ .......................................................................................................................................... 300.105(a)(3). 

• LRE requirements ....................................................................................................................................................... 300.114(a)(2)(ii). 

• Methods of ensuring services .................................................................................................................................... 300.154(b). 

• Requirement regarding regular education teacher (IEP) .......................................................................................... 300.324(a)(3)(ii). 

• Services that also benefit nondisabled children ...................................................................................................... 300.208(a)(1). 

SUPPLEMENT—NOT SUPPLANT 

• LEA requirement ........................................................................................................................................................ 300.202(a)(3). 

• State level nonsupplanting ........................................................................................................................................ 300.162(c). 

• See ‘‘Nonsupplanting’’

SUPPORT SERVICES (see §§ 300.704(b)(4)(i)), 300.814(a)) 

SURGICALLY IMPLANTED MEDICAL DEVICE (see §§ 300.5, 300.34(b), 300.113(b)) 

SURROGATE PARENTS ............................................................................................................................................... 300.519. 

• Appointed for homeless youth ................................................................................................................................. 300.519(f). 

• In definition of ‘‘Parent’’ ........................................................................................................................................... 300.30(a)(5). 

• Timeline for assignment ............................................................................................................................................ 300.519(h). 

SUSPENSION (EXPULSION) 

• Alternative programming for children expelled ...................................................................................................... 300.704(b)(4)(ix). 

• Provision of FAPE ...................................................................................................................................................... 300.101(a). 


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• Suspension and expulsion rates ............................................................................................................................... 300.170(a). 

• Suspension or expulsion without services ............................................................................................................... 300.534(d)(2)(ii). 

TEACHERS 

See ‘‘Regular education teacher’’

See ‘‘Special education teacher’’

TECHNICAL ASSISTANCE (Amounts to support) ..................................................................................................... 300.702. 

TECHNICALLY SOUND INSTRUMENTS (Evaluation) .............................................................................................. 300.304(b)(3). 

TERMINATION OF AGENCY OBLIGATION to provide special education to a particular child (Exception to 

MOE).

300.204(c). 

THERAPEUTIC RECREATION ...................................................................................................................................... 300.34(b)(11)(ii). 

TIMELINES (A–D) 

• Access rights (Confidentiality: 45 days) ................................................................................................................... 300.613(a). 

• Annual report of children served (Between Oct. 1 and Dec. 1) ............................................................................. 300.641(a). 

• Annual count of parentally-placed private school children (Between Oct. 1 and Dec. 1) ................................... 300.133(c). 

• Assignment of surrogate parent (Not more than 30 days) ....................................................................................... 300.519(h). 

• Attorneys’ fees (10 days prohibition) ....................................................................................................................... 300.517(c)(2)(i). 

• Complaint procedures (State: 60 days) ..................................................................................................................... 300.152(a). 

• Department hearing procedures (30 days) ............................................................................................................... 300.179(b)(3). 

Æ See also §§ 300.181 through 300.184 

• Due process hearings and reviews (see §§ 300.510(b)(2), 300.511(e), (f)): 

Æ Conducted within 20 school days; decision within 10 school days .............................................................. 300.532(c)(2). 

Æ Decision within 45 days after expiration of 30 day period ............................................................................. 300.515(a). 

Æ Disclose evaluations before hearings (5 business days) ................................................................................... 300.512(a)(3). 

TIMELINES (E–H) 

• Hearing procedures (State eligibility: 30 days) ........................................................................................................ 300.179(b)(3). 

• Hearing rights: 

Æ Disclosure of evaluations (At least 5 business days before hearing) .............................................................. 300.512(b)(1). 

Æ Prohibit introduction of evidence not disclosed (At least 5 business days before hearing) ......................... 300.512(a)(3). 

Æ Reviews (Decision not later than 30 days) ....................................................................................................... 300.515(b). 

TIMELINES (I–Z) 

• IEP (Initial meeting: 30 days) .................................................................................................................................... 300.323(c)(1). 

• Initial evaluation (60 days) ....................................................................................................................................... 300.301(c)(1). 

• Parent notice before private placement (At least 10 business days) ...................................................................... 300.148(d)(2). 

• Show cause hearing ................................................................................................................................................... 300.194(g). 

• Decision ...................................................................................................................................................................... 300.195(a)(1). 

• State eligibility: Department hearing procedures (see §§ 300.179(b)(3), 300.181(b), 300.182(d), (e), (g), (k), 

300.184) 

• Timelines and convenience of hearings and reviews .............................................................................................. 300.515. 

TIMELINES—DISCIPLINE (A–P) 

• Authority of hearing officer (May order change of placement for not more than 45 school days) ...................... 300.532(b)(2)(ii). 

