55026 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

DEPARTMENT OF EDUCATION

34 CFR Parts 300, 301 and 303

RIN 1820–AB40

Assistance to States for the Education

of Children With Disabilities, Preschool

Grants for Children With Disabilities,

and Early Intervention Program for

Infants and Toddlers With Disabilities

AGENCY: Office of Special Education and

Rehabilitative Services, Department of

Education.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Secretary proposes to

amend the regulations governing the

Assistance to States for Education of

Children with Disabilities program, the

Preschool Grants for Children with

Disabilities program, and the Early

Intervention Program for Infants and

Toddlers with Disabilities. These

amendments are needed to implement

changes recently enacted by the

Individuals with Disabilities Education

Act Amendments of 1997.

DATES: Comments must be received by

the Department on or before January 20,

1998.

The Department plans to hold public

meetings in conjunction with this

NPRM. The dates and times of the

meetings are in the section titled Public

Meetings under Invitation to Comment

elsewhere in this preamble.

ADDRESSES: All comments concerning

these proposed regulations should be

addressed to Thomas Irvin, Office of

Special Education and Rehabilitative

Services, U.S. Department of Education,

Room 3090, Mary E. Switzer Building,

330 C Street., SW., Washington, DC

20202. Comments may also be sent

through the Internet to:

comment@ed.gov

You must include the term

‘‘Assistance for Education’’ in the

subject line of your electronic message.

Comments that concern information

collection requirements must be sent to

the Office of Management and Budget at

the address listed in the Paperwork

Reduction Act section of this preamble.

A copy of those comments may also be

sent to the Department representative

named in the ADDRESSES section.

The Department plans to hold public

meetings in conjunction with this

NPRM. The locations of the meetings

are in the section titled Public Meetings

under Invitation to Comment elsewhere

in this preamble.

FOR FURTHER INFORMATION CONTACT:

Thomas Irvin (202) 205–8969 or JoLeta

Reynolds (202) 205–5507. Individuals

who use a telecommunications device

for the deaf (TDD) may call (202) 205–

5465.

Individuals with disabilities may

obtain this document in an alternate

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

audiotape, or computer diskette) on

request to Katie Mimcy, Director of the

Alternate Formats Center. Telephone:

(202) 205–8113.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

Interested persons are invited to

submit comments and recommendations

regarding these proposed regulations.

To ensure that public comments have

maximum effect in developing the final

regulations, the Department urges

commenters to identify clearly the

specific section or sections of the

proposed regulations that each comment

addresses and to arrange comments in

the same order as the proposed

regulations.

All comments submitted in response

to these proposed regulations will be

available for public inspection, during

and after the comment period, in Room

3090, Mary E. Switzer Building, 300 C

St., SW., Washington, DC, between the

hours of 8:30 a.m. and 4:00 p.m.,

Eastern time, Monday through Friday of

each week except Federal holidays.

On request the Department supplies

an appropriate aid, such as a reader or

print magnifier, to an individual with a

disability who needs assistance to

review the comments or other

documents in the public rulemaking

docket for these proposed regulations.

An individual with a disability who

wants to schedule an appointment for

this type of aid may call (202) 205–8113

or (202) 260–9895. An individual who

uses a TDD may call the Federal

Information Relay Service at 1–800–

877–8339, between 8 a.m. and 8 p.m.,

Eastern time, Monday through Friday.

To assist the Department in

complying with the specific

requirements of Executive Order 12866

and its overall requirement of reducing

regulatory burden, the Secretary invites

comments on whether there may be

further opportunities to reduce any

regulatory burdens found in these

proposed regulations.

Public Meetings

In a notice published in the Federal

Register on September 17, 1997 (62 FR

48923–48925), the Department

announced public meetings to obtain

public comment on the statutory

requirements of the IDEA Amendments

of 1997. The Department will use those

public meeting dates and times for

public comment on this NPRM.

Individuals who wish to make a

statement at any of the meetings are

encouraged to do so. Time allotted for

each individual to testify will be limited

and will depend on the number of

speakers wishing to testify at each

session. It is likely that each participant

choosing to comment will be limited to

four minutes. Persons interested in

making oral public comment will be

able to sign-up to make a statement on

the day of the meeting at the

Department’s public meeting on-site

registration desk on a first-come-first

served basis. If no time slots remain,

then the Department will reserve a

limited amount of additional time at the

end of each hearing to accommodate

those individuals. (Every effort will be

made to have ample time to hear all

individuals who wish to make a

statement.) For individuals who want to

speak at the public meeting, registration

will begin at 1:00 p.m., in all cities

except Washington, DC where it will

begin at 12:00 Noon, in each hotel or

public building at the registration table

outside the room where the public

meeting will be held. The dates, times,

and locations of the meetings are as

follows:

October 23, 1997—2:00 p.m.–7:00 p.m.

Region I—Logan Ramada Hotel, 75

Service Road, Logan International

Airport, Boston, MA 02128

October 27, 1997—2:00 p.m.–7:00 p.m.

Region IV—Radisson Hotel Atlanta, 165

Courtland and International Blvd.,

Atlanta, GA 30303

October 28, 1997—2:00 p.m.–7:00 p.m.

Region VI—Radisson Hotel Dallas, 1893

West Mockingbird Lane, Dallas, TX

75235

November 4, 1997—1:00 p.m.–5:00 p.m.

Department of Education, Government

Service Administration (GSA), 7th

and D Streets, S.W. (Auditorium),

Washington, D.C. 20407

November 18, 1997—2:00 p.m.–7:00

p.m.

Region VIII—Four Points, 3535 Quebec

Street, Denver, CO 80207

November 21, 1997—2:00 p.m.–7:00

p.m.

Region IX—Holiday Inn Select/

Chinatown, 750 Kearny Street, San

Francisco, CA 94108

November 24, 1997—2:00 p.m.–7:00

p.m.

Region V—Sheraton North Shore, 933

Skokie Boulevard, Northbrook, IL

60062
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55027

The meeting sites are accessible to

individuals with disabilities. An

individual with a disability who will

need an auxiliary aid or service to

participate in the meeting (e.g.,

interpreting service, assistive listening

device, or materials in an alternate

format) should consult the notice

mentioned in this document for the

person to contact at least two weeks

before the scheduled meeting date to

ensure that accommodations requested

will be available. Although the

Department will attempt to meet a

request received after that date, the

requested accommodation may not be

available because of insufficient time to

arrange it.

Background

On June 4, 1997, the Individuals with

Disabilities Education Act (IDEA)

Amendments of 1997 were enacted into

law as Pub. L. 105–17.

The statute passed by Congress and

signed by the President reauthorizes and

makes significant changes to IDEA to

better accomplish the following

purposes: (1) Ensure that all children

with disabilities have available a free

appropriate public education that

emphasizes special education and

related services designed to meet their

unique needs and prepare them for

employment and independent living; (2)

ensure that the rights of children with

disabilities and parents of those

children are protected; (3) assist States,

localities, educational service agencies,

and Federal agencies to provide for the

education of all children with

disabilities; (4) assist States in the

implementation of a statewide,

comprehensive, coordinated,

multidisciplinary, interagency system of

early intervention services for infants

and toddlers with disabilities and their

families; (5) ensure that educators and

parents have the necessary tools to

improve educational results for children

with disabilities by supporting

systemic-change activities; coordinated

research and personnel preparation;

coordinated technical assistance,

dissemination, and support; and

technology development and media

services; and (6) assess, and ensure the

effectiveness of, efforts to educate

children with disabilities.

On June 27, 1997, the Secretary

published a notice in the Federal

Register requesting from the public

advice and recommendations on

regulatory issues under the IDEA

Amendments of 1997. As of the end of

August, 1997, 334 comments were

received in response to the Notice,

including letters from parents and

public and private agency personnel,

and from parent-advocate and

professional organizations. The

comments addressed each major

provision of the IDEA Amendments of

1997 (such as the new funding

provisions, discipline procedures,

provisions relating to evaluation of

children, individualized education

programs, participation of private

school children with disabilities,

methods of ensuring services from

noneducational agencies, and changes

in the procedural safeguards). All of

these comments were reviewed and

considered in developing this Notice of

Proposed Rulemaking. The Secretary

appreciates the thoughtful attention of

the commenters in responding to the

June 27th notice.

Proposed Regulatory Changes

The IDEA Amendments of 1997

significantly updated the Assistance to

States program under Part B of the Act,

as in effect before June 4, 1997. The

changes made by those Amendments

call for corresponding updates to

virtually all of the current regulations

under this part, as well as new

regulatory provisions to incorporate

new statutory requirements such as

those relating to performance goals and

indicators, procedural safeguards notice,

mediation, and discipline.

In addition to incorporating new

requirements from the Act, some new

provisions and notes are proposed to

assist in clarifying the new statutory

requirements, or providing guidance

with respect to implementing those

requirements. Finally, some changes are

needed to incorporate longstanding

interpretations of the Act that have been

addressed in nonregulatory guidance in

the past, or to ensure a more meaningful

implementation of the Act and its

regulations for children with

disabilities, parents and public agencies.

To accommodate the reader in

understanding these proposed changes,

the Secretary has elected to publish the

full text of the regulations, as they

would be when amended, rather than

simply publish an amendatory

document that shows only the changes

proposed to current regulations.

Although this approach increases the

length of this NPRM, it provides a more

meaningful way for parents, agency

officials, and the general public to

review the changes within the context of

the existing regulations.

The following summary of the

proposed regulatory changes describes

how the Secretary would incorporate

the statutory changes of the IDEA

Amendments of 1997 into the

applicable subparts of the Department’s

regulations for the Assistance to States

program (34 CFR part 300) and

Preschool Grants program (34 CFR part

301) for children with disabilities, along

with conforming changes to the Early

Intervention program for Infants and

Toddlers with Disabilities (34 part 303).

The Department plans to publish

additional technical amendments to Part

303 at a later date. Those amendments

will revise the Part 303 regulations

consistent with the changes made by the

IDEA Amendments of 1997. This

summary identifies changes that are

statutory and describes any regulations

that the Secretary is proposing in this

NPRM to implement these statutory

provisions.

Commenters are requested to direct

their comments to issues that can be

changed through regulation and not to

statutory requirements. Commenters

also are reminded that, under section

607(b) of the IDEA, the Secretary is not

authorized to make regulatory changes

to lessen the protections for children

with disabilities in the IDEA regulations

that were in effect on July 20, 1983,

absent statutory changes indicating a

Congressional intent to lessen those

protections.

Throughout this preamble, issues that

the Secretary is proposing to regulate on

are introduced by phrases such as, ‘‘The

Secretary proposes * * *’’ or ‘‘In this

proposed section, the Secretary

proposes * * *’’. Commenters are asked

to focus their comments on these parts

of the proposed regulation.

Appendix C to the current regulations

(Interpretation of IEP program

requirements) would be updated and

revised consistent with the changes

made by the IDEA Amendments of 1997

and these proposed regulations. Revised

Appendix C is presented as Appendix C

to this NPRM.

To aid readers in referring between

this NPRM and current regulations, a

distribution table for the part 300

regulations is presented in Appendix D

to these proposed regulations. That table

identifies each current regulatory

section and the comparable proposed

regulatory section, if any.

These proposed regulations would

implement the new statutory changes

relating to the three formula grant

programs in the IDEA: (1) the Assistance

to States for the Education of Children

with Disabilities Program under Part B

of the Act (34 CFR part 300); (2) the

Preschool Grants Program under section

619 of the Act (34 CFR part 301); and

(3) the Early Intervention Program for

Infants and Toddlers with Disabilities

under Part H of the Act (to be renamed

part C on July 1, 1998) (34 CFR part

303).
55028 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

1. Part 300—Assistance to States for the

Education of Children With Disabilities

The new statutory amendments to the

IDEA, while retaining (and

strengthening) the basic rights and

protections included in the Act since

1975, also have redirected the focus of

the law as in effect before June 4, 1997,

to heighten attention to improving

results for children with disabilities.

This shift in focus was necessary in

order to make needed improvements in

the Part B program, based on 20 years

of experience and research in the

education of children with disabilities.

The amendments to the Part B program

were the result of over three years of

intensive work by stakeholders from all

realms of life and at all governmental

levels, who have a vested interest in the

education of children with disabilities.

Background and Need for

Improvements

Before enactment of the 1975

amendments to the IDEA (then known

as the Education of the Handicapped

Act (EHA)), approximately one million

children with disabilities were excluded

entirely from the public education

system, and more than half of all

children with disabilities in the United

States did not receive appropriate

educational services that would enable

them to enjoy full equality of

opportunity. The 1975 amendments to

the EHA—the Education for All

Handicapped Children Act (Pub. L. 94–

142)—directly addressed the problems

that existed at that time by establishing

the right to education for all children

with disabilities.

As a result of the Pub. L. 94–142

Amendments to the IDEA, significant

progress has been made in addressing

the problems that existed in 1975.

Today, every State in the nation has

laws in effect ensuring the provision of

a free appropriate public education

(FAPE) to all children with disabilities.

The number of young adults with

disabilities enrolled in post-secondary

education has tripled, and the

unemployment rate for individuals with

disabilities in their twenties is almost

half that of their older counterparts.

Despite the progress that has been

made since 1975, the promise of the law

has not been fulfilled for many children

covered by the Act. Too many students

with disabilities are failing courses and

dropping out of school. Almost twice as

many students with disabilities drop out

as compared to students without

disabilities. And, when students with

disabilities drop out of school, they are

less likely to ever return to school and

are more likely to be unemployed or

have problems with the law. Further,

almost half of the students with

disabilities do not participate in

statewide assessments, and, therefore,

schools are not held accountable for

results. Students from minority

backgrounds continue to be placed

disproportionately in separate special

education settings.

Over 20 years of experience and

research in implementing Part B of the

IDEA has demonstrated that the

education of children with disabilities

can be made more effective by—

(1) Having high expectations of these

children and ensuring their access to the

general curriculum to the maximum

extent possible;

(2) Strengthening the role of parents

and fostering partnerships between

parents and schools;

(3) Aligning the Part B program with

State and local improvement efforts so

that students with disabilities can

benefit from them;

(4) Providing incentives for wholeschool approaches and pre-referral

intervention to reduce the need to label

children as disabled in order to address

their learning needs;

(5) Focusing resources on teaching

and learning, while reducing paperwork

and requirements that do not assist in

improving educational results; and

(6) Supporting high-quality, intensive

professional development for all

personnel who work with disabled

children to ensure that they have the

skills and knowledge necessary to

effectively assist these children to be

prepared for employment and

independent living.

The IDEA Amendments of 1997 are

designed to make improvements in the

Part B program that address many of the

factors based on experience and

research that are identified in the

preceding paragraphs. A description of

some of these improvements is included

in the following paragraphs, together

with an identification of where the

statutory provisions have been

incorporated into these proposed

regulations:

Improving Results for Children With

Disabilities

The focus of the changes in the new

amendments is directed at improving

results for children with disabilities—by

promoting early identification and early

provision of services, and ensuring the

access of these children to the general

curriculum and general educational

reforms. The amendments include a

number of provisions to address this

goal.

A. Early Identification and Provision of

Services

The Early Intervention Program for

Infants and Toddlers with disabilities

and the Preschool Grants program have

demonstrated the importance of early

intervention. Children who receive

services at an early age are often better

able to learn once they reach school age.

In addition, research on school-aged

children who are experiencing

significant reading or behavior problems

has shown that the common practice of

waiting until the third or fourth grade to

refer those children to special education

only increases these problems.

Appropriate interventions need to

happen as early as possible in a child’s

life, when it is clear that the child needs

help, and at a time, developmentally,

when the child could profit most from

receiving services.

The IDEA Amendments of 1997

include provisions that encourage States

to reach out to young children who are

experiencing learning problems, and

allow States and local school districts to

utilize ‘‘developmental delay’’ eligibility

criteria as an alternative to specific

disability categories through age 9.

Implemented properly, this provision

will allow children to receive earlier

and more appropriate interventions.

The amendments also allow for more

flexible use of IDEA-funded staff who

work in general education classrooms or

other education-related settings so that

they can work with both children who

have disabilities and others who may

need their help. These provisions are

included in §§ 300.7 and 300.235 of this

NPRM.

B. IEPs That Focus on Improving Results

Through the General Curriculum

The new amendments enhance the

participation of disabled children in the

general curriculum through

improvements to the IEP by—(1)

Relating a child’s education to what

nondisabled children are receiving; (2)

providing for the participation of regular

education teachers in developing,

reviewing, and revising the IEP; and (3)

requiring that the IEP team consider the

specific needs of each child, as

appropriate, such as the need for

behavior interventions and assistive

technology. These provisions are

included in §§ 300.344, and 300.346–

300.347 of these proposed regulations.

C. Education With Nondisabled

Children

Research data show that for most

students with disabilities integration

into general education programs with

nondisabled children is often associated
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55029

with improved results, higher levels of

employment and independent living.

The data also show that if disabled

students are simply placed in general

education classrooms without necessary

supports and modifications they are

more likely to drop out of school than

their nondisabled peers. The new

amendments address this issue by

requiring that the IEP include: (1) An

explanation of the extent, if any, to

which the child will not participate

with nondisabled children in the regular

class; and (2) a statement of the specific

special education and related services

and supplementary aids and services to

be provided to the child or on behalf of

the child, and a statement of program

modifications or supports for school

personnel that will be provided for the

child. These provisions are incorporated

in § 300.347 of these proposed

regulations.

D. Higher Expectations for Disabled

Students and Agency Accountability

A critical element in improving

educational results for disabled children

is promoting high expectations for them

commensurate with their particular

needs, and ensuring meaningful and

effective access to the general

curriculum. Data and experience show

that when schools have high

expectations for these children, ensure

their access to the general curriculum,

whenever appropriate, and provide

them the necessary supports and

accommodations, many can achieve to

higher standards, and all can achieve

more than society has historically

expected.

Despite the current knowledge base in

this regard, the education system often

fails to promote such high expectations

or to establish meaningful education

goals, and about half of all disabled

children are excluded from State and

district-wide assessments.

The new amendments specifically

address these concerns by requiring (1)

the development of State performance

goals for children with disabilities that

must address certain key indicators of

the success of educational efforts for

these children—including, at a

minimum, performance on assessments,

dropout rates, and graduation rates, and

regular reports to the public on progress

toward meeting the goals; (2) that

children with disabilities be included in

general State and district-wide

assessments, with appropriate

accommodations, if necessary, and (3)

that schools report to parents on the

progress of their disabled child as often

as such reports are provided to parents

of nondisabled children. These

provisions are included in §§ 300.137–

300.138 and 300.347 of the proposed

regulations.

The IDEA Amendments of 1997 also

contemplate that State performance

goals and indicators will have a crucial

role in determining personnel training

and development needs, and offer

additional funding, through the State

Improvement Program authorized under

Part D of the Act, to help States meet

their goals for children with disabilities.

These provisions are addressed in

§§ 300.380–300.382. Additionally,

States are encouraged to offer funding to

school districts to foster capacity

building and systemic improvement

activities, as addressed in proposed

§§ 300.622–300.624. School districts are

also authorized to establish schoolbased improvement programs, as

described in §§ 300.234 and 300.245–

300.250.

E. Strengthening the Role of Parents and

Fostering Partnerships Between Parents

and Schools

In order to achieve better results for

children with disabilities, it is critical to

strengthen the role of parents, and to

provide a means for parents and school

staff to work together in a constructive

manner. The IDEA Amendments of 1997

include several provisions aimed at

promoting the involvement of parents,

including providing that they: (1) Have

an opportunity to participate in

meetings with respect to the

identification, evaluation, or

educational placement of their child or

the provision of FAPE to the child; (2)

are included in any group that makes

decisions on the educational placement

of their child; and (3) receive regular

reports on their child’s progress (by

such means as report cards) as often as

reports are provided to parents of

nondisabled children.

The amendments also require that, at

a minimum, parents be offered

mediation as a voluntary option

whenever a hearing is requested to

resolve a dispute between the parents

and the agency about any matters

specified in the preceding paragraph.

These provisions are included in

§§ 300.347, 300.501, and 300.506 of this

NPRM.

F. Reducing Unnecessary Paperwork

and Other Burdens

The IDEA Amendments of 1997

include several provisions that reduce

unnecessary paperwork, and direct

resources to teaching and learning. For

example, the amendments permit initial

evaluations and reevaluations to be

based on existing evaluation data and

reports, and do not require that

eligibility be re-established when a

triennial evaluation is conducted if the

IEP team agrees that the child continues

to have a disability. The amendments

also eliminate unnecessary paperwork

requirements that discourage the use of

IDEA funds for teachers who work in

regular classrooms, while ensuring that

the needs of students with disabilities

are met. These provisions are included

under §§ 300.234 and 300.533 of this

NPRM.

In addition, these amendments permit

States and local educational agencies to

establish eligibility only once by

providing policies and procedures to

demonstrate that the eligibility

conditions under part B are met.

Thereafter, only amendments to those

policies and procedures necessitated by

identified compliance problems or

changes in the law would be required.

These provisions are included under

§§ 300.110–300.111 and 300.180–

300.181.

Subpart A—General

Purposes, Applicability, and

Regulations That Apply to This Program

Proposed § 300.1 would retain the

statement of the purposes of this part in

the existing regulations, except for

conforming those purposes to the new

statutory changes. Consistent with

section 601(d)(1)(A) of the Act, the

purpose in proposed § 300.1(a) (relating

to ensuring that all children with

disabilities have available to them a free

appropriate public education designed

to meet their unique needs) would be

amended to add ‘‘and to prepare them

for employment and independent

living.’’ This change represents a

significant shift in the emphasis of the

Assistance to States program—to an

outcome oriented approach that focuses

on better results for children with

disabilities rather than on simply

ensuring their access to education.

Consistent with section 601(d)(1)(C)

of the Act, the purpose in § 300.1(c)

(relating to assisting States and localities

to provide for the education of children

with disabilities) would be amended by

adding ‘‘educational service agencies’’

and ‘‘Federal agencies’’ to the list of

entities that would be assisted under

this part.

A note would be added following

proposed § 300.1 that emphasizes the

importance of independent living in

promoting the integration and full

inclusion of individuals with

disabilities into the mainstream of

American society, consistent with the

new statutory purpose under § 300.1(a)

(relating to employment and

independent living). The note describes

the philosophy of independent living
55030 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

contained in Section 701 of the

Rehabilitation Act of 1973.

Proposed § 300.2 (relating to the

applicability of these regulations to

State, local, and private agencies) would

maintain the current regulatory

provisions of this section, except for the

following changes to conform the

section to the new statutory provisions:

First, paragraph (b) would be amended

to eliminate the reference to State plans.

The newly revised Act (Section 612(a))

no longer requires States to submit State

plans. (See Subpart B, ‘‘State

Eligibility—General,’’ for discussion of

the statutory elimination of State plan

requirements). Second, consistent with

new statutory provisions relating to

children with disabilities who are

incarcerated, paragraph (b)(4) of § 300.2

would be amended to replace the term

‘‘State correctional facilities’’ with the

term ‘‘State and local juvenile and adult

correctional facilities’’.

Proposed § 300.3 would update the

list of regulations that apply to this

program. Under proposed paragraph (a)

of this section, the regulations in 34 CFR

part 76 (State Administered Programs)

would continue to apply to the Part B

program, except for the following

sections:

Sections 76.125–76.137 (relating to

‘‘Consolidated Grant Applications for

Insular Areas’’) no longer apply. A new

statutory provision in section 611(b)(4)

of the Act expressly prohibits the

consolidation of Part B grants provided

to the outlying areas (defined in

§ 300.718) or to the ‘‘freely associated

States’’ (defined in section 611(b)(6) of

the Act).

Sections 76.650–76.662 (relating to

‘‘Participation of Children Enrolled in

Private Schools’’) would no longer

apply because the applicable provisions

of these regulations, that have applied to

the Part B program for many years,

would be incorporated into Subpart D of

this part (‘‘Children in Private

Schools’’), and specifically under the

provisions relating to ‘‘Children with

Disabilities Enrolled by their Parents in

Private Schools’’ (§§ 300.450–300.462).

All other regulations identified in

§ 300.3 of the existing regulations for

this part would be retained under

proposed § 300.3, except for 34 CFR part

86 (‘‘Drug-Free Schools and Campuses’’)

because those regulations are no longer

applicable to State administered

programs, and now apply only to

institutions of higher education.

Definitions

The proposed regulations under this

part would retain the scheme used in

the current regulations relating to

defining terms that are used in this

part—that is, Subpart A would include

definitions of all terms that are used in

two or more subparts of the regulations,

whereas any term that would be used in

only a single section or subpart would

only be listed in Subpart A, together

with a reference to the specific section

in which the term is defined. The list of

these terms would be included in an

introductory note (Note 1) immediately

following the heading ‘‘Definitions’’,

and would be updated, as follows:

Two terms would be deleted from the

list in Note 1 (‘‘first priority children’’

(§ 300.320(a)), and ‘‘second priority

children’’ (§ 300.320(b)). Statutory

provisions regarding priorities in the

use of funds were deleted by the IDEA

Amendments of 1997.

The term ‘‘individualized education

program’’ (or ‘‘IEP’’) that appears in the

list in Note 1 of the existing regulations,

would be moved to proposed § 300.14,

and would be defined along with the

other terms of general applicability that

are included under Subpart A.

Several terms that were added by the

IDEA Amendments of 1997, but are not

terms of general applicability, would be

added to the list in Note 1. Following is

a list showing each new term and the

statutory and regulatory citations for

that term:

• Base year (Relates to the new

funding formula) (Section 611(e)(2)(A);

§ 300.707).

• Controlled substance (Relates to the

discipline provisions) (Section

615(k)(10)(A); § 300.520).

• Excess costs (The term was defined

in prior law, but the statutory definition

was not included in the current

regulations. The definition of the term,

as updated by the IDEA Amendments of

1997, would be incorporated into these

regulations (Section 602(7); § 300.284).

• Freely associated States (Relates to

the Pacific Basin entities that are

eligible for assistance under this part)

(Section 611(b)(6); § 300.722).

• Indian; Indian Tribe (Relates to the

eligibility of the Secretary of the Interior

to receive amounts under this part)

(Sections 602(9) and 602(10); § 300.264).

• Outlying area (Relates to grant

requirements under this part) (Section

602.18; § 300.718).

• Substantial evidence (Relates to

discipline provisions) (Section

615(k)(10)(C); § 300.521).

• Weapon (Relates to discipline

provisions) (Section 615(k)(10)(D);

§ 300.520).

The following terms are not defined

in the Act, but the Secretary proposes to

add them to the list in Note 1 in order

to provide additional clarification to

certain provisions that would be added:

• Comparable in quality (A definition

of this term would be added to

§ 300.455 to clarify what services must

be provided by an LEA to children with

disabilities who are enrolled by their

parents in religiously affiliated or other

private schools).

• Extended school year services (A

definition of this term would be added

to a new provision under proposed

§ 300.309 that would require each

public agency to consider extended

school year services on a case by case

basis in ensuring that a free appropriate

public education (FAPE) is available to

each child with a disability. The

definition would clarify that the

meaning of the term ‘‘extended school

year services’’ applies to providing

services during the summer months. (A

description of this provision is included

under Subpart C, § 300.309, in this

preamble).

• Meetings (A definition of this term

would be added to § 300.501, relating to

participation of parents in meetings

about their child on matters covered

under this part).

• Financial Costs (A definition of this

term is included in proposed

§ 300.142(e) on use of private insurance

proceeds).

A second note (Note 2) following the

heading ‘‘Definitions’’ would maintain

the note from the current regulations

that lists abbreviations of certain terms

that would be used throughout the

regulations, but would update that list,

as follows: The terms ‘‘Comprehensive

system of personnel development’’

(‘‘CSPD’’) and ‘‘individualized family

service plan’’ (‘‘IFSP’’) would be added;

and, consistent with a statutory change

(section 602(4)), the term ‘‘educational

service agency’’ (‘‘ESA’’) would replace

the term ‘‘intermediate educational

unit’’ (‘‘IEU’’).

Proposed § 300.4 (Definition of ‘‘Act’’)

would delete the obsolete reference to

the Education of the Handicapped Act

from the current regulatory definition of

this term.

Proposed §§ 300.5 and 300.6

(Definitions of ‘‘assistive technology

device’’ and ‘‘assistive technology

service’’) would retain the current

regulatory definitions of those terms,

with the exception of a minor technical

change for consistency in using the

singular ‘‘child with a disability.’’ The

note following the definitions of those

terms in the existing regulations (that

states that the definitions are

substantively identical to the definitions

of those terms used in the TechnologyRelated Assistance for Individuals with

Disabilities Act of 1988) would be

retained in abbreviated form.
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55031

Proposed § 300.7 would make the

following changes to the current

regulatory definition of ‘‘children with

disabilities’’: The term would be

restated in the singular (‘‘Child with a

disability’’), and the definition itself

would also be restated in singular rather

than plural terms. This change is made

because it more appropriately comports

with the individualized focus of Part B

of the Act. Paragraph (a)(1) of this

section would be revised, consistent

with section 602(3)(A)(i) of the Act, to

clarify that the term ‘‘serious emotional

disturbance’’ will hereinafter be referred

to as ‘‘emotional disturbance’’. A

corresponding change would be made in

the definitions of the individual

disability categories under proposed

paragraph (b), by changing the term

‘‘serious emotional disturbance’’ to

‘‘emotional disturbance’’ and moving

the definition of that term from

paragraph (b)(9) to paragraph (b)(4).

Consistent with section 602(3)(B) of

the Act, proposed § 300.7(a)(2) (relating

to a State’s discretion to use the term

‘‘developmental delay’’ for children

aged 3 through 5) would be revised, as

follows: The age range for using that

term would be extended from ages 3

through 5 to ages 3 through 9; and the

decision to use the term ‘‘developmental

delay’’ would be at the discretion of

both the State and the local educational

agency (LEA). The State’s definition of

the category may be different under

Parts B and H (to become Part C on July

1, 1998).

Note 1 following § 300.7 of the current

regulations (relating to children with

autism) would be added without change

to proposed § 300.7, and four new notes

would be added to that section, as

follows:

Note 2 would address the statutory

change under paragraph (a)(2) of this

section relating to use of the term

‘‘developmental delay’’. The note would

clarify that (1) if a State adopts the term

for children aged 3 through 9, or a

subset of that age range, LEAs that elect

to use the term must conform to the

State’s definition; (2) LEAs could not

otherwise use ‘‘developmental delay’’ as

a basis for establishing a child’s

eligibility under this part; and (3) even

if a State adopts the term, the State may

not require an LEA to use it. This

clarification is necessary to avoid

confusion and potential compliance

problems in implementing this new

statutory provision, and to otherwise

facilitate its implementation.

Note 3 would further address the use

of the term ‘‘developmental delay’’ by

including a statement from the House

Committee Report that emphasizes the

value of using ‘‘developmental delay’’ in

establishing eligibility for young

children in order to prevent locking the

child into an eligibility category that

may be inappropriate or incorrect

during a period when it is often difficult

to determine the precise nature of the

disability.

Note 4 would describe congressional

intent in changing the term ‘‘serious

emotional disturbance’’ to ‘‘emotional

disturbance’’. The note would include a

statement from the House Committee

Report that explains that the statutory

change (1) is intended to have no

substantive or legal significance, and (2)

is intended strictly to eliminate the

pejorative connotation of the term

‘‘serious.’’ The Report further makes

clear that this statutory revision does

not change the meaning of the definition

of ‘‘serious emotional disturbance’’ that

is included in the existing regulations

for this part.

Note 5 would address the conditions

under which a child with attention

deficit disorder (ADD) or attention

deficit hyperactivity disorder (ADHD) is

eligible under Part B of the Act. The

note clarifies that some children with

ADD or ADHD who are eligible under

this part meet the criteria for ‘‘other

health impairments’’ if (1) the ADD or

ADHD is determined to be a chronic

health problem that results in limited

alertness that adversely affects

educational performance, and (2)

special education and related services

are needed because of the ADD or

ADHD. (The note clarifies that the term

‘‘limited alertness’’ includes a child’s

heightened alertness to environmental

stimuli that results in limited alertness

with respect to the educational

environment.)

The note further clarifies that (1) some

children with ADD or ADHD may be

eligible for services under other

disability categories in § 300.7(b) if they

meet the applicable criteria for those

disabilities, and (2) if those children are

not eligible under this part, the

requirements of section 504 of the

Rehabilitation Act of 1973 and its

implementing regulations may still be

applicable.

Proposed § 300.8 would add a

definition of ‘‘day’’ to clarify that unless

otherwise indicated, the term ‘‘day’’

means calendar day. Although the

Department has traditionally interpreted

‘‘day’’ to mean calendar day, the term

has never been defined in the

regulations. It is important to include

such a definition in these proposed

regulations because under the new

statutory provisions added by the IDEA

Amendments of 1997, the term is

applied differently under certain

provisions, including the use of ‘‘school

days’’; ‘‘business days’’; and ‘‘business

days (including any holidays that fall on

business days).’’

Proposed § 300.9 would add the

definition of ‘‘educational service

agency’’ that appears in section 602(4)

of the Act. That term was added by the

IDEA Amendments of 1997 to replace

the term ‘‘intermediate educational

unit’’ that was used in prior law and in

the current regulations.

Proposed § 300.10 would add the

definition of ‘‘equipment’’ that appears

in section 602(6) of the Act. That

definition is substantively identical to

the definition of ‘‘equipment’’ in prior

law. However, that definition is not

included in the current regulations. The

Secretary believes that, for the

regulations to be most useful to parents,

school officials, and members of the

general public, the regulations should

contain all applicable statutory

provisions in one document, rather than

simply referencing definitions or other

provisions that are contained in other

regulations. With very few exceptions,

these proposed regulations have been

developed to include all applicable

provisions of the Act.

Proposed § 300.11 would incorporate

the existing regulatory definition of the

term ‘‘free appropriate public

education,’’ except that the reference to

the IEP requirements in paragraph (d) of

that section would change from

§§ 300.340–300.350 to §§ 300.340–

300.351, to conform to a proposed

change made in those requirements.

The Secretary proposes to add in

proposed § 300.12 a definition of

‘‘general curriculum’’ to clarify that, for

purposes of this part, there is a single

curriculum that applies to all children

within the jurisdiction of the public

agency, including nondisabled children

and children with disabilities. The

purpose of adding this definition is to

eliminate (or significantly reduce) the

possibility of misinterpreting the new

requirements in the Act relating to the

participation of children with

disabilities in the general curriculum.

Some commenters on the June 27, 1997

Federal Register notice have expressed

concern that a public agency could

assume that there is a ‘‘general

curriculum’’ for nondisabled and

another ‘‘general curriculum’’ for certain

categories of children with disabilities.

If the requirements of this part were

implemented based on that assumption

this would seriously limit the

possibility of accomplishing the

purposes of Part B of the Act that are set

out in the IDEA Amendments of 1997.

A note would be added following this

section to clarify that the term ‘‘general

curriculum’’ relates to the content of the
55032 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

curriculum and not to the setting in

which it is used. The note further

clarifies that the general curriculum

could be used in any educational setting

along a continuum of alternative

placements, as long as the setting is

consistent with the least restrictive

environment provisions of § 300.550–

300.553 and is applicable to an

individual child with a disability. A

number of comments were received

requesting clarification relating to this

matter.

Proposed § 300.13 would retain the

current regulatory definition of the term

‘‘include’’.

Proposed § 300.14 would include a

definition of the term ‘‘individualized

education program’’ (IEP). Because the

term ‘‘IEP’’ has traditionally been

defined under § 300.340 (an

introductory section to the IEP

requirements of §§ 300.340–300.350) the

definition in proposed § 300.14 would

simply reference the definition in

§ 300.340.

Proposed § 300.15 would add a

definition of ‘‘individualized education

program team’’ (or ‘‘IEP team’’). The

definition states that the term ‘‘IEP

team’’ means a group of individuals

described in § 300.344 that is

responsible for developing, reviewing

and revising an IEP for a child with a

disability. Because the term ‘‘IEP team’’

is used throughout these regulations, it

is important to include a definition of

that term in Subpart A. However, to

preserve the structural integrity of the

current regulatory provisions on IEPs in

§§ 300.340–300.350, the substantive

definition of ‘‘IEP team’’, which

conforms to the statutory definition

under section 614(d)(1)(B), would be

included in § 300.344.

Proposed § 300.16 would add a

definition of ‘‘individualized family

service plan’’ (or ‘‘IFSP’’), because that

term is used in several subparts within

these regulations. The definition of the

term would be a reference to 34 CFR

303.340(b).

Proposed § 300.17 would incorporate

the statutory definition of ‘‘local

education agency’’ from section 602(15)

of the Act. This definition, which

updates the prior statutory definition of

‘‘LEA’’ to conform to the definition of

that term in the Improving America’s

Schools Act, would replace the current

regulatory definition of ‘‘LEA.’’

A note would be added following

proposed § 300.17 to clarify that a

public charter school is eligible to

receive funds under Part B of the Act if

it meets the definition of ‘‘LEA.’’ The

note further clarifies that if a public

charter school receives Part B funds it

must comply with the requirements that

apply to LEAs. Because of the

widespread interest in establishing

charter schools as a major part of

educational reform, this clarification is

necessary in order to ensure that, to the

extent applicable, these schools are in

full compliance with the requirements

of this part.

Proposed § 300.18 would incorporate

the statutory definition of ‘‘native

language’’ from section 602(16) of the

Act. The new definition is substantively

similar to the current regulatory

definition of ‘‘native language.’’ The

note following the current regulatory

definition of ‘‘native language’’ would

be retained, unchanged, except for

clarifying that the term ‘‘native

language’’ is also used in the procedural

safeguards notice under proposed

§ 300.504(c). (The procedural safeguards

notice is a new statutory provision that

was added by section 614(d) of the Act.)

Proposed § 300.19 would incorporate

the current regulatory definition of

‘‘parent’’ (under a new paragraph (a)). A

proposed new paragraph (b) would be

added to address questions raised by

public agencies and other agencies

representing children with disabilities

about whether foster parents, who have

a long-term relationship with a disabled

child, could serve as the child’s parent,

in lieu of requiring the appointment of

a surrogate parent to represent the child.

Proposed paragraph (b) of this section

would permit State law to provide that

a foster parent qualifies as a parent

under Part B of the Act if the natural

parents’ authority to make educational

decisions on the child’s behalf has been

extinguished under State law, and if the

foster parent (1) has an ongoing, longterm parental relationship with the

child; (2) is willing to participate in

making educational decisions in the

child’s behalf; and (3) has no interest

that would conflict with the interest of

the child.

The note following the current

regulatory definition of ‘‘parent’’

(relating to other persons, such as a

grandparent, who may act as a parent)

would also be incorporated into these

proposed regulations. The note would

be revised to add conforming language

about a foster parent, as described in

paragraph (b) of this section.

Proposed § 300.20 would retain the

current regulatory definition of ‘‘public

agency,’’ but would revise that

definition to replace the term ‘‘IEUs’’

with the term ‘‘ESAs.’’

Proposed § 300.21 would incorporate

without change the current regulatory

definition of the term ‘‘qualified.’’

Proposed § 300.22 would retain the

current regulatory definition of ‘‘related

services,’’ except for making the

following changes: In proposed

paragraph (a), the term ‘‘speech

pathology and audiology’’ would be

replaced by the term ‘‘speech-language

pathology and audiology services,’’ and

the term ‘‘orientation and mobility

services’’ would be added to the list of

related services. These changes would

be made to conform to a statutory

change in section 602(22) of the Act.

Proposed § 300.22(b) would be

amended to add a definition of the term

‘‘orientation and mobility services’’

identified in paragraph (a) of this

section. The definition (included as a

new paragraph (b)(6)) states that the

term ‘‘orientation and mobility services’’

means services provided to blind or

visually impaired students by qualified

personnel to enable those students to

attain systematic orientation to and safe

movement within their environments in

school, home and community.

In proposed § 300.22(b)(9) (relating to

psychological services) and (b)(13)

(relating to social work services in

schools) the definitions of those terms

would be amended to add a reference to

assisting in developing positive

behavioral intervention strategies to the

list of functions performed by these

related services providers. These

providers could be helpful in ensuring

effective implementation of the new

statutory provision in section

614(d)(3)(B) (proposed § 300.346) that

requires that the IEP team, in the case

of a child whose behavior impedes his

or her learning or that of others,

consider, when appropriate, strategies,

including positive behavioral

interventions.

In proposed § 300.22(b)(14), the

current regulatory definition of the term

‘‘speech-pathology’’ would be retained,

but the term would be changed to

‘‘speech-language pathology services,’’

to conform to the statutory change

identified in paragraph (a) of this

section.

The note following the current

regulatory definition of ‘‘related

services’’ would be retained as Note 1

following proposed § 300.22, except for

the following changes: The list of other

related services in the first paragraph of

that note would be amended (1) by

adding other important services,

including travel training, nutrition

services, and independent living

services, and (2) to clarify that the

services would be provided if necessary

for the child to receive FAPE.

Several notes would also be added to

proposed § 300.22, as follows:

Note 2 would acknowledge the

critical importance of orientation and

mobility services for children who are

blind or have visual impairments, and
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55033

point out that there are children with

other disabilities who may also need to

be taught the skills they need to

navigate their environments (e.g., traveltraining). The note includes a statement

from the House Committee report on

Pub. L. 105–17 that emphasizes the

importance of travel training for certain

children with disabilities.

Note 3 would clarify that, with

respect to various related services

defined in this section, nothing would

prohibit the use of paraprofessionals to

assist in the provision of those services

if doing so is consistent with the

personnel standards requirements of

proposed § 300.136(f).

Note 4 would explain that (1) most

children with disabilities should receive

the same transportation services as nondisabled children, and (2) for some

disabled children, integrated

transportation may be achieved by

providing needed accommodations such

as lifts and other adaptations on regular

school transportation vehicles.

Proposed § 300.23 would incorporate

the statutory definition of ‘‘secondary

school’’ from section 602(23) of the Act.

This definition updates the prior

statutory definition of ‘‘secondary

school’’ to conform to the definition of

that term in the Improving America’s

Schools Act. The term ‘‘secondary

school’’ is not defined in the current

regulations.

Proposed § 300.24 would retain the

current regulatory definition of ‘‘special

education,’’ except for the following

changes:

In § 300.24(a)(2), the term ‘‘speech

pathology’’ would be changed to

‘‘speech-language pathology services,’’

to conform to the terms used in section

602(22) of the Act.

Under a new § 300.24(b)(3), a

definition of ‘‘specially designed

instruction’’ would be added to clarify

that the term means adapting the

content, methodology, or delivery of

instruction to (1) address the unique

needs of an eligible child under this part

that result from the child’s disability,

and (2) ensure access of the child to the

general curriculum, so that he or she

can meet the educational standards

within the jurisdiction of the public

agency that apply to all children.

Although the term is a key component

in the definition of ‘‘special education’’

in both prior law and the current Act,

it has never been defined. With the shift

in emphasis of the Part B program

toward greater participation of children

with disabilities in the general

curriculum, this definition should

facilitate implementation of the

program.

Proposed § 300.24(b)(4) would replace

the outdated definition of ‘‘vocational

education’’ in the current regulations

with a new definition that states that the

term ‘‘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 requiring other

than a baccalaureate or advanced

degree.

The note following the definition of

‘‘special education’’ in the current

regulations would be retained under

proposed § 300.24, but would be revised

to clarify that a related services provider

may be a provider of specially designed

instruction if, under State law, the

person is qualified to provide that

instruction.

Proposed § 300.25 would incorporate

the statutory definition of ‘‘State’’ from

section 602(27) of the Act to mean each

of the 50 States, the District of

Columbia, the Commonwealth of Puerto

Rico, and each of the outlying areas.

This definition updates the prior

statutory definition of ‘‘State.’’ The term

is not defined in the current regulations.

Proposed § 300.26 would incorporate

the definition of ‘‘supplementary aids

and services’’ from section 602(29) of

the Act. Although the term was

included in prior law, it was not defined

until the enactment of the IDEA

Amendments of 1997. The term is

defined as aids, services, and other

supports that are provided in regular

education classes or other educationrelated settings to enable children with

disabilities to be educated with

nondisabled children to the maximum

extent appropriate in accordance with

the LRE provisions in §§ 300.550–

300.556.

Proposed § 300.27 would retain the

current regulatory definition of

‘‘transition services,’’ except for the

following changes: The organizational

structure of the definition has been

changed to conform to the definition of

the term in section 602(30) of the Act.

The new definition simply describes

what the term means, but does not

attempt to regulate under the definition.

The current regulatory definition uses

the regulatory term ‘‘must’’ in defining

what services must be provided.

Consistent with the new statutory

definition, the term ‘‘related services’’ is

added as one of the services or activities

covered by the term.

Proposed § 300.28 would add a list of

terms found in the part B regulations

that are defined in the Education

Department General Administrative

Regulations (EDGAR).

Subpart B—State and Local Eligibility

State Eligibility—General

Under the prior statute, States were

required both to meet certain eligibility

requirements and to submit State plans

to the Department, and were subject to

periodic resubmission requirements.

The newly revised Act replaces that

scheme with an eligibility

determination based on a demonstration

satisfactory to the Secretary that the

State has in effect policies and

procedures to ensure that it meets each

of a list of conditions. (Section 612(a)).

A State that already has on file with the

Secretary policies and procedures

demonstrating that it meets any of these

requirements will be considered to have

met that requirement for the purpose of

receiving a grant under Part B of the

Act. (Section 612(c)(1)). A technical

change will be made to Part 76 with the

publication of the final regulations to

reflect the substitution of this

demonstration of State eligibility for

State plans.

Under section 612(c) (2) and (3), the

policies and procedures submitted by a

State remain in effect until a State

submits modifications that the State

decides are necessary or until the

Secretary requires modifications based

on changes to the Act or its

implementing regulations, new

interpretations by a Federal court or the

State’s highest court, or an official

finding of noncompliance with Federal

law or regulations. The provisions

regarding State eligibility apply to

modifications in the same manner and

to the same extent as they do to a State’s

original policies and procedures.

Section 612(d) specifies that 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, and that the

Secretary shall not make a final

determination that a State is not eligible

until providing the State reasonable

notice and an opportunity for a hearing.

These provisions are incorporated in the

proposed regulations in §§ 300.110–

300.113.

State Eligibility—Specific Conditions

The statutory eligibility conditions

that must be addressed by each State in

order to receive a grant under Part B of

the Act are contained in proposed

§§ 300.121–300.156. The IDEA

Amendments of 1997 made a number of

changes to the eligibility conditions and

State plan requirements previously

contained in the Act. These proposed

regulations incorporate these statutory

changes, with appropriate modifications

described below, into the regulations
55034 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

regarding State plan contents. Some

changes of a technical nature have been

made to preexisting regulatory

provisions in order to reflect the fact

that States now demonstrate eligibility,

rather than submit State plans, as was

the case under the prior law. In

addition, some reordering and

reorganization of current regulatory

provisions is done for the sake of

coherence.

Proposed § 300.121 would add to the

current § 300.121 the new statutory

provision, under section 612(a)(1)(A),

that the right to a free appropriate

public education (FAPE) extends to

children with disabilities who have

been suspended or expelled from

school. The issue of what the right to

FAPE means for children who have

been suspended or expelled from school

has been the subject of numerous

comments to the Department in

response to the June 27, 1997 notice,

many of which raise this issue in the

context of lengthy discussions about all

of the provisions in the Act concerning

discipline for children with disabilities.

Proposed § 300.121(c) reflects the

Secretary’s interpretation that the IDEA

Amendments of 1997 take a balanced

approach to the issue of discipline for

students with disabilities that reflect

both the need to protect the rights of

children with disabilities to appropriate

educational services and the need of

schools to be able to ensure that all

children, including children with

disabilities, have safe schools and

orderly learning environments. The

positions taken in these proposed

regulations on the issue of continued

services for children with disabilities

who have been properly suspended or

expelled and on the other disciplinary

provisions of the Act (see proposed

§§ 300.520–300.529) reflect this need for

a balanced, fair interpretation of these

new statutory provisions.

With regard to the issue of the

provision of FAPE for children with

disabilities who have been suspended or

expelled, the Secretary believes that the

statute struck a balance between the

longstanding interpretation of the

Department that schools are not

required by the Act to provide services

to children with disabilities who are

suspended for ten school days or less,

and the desire to ensure that children

with disabilities not be removed from

education for prolonged amounts of

time in any school year.

In proposed § 300.121(c)(1), the

Secretary proposes to define children

with disabilities who have been

suspended or expelled from school for

purposes of this section to mean

children with disabilities who have

been removed from their current

educational placement for more than 10

school days in a given school year.

In proposed § 300.121(c)(2), the

Secretary proposes to clarify that the

right to FAPE under these

circumstances begins on the eleventh

school day from the date of the child’s

removal from the current educational

placement. For example, if a child with

a disability who has not previously been

suspended in the school year receives a

three week suspension, services must be

provided by the eleventh school day of

that suspension. If a child with a

disability who has received two five

school day suspensions in the fall term

is suspended again in the spring of that

school year, services must be provided

from the first day of the third

suspension.

A second issue regarding the statutory

right to FAPE for children with

disabilities who have been suspended or

expelled is how to reconcile the right to

FAPE with the statutory recognition, in

sections 612(a)(1)(A) and 615(k)(5)(A),

that children with disabilities properly

could be subjected to the same

disciplinary measures applied to

nondisabled children if their behavior

was not a manifestation of their

disability. The Secretary proposes in

§ 300.121(c)(2) to address this question

by requiring that in providing FAPE to

children with disabilities who have

been suspended or expelled, a public

agency shall meet the requirements for

interim alternative educational settings

under section 615(k)(3) of the Act. The

Secretary believes requiring that

education for children who have been

suspended or expelled meets the

standards in section 615(k)(3) allows

accommodation of both the statutory

obligation to provide FAPE to these

children and recognizes in section

615(k)(5) that, through an appropriate

suspension or expulsion, school

districts can legitimately remove

children from their current educational

placement. Under proposed § 300.622,

States may elect to use funds available

for capacity building and improvement

activities to support public agency

services to children who have been

suspended or expelled.

Two notes would also be added to

proposed § 300.121. The first would be

added to reflect the Department’s

longstanding interpretative position that

the obligation to make FAPE available to

children 3 through 21 begins on each

child’s third birthday, and an IEP or

IFSP must be in effect by that date that

specifies the special education and

related services that must be provided,

consistent with proposed § 300.342,

including extended school year services,

if appropriate. For children receiving

early intervention services under Part C

of the Act and who will be participating

in a preschool program under Part B of

the Act, the transition requirements of

proposed § 300.132 would apply.

The second note to follow proposed

§ 300.121 would recognize that, under

the statute, school districts are not

relieved of their obligations to provide

appropriate special education and

related services to individual disabled

students who need them even though

the students are advancing grade to

grade, and that decisions about

eligibility under Part B of the Act for

these students must be determined on

an individual basis.

Proposed § 300.122 revises the current

§ 300.122 to eliminate an obsolete

provision about the provision of FAPE

to children with disabilities before

September 1, 1980, and incorporates the

new statutory limitation to the

obligation to make FAPE available to

certain individuals in adult correctional

facilities. Section 612(a)(1)(B)(ii)

provides that the obligation to make

FAPE available to all children with

disabilities does not apply to

individuals 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 educational placement prior

to their incarceration in an adult

correctional facility, were not actually

identified as being a child with a

disability or did not have an IEP under

Part B of the Act. This provision, with

minor modifications for clarity, would

be reflected in proposed § 300.122(a)(2).

A note, Note 2, would be added

following § 300.122 quoting the House

Committee Report explaining the

statutory change.

The Secretary also proposes to amend

§ 300.122 to make clear that the right to

FAPE does not apply to children with

disabilities who have graduated from

high school with a regular high school

diploma. This reflects the Secretary’s

understanding that the right to FAPE is

ended either by a student successfully

finishing a regular secondary education

program or reaching an age between 18

and 21 at which, under State law, the

right to FAPE has ended. In addition,

the changes made by the IDEA

Amendments of 1997, particularly as

they relate to the content of children’s

IEPs in section 614(d) of the Act,

reinforce the Secretary’s belief that

FAPE is closely related to enabling

children with disabilities to progress in

the same general curriculum that is

provided nondisabled children. The

Secretary also believes that it is
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important to clarify that the right to

FAPE is not ended if a student with

disabilities is awarded some other

certificate of completion or attendance

instead of a regular high school

diploma. This change should not be

interpreted as prohibiting the use of Part

B funds to provide services to a student

with disabilities who has already

achieved a regular high school diploma,

but who still is in the State’s mandated

age range if an LEA or SEA wishes to

do so.

Note 1 following proposed § 300.122

would explain that graduation is a

change of placement under Part B and,

as such, would require prior written

notice to the parents, and student if

appropriate. The note would also

explain that under § 300.534(c) a

reevaluation is required before

graduation. The note would further

explain that other documents, such as

certificates of attendance or other

certificates granted instead of a regular

high school diploma, would not end a

student’s entitlement to FAPE.

Proposed §§ 300.123–300.124 include,

with only minor changes reflecting the

new State eligibility scheme of the

statute, the current regulatory

provisions concerning State policies and

procedures relating to the full

educational opportunity goal and the

full educational opportunity timetable.

Current regulatory provisions

concerning the full educational

opportunity goal regarding facilities,

personnel, and services, and priorities

would be eliminated as these provisions

were removed from the statute by the

IDEA Amendments Act of 1997. Section

612(a)(2) of the Act requires each State

to have established a full educational

opportunity goal and timetable.

Proposed § 300.125 incorporates the

current regulatory provision, revised as

discussed, concerning child find

obligations (identification, location, and

evaluation of children with disabilities)

with the new statutory provision that

this obligation includes children with

disabilities attending private schools, in

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

the Act. The requirement in the current

regulation to provide yearly information

about child find activities would be

eliminated in light of the fact that

periodic State plans are no longer

required by statute. The provisions

requiring data on and the method for

determining which children are not

receiving special education and related

services also would be removed from

the regulation, reflecting statutory

changes. A new § 300.125(c) would be

added that includes the construction

clause of section 612(a)(3)(B). That

clause clarifies that nothing in the Act

requires that children be classified by

their disability so long as each child

who has a disability and, by reason

thereof, needs special education and

related services, is regarded as a child

with a disability under Part B of the Act.

The notes following the current

regulatory provision regarding child

find would be retained, but shortened

and updated as appropriate. Two

additional notes would be added to

reflect longstanding policy positions of

the Department. A new Note 2 would

recognize that the services and

placement needed by each child with a

disability must be based on the child’s

unique needs and may not be

determined or limited based on the

child’s disability category.

Note 3, which is largely retained from

the current regulations, explains the

important relationship between child

find activities under this part and child

find activities under Part 303 for

children with disabilities from birth

through age 2. The Secretary believes

that developing effective child find

activities for this age population will

provide significant benefits not just for

very young children with disabilities

but also for schools and other public

agencies that may find their

responsibilities easier because of early

attention to these children’s needs.

A Note 4 following this section would

reflect that each State’s child find

obligation under the statute includes

highly mobile children, such as migrant

and homeless children.

Proposed § 300.126 incorporates the

evaluation procedures from sections

612(a)(7) and 612(a)(6)(B), by crossreferencing the provisions of proposed

§§ 300.530–300.536, which include all

of the statutory evaluation provisions of

sections 612(a)(6)(B) and 614(a)–(c) and

related evaluation procedures from

current regulations. This provision

would replace the current regulatory

section on State procedures on

protection in evaluation procedures.

Proposed § 300.127 includes, with

only minor changes reflecting the new

statutory State eligibility scheme, the

provisions of the current regulation

concerning State policies and

procedures on the confidentiality of

personally identifiable information.

This provision reflects section 612(a)(8)

of the Act. The note following this

section would be updated to reflect

current information about the

regulations implementing the Family

Educational Rights and Privacy Act.

Proposed § 300.128 is the same as the

current regulatory provision concerning

individualized education programs

(IEPs), except as revised to reflect the

new statutory State eligibility scheme

and the requirements of section

612(a)(4) of the Act.

Proposed § 300.129 incorporates the

current regulatory provision concerning

procedural safeguards, as revised as

discussed, and the statutory provision,

in section 612(a)(6)(A), that children

and their parents are afforded the

procedural safeguards required by

section 615.

Proposed § 300.130 would remove

from the existing regulatory provision

regarding least restrictive environment

(LRE) the data collection requirements,

and make other conforming revisions, as

discussed, in light of the new State

eligibility structure of the Act,

consistent with section 612(a)(5)(A).

(Data on LRE would still be collected

under section 618(a)(1)(A) (iii) and (iv)

of the Act.) Additionally, the following

new statutory requirements regarding a

State’s funding formula are added as

proposed § 300.130(b): (1) If a State uses

a funding mechanism to distribute State

funds on the basis of the type of setting

in which a child is served, the funding

mechanism may not result in

placements that violate the LRE

requirements; and (2) if the State does

not have policies and procedures to

ensure compliance with this new

requirement, 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 LRE. A note

would also be added to this provision

quoting language from the House

Committee Report recognizing that this

statutory addition does not eliminate

the need for a continuum of alternative

placements that is designed to meet the

unique needs of each child with a

disability.

Proposed § 300.132 adds to the

existing regulatory provision concerning

the transition of individuals from Part H

(to be renamed part C on July 1, 1998)

to Part B the new statutory language

(from section 612(a)(9)) concerning

‘‘effective’’ transitions, and the

provision that LEAs will participate in

transition planning conferences

arranged by the designated lead agency

under Part H (to be renamed Part C).

Proposed § 300.133 updates the

existing regulatory provision concerning

children in private schools to reflect the

new statutory structure, and the changes

made in subpart D of this proposed

regulation, consistent with section

612(a)(10) of the Act.

Proposed § 300.135 reflects the new

statutory requirements concerning a

comprehensive system of personnel

development (CSPD). Section 612(a)(14)
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provides that a State’s CSPD must meet

the requirements for a State

improvement plan relating to personnel

development. A note following this

section would quote the House

Committee Report to the effect that the

State’s CSPD must include procedures

for acquiring and disseminating

significant knowledge and for adopting

appropriate promising practices,

materials, and technology. The note

would also explain that a State could

use the information provided to meet

the State eligibility requirement under

Part B of the Act as a part of a State

improvement program plan under Part

D of the Act.

Proposed § 300.136 reflects the

existing regulatory provision on

personnel standards, revised as

discussed, and the requirements of

section 612(a)(15) of the Act. A new

paragraph (f) adds the new statutory

provision from section 612(a)(15)(B)(iii)

that allows paraprofessionals and

assistants who are appropriately trained

and supervised, under State law,

regulations or policy to be used to assist

in the provision of services under Part

B of the Act. Also added is the new

provision, from section 612(a)(15)(C),

that a State may adopt a policy that

includes a requirement that LEAs in the

State make an ongoing good-faith effort

to recruit and hire appropriately and

adequately trained personnel to provide

special education and related services,

including, in a geographic area where

there is a shortage of those personnel,

the most qualified individuals available

who are making satisfactory progress

toward completing applicable course

work necessary to meeting State

standards within three years. This

provision would be incorporated in

§ 300.136(g). A note following this

section would be added explaining that

a State may exercise the option in

paragraph (g) even though the State has

reached its established date for

retraining or hiring of personnel to meet

appropriate professional requirements

under paragraph (c) of this section so as

to avoid any unwarranted confusion on

this issue. Another note would be added

to clarify that if a State has only one

entry level degree requirement for a

specific profession or discipline, it is

not precluded by § 300.136(b)(1) from

modifying that standard if necessary to

ensure the provision of FAPE to all

children with disabilities in the State.

Proposed § 300.137 would add to the

regulation the new statutory provision

of section 612(a)(16) concerning

performance goals and indicators.

Basically, this provision requires that

States have goals for the performance of

children with disabilities, and

indicators of progress that at a minimum

address the performance of children

with disabilities on assessments, dropout rates, and graduation rates. The

provision also requires reporting every

two years to the Secretary and the

public on the progress of the State, and

revisions to a State’s improvement plan

under Part D of the Act as needed to

improve performance, if the State

receives a grant under that authority.

The current regulatory provision

concerning procedures for evaluation of

the effectiveness of programs would be

removed, reflecting a statutory change.

Proposed § 300.138 would add the

new requirement of section

612(a)(17)(A) concerning inclusion of

children with disabilities in general

State and district-wide assessments,

including conducting alternative

assessments not later than July 1, 2000

for children who cannot participate in

State and district-wide assessment

programs. A note following this section

would explain that only a small number

of children with disabilities should

need alternative assessments. The

provision of section 612(a)(17)(B)

concerning reports related to these

assessments are contained in proposed

§ 300.139.

The Secretary proposes to interpret

the statutory requirements to make clear

that whenever the SEA reports to the

public on student performance on widescale assessments, the reports must

include aggregated results of all

children, including children with

disabilities, as well as disaggregated

data on the performance of children

with disabilities. The Secretary believes

that the IDEA Amendments of 1997

were designed to foster consideration of

children with disabilities as a part of the

student population as a whole. It would

not be in keeping with that focus if, in

reporting assessment data, results for

children with disabilities were not

included in reports on the student

population as a whole. A note following

this section would explain that States

would not be precluded from also

reporting data in a way that would, for

example, allow them to continue trend

analysis of student performance, if

children with disabilities had not been

included in those analyses in the past.

Proposed § 300.141 incorporates the

current regulatory provision, revised as

discussed, concerning SEA

responsibility for all educational

programs, consistent with the

requirement in section 612(a)(11) of the

Act.

Proposed § 300.142 would replace the

current regulatory provision concerning

interagency agreements with the

requirements of section 612(a)(12)

regarding methods of ensuring services.

This provision requires that the Chief

Executive Officer or designee in each

State ensure that an interagency

agreement or some other mechanism for

interagency coordination is in effect

between noneducational agencies that

are obligated under other law to provide

or pay for services that are considered

special education or related services

under Part B of the Act and the SEA to

ensure that those services are provided.

In addition to the statutory

requirements, a paragraph (e) would

reflect the Department’s interpretation

that it would violate the statutory

obligation to provide free services if a

public agency required a parent to use

private insurance proceeds to pay for

services required under the Act. The

Department has long taken the position

that Part B of the Act and section 504

of the Rehabilitation Act prohibit a

public agency from requiring parents to

use insurance proceeds to pay for the

services that must be provided to an

eligible child under the FAPE

requirements of those statutes, if they

would incur a financial cost to secure

those services. (See Notice of

Interpretation published on December

30, 1980 (45 FR 66390)). This paragraph

also would include a definition of the

term ‘‘financial cost,’’ so that both

parents and school districts will have a

common understanding of the term.

This definition reflects the Department’s

longstanding interpretation of the

statutory obligation to provide services

at no cost as applied to parents’ private

insurance. A note following this section

would explain how this paragraph

applies if a family is covered by both

private insurance and Medicaid.

The Secretary believes that the same

basic principle, that services be

available at no cost to parents, would be

equally applicable to parents whose

children are eligible for public

insurance, but that there is no current

need to regulate on the public insurance

issue because there is no risk of

financial loss to parents under current

public insurance programs such as

Medicaid. The Secretary invites

comment on whether a policy on public

insurance similar to the proposed

section regarding private insurance

should be added to the final regulation.

The Secretary also proposes to add a

new paragraph (f) to specify that

proceeds from public or private

insurance may not be treated as program

income for purposes of 34 CFR 80.25.

That section imposes limitations on

how program income can be treated by

grantees that would lead to States

returning reimbursements from public

and private insurance to the Federal
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government or requiring that the funds

be used under this part, which could

discourage States and school districts

from using all the resources available in

paying for these services. Given the

current small percentage that Federal

funds under this part are to total

funding for services under this part, and

the fact that children with disabilities

are guaranteed services under this part,

the Secretary believes that States and

school districts should be given some

flexibility in how they use and account

for funds received as reimbursements

from other sources. A note would be

added after this section explaining the

consequences, under the Maintenance

of Effort (MOE) requirements, of various

State and local choices in accounting for

these funds.

Two other notes would also be added

following proposed § 300.142. One

would quote the House Committee

Report relating to the methods of

insuring services provision. The other

would explain that if a public agency

cannot get parent consent to use public

or private insurance for a service, the

agency may use funds under Part B of

the Act for that service. In addition, the

note would explain that to avoid

financial cost to parents who otherwise

would consent to the use of private

insurance, the public agency may use

funds under this part to pay the costs of

accessing the insurance, such as

deductible or co-pay amounts.

Proposed § 300.143 incorporates, with

revisions as described, the existing

regulatory provision concerning State

procedures for informing each public

agency of its responsibility for ensuring

effective implementation of procedural

safeguards for the children with

disabilities served by that public

agency.

Proposed § 300.144 would retain,

with revisions as described, the existing

regulatory provisions concerning State

procedures that the SEA does not make

a final determination regarding an LEA’s

eligibility for assistance under Part B

without first giving reasonable notice

and an opportunity for a hearing

(consistent with section 612(a)(13)). The

Secretary also proposes to retain as

proposed § 300.145 the existing

regulatory provision regarding recovery

of funds for misclassified children. The

statutory provision regarding recovery

of funds for misclassified children was

removed by the IDEA Amendments of

1997. In light of the fact that funds

under section 611 of the Act will

continue to be distributed based on a

child count until some time in the

future, however, the Secretary believes

that prudent administration of Federal

funds dictates that States continue to

recover funds allocated among districts

on the basis of incorrect child counts.

The Secretary does not believe that this

requirement will impose additional

burden on States as all States already

have these procedures. When the

funding formula changes to the

permanent formula under proposed

§ 300.706, this provision will be

removed.

Proposed § 300.146 would add the

new requirement of section 612(a)(22)

regarding SEA examination of data to

determine if significant discrepancies

are occurring in the rate of long-term

suspensions and expulsions of children

with disabilities among State agencies

and LEAs in the State and as compared

to the rates for nondisabled children. As

provided in the statute, if discrepancies

are occurring, the SEA reviews and, if

appropriate, revises its policies,

procedures, and practices relating to the

development and implementation of

IEPs, the use of behavioral

interventions, and procedural

safeguards.

Proposed § 300.147 adds the new

statutory requirements of section 612(b)

concerning information that is required

if an SEA is providing direct services.

The Secretary interprets the statutory

provision regarding requirements that

must be met by an SEA as not including

requirements relating to certain use of

funds provisions, reflecting the different

rules for SEA and LEA use of Part B

funds. This regulation would replace

the current regulatory provision on SEA

provision of direct services.

Proposed § 300.148 adds the new

statutory requirement of section

612(a)(20) concerning public

participation in the adoption of any

policies and procedures needed to

comply with Part B of the Act. The

proposed regulation would apply the

procedures for public participation

regarding State plans in the current

regulations, with appropriate revisions

as described, to the adoption of State

policies and procedures in the future.

Those procedures are in this NPRM in

proposed §§ 300.280–300.284. The

Secretary believes that these procedures

are necessary to ensure that there is an

adequate opportunity for public

participation in the development of

State policies and procedures related to

the provision of special education and

related services to children with

disabilities. In addition, the Secretary

does not see any indication in the IDEA

Amendments of 1997 of an intention by

Congress to lessen requirements

concerning public participation in the

development of State policies and

procedures. The existing regulatory

provision concerning consultation

would be deleted, reflecting a statutory

change. The existing regulatory

provision concerning other Federal

programs also would be deleted, in

accordance with statutory changes.

Proposed § 300.150 incorporates the

statutory requirement of section

612(a)(21)(A) that the State establish

and maintain an advisory panel to

provide guidance with respect to special

education and related services for

children with disabilities in the State.

Proposed § 300.152 incorporates the

existing regulatory provision, and a note

concerning commingling of Part B funds

with State funds, with appropriate

revisions, reflecting the requirements of

section 612(a)(18)(B).

Proposed § 300.153 maintains the

existing regulatory provision, regarding

State-level nonsupplanting,

appropriately revised, consistent with

section 612(a)(18)(C). The note in the

existing regulatory provision on

nonsupplanting would be removed as it

would be confusing in light of the new

statutory State-level maintenance of

effort requirement addressed in

proposed § 300.154.

Proposed § 300.154 reflects the new

statutory requirement of section

612(a)(19) which prohibits the State

from reducing the amount of State

financial support for special education

and related services below the level of

that support for the preceding fiscal

year. If the State does reduce State

support, the Secretary is directed to

reduce funds to the State in the

subsequent year by an amount equal to

the amount by which the State failed to

meet the requirement. The statute also

provides that waivers are possible under

certain described circumstances, and, if

granted, in the year following the waiver

the State must meet the level of support

it had provided in the year before the

waiver.

Proposed §§ 300.155 and 300.156

would simplify, in light of statutory

changes, the provision in current

regulations regarding policies and

procedures for use of Part B funds, and

annual descriptions of the use of Part B

funds. Proposed § 30.156(b) would

incorporate the longstanding

Department practice of permitting a

State to submit a letter instead of filing

a new report when the State’s use of

funds that are retained by the State has

not changed from the prior report

submitted.

LEA and State Agency Eligibility—

General

Similar to the State eligibility scheme

as described, under section 613(a) LEAs

and State agencies now also must

demonstrate eligibility. Section 613(b)
55038 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

specifies that if an LEA or State agency

has policies and procedures on file with

the State that meet a requirement of the

new Act, the SEA shall consider the

LEA or State agency to have met that

requirement. Policies and procedures

remain in effect until modified as the

LEA or State agency decides necessary,

or until required by the SEA because of

changes to the Act or its implementing

regulations, a new interpretation of the

Act by Federal or State courts, or an

official finding of noncompliance with

Federal or State law or regulations. A

provision would be added to clarify that

the same rules apply to modifications to

LEA or State agency policies and

procedures as apply to the original ones

consistent with the statutory provision

regarding State eligibility. These

provisions are in proposed §§ 300.180—

300.182.

The excess costs provisions in the

current regulations would be condensed

and streamlined in these proposed

regulations in §§ 300.184–300.185.

Proposed §§ 300.190 and 300.192

reflect the new statutory requirements of

section 613(e) concerning joint

establishment of eligibility and

requirements for education service

agencies (formerly intermediate

educational units). These provisions

eliminate the $7,500 minimum grant

requirement of prior law and add an

explicit prohibition on an SEA from

requiring a charter school that is an LEA

to jointly establish eligibility unless the

SEA is explicitly permitted to do so

under State law.

Proposed § 300.194 reflects the new

statutory provision in section 613(i)

concerning State agency eligibility. The

Secretary proposes, in these regulations,

to require that these agencies meet all

the conditions of Subpart B of these

proposed regulations that apply to

LEAs, in keeping with the authorization

in section 613(i)(2).

Proposed § 300.196 reflects the

statutory provision of section 613(c) that

if the SEA determines that an LEA or

State agency is not eligible, the SEA

notifies the LEA or State agency of that

determination, and provides the LEA or

State agency with reasonable notice and

an opportunity for a hearing.

Proposed § 300.197 adds the statutory

requirements concerning SEA actions if

an LEA is failing to comply with the

requirements of Part B.

LEA Eligibility—Specific Conditions

In accordance with the statutory

changes in section 613(a), proposed

§ 300.220 simplifies the basic eligibility

conditions for LEAs. This provision

would replace most of the current

regulations concerning the content of

LEA applications. Under these proposed

regulations LEAs must have in effect

policies, procedures, and programs that

are consistent with State policies and

procedures required to demonstrate

State eligibility.

With regard to implementation of the

State’s comprehensive system of

personnel development, proposed

§ 300.221 reflects the requirement in

section 613(a)(3) that the LEA

demonstrate that all personnel

necessary to carry out this part are

appropriately and adequately prepared,

consistent with State requirements, and

that to the extent the LEA determines

appropriate, it contributes to and uses

the CSPD established by the State.

Proposed § 300.230 reflects the

statutory provision of section

613(a)(2)(A) that funds under Part B of

the Act must be used in accord with the

requirements of Part B, may only be

used for the excess costs of providing

special education and related services to

children with disabilities, and must

supplement and not supplant other

State, local and Federal funds.

Proposed § 300.231 reflects the new

statutory provision that LEAs not reduce

the level of expenditure of LEA funds.

Proposed § 300.232 incorporates new

statutory exceptions to the local

maintenance of effort (MOE)

requirement. With regard to the

exception relating to the voluntary

departure or departure for just cause of

special education personnel, the

Secretary in these proposed regulations

proposes to clarify that the exception

only applies if personnel departing are

replaced by qualified, lower-salaried

personnel. This limitation would not

permit a public agency to meet the MOE

requirement by removing personnel and

failing to replace them. The Secretary

does not believe that the statutory

provision was intended to permit a

reduction in expenditures through

attrition unless one of the other

exceptions also applied. Other statutory

exceptions added include exceptions

covering a decrease in enrollment of

children with disabilities; the

termination of an obligation of the

agency to pay for an exceptionally

costly program, as determined by the

SEA, because the child has left the

agency, has reached the age at which the

agency no longer has an obligation, or

the child no longer needs special

education; and the termination of costly

expenditures for long-term purchases. A

note following this section would quote

from the House Committee Report on

the issue of exceptions to maintenance

of effort for voluntary departure of

special education personnel, which

provides the basis for the clarification of

this exception.

Proposed § 300.233 reflects the new

statutory provision in section

613(a)(2)(C) that in years when the

Federal appropriation under section 611

is more than $4,100,000,000 an LEA

may treat as local funds up to 20 percent

of the amount of funds it receives under

Part B that exceed the amount it

received under Part B in the prior year.

Under certain circumstances, an SEA

may be authorized under State law to

prevent an LEA from exercising this

authority.

Proposed § 300.234 incorporates a

new statutory provision concerning use

of Part B funds in schoolwide project

schools under section 1114 of the

Elementary and Secondary Education

Act of 1965. The amount of Part B funds

that may be used in a schoolwide

project is limited, by statute, to the

amount arrived at by multiplying the

per child amount the LEA receives

under Part B by the number of children

with disabilities participating in the

schoolwide project school. The

Secretary interprets the statutory

provision regarding use of funds to

require that these funds may be used

without regard to the excess costs

requirement, and that in calculating

supplement, not supplant and

maintenance of effort under Part B,

these funds be considered as Federal

Part B funds. An explicit statement that

except as to the flexibility granted

concerning how the Part B funds are

used, all other requirements of Part B

must be met by an LEA using Part B

funds in a schoolwide project school

would also be added. This reflects the

Secretary’s interpretation that this

provision cannot be used as a basis for

not providing services to children with

disabilities in accordance with the other

requirements of the Act. A note

following this section would caution

that children in schoolwide project

schools must still receive services in

accordance with a properly developed

IEP and must still be afforded all of the

rights and services guaranteed to

children with disabilities under the Act.

Proposed § 300.235 incorporates the

provisions of section 613(a)(4) regarding

permissive use of Part B funds for

special education and related services

and supplementary aids and services

provided to a child with disabilities that

also benefit other children and to

develop and implement a coordinated

services system. The provision would

make clear that an LEA will not be

found to violate the commingling,

excess costs, supplement not supplant,

or maintenance of effort requirements
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55039

based on its use of funds in accordance

with this provision.

Proposed §§ 300.240–300.250 reflect

the new statutory provisions of section

613(a) (5), (6) and (7), (f) and (g) related

to treatment of charter schools and their

students, information for the SEA to

carry out its duties under Part B, public

availability of documents related to LEA

eligibility, coordinated services systems,

and school-based improvement plans. A

note following proposed § 300.241

would explain that the provisions of the

Part 300 regulations that apply to public

schools also apply to children in public

charter schools and that children with

disabilities in charter schools retain all

their rights under these regulations.

Secretary of the Interior—Eligibility

Proposed §§ 300.260—300.267

incorporate the revised statutory

provisions concerning the payment to

the Secretary of the Interior into the

existing regulations on this topic. In

proposed § 300.260 references to State

eligibility requirements would be

updated to reflect the new State

eligibility requirements of the Act. In

proposed § 300.262 the amount the

Secretary of the Interior may use of the

payment for administrative costs would

be changed to 5 percent of its payment

or $500,000 whichever is greater,

reflecting the increase in the minimum

for State administration in section 611.