• Authority of school personnel: 

Æ Change of placement for not more than 45 consecutive days for weapons or drugs .................................... 300.530(g). 

Æ Removal of a child for not more than 10 school days ..................................................................................... 300.530(b). 

• Change of placement for disciplinary removals: 

Æ Of more than 10 consecutive school days ........................................................................................................ 300.536(a)(1). 

Æ Because series of removals total more than 10 school days ............................................................................ 300.536(a)(2)(i). 

• Due process hearing request ..................................................................................................................................... 300.507(a)(2). 

• Expedited due process hearings: 

Æ Conducted within 20 days ................................................................................................................................. 300.532(c)(2). 

Æ Decision within 10 days .................................................................................................................................... 300.532(c)(3)(i). 

• Hearing officer (Order change of placement for not more than 45 days) .............................................................. 300.532(b)(2)(ii). 

• Manifestation determination review (Conducted in no more than 10 school days) ............................................. 300.530(e). 

• Placement during appeals (Not longer than 45 days) .............................................................................................. 300.532(b)(2)(ii). 

TIMELINES—DISCIPLINE (Q–Z) 

• Removals for not more than: 

Æ 10 school days (By school personnel) ............................................................................................................. 300.530(b). 

Æ 45 days (To interim alternative educational setting) ...................................................................................... 300.532(b)(2)(ii). 

By hearing officer (For substantial likelihood of injury to child or others) ................................................ 300.532(b)(2)(ii). 

By school personnel (For weapons or drugs) (see § 300.530(g)(1), (g)(2)) 

TIMETABLE: Full educational opportunity goal (FEOG) ........................................................................................... 300.109. 

TRAINING 

• Assistive technology services (see § 300.6(e), (f)) 

• Confidentiality procedures (Personnel using personally identifiable information must receive training) .......... 300.623(c). 

• Parent counseling and training ................................................................................................................................. 300.34(b)(8). 

• Technical assistance and training for teachers and administrators ........................................................................ 300.119. 

• Travel training (see § 300.39(a)(2)(ii), (b)(4)) 

TRANSFER DURING ACADEMIC YEAR 

• Assessments coordinated between public agencies ................................................................................................. 300.304(c)(5). 

• New school district responsibilities (see § 300.323(e), (f)) 

• Transmittal of records ............................................................................................................................................... 300.323(g). 

TRANSFER OF PARENTAL RIGHTS ........................................................................................................................... 300.520. 

• IEP requirement ......................................................................................................................................................... 300.320(c). 

• Special rule ................................................................................................................................................................ 300.520(b). 


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• To children in correctional institutions ................................................................................................................... 300.520(a)(2). 

TRANSITION FROM PART C TO PART B .................................................................................................................. 300.124. 

TRANSITION SERVICES (NEEDS) 

• Agency responsibilities for (see §§ 300.321(b)(3), 300.324(c)(2)) 

• Alternative strategies ................................................................................................................................................. 300.324(c)(1). 

• Child participation in IEP Team meetings ............................................................................................................... 300.321(b)(1). 

• Definition .................................................................................................................................................................... 300.43. 

• IEP requirement (Statement of) 

Æ Transition service needs .................................................................................................................................... 300.320(b). 

Æ Needed transition services ................................................................................................................................. 300.43(b). 

• State rehabilitation agency ........................................................................................................................................ 300.324(c)(2). 

TRANSMITTAL OF RECORDS TO LAW ENFORCEMENT AND JUDICIAL AUTHORITIES .................................. 300.535(b). 

TRANSPORTATION 

• Definition .................................................................................................................................................................... 300.34(c)(16). 

• Nonacademic services ............................................................................................................................................... 300.107(b). 

• Of private school children ........................................................................................................................................ 300.139(b). 

TRAUMATIC BRAIN INJURY (Definition) .................................................................................................................. 300.8(c)(12). 

TRAVEL TRAINING (see § 300.39(a)(2)(ii), (b)(4)) 

• Definition .................................................................................................................................................................... 300.39(b)(4). 

TREATMENT OF CHARTER SCHOOLS AND THEIR STUDENTS ........................................................................... 300.209. 

TREATMENT OF FEDERAL FUNDS IN CERTAIN YEARS ....................................................................................... 300.205. 

UNIVERSAL DESIGN 

• Definition .................................................................................................................................................................... 300.44. 

• Support technology with universal design principles ............................................................................................ 300.704(b)(4)(v). 

USE OF AMOUNTS (LEA) ............................................................................................................................................ 300.202. 

USE OF FUNDS BY LEAs 

• Coordinated services system ..................................................................................................................................... 300.208(a)(2). 