Provisions in the statute regarding a

plan for coordination of services for all

Indian children residing on reservations

covered by Part B (section 611(i)(4)),

definitions of the terms ‘‘Indian’’ and

‘‘Indian tribe’’ (section 602 (9) and (10)),

and provisions regarding the

establishment of an advisory board and

reports by that board (sections 611(i) (5)

and (6)(A)) would also be added.

Public Participation

Proposed §§ 300.280–300.284

incorporate the existing regulatory

provisions concerning public

participation, revised to reflect the

statutory changes from State plans to

State eligibility demonstrations. The

Secretary believes that these provisions

remain necessary to ensure adequate

public participation in the development

of State policies and procedures

regarding the provision of special

education and related services to

children with disabilities under Part B

of the Act, and sees nothing in the

changes in the IDEA Amendments of

1997 that indicates a Congressional

intent to reduce these requirements.

Subpart C—Services

Free Appropriate Public Education

Proposed § 300.300 is essentially the

same as in the current regulation, with

minor changes to update and

accommodate new statutory provisions.

Proposed §§ 300.301–300.308 also are

restatements of the current regulatory

provisions at these sections.

Reflecting the Secretary’s long

standing interpretation of the obligation

to make FAPE available based on

individual needs, a new § 300.309

would be added to address extended

school year services. This provision

would require that each public agency

ensure that extended school year

services are available to each child with

a disability to the extent necessary to

ensure that a free appropriate public

education is available to the child,

based on an individual determination of

the child’s needs by the child’s IEP

team. The term ‘‘extended school year

services’’ is defined to be special

education and related services that are

provided to a child with a disability

beyond the normal school year, in

accordance with the child’s IEP, at no

cost to the child’s parents, and that meet

the standards of the SEA. A note

following this section would explain

that agencies may not limit extended

school year services only to children

with particular categories of disability

or unilaterally limit the duration of

services. The note would also explain

that nothing in Part B requires that

every child with a disability is entitled

to, or must receive, extended school

year services. A second note would

explain that States may establish

standards for decisions regarding which

children should receive extended school

year services and provides examples of

acceptable factors that may be

considered. These changes reflect the

Secretary’s policy guidance over the

years on this topic, which itself has

been informed by a number of Federal

court decisions over the last twenty

years under Part B of the Act. The

Secretary believes that the changes are

necessary to ensure that children with

disabilities who need extended school

year services have appropriate access to

those services, and that those services

are a part of FAPE.

Proposed § 300.311 reflects new

statutory provisions in sections

612(a)(1)(B) and 614(d)(6) concerning

students with disabilities who are in

adult correctional facilities. Paragraph

(a) would specify that the obligation to

make FAPE available to all children

with disabilities does not apply to

students aged 18 through 21 to the

extent that State law does not require

that special education and related

services under Part B be provided to

students with disabilities who, in the

last educational placement prior to their

incarceration in an adult correctional

facility, were not actually identified as

being a child with a disability and did

not have an IEP under Part B. This

language is taken from the statute, with

minor changes for the sake of clarity.

Paragraph (b) would provide that certain

requirements of Part B do not apply to

students with disabilities who are

convicted as adults under State law and

incarcerated in adult prisons: the

provisions relating to participation of

children with disabilities in general

assessments, and the provisions relating

to transition planning and transition

services for students whose eligibility

under Part B will end, because of their

age, before they will be released from

prison. The Secretary interprets the

provision concerning transition services

to require consideration of the student’s

sentence and eligibility for early release

because the required determination

must happen before the student actually

is released from prison. Reflecting

statutory requirements, paragraph (c)

would specify that the IEP team of a

student with a disability who is

convicted as an adult under State law

and incarcerated in an adult prison may

modify the student’s IEP or placement if

the State has demonstrated a bona fide

security or compelling penological

interest that cannot otherwise be

accommodated.

Evaluations and Reevaluations

Proposed §§ 300.320 and 300.321

would be added to reflect the basic

statutory requirements concerning

evaluations and reevaluations contained

in section 614 (a) and (b) of the Act.

Evaluations and reevaluations would be

addressed in greater detail in the

discussion of proposed §§ 300.530–

300.536.

Individualized Education Programs

Proposed § 300.340 would restate the

current regulatory definitions of ‘‘IEP’’

and ‘‘participating agency.’’

Proposed § 300.341 would restate the

current regulatory provision concerning

the SEA responsibility for development

and implementation of IEPs, with one

minor wording change. Throughout

these proposed regulations, the

Secretary proposes to use the term

‘‘religiously-affiliated’’ rather than the

term ‘‘parochial’’ as the former is more

inclusive and accurately reflects the

type of schools described. These

proposed regulations distinguish

between children placed in private

schools by public agencies and those
55040 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

placed in private schools by their

parents. Proposed §§ 300.401 and

300.402 address children placed by

public agencies in private schools.

Proposed § 300.403 concerns placement

in private schools when the provision of

FAPE is at issue. Proposed §§ 300.450–

300.462 concern children placed by

their parents in private schools.

Proposed § 300.342 (a) and (b) would

restate, with minor nonsubstantive

changes, the current regulatory

provisions regarding when IEPs must be

in effect. A new paragraph (c) would be

added regarding the use of IFSPs for

children aged 3 through 5 as provided

for in the statute at section 614(d)(2)(B),

and reflecting the Secretary’s

interpretation that this provision

permits, if State policy provides and the

public agency and parent agree, the use

of an IFSP that meets the content

requirements of section 636(d) of the

Act in place of a document meeting the

IEP content requirements of section

614(d) of the Act, for children aged 3

through 5. With regard to the

requirement for agreement by the

parents to using an IFSP instead of an

IEP, the Secretary proposes to require

written informed consent that is based

on an explanation of the differences

between an IFSP and an IEP in light of

the importance of the IEP as the

statutory vehicle for ensuring the

provision of FAPE to children with

disabilities. For most children who are

five-years old, and for many 3- and 4-

year olds as well, the use of an IEP that

must be tied to the general curriculum

provided to nondisabled age peers, is

encouraged.

The Secretary proposes to add a new

paragraph (d) to this section

representing the Secretary’s

understanding of section 201(a)(2)(C) of

Pub. L. 105–17 that IEPs that meet the

requirements of section 614(d) (1)–(5)

must be in effect as of July 1, 1998.

Delaying implementation of these

provisions beyond that date would be

inconsistent with the right of children

with disabilities to an IEP that meets the

new requirements as of July 1, 1998.

The note following this section from

current regulations would be retained

with minor changes, and a new note

added to clarify that the provisions of

section 614(d)(6) of the Act, relating to

services to children with disabilities in

adult prisons, took effect on June 4,

1997.

Proposed § 300.343(a) restates the

current regulatory provision concerning

the general standard for conducting IEP

meetings. In paragraph (b) of this

section, the Secretary would add a new

provision on timelines for IEPs that

would require that an offer of services

based on an IEP must be made within

a reasonable period of time from a

public agency’s receipt of parent

consent to an initial evaluation

reflecting the Department’s longstanding

interpretation of the requirements of the

statute. A note following this section

would be added to explain that for most

children it would be reasonable to

expect that a public agency would offer

services based on an IEP within 60 days

of receipt of parent consent for initial

evaluation. The Secretary proposes this

reasonable time standard in light of the

importance of appropriate educational

services for children with disabilities to

enable them to receive FAPE and the

frequent long delays observed between

referral for special education evaluation

and actual provision of services.

Paragraph (b) would retain the current

regulatory timeline of 30 days from the

determination that the child is a child

with a disability to an IEP meeting. A

new paragraph (c) would also be added

to this section that revises the current

regulatory provision concerning review

of IEPs to reflect new statutory

requirements in section 614(d)(4). The

note following this section in current

regulations would be deleted as

unnecessary and confusing in light of

changes proposed to the regulation.

Proposed § 300.344 would revise the

current regulatory provision concerning

IEP team membership to reflect the

requirements of section 614(d)(1)(B).

Under this provision the IEP team

includes the parents of the child with a

disability; at least one regular education

teacher (if the child is, or may be,

participating in regular education); at

least one special education teacher or, if

appropriate, at least one special

education provider of the child; a

representative of the LEA who meets

certain specified requirements; an

individual who can interpret the

instructional implications of evaluation

results; at the discretion of the parent or

agency, other individuals who have

knowledge or special expertise

regarding the child, including related

services personnel; and, if appropriate,

the child.

The Secretary proposes to expand the

current regulatory provision requiring

the agency to invite students to

participate in IEP meetings if the

meeting will include consideration of

the statement of needed transition

services to also include meetings that

will include consideration of transition

service needs, in accordance with

§ 300.347(b)(1) and note 5 following that

section. This reflects the Department’s

longstanding regulatory position that a

student with a disability be involved in

the development of an IEP if transition

services are being considered. The

current regulatory provision regarding

taking other steps to ensure

consideration of the student’s

preferences and interest if the student

does not attend the IEP meeting would

be maintained. This section also would

maintain the current regulatory

provisions concerning inviting

representatives of any other agency that

is likely to be responsible for providing

or paying for transition services,

including taking other steps to obtain

participation if a representative invited

to a meeting does not attend.

Note 1 following this section would

be revised in light of the statutory

changes. It would also explain that an

LEA may designate one or more regular

education teachers of the child to attend

the IEP meeting, if the child has more

than one. It would further state that if

all of the child’s teachers are not

participating in the IEP meeting, LEAs

are encouraged to seek input from

teachers who will not be attending, and

should ensure that teachers who do not

attend the IEP meeting are informed

about the results of the meeting,

including receiving a copy of the IEP.

Finally, the note would explain that

LEAs are encouraged, in the case of a

child whose behavior impedes the

learning of the child or others, to have

a person knowledgeable about positive

behavior strategies at the meeting. Note

2 following this section in the current

regulations would be removed.

Proposed § 300.345 largely would

maintain the current regulatory

provision concerning parent

participation in IEP meetings based on

the statutory requirements at section

614(d)(1)(B). It would be revised only by

adding to the parent notification

provisions that for students of any age,

if a purpose of the IEP meeting is either

the development of a statement of

transition service needs or consideration

of needed transition services, the

agency’s notice to the parent must

indicate that purpose, and that the

agency must invite the student to

attend. This change merely modifies the

current regulation to accommodate the

new statutory provision requiring a

statement of transition service needs for

students beginning no later than age 14

contained in proposed § 300.347.

Proposed § 300.346 would add a new

provision to the regulations based on

the requirements of section 614(d)(3)

concerning development of the IEP.

That section requires that in developing

each child’s IEP the IEP team consider

the strengths of the child and the

concerns of the parents for enhancing

the education of their child and the

results of the initial or most recent
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55041

evaluation of the child. That section

requires that the IEP team also consider

a number of special factors that may

apply to individual children. For

example, if a child’s behavior impedes

his or her learning or that of others, the

IEP team must consider, if appropriate,

strategies, including positive behavioral

interventions, strategies, and supports to

address that behavior. These statutory

requirements are included in proposed

§ 300.346(a). Proposed § 300.346(b)

would clarify that IEP teams consider

these factors in review and revision of

IEPs as well as in their initial

development. A paragraph (c) also

would be added to clarify that if in

considering a factor, the IEP team

determines that a child needs a

particular device or service (including

an intervention, accommodation, or

other program modification) in order for

the child to receive FAPE, the IEP team

must include a statement to that effect

in the child’s IEP. It would be an

anomalous result if an IEP team

determined that a service or device was

needed to address one of the statutory

special factors, and that service or

device were not included in the child’s

IEP.

Paragraph (d) of this proposed section

would add the statutory requirements of

section 614(d) (3)(C) and (4)(B) which

specify that the regular education

teacher, to the extent appropriate, must

participate in the development, review,

and revision of the IEP of the child,

including assisting in the determination

of appropriate positive behavioral

interventions and strategies and the

determination of supplementary aids

and services, program modifications,

and support for school personnel.

Paragraph (e) of this section would

incorporate the new statutory provision

of section 614(e) which specifies that

IEP teams are not required to include

information under one component of a

child’s IEP that is already included

under another. Three notes would also

be added following this section. The

first would recognize the importance of

the consideration of the special factors

in development of a child’s IEP. As

appropriate, consideration of these

factors must include a review of valid

evaluation data and the observed needs

of the child resulting from the

evaluation process. The second note

would acknowledge the statement in the

House Committee Report regarding Pub.

L. No. 105–17 that states that for

children who are deaf or hard of hearing

the IEP team should implement the

special consideration provision in a

manner consistent with the ‘‘Deaf

Students Education Services’’ policy

guidance from the Department. The

third note would explain how the

considerations addressed in this section

affect the development of an IEP for a

child who is limited-English proficient.

This is one of several notes addressing

the responsibility of public agencies to

effectively meet the needs of children

with limited English proficiency who

have a disability or are suspected of

having a disability. The Secretary

requests public comment on whether

additional clarification would be useful.

Proposed § 300.347 would replace the

current regulatory provision on the

contents of IEPs with the new statutory

requirements from section 614(d)(1)(A)

regarding the contents of an IEP. In

addition, proposed § 300.347 would

maintain the current regulatory

provision regarding transition services

on a student’s IEP which states that if

the IEP team determines that services

are not needed in one or more of certain

of the areas specified in the definition

of transition services, the IEP team must

include a statement to that effect and

the basis upon which the determination

was made. In addition, the Secretary

would add, as paragraph (d), a statement

that special rules concerning the content

of IEPs apply for children with

disabilities who are in adult prisons,

consistent with section 614(d)(6) of the

Act. The notes following the current

regulatory provision on IEP contents

would be shortened and condensed into

one note regarding transition services.

Notes would be added following this

section explaining several issues raised

by the new provisions on IEP contents—

the emphasis on the general curriculum,

the focus of the IEP on enabling

children with disabilities to access the

general curriculum, the relationship of

teaching and related service

methodologies or approaches and the

content of the IEP, the new reporting to

parents requirement and the new

statement of transition service needs. A

final note would explain that it would

not be a violation of Part B of the Act

for a public agency to begin planning for

transition service needs for students

younger than age 14 and transition

services for students younger than age

16.

Proposed § 300.348 would maintain

the current regulatory provision

concerning agency responsibility for

transition services, consistent with

section 614 (d)(5) and (d)(1)(A)(vii).

Current regulatory provisions

concerning private school placements

by public agencies and children with

disabilities in private schools would be

retained as proposed §§ 300.349 and

300.350, with minor wording changes.

These sections reflect the Secretary’s

interpretation of how public agencies

meet their responsibilities regarding

conducting IEP meetings under section

614(d)(1)(B) in light of the requirements

of section 612(a)(10) (A) and (B)

regarding providing services to children

with disabilities in private schools. The

current regulatory provision concerning

IEP accountability would also be

maintained as proposed § 300.351. The

Secretary believes that this provision

continues to represent the appropriate

interpretation of the statutory provisions

concerning IEPs. However, the note

following this section has been revised

in light of the heightened focus in the

IDEA Amendments of 1997 on

providing children with disabilities the

instruction, services and modifications

that will enable them to achieve a high

standards.

Direct Services by the SEA

Proposed § 300.360(a) would replace

the current regulatory provision

describing the SEA’s use of funds, that

otherwise would have gone to an LEA,

to provide direct services, with the new

statutory requirements on this issue.

Paragraphs (b) and (c) would be

maintained from the current regulations,

reflecting the Secretary’s continuing

interpretation of how SEAs implement

direct services. The note following this

section would be retained, with material

deleted that has been rendered obsolete

by the new statute. Proposed § 300.361

would be retained from the current

regulations, consistent with the

requirements of section 613(h)(2) of the

Act.

Section 611(f)(3) authorizes several

new uses of money that the State may

retain at the State level, including to

establish and implement the mediation

process; to assist LEAs in meeting

personnel shortages; to develop a State

Improvement Plan under subpart 1 of

Part D of the Act; to carry out activities

at the State and local levels to meet

performance goals and to support

implementation of the State

Improvement Plan; to supplement other

amounts used to develop and

implement a Statewide coordinated

services system (but not more than one

percent of the grant under section 611

of the Act); and for capacity building

and system improvement subgrants to

LEAs. The current regulatory provision

would be expanded by adding these

new statutory provisions as § 300.370(a)

(3)–(8). Proposed § 300.370(a) (1) and (2)

reflect statutory provisions that were in

the prior law and are retained in section

611(f)(3). The provision in the current

regulations concerning State matching

would be deleted, reflecting the deletion

of this requirement from the statute.
55042 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

Proposed § 300.372 would replace the

current regulatory provision regarding

the applicability of the nonsupplanting

provision to funds that the State uses

with the new requirements from section

611(f)(1)(C) that the SEA may use funds

retained without regard to the

prohibition on commingling and the

prohibition on supplanting other funds.

Comprehensive System of Personnel

Development

The regulatory provisions in proposed

§§ 300.380–300.382 would be revised to

reflect new statutory requirements

concerning a State’s comprehensive

system of personnel development

(CSPD). Proposed § 300.380 would

require that each State’s CSPD be

consistent with Part B of the Act and the

CSPD provision of Part H (to be

renamed Part C); be designed to ensure

an adequate supply of qualified special

education, regular education and related

services personnel; be updated at least

every five years; and meet the

requirements of §§ 300.381–300.382,

which contain the provisions of section

653 (b)(2)(D) and (c)(3)(D), as required

by section 612(a)(14). Because the

statute makes the CSPD the same as the

personnel sections of a State

Improvement Plan, the Secretary

proposes to add a provision to make

clear that a State with a State

Improvement grant would be considered

to have met the requirements of this

section.

Proposed § 300.381 would require a

State to include an analysis of State and

local needs for professional

development of personnel to serve

children with disabilities that must

include at least certain minimum

specified information. Proposed

§ 300.382 would require States to

describe the strategies in a number of

specified areas that they will use to

address the needs identified under

proposed § 300.381, including identified

needs for in-service and pre-service

preparation to ensure that all personnel

who work with children with

disabilities (including both professional

and paraprofessional personnel who

provide special education, general

education, related services, or early

intervention services) have the skills

and knowledge necessary to meet the

needs of children with disabilities.

Subpart D—Children in Private Schools

Children With Disabilities in Private

Schools Placed or Referred by Public

Agencies

Sections 300.400–300.402 of these

proposed rules would incorporate the

existing rules regarding children with

disabilities placed in private schools by

public agencies and children with

disabilities placed in private schools by

their parents. These proposed rules

reflect the unchanged statutory

provision in section 612(a)(10)(B) that

children with disabilities placed in or

referred to private schools or facilities

by an SEA or LEA must be provided

special education and related services

(1) in accordance with an IEP, and (2)

at no cost to their parents. Section

612(a)(10)(B) further requires that the

SEA must ensure that the private

facilities meet State standards and that

children placed in those facilities have

the same rights they would have if

served by a public educational agency.

The IDEA Amendments of 1997 added

new requirements concerning children

placed by their parents in private

schools. Section 612(a)(10)(C)(i)

provides that an LEA is not required 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 the LEA made FAPE

available to the child and the parents

elected to place the child in the private

school. Parent reimbursement is subject

to certain requirements described in the

next paragraph of this preamble. This

provision would be reflected in

proposed § 300.403(a). Proposed

§ 300.403(b) would be retained from the

current regulations to clarify that due

process procedures can be used to

resolve disagreements about the

provision of FAPE and financial

responsibility of the public agency.

Section 612(a)(10)(C)(ii) describes the

circumstances under which a parent

may seek reimbursement from a public

agency for a private school placement.

This provision states that a court or a

hearing officer may require the public

agency to reimburse parents for the cost

of a private school placement if the

court or hearing officer finds that the

public agency had not made FAPE

available to the child in a timely

manner. It also states that

reimbursement may be reduced or

denied if (1) at the child’s most recent

IEP meeting the parents did not inform

the IEP team that they were rejecting the

public agency’s proposed placement,

including stating their concerns and

their intent to enroll their child in a

private school at public expense; (2) ten

(10) business days (including holidays

that occur on a business day) prior to

the removal of the child from public

school, the parents did not give written

notice that they were rejecting the

public agency proposal and their intent

to enroll their child in a private school

at public expense; (3) prior to the

parents’ removal of the child from a

public school, the public agency

notified the parents, through the prior

written notice required under section

615(b)(7) of the Act, of its intention to

evaluate the child, but the parents did

not make the child available for

evaluation; or (4) upon a judicial finding

of unreasonableness regarding the

actions of the parents. Reimbursement

may not be reduced or denied for failure

to provide that notice if: (1) The parent

is illiterate and cannot write in English;

(2) compliance with an evaluation

would likely result in physical or

serious emotional harm to the child; (3)

the school prevented the parent from

providing the notice; or (4) the parents

had not received notice, pursuant to

section 615 of the Act, of the notice

requirement. These provisions would be

incorporated in the proposed

regulations at § 300.403(c)–(e).

Children With Disabilities Enrolled by

their Parents in Private Schools

Proposed § 300.450 would retain the

current regulatory definition of ‘‘private

school children with disabilities.’’

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

provides that to the extent consistent

with the number and location of

children with disabilities who are

enrolled by their parents in private

elementary and secondary schools,

provision is made for the participation

of those children in the program

assisted or carried out under this part by

providing for these children special

education and related services, by

spending a proportionate amount of the

Federal funds available under Part B of

the Act on services for these children.

Those services may be provided to

children with disabilities on the

premises of private, including parochial,

schools, to the extent consistent with

law. The statute also requires that the

SEA’s and LEA’s child find activities

apply to children with disabilities who

are placed by their parents in private,

including parochial, schools.

Proposed §§ 300.451–300.462 would

incorporate these statutory

requirements, and appropriate

provisions from existing regulatory

requirements (from 34 CFR 76.650–

76.662) regarding the participation of

private school students with disabilities.

The term ‘‘religiously-affiliated’’ would

be used instead of the statutory term

‘‘parochial’’ as the Secretary assumes

that all religious schools were intended

by Congress to be included, not just

those organized on a parish basis. The

child find obligation from the statute is

reflected in proposed § 300.451.

Proposed § 300.452 describes the basic

statutory obligation to provide special
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55043

education and related services to private

school children with disabilities and

says that obligation is met by meeting

the requirements of §§ 300.453–300.462.

In § 300.453, the Secretary interprets the

statutory limitation on the amount of

funds that LEAs must spend on

providing special education and related

services to private school children with

disabilities as the same proportion of

the LEA’s total subgrant under sections

611 and 619 of the Act as the number

of private school children with

disabilities aged 3 through 21 and 3

through 5, respectively, is to the total

numbers of children with disabilities in

its jurisdiction in each of those age

ranges. A note would be added after this

section to clarify that SEAs and LEAs

are not prohibited from providing more

services to private school children with

disabilities than is required under the

Act.

Proposed § 300.454(a) specifies that

no individual private school child with

a disability has a right to receive some

or all of the special education and

related services the child would receive

if enrolled in a public school. This

provision reflects the Secretary’s

longstanding regulatory interpretation of

the statutory limitations on the

obligation to provide services to private

school children with disabilities, which

now specifically reference the limited

amount of funds that LEAs must spend

on these services. LEAs should have the

authority to decide, after consultation

with representatives of private school

children with disabilities, how best to

provide services to this population.

Proposed § 300.454 (b)–(e) specifies that

LEAs make decisions about which

children to serve and what services to

be provided to private school children

with disabilities, and how those services

will be provided and evaluated after

timely and meaningful consultation

with appropriate representatives of

private school children with disabilities

that gives those representatives a

genuine opportunity to express their

views on these subjects. These rules are

similar to requirements governing how

decisions are made about services

provided to private school children

under Title I of the Elementary and

Secondary Education Act, and are based

on the consultation provisions in 34

CFR 76.652 that have applied to services

to private school children with

disabilities under the Act for many

years.

Proposed § 300.455 specifies that

services provided to private school

children with disabilities must be

comparable in quality to services

provided to children with disabilities

enrolled in public schools and provides

a definition of ‘‘comparable in quality.’’

This proposed section also specifies that

the IEPs developed for these children

must address the services that the LEA

has determined that it will provide to

the child, in light of the services that the

LEA has determined, through the

consultation process, that it will make

available to private school children with

disabilities. (The proposed regulations

will maintain the current regulatory

provision at § 300.341(b)(2) requiring

that IEPs be developed for children

enrolled in private schools and

receiving special education and related

services from a public agency.)

Proposed § 300.456(a) would

incorporate the statutory provision that

services may be provided on-site at the

child’s private school, to the extent

consistent with law. The term

‘‘religiously-affiliated’’ is used instead

of the statutory term, ‘‘parochial.’’ A

note would be included after this

section that recognizes that under recent

decisions of the U.S. Supreme Court,

LEAs may provide special education

and related services on-site at

religiously-affiliated private schools in a

manner that does not violate the

Establishment Clause of the First

Amendment to the U.S. Constitution.

Proposed § 300.456(b) would specify

that transportation to a site other than

the child’s private school must be

provided if necessary for the child to

benefit from or participate in the other

services offered, based on the

Secretary’s longstanding position that

all children with disabilities must be

provided transportation to and from

other services provided under the Act,

if that transportation is necessary to

enable them to benefit from those other

services. Paragraph (b)(2) of this section

would clarify that the cost of that

transportation may be included in

calculating whether the LEA has met the

requirement of § 300.453. A second note

following this section would explain

that transportation is not required

between the student’s home and the

private school, but only between the site

of the services, if other than the private

school, and the student’s private school

or the student’s home, depending on the

time of the services.

In proposed § 300.457(a), the

Secretary interprets the statutory

provision regarding services to private

school children with disabilities to

mean that the due process procedures of

the Act do not apply to complaints that

an LEA has failed to meet the

requirements of §§ 300.452–300.462,

including the provision of services

indicated on the child’s IEP. This

provision is based on the statutory

scheme, which does not include any

individual right to services for private

school students placed by their parents.

Proposed § 300.457(b) would clarify that

complaints that an SEA or LEA has

failed to meet the requirements of

§§ 300.451–300.462 may be filed under

the State complaint procedures

addressed in this NPRM at §§ 300.660–

300.662.

Proposed §§ 300.458–300.462 would

incorporate, with only minor changes

that are not intended to be substantive,

the requirements from 34 CFR

§§ 76.657–76.662 that have applied to

the Part B program of the Act for many

years. The Secretary believes that these

provisions are necessary to ensure that

funds under Part B of the Act are not

used to benefit private schools or in

ways that could raise questions of

inappropriate assistance to religion.

Proposed §§ 300.480–300.487 would

repeat, with only minor nonsubstantive

changes, the bypass provisions from the

current regulations. The bypass

provisions in section 612(f) are

unchanged from prior law.

Subpart E—Procedural Safeguards

Due Process Procedures for Parents and

Children

Proposed § 300.500 would combine in

one section two current regulatory

provisions that establish the general

responsibility of SEAs for establishing

and implementing procedural

safeguards and define ‘‘consent,’’

‘‘evaluation,’’ and ‘‘personally

identifiable.’’ The provision in proposed

§ 300.500(a) regarding the general

responsibility of SEAs would be

updated to include all the procedural

safeguards in the proposed regulations,

consistent with the requirements of

section 615(a) of the Act. Similarly, the

definition of ‘‘evaluation’’ in proposed

§ 300.500(b)(2) would be updated to

refer to all of the evaluation procedures

in Subpart E of the proposed regulation,

which are based on the statutory

provisions of sections 612(a)(6)(B) and

614 (a)–(c). A new note following this

section would be added to clarify that

a parent’s revocation of consent is not

retroactive in effect. For example, if a

parent grants consent for an evaluation,

and after the evaluation is completed

the parent revokes consent for the

evaluation, the IEP team would still be

able to consider that evaluation in

making decisions about the child’s

program and placement.

Based on the requirements of section

615(b)(1), proposed § 300.501(a) would

be revised to address the parents’

opportunity to inspect and review all

educational records, as in the current

regulation, and the new statutory
55044 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

requirements that parents be given an

opportunity to participate in meetings

with respect to the identification,

evaluation, and educational placement

of the child, and the provision of FAPE

to the child. In paragraph (b) of this

section the Secretary proposes that the

statutory obligation to afford parents the

opportunity to participate in meetings

means that parents must be given notice

of the meeting, including the purpose,

time and location, and who will be in

attendance, early enough so that they

have an opportunity to attend, because

these requirements seem essential to

giving parents an opportunity to

participate in these meetings. In

paragraph (b)(2), the Secretary proposes

to define ‘‘meeting’’ to make clear that

only certain conversations about

providing educational services to a

child are covered, to eliminate potential

confusion about the scope of this

requirement. Paragraph (c) of this

section would incorporate the

requirement of section 614(f) that public

agencies ensure that parents are

members of any group that makes

decisions on the educational placement

of their child. The Secretary proposes in

this paragraph to require that public

agencies use procedures like those

required for parent involvement in IEP

team meetings, to ensure that parents

are members of the group that makes

decisions on the educational placement

of their child, including notice of the

meeting as described, using other

methods to involve parents in the

meeting when parents cannot be

physically present, maintaining a record

of attempts to ensure the participation

of the parents, and taking steps to

ensure that parents are able to

understand and participate in the

meetings. The Secretary would adopt

this position as necessary to ensure that

parents participate in these meetings, as

required by section 614(f), and as these

procedures have been used for many

years by all public agencies regarding

parent participation in IEP meetings. In

many, if not most instances, placement

decisions will be made as a part of IEP

meetings, as is already the case in many

jurisdictions.

Proposed § 300.502 (a), (c), and (d)

would contain, with minor

modifications, the current regulatory

provisions setting out the general

requirements regarding independent

educational evaluations, parent-initiated

evaluations, and requests for

evaluations by hearing officers,

consistent with the statutory provision

of section 615(b)(1). Proposed paragraph

(b) would restate the current regulatory

provision concerning the parent’s right

to evaluation at public expense to make

clear that if a parent requests an

independent educational evaluation, the

agency, without unnecessary delay,

must either initiate a due process

hearing to show that its evaluation is

appropriate, or insure that an

independent educational evaluation is

provided at public expense, reflecting

the Secretary’s interpretation that a

public agency must take action to

respond to a parent’s request for an

independent educational evaluation,

and may not just refuse to respond.

Paragraph (e) of this proposed section

would restate, with modifications, the

current regulatory provision concerning

agency criteria for evaluations. The

Secretary proposes to add a new

paragraph (e)(2) to clarify that other

than the agency’s criteria for an agencyinitiated evaluation, the public agency

may not impose conditions or timelines

on a parent’s right to obtain an

independent educational evaluation at

public expense. This proposal reflects

the Department’s analysis of the

statutory provision that an independent

educational evaluation must be

available if the parent objects to an

evaluation that a school district is using.

A note following this section would

explain that a public agency may not

impose conditions on obtaining an

independent educational evaluation

other than the agency criteria for the

agency’s own evaluations, but must

either timely provide the independent

educational evaluation at public

expense or initiate a due process

hearing. A second note would be added

to encourage public agencies to make

information about the agency’s criteria

for evaluations known to the public, so

that parents who disagree with an

agency evaluation will know what

standards an independent evaluation

should meet. A third note would

explain how agency criteria apply to an

independent educational evaluation.

Proposed § 300.503(a)(1) would

repeat, unchanged, the current

regulatory provision concerning the

basic obligation to provide prior written

notice, based on the statutory

requirements for prior notice. Proposed

paragraph (a)(2) would be added to

clarify that an agency may provide the

prior written notice at the same time

that it requests parent consent, if an

action proposed by a public agency

requires parent consent and prior

written notice, reflecting the Secretary’s

interpretation that these activities are

closely related. The new statutory

requirements concerning the content of

prior written notice from section 615(c)

would be addressed in proposed

§ 300.503(b) (1) through (7). These new

content requirements are different from,

and would replace, the provision in

current regulations on the content of

prior written notice. The Secretary

proposes to add to this paragraph a

requirement that the prior written notice

include a statement informing parents

about the State complaint procedures,

including a description of how to file a

complaint and the timelines under those

procedures. The Secretary believes that

insuring that parents know about these

procedures, which are an alternative

mechanism to due process, should help,

in conjunction with the new statutory

provisions regarding mediation that are

also contained in these proposed

regulations, to reduce the number of

disagreements between parents and

school districts that go to due process.

Based on the requirement of section

615(b) (3) and (4) of the Act, paragraph

(c) of proposed § 300.503 would

maintain the provision from current

regulations concerning providing this

notice in language understandable to the

general public and in the native

language or other mode of

communication used by the parent,

unless it is clearly not feasible to do so.

Proposed § 300.504 would contain the

new statutory provisions concerning

procedural safeguards notice, including

in paragraph (a) when that notice must

be provided, and in paragraph (b) what

content it must include, as provided in

section 615(d) of the Act. Paragraph (c)

of this section would address the

statutory requirements, also from

section 615(d), that this notice be in

language understandable to the general

public and in the native language or

other mode of communication used by

the parent unless clearly not feasible to

do so, in the same way as similar

requirements would be treated regarding

prior written notice.

Changes were made in how the statute

addresses parent consent (in sections

614 (a)(1)(C) and (c)(3)), and so the

existing regulatory provision would be

revised in the following ways at

proposed § 300.505. Paragraph (a)

would be revised in recognition of the

new statutory provision concerning

parent consent for reevaluations. The

Secretary proposes to read this

provision to require parent consent

before conducting a new test as a part

of a reevaluation. The statute now

discusses evaluation and reevaluation as

including reviewing existing data and, if

appropriate, conducting new

assessments or tests when new

information is needed. The Secretary

does not believe that in adding a parent

right to consent to reevaluations that

Congress intended to require school
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55045

personnel to obtain parent consent

before reviewing existing data about a

child. Therefore, the proposed

regulation would make clear that as to

reevaluations, parent consent is needed

only before conducting a new test as

part of that reevaluation. Paragraph (b)

of this section would reflect the

statutory requirement of section

641(a)(1)(C)(ii) regarding parent refusals

to consent.

Paragraph (c)(1) of this proposed

section would reflect the statutory

requirement of section 614(c)(3) of the

Act that parent consent need not be

obtained for reevaluation if the public

agency can demonstrate that it has taken

reasonable measures to obtain that

consent, and the parent fails to respond.

In paragraph (c)(2) of this section the

Secretary proposes to describe the

demonstration of ‘‘reasonable measures’’

as procedures consistent with those

required to demonstrate attempts to

involve a parent in an IEP meeting.

Those procedures, which are unchanged

from the current regulations, would be

in proposed § 300.345(d) (1) and (2).

Proposed paragraphs (d) and (e) of this

section would restate current regulatory

provisions concerning additional State

consent requirements and a limitation

on using parent consent for a Part B

service or activity as a condition on

other benefits to the parent or child.

Note 1 following the consent provision

in the current regulations would be

removed as unnecessary. Note 2 from

current regulations would be shortened

and revised consistent with the

proposed regulatory changes and

renumbered as Note 1. Note 3 in current

regulations would be renumbered as

Note 2 and a new Note 3 would be

added addressing agency choices when

a parent refuses to consent to a

reevaluation.

Proposed § 300.506 would reflect the

new statutory provisions of section

615(e) of the Act concerning mediation

in paragraphs (a), (b), and (d)(1), which

set forth the general responsibility to

establish and implement mediation

procedures, specific requirements

regarding the mediation process, and

the statutory provision concerning

requiring parents who elect not to use

mediation to meet with a disinterested

party who would explain the benefits of

mediation and encourage its use. In

paragraph (c) the Secretary proposes to

clarify the requirement that mediation

be conducted by an impartial mediator

by specifying that a mediator may not be

an employee of an LEA or State agency

acting as an LEA or an SEA that is

providing direct services to the child

who is the subject of the mediation and

must not have a personal or professional

conflict of interest. This position reflects

the explanation of this statutory

provision in congressional committees’

reports. Given Congress’ interest in

encouraging the use of mediation, it is

unlikely that it would have considered

any person not meeting basic standards

of impartiality to be an acceptable

mediator. The Secretary believes that

these standards will encourage the use

of mediation by ensuring parties to a

dispute the availability of an objective

third party to mediate disputes. The

Secretary proposes to add, in paragraph

(d)(2), a clarification that a public

agency may not deny or delay a parent’s

right to a due process hearing based on

a parent’s failure to participate in the

meeting described in proposed

paragraph (d)(1). This proposal is made

in recognition of the statutory provision

of section 615(e)(2)(A)(ii) which

provides that the mediation process not

be used to deny or delay a parent’s right

to due process. A note following this

section would quote language from the

House Committee Report, noting the

Committee’s intention that if a mediator

is not selected at random from the list

maintained by the SEA, both the parents

and the agency must be involved in

selecting the mediator and in agreement

about the selection. A second note

would note the discussion of House

Committee Report’s the confidentiality

provisions regarding mediation.

Proposed § 300.507(a)(1) would set

out the general provision, from section

615(b)(6) of the Act, regarding the right

of parents and public agencies to initiate

a due process hearing on any matter

relating to the identification, evaluation,

educational placement or provision of

FAPE to a child. In paragraph (a)(2), the

Secretary would interpret the

requirement of section 615(e)(1) that

mediation be available whenever a

hearing is requested, as requiring that

parents be notified of the availability of

mediation whenever a due process

hearing is initiated. Paragraph (a)(3)

would restate the requirement from the

current regulations that the public

agency inform the parent of free or lowcost legal and other relevant services if

the parents request it, and whenever a

due process hearing is initiated.