• For school-wide programs ......................................................................................................................................... 300.206. 

• For services and aids that also benefit nondisabled children ................................................................................ 300.208(a)(1). 

• For use in accordance with Part B ........................................................................................................................... 300.705. 

USE OF FUNDS BY STATES (SEAs) (A–C) 

• Administering Part B State activities ....................................................................................................................... 300.704(a)(1). 

• Administering Part C (If SEA is Lead Agency) ........................................................................................................ 300.704(a)(4). 

• Administrative costs of monitoring and complaint investigations ......................................................................... 300.704(b)(3)(i). 

• Allowable costs .......................................................................................................................................................... 300.704(b)(3). 

• Amount for State administration .............................................................................................................................. 300.704(a) 

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

• Assist LEAs in meeting personnel shortages ........................................................................................................... 300.704(b)(4)(vii). 

• Complaint investigations ........................................................................................................................................... 300.704(b)(3)(i). 

• Coordination of activities with other programs ....................................................................................................... 300.704(b)(1). 

USE OF FUNDS BY STATES (SEAs) (D–Z) 

• Direct and support services ....................................................................................................................................... 300.704(b)(4)(i). 

• High cost fund ............................................................................................................................................................ 300.704(c). 

• Mediation process ...................................................................................................................................................... 300.704(b)(3)(ii). 

• Monitoring .................................................................................................................................................................. 300.704(b)(3)(i). 

• Personnel preparation, professional development and training (see § 300.704(b)(4)(i), (b)(4)(xi)). 

• State plan .................................................................................................................................................................... 300.704(c)(3)(i). 

• Statewide coordinated services system .................................................................................................................... 300.814(d). 

• Support and direct services ...................................................................................................................................... 300.704(b)(4)(i). 

• Technical assistance: 

Æ To LEAs .............................................................................................................................................................. 300.704(b)(4)(xi). 

Æ To other programs that provide services .......................................................................................................... 300.704(a)(1). 

USE OF FUNDS BY SECRETARY OF THE INTERIOR (see §§ 300.707 through 300.716) 

• By Indian tribes: 

Æ For child find for children aged 3 throught 5 .................................................................................................. 300.712(d). 

Æ For coordination of assistance for services ....................................................................................................... 300.712(a). 

• For administrative costs ............................................................................................................................................ 300.710(a). 

USE OF SEA ALLOCATIONS ....................................................................................................................................... 300.704. 

• Inapplicability of requirements that prohibit commingling and supplanting of funds ........................................ 300.704(d). 

VISUAL IMPAIRMENT INCLUDING BLINDNESS (Definition) ................................................................................. 300.8(c)(13). 

VOCATIONAL EDUCATION 

• Definition .................................................................................................................................................................... 300.39(b)(5). 

• In definition of ‘‘Special education’’ ........................................................................................................................ 300.39(a)(2)(iii). 

• Program options ......................................................................................................................................................... 300.110. 

• Transition services ..................................................................................................................................................... 300.320(b)(1). 

VOCATIONAL REHABILITATION (See ‘‘Rehabilitation’’) 

VOLUNTARY DEPARTURE OF PERSONNEL 

(Exception to LEA maintenance of effort) .................................................................................................................... 300.204(a). 

WAIVER(S) 

• For exceptional and uncontrollable circumstances (State maintenance of effort) ................................................ 300.163(c). 

• ‘‘In whole or in part’’ ................................................................................................................................................. 300.164(e). 

• Public benefits or insurance (Risk of loss of eligibility for home and community-based waivers) ..................... 300.154(d)(2)(iii)(D). 


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• State-level nonsupplanting ........................................................................................................................................ 300.162(c). 

• State maintenance of effort ....................................................................................................................................... 300.163. 

• State’s procedures for monitoring ............................................................................................................................. 300.164(c)(2)(ii)(B). 

• Waiver procedures ..................................................................................................................................................... 300.164. 

WARD OF THE STATE 

• Appointment of surrogate parent .............................................................................................................................. 300.519(c). 

• Definition .................................................................................................................................................................... 300.45. 

• See definition of ‘‘Parent’’ ......................................................................................................................................... 300.30(a)(3). 

• See ‘‘Surrogate parents’’ ............................................................................................................................................ 300.519(a)(3). 

WEAPON (Definition) ................................................................................................................................................... 300.530(i)(4). 

WHEN IEPS MUST BE IN EFFECT .............................................................................................................................. 300.323. 

PART 301—[REMOVED] 

■ 2. Remove part 301. 

[FR Doc. 06–6656 Filed 8–3–06; 8:45 am] 

BILLING CODE 4000–01–P 


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