Paragraph (b) of this proposed section

would reflect the statutory requirement

of section 615(f)(1) of the Act that the

hearing be conducted by the SEA or

public agency directly responsible for

the education of the child. Paragraph (c)

of this proposed section would reflect

the new statutory requirements of

section 615(b) (7) and (8) concerning the

notice that a parent is required to

provide to a public agency in a request

for a due process hearing, and the model

form that must be developed by the SEA

to assist parents in filing a request for

due process that includes the

information required in proposed

paragraphs (c) (1) and (2). In paragraph

(c)(4) the Secretary proposes to clarify

that failure to provide the notice

specified in paragraphs (c) (1) and (2)

cannot be used to deny or delay a

parent’s right to a due process hearing,

as the Secretary believes that Congress

did not intend that failure of a parent to

provide this notice would prevent them

from using procedures necessary to

protect their child’s right to FAPE. A

note following this section would be

added to clarify that a public agency

may not deny a parent’s request for due

process, even if it believes that the

issues raised are not new, and that this

determination must be made by a

hearing officer. A second note would

quote the House Committee Report

noting that a consequence of failure to

provide this notice may be a possible

reduction in attorneys’ fees, noting that

the provision is designed to encourage

early resolution of disputes and foster

partnerships between parents and

school districts.

Proposed § 300.508 would maintain

the current regulatory requirements

concerning impartial hearing officers,

consistent with the requirement of

section 615(f)(3).

Proposed § 300.509 would add, to

existing regulatory provisions

concerning rights of all parties to a due

process hearing, the new statutory

requirement of section 615(f)(2) of the

Act regarding disclosure, at least 5

business days prior to a hearing, of all

evaluations and recommendations based

on those evaluations that have been

completed by that date and that a party

intends to introduce at the hearing. This

provision would be in addition to the

existing regulatory requirement of

disclosure of any evidence to be

introduced at the hearing at least 5 days

before the hearing. The provisions from

current regulations concerning the

parties’ rights to obtain a verbatim

record of the hearing and the findings of

fact and decisions of the hearing officer

would be modified consistent with

statutory changes in section 615(h) (3)

and (4) of the Act, which give parents

the right to choose either a written or

electronic version of these documents.

Paragraph (c)(1) of this proposed section

would maintain the existing regulatory

provision concerning parents’ rights to

have the child who is the subject of the

hearing present, and to open the hearing

to the public. Paragraph (c)(2) would

specify that the record of the hearing

and the findings of fact and decisions of
55046 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

hearings must be provided to parents at

no cost. This reflects the Department’s

longstanding interpretation that parents

must have access to copies of records of

hearings and findings of fact and

decisions at no cost so that the right to

appeal due process hearing decisions in

order to protect their child’s right to

FAPE is not foreclosed. Proposed

paragraph (d) of this section would

maintain the current regulatory

provision requiring public agencies,

after deleting personally identifiable

information, to transmit findings and

decisions of due process hearings to the

State advisory panel and make them

available to the public, consistent with

section 615(h)(4).

Proposed § 300.510(a) maintains, with

minor changes, the current regulatory

provision regarding finality of decisions,

consistent with section 615(i)(1)(A).

Proposed § 300.510 (b), (c), and (d),

reflecting the statutory requirements,

maintain current regulatory provisions

concerning the State level review

procedure, including the reviewing

official’s duties; the responsibility, after

deleting personally identifiable

information, to make findings and

decisions in reviews available to the

public and transmit them to the State

advisory panel; and finality of review

decisions. The notes following the

provision on these subjects in current

regulations would be retained.

Proposed §§ 300.511 and 300.512(a)

would maintain the current regulatory

provisions concerning the timelines for

due process hearings and State review

proceedings and the right of an

aggrieved party to bring a civil action.

Proposed § 300.512 (b) and (c) would

add the statutory requirements of

section 615 (i)(2) and (i)(3)(A) of the Act

regarding the duties of the court in

reviewing a due process decision or

State level review and the jurisdiction of

the Federal district courts. Proposed

§ 300.511(d) would add to the regulation

the statutory rule of construction of

section 615(l) of the Act regarding the

applicability of other laws such as the

Constitution, the Americans with

Disabilities Act of 1990, and title V of

the Rehabilitation Act of 1973, to

actions seeking relief that is also

available under section 615 of the Act.

Proposed § 300.513(a) would maintain

the current regulatory provision

concerning attorneys’ fees, reflecting the

requirements of section 615(i)(3)(B)–(G).

The Secretary proposes to add a new

paragraph (b) to specify that funds

provided under Part B of the Act may

not be used to pay attorneys’ fees

awarded under the Act. The Secretary

does not believe that funds awarded

under the Act for special education and

related services should be used to pay

attorneys’ fees because it would divert

limited Federal resources from direct

services. A note would be added

following this section to explain that

States may permit hearing officers to

award attorneys’ fees to prevailing

parents.

Proposed § 300.514(a) would revise

the current regulation consistent with

the new statutory provision in section

615(j), which adds, as an explicit

exception to the ‘‘pendency’’ provision,

the provisions of section 615(k)(7) of the

Act. Proposed paragraph (b) of this

section would retain the current

regulatory provision concerning due

process complaints involving an initial

admission to public school. The

Secretary proposes to add a new

paragraph (c) to clarify that if a hearing

officer in a due process hearing or a

review official in a State level review

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 local

agency and the parents for purposes of

determining the child’s current

placement during subsequent appeals.

The pendency provision is designed as

a protection to be used by parents of

children with disabilities when there is

a dispute between the parents and

school district about the identification,

evaluation, or placement of the child, or

about any matter related to the

provision of a free appropriate public

education to the child. When parents

are in agreement with the decision

reached in a due process hearing or

appeal, the pendency provision should

not be invoked to prevent the

implementation of that decision. The

note from current regulations

concerning children who are

endangering themselves or others would

be retained.

Proposed § 300.515 would maintain,

without change, the current regulatory

provisions concerning surrogate parents,

consistent with the provisions of section

615(b)(2) of the Act.

Proposed § 300.517 would add the

new statutory provision regarding

transfer of parent rights at the age of

majority from section 615(m) of the Act.

The Secretary would interpret this to

clarify that whenever an agency

transfers rights the agency must notify

both the individual and the parents of

the transfer, consistent with basic

standards of due process. With regard to

the permissive transfer of rights to

individuals who are in correctional

institutions, the reference to Federal

correctional facilities would be

removed, as States do not have an

obligation to provide special education

and related services under the Act to

individuals in Federal facilities. Minor

changes for the sake of clarity, that are

not intended to affect the substance,

would be made to the provision in

paragraph (b) regarding a ‘‘special rule.’’

Discipline Procedures

Proposed § 300.520 would incorporate

the provisions of section 615(k)(1) of the

Act regarding the ability of school

personnel to remove a child with a

disability from his or her current

placement for not more than 10 school

days, and the ability of school personnel

to place a child with a disability in an

interim alternative educational setting

for not more than 45 days, if the child

carries a weapon to school or a school

function or knowingly possesses or uses

illegal drugs or sells or solicits the sale

of a controlled substance at school or a

school function. These provisions

would be incorporated in paragraph (a)

of this proposed section.

Section 615(k)(1) also requires an IEP

meeting to review a child’s behavioral

intervention plan or to develop an

assessment plan to address that

behavior. The Secretary proposes to

adopt these requirements in paragraph

(b) with the following clarifications: (1)

The statute’s provision that the IEP team

meeting occur within 10 days of taking

a disciplinary action would specify that

this meeting occur within 10 business

days of the disciplinary action rather

than 10 calendar days; and (2) if the

child does not have a behavioral

intervention plan, the purpose of the

IEP meeting is to develop an assessment

plan and appropriate behavioral

interventions to address that behavior.

The Secretary believes that the business

day interpretation would allow school

personnel an adequate amount of time

to convene the meeting, while ensuring

that it occur within the window of time

during which a child may be removed

from the regular placement under

proposed § 300.520(a)(1). The Secretary

believes that the purpose of the IEP

meeting should be not just development

of an assessment plan, but also

development of appropriate behavioral

interventions so that some behavioral

interventions can be instituted without

delay. The Secretary also proposes to

specify, in paragraph (c), that if a child

with a disability is removed from his or

her current educational placement for

10 school days or less in a given school

year, and no further removal or

disciplinary action is contemplated, the

IEP team review of the child’s

behavioral interventions, or need for

them, need not be conducted. In light of

the legislative history of the IDEA

Amendments of 1997, the Secretary
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does not believe that these procedures

were contemplated if children with

disabilities would only be out of their

regular educational placements for short

periods of time in a given school year;

that is, for less than 10 school days in

a school year.

Paragraph (d) of proposed § 300.520

would incorporate the statutory

definitions of ‘‘controlled substance,’’

‘‘illegal drug,’’ and ‘‘weapon’’ from

section 615(k)(10) (A), (B), and (D) of the

Act. A note following this section would

explain the Department’s longstanding

interpretation that removing a child

from his or her current educational

placement for no more than 10 school

days does not constitute a change in

placement under the Part B regulations.

However, a series of short-term

suspensions totaling more than 10 days

could amount to a change of placement

based on the circumstances of the

individual case. A second note

following this section would encourage

public agencies whenever removing a

child with disabilities from the regular

placement to review as soon as possible

the circumstances surrounding the

child’s removal and consider whether

the child was receiving services in

accordance with the child’s IEP and

whether the child’s behavior could be

addressed through minor classroom or

program adjustments or whether the

child’s IEP team should be reconvened

to address changes in that document.

Proposed § 300.521 reflects the

provisions of section 615(k)(2) of the

Act regarding the authority of a hearing

officer to place a child with a disability

in an interim alternative educational

setting for not more than 45 days if the

hearing officer determines that the

public agency has demonstrated by

substantial evidence that maintaining

the child in the child’s current

educational placement is likely to result

in injury to the child or to others, and

considers the appropriateness of the

child’s current placement, whether the

agency has made reasonable efforts to

minimize the risk of harm, including the

use of supplementary aids and services,

and then determines that the interim

alternative educational setting meets

certain requirements. The Secretary is

proposing to clarify how this

determination is made by specifying

that the determination is made by a

hearing officer in an expedited due

process hearing. The Secretary believes

that a due process hearing was

contemplated by Congress in view of the

requirement that the agency

demonstrate the likely risk of harm by

‘‘substantial evidence’’, which is

defined at section 615(k)(10) as beyond

a preponderance of the evidence.

Paragraph (e) of this section would

include the statutory definition of this

term.

Proposed § 300.522 would incorporate

the section 615(k)(3) requirements that

the alternative educational setting be

determined by the IEP team and that it

be selected so as to enable the child to

continue to participate in the general

curriculum, although in another setting,

and to continue to receive those services

and modifications, including those

described in the child’s current IEP, that

will enable the child to meet the goals

set out in that IEP, and include services

and modifications designed to address

the behavior, so that it does not recur.

This statutory language would be

interpreted only as necessary to make

clear that, consistent with proposed

§§ 300.520 and 300.121, these

requirements would have to be met if a

child is removed from his or her current

educational placement for more than 10

school days in a school year.

Proposed § 300.523 would reflect the

provisions of section 615(k)(4)

concerning when and how a

manifestation determination review is

conducted with the following

modifications: (1) a paragraph (b) would

include the Secretary’s proposal that if

a child with disabilities is removed from

the child’s current educational

placement for 10 school days or less in

a given school year, and no further

disciplinary action is contemplated, the

manifestation review need not be

conducted; (2) a paragraph (e) would

clarify that if the IEP team determines

that any of the standards described in

the statute are not met, the team must

consider the child’s behavior to be a

manifestation of the child’s disability;

and (3) a paragraph (f) would make clear

that the manifestation review may be

conducted at the same meeting in which

the behavioral review of proposed

§ 300.520(b) is done. The interpretation

in paragraph (e) on how the

manifestation determination is made,

using on the standards described in the

statute, is based on the explanation of

this decision process in the

congressional committee reports. A note

following this section would quote the

language of the House Committee

Report on how the manifestation

determination is made. A second note

would explain that if the decision is that

the behavior is a manifestation of the

child’s disability, the LEA must take

steps to remedy any deficiencies found

during that review in the child’s IEP or

placement or in their implementation.

Often these steps will enable a child

whose behavior is a manifestation of his

or her disability to return to the child’s

current educational placement before

the expiration of the 45-day period.

Proposed § 300.524 (a) and (b) would

reflect the provisions of section

615(k)(5) regarding behavior that is not

a manifestation of a child’s disability.

Proposed paragraph (c) would clarify

that the requirements of the ‘‘pendency’’

provision apply if a parent requests a

hearing to appeal a decision that a

child’s behavior is not a manifestation

of the child’s disability. Section 615(j) of

the Act provides that the only

exceptions to the ‘‘pendency’’ rule are

those specified in section 615(k)(7) of

the Act, which concerns placement

during parent appeals of 45-day interim

alternative educational placements. A

note following this section would

further explain this issue.

Section 504 of the Rehabilitation Act

of 1973 prohibits discrimination on the

basis of disability, including

disciplining children with disabilities

for behavior that is a manifestation of

their disability. For example,

disciplining a child with a seizure

disorder for behavior that results from

that disability would violate Section

504. The Secretary invites comment on

whether further clarification of this

point should be provided in these

regulations.

Proposed § 300.525 would reflect the

requirements of section 615(k)(6)

regarding parent appeals of

manifestation determinations or any

decision regarding placement, including

the requirement for an expedited

hearing, and the standards used by the

hearing officer in reviewing these

decisions.

Proposed § 300.526 would adopt the

requirements of section 615(k)(7)

involving placement if a parent requests

a hearing to challenge the interim

alternative educational setting or the

manifestation determination, including

the requirement that the child remain in

the interim alternative educational

setting until the decision of the hearing

officer or the expiration of the 45-day

period, whichever comes first, the

requirement that an LEA may request an

expedited due process hearing to seek to

demonstrate to the hearing officer that it

would be dangerous to return the child

to his of her current educational

placement, and the standards that the

hearing officer uses in reaching a

decision. Proposed paragraph (c)(3)

would clarify that these placements

would be for a duration of not more

than 45 days, as the 45-day limit is one

of the standards in section 615(k)(2)

referred to in section 615(k)(7)(C). A

note following this section would

explain that if the LEA maintains that

the child is still dangerous at the
55048 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

expiration of the 45 days and the issue

has not been resolved through due

process, the LEA could seek a

subsequent expedited hearing on the

issue of dangerousness.

Proposed § 300.527 would incorporate

the statutory requirements of section

615(k)(8) regarding the application of

these rules to children not yet

determined eligible for special

education and related services, with

certain clarifications. Paragraph (b)(1)

would clarify that oral communication

from the child’s parents would

constitute a basis for knowledge only if

the parent is illiterate in English or has

a disability that prevents a written

statement. Proposed paragraphs (c)(2)(ii)

and (iii) would clarify that if the parents

have requested an evaluation, the child

remains in the educational placement

determined by school authorities until

the evaluation is completed, and that if

the result of the evaluation is that the

child is a child with a disability, the

agency must provide special education

and related services in accordance with

the provisions of Part B, including the

requirements of proposed §§ 300.520–

300.529 and section 612(a)(1)(A) of the

Act.

In proposed § 300.528, the Secretary

proposes to specify what an expedited

due process hearing must entail,

including time frames and hearing

procedures, the qualifications of hearing

officers, and appeal rights. These

provisions are based on the Secretary’s

belief that all expedited hearings under

these discipline procedures should

result in decisions within a very short

period of time in order to protect the

interests of both schools and children

with disabilities, and that a 10-businessday limit would allow these hearings to

result in decisions before the expiration

of a potential 10-school-day removal of

a child from the regular placement. The

Secretary believes that requiring that

due process hearing officers under these

procedures meet the same requirements

that apply to hearing officers under

other due process procedures under the

Act and that the hearings meet the same

basic standards that apply to other due

process hearings will ensure that these

proceeding meet basic standards of due

process, and are perceived as fair, while

allowing some flexibility by allowing

States to adjust their own procedural

rules to accommodate these very swift

hearings.

Proposed § 300.529 incorporates the

provisions of section 615(k)(9) of the

Act regarding reporting crimes

committed by a child with a disability

to appropriate authorities and

transmitting copies of the special

education and disciplinary records of

the child to the authorities to whom the

agency reports the crime.

Procedures for Evaluation and

Determinations of Eligibility

Proposed § 300.530 would reflect

section 612(a)(7), which gives general

responsibility to the SEA to ensure that

each public agency establishes and

implements evaluation procedures that

meet the requirements of the Act.

Proposed § 300.531 incorporates the

requirement of section 614(a)(1) that

each public agency conduct a full and

complete initial evaluation before

initiating the provision of special

education and related services to a child

with a disability. Proposed § 300.532

incorporates the requirements of section

614(b) (2) and (3) and section

612(a)(6)(B) with the requirements of

current regulations that a variety of

assessment tools and strategies must be

used to gather information about the

child; that evaluation materials include

those tailored to assess specific areas of

educational need and not merely

designed to provide a single general

intelligence quotient; and that tests

must be selected and administered so as

to best insure that the test results

accurately reflect the child’s aptitude or

achievement level or whatever the test

purports to measure, rather than the

child’s impaired sensory, manual, or

speaking skills. Three notes following

proposed § 300.532 would explain how

a public agency meets its obligation to

properly evaluate a child who is limited

English proficient and suspected of

having a disability.

Proposed § 300.533 would reflect the

provisions of section 614(c) (1), (2), and

(4) of the Act regarding review of

existing evaluation data and

determinations of whether more data is

needed. Proposed § 300.534 would

incorporate the requirements of section

614 (b) (4) and (5) and (c)(5) of the Act

regarding determinations of eligibility.

Proposed § 300.535 would maintain

from the current regulations the

procedures for determining eligibility.

Proposed § 300.536 would reflect the

statutory provisions of section 614(a)(2)

concerning reevaluation and the

existing regulatory provision regarding

review of IEPs, with minor

modifications.

Additional Procedures for Evaluating

Children with Specific Learning

Disabilities

Proposed § 300.540 would be changed

from the current regulation only as

necessary to reflect the new

requirements as described, concerning

the composition of the teams of

individuals who make determinations

about eligibility. Proposed §§ 300.541

and 300.542, regarding the criteria for

determining the existence of a specific

learning disability and observation of a

child suspected of having a specific

learning disability, would be unchanged

from current regulations. Proposed

§ 300.543, concerning the written report,

would be changed from current

regulations only to make clear that for

a child suspected of having a specific

learning disability, this report satisfies

the requirement for documentation of

the determination of eligibility as

described with reference to proposed

§ 300.534(a).

The Secretary intends to review

carefully over the next several years the

additional procedures for evaluating

children suspected of having a specific

learning disability contained in

proposed §§ 300.540–300.543 in light of

research, expert opinion and practical

knowledge of identifying children with

a specific learning disability with the

purpose of considering whether

legislative proposals should be

advanced for revising these procedures.

Least Restrictive Environment

Proposed §§ 300.550–300.556 are

taken from current regulations, with the

exceptions noted. These provisions

interpret the statutory provision

regarding placement in the least

restrictive environment in Section

612(a)(5)(A), which is substantively the

same as prior law. A minor change to

proposed § 300.550(a) would be made to

reflect the new organization of the

statute around State eligibility

requirements, and a conforming change

to the note following proposed

§ 300.552 to update a reference to

another section of this regulation. A

note following proposed § 300.551

would be added explaining that home

instruction is generally only appropriate

for children who are medically fragile

and those who are unable to participate

with nondisabled children in any

activities. Section 300.552 from current

regulations would be revised to

incorporate the provisions of current

regulations in § 300.533(a) (3) and (4)

regarding how the placement decision is

made. A note following this section

would be added to explain that the

group of persons making the placement

decision may also serve as the child’s

IEP team, as long as all appropriate IEP

team members are included. Another

note would be added suggesting that if

IEP teams appropriately consider and

include in IEPs positive behavioral

interventions and supplementary aids

and services many children who would

otherwise be disruptive will be able to
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55049

participate in regular education

classrooms.

Confidentiality of Information

With the following exceptions,

proposed §§ 300.560–300.575 and

§ 300.577 retain the provisions of

current regulations on confidentiality of

information, with only very minor,

nonsubstantive changes. These

provisions interpret the statutory

provision regarding confidentiality in

sections 612(a)(8) and 617(c). A new

note would be added as Note 2

following proposed § 300.574

explaining the relationship between

these procedures and the new

requirements concerning transfer of

rights to students at the age of majority,

as discussed under proposed § 300.517.

A new regulation would be added

(proposed § 300.576) reflecting the

statutory authority from section 613(j) of

the Act for SEAs to require LEAs to

include in records of a child with a

disability a statement of current or

previous disciplinary action, and

transmit that statement to the same

extent that disciplinary information is

included in, and transmitted with,

records of nondisabled children,

including a description of information

relevant to the discipline. The statute

also requires that if a State adopts such

a policy and the child transfers from one

school to another, any transmission of

the child’s records must include both

the child’s current IEP and any

statement of current or previous

disciplinary action taken against the

child.

Department Procedures

Proposed §§ 300.580–300.586 largely

restate existing regulatory provisions

concerning Department procedures for

State plan disapproval as Department

procedures for determinations of State

ineligibility, in light of the restructuring

of the Act to eliminate the State plan.

Reflecting the requirement in section

612(d) of the Act, a new proposed

§ 300.580 would state that if the

Secretary determines a State is eligible

to receive a grant, the Secretary notifies

the State.

A new § 300.587 would be added to

incorporate the statutory provisions of

section 616(a) of the Act regarding

enforcement by the Department if a SEA

or LEA fails to comply with Part B of the

Act or its regulations. This section

would incorporate the types of

enforcement actions available to the

Department—withholding payments in

whole or in part, and referral to the

Department of Justice, mentioned in

section 616(a), and taking any other

enforcement action authorized by law,

such as other actions authorized under

20 U.S.C. 1234. The Secretary proposes

to regulate to clarify the type of notice

and hearing provided before

withholding and referral for

enforcement action because the type of

hearing appropriate before

announcement of an enforcement action

that itself involves an adversarial

hearing logically will be different than

the adversarial hearing before a

withholding or eligibility decision.

Proposed paragraph (e) of this section

would address enforcement in

situations in which a State has assigned

responsibility for children with

disabilities who are convicted as adults

under State law and incarcerated in

adult prisons to an agency other than

the SEA.

In proposed § 300.589, the Secretary

proposes to revise the current regulatory

provision regarding the statutory

requirement in section 612(a)(18)(C)

permitting a waiver, in whole or in part,

of the supplement, not supplant rule for

use of funds provided under Part B if

the State demonstrates by clear and

convincing evidence that all children

with disabilities in the State have FAPE

available to them, and the Secretary

concurs with the evidence provided by

the State. Section 612(a)(19)(C)(ii) now

also provides that the Secretary may

waive the new maintenance of State

financial support requirement of section

612(a)(19)(A) if the Secretary determines

that the State meets the standard

described in section 612(a)(18)(C).

Section 612(a)(19)(E) directs the

Secretary to issue proposed regulations

establishing procedures, including

objective criteria and consideration of

the results of compliance reviews of the

State conducted by the Department,

within 6 months of the enactment of the

IDEA Amendments of 1997 (or

December 4, 1997) and final regulations

on this topic within one year of

enactment (or June 4, 1998). The

Secretary proposes to implement these

requirements by providing that a State

wishing to request a waiver must

submit: (1) an assurance that FAPE is

and will remain available to all children

with disabilities in the State; (2) the

evidence that the State wishes the

Secretary to consider that details the

basis on which the State has concluded

that FAPE is available to all children

with disabilities in the State and State

procedures regarding child find,

monitoring, State complaint handling

and due process hearings; (3) a

summary of all State and Federal

monitoring reports and hearing

decisions for the prior three years that

include any finding that FAPE was not

available and evidence that FAPE is

now available to all children addressed

in those reports and decisions; and (4)

evidence that the State in reaching its

conclusion that FAPE is available to all

children with disabilities in the State

consulted with interested organizations

and parents in the State and a summary

of that input. If the Secretary determines

that the State has made a prima facie

showing that FAPE is available to all

children with disabilities in the State,

the Secretary conducts a public hearing

on whether FAPE is and will be

available to all children with disabilities

in the State. If the Secretary concludes

that the evidence clearly and

convincingly demonstrates that FAPE is

and will be available to all children

with disabilities in the State, the

Secretary provides a waiver for a oneyear period. The Secretary also proposes

that a State use these same procedures

to obtain a waiver in subsequent years.

The Secretary believes that these

procedures would appropriately allow

States to demonstrate that all children

with disabilities in the State are, and

will be, appropriately served so that a

waiver could be granted without

violating the rights of children with

disabilities.

Subpart F—State Administration

General

Proposed § 300.600 (a) through (c)

would retain, with minor

nonsubstantive changes, the provisions

of current regulations concerning SEA

responsibility for all educational

programs for children with disabilities

in the State, consistent with section

612(a)(11). Paragraph (d) of this section

would add the new provision from

section 612(a)(11)(C) of the Act which

permits the Governor (or other

authorized individual under State law),

consistent with State law, to assign to

another public agency of the State the

responsibility of 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. The note following this

section in current regulations would be

maintained.

Proposed § 300.601 would retain,

with only minor, nonsubstantive

revisions, the current regulation

specifying that Part B of the Act not be

construed to permit a State to reduce

medical and other assistance available

to children with disabilities or alter the

eligibility of a child with a disability to

receive services that are also part of

FAPE, based on the statutory provision

at section 612(e).
55050 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

Proposed § 300.602 would reflect the

new statutory cap on the amount of

funds that States can retain for

administration and other State-level

activities. Section 611(f)(1) provides that

each year the Secretary will determine

and report to each State an amount that

is 25 percent of the amount the State

received under section 611 for fiscal

year 1997 cumulatively adjusted

annually by the lesser of the percentage

increase of the State’s allocation from

the prior year’s allocation or the rate of

inflation, which will be the maximum

amount that the State can retain for

these purposes.

Use of Funds

Section 611(f)(2) specifies that a State

can use for State administration of the

Part B program, including section 619,

not more than twenty percent of the

amount that the State may retain, or

$500,000 adjusted cumulatively for

inflation, whichever is greater, and that

each outlying area can retain $35,000 for

that purpose. This provision is reflected

in proposed § 300.620.

Proposed § 300.621 would maintain

the requirements of current regulations

on the allowable uses of funds retained

by the State for State administration,

reflecting the Secretary’s interpretation

of section 611(f)(2) of the Act. The

Secretary believes that these provisions

adequately address the statutory

purpose of these funds while giving

States reasonable flexibility in how they

use these funds.

Section 611(f)(4) of the Act creates a

new category of subgrants that SEAs,

under certain circumstances, will make

to LEAs for capacity building and

improvement.

Proposed § 300.622 would reflect this

new authority, including the statutorily

prescribed purposes of these subgrants

to LEAs.

Proposed § 300.623 would describe

the amount reserved for capacitybuilding and improvement subgrants to

LEAs, consistent with the requirement

of section 611(f)(4)(B) of the Act. A note

would be added following this section

that would explain that the amount of

funds available for these capacitybuilding and improvement subgrants to

LEAs will vary year to year, and that in

each year following a year in which

these subgrants are made, these funds

become part of the required flowthrough subgrants to all LEAs.

In proposed § 300.624, the Secretary

proposes to provide clear authority for

States to establish priorities to award

capacity building and improvement

subgrants competitively or on a targeted

basis because the Secretary believes that

this flexibility is necessary to enable

States to design these subgrants to suit

State needs. A note following this

provision would recognize that the

purpose of these subgrants is to address

particular needs that are not readily

addressed through formula assistance,

and that SEAs can use these subgrants

to promote innovation, capacity

building, and systemic improvement.

State Advisory Panel

Proposed § 300.650 would retain the

provisions of current regulation

concerning establishment of State

advisory panels, consistent with section

612(a)(21)(A) of the Act. A note would

be added to follow this section making

clear that the State advisory panel

advises the State regarding the

education of all children with

disabilities in the State, including in

situations where the State has divided

State responsibility for eligible children

with disabilities who have been

convicted as adults and are incarcerated

in adult prisons.

Proposed § 300.651 would reflect the

new statutory membership requirements

for the State advisory panel, as provided

in section 612(a)(21) (B) and (C),

including a new statutory requirement

that a majority of the members of the

panel must be individuals with

disabilities or parents of children with

disabilities.

Proposed § 300.652 would reflect the

duties of the advisory panel, as

specified in section 612(a)(21)(D) of the

Act.

Proposed § 300.653 would maintain

from the current regulations the

advisory panel procedures, representing

the Secretary’s interpretation of

reasonable rules for the operations of an

advisory panel under the Act.

State Complaint Procedures

The current Part 300 regulations

establish a State complaint mechanism

that individuals, organizations, and

other interested parties can use to bring

to the SEA’s attention, for resolution,

allegations that a public agency is

violating a requirement of Part B or its

implementing regulations. The

Secretary views these State complaint

procedures as an important, less costly,

less time consuming, and less formal

alternative to due process hearings and

other dispute resolution mechanisms

through which disagreements under

Part B and its regulations may be

resolved. Proposed §§ 300.660–300.662

would retain these State complaint

procedures with the changes described.

The Secretary proposes in proposed

§ 300.660(b) to revise the current

regulation to require that States widely

disseminate to parents and others

information about the State’s complaint

procedures. The Secretary intends,

through this requirement, in

conjunction with the provision in

proposed § 300.503(b)(8) that would

require that prior written notice to

parents of children with disabilities

include a description of the State

complaint procedures and how to file a

complaint, to ensure that persons

interested in special education in a State

know that there are alternatives to

resorting to due process hearings that

can be used to resolve disputes. A new

note would be added following this

section that would explain that in

resolving an alleged denial of FAPE, an

SEA may award compensatory

education if appropriate.

Proposed § 300.661 would retain from

current regulation the minimum State

complaint procedures in current

regulations, with one exception. In this

proposed regulation the Secretary

proposes to delete the provision

regarding Secretarial review. This

change reflects a recommendation of the

Department’s Inspector General in his

report of August, 1997 on the utility and

efficiency of the Secretarial review

process under the IDEA. In that report

the Inspector General noted that in the

Secretarial review process the

Department’s limited resources for

implementation of the IDEA are being

diverted to an activity that is providing

minimal benefits to children with

disabilities or to the program. The

Secretary expects that removing the

Secretarial review provision will allow

the Department to spend more of its

time and attention on evaluating States’

systems for ensuring compliance with

program requirements, which will have

benefit for all parties interested in

special education.

Two new notes would be added

following proposed § 300.661. The first

would clarify that if a complaint is

received that raises an issue that is also

the subject of a due process hearing, or

multiple issues, some of which are also

the subject of a due process hearing, the

SEA must set aside the issues in due

process until the end of the hearing, but

resolve the remaining issues in the

complaint within the 60-day complaint

time line. The second proposed note

would explain that if an issue raised in

a complaint previously had been the

subject of a due process hearing, the

hearing decision would be binding, and

the SEA would satisfy its obligation

under these procedures by informing

the complainant that the hearing

decision is binding as to that issue. The

note would also explain that the SEA

would have to resolve an alleged failure
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55051

to implement a due process hearing

decision.

The Secretary proposes in proposed

§ 300.662 to maintain the provisions of

current regulation regarding filing a

complaint, and add a new paragraph (c)

that would specify that complaints must

be received within one year of the

alleged violation, unless a longer period

is reasonable because the violation is

continuing or the complainant is

requesting compensatory services for a

violation that occurred not more than

three years prior to the date the

complaint is received by the SEA. The

Secretary believes that SEAs should not

be required in the future to use their

resources to resolve complaints that do

not involve issues that are relevant to

the current operation of the State’s

special education program and that do

not involve the possibility of

educational remedy for particular

children. A note following this section

would be added to explain that SEAs

must resolve complaints that meet the

complaint requirements, even if filed by

an organization or individual from

another State.

Subpart G—Allocation of Funds;

Reports

Allocations

Proposed § 300.700 would adopt the

special definition of ‘‘State’’ from

section 611(h)(2) of the Act with regard

to distribution of funds provided under

section 611 of the Act.

Proposed § 300.701 would describe

the purpose of the grants under section

611 of the Act and the maximum

amount of those grants, as provided in

section 611(a) of the Act.

Proposed § 300.702 would incorporate

the statutory definition of ‘‘average perpupil expenditure in public elementary

and secondary schools in the United

States’’ from section 611(h)(1) of the

Act.

The IDEA Amendments of 1997 create

a new formula for distribution of funds

under section 611 of the Act that is first

applied when the appropriation for

section 611 of the Act is more than a

certain trigger amount—$4,924,672,200.

Until that time, funds under section 611

will continue to be distributed based on

the formula under section 611 before

enactment of the IDEA Amendments of

1997, with certain minor changes

stipulated in the statute.

Proposed § 300.703(a) would

incorporate the general order of

distribution of funds, consistent with

section 611(d)(1) of the Act, which

applies to both the interim and new

formula distribution.

Proposed § 300.703(b) would

incorporate the interim formula for

distribution among States, including the

new statutory provision permitting

States to count the number of children

receiving special education and related

services as of the last Friday in October

or December 1, at the State’s discretion,

as specified in section 611(d)(2) of the

Act.

Proposed § 300.706 reflects the

section 611(e) (1) and (2) requirements

for when the permanent formula takes

effect, and calculation of the ‘‘base year’’

amount for purposes of that new

formula.

Proposed § 300.707 would include the

requirements of the new formula from

section 611(e)(3) of the Act, which

specifies that funds in excess of those

distributed to a State in the base year are

allocated 85 percent on relative

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 and 15

percent on the basis of relative

populations of children of those ages

who are living in poverty, based on the

most recent data available and

satisfactory to the Secretary.

Proposed § 300.708 would specify the

statutory floors and a cap in the size of

any State’s increased allocation, as

provided in section 611(e)(3) (B) and (C)

of the Act. The requirements of section

611(e)(4), regarding what happens if the

section 611 appropriation decreases,

would be incorporated in proposed

§ 300.709.

Proposed § 300.710 would retain,

with minor modifications, the

provisions of current regulations

regarding allocations to a State in which

a bypass is implemented for private

school children with disabilities,

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

Act.

Under section 611(g) of the Act, States

will use a mechanism for distributing

the formula subgrant funds to LEAs that

parallels the distribution among States.

This will include an interim formula,

based on the formula in the Act prior to

the enactment of the IDEA Amendments

of 1997, and, after the 611 appropriation

is greater than $4,924,674,200, a new

permanent procedure that, like the one

at the State level, allocates new funds 85

percent based on the relative numbers of

children enrolled in public and private

elementary and secondary schools in

the agency’s jurisdiction, and 15 percent

in accordance with the relative numbers

of children living in poverty, as

determined by the SEA.

Proposed § 300.711 would reflect the

requirement of section 611(g)(1) that

funds not retained at the State level for

State administration and other State

purposes, or distributed to LEAs as

capacity building and improvement

subgrants, must be distributed to LEAs

and State agencies under the statutory

formula that applies in that year.

Proposed § 300.712 would set forth the

statutory interim formula and

permanent procedure for distribution of

funds to LEAs and State agencies,

reflecting section 611(g)(2) of the Act. A

note following this section would

explain that States should use the best

data that is available to them on

enrollment in public and private

schools, and that States have discretion

in determining what data to use

regarding children living in poverty,

and suggests some options for poverty

data. Proposed § 300.713 would reflect

the statutory requirements of section

611(g)(3) concerning treatment of former

Chapter 1 State agencies in the

distribution of funds. The Secretary

proposes minor adjustments to make the

count date for children in these agencies

compatible with the count date used by

the State for LEA reporting because

requiring a different count date in a

State that chooses to count in LEAs on

the last Friday in October could result

in double counting.

Proposed § 300.714 would retain with

minor nonsubstantive changes the

current regulatory provision concerning

reallocation of LEA funds to other LEAs.

This provision reflects the requirements

of section 611(g)(4) of the Act.

Proposed §§ 300.715 and 300.716

reflect the statutory provisions of

sections 611(c) and 611(i) (1) (A) and (B)

and (3) regarding payments to the

Secretary of the Interior for the

education of Indian children and for

Indian children aged 3 through 5. The

new statutory provisions concerning

grants to the outlying areas and freely

associated States of section 611(b)

would be incorporated in proposed

§§ 300.717 through 300.722.

Reports

Proposed §§ 300.750 through 300.754

would retain, from the current

regulation, the provisions concerning

report requirements for the annual

report of children served, the

information required in the report,

certification, criteria for counting

children, and other responsibilities of

the SEA regarding these reports. These

provisions are consistent with the

statutory requirement in section 611(d)

that directs that funds appropriated for

section 611 of the Act continue to be

allocated based on a child count as in

effect before enactment of the IDEA

Amendments of 1997 for some time into

the future. Minor changes would be
55052 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

made to reflect the fact that a child

count for distribution of funds will not

be required under the permanent

funding formula, and to reflect the new

State option on when the count will be

conducted. A reference to the old

Chapter 1 handicapped program would

be eliminated, as that program no longer

exists.

Proposed § 300.755 would incorporate

the new statutory requirements

regarding State collection and

examination of data to determine if

significant disproportionality based on

race is occurring in the State regarding

the identification and placement of

children with disabilities.

Proposed § 300.756 would reflect new

rules specified in section 605 of the Act

regarding use of funds provided under

Part B of the Act for the acquisition of

equipment or construction.

2. Part 301—Preschool Grants for

Children With Disabilities

Subpart A—General

Proposed § 301.1 in the proposed

regulations would conform the

regulatory purpose for the Preschool

Grants for Children with Disabilities

Program with the provisions of section

619(a) of the Act, to provide grants to

States to assist them in providing

special education and related services to

children with disabilities aged three

through five years, and, at a State’s

discretion, to two-year-old children

with disabilities who will turn three

during the school year.

Proposed § 301.4 would list

regulations found in parts other than

Part 301 that also apply to the Preschool

Grants program. The proposed

regulations would be consistent with

the existing regulations, with three

exceptions. First, the proposed

regulations would specify that the

provisions of 34 CFR 76.125–76.137 do

not apply to the program, consistent

with the requirements of section

611(b)(4) providing that consolidation of

grants is no longer possible for the

outlying areas. Second, the proposed

regulations would specify that the

requirements of 34 CFR 76.650–76.662

do not apply, in light of the changes

proposed under Part 300 regarding the

provision of services to children placed

by their parents in private schools.

Third, the reference to Part 86 would be

removed, as that part no longer applies

to SEAs and LEAs.

Proposed § 301.5 would specify the

definitions that apply to certain terms

used in Part 301. The section would be

unchanged from the existing

regulations, with the following

exceptions: Consistent with the IDEA

Amendments of 1997, proposed

§ 301.5(a) would replace the term

‘‘intermediate educational unit’’ with

‘‘educational service agency,’’ and

proposed § 301.5(c) would add a

definition of ‘‘State’’ and delete

definitions of ‘‘comprehensive service

delivery system’’ and ‘‘excess

appropriation.’’

Subpart B—State Eligibility for a Grant

Proposed § 301.10 would be

conformed with section 619(b) of the

Act, and provide that a State is eligible

to receive a grant under the program if

the State is eligible under 34 CFR Part

300 and the State demonstrates to the

satisfaction of the Secretary that it has

in effect policies and procedures that

assure the provision of FAPE to all

children with disabilities aged three

through five years in accordance with

the requirements of 34 CFR Part 300,

and for any two-year-old children who

are provided services by the State or by

an LEA. Proposed § 301.12 would

restate the current regulation concerning

sanctions if a State does not make FAPE

available to all preschool children with

disabilities to conform to the changes

made by the IDEA Amendments of 1997

and other law.

Subpart C—Allocation of Funds to

States

Proposed § 301.20 would be

conformed with section 619(c)(1) of the

Act, and provide that, after reserving

funds for studies and evaluations under

section 674(e) of the Act, the Secretary

will allocate the remaining amount

among the States in accordance with

§§ 301.21–301.23.

Proposed § 301.21 would incorporate

the requirements of section 619(c)(2)(A)

of the Act which sets forth the basis on

which, subject to certain limitations

(described in this NPRM under

§ 301.22), allocations to States under the

Preschool Grants program would be

calculated if the amount available to

States were equal to or greater than the

amount allocated to States for the

preceding fiscal year. Consistent with

this statutory provision, proposed

§ 301.21(a) would provide that, except

as provided in § 301.22, the Secretary

will first allocate to each State the

amount it received for fiscal year 1997,

and then allocate 85 percent of any

remaining funds to States on the basis

of their relative populations of children

aged 3 through 5 and allocate 15 percent

of those remaining funds to States on

the basis of their relative populations of

all children aged 3 through 5 who are

living in poverty. Also reflecting the

statutory requirements, proposed

§ 301.21(b) would further provide that

in making these calculations, the

Secretary will use the most recent

population data, including data on

children living in poverty, that are

available and satisfactory to the

Secretary.

Consistent with section 619(c)(2)(B) of

the Act, proposed § 301.22 (a) and (b)

would set forth floors and caps for

calculating the allocations to States

under the Preschool Grants program in

fiscal years in which the amount

available to States under § 301.20 were

equal to or greater than the amount

allocated to States for the preceding

fiscal year. Proposed § 301.22(c) would

also be conformed to section

619(c)(2)(C) of the Act and provide for

ratable reductions if available funds are

insufficient to make allocations to the

States consistent with the provisions of

§ 301.22 (a) and (b).

Proposed § 301.23 would, consistent

with the requirements of section

619(c)(3) of the Act, set forth the basis

on which allocations to States under the

Preschool Grants program would be

calculated if the amount available to

States under § 301.20 were less than the

amount allocated to States for the

preceding fiscal year. Proposed

§ 301.23(a) would provide that if the

amount available for allocations were

greater than the amount allocated to the

States for fiscal year 1997, each State

would be allocated the sum of the

amount it received for fiscal year 1997

plus an amount that bears the same

relation to any remaining funds as the

increase the State received for the

preceding fiscal year over fiscal year

1997 bears to the total of all of those

increases for all States. Proposed

§ 301.23(b) would provide that if the

amount available for allocations is equal

to or less than the amount allocated to

the States for fiscal year 1997, each State

would be allocated the amount it

received for that year, ratably reduced,

if necessary.

Consistent with section 619(d) of the

Act, proposed § 301.24 would provide

that for each fiscal year a State may

retain for administration and other

State-level activities, in accordance with

§§ 301.25 and 301.26, not more, as

calculated by the Secretary, than 25

percent of the amount the State received

under the 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
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55053

Consumers, published by the Bureau of

Labor Statistics of the Department of

Labor.

Consistent with section 619(e) of the

Act, proposed § 301.25 would provide

that a State may use not more than 20

percent of the maximum amount it may

retain under § 301.24 for any fiscal year

for (a) 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); or for the

administration of Part C of the Act, or

both, if the SEA is the lead agency for

the State under that part.

Consistent with section 619(f) of the

Act, proposed § 301.26 would provide

that a State must use any funds that it

retains under § 301.24 and does not use

for administration under § 301.25 for

any of the following: (1) 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 3 or older than

5 as long as those services also benefit

children with disabilities aged 3

through 5; (2) direct services for

children eligible for services under

section 619 of the Act; (3) developing a

State improvement plan under subpart 1

of part D of the Act; (4) activities at the

State and local levels to meet the

performance goals established by the

State under section 612(a)(16) of the Act

and to support implementation of the

State improvement plan under subpart 1

of part D of the Act if the State receives

funds under that subpart; or (5)

supplementing 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 to

exceed one percent of the amount

received by the State under section 619

of the Act for a fiscal year. A note

following this section would provide an

example of an authorized use of these

funds.

Subpart D—Allocation of Funds to

Local Educational Agencies

Proposed § 301.30 would provide that

a State must distribute any funds that it

does not retain under § 301.24 to LEAs

that have established their eligibility

under section 613 of the Act, consistent

with the requirements of section

619(g)(1) of the Act.

Proposed § 301.31 would, in

conformity with section 619(g)(1), set

forth the basis on which a State must

distribute the funds described in

§ 301.30 to LEAs that have established

their eligibility under section 613 of the

Act. Proposed § 301.31(a) would require

that the State first award to each of

those agencies the amount it 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

then in effect. Proposed § 301.31(b)

would further require that, after making

the base payment allocations required

by § 301.28(a), the State allocate 85

percent of any remaining funds to each

LEA on the basis of the relative numbers

of children enrolled in public and

private elementary and secondary

schools within the agency’s jurisdiction,

and 15 percent of those remaining funds

in accordance with their relative

numbers of children living in poverty,

as determined by the SEA. A note

following this section would explain

that States should use the best data that

is available to them on enrollment in

public and private schools, and that

States have discretion in determining

what data to use regarding children

living in poverty, and proposes some

options for poverty data.

Proposed § 301.32(a) would, in

conformity with section 619(g)(2) of the

Act, provide that: (a) If an SEA

determines that an LEA is adequately

providing FAPE to all children with

disabilities aged 3 through 5 residing in

the area served by that agency with

State and local funds, the SEA may

reallocate any portion of the funds

under section 619 of the Act that the

LEA does not need in order to provide

FAPE to other LEAs that are not

adequately providing special education

and related services to all children with

disabilities aged 3 through 5 residing in

the areas they serve.

Proposed § 301.32(b) would provide

that if a State provides services to

preschool children with disabilities

because some or all LEAs are unable or

unwilling to provide appropriate

programs, the SEA may use payments

that would have been available to those

LEAs to provide special education and

related services to children with

disabilities aged 3 through 5 years, and

to two-year-old children with

disabilities, residing in the areas served

by those LEAs and ESAs.

3. Part 303—Early Intervention

Program for Infants and Toddlers With

Disabilities

A few changes would be made to the

Part 303 regulations to conform to

similar changes proposed for the Part

300 regulations. As indicated, other

changes to incorporate statutory changes

made by the IDEA Amendments of 1997

with regard to the Early Intervention

Program for Infants and Toddlers with

Disabilities will be made at a later date

as technical changes.

In § 303.18, the Secretary proposes to

add a new paragraph (b) specifying that

a State may provide that a foster parent

qualifies as a parent under Part 303 if

certain specified standards are met. The

note following this section would be

revised, consistent with the change to

the regulation. These changes would be

consistent with changes proposed in

proposed § 300.19.

In § 303.403, the Secretary proposes to

add a new subparagraph (b)(4) to

provide that prior notice to parents

under this part includes information

about the State complaint procedures

required by §§ 303.510—303.512,

including how to file a complaint and

the timelines under the State complaint

procedures. This change would conform

to proposed § 300.503, concerning the

content of prior notice under Part 300.

The Secretary believes that if parents

know about these procedures, they may

use them as an alternative to the more

costly and formal mechanisms of due

process and mediation.

In § 303.510, the Secretary proposes to

amend paragraph (b) to specify that the

lead agency’s State complaint

procedures must include procedures for

widely disseminating to parents and

others the State’s complaint procedures.

The Secretary intends, through this

requirement and the change proposed in

§ 303.403, to insure that persons

interested in early intervention services

for infants and toddlers with disabilities

in the State know that there are

alternatives to resorting to due process

hearings that can be used to resolve

disputes. A note would be added

following this section to explain that in

resolving a complaint alleging a failure

to provide services in accordance with

an IFSP, a lead agency may award

compensatory services as a remedy.

These changes would be consistent with

changes proposed to § 300.660.

In § 303.511, the Secretary proposes to

add a new paragraph (c) that would

specify that complaints must be

received by the public agency within

one year of the alleged violation, unless

a longer period is reasonable because

the violation is continuing or the

complainant is requesting compensatory

services for a violation that occurred not

more than three years prior to the date

the complaint is received. The Secretary

believes that public agencies should not

be required in the future to use their

resources to resolve complaints that do

not involve issues that are relevant to

the current operation of the State’s

program and that do not involve the

possibility of remedy for particular
55054 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

children. A note would be added

following this section to explain that the

lead agency must resolve any complaint

that meets the requirements of this

section, even if it has been filed by an

organization or individual from another

State. These changes would conform to

changes in proposed § 300.662.

In § 303.512, the Secretary proposes to

delete the provision from the current

regulation regarding Secretarial review.

This change reflects a recommendation

of the Department’s Inspector General in

his report of August 1997 on the utility

and efficiency of the Secretarial review

process under the IDEA. In that report,

the Inspector General noted that the

Secretarial review process is diverting

the Department’s limited resources to an

activity that is providing minimal

benefits to children with disabilities and

the program. The Secretary expects that

removing the Secretarial review

provision will allow the Department to

spend more of its time and attention on

evaluating States’ systems for ensuring

compliance with program requirements,

which will have benefit for all parties

interested in these programs. Two notes

would be added following this section.

Note 1 would clarify that if a complaint

raises an issue that is also the subject of

a due process hearing, or multiple

issues, some of which are also the

subject of a due process hearing, the

State must set aside the issues in due

process until the end of the hearing, but

resolve the remaining issues in the

complaint within the 60-day complaint

timeline. Note 2 would explain that if

an issue raised in a complaint

previously had been the subject of a due

process hearing, the hearing decision

would be binding, and the State would

satisfy its obligation under these

procedures by informing the

complainant that the hearing decision is

binding as to that issue. The note would

also explain that the State would have

to resolve an alleged failure to

implement a due process hearing

decision. These changes would conform

to changes in proposed § 300.661.

In § 303.520, a new paragraph (d)

would be added that would provide that

a lead agency may not require parents,

if they would incur a financial cost, to

use private insurance proceeds to pay

for the services that must be provided to

an eligible child under this part. The

Department recognizes the important

policy underlying this program that

requires States to use all available

sources of funding for providing

services. Therefore, this new provision

would permit States to require families

to use private insurance if the families

would incur no financial cost. Proposed

paragraph (d) would incorporate the

Department’s interpretation that

requiring parents to use their private

insurance if that would result in a

financial cost to the family is not

compatible with the statutory

requirement that early intervention

services be at no cost except where

Federal or State law provides for a

system of payments by families,

including a schedule of sliding fees. It

would also identify what is meant by

the term ‘‘financial cost.’’ A note would

be added following this section to

explain how this applies if families are

covered by both private insurance and

Medicaid.

As noted in the section of this

preamble discussing the Part 300

regulations, the Secretary believes that

the same basic principle would be

equally applicable to parents who are

eligible for public insurance, but that

there is no current need to regulate on

the public insurance issue because there

is no risk of financial loss to parents

under current public insurance

programs such as Medicaid. The

Secretary invites comment on whether a

policy on public insurance similar to

the proposed section on private

insurance should be added to the final

regulation. A second note would be

added to explain that if a State cannot

get parent consent to use public or

private insurance for a service, the

agency may use funds under this part to

pay for that service. In addition, the

note would explain that to avoid

financial cost to parents who otherwise

would consent to the use of private

insurance, the lead agency may use

funds under this part to pay the costs of

accessing the insurance, such as

deductible or co-pay amounts.

In addition, the Secretary proposes to

add a new paragraph (e) to specify that

proceeds from public or private

insurance may not be treated as program

income for purposes of 34 CFR § 80.25.

That section imposes limitations on

how program income can be spent that

could lead to States returning

reimbursements from public and private

insurance to the Federal government or

requiring those funds be used under this

part, which could discourage States

from using all the resources available in

paying for services under this part.

Given the current small percentage that

Federal funds under this part are of total

funding for this program, and the fact

that eligible infants and toddlers with

disabilities are guaranteed services

under this part, the Secretary believes

that States should be given some

flexibility in how they use and account

for funds received as reimbursements

from other sources. A note would be

added after this section explaining the

consequences, under the

nonsupplanting requirement, of various

State choices in accounting for these

funds. These changes would be similar

to provisions in proposed § 300.142.

Goals 2000: Educate America Act

The Goals 2000: Educate America Act

(Goals 2000) focuses the Nation’s

education reform efforts on the eight

National Education Goals and provides

a framework for meeting them. Goals

2000 promotes new partnerships to

strengthen schools and expands the

Department’s capacities for helping

communities to exchange ideas and

obtain information needed to achieve

the goals.

These proposed regulations would

address the following National

Education Goals:

• All children in America will start

school ready to learn.

• The high school graduation rate

will increase to at least 90 percent.

• All students will leave grades 4, 8,

and 12 having demonstrated

competency in challenging subject

matter, including English, mathematics,

science, foreign languages, civics and

government, economics, arts, history,

and geography; and every school in

America will ensure that all students

learn to use their minds well, so they

may be prepared for responsible

citizenship, further learning, and

productive employment in our Nation’s

modern economy.

• United States students will be first

in the world in mathematics and science

achievement.

• Every adult American will be

literate and will possess the knowledge

and skills necessary to compete in a

global economy and exercise the rights

and responsibilities of citizenship.

• Every school in the United States

will be free of drugs, violence, and the

unauthorized presence of firearms and

alcohol and will offer a disciplined

environment conducive to learning.

• The Nation’s teaching force will

have access to programs for the

continued improvement of their

professional skills and the opportunity

to acquire the knowledge and skills

needed to instruct and prepare all

American students for the next century.

• Every school will promote

partnerships that will increase parental

involvement and participation in

promoting the social, emotional, and

academic growth of children.

Executive Order 12866

1. Potential Costs and Benefits

These proposed regulations have been

reviewed in accordance with Executive
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55055

Order 12866. Under the terms of the

order the Secretary has assessed the

potential costs and benefits of this

regulatory action.

These proposed regulations

implement changes made to the

Individuals with Disabilities Education

Act by the IDEA Amendments of 1997

and make other changes determined by

the Secretary as necessary for

administering this program effectively

and efficiently.

The IDEA Amendments of 1997 made

a number of significant changes to the

law. While retaining the basic rights and

protections that have been in the law

since 1975, the amendments

strengthened the focus of the law on

improving results for children with

disabilities. The amendments

accomplished this through changes that

promote the early identification of and

provision of services to children with

disabilities, the development of

individualized education programs that

enhance the participation of children

with disabilities in the general

curriculum, the education of children

with disabilities with nondisabled

children, higher expectations for

children with disabilities and

accountability for their educational

results, the involvement of parents in

their children’s education, and reducing

unnecessary paperwork and other

burdens to better direct resources to

improved teaching and learning.

All of these objectives are reflected in

the proposed regulations, which largely

reflect the changes to the statute made

by IDEA Amendments of 1997.

In assessing the potential costs and

benefits—both quantitative and

qualitative—of these proposed

regulations, the Secretary has

determined that the benefits of the

proposed regulations justify the costs.

The Secretary has also determined

that this regulatory action does not

unduly interfere with State, local, and

tribal governments in the exercise of

their governmental functions.

Burdens specifically associated with

information collection requirements are

identified and explained elsewhere in

this preamble under the heading

Paperwork Reduction Act of 1995.

To assist the Department in

complying with the specific

requirements of Executive Order 12866,

the Secretary invites comment on

whether there may be further

opportunities to reduce any potential

costs or increase potential benefits

resulting from these proposed

regulations without impeding the

effective and efficient administration of

the program.

This is a significant regulatory action

under section 3(f)(1) of Executive Order

12866, and an economic analysis was

conducted consistent with section

6(a)(3)(C) of the Executive Order. Due to

the lack of data, the Secretary

particularly request public comments to

assist in determining whether these

regulations are economically significant

under the Executive Order.

Summary of Potential Benefits and

Costs

Benefits and Costs 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 IDEA

Amendments of 1997 that are

incorporated into the IDEA regulations.

Based on this analysis, the Secretary has

concluded that the statutory changes

included in this regulation will not, in

total, impose significant costs in any

one year, and may result in savings to

State and local educational agencies. An

analysis of specific provisions follows:

Participation in Assessments

Proposed § 300.138 incorporates

statutory requirements relating to the

inclusion of children with disabilities in

general State and district-wide

assessments and the conduct of

alternate assessments for children who

cannot be appropriately included in

general assessments.

Although children with disabilities

have not been routinely included in

State and district-wide assessments, the

requirement to include children with

disabilities in assessment programs in

which they can be appropriately

included, with or without

accommodations, does not constitute a

change in Federal law. Because the

Secretary regards this statutory change

as a clarification, not a change, in the

law, no cost impact is assigned to this

requirement, which is incorporated in

§ 300.138(a) requiring the participation

of children with disabilities in general

assessments.

However, States were not previously

required to conduct alternate

assessments for children who could not

participate in the general assessments.

The statutory requirement to develop

and conduct alternate assessments

beginning July 1, 2000, therefore,

imposes a new cost for States and

districts.

The impact of this change will

depend on the extent to which States

and districts administer general

assessments, the number of children

who cannot appropriately participate in

those assessments, the cost of

developing and administering alternate

assessments, and the extent to which

children with disabilities are already

participating in alternate assessments.

In analyzing the impact of this

requirement, the Secretary assumes that

alternate tests would be administered to

children with disabilities on roughly the

same schedule as general assessments.

This schedule will vary considerably

from State to State and within States,

depending on their assessment policy.

In most States, this kind of testing does

not begin before the third grade. In

many States and districts, general

assessments are not administered to

children in all grades, but rather at key

transition points (typically grades 4, 8,

and 11).

The extent to which States and

districts will need to provide for

alternate assessments will also vary

depending on how the general

assessments are structured. Based on the

experience of States that have

implemented alternate assessments for

children with disabilities, the Secretary

estimates that about one to two percent

of the children in any age cohort will be

taking alternate assessments.

Based on this information, the

Secretary predicts that about 18 to 36

million of the children who are

expected to be enrolled in public

schools in school year 2000–2001 will

be candidates for general assessments.

Of these, the Secretary estimates that

approximately 200,000 to 700,000 will

be children with disabilities who may

require alternate assessments.

The costs of developing and

administering these assessments are also

difficult to gauge. In its report Educating

One and All, the National Research

Council states that the estimated costs of

performance-based assessments

programs range from less than $2 per

child to over $100 per student tested.

The State of Maryland has reported

start-up costs of $191 per child for

testing a child with a disability and $31

per child for the ongoing costs of

administering an alternate assessment.

The cost impact of requiring alternate

assessments will be reduced to the

extent that children with disabilities are

already participating in alternate

assessments. Many children with

disabilities are already being assessed

outside the regular assessment program

in order to determine their progress in

meeting the objectives in their IEPs. In

many cases, these assessments might be

adequate to meet the new statutory

requirement.

Based on all of this information, the

Secretary has concluded that the cost

impact of this statutory change is not

likely to be significant, and will be
55056 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

justified by the benefits of including all

children in accountability systems.

Incidental Benefits

The change made by section 613(a)(4)

of the IDEA, incorporated in proposed

§ 300.235, generates savings by reducing

the time that would have been spent by

special education personnel on

maintaining records on how their time

is allocated in regular classrooms among

children with and without disabilities.

To calculate the impact of this

change, one needs to estimate the

number of special education personnel

who will be providing services to

children with and without disabilities

in regular classrooms and the amount

and value of time that would have been

required to document their allocation of

time between disabled and nondisabled

children.

Based on State-reported data on

placement, it appears that about 4

million children will spend part of their

day in a regular classroom this school

year. It is difficult to predict the extent

to which these children will be

receiving services in the regular

classroom from a special education

teacher or related services provider.

However, the Secretary believes that

this statutory change will not only

eliminate unnecessary paperwork in

situations in which special education

personnel have been working in the

regular classroom and documenting

their allocation of time, but will

encourage the provision of special

education services in the regular

classroom—a change that will benefit

children with disabilities.

Individualized Education Programs

The proposed regulations incorporate

a number of statutory changes in section

614(d) that relate to the IEP process and

the content of the IEP. With the

exception of one requirement (the

requirement to include a regular

education teacher in IEP meetings), the

Secretary has determined that, on

balance, these changes will not increase

the cost of developing IEPs. Moreover,

all the changes will produce significant

benefits for children and families. Key

changes include:

Clarifying that the team must consider

a number of special factors to the extent

they are applicable to the individual

child. The Secretary does not regard the

statutory changes that are incorporated

in § 300.346 as imposing a new burden

on school districts because the factors

that are listed should have been

considered, as appropriate, under the

IDEA before the enactment of IDEA

Amendments of 1997. These include:

behavioral interventions for a child

whose behavior impedes learning,

language needs for a child with limited

English proficiency, Braille for a blind

or visually impaired child, the

communication needs of the child, and

the child’s need for assistive technology.

Strengthening the focus of the IEP on

access to the general curriculum in

statements about the child’s levels of

performance and services to be

provided. The Secretary does not regard

the statutory changes that are

incorporated in § 300.347 relating to the

general curriculum as burdensome

because the changes merely refocus the

content of statements that were already

required to be included in the IEP on

enabling the child to be involved in and

progress in the general curriculum.

Requiring an explanation of the

extent to which a child will not be

participating with nondisabled children.

This statutory requirement, which is

incorporated in § 300.347(a)(4), does not

impose a burden because it replaces the

requirement for a statement of the extent

to which the child will be able to

participate in regular educational

programs.

Requiring the IEP to include a

statement of any needed modifications

to enable a child to participate in an

assessment, and, in cases in which a

child will not be participating in a State

or districtwide assessment, to include a

statement regarding why the assessment

is not appropriate and how the child

will be assessed. The Secretary does not

believe the inclusion of these

statements, required statute and

incorporated in § 300.447(a)(5), will be

unduly burdensome. Many school

districts already include statements in

the IEP regarding assessments,

including information about needed

accommodations.

Allowing the IEP team to establish

benchmarks rather than short-term

objectives in each child’s IEP. There is

considerable variation across States,

districts, schools, and children in the

amount of time spent on developing and

describing short-term objectives in each

child’s IEP. While it would be difficult

to estimate the impact of this statutory

change, contained in § 300.347(a)(2), it

clearly affords schools greater flexibility

and an opportunity to reduce paperwork

in those cases in which the team has

previously included unnecessarily

detailed curriculum objectives in the

IEP document.

Prior to the enactment of the IDEA

Amendments of 1997, IDEA required

the participation of the ‘‘child’s

teacher,’’ typically read as the child’s

special education teacher, but it did not

explicitly require a regular education

teacher. The IDEA Amendments of

1997, incorporated in § 300.344(a)(2) of

this proposed regulation require the

participation of the child’s special

education teacher and a regular

education teacher if the child is or may

be participating in the regular education

classroom.

The impact of this change will be

determined by the number of children

with disabilities who are or who may be

participating in the regular classroom in

a given year, the number and length of

IEP meetings, the opportunity cost of

the regular education teacher’s

participation, and the extent to which

regular education teachers are already

attending IEP meetings.

State-reported data for school year

1994–95 indicates that about 3.8 million

children with disabilities aged 3

through 21 spend at least 40 percent of

their day in a regular classroom

(children reported as placed in regular

classes and resource rooms). The

participation of the regular education

teacher would be required for all of

these children since these children are

spending at least part of their day in the

regular classroom.

State data also show that an

additional 1.2 million children were

served in separate classrooms. A regular

education teacher’s participation will

clearly be required for those children in

separate classes who are spending part

of their school day in regular classes

(less than 40 percent of their day). Other

children may be participating with

nondisabled children in some activities

in the same building. While a child’s

individual needs and prospects will

determine whether a regular education

teacher would need to attend a child’s

IEP meeting in those cases, the Secretary

believes that some proportion of these

children are children for whom

participation in regular classrooms is a

possibility, therefore requiring the

participating of a regular education

teacher.

Although the prior statute did not

require the participation of a regular

education teacher, it is not uncommon

for States or school districts to require

a child’s regular education teacher to

attend IEP meetings.

Based on all of this information, the

Secretary estimates that the

participation of a regular education

teacher may be required in an additional

3.7 to 5.2 million IEP meetings in the

next school year.

While the opportunity costs of

including a regular education teacher in

these meetings will be significant

because of the number of meetings

involved, the Secretary believes these

costs will be more than justified by the

benefits to be realized by teachers,
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55057

schools, children, and families.

Involving the regular education teacher

in the development of the IEP will not

only provide the regular education

teacher with needed information about

the child’s disability, performance, and

educational needs, but will help ensure

that a child receives the supports the

child needs in the regular classroom,

including services and modifications

that will enable the child to progress in

the general curriculum.

Parentally-Placed Students in Private

Schools

This statutory change, which is

incorporated in § 300.453, would

require school districts to spend a

proportionate amount of the funds

received under Part B of the IDEA on

services to children with disabilities

who are enrolled by their parents in

private elementary and secondary

schools.

The change does not have an impact

on most States because the statute does

not represent a change in the

Department’s interpretation of the law

as it was in effect prior to the enactment

of IDEA Amendments of 1997. However,

prior to the change in the law in three

Federal circuits, the courts concluded

that school districts generally were

responsible for paying for the total costs

of special education and related services

needed by students with disabilities

who have been parentally placed in

private schools. Therefore, this change

does produce potential savings for

school districts in those 12 States

affected by these court decisions. The

States are: Colorado, Connecticut,

Kansas, Louisiana, Mississippi, New

Mexico, New York, Oklahoma, Texas,

Utah, Vermont, and Wyoming.

To determine the impact of the

change, one needs to estimate the

number of parentally placed children

with disabilities that LEAs would have

been required to serve, but for this

change. Using private school enrollment

data for school year 1993–94 and

projected growth rates, the Secretary

estimates that approximately 1.2 million

students will be enrolled in private

schools in these 12 States in this school

year.

There is no reliable data on the

number of children with disabilities

who are parentally placed in private

schools. However, if one assumes that

children with disabilities are found in

private schools in the same proportion

as they are found in public schools in

these States, or at least in the same

proportion that children with speech

impairments and learning disabilities

are found in public schools, one would

estimate that there are between 60,000

and 89,000 children with disabilities

who are parentally placed in private

schools.

If one assumes that, on average, the

cost of providing a free appropriate

education to these students would be

approximately equal to the average

excess costs for educating students with

disabilities—$6,797 per child for school

year 1997–98, the costs of providing

FAPE to these children would be

significant.

Under the statutory change, public

schools would still be required to

provide services to parentally-placed

children in an amount proportionate to

their share of the total population of

children with disabilities. Therefore, in

estimating the impact of this statutory

change, one needs to subtract the cost of

the public school obligation from the

total projected savings. This amount

will vary with the proportion of

children attending private schools and

the size of the Federal appropriation.

While the precise amount of this

obligation is indeterminate, the

Secretary has concluded that the total

net savings to the public sector

attributable to the change in the law for

these 12 States will be very significant.

Mediation

Proposed § 300.506 reflects the new

statutory provisions in section 615(e) of

the IDEA, which require States to

establish and implement mediation

procedures that would make mediation

available to the parties whenever a due

process hearing is requested. The Act

specifies how mediation is to be

conducted.

The impact of this change will

depend on the following factors: the

number of due process hearings that

will be requested, the extent to which

the parties to those hearings will agree

to participate in mediation, the cost of

mediation, the extent to which

mediation would have been used in the

absence of this requirement to resolve

complaints, and the extent to which

mediation obviates the need for a due

process hearing.

Data for previous years suggests one

can expect about one complaint for

every 1000 children served or about

5,800 requests for due process hearings

during the next year. This projection

probably overstates the number of

complaints because it does not take into

account the effect of IDEA Amendments

of 1997, which, on balance, can be

expected to result in better

implementation of the law and higher

parental satisfaction with the quality of

services and compliance with the IDEA.

Many of these complaints would have

been resolved through mediation even

without the statutory change. Over 39

States had mediation systems in place

prior to the enactment of IDEA

Amendments of 1997. Data for 1992

indicate that, on average, States with

mediation systems held mediations in

about 60 percent of the cases in which

hearings were requested. Nevertheless,

the Secretary expects the number of

mediations to increase even in States

that already have mediation systems.

Although most States report using

mediation as a method of resolving

disputes, there have been considerable

differences in its implementation and

use. In general, the extent to which

mediation has been used in States

probably depends on the extent to

which parents and others were informed

of its availability and possible benefits

in resolving their complaints and the

extent to which the mediator was

perceived as a neutral third-party. The

Secretary believes that the changes

made by IDEA Amendments of 1997

will eliminate some of the differences in

State mediation systems that have

accounted for its variable use and

effectiveness.

The benefits of making mediation

more widely available are expected to

be substantial, especially in relation to

the costs. States with well-established

mediation systems conduct

considerably fewer due process

hearings. For example, in California

hearings were held in only 5 and 7

percent of the cases in which they were

requested in 1994 and 1995,

respectively. The average mediation

appears to cost between $350 and

$1,000, while a due process hearing can

cost tens of thousands of dollars. Based

on the experience that many different

States have had with mediation, the

Secretary estimates that hundreds of

additional complaints will be resolved

through mediation. The benefits to

school districts and benefits to families

are expected to be substantial.

Discipline

The proposed regulations (§§ 300.121,

300.122, 300.520, and 300.521)

incorporate a number of significant

changes to the IDEA that relate to the

procedures for disciplining children

with disabilities.

Some of the key changes contained in

section 615(k) afford school districts

additional tools for responding to

serious behavioral problems, and in that

regard, do not impose any burdens on

schools or districts.

The statutory change reflected in

proposed § 300.520 would give school

officials the authority to remove

children who engaged in misconduct

involving weapons or illegal drugs.
55058 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

Under prior law, school officials had the

authority to remove children who

brought guns, but could not remove

children who engaged in misconduct

involving other weapons or illegal drugs

over the objection of their parents

unless they prevailed in a due process

proceeding or obtained a temporary

restraining order from a court. The

statutory change reflected in proposed

§ 300.521 would give school officials the

option of seeking relief from a hearing

officer rather than a court in the case of

a child the school is seeking to remove

because the child poses a risk of injury

to the child or others. In both cases, the

child would continue to receive services

in an alternative educational setting that

is required to meet certain standards. It

is difficult to assess the impact of either

of these statutory changes on schools

because there is virtually no information

available on the extent to which parents

disagree with districts that propose to

remove these children. This new

authority would only be used in those

cases. Nevertheless, the Secretary

believes the benefits of this authority to

be substantial insofar as the changes

help schools provide for a safe

environment for all children, while

ensuring that any children with

disabilities who are moved to an

alternative setting continue to receive

the services they need.

The statutory change reflected in

proposed § 300.520(b) will require

school officials to convene the IEP team

in cases in which removal for more than

10 school days is contemplated to

develop an assessment plan and

behavioral interventions (or to review

the child’s behavioral intervention plan

if there is one). These would include all

cases in which a school is proposing to

suspend a child for more than 10 days

in a given year or to expel a child.

Because of the dearth of data on the

number and length of suspensions, it is

difficult to estimate the impact of this

change. However, based on data

collected by the Office for Civil Rights

on the number of children suspended

each year, the Secretary estimates about

300,000 children with disabilities will

be suspended for at least one school day

this year. Based on an analysis of data

from selected States, the Secretary

estimates that this review may have to

be conducted for only a portion of these

children since most of the children who

are suspended receive only short-term

suspensions. Although there will be a

cost associated with convening the IEP

team, in many cases, this review will be

conducted at the same time as the

required manifestation determination

and much of the information needed for

that determination could be used in

conducting this review. Moreover, the

benefits of this review are expected to

be substantial. The Secretary believes

that the development and

implementation of appropriate

behavioral interventions for children

with disabilities will reduce the need

for disciplinary actions and all the

concomitant costs.

The requirement in section

612(a)(1)(A), incorporated in proposed

§ 300.121, that all children aged 3

through 21 must have made available to

them a free appropriate public

education, including children who have

been suspended or expelled from

school, does not represent a change in

the law as the law was interpreted by

the Department prior to the enactment

of the IDEA Amendments of 1997. It

clarifies the Department’s long-standing

position that the IDEA requires the

continuation of special education and

related services even to children who

have been expelled from school for

conduct that has been determined not to

be a manifestation of their disability.

However, this statutory change does

represent a change in the law in two

circuits in which Federal Circuit courts

disagreed with the Department’s

interpretation of the law—the 4th and

7th Circuits. The affected States are:

Virginia, Maryland, North Carolina,

South Carolina, West Virginia, Illinois,

Indiana, and Wisconsin.

To assess the impact of this change,

one needs to estimate the extent to

which students would have been

excluded from education, but for this

change in the statute, and the cost of

providing the required services to these

students during the period they are

expected to be excluded from their

regular school due to a long-term

suspension or expulsion.

There is a paucity of data available on

disciplinary actions, and very little for

the States in the 4th and 7th circuits.

Using data collected by the Office for

Civil Rights for school year 1994, the

Secretary estimates that approximately

60,000 students aged 6 through 21 will

be suspended during this school year.

But to determine the impact of the

prohibition on ceasing services in these

States, one needs to know the number

of suspensions each student received

and their duration—information that is

not provided by OCR data. However,

more detailed data compiled by a few

States would suggest that a relatively

small percentage of students who are

suspended receive suspensions of

greater than 10 days at a time and a

much smaller number of students are

expelled.

No information is available on the

cost of providing services in an

alternative setting for a student who has

been suspended temporarily or expelled

from school. However, it is reasonable

to assume that the cost probably would

be no greater than the average daily total

costs of serving children with

disabilities and no less than the cost of

providing instruction in a Home or

Hospital setting, or between $29 and

$70 per day.

While this statutory change will have

a cost impact on the States in the fourth

and seventh circuits, the Secretary

believes the costs for these States will be

justified by the benefits of continuing

educational services for children who

are the least likely to succeed without

the help they need.

The statutory change reflected in

proposed § 300.122 could generate

potential savings for all States by

removing the obligation to provide

educational services to individuals 18

years old or older who were

incarcerated in adult prisons and who

were not previously identified as

disabled. We have no information on

the number of prisoners with

disabilities who were not previously

identified.

Triennial Evaluation

The existing regulations require a

school district to conduct an evaluation

of each child served under the IDEA

every three years to determine, among

other things, whether the child is still

eligible for special education. The IDEA

Amendments of 1997 change this

requirement to reduce unnecessary

testing and therefore reduce costs.

Specifically, section 614(c) of the IDEA,

incorporated in proposed § 300.533,

allows the evaluation team to dispense

with tests to determine the child’s

continued eligibility if the team

concludes this information is not

needed. However, these tests must be

conducted if the parents so request.

The savings resulting from this

change will depend on the following

factors: the number of children for

whom an evaluation is conducted each

year to comply with the requirement for

a triennial evaluation, the cost of the

evaluation, and an estimate of the extent

to which testing will be reduced

because it is determined by the IEP team

to be unnecessary and is not requested

by the parents.

Based on an analysis of State-reported

data, the Secretary estimates that

approximately 1.4 million children will

be eligible for triennial evaluations in

school year 1997–98 or roughly 25

percent of the children to be served.

The IDEA Amendments of 1997 make

it clear that districts no longer need to

conduct testing to determine whether a
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55059

child still has a disability, if the

evaluation team determines this

information is not needed and the

parent agrees. However, while the

regulation permits the team to dispense

with unneeded testing to determine

whether the child still has a disability,

the team still has an obligation to meet

to review any existing evaluation data

and to identify what additional data are

needed to determine whether the child

is still eligible for special education and

related services, the present levels of

performance of the child, and whether

any modifications in the services are

needed. In view of these requirements,

the Secretary assumes that there will be

some cost associated with conducting

the triennial evaluation even in those

cases in which both the team and the

parents agree to dispense with testing.

The Secretary estimates that the

elimination of unnecessary testing could

reduce the personnel costs by as much

as 25 to 75 percent. While there is no

national data on the average cost of

conducting a triennial evaluation under

the current regulations, the Secretary

believes that a triennial evaluation has

typically required the participation of

several professionals for several hours

and has cost as much as $1000.

If one assumes, for purposes of this

analysis, that savings are achievable in

roughly half of the triennial evaluations

that will be conducted and that

elimination of unnecessary testing could

reduce personnel costs by at least 25

percent, one would project substantial

savings for LEAs that are attributable to

this change.

Benefits and Costs of Proposed Nonstatutory Regulatory Changes: The

following is an analysis of the benefits

and costs of the nonstatutory proposed

regulatory changes that includes

consideration of the special effects these

proposals may have for small entities.

The proposed regulations primarily

affect State and local educational

agencies, which are responsible for

carrying out the requirements of Part B

of the IDEA as a condition of receiving

Federal financial assistance under that

Act. Some of the proposed 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 local educational

agencies because these proposed

regulations most directly affect local

school districts. The Secretary proposes

to use a definition of small school

district developed by the National

Center for Education Statistics for

purposes of its recent publication,

‘‘Characteristics of Small and Rural

School Districts.’’ In that publication,

NCES defines a small 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 34 percent of the

Nation’s school districts would be

considered small and serve about 2.5

percent of the Nation’s students. NCES

reports that approximately 12 percent of

these students have IEPs.

Both small and large districts will

experience economic impacts from this

proposed rule. Little data are available

that would permit a separate analysis of

how the proposed changes affect small

districts in particular. Therefore, the

Secretary specifically invites comments

on the differential effects of the

proposed regulations on small districts.

For purposes of this analysis, the

Secretary assumes that the effect of the

proposed regulations on small entities

would be roughly proportional to the

number of children with disabilities

served by those districts.

For school year 1997–98, we estimate

that approximately 50 million children

will be enrolled in public elementary

and secondary schools. Using the NCES

definition and assuming all districts

grew at the same rate between school

year 1993–94 and 1997–98, the

Secretary estimates that approximately

1.25 million children are enrolled in

small districts. Applying the NCES

estimate of 12 percent, we estimate that

these districts serve approximately

150,000 children with disabilities of the

5.806 million children with disabilities

served nationwide.

There are many changes in the

proposed regulations that are expected

to result in economic impacts—both

positive and negative. For purposes of

this analysis, we estimated the impact of

those non-statutory changes that were

not required by changes that were made

in the statute by the IDEA amendments.

The following is a summary of the

estimated economic and non-economic

impact of the key changes in this

proposed regulation:

Section 300.12—Definition of

‘‘General Curriculum’’—This proposed

regulation does not limit flexibility or

impose any burden. Its inclusion helps

to clarify what is intended by this term.

Sections 300.19(b) and 303.18(b)—

Definition of ‘‘Parent’’—Proposed

paragraph (b), which defines the

circumstances under which a State may

treat a foster parent as a parent for

purposes of IDEA, does not impose any

burden on State or local agencies. The

proposed definition is intended to

promote the appropriate involvement of

foster parents consistent with the best

interests of the child by ensuring that

those who best know the child are

involved in decisions about the child’s

education. To the extent there is any

economic impact of this proposal, it

should reduce costs on States and local

agencies that they would otherwise

incur for training and appointing

surrogate parents for children whose

educational interests under this

proposal could appropriately be

represented by their foster parents.

Section 300.24(b)(3)—Definition of

‘‘Specially-designed instruction’’—

Proposed paragraph (b)(3) defines

‘‘specially-designed instruction’’ in

order to give more definition to the term

‘‘special education,’’ which is defined in

this section as ‘‘specially-designed

instruction.’’ The definition is intended

to clarify that the purpose of adapting

the content, methodology or delivery of

instruction is to address the child’s

unique needs and to ensure access to

the general curriculum. This provision

increases the potential of children with

disabilities to participate more

effectively in the general curriculum.

Section 300.121—Continuation of

Services—Proposed section 300.121

would add the statutory provision that

the right to a free appropriate public

education extends to children with

disabilities who have been suspended or

expelled from school. Proposed

paragraph (c)(1) would define children

who have been suspended or expelled

from school to mean children who have

been removed from their current

educational placement for more than 10

school days in a given school year.

Proposed paragraph (c) would clarify

that in providing FAPE to these children

an agency shall meet the requirements

provided in the statute for interim

alternative educational settings for

children removed for possessing

weapons or drugs or if they are likely to

injure themselves or others if they

remain in their current placement.

In determining whether and how to

regulate on this issue, the Secretary

considered the impact of various

alternatives on small and large school

districts and children with disabilities

and their families, and tried to strike an

appropriate balance between the

educational needs of students and the

burden on schools.

Many of the comments received in

response to the Department’s notice

published in July expressed concern

that the statute may be read to require

school districts to continue to provide

services to a child who has been

suspended regardless of the duration of

the suspension. School districts argue
55060 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

that if the statute is interpreted to

require these services, this will impose

a significant burden on schools and

interfere with their ability to ensure a

safe and orderly environment for all

children.

Some will argue that the statute could

and should be read to give schools the

flexibility they had under IDEA before

it was amended not to provide services

to children suspended for fewer than 10

school days at a time, regardless of the

cumulative effect, as long as there is no

pattern of exclusion that warrants

treating an accumulation that exceeds

10 school days as a change in

placement.

While it is difficult to quantify the

cost of requiring schools to provide

services to all children who are

suspended for one or more school days,

the Secretary agrees that the burden for

schools districts could be substantial.

Based on data collected by the Office for

Civil Rights for school year 1992 and

data on the number of children who are

currently being served under the IDEA,

the Secretary estimates that

approximately 300,000 children with

disabilities will be suspended for at

least one school day during the next

school year. Many of these children will

be suspended on more than one

occasion for one or more days. Because

of the differences among the children

who are expected to be suspended and

the range of their service needs, the

costs of and the burden associated with

providing individualized services in an

alternative setting to every child who is

suspended for one or more school days

could be substantial, especially for

small districts, who are expected to

suspend about 8,000 children with

disabilities during this school year.

At the same time, the Secretary is

concerned about the adverse

educational impact on a child who has

been suspended for more than a few

days and on more than one occasion. In

balancing these concerns, the Secretary

proposes an alternative that takes into

account both impacts. Schools will be

relieved of the potential obligation to

provide services for a significant

population of children who are briefly

suspended a few times during the

course of the school year, and required

to anticipate possible service needs of

children with chronic or more serious

behavioral problems who are repeatedly

excluded from school.

Section 300.122(a)(3)—Exception to

right to FAPE (Graduation)—Proposed

paragraph (a)(3) provides that a

student’s right to FAPE ends when the

student has graduated with a regular

high school diploma, but not if the

student graduates with some other

certificate, such as a certificate of

attendance, or a certificate of

completion. Given the importance of a

regular high school diploma for a

student’s post-school experiences,

including work and further education,

the Secretary believes that there is a

significant benefit to children protected

by the Act to make clear that the

expectation for children with

disabilities is the same as for

nondisabled children. The impact of

this proposal, however, is difficult to

assess. Many States, including most of

those that report a high number of

children with disabilities leaving school

with a certificate of completion or some

other certificate that is not a regular

high school diploma, indicate that

students with disabilities have the right

to continue to work to earn a regular

high school diploma after receiving that

certificate. Little information is

available to evaluate how many students

who now can return to school after

receiving some other certificate of

completion do so, or how many would

return to school under this proposal,

although several State directors of

special education indicated that

relatively few students who now can

return, do so. The Secretary anticipates

that there may be some small impact on

small districts, but does not expect it to

be substantial, because of the likely

small number of students who would

return and could not do so now.

Section 300.139—Reporting on

Assessments—Proposed 300.139 would

require SEA reports on wide-scale

assessments to include children with

disabilities in aggregated results for all

children to better ensure accountability

for results for all children. This

proposed regulation is expected to have

a minimal impact on the cost of

reporting assessment results. It could

increase the number of data elements

reported depending on whether States

continue to report trend data for a

student population that does not

include children with disabilities to the

extent required by section 300.138.

There will be no impact on small (or

large) school districts since this

requirement applies to reports that are

prepared by the State educational

agency.

Sections 300.142(f) and 303.520(e)—

Program Income—These provisions

would specify that proceeds from public

and private insurance will not be treated

by the Department as ‘‘program income’’

under other regulations that limit how

program income can be used. Therefore,

this proposal increases flexibility for

State and local agencies in using the

proceeds from insurance.

Section 300.156(b)—Annual

Description of Part B Set-aside Funds—

Proposed paragraph (b) provides that if

a State’s plans for the use of its State

level or State agency funds do not differ

from those for the prior year the State

may submit a letter to that effect instead

of submitting a description of how the

funds would be used. The effect of this

proposed regulation is inconsequential

because it implements the Department’s

long-standing interpretation that a letter

is sufficient in this case.

Section 300.232(a)—Exception to the

LEA Maintenance of Effort—Proposed

paragraph (a) makes it clear that an LEA

may only reduce expenditures

associated with departing personnel if

those personnel are replaced by

qualified, lower-salaried personnel.

Congress made its intent clear in this

regard in the Committee Report, which

is quoted, in part, in a Note following

this proposed regulation. Allowing

LEAs to reduce their expenditures by

not replacing departing personnel

would violate congressional intent and

diminish special education services in

those districts.

Section 300.342(c)—Use of IFSP—

Proposed paragraph (c) would require

school districts to obtain written

informed consent from parents before

using an IFSP instead of an IEP, which

is based on an explanation of the

differences between the two documents.

The proposed regulation would impose

a cost burden on districts in those States

that elect to allow parents to opt for the

use of an IFSP instead of an IEP.

However, once a form is developed that

explains the differences between an

IFSP and an IEP, the cost of providing

this form to parents and obtaining

written consent are probably minimal,

and are justified by the benefits of

ensuring that parents understand the

role of the IEP in providing access to the

general education curriculum.

Section 300.342(d)—Effective Date of

IEP Requirements—Proposed paragraph

(d) would provide that IEPs are to meet

the requirements of the statute by July

1, 1998, which is the statutory effective

date for the new IEP requirements.

Given the potential benefits to families

and schools of complying with these

requirements, the Secretary believes that

implementation of these requirements

should not depend on parents

exercising their rights or vary within

and across districts and States. The

impact of this proposal is difficult to

estimate because the cost of complying

includes both the one-time cost of

providing all affected parties with the

information, training, and materials

needed to implement the new

requirements appropriately and the
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annual costs of complying with new IEP

requirements such as including the

regular education teacher on the IEP

team. The impact of these costs on State

and local agencies is increased the

sooner these costs are incurred.

The Secretary anticipates some

impact on small districts, but does not

expect it to be substantial because of the

number of children involved—about

150,000 children with disabilities in

total.

Section 300.344(b)—Including the

Child in the IEP Meeting—Proposed

paragraph (b) would require the school

to invite students to participate in IEP

meetings if the meeting will include

consideration of transition services

needs or transition services. The effect

of this provision is to give 14- and 15-

year-olds, and in some cases, younger

students the opportunity to participate.

The existing regulations have required

schools to invite students to meetings in

which transition services were to be

discussed. These would include all

students aged 16 years and older, and in

some cases, younger students. The law

has also given other children when

appropriate the opportunity to

participate in the IEP meeting.

Therefore, in some cases, 14- and 15-

year-olds may be already participating.

The Secretary believes that the costs of

notifying students about a meeting or

trying to ensure that the students’

interests and preferences are

accommodated are more than justified

by the benefits of including students in

a discussion of their own transition

needs, including their planned course of

study in secondary school.

Section 300.501(b)—Parental Access

to Meetings—Proposed paragraph (b) of

section 300.501 would define when and

how to provide notice to parents of

meetings in which they are entitled to

participate. It would further define what

is meant by the term ‘‘meeting.’’ The

Secretary believes these proposed

regulations impose the minimal

requirements necessary to implement

the statute. The language in paragraph

(b)(1) helps to clarify what is required

to provide parents with a meaningful

opportunity to attend meetings while

the language in (b)(2) is designed to

reduce unnecessary burden by clarifying

what constitutes a ‘‘meeting.’’

Section 300.501(c)—Placement

Meetings—Paragraph (c) of 300.501

specifies that the procedures used to be

to meet the new statutory requirement

of parental involvement in placement

decisions. It provides that the

procedures used for parental

involvement in IEP meetings also be

used for placement meetings. These

include specific requirements relating to

notice, methods for involving parents in

the meeting, and recordkeeping of

attempts to ensure their participation.

Because in many cases placement

decisions will be made as part of IEP

meetings, as is already the case in most

jurisdictions, the Secretary believes the

impact of this proposed regulation will

be minimal. In those cases in which

placement meetings are conducted

separately from the IEP meetings, the

Secretary believes the benefits of

making substantial efforts to secure the

involvement of parents and provide for

their meaningful participation in any

meeting to discuss their child’s

placement more than justify the costs.

Section 300.502(b) and (c)—Right to

an Independent Evaluation—Proposed

paragraph (b) would clarify language

from the current regulations that make

it clear that if a parent requests an

independent educational evaluation

(IEE), the agency must either initiate a

due process hearing to show that its

evaluation is appropriate or provide for

an IEE at public expense. The Secretary

interprets the provision permitting

parents to request an IEE to require the

agency to take action. This requirement

at most represents a small burden for

school districts because if the agency

did not take action, parents would be

free to request due process to compel

action.

Proposed paragraph (c) provides that

a public agency may not impose

conditions or timelines related to

obtaining an independent evaluation.

The Secretary believes that this

requirement, which arguably limits the

flexibility of school districts, is critical

to ensuring that school districts do not

find ways to circumvent the right

provided by the IDEA to parents to

obtain an independent evaluation.

Sections 300.503(b)(8) and

303.403(b)(4)—Notice to Parents

Regarding Complaint Procedures—

These provisions require that the

required prior written notice to parents

include information about how to file a

complaint under State complaint

procedures. Because districts are

already required to provide a written

notice to parents, the Secretary

estimates that the additional cost of

adding this information will be one-time

and minimal. The burden on small

districts could be minimized if each

SEA were to provide its LEAs with

appropriate language describing the

State procedures for inclusion in the

parental notices. Making parents award

of a low cost and less adversarial

mechanism that they can use to resolve

disputes with school districts should

result in cost savings and more

cooperative relationships between

parents and districts.

Section 300.505 (a)(1)(iii) and (c)(2)—

Parental Consent for Reevaluation—

Proposed paragraph (a)(1)(iii) would

clarify that the new statutory right of

parents to consent to a reevaluation of

their child means parental consent prior

to the administration of any test that is

needed as a part of a reevaluation. The

Secretary does not believe that the

intent of this change was to require

school districts to obtain parental

consent before reviewing existing data

about the child and the child’s

performance, an activity that school

districts, as a matter of good practice,

should be engaged in on an on-going

basis. That interpretation would impose

a significant burden on school districts

with little discernable benefit to the

children served under these regulations.

Proposed paragraph (c)(2) would use

the procedures that are in current

regulations dealing with inviting

parents to IEP meetings as a basis for

defining what it means to undertake

‘‘reasonable measures’’ in obtaining

parental consent. The intent of the

proposal is to meaningfully

operationalize the statutory right of

parents to consent to a reevaluation of

their child. Given the importance of

parental involvement in all parts of the

process, the Secretary believes that any

burden imposed by the proposed

recordkeeping requirements is justified

by the benefits of securing parental

consent to the reevaluation.

Section 300.506(c)—Impartial

Mediation—Proposed paragraph (c)

would interpret the statutory

requirement that mediation be

conducted by an impartial mediator to

mean that a mediator may not be an

employee of an LEA or a State agency

that is providing direct services to the

child and must not have a personal or

professional conflict of interest. The

Secretary believes that, by definition,

parents would not regard an employee

of the other party to the dispute to be

impartial or a person who has a

personal or professional conflict of

interest. The Secretary believes

providing for impartiality would help

promote the use of mediation, which is

voluntary, and improve its overall

effectiveness in resolving

disagreements. The impact of

disallowing these individuals from

serving as mediators is not likely to

have a significant impact on States,

given current practices. Many States

contract with private organizations to

conduct their mediations. Others use

employees of the State educational

agency, which, in most cases, is not the

agency providing direct services. Given
55062 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

the significant benefits to children,

families, and school districts of

expeditiously resolving disagreements

without resort to litigation, the Secretary

concluded that benefits of this proposal

easily justify any cost or inconvenience

to States.

Section 300.506(d)(2)—Failure to

Participate in Meeting—Proposed

paragraph (d)(2) would specify that a

parent’s failure to participate in a

meeting at which a disinterested person

explains the benefits of and encourages

the use of mediation could not be used

as a reason to deny or delay the parent’s

right to a due process hearing. This

change is not likely to limit the benefits

to school districts of mediation as the

Secretary believes that it is extremely

unlikely that parents who are unwilling

to participate in such a meeting with a

disinterested person would be willing to

engage in the voluntary mediation

provided for in the statute.

Section 300.507(c)(4)—Failure to

Provide Notice—Proposed paragraph

(c)(4) makes it clear that failure by

parents to provide the notice required

by the statute cannot be used by a

school district to delay or deny the

parents’ right to due process. This

proposed regulation would eliminate

the possibility that public agencies will

delay a due process hearing pending

receipt of a notice that they deem to be

acceptable. This regulation does not

impose any cost on school districts and

would help ensure that parents are

afforded appropriate and timely access

to due process.

Section 300.513(b)—Attorneys’ Fees—

Proposed paragraph (b) would provide

that funds provided under Part B of

IDEA could not be used to pay

attorneys’ fees. This proposal does not

increase the burden on school districts

or otherwise substantially affect the

ability of school districts to pay

attorneys’ fees that are awarded under

the Act or to pay for their own

attorneys. It merely establishes that

attorneys’ fees must be paid by a source

of funding other than Part B based on

the Department’s position that limited

Federal resources not be used for these

costs. The Secretary does not expect this

proposal to have a cost impact on small

(or large) districts because all districts

have non-Federal sources of funding

that are significantly greater than the

funding provided under IDEA.

Currently, funds provided to States

under the IDEA represent about eight

percent of special education

expenditures.

Section 300.514(c)—Hearing Officer

Decisions—Proposed 300.514(c) would

clarify that if a hearing officer in a due

process hearing or a review official in a

State level review agrees with the

parents that a change in placement is

appropriate, the child’s placement must

be treated in accordance with that

agreement. It is difficult to assess the

impact of this proposal because the

statutory language is ambiguous. If

paragraph (c) were not included in the

regulation. In some cases, parents can be

expected to successfully argue, as they

have in the past, that the hearing

officer’s decision to change the

placement of a child be implemented. In

other cases, as was the case in Board of

Education Sacramento Unified School

District v. Holland (9th Cir., 1994), a

change to the placement initially sought

by the parents and approved by the

hearing officer may not occur until all

appeals have been exhausted. The cost

impact of this proposal is also

indeterminate because in some cases

implementation of the hearing officer’s

decision will result in moving children

to more costly placements and, in other

cases, to less costly placements. In

either case, the Secretary concluded that

the benefits to the child of securing an

appropriate placement justify any

potential increase in costs or other

burdens to the school district.

The Secretary estimates that the effect

of this proposal on small districts will

be minimal. The Secretary estimates

that no more than 2000 due process

hearings will be conducted during the

next school year, of which only a small

proportion are expected to involve small

districts (fewer than 60). Not all of these

will involve disputes about placement

and the hearing officer or State review

official can be expected to agree with

the parents in only a portion of the

cases.

Section 300.520 (b) and (c)—

Behavioral Interventions—Proposed

paragraph (b) of this section would

specify that the IEP team meeting to

consider behavioral interventions occur

within 10 business days of the behavior

that leads to discipline rather than 10

calendar days, and would clarify that, if

the child does not have a behavior

intervention plan, the purpose of the

meeting is to develop an assessment

plan and appropriate behavioral

interventions to address that behavior.

In proposing the business day

alternative, the Secretary determined

that it would minimize the burden on

school districts and would not have a

significant impact on children with

disabilities, in light of other regulatory

proposals in the discipline area. The

change to clarify that the IEP meeting

develop appropriate behavioral

interventions to address the child’s

behavior may impose some additional

burden on school districts, but the

Secretary determined that burden was

justified by the benefit to the child, the

child’s teacher, and the educational

process as a whole if appropriate

behavioral intervention strategies are

implemented without delay to address

the behavior that led to discipline.

Proposed paragraph (c) of section

300.520 makes it clear that if a child is

removed from his or her current

placement for 10 school days or fewer

in a given year, the school is not

required to convene the IEP team to

develop an assessment plan and

behavioral interventions. (A school

would be required to do so if a child

were suspended for more than 10 school

days in a given school year.) In

determining whether to regulate on this

issue, the Secretary considered the

potential benefits of providing

behavioral interventions to children

who need them and the impact on

school districts of convening the IEP

team to develop behavioral

interventions if children are suspended.

Based on consideration of the costs

and benefits to children and schools, the

Secretary concluded that the IEP team

should not be required to meet and

develop or review behavioral

interventions for a child unless the

child was engaged in repeated or

significant misconduct. The Secretary

determined that the costs and burden of

convening the team the first time a child

is suspended outweigh any potential

benefits to the child if the child is

receiving a short-term suspension for an

infraction. However, the Secretary also

considered the significant benefits that

early intervention can produce for

students and schools by effectively

addressing behavioral problems. The

Secretary concluded that if a child is

engaged in behavior that warrants

removal for more than 10 school days in

a given year, intervention is in order.

The Secretary believes that this

proposal may reduce costs for school

districts because, in the absence of a

regulation on this issue, the statute will

be read by some to require that the IEP

team be convened to develop an

assessment plan the first time a child is

suspended, regardless of the duration of

the suspension or the child’s

disciplinary record. Alternatively, the

statute could be read, in the absence of

regulation, to require the IEP team to be

convened only for suspensions that

exceed 10 school days at a time.

Little data are available that would

permit the Secretary to assess the

economic impact of this proposal on

school districts or the number of

children who will benefit. Based on data

collected by the Office for Civil Rights,

the Secretary estimates that
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55063

approximately 300,000 children with

disabilities will be suspended during

the next school year for at least one

school day. Based on an analysis of

State-reported data from selected States,

we estimate that most of the children

who are suspended receive only shortterm suspensions, but we have no

information on the length or frequency

of individual suspensions.

Section 300.521—Due Process

Hearing for Removal—Proposed 300.521

specifies that a hearing officer is to

make the determination authorized by

section 615(k)(2) of the IDEA (regarding

whether a child’s current educational

placement is substantially likely to

result in injury to self or others) in a due

process hearing.

The Secretary concluded that a

hearing that meets the requirement for

a due process hearing is the most

appropriate forum for expeditiously and

fairly determining whether the district

has demonstrated by substantial

evidence (defined by statute as ‘‘beyond

a preponderance of the evidence’’) that

maintaining the current placement is

substantially likely to result in injury

and to consider the appropriateness of

the child’s current placement and the

efforts of the district to minimize the

risk of harm.

The Secretary believes that the cost

impact of this proposed regulation on

large and small districts will be minimal

because of the limited number of cases

in which school districts and parents

will disagree about the proposed

removal of a dangerous child. (If the

parents agree to removing a child, a

school district may do so without the

approval of a hearing officer.) In those

few cases in which there is

disagreement, the Secretary believes

that the benefits of conducting a due

process hearing justify the costs.

Section 300.523—Manifestation

Determination—Proposed paragraph (b)

would make it clear that if a child was

removed for 10 or fewer school days in

a given school year, and no further

disciplinary action is contemplated, the

school is not required to conduct a

manifestation review. As was the case in

considering section 300.520(c), the

Secretary considered the potential

benefits to the child and impact on

districts of convening the IEP team if

children are suspended.

The Secretary similarly concluded

that the IEP team should not be required

to meet and determine whether the

child’s behavior was a manifestation of

the disability unless the child was

engaged in repeated or significant

misconduct. The cost of convening the

team, whether to develop a behavioral

assessment or to conduct a

manifestation review, outweigh the

potential benefits to a child who has

been briefly suspended a few times.

However, in proposing this regulation,

the Secretary also considered the

adverse impact on the child if the child

is repeatedly suspended without any

effort to determine whether the child

should be punished for his or her

behavior. One of the primary purposes

of the manifestation review is to

determine whether the child’s disability

has impaired his or her ability to

understand the impact and

consequences of his or her behavior and

whether the child’s disability has

impaired the child’s ability to control

the behavior subject to discipline.

Conducting this review, along with the

behavioral assessment, will help ensure

that the district responds appropriately

to the child’s behavior.

The Secretary believes that this

proposal may reduce costs for school

districts to the extent the statute is being

read by some to require a manifestation

review every time a child is suspended.

Alternatively, this proposal may limit

flexibility to the extent the statute could

be read not to require a review for any

single suspension that is fewer than 10

school days.

Section 300.528—Procedures for an

Expedited Due Process Hearing—

Proposed 300.528 defines what an

expedited due process hearing to

remove a dangerous child must entail.

As discussed, the Secretary does not

believe the requirement for the hearing

officer to conduct a due process hearing

to have a substantial cost impact

because of the small number of cases

involved. In proposing this regulation,

the Secretary attempted to provide some

flexibility to the States in establishing

timelines and procedures in order to

accommodate the interests of school

officials in obtaining an expeditious

decision. However, the Secretary has

little basis for projecting the cost of

hearings conducted in accordance with

the proposed regulations in comparison

to other appropriate procedures.

Section 300.587—Procedures for

Enforcement—This proposal would

clarify the types of notice and hearing

that the Department would provide

before taking an enforcement action

under Part B of the IDEA. Providing

clarity about the applicable procedures

for the various types of enforcement

actions will benefit potential subjects of

enforcement actions and the Department

by ensuring that time and resources are

not spent on unnecessary disputes about

procedures or needless process.

Section 300.589—Waiver

Procedures—This proposal describes

the procedures to be used by the

Secretary in considering a request from

an SEA of a waiver of the supplement,

not supplant and maintenance of effort

requirements in IDEA. This proposed

regulation does not impose any cost on

local school districts. The proposed

procedures will affect any State

requesting a waiver under Part B. While

the Secretary believes the benefits of the

proposed process to children with

disabilities justify any possible cost or

burden for State educational agencies,

the Secretary welcomes public comment

on the impact of this proposal and

alternative ways for the Secretary to

implement these statutory provisions.

Section 300.624—Capacity-building

Subgrants—This proposal would make

it clear that States could establish

priorities in awarding these subgrants.

This proposal, which provides

permissive authority to be used at the

discretion of each State, clarifies the

intent of the statutory change and

imposes no burden on State agencies.

Allowing States to use these funds to

foster State-specific improvements

should lead to improving educational

results for children with disabilities.

Sections 300.660(b) and 303.510(b)—

Information about State Complaint

Procedures—Proposed paragraph (b)

would require States to widely

disseminate their complaint procedures.

While this proposed requirement would

increase costs for those State

educational agencies that have not

established procedures for widely

disseminating this information, the

Secretary could have prescribed specific

mechanisms for this dissemination but

chooses not to, in order to give SEAs

flexibility in determining how to

accomplish this. The requirement

would not have any direct impact on

small districts and would benefit

parents who believe that a public

agency is violating a requirement of

these regulations, by providing them the

information they would need to get an

official resolution of their issue without

having to resort to a more formal, and

generally more costly, dispute

resolution mechanism.

Sections 300.661 and 303.512—

Secretarial Review—This proposal

would delete the provision providing

for Secretarial review of complaints

filed under State complaint procedures.

The effect of this proposal on small (and

large) districts would be

inconsequential because of the small

number of requests for these reviews.

This proposal was developed in

recognition of the report of the

Department’s Inspector General of

August 1997, that noted that this

procedure provides very limited

benefits to children with disabilities or
55064 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

to the IDEA programs and involves a

considerable expenditure of the

resources of the Office of Special

Education Programs and other offices of

the Department. The Inspector General’s

report concluded that greater benefit to

the programs and individuals covered

by the IDEA would be achieved if the

Department eliminated the Secretarial

review process and focused on

improving State procedures for

resolving complaints and implementing

the IDEA programs. This change, and

the changes proposed in §§ 300.660(b)

and 300.503(b)(8) and §§ 303.510(b) and

303.403(b)(4) that would require greater

public notice about the State complaint

procedures, would implement those

recommendations.

Sections 300.662 and 303.511—State

Reviews—This proposal would relieve

States of the requirement to review

complaints about violations that

occurred more than three years before

the complaint. This proposed limitation

on the age of the complaints is expected

to reduce the cost to SEAs of

investigating and reviewing complaints.

There is no reason to believe this

proposal would adversely affect small

districts. There is also no reason to

expect that this proposal would have a

significant negative impact on

individuals or entities submitting

complaints under these procedures as it

is unlikely that complaints alleging a

violation that occurred more than three

years in the past and that do not allege

a continuing violation or request

compensatory services would result in

an outcome that puts the protected

individuals under these regulations in a

better position than they would have

been in if no complaint had been filed.

On the other hand, allowing States to

focus their complaint resolution

procedures on issues that are relevant to

the current operation of the State’s

special education program may serve to

improve services for these children.

2. Clarity of the Regulations

Executive Order 12866 requires each

agency to write regulations that are easy

to understand.

The Secretary invites comments on

how to make these proposed regulations

easier to understand, including answers

to questions such as the following: (1)

Are the requirements in the proposed

regulations clearly stated? (2) Do the

proposed regulations contain technical

terms or other wording that interfere

with their clarity? (3) Does the format of

the proposed regulations (grouping and

order of sections, use of headings,

paragraphing, etc.) aid or reduce their

clarity? Would the proposed regulations

be easier to understand if they were

divided into more (but shorter) sections?

(A ‘‘section’’ is preceded by the symbol

‘‘§ ’’ and a numbered heading; for

example, § 300.2 Applicability to State,

local, and private agencies.) (4) Is the

description of the proposed regulations

in the ‘‘Supplementary Information’’

section of this preamble helpful in

understanding the proposed

regulations? How could this description

be more helpful in making the proposed

regulations easier to understand? (5)

What else could the Department do to

make the proposed regulations easier to

understand?

A copy of any comments that concern

how the Department could make these

proposed regulations easier to

understand should be sent to Stanley M.

Cohen, Regulations Quality Officer, U.S.

Department of Education, 600

Independence Avenue, SW. (room 5121,

FB–10), Washington, DC 20202–2241.

Regulatory Flexibility Act Certification

The Secretary certifies that these

proposed regulations would not have a

significant economic impact on a

substantial number of small entities.

The small entities that would be

affected by these proposed regulations

are small local educational agencies

(LEAs) receiving Federal funds under

this program. However, the regulations

would not have a significant economic

impact on the small LEAs affected

because the regulations would not

impose excessive regulatory burdens or

require unnecessary Federal

supervision. The regulations would

impose minimal requirements to ensure

the proper expenditure of program

funds.

Paperwork Reduction Act of 1995

Sections 300.110, 300.121, 300.123–

300.130, 300.133, 300.135–300.137,

300.141–300.145, 300.155–300.156,

300.180, 300.192, 300.220–300.221,

300.240, 300.280–300.281, 300.284,

300.341, 300.343, 300.345, 300.347,

300.380–300.382, 300.402, 300.482–

300.483, 300.503–300.504, 300.506,

300.508, 300.510–300.511, 300.532,

300.535, 300.543, 300.561–300.563,

300.565, 300.569, 300.571–300.572,

300.574–300.575, 300.589, 300.600,

300.653, 300.660–300.662, 300.750–

300.751, 300.754, 303.403, 303.510–

303.512, and 303.520 contain

information collection requirements. As

required by the Paperwork Reduction

Act of 1995 (44 U.S.C. 3507(d)), the

Department of Education has submitted

a copy of these sections to the Office of

Management and Budget (OMB) for its

review.

Collection of Information: Assistance

for Education of All Children with

Disabilities: Complaint Procedures,

§§ 300.600–300.662 and 303.510–

303.512. Each SEA is required to adopt

written procedures for resolving any

complaint that meets the requirements

in these proposed regulations.

Annual reporting and recordkeeping

burden for this collection of information

is estimated to average 10 hours to issue

a written decision to a complaint. There

is an estimated average annual total of

1079 complaints submitted for

processing. Thus, the total annual

reporting and recordkeeping burden for

this collection is estimated to be 10,790

hours.

Collection of Information: Assistance

for Education of All Children with

Disabilities: State Eligibility, §§ 300.110,

300.121, 300.123–300.130, 300.133,

300.135–300.137, 300.141–300.145,

300.155–300.156, 300.280–300.281,

300.284, 300.380–300.382, 300.402,

300.482–300.483, 300.510–300.511,

300.589, 300.600, 300.653, 303.403, and

303.520. Each State must have on file

with the Secretary policies and

procedures to demonstrate to the

satisfaction of the Secretary that the

State meets the specified conditions for

assistance under this part. In the past,

States were required to submit State

plans every three years with one-third of

the entities submitting plans to the

Secretary each year. With the new

statute, States will no longer be required

to submit State plans. Rather, the

policies and procedures currently

approved by, and on file with, the

Secretary that are not inconsistent with

the IDEA Amendments of 1997 will

remain in effect unless amended.

Annual reporting and recordkeeping

burden for this collection of information

is estimated to average 30 hours for each

response for 58 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 this collection

is estimated to be 1740 hours.

Collection of Information: Assistance

for Education of All Children with

Disabilities: LEA Eligibility, §§ 300.180,

300.192, 300.220–300.221, 300.240,

300.341, 300.343, 300.345, 300.347,

500.503–300.504, 300.532, 300.535,

300.543, 300.561–300.563, 300.565,

300.569, 300.571–300.572, and 300.574–

300.575. Each local educational agency

(LEA) and each State agency must have

on file with the State educational

agency (SEA) information to

demonstrate that the agency meets the

specified requirements for assistance

under this part. In the past, each LEA
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55065

was required to submit a periodic

application to the SEA in order to

establish its eligibility for assistance

under this part. Under the new statutory

changes, LEAs are no longer required to

submit such applications. Rather, the

policies and procedures currently

approved by, and on file with, the SEA

that are not inconsistent with the IDEA

Amendments of 1997 will remain in

effect unless amended.

Annual reporting and recordkeeping

burden for this collection of information

is estimated to average 2 hours for each

response for 15,376 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 this collection

is estimated to be 30,752 hours. The

Secretary invites comment on the

estimated time it wills take for LEAs to

meet this reporting and recordkeeping

requirement.

Collection of Information: Assistance

for Education of All Children with

Disabilities: List of Hearing Officers and

Mediators, §§ 300.506 and 300.508.

Each 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.

Each public agency must, also, keep a

list of the persons who serve as hearing

officers.

Annual reporting and recordkeeping

burden for this collection of information

is estimated to average 25 hours for each

response for 58 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 this collection

is estimated to be 3050 hours.

Collection of Information: Assistance

for Education of All Children with

Disabilities: Report of Children and

Youth with Disabilities Receiving

Special Education, §§ 300.750–300.751,

and 300.754. Each SEA must submit an

annual report of children served.

Annual reporting and recordkeeping

burden for this collection of information

is estimated to average 262 hours for

each response for 58 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 this collection

is estimated to be 15,196 hours.

Organizations and individuals

desiring to submit comments on the

information collection requirements

should direct them to the Office of

Information and Regulatory Affairs,

OMB, room 10235, New Executive

Office Building, Washington, DC 20503;

Attention: Desk Officer for U.S.

Department of Education.

The Department considers comments

by the public on these proposed

collections of information in—

• Evaluating whether the proposed

collections of information are necessary

for the proper performance of the

functions of the Department, including

whether the information will have

practical utility;

• Evaluating the accuracy of the

Department’s estimate of the burden of

the proposed collections of information,

including the validity of the

methodology and assumptions used;

• Enhancing the quality, usefulness,

and clarity of the information to be

collected; and

• Minimizing the burden of the

collection of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology;

e.g., permitting electronic submission of

responses.

OMB is required to make a decision

concerning the collections of

information contained in these

proposed regulations between 30 and 60

days after publication of this document

in the Federal Register. Therefore, a

comment to OMB is best assured of

having its full effect if OMB receives it

within 30 days of publication. This does

not affect the deadline for the public to

comment to the Department on the

proposed regulations.

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 the order, this

document is intended to provide early

notification of the Department’s specific

plans and actions for this program.

Assessment of Educational Impact

The Secretary particularly requests

comments on whether the proposed

regulations in this document would

require transmission of information that

is being gathered by or is available from

any other agency or authority of the

United States.

Anyone may also view this document,

as well as all other Department of

Education documents published in the

Federal Register, in text or portable

document format (pdf) on the World

Wide Web at either of the following

sites:

http://gcs.ed.gov/fedreg.htm

http://www.ed.gov/news.html

To use the pdf you must have the

Adobe Acrobat Reader Program with

Search, which is available free at either

of the previous sites. If you have

questions about using the pdf, call the

U.S. Government Printing Office toll

free at 1–888–293–6498.

Anyone may also view these

documents in text copy only on an

electronic bulletin board of the

Department. Telephone: (202) 219–1511

or, toll free, 1–800–222–4922. The

documents are located under Option

G—Files/Announcements, Bulletins and

Press Releases.

Note: The official version of this document

is the document published in the Federal

Register.

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, Grant programs—education,

Infants and children, Reporting and

recordkeeping requirements.

34 CFR Part 303

Education of individuals with

disabilities, Grant programs—education,

Infants and children, Reporting and

recordkeeping requirements.

(Catalog of Federal Domestic Assistance

Number: 84.027 Assistance for the Education

of All Children with Disabilities, 84.173

Preschool Grants for Children with

Disabilities, and 84.181 Early Intervention

Program for Infants and Toddlers with

Disabilities)
55066 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

Dated: October 6, 1997.

Richard W. Riley,

Secretary of Education.

The Secretary proposes to amend

Title 34 of the Code of Federal

Regulations by revising parts 300, 301,

and 303 as follows:

1. Part 300 is revised to read as

follows:

PART 300—ASSISTANCE FOR

EDUCATION OF ALL CHILDREN WITH

DISABILITIES

Subpart A—General

Purposes, Applicability, and Regulations

That Apply to This Program

Sec.

300.1 Purposes.

300.2 Applicability to State, local, and

private agencies.

300.3 Regulations that apply.

300.4 Act.

300.5 Assistive technology device.

300.6 Assistive technology service.

300.7 Child with a disability.

300.8 Day.

300.9 Educational service agency.

300.10 Equipment.

300.11 Free appropriate public education.

300.12 General curriculum.

300.13 Include.

300.14 Individualized education program.

300.15 Individualized education program

team.

300.16 Individualized family service plan.

300.17 Local educational agency.

300.18 Native language.

300.19 Parent.

300.20 Public agency.

300.21 Qualified.

300.22 Related services.

300.23 Secondary school.

300.24 Special education.

300.25 State.

300.26 Supplementary aids and services.

300.27 Transition services.

300.28 Definitions in EDGAR.

Subpart B—State and Local Eligibility—

General

State Eligibility—General

300.110 Condition of assistance.

300.111 Exception for prior State policies

and procedures on file with the

Secretary.

300.112 Amendments to State policies and

procedures.

300.113 Approval by the Secretary.

State Eligibility—Specific Conditions

300.121 Free appropriate public education

(FAPE).

300.122 Exception to FAPE for certain ages.

300.123 Full educational opportunity goal

(FEOG).

300.124 FEOG—timetable.

300.125 Child find.

300.126 Procedures for evaluation and

determination of eligibility.

300.127 Confidentiality of personally

identifiable information.

300.128 Individualized education

programs.

300.129 Procedural safeguards.

300.130 Least restrictive environment.

300.131 [Reserved]

300.132 Transition of children from Part C

to preschool programs.

300.133 Children in private schools.

300.134 [Reserved]

300.135 Comprehensive system of

personnel development.

300.136 Personnel standards.

300.137 Performance goals and indicators.

300.138 Participation in assessments.

300.139 Reports relating to assessments.

300.140 [Reserved]

300.141 SEA responsibility for general

supervision.

300.142 Methods of ensuring services.

300.143 SEA implementation of procedural

safeguards.

300.144 Hearings relating to LEA eligibility.

300.145 Recovery of funds for misclassified

children.

300.146 Suspension and expulsion rates.

300.147 Additional information if SEA

provides direct services.

300.148 Public participation.

300.149 [Reserved]

300.150 State advisory panel.

300.151 [Reserved]

300.152 Prohibition against commingling.

300.153 State-level nonsupplanting.

300.154 Maintenance of State financial

support.

300.155 Policies and procedures for use of

Part B funds.

300.156 Annual description of use of Part B

funds.

LEA and State Agency Eligibility—General

300.180 Condition of assistance.

300.181 Exception for prior LEA or State

agency policies and procedures on file

with the SEA.

300.182 Amendments to LEA policies and

procedures.

300.183 [Reserved]

300.184 Excess cost requirement.

300.185 Meeting the excess cost

requirement.

300.186–300.189 [Reserved]

300.190 Joint establishment of eligibility.

300.191 [Reserved]

300.192 Requirements for establishing

eligibility.

300.193 [Reserved]

300.194 State agency eligibility.

300.195 [Reserved]

300.196 Notification of LEA or State agency

in case of ineligibility.

300.197 LEA and State agency compliance.

LEA Eligibility—Specific Conditions

300.220 Consistency with State policies.

300.221 LEA and State agency

implementation of CSPD.

300.222–300.229 [Reserved]

300.230 Use of amounts.

300.231 Maintenance of effort.

300.232 Exception to maintenance of effort.

300.233 Treatment of federal funds in

certain fiscal years.

300.234 Schoolwide programs under title I

of the ESEA.

300.235 Permissive use of funds.

300.236–300.239 [Reserved]

300.240 Information for SEA.

300.241 Treatment of charter schools and

their students.

300.242 Public information.

300.243 [Reserved]

300.244 Coordinated services system.

300.245 School-based improvement plan.

300.246 Plan requirements.

300.247 Responsibilities of the LEA.

300.248 Limitation.

300.249 Additional requirements.

300.250 Extension of plan.

Secretary of the Interior—Eligibility

300.260 Submission of information.

300.261 Public Participation.

300.262 Use of Part B funds.

300.263 Plan for coordination of services.

300.264 Definitions.

300.265 Establishment of advisory board.

300.266 Annual reports.

300.267 Applicable regulations.

Public Participation

300.280 Public hearings before adopting

State policies and procedures.

300.281 Notice.

300.282 Opportunity to participate;

comment period.

300.283 Review of public comments before

adopting policies and procedures.

300.284 Publication and availability of

approved policies and procedures.

Subpart C—Services

Free Appropriate Public Education

300.300 Provision of FAPE.

300.301 FAPE—methods and payments.

300.302 Residential placement.

300.303 Proper functioning of hearing aids.

300.304 Full educational opportunity goal.

300.305 Program options.

300.306 Nonacademic services.

300.307 Physical education.

300.308 Assistive technology.

300.309 Extended school year services.

300.310 [Reserved]

300.311 FAPE requirements for students

with disabilities in adult prisons.

Evaluations and Reevaluations 300.320

Initial evaluations.

300.321 Reevaluations.

300.322–300.324 [Reserved]

Individualized Education Programs

300.340 Definitions.

300.341 SEA responsibility.

300.342 When IEPs must be in effect.

300.343 IEP Meetings.

300.344 IEP team.

300.345 Parent participation.

300.346 Development, review, and revision

of IEP.

300.347 Content of IEP.

300.348 Agency responsibilities for

transition services.

300.349 Private school placements by

public agencies.

300.350 Children with disabilities in

religiously-affiliated or other private

schools.

300.351 Individualized education

program—accountability.

Direct Services by SEA

300.360 Use of LEA allocation for direct

services.
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55067

300.361 Nature and location of services.

300.362–300.369 [Reserved]

300.370 Use of State agency allocations.

300.371 [Reserved]

300.372 Applicability of nonsupplanting

requirement.

Comprehensive System of Personnel

Development

300.380 General.

300.381 Adequate supply of qualified

personnel.

300.382 Improvement strategies.

300.383–300.387 [Reserved]

Subpart D—Children in Private Schools

Children with Disabilities in Private Schools

Placed or Referred by Public Agencies

300.400 Applicability of §§ 300.400—

300.402.

300.401 Responsibility of State educational

agency.

300.402 Implementation by State

educational agency.

300.403 Placement of children by parents if

FAPE is at issue.

Children With Disabilities Enrolled by Their

Parents in Private Schools

300.450 Definition of ‘‘private school

children with disabilities.’’

300.451 Child find for private school

children with disabilities.

300.452 Basic requirement—services.

300.453 Expenditures.

300.454 Services determined.

300.455 Services provided.

300.456 Location of services.

300.457 Complaints.

300.458 Separate classes prohibited.

300.459 Requirement that funds not benefit

a private school.

300.460 Use of public school personnel.

300.461 Use of private school personnel.

300.462 Requirements concerning property,

equipment and supplies for the benefit of

private school children with disabilities.

Procedures for By-Pass

300.480 By-pass—general.

300.481 Provisions for services under a bypass.

300.482 Notice of intent to implement a bypass.

300.483 Request to show cause.

300.484 Show cause hearing.

300.485 Decision.

300.486 Filing requirements.

300.487 Judicial review.

Subpart E—Procedural Safeguards

Due Process Procedures for Parents and

Children

300.500 General responsibility of public

agencies; definitions.

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 Parental consent.

300.506 Mediation.

300.507 Impartial due process hearing;

parent notice; disclosure.

300.508 Impartial hearing officer.

300.509 Hearing rights.

300.510 Finality of decision; appeal;

impartial review.

300.511 Timelines and convenience of

hearings and reviews.

300.512 Civil action.

300.513 Attorneys’ fees.

300.514 Child’s status during proceedings.

300.515 Surrogate parents.

300.516 [Reserved]

300.517 Transfer of parental rights at age of

majority.

Discipline Procedures

300.520 Authority of school personnel.

300.521 Authority of hearing officer.

300.522 Determination of setting.

300.523 Manifestation determination

review.

300.524 Determination that behavior was

not manifestation of disability.

300.525 Parent appeal.

300.526 Placement during appeals.

300.527 Protections for children not yet

eligible for special education and related

services.

300.528 Expedited due process hearings.

300.529 Referral to and action by law

enforcement and judicial authorities.

Procedures for Evaluation and

Determination of Eligibility

300.530 General.

300.531 Initial evaluation.

300.532 Evaluation procedures.

300.533 Determination of needed

evaluation data.

300.534 Determination of eligibility.

300.535 Procedures for determining

eligibility and placement.

300.536 Reevaluation.

Additional Procedures for Evaluating

Children With Specific Learning Disabilities

300.540 Additional team members.

300.541 Criteria for determining the

existence of a specific learning disability.

300.542 Observation.

300.543 Written report.

Least Restrictive Environment

300.550 General.

300.551 Continuum of alternative

placements.

300.552 Placements.

300.553 Nonacademic settings.

300.554 Children in public or private

institutions.

300.555 Technical assistance and training

activities.

300.556 Monitoring activities.

Confidentiality of Information

300.560 Definitions.

300.561 Notice to parents.

300.562 Access rights.

300.563 Record of access.

300.564 Records on more than one child.

300.565 List of types and locations of

information.

300.566 Fees.

300.567 Amendment of records at parent’s

request.

300.568 Opportunity for a hearing.

300.569 Result of hearing.

300.570 Hearing procedures.

300.571 Consent.

300.572 Safeguards.

300.573 Destruction of information.

300.574 Children’s rights.

300.575 Enforcement.

300.576 Disciplinary information.

300.577 Department use of personally

identifiable information.

Department Procedures

300.580 Determination by the Secretary that

a State is eligible.

300.581 Notice and hearing before

determining that a State is not eligible.

300.582 Hearing official or panel.

300.583 Hearing procedures.

300.584 Initial decision; final decision.

300.585 Filing requirements.

300.586 Judicial review.

300.587 Enforcement.

300.588 [Reserved]

300.589 Waiver of requirement regarding

supplementing and not supplanting with

Part B funds.

Subpart F—State Administration; General

300.600 Responsibility for all educational

programs.

300.601 Relation of Part B to other Federal

programs.

300.602 State-level activities.

Use of Funds

300.620 Use of funds for State

administration.

300.621 Allowable costs.

300.622 Subgrants to LEAs for capacitybuilding and improvement.

300.623 Amount required for subgrants to

LEAs.

300.624 State discretion in awarding

subgrants.

State Advisory Panel

300.650 Establishment of advisory panels.

300.651 Membership.

300.652 Advisory panel functions.

300.653 Advisory panel procedures.

State Complaint Procedures

300.660 Adoption of State complaint

procedures.

300.661 Minimum State complaint

procedures.

300.662 Filing a complaint.

Subpart G—Allocation of Funds; Reports

Allocations

300.700 Special definition of the term

‘‘State.’’

300.701 Grants to States.

300.702 Definitions.

300.703 Allocations to States.

300.704–300.705 [Reserved]

300.706 Permanent formula.

300.707 Increase in funds.

300.708 Limitation.

300.709 Decrease in funds.

300.710 Allocation for State in which bypass is implemented for private school

children with disabilities.

300.711 Subgrants to LEAs.

300.712 Allocations to LEAs.

300.713 Former Chapter 1 State agencies.
55068 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

300.714 Reallocation of LEA funds.

300.715 Payments to the Secretary of the

Interior for the education of Indian

children.

300.716 Payments for education and

services for Indian children with

disabilities aged 3 through 5.

300.717 Outlying areas and freely

associated States.

300.718 Outlying area—definition.

300.719 Limitation for freely associated

States.

300.720 Special rule.

300.721 [Reserved]

300.722 Definition.

Reports

300.750 Annual report of children served—

report requirement.

300.751 Annual report of children served—

information required in report.

300.752 Annual report of children served—

certification.

300.753 Annual report of children served—

criteria for counting children.

300.754 Annual report of children served—

other responsibilities of the State

education agency.

300.755 Disproportionality.

300.756 Acquisition of equipment;

construction or alteration of facilities.

Appendix A to Part 300—[Reserved]

Appendix B to Part 300—[Reserved]

Appendix C to Part 300—Notice of

Interpretation

Authority: 20 U.S.C. 1411–1420, unless

otherwise noted.

Subpart A—General

Purposes, Applicability, and

Regulations That Apply to This

Program

§ 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

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 note)

Note: With respect to paragraph (a) of this

section (related to preparing children with

disabilities for employment and independent

living, section 701 of the Rehabilitation Act

of 1973 describes the philosophy of

independent living as including a philosophy

of consumer control, peer support, self-help,

self-determination, equal access, and

individual and system advocacy, in order to

maximize the leadership, empowerment,

independence, and productivity of

individuals with disabilities, and the

integration and full inclusion of individuals

with disabilities into the mainstream of

American society.

§ 300.2 Applicability to State, local, and

private agencies.

(a) States. This part applies to each

State that receives payments under Part

B of the Act.

(b) Public agencies within the State.

The provisions of this part apply to all

political subdivisions of the State that

are involved in the education of

children with disabilities. These

political subdivisions include—

(1) The State educational agency;

(2) LEAs and educational service

agencies;

(3) Other State agencies and schools

(such as Departments of Mental Health

and Welfare and State schools for

students with deafness or students with

blindness); and

(4) State and local juvenile and adult

correctional facilities.

(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

§ 300.403(c).

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

Note: The requirements of this part are

binding on each public agency that has direct

or delegated authority to provide special

education and related services in a State that

receives funds under Part B of the Act,

regardless of whether that agency is receiving

funds under Part B.

§ 300.3 Regulations that apply.

The following regulations apply to

this program:

(a) 34 CFR part 76 (StateAdministered Programs) except for

§§ 76.125–76.137 and 76.650–76.662.

(b) 34 CFR part 77 (Definitions).

(c) 34 CFR part 79 (Intergovernmental

Review of Department of Education

Programs and Activities).

(d) 34 CFR part 80 (Uniform

Administrative Requirements for Grants

and Cooperative Agreements to State

and Local Governments).

(e) 34 CFR part 81 (General Education

Provisions Act—Enforcement).

(f) 34 CFR part 82 (New Restrictions

on Lobbying).

(g) 34 CFR part 85 (Governmentwide

Debarment and Suspension

(Nonprocurement) and

Governmentwide Requirements for

Drug-Free Workplace (Grants)).

(h) The regulations in this part—34

CFR part 300 (Assistance for Education

of Children with Disabilities).

(Authority: 20 U.S.C. 1221e–3(a)(1))

Definitions

Note 1: Definitions of terms that are used

throughout these regulations are included in

this Subpart. Other terms are defined in the

specific subparts in which they are used. A

list of those terms and the specific sections

in which they are defined:

Appropriate professional requirements in the

State (§ 300.136(a)(1))

Average per-pupil expenditure in public

elementary and secondary schools in the

United States (§ 300.702)

Base year (§ 300.706(b)(1))

Comparable quality (§ 300.455(c))

Consent (§ 300.500(b)(1))

Controlled Substance (§ 300.520(d)(1))

Destruction (§ 300.560)

Direct services (§ 300.370(b)(1))

Education records (§ 300.560)

Evaluation (§ 300.500(b)(2))

Excess costs (§ 300.184(b))

Extended school year services (§ 300.309(b))

Financial costs (§ 300.142(e)(2))

Freely associated States (§ 300.722)

Highest requirements in the State applicable

to a specific profession or discipline

(§ 300.136(a)(2))

Illegal drug (§ 300.520(d)(2))

Independent educational evaluation

(§ 300.503(a)(3)(i))

Indian (§ 300.264(a))

Indian tribe (§ 300.264(b))

Outlying area (§ 300.718)

Participating agency, as used in the IEP

requirements in §§ 300.347 and 300.348

(§ 300.340(b))

Participating agency, as used in the

confidentiality requirements in

§§ 300.560–300.576(§ 300.340(b))

Party or parties (§ 300.583(a))

Personally identifiable (§ 300.500(b)(3))

Private school children with disabilities

(§ 300.450)

Profession or discipline (§ 300.136(a)(3))

Public expense (§ 300.502(a)(3)(ii))

Revoke consent at any time (§ 300.500 note)

State, special definition (§ 300.700)

State-approved or recognized certification,

licensing, registration, or other

comparable requirements

(§ 300.136(a)(4))

Substantial evidence (§ 300.521(e))

Support services (§ 300.370(b)(2))

Weapon (§ 300.520(d)(3))

Note 2: The following abbreviations for

selected terms are used throughout these

regulations: ‘‘CSPD’’ means ‘‘comprehensive

system of personnel development.’’

‘‘ESA’’ means ‘‘education service agency.’’

‘‘FAPE’’ means ‘‘free appropriate public

education.’’

‘‘IDEA’’ means ‘‘Individuals with Disabilities

Education Act.’’

‘‘IEP’’ means ‘‘individualized education

program.’’

‘‘IFSP’’ means ‘‘individualized family service

plan.’’

‘‘LEA’’ means ‘‘Local educational agency.’’
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55069

‘‘LRE’’ means ‘‘least restrictive

environment.’’

‘‘SEA’’ means ‘‘State educational agency.’’

Each abbreviation is used interchangeably

with its nonabbreviated term.

§ 300.4 Act.

As used in this part, Act means the

Individuals with Disabilities Education

Act, as amended (IDEA).

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

§ 300.5 Assistive technology device.

As used in this part, 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.

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

§ 300.6 Assistive technology service.

As used in this part, 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))

Note: The Act’s definitions of ‘‘Assistive

technology device’’ and ‘‘Assistive

technology service’’ are substantially

identical to the definitions of these terms

used in the Technology-Related Assistance

for Individuals with Disabilities Act of 1988.

§ 300.7 Child with a disability.

(a) (1) As used in this part, the term

child with a disability means a child

evaluated in accordance with

§§ 300.530–300.536 as having mental

retardation, a hearing impairment

including deafness, a speech or

language impairment, a visual

impairment including blindness, serious

emotional disturbance (hereafter

referred to as emotional disturbance), an

orthopedic impairment, autism,

traumatic brain injury, an other health

impairment, a specific learning

disability, deaf-blindness, or a multiple

disability, and who because of that

impairment needs special education and

related services.

(2) The term child with a disability for

children aged 3 through 9 may include

a child—

(i) 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;

(ii) Who, for that reason, needs special

education and related services; and

(iii) If the State adopts the term for

children of this age range (or a subset of

that range) and the LEA chooses to use

the term.

(b) The terms used in this definition

are defined as follows:

(1) Autism means a developmental

disability significantly affecting verbal

and nonverbal communication and

social interaction, generally evident

before age 3, 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. The

term does not apply if a child’s

educational performance is adversely

affected primarily because the child has

an emotional disturbance, as defined in

paragraph (b)(4) of this section.

(2) Deaf-blindness means concomitant

hearing and visual impairments, the

combination of which causes such

severe communication and other

developmental and educational

problems 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) Emotional disturbance is defined

as follows:

(i) The term 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) The term includes schizophrenia.

The term does not apply to children

who are socially maladjusted, unless it

is determined that they have an

emotional disturbance.

(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 disability means

concomitant impairments (such as

mental retardation-blindness, mental

retardation-orthopedic impairment,

etc.), the combination of which causes

such severe educational problems that

the problems cannot be accommodated

in special education programs solely for

one of the impairments. The term does

not include deaf-blindness.

(8) Orthopedic impairment means a

severe orthopedic impairment that

adversely affects a child’s educational

performance. The term includes

impairments caused by congenital

anomaly (e.g., clubfoot, absence of some

member, etc.), impairments caused by

disease (e.g., poliomyelitis, bone

tuberculosis, etc.), and impairments

from other causes (e.g., cerebral palsy,

amputations, and fractures or burns that

cause contractures).

(9) Other health impairment means

having limited strength, vitality or

alertness, due to chronic or acute health

problems such as a heart condition,

tuberculosis, rheumatic fever, nephritis,

asthma, sickle cell anemia, hemophilia,
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epilepsy, lead poisoning, leukemia, or

diabetes, that adversely affects a child’s

educational performance.

(10) Specific learning disability is

defined as follows:

(i) General. The term 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 an imperfect ability to listen,

think, speak, read, write, spell, or to do

mathematical calculations, including

such conditions as perceptual

disabilities, brain injury, minimal brain

dysfunction, dyslexia, and

developmental aphasia.

(ii) Disorders not included. The term

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. The term 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. The term 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) (A) and (B);

1401(26))

Note 1: If a child manifests characteristics

of the disability category ‘‘autism’’ after age

3, that child still could be diagnosed as

having ‘‘autism’’ if the criteria in paragraph

(b)(1) of this section are satisfied.

Note 2: As used in paragraph (a)(2) of this

section, the phrase ‘‘at the discretion of the

State and LEA’’ means that if the State adopts

the term ‘‘developmental delay’’ for children

aged 3 through 9, or for a subset of that age

range (e.g., children aged 3 through 5, etc.),

LEAs that choose to use ‘‘developmental

delay,’’ rather than identify these children as

being in a particular disability category, must

conform to the State’s definition of the term.

However, a State may not require an LEA to

use ‘‘developmental delay’’ for this age range.

LEAs in a State that does not adopt the term

‘‘developmental delay’’ for children in this

age range, or for a sub-set of this age range,

cannot independently use ‘‘developmental

delay’’ as a basis for establishing a child’s

eligibility.

Note 3: With respect to paragraph (a)(2) of

this section (relating to ‘‘developmental

delay’’), the House Committee Report on Pub.

L. 105–17 includes the following statement:

The Committee believes that, in the early

years of a child’s development, it is often

difficult to determine the precise nature of

the disability. Use of ‘‘developmental delay’’

as part of a unified approach will allow the

special education and related services to be

directly related to the child’s needs and

prevent locking the child into an eligibility

category which may be inappropriate or

incorrect, and could actually reduce later

referrals of children with disabilities to

special education. (H. Rep. No. 105–95, p. 86

(1997))

Note 4: With respect to paragraph (b)(4) of

this section (relating to using the term

‘‘emotional disturbance’’ instead of ‘‘serious

emotional disturbance’’), the House

Committee Report on Pub. L. 105–17

includes the following statement:

The committee wants to make clear that

changing the terminology from ‘‘serious

emotional disturbance’’ to ‘‘serious emotional

disturbance (hereinafter referred to as

‘emotional disturbance’)’’ in the definition of

a ‘‘child with a disability’’ is intended to

have no substantive or legal significance. It

is intended strictly to eliminate the pejorative

connotation of the term ‘‘serious.’’ It should

in no circumstances be construed to change

the existing meaning of the term under 34

CFR 300.7(b)(9) as promulgated September

29, 1992 (H. Rep. No. 105–95, p. 86 (1997))

Note 5: A child with attention deficit

disorder (ADD) or attention deficit

hyperactivity disorder (ADHD) may be

eligible under Part B of the Act if the child’s

condition meets one of the disability

categories described in § 300.7, and because

of that disability the child needs special

education and related services. Some

children with ADD or ADHD who are eligible

under Part B of the Act meet the criteria for

‘‘other health impairments’’ (see paragraph

(b)(9) of this section). Those children would

be classified as eligible for services under the

‘‘other health impairments’’ category if (1)

the ADD or ADHD is determined to be a

chronic health problem that results in limited

alertness, that adversely affects educational

performance, and (2) special education and

related services are needed because of the

ADD or ADHD. The term ‘‘limited alertness’’

includes a child’s heightened alertness to

environmental stimuli that results in limited

alertness with respect to the educational

environment.

Other children with ADD or ADHD may be

eligible under Part B of the Act because they

satisfy the criteria applicable to other

disability categories in § 300.7(b). For

example, children with ADD or ADHD would

be eligible for services under the ‘‘specific

learning disability category’’ if they meet the

criteria in paragraph (b)(10) of this section, or

under the ‘‘emotional disturbance’’ category

if they meet the criteria in paragraph (b)(4).

Even if a child with ADD or ADHD is found

to be not eligible for services under Part B of

the Act, the requirements of Section 504 of

the Rehabilitation Act of 1973 and its

implementing regulations at 34 CFR Part 104

may still be applicable.

§ 300.8 Day.

As used in this part, the term day

means calendar day unless otherwise

indicated as school day or business day.

(Authority: 20 U.S.C. 1221e–3)

§ 300.9 Educational service agency.

As used in this part, the term

educational service agency—

(a) Means a regional public

multiservice agency—

(1) Authorized by State law to

develop, manage, and provide services

or programs to LEAs; and

(2) Recognized as an administrative

agency for purposes of the provision of

special education and related services

provided within public elementary and

secondary schools of the State; and

(b) Includes any other public

institution or agency having

administrative control and direction

over a public elementary or secondary

school.

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

§ 300.10 Equipment.

As used in this part, the term

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(6))

§ 300.11 Free appropriate public

education.

As used in this part, the term free

appropriate public education means

special education and related services

that—
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55071

(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 preschool, elementary

school, or secondary school education

in the State; and

(d) Are provided in conformity with

an IEP that meets the requirements of

§§ 300.340–300.351.

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

§ 300.12 General curriculum.

As used in this part, the term general

curriculum means the curriculum

adopted by an LEA, schools within the

LEA, or where applicable, the SEA for

all children from preschool through

secondary school.

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

Note: The term ‘‘general curriculum’’, as

defined in this section, relates to the content

of the curriculum and not to the setting in

which it is used. Thus, to the extent

applicable to an individual child with a

disability and consistent with the LRE

provisions under §§ 300.500—300.553, the

general curriculum could be used in any

educational environment along a continuum

of alternative placements described under

§ 300.551.

§ 300.13 Include.

As used in this part, the term 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)

§ 300.14 Individualized education program.

As used in this part, the term

individualized education program or

IEP has the meaning given the term in

§ 300.340.

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

§ 300.15 Individualized education program

team.

As used in this part, the term

individualized education program team

or IEP team means a group of

individuals described in § 300.344 that

is responsible for developing, reviewing,

or revising an IEP for a child with a

disability.

(Authority: 20 U.S.C. 1221e–3)

Note: The IEP team may also serve as the

placement team.

§ 300.16 Individualized family service plan.

As used in this part, the term

individualized family service plan or

IFSP has the meaning given the term in

34 CFR 303.340(b).

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

§ 300.17 Local educational agency.

(a) As used in this part, the term local

educational agency 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 or secondary schools.

(b) The term includes—

(1) An educational service agency, as

defined in § 300.9; and

(2) Any other public institution or

agency having administrative control

and direction of a public elementary or

secondary school.

(c) The term includes an elementary

or secondary school funded by 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 this Act with the

smallest student population, except that

the school may not be subject to the

jurisdiction of any SEA other than the

Bureau of Indian Affairs.

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

Note: A public charter school that meets

the definition of ‘‘LEA’’ is eligible to receive

Part B funds as an LEA. If a public charter

school receives Part B funds it must comply

with the requirements of this part that apply

to LEAs.

§ 300.18 Native language.

As used in this part, the term native

language, if used with reference to an

individual of limited English

proficiency, means the language

normally used by that individual, or, in

the case of a child, the language

normally used by the parents of the

child.

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

Note: The term ‘‘native language’’ is used

in the prior notice, procedural safeguards

notice, and evaluation sections: § 300.503(c),

§ 300.504(c) and § 300.532(a)(2). In using the

term, the Act does not prevent the following

means of communication:

(1) In all direct contact with a child

(including evaluation of the child),

communication would be in the language

normally used by the child and not that of

the parents, if there is a difference between

the two.

(2) For individuals with deafness or

blindness, or for individuals with no written

language, the mode of communication would

be that normally used by the individual (such

as sign language, braille, or oral

communication).

§ 300.19 Parent.

(a) As used in this part, the term

parent means a parent, a guardian, a

person acting as a parent of a child, or

a surrogate parent who has been

appointed in accordance with § 300.515.

The term does not include the State if

the child is a ward of the State.

(b) State law may provide that a foster

parent qualifies as a parent under Part

B of the Act if—

(1) The natural parents’ authority to

make educational decisions on the

child’s behalf has been extinguished

under State law;

(2) The foster parent has an ongoing,

long-term parental relationship with the

child;

(3) The foster parent is willing to

participate in making educational

decisions in the child’s behalf; and

(4) The foster parent has no interest

that would conflict with the interests of

the child.

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

Note: The term ‘‘parent’’ is defined to

include persons acting in the place of a

parent, such as a grandparent or stepparent

with whom a child lives, as well as persons

who are legally responsible for a child’s

welfare, and at the discretion of the State, a

foster parent who meets the requirements in

paragraph (b) of this section.

§ 300.20 Public agency.

As used in this part, the term public

agency includes the SEA, LEAs, ESAs,

and any other political subdivisions of

the State that are responsible for

providing education to children with

disabilities.

(Authority: 20 U.S.C. 1412 (a)(1)(A), (a)(11))

§ 300.21 Qualified.

As used in this part, the term

qualified means that a person has met

SEA-approved or -recognized

certification, licensing, registration, or

other comparable requirements that

apply to the area in which he or she is

providing special education or related

services.

(Authority: 20 U.S.C. 1221e–3)

§ 300.22 Related services.

(a) As used in this part, the term

related services means transportation

and such developmental, corrective, and

other supportive services as are required

to assist a child with a disability to

benefit from special education, and

includes speech-language pathology and

audiology services, psychological

services, physical and occupational

therapy, recreation, including

therapeutic recreation, early
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identification and assessment of

disabilities in children, counseling

services, including rehabilitation

counseling, orientation and mobility

services, and medical services for

diagnostic or evaluation purposes. The

term also includes school health

services, social work services in schools,

and parent counseling and training.

(b) 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

pupils, parents, and teachers regarding

hearing loss; and

(vi) Determination of the child’s need

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) 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.

(5) Occupational therapy includes —

(i) Improving, developing or restoring

functions impaired or lost through

illness, injury, or deprivation;

(ii) Improving ability to perform tasks

for independent functioning if functions

are impaired or lost; and

(iii) Preventing, through early

intervention, initial or further

impairment or loss of function.

(6) Orientation and mobility services

means services provided to blind or

visually impaired students by qualified

personnel to enable those students to

attain systematic orientation to and safe

movement within their environments in

school, home, and community,

including —

(i) Teaching students 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 (for

example, using sound at a traffic light to

cross the street);

(ii) Teaching students to use the long

cane, as appropriate, to supplement

visual travel skills or as a tool for safely

negotiating the environment for

students with no available travel vision;

(iii) Teaching students to understand

and use remaining vision and distance

low vision aids, as appropriate; and

(iv) Other concepts, techniques, and

tools, as determined appropriate.

(7) Parent counseling and training

means assisting parents in

understanding the special needs of their

child and providing parents with

information about child development.

(8) Physical therapy means services

provided by a qualified physical

therapist.

(9) 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 needs of children as

indicated by psychological tests,

interviews, 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.

(10) Recreation includes —

(i) Assessment of leisure function;

(ii) Therapeutic recreation services;

(iii) Recreation programs in schools

and community agencies; and

(iv) Leisure education.

(11) 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 disabilities

by vocational rehabilitation programs

funded under the Rehabilitation Act of

1973, as amended.

(12) School health services means

services provided by a qualified school

nurse or other qualified person.

(13) 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 with 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.

(14) 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.

(15) 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(22))

Note 1: All related services may not be

required for each individual child. The list of

related services is not exhaustive and may

include other developmental, corrective, or

supportive services (such as artistic and

cultural programs, art, music, and dance

therapy, travel training, nutrition services,

and independent living services), if they are

required to assist a child with a disability to

benefit from special education in order for

the child to receive FAPE.

There are certain kinds of services that

might be provided by persons from varying

professional backgrounds and with a variety

of operational titles, depending upon

requirements in individual States. For

example, counseling services might be

provided by social workers, psychologists, or

guidance counselors, and psychological

testing might be done by qualified

psychological examiners, psychometrists, or

psychologists, depending upon State

standards.

Each related service defined under Part B

of the Act may include appropriate

administrative and supervisory activities that

are necessary for program planning,

management, and evaluation.
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Note 2: While ‘‘orientation and mobility

services’’ was added to the list of examples

of related services in recognition of its

critical importance to children who are blind

or have visual impairments, children with

other disabilities may also need to be taught

the skills they need to navigate their

environments (e.g. ‘‘travel training’’). The

House Committee Report on Public Law 105–

17 states:

* * *it is important to keep in mind that

children with other disabilities may also

need instruction in traveling around their

school, or to and from school. A high school

aged child with a mental disability, for

example, might need to be taught how to get

from class to class so that he can participate

in his inclusive program. The addition of

orientation and mobility services to the list

of identified related services is not intended

to result in the denial of appropriate services

for children with disabilities who do not

have visual impairments or blindness. (H.

Rep. No. 105–95, p.86 (1997))

In addition, travel training is important to

enable students to attain systematic

orientation to and safe movement within

their environment in school, home, at work,

and in the community.

Note 3: With respect to paragraph (b) of

this section, nothing in this part prohibits the

use of paraprofessionals to assist in the

provision of services described under this

section, if doing so is consistent with

§ 300.136(f).

Note 4: It should be assumed that most

children with disabilities receive the same

transportation services as nondisabled

children. For some children with disabilities,

integrated transportation may be achieved by

providing needed accommodations such as

lifts and other equipment adaptations on

regular school transportation vehicles.

§ 300.23 Secondary school.

As used in this part, the term

secondary school means a nonprofit

institutional day or residential 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(23))

§ 300.24 Special education.

(a) (1) As used in this part, the term

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) The term includes speechlanguage pathology services, or any

other related service, if the service

consists of specially-designed

instruction, at no cost to the parents, to

meet the unique needs of a child with

a disability, and is considered special

education rather than a related service

under State standards.

(3) The term also includes vocational

education if it consists of specially

designed instruction, at no cost to the

parents, to meet the unique needs of a

child with a disability.

(b) 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 is defined as

follows:

(i) The term means the development

of—

(A) Physical and motor fitness;

(B) Fundamental motor skills and

patterns; and

(C) Skills in aquatics, dance, and

individual and group games and sports

(including intramural and lifetime

sports).

(ii) The term includes special physical

education, adaptive physical education,

movement education, and motor

development.

(3) Specially-designed instruction

means adapting content, methodology

or delivery of instruction—

(i) To address the unique needs of an

eligible child under this part that result

from the child’s disability; and

(ii) To ensure access of the child to

the general curriculum, so that he or she

can meet the educational standards

within the jurisdiction of the public

agency that apply to all children.

(4) 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 requiring other

than a baccalaureate or advanced

degree.

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

Note: The definition of special education is

a particularly important one under these

regulations, since a child does not have a

disability under Part B of the Act unless he

or she needs special education. (See the

definition of child with a disability in

§ 300.7). The definition of related services

(§ 300.22) also depends on this definition,

since to be a related service, a service must

be necessary for a child to benefit from

special education. Therefore, if a child does

not need special education, there can be no

related services, and the child is not a child

with a disability and is therefore not covered

under the Act. A related services provider

may be a provider of specially-designed

instruction if under State law the person is

qualified to provide such instruction.

§ 300.25 State.

As used in this part, the term 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(27))

§ 300.26 Supplementary aids and services.

As used in this part, the term

supplementary aids and services means,

aids, services, and other supports that

are provided in regular education

classes or other education-related

settings to enable children with

disabilities to be educated with

nondisabled children to the maximum

extent appropriate in accordance with

§§ 300.550–300.556.

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

§ 300.27 Transition services.

As used in this part, transition

services means a coordinated set of

activities for a student with a disability

that—

(a) Is designed within an outcomeoriented process, that promotes

movement from school to post-school

activities, including postsecondary

education, vocational training,

integrated employment (including

supported employment), continuing and

adult education, adult services,

independent living, or community

participation;

(b) Is based on the individual

student’s needs, taking into account the

student’s preferences and interests; and

(c) Includes—

(1) Instruction;

(2) Related services;

(3) Community experiences;

(4) The development of employment

and other post-school adult living

objectives; and

(5) If appropriate, acquisition of daily

living skills and functional vocational

evaluation.

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

Note: Transition services for students with

disabilities may be special education, if they

are provided as specially designed

instruction, or related services, if they are

required to assist a student with a disability

to benefit from special education. The list of

activities in paragraph (c) of this section is

not intended to be exhaustive.

§ 300.28 Definitions in EDGAR.

The following terms used in this part

are defined in 34 CFR 77.1:

Application

Award

Contract

Department

EDGAR

Fiscal year

Grant

Project

Secretary

Subgrant
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(Authority: 20 U.S.C. 1221e–3(a)(1))

Subpart B—State and Local

Eligibility—General State Eligibility—

General

§ 300.110 Condition of assistance.

A State is eligible for assistance under

Part B of the Act for a fiscal year if the

State demonstrates to the satisfaction of

the Secretary that the State has in effect

policies and procedures to ensure that it

meets the conditions in §§ 300.121–

300.156.

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

§ 300.111 Exception for prior State policies

and procedures on file with the Secretary.

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 § 300.110, including any

policies and procedures filed under Part

B of the Act as in effect before June 4,

1997, the Secretary considers the State

to have met the requirement for

purposes of receiving a grant under Part

B of the Act.

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

§ 300.112 Amendments to State policies

and procedures.

(a) Modifications made by a State. (1)

Subject to paragraph (b) 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 decides are necessary.

(2) The provisions of this subpart

apply to a modification to a State’s

policies and procedures in the same

manner and to the same extent that they

apply to the State’s original policies and

procedures.

(b) 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 June 4, 1997, the provisions

of the Act or the regulations in this part

are amended;

(2) There is a new interpretation of

this Act or regulations by a Federal

court or a State’s highest court; or

(3) There is an official finding of

noncompliance with Federal law or

regulations.

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

§ 300.113 Approval by the Secretary.

(a) General. 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.

(b) Notice and hearing before

determining a State is not eligible. 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 after providing the State

reasonable notice and an opportunity

for a hearing in accordance with the

procedures in §§ 300.581–300.587.

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

§§ 300.114–300.120 [Reserved]

State Eligibility—Specific Conditions

§ 300.121 Free appropriate public

education.

(a) General. Each State must have on

file with the Secretary information that

shows that, subject to § 300.122, the

State has in effect a policy that ensures

that all children with disabilities aged 3

through 21 residing in the State have the

right to FAPE, including children with

disabilities who have been suspended or

expelled from school.

(b) Required information. The

information described in paragraph (a)

of this section must—

(1) Include a copy of each State

statute, court order, State Attorney

General opinion, and other State

documents that show the source of the

State’s policy relating to FAPE; and

(2) Show that the policy—

(i) Applies to all public agencies in

the State; and

(ii) Applies to all children with

disabilities, including children who

have been suspended or expelled from

school.

(c) FAPE for children suspended or

expelled from school.

(1) For the purposes of this section,

the term ‘‘children with disabilities who

have been suspended or expelled from

school’’ means children with disabilities

who have been removed from their

current educational placement for more

than 10 school days in a given school

year.

(2) The right to FAPE for children

with disabilities who have been

suspended or expelled from school

begins on the eleventh school day in a

school year that they are removed from

their current educational placement.

(3) In providing FAPE to children

with disabilities who have been

suspended or expelled from school, a

public agency shall meet the

requirements of § 300.522.

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

Note 1: With respect to paragraph (a) of

this section, a public agency’s obligation to

make FAPE available to each eligible child

means that the obligation begins no later than

the child’s third birthday. Thus, an IEP or an

IFSP must be in effect for the child by that

date, in accordance with § 300.342. The IEP

would specify the special education and

related services that are needed in order to

ensure that the child receives FAPE,

including any extended school year services,

if appropriate. If a child who is receiving

early intervention services under Part C of

the Act will be participating in a preschool

program under Part B of the Act, the

transition requirements of § 300.132 would

apply.

Note 2: School districts are not relieved of

their obligation to provide appropriate

special education and related services to

individual disabled students who need them

even though they are advancing from grade

to grade. The decision whether a student

with a disability who is advancing from

grade to grade is eligible for services under

this part must be determined on an

individual basis by the child’s IEP team.

§ 300.122 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—

(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 in one or more of those age

groups;

(2) Students 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—

(i) Were not actually identified as

being a child with a disability under

§ 300.7; and

(ii) Did not have an IEP under Part B

of the Act.

(3)(i) Students with disabilities who

have graduated from high school with a

regular high school diploma.

(ii) The exception in paragraph

(a)(3)(i) of this section does not apply to

students who have graduated but have

not been awarded a regular high school

diploma.

(b) Documents relating to exceptions.

The State must have on file with the

Secretary—

(1)(i) Information that describes in

detail the extent that the exception in

paragraph (a)(1) of this section applies

to the State; and

(ii) A copy of each State law, court

order, and other documents that provide

a basis for the exception; and

(2) With respect to paragraph (a)(2) of

this section, a copy of the State law that

excludes from service under Part B of

the Act certain students who are
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55075

incarcerated in an adult correctional

facility.

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

Note 1: Under paragraph (a)(3) of this

section, a student’s eligibility for FAPE

ceases upon graduation from high school

with a regular high school diploma. Under

Part B of the Act, graduation is considered to

be a change in placement, and would require

that prior written notice, in accordance with

§ 300.503, be given to the parents and the

student, if appropriate. The notice would

inform the parents and the student of this

fact and of their right to challenge the

student’s pending graduation (through the

due process procedures in § 300.507), if they

believe that the student has not met the

requirements for graduation with a regular

high school diploma. Since graduation

changes a student’s eligibility status, a

reevaluation would be required under

§ 300.534(c).

In a small number of cases, a school

district may be awarding a special certificate

to some children with disabilities. If a high

school awards a student with a disability

certificate of attendance or other certificate of

graduation instead of a regular high school

diploma, the student would still be entitled

to FAPE until the student reaches the age at

which eligibility ceases under the age

requirements within the State or has earned

a regular high school diploma.

Note 2: With respect to paragraph (a)(2) of

this section, (relating to certain students with

disabilities in adult prisons), the House

Committee Report on Pub. L. 105–17

includes the following statement:

The bill provides that a State may also opt

not to serve individuals who, in the

educational placement prior to their

incarceration in adult correctional facilities,

were not actually identified as a child with

a disability under section 602(3) or did not

have an IEP under Part B of the Act. The

Committee means to * * * make clear that

services need not be provided to all children

who were at one time determined to be

eligible under Part B of the Act. The

Committee does not intend to permit the

exclusion from services under part B of

children who had been identified as children

with disabilities and had received services

under an IEP, but who had left school prior

to their incarceration. In other words, if a

child had an IEP in his or her last

educational placement, the child has an IEP

for purposes of this provision. The

Committee added language to make clear that

children with disabilities aged 18 through 21,

who did not have an IEP in their last

educational setting but who had actually

been identified should not be excluded from

services.(H. Rep. No. 105–95, p. 91 (1997))

§ 300.123 Full educational opportunity

goal.

The State must have on file with the

Secretary detailed policies and

procedures through which the State has

established a goal of providing full

educational opportunity to all children

with disabilities aged birth through 21.

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

§ 300.124 FEOG—timetable.

The State must have on file with the

Secretary a detailed timetable for

accomplishing the goal of providing full

educational opportunity for all children

with disabilities.

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

§ 300.125 Child find.

(a) General requirement. The State

must have in effect policies and

procedures to ensure that—

(1) All children with disabilities

residing in the State, including 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

(2) A practical method is developed

and implemented to determine which

children are currently receiving needed

special education and related services.

(b) Documents relating to child find.

The State must have on file with the

Secretary the policies and procedures

described in paragraph (a) of this

section, including—

(1) The name of the State agency (if

other than the SEA) responsible for

coordinating the planning and

implementation of the policies and

procedures under paragraph (a) of this

section;

(2) The name of each agency that

participates in the planning and

implementation of the child find

activities and a description of the nature

and extent of its participation;

(3) A description of how the policies

and procedures under paragraph (a) of

this section will be monitored to ensure

that the SEA obtains—

(i) The number of children with

disabilities within each disability

category that have been identified,

located, and evaluated; and

(ii) Information adequate to evaluate

the effectiveness of those policies and

procedures; and

(4) A description of the method the

State uses to determine which children

are currently receiving special

education and related services.

(c) Construction. Nothing in the Act

requires that children be classified by

their disability so long as each child

who has a disability listed in § 300.7

and who, by reason of that disability,

needs special education and related

services is regarded as a child with a

disability under Part B of the Act.

(Authority: 20 U.S.C. 1412 (a)(3) (A) and (B))

Note 1: Collection and use of data are

subject to the confidentiality requirements of

§§ 300.560–300.577.

Note 2: The services and placement needed

by each child with a disability to receive

FAPE must be based upon the child’s unique

needs and may not be determined or limited

based upon a category of disability.

Note 3: Under both Parts B and C of the

Act, States are responsible for identifying,

locating, and evaluating infants and toddlers

from birth through 2 years of age who have

disabilities or who are suspected of having

disabilities. In States where the SEA and the

State’s lead agency for the Part C program are

different and the Part C lead agency will be

participating in the child find activities

described in paragraph (a) of this section, the

nature and extent of the Part C lead agency’s

participation must, under paragraph (b)(2) of

this section, be provided. With the SEA’s

agreement, the Part C lead agency’s

participation may include the actual

implementation of child find activities for

infants and toddlers. The use of an

interagency agreement or other mechanism

for providing for the Part C lead agency’s

participation would not alter or diminish the

responsibility of the SEA to ensure

compliance with all child find requirements,

including the requirement in paragraph (a)(1)

of this section that all children with

disabilities who are in need of special

education and related services are evaluated.

Note 4: Each State has an obligation to

ensure that State and local child find

responsibilities under Part B of the Act

extend to highly mobile children (such as

migrant and homeless children).

§ 300.126 Procedures for evaluation and

determination of eligibility.

The State must have on file with the

Secretary policies and procedures that

ensure that the requirements of

§§ 300.530–300.536 are met.

(Authority: 20 U.S.C. 1412(a) (6)(B), (7))

§ 300.127 Confidentiality of personally

identifiable information.

(a) The State must have on file in

detail the policies and procedures that

the State has undertaken in order to

ensure the protection of the

confidentiality of any personally

identifiable information, collected,

used, or maintained under Part B of the

Act.

(b) The Secretary uses the criteria in

§§ 300.560–300.577 to evaluate the

policies and procedures of the State

under paragraph (a) of this section.

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

Note: The regulations implementing the

Family Educational Rights and Privacy Act

are in 34 CFR Part 99. Those regulations are

incorporated in §§ 300.560–300.577.

§ 300.128 Individualized education

programs.

(a) General. The State must have on

file with the Secretary information that

shows that an IEP, or 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 §§ 300.340–300.351.
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(b) Required information. The

information described in paragraph (a)

of this section must include—

(1) A copy of each State statute,

policy, and standard that regulates the

manner in which IEPs are developed,

implemented, reviewed, and revised;

and

(2) The procedures that the SEA

follows in monitoring and evaluating

those programs.

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

§ 300.129 Procedural safeguards.

(a) The State must have on file with

the Secretary procedural safeguards that

ensure that the requirements of

§§ 300.500–300.529 are met.

(b) Children with disabilities and

their parents must be afforded the

procedural safeguards identified in

paragraph (a) of this section.

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

§ 300.130 Least restrictive environment.

(a) General. The State must have on

file with the Secretary procedures that

ensure that the requirements of

§§ 300.550–300.556 are met.

(b) Additional requirement.

(1) If the State uses a funding

mechanism by which the State

distributes State funds on the basis of

the type of setting in which a child is

served, the funding mechanism may not

result in placements that violate the

requirements of paragraph (a) of this

section.

(2) If the State does not have policies

and procedures to ensure compliance

with paragraph (b)(1) of this section, the

State must provide the Secretary an

assurance that the State will revise the

funding mechanism as soon as feasible

to ensure that the mechanism does not

result in placements that violate that

paragraph.

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

Note: With respect to the LRE requirement

of this section, and the continuum of

alternative educational placements described

in § 300.551, the House Committee Report on

Pub. L. 105–17 states:

The committee supports the longstanding

policy of a continuum of alternative

placements designed to meet the unique

needs of each child with a disability.

Placement options available include

instruction in regular classes, special classes,

special schools, home instruction, and

instruction in hospitals and institutions. For

disabled children placed in regular classes,

supplementary aids and services and

resource room services or itinerant

instruction must also be offered as needed.

(H. Rep. 105–95, p. 91 (1997))

§ 300.131 [Reserved]

§ 300.132 Transition of children from Part

C to preschool programs.

The State must have on file with the

Secretary policies and procedures to

ensure that—

(a) Children participating in earlyintervention 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)(8) of the Act;

(b) By the third birthday of a child

described in paragraph (a) of this

section, an IEP or, if consistent with

§ 300.342(c) and section 636(d) of the

Act, an IFSP, has been developed and

must be implemented for the child; and

(c) Each LEA will participate in

transition planning conferences

arranged by the designated lead agency

under section 637(a)(8) of the Act.

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

§ 300.133 Private schools.

The State must have on file with the

Secretary policies and procedures that

ensure that the requirements of

§§ 300.400–300.403 and §§ 300.450–

300.462 are met.

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

§ 300.134 [Reserved]

§ 300.135 Comprehensive system of

personnel development.

(a) General. The State must have in

effect, consistent with the purposes of

this part and with section 635(a)(8) of

the Act, a comprehensive system of

personnel development that —

(1) Is designed to ensure an adequate

supply of qualified special education,

regular education, and related services

personnel; and

(2) Meets the requirements for a State

improvement plan relating to personnel

development in section 653 (b)(2)(B)

and (c)(3)(D) of the Act.

(b) Information. The State must have

on file with the Secretary information

that shows that the requirements of

paragraph (a) of this section are met.

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

Note: With respect to meeting the CSPD

requirement of this section, the House

Committee Report on Pub. L. 105–17 states:

Section 612, as [in] current law, requires

that a State have in effect a Comprehensive

System of Personnel Development (CSPD)

that is designed to ensure an adequate supply

of qualified personnel, including the

establishment of procedures for acquiring

and disseminating significant knowledge

derived from educational research and for

adopting, where appropriate, promising

practices, materials, and technology. (H. Rep.

105–95, p. 93 (1997))

States will be able to use the information

provided to meet the requirement in

§ 300.135(a)(2) as a part of their State

Improvement Plan under section 653 of the

Act, if they choose to do so.

§ 300.136 Personnel standards.

(a) As used in this part —

(1) Appropriate professional

requirements in the State means entry

level requirements that—

(i) Are based on the highest

requirements in the State applicable to

the profession or discipline in which a

person is providing special education or

related services; and

(ii) Establish suitable qualifications

for personnel providing special

education and related services under

Part B of the Act to children and youth

with disabilities who are served by

State, local, and private agencies (see

§ 300.2);

(2) Highest requirements in the State

applicable to a specific profession or

discipline means the highest entry-level

academic degree needed for any Stateapproved or -recognized certification,

licensing, registration, or other

comparable requirements that apply to

that profession or discipline;

(3) Profession or discipline means a

specific occupational category that —

(i) Provides special education and

related services to children with

disabilities under Part B of the Act;

(ii) Has been established or designated

by the State; and

(iii) Has a required scope of

responsibility and degree of

supervision; and

(4) State-approved or -recognized

certification, licensing, registration, or

other comparable requirements means

the requirements that a State legislature

either has enacted or has authorized a

State agency to promulgate through

rules to establish the entry-level

standards for employment in a specific

profession or discipline in that State.

(b) (1) The State must have on file

with the Secretary policies and

procedures relating to the establishment

and maintenance of standards to ensure

that personnel necessary to carry out the

purposes of this part are appropriately

and adequately prepared and trained.

(2) The policies and procedures

required in paragraph (b)(1) of this

section must provide for the

establishment and maintenance of

standards that are consistent with any

State-approved or -recognized

certification, licensing, registration, or

other comparable requirements that

apply to the profession or discipline in

which a person is providing special

education or related services.
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(c) To the extent that a State’s

standards for a profession or discipline,

including standards for temporary or

emergency certification, are not based

on the highest requirements in the State

applicable to a specific profession or

discipline, the State must provide the

steps the State is taking and the

procedures for notifying public agencies

and personnel of those steps and the

timelines it has established for the

retraining or hiring of personnel to meet

appropriate professional requirements

in the State.

(d) (1) In meeting the requirements in

paragraphs (b) and (c) of this section, a

determination must be made about the

status of personnel standards in the

State. That determination must be based

on current information that accurately

describes, for each profession or

discipline in which personnel are

providing special education or related

services, whether the applicable

standards are consistent with the

highest requirements in the State for

that profession or discipline.

(2) The information required in

paragraph (d)(1) of this section must be

on file in the SEA and available to the

public.

(e) In identifying the highest

requirements in the State for purposes

of this section, the requirements of all

State statutes and the rules of all State

agencies applicable to serving children

and youth with disabilities must be

considered.

(f) A State may allow

paraprofessionals and assistants who are

appropriately trained and supervised, in

accordance with State law, regulations,

or written policy, in meeting the

requirements of this part to be used to

assist in the provision of special

education and related services to

children with disabilities under Part B

of the Act.

(g) In implementing this section, a

State may adopt a policy that includes

a requirement that LEAs in the State

make an ongoing good faith effort to

recruit and hire appropriately and

adequately trained personnel to provide

special education and related services to

children with disabilities, including, in

a geographic area of the State where

there is a shortage of personnel that

meet these qualifications, the most

qualified individuals available who are

making satisfactory progress toward

completing applicable course work

necessary to meet the standards

described in paragraph (b)(2) of this

section, consistent with State law and

the steps described in paragraph (c) of

this section, within three years.

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

Note 1: The regulations require that the

State use its own existing highest

requirements to determine the standards

appropriate to personnel who provide special

education and related services under Part B

of the Act. The regulations do not require

States to set any specified training standard,

such as a master’s degree, for employment of

personnel who provide services under Part B

of the Act. In some instances, States are

required under paragraph (c) of this section

to show that they are taking steps to retrain

or to hire personnel to meet the standards

adopted by the SEA that are based on

requirements for practice in a specific

profession or discipline that were established

by other State agencies. States in this

position need not, however, require

personnel providing services under Part B of

the Act to apply for and obtain the license,

registration, or other comparable credential

required by other agencies of individuals in

that profession or discipline. The regulations

permit each State to determine the specific

occupational categories required to provide

special education and related services and to

revise or expand these categories as needed.

The professions or disciplines defined by the

State need not be limited to traditional

occupational categories.

Note 2: A State may exercise the option

under paragraph (g) of this section even

though the State has reached its established

date, under paragraph (c) of this section, for

training or hiring all personnel in a specific

profession or discipline to meet appropriate

professional requirements in the State. As a

practical matter, it is essential that a State

have a mechanism for serving students if

instructional needs exceed available

personnel who meet appropriate professional

requirements in the State for a specific

profession or discipline. A State that

continues to have shortages of personnel

meeting appropriate professional

requirements in the State must address those

shortages in its comprehensive system of

personnel development under § 300.135.

Note 3: If a State has established only one

entry-level academic degree for employment

of personnel in a specific profession,

modification of that standard as necessary to

ensure the provision of FAPE to all children

in the State would not violate the provisions

of § 300.136(b) and (c).

§ 300.137 Performance goals and

indicators.

The State must have on file with the

Secretary information to demonstrate

that the State—

(a) Has established goals for the

performance of children with

disabilities in the State that—

(1) Will promote the purposes of this

part, as stated in § 300.1; and

(2) Are consistent, to the maximum

extent appropriate, with other goals and

standards for all children established by

the State;

(b) Has established performance

indicators that the State will use to

assess progress toward achieving those

goals that, at a minimum, address the

performance of children with

disabilities on assessments, drop-out

rates, and graduation rates;

(c) Every two years, will 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; and

(d) Based on its assessment of that

progress, will revise its State

improvement plan under subpart 1 of

Part D of the Act as may be needed to

improve its performance, if the State

receives assistance under that subpart.

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

§ 300.138 Participation in assessments.

The State must have on file with the

Secretary information to demonstrate

that—

(a) Children with disabilities are

included in general State and districtwide assessment programs, with

appropriate accommodations if

necessary;

(b) As appropriate, the State or LEA—

(1) Develops guidelines for the

participation of children with

disabilities in alternate assessments for

those children who cannot participate

in State and district-wide assessment

programs;

(2) Develops alternate assessments in

accordance with paragraph (b)(1) of this

section; and

(3) Beginning not later than, July 1,

2000, conducts the alternate

assessments described in paragraph

(b)(2) of this section.

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

Note: With respect to paragraph (b) of this

section, it is assumed that only a small

percentage of children with disabilities will

need alternative assessments.

§ 300.139 Reports relating to

assessments.

(a) General. In implementing the

requirements of § 300.138, the SEA shall

make available to the public, and report

to the public with the same frequency

and in the same detail as it reports on

the assessment of nondisabled children,

the following information:

(1) The number of children with

disabilities participating—

(i) In regular assessments; and

(ii) The number of those children

participating in alternate assessments.

(2) The performance results of the

children described in paragraph (a)(1) of

this section—

(i) On regular assessments (beginning

not later than July 1, 1998); and

(ii) On alternate assessments (not later

than July 1, 2000), if doing so would be

statistically sound and would not result

in the disclosure of performance results

identifiable to individual children.
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(b) Combined reports. Reports to the

public under paragraph (a) of this

section must include—

(1) Aggregated data that include the

performance of children with

disabilities together with all other

children; and

(2) Disaggregated data on the

performance of children with

disabilities.

(c) Disaggregation of data. Data

relating to the performance of children

described under paragraph (a)(2) of this

section must be disaggregated—

(1) For assessments conducted after

July 1, 1998; and

(2) For assessments conducted before

July 1, 1998, if the State is required to

disaggregate the data prior to July 1,

1998.

(Authority: 20 U.S.C. 612(a)(17)(B))

Note: Paragraph (b) of this section requires

a public agency to report aggregated data that

include children with disabilities. However,

a public agency is not precluded from also

analyzing and reporting data in other ways

(such as, maintaining a trendline that was

established prior to including children with

disabilities in those assessments).

§ 300.140 [Reserved]

§ 300.141 SEA responsibility for general

supervision.

(a) The State must have on file with

the Secretary information that shows

that the requirements of § 300.600 are

met.

(b) The information described under

paragraph (a) of this section must

include a copy of each State statute,

State regulation, signed agreement

between respective agency officials, and

any other documents that show

compliance with that paragraph.

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

§ 300.142 Methods of ensuring services.

(a) Establishing responsibility for

services. The Chief Executive Officer or

designee of that officer shall 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

is 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) Agency financial responsibility.

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 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) Conditions and terms of

reimbursement. The conditions, terms,

and procedures under which an LEA

must be reimbursed by other agencies.

(3) Interagency disputes. 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) Coordination of services

procedures. 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) General. 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, § 300.22 relating to

related services, § 300.26 relating to

supplementary aids and services, and

§ 300.27 relating to transition services)

that are necessary for ensuring FAPE to

children with disabilities within the

State, the public agency shall fulfill that

obligation or responsibility, either

directly or through contract or other

arrangement.

(2) Reimbursement for services by

noneducational public agency. 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) shall provide or pay for these

services to the child. The LEA or State

agency may then claim reimbursement

for the services from the noneducational

public agency that failed to provide or

pay for these services and that agency

shall reimburse the LEA or State agency

in accordance with the terms of the

interagency agreement or other

mechanism described in paragraph

(a)(1) of this section, and the agreement

described in paragraph (a)(2) 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.

(d) Information. The State must have

on file with the Secretary information to

demonstrate that the requirements of

paragraphs (a) through (c) of this section

are met.

(e) Children with disabilities who are

covered by private insurance.

(1) A public agency may not require

parents of children with disabilities, if

they would incur a financial cost, to use

private insurance proceeds to pay for

the services that must be provided to an

eligible child under this part.

(2) For the purposes of this section,

the term financial costs includes —

(i) An out-of-pocket expense such as

the payment of a deductible or co-pay

amount incurred in filing a claim, but

not including incidental costs such as

the time needed to file an insurance

claim or the postage needed to mail the

claim;

(ii) A decrease in available lifetime

coverage or any other benefit under an

insurance policy; and

(iii) An increase in premiums or the

discontinuation of the policy.

(f) Proceeds from public or private

insurance. Proceeds from public or

private insurance may not be treated as

program income for purposes of 34 CFR

80.25.

(Authority: 20 U.S.C. 1412(a)(12) (A), (B), and

(C); 1401(8))

Note 1: The House Committee Report on

Pub. L. 105–17 related to methods of

ensuring services states:

A provision is added to the Act to

strengthen the obligation to ensure that all

services necessary to ensure a free

appropriate public education are provided

through the coordination of public

educational and non-educational programs.

This subsection is meant to reinforce two

important principles: (1) That the State

agency or LEA responsible for developing a

child’s IEP can look to noneducational

agencies such as Medicaid to provide those

services they (the non-educational agencies)

are otherwise responsible for; and (2) that the

State agency or LEA remains responsible for
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ensuring that children receive all the services

described in their IEPs in a timely fashion,

regardless of whether another agency will

ultimately pay for the services.

The Committee places particular emphasis

in the bill on the relationship between

schools and the State Medicaid Agency in

order to clarify that health services provided

to children with disabilities who are

Medicaid-eligible and meet the standards

applicable to Medicaid, are not disqualified

for reimbursement by Medicaid agencies

because they are provided services in a

school context in accordance with the child’s

IEP. (H. Rep. 105-95, p. 92 (1997))

Note 2: The intent of paragraph (e) of this

section is to make clear that services required

under Part B of the Act must be provided at

no cost to the child’s parents, whether they

have public or private insurance. The

Department, in a Notice of Interpretation

published Dec. 30, 1980 at 45 FR 66390

noted that both Part B of the Act and Section

504 of the Rehabilitation Act of 1973 prohibit

a public agency from requiring parents,

where they would incur a financial cost, to

use insurance proceeds to pay for services

that are required to be provided to a child

with a disability under the FAPE

requirements of those statutes. The use of

parents’ insurance proceeds to pay for

services in these circumstances must be

voluntary. For example, a family could not be

required to access private insurance that is

required to enable a child to receive

Medicaid services, where that insurance use

results in financial costs to the family.

Note 3: If the public agency cannot get

parent consent to use private insurance, the

public agency may use funds under this part

to pay for the service. In addition, in order

to avoid financial costs to parents who

otherwise would consent to use private

insurance, the public agency may use funds

under this part to pay the costs of accessing

the insurance, e.g., deductible or co-pay

amounts.

Note 4: Paragraph (f) clarifies that, if a

public agency receives funds from public or

private insurance for services under this part,

the public agency is not required to return

those funds to the Department or to dedicate

those funds for use in this program, although

a public agency retains the option of using

those funds in this program. 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

§§ 300.154 and 300.231. This is because the

expenditure that is reimbursed is considered

to be an expenditure of funds from the source

that provides the reimbursement.

§ 300.143 SEA implementation of

safeguards.

The State must have on file with the

Secretary the procedures that the SEA

(and any agency assigned responsibility

pursuant to § 300.600(d)) follows to

inform each public agency of its

responsibility for ensuring effective

implementation of procedural

safeguards for the children with

disabilities served by that public

agency.

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

§ 300.144 Hearing relating to LEA

eligibility.

The State must have on file with the

Secretary procedures to ensure that the

SEA does not make any final

determination that an LEA is not

eligible for assistance under Part B of

the Act without first giving the LEA

reasonable notice and an opportunity

for a hearing under 34 CFR 76.401(d).

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

§ 300.145 Recovery of funds for

misclassified children.

The State must have on file with the

Secretary policies and procedures that

ensure that the State seeks to recover

any funds provided under Part B of the

Act for services to a child who is

determined to be erroneously classified

as eligible to be counted under section

611 (a) or (d) of the Act.

(Authority: 20 U.S.C. 1221e–3(a)(1))

§ 300.146 Suspension and expulsion rates.

The State must have on file with the

Secretary information to demonstrate

that the following requirements are met:

(a) General. The SEA examines data 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 the

agencies.

(b) Review and revision of policies. If

the discrepancies described in

paragraph (a) of this section are

occurring, the SEA reviews and, if

appropriate, revises (or requires the

affected State agency or LEA to revise)

its policies, procedures, and practices

relating to the development and

implementation of IEPs, the use of

behavioral interventions, and

procedural safeguards, to ensure that

these policies, procedures, and practices

comply with the Act.

(Authority: 20 U.S.C. 612(a)(22))

§ 300.147 Additional information if SEA

provides direct services.

(a) If the SEA provides FAPE to

children with disabilities, or provides

direct services to these children, the

agency—

(1) Shall comply with any additional

requirements of §§ 300.220–300.230(a)

and 300.234–300.250 as if the agency

were an LEA; and

(2) May use amounts that are

otherwise available to the agency under

Part B of the Act to serve those children

without regard to § 300.184 (relating to

excess costs).

(b) The SEA must have on file with

the Secretary information to

demonstrate that it meets the

requirements of paragraph (a)(1) of this

section.

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

§ 300.148 Public participation.

(a) The State must ensure that, prior

to the adoption of any policies and

procedures needed to comply with this

part, 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 consistent

with §§ 300.280–300.284.

(b) The State must have on file with

the Secretary information to

demonstrate that the requirements of

paragraph (a) of this section are met.

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

§ 300.149 [Reserved]

§ 300.150 State advisory panel.

The State must have on file with the

Secretary information to demonstrate

that the State has established and

maintains 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 in accordance

with the requirements of §§ 300.650–

300.653.

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

§ 300.151 [Reserved]

§ 300.152 Prohibition against

commingling.

The State must have on file with the

Secretary an assurance satisfactory to

the Secretary that the funds under Part

B of the Act are not commingled with

State funds.

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

Note: This assurance is satisfied by the use

of a separate accounting system that includes

an audit trail of the expenditure of the Part

B funds. Separate bank accounts are not

required. (See 34 CFR 76.702 (Fiscal control

and fund accounting procedures).)

§ 300.153 State-level nonsupplanting.

(a) General. (1) Except as provided in

§ 300.230, 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

these Federal, State, and local funds.
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(2) The State must have on file with

the Secretary information to

demonstrate to the satisfaction of the

Secretary that the requirements of

paragraph (a)(1) of this section are met.

(b) Waiver. 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 (a) of this section if the

Secretary concurs with the evidence

provided by the State under § 300.589.

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

§ 300.154 Maintenance of State financial

support.

(a) General. The State must have on

file with the Secretary information to

demonstrate that the State will 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

§ 300.589 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 must be the amount that

would have been required in the

absence of that failure and not the

reduced level of the State’s support.

(Authority: 20 U.S.C. 612(a)(19))

§ 300.155 Policies and procedures for use

of Part B funds.

The State must have on file with the

Secretary policies and procedures

designed to ensure that funds paid to

the State under Part B of the Act are

spent in accordance with the provisions

of Part B.

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

§ 300.156 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 under

§ 300.602 will be used to meet the

requirements of this part;

(2) How those amounts will be

allocated among the activities described

in §§ 300.621 and 300.370 to meet State

priorities based on input from LEAs;

and

(3) The percentage of those amounts,

if any, that will be distributed to LEAs

by formula.

(b) If a State’s plans for use of its

funds under §§ 300.370 and 300.620 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.

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

LEA and State Agency Eligibility—

General

§ 300.180 Condition of assistance.

An LEA or State agency is eligible for

assistance under Part B of the Act for a

fiscal year if the agency demonstrates to

the satisfaction of the SEA that it meets

the conditions in §§ 300.220–300.250.

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

§ 300.181 Exception for prior LEA or State

agency policies and procedures on file with

the SEA.

If an LEA or State agency described in

§ 300.194 has on file with the SEA

policies and procedures that

demonstrate that the LEA or State

agency meets any requirement of

§ 300.180, including any policies and

procedures filed under Part B of the Act

as in effect before June 4, 1997, the SEA

shall consider the LEA or State agency

to have met the requirement for

purposes of receiving assistance under

Part B of the Act.

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

§ 300.182 Amendments to LEA policies

and procedures.

(a) Modification made by an LEA or

a State agency. (1) Subject to paragraph

(b) of this section, policies and

procedures submitted by an LEA or a

State agency in accordance with this

subpart remain in effect until it submits

to the SEA the modifications that the

LEA or State agency decides are

necessary.

(2) The provisions of this subpart

apply to a modification to an LEA’s or

State agency’s policies and procedures

in the same manner and to the same

extent that they apply to the LEA’s or

State agency’s original policies and

procedures.

(b) 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 this part, if—

(1) After June 4, 1997, the provisions

of the Act or the regulations in this part

are amended;

(2) There is a new interpretation 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))

§ 300.183 [Reserved]

§ 300.184 Excess cost requirement.

(a) General. 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.

(b) Definition. As used in this part, the

term 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 or secondary school student,

as may be appropriate. Excess costs

must be computed after deducting—

(1) Amounts received—

(i) Under Part B of the Act;

(ii) Under Part A of title I of the

Elementary and Secondary Education

Act of 1965; or

(iii) Under Part A of title VII of that

Act; and

(2) Any State or local funds expended

for programs that would qualify for

assistance under any of those parts.

(c) Limitation on use of Part B funds.

(1) 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 (c)(2) of

this section.

(2) 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
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55081

children in that age range. However, the

LEA must comply with the

nonsupplanting and other requirements

of this part in providing the education

and services.

(Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))

§ 300.185 Meeting the excess cost

requirement.

(a)(1) General. 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.

(2) The amount described in

paragraph (a)(1) of this section is

determined using the formula in

§ 300.184(b). This amount may not

include capital outlay or debt service.

(b) Joint establishment of eligibility. If

two or more LEAs jointly establish

eligibility in accordance with § 300.190,

the minimum average amount is the

average of the combined minimum

average amounts determined under

§ 300.184 in those agencies for

elementary or secondary school

students, as the case may be.

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

Note: The excess cost requirement means

that the LEA must spend a certain minimum

amount for the education of its children with

disabilities before Part B funds are used. This

ensures that children served with Part B

funds have at least the same average amount

spent on them, from sources other than Part

B, as do the children in the school district

in elementary or secondary school as the case

may be.

Excess costs are those costs of special

education and related services that exceed

the minimum amount. Therefore, if an LEA

can show that it has (on the average) spent

the minimum amount for the education of

each of its children with disabilities, it has

met the excess cost requirement, and all

additional costs are excess costs. Part B funds

can then be used to pay for these additional

costs.

§§ 300.186–300.189 [Reserved]

§ 300.190 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 would be ineligible under

this section because the agency would

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 it 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

§§ 300.711–300.714 if the agencies were

eligible for these payments.

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

§ 300.191 [Reserved]

§ 300.192 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

§§ 300.121–300.156; 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

§§ 300.190–300.192, an educational

service agency shall provide for the

education of children with disabilities

in the least restrictive environment, as

required by § 300.130.

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

§ 300.193 [Reserved]

§ 300.194 State agency eligibility.

Any State agency that desires to

receive a subgrant for any fiscal year

under §§ 300.711–300.714 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(i))

§ 300.195 [Reserved]

§ 300.196 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, the SEA shall—

(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))

§ 300.197 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 section is failing to

comply with any requirement described

in §§ 300.220–300.250, the SEA shall

reduce or may 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 shall, 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) In carrying out its functions under

this section, each SEA shall consider

any decision resulting from a hearing

under §§ 300.507–300.528 that is

adverse to the LEA or State agency

involved in the decision.

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

LEA Eligibility—Specific Conditions

§ 300.220 Consistency with State policies.

(a) General. 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 §§ 300.121–300.156.

(b) Policies on file with SEA. The LEA

must have on file with the SEA the

policies and procedures described in

paragraph (a) of this section.

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

§ 300.221 LEA and State agency

implementation of CSPD.

The LEA must have on file with the

SEA information to demonstrate that—

(a) All personnel necessary to carry

out Part B of the Act within the

jurisdiction of the agency are

appropriately and adequately prepared,

consistent with the requirements of

§§ 300.380–300.382; and
55082 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

(b) To the extent the LEA determines

appropriate, it shall contribute to and

use the comprehensive system of

personnel development of the State

established under § 300.135.

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

§ 300.222–300.229 [Reserved]

§ 300.230 Use of amounts.

The LEA must have on file with the

SEA information to demonstrate that

amounts provided to the LEA under Part

B of the Act—

(a) Will be expended in accordance

with the applicable provisions of this

part;

(b) Will be used only to pay the excess

costs of providing special education and

related services to children with

disabilities, consistent with §§ 300.184–

300.185; and

(c) Will be used to supplement State,

local, and other Federal funds and not

to supplant those funds.

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

§ 300.231 Maintenance of effort.

(a) General. Except as provided in

§ 300.232 and § 300.233, funds provided

to the LEA under Part B of the Act may

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) Information. The LEA must have

on file with the SEA information to

demonstrate that the requirements of

paragraph (a) of this section are met.

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

§ 300.232 Exception to maintenance of

effort.

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—

(a) The voluntary departure, by

retirement or otherwise, or departure for

just cause, of special education or

related services personnel, who are

replaced by qualified, lower-salaried

staff;

(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; or

(d) The termination of costly

expenditures for long-term purchases,

such as the acquisition of equipment or

the construction of school facilities.

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

Note: With respect to the voluntary

departure of special education personnel

described in paragraph (a) of this section, the

House Committee Report on Pub. L. 105–17

(1) clarifies that the intended focus of this

exception is on special education personnel

who are paid at or near the top of the salary

schedule, and (2) sets out guidelines under

which this exception may be invoked by an

LEA:

This exception is included in recognition

that, in some situations, when higher-salaried

personnel depart from their positions in

special education, they are replaced by

qualified, lower-salaried staff. In such

situations, as long as certain safeguards are

in effect, the LEA should not be required to

maintain the level of the higher-salaried

personnel. In order for the LEA to invoke this

exception, the agency must ensure that such

voluntary retirement or resignation and

replacement are in full conformity with

existing school board policies in the agency,

with the applicable collective bargaining

agreement in effect at that time, and with

applicable State statutes. (H. Rep. 105–95, p.

96 (1997))

§ 300.233 Treatment of federal funds in

certain fiscal years.

(a)(1) Subject to paragraphs (a)(2) and

(b) of this section, for any fiscal year for

which amounts appropriated to carry

out section 611 of the Act exceeds

$4,100,000,000, an LEA may treat as

local funds up to 20 percent of the

amount of funds it receives under Part

B of the Act that exceeds the amount it

received under Part B of the Act for the

previous fiscal year.

(2) The requirements of §§ 300.230(c)

and 300.231 do not apply with respect

to the amount that may be treated as

local funds under paragraph (a)(1) of

this section.

(b) If an SEA determines that an LEA

is not meeting the requirements of this

part, the SEA may prohibit the LEA

from treating funds received under Part

B of the Act as local funds under

paragraph (a)(1) of this section for any

fiscal year, but only if it is authorized

to do so by the State constitution or a

State statute.

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

§ 300.234 Schoolwide programs under title

I of the ESEA.

(a) 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 Elementary

and Secondary Education Act of 1965,

except that the amount used in any

program may not exceed—

(1)(i) The amount received by the LEA

under Part B for that fiscal year; divided

by

(ii) The number of children with

disabilities in the jurisdiction of the

LEA; multiplied by

(2) The number of children with

disabilities participating in the

schoolwide program.

(b) The funds described in paragraph

(a) of this section may be used without

regard to the requirements of

§ 300.230(a).

(c) The funds described in paragraph

(a) of this section must be considered as

Federal Part B funds for purposes of the

calculations required by §§ 300.230 (b)

and (c).

(d) Except as provided in paragraphs

(b) and (c) of this section, all other

requirements of Part B must be met by

an LEA using Part B funds in

accordance with paragraph (a) of this

section.

Note: Although IDEA funds may be

combined in a schoolwide project, and thus

used for services that are not special

education and related services, all other

requirements of the IDEA must still be met

for children with disabilities in schoolwide

project schools that combine IDEA funds in

a schoolwide project. Thus, children with

disabilities in schoolwide project schools

must still receive services in accordance with

a properly developed IEP and must still be

afforded all of the rights and services

guaranteed to children with disabilities

under the IDEA.

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

§ 300.235 Permissive use of funds.

(a) General. Subject to paragraph (b)

of this section, 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) Integrated and coordinated

services system. To develop and

implement a fully integrated and

coordinated services system in

accordance with § 300.244.

(b) Application for certain use of

funds. An LEA does not violate

§§ 300.152, 300.230, and 300.231 based

on its use of funds provided under Part

B of the Act in accordance with
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paragraphs (a)(1) and (a)(2) of this

section.

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

§ 300.236–300.239 [Reserved]

§ 300.240 Information for SEA.

(a) The LEA shall 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 §§ 300.137 and 300.138,

information relating to the performance

of children with disabilities

participating in programs carried out

under Part B of the Act.

(b) The LEA must have on file with

the SEA an assurance satisfactory to the

SEA that the LEA will comply with the

requirements of paragraph (a) of this

section.

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

§ 300.241 Treatment of charter schools

and their students.

The LEA must have on file with the

SEA information to demonstrate that in

carrying out this part with respect to

charter schools that are public schools

of the LEA, the LEA will—

(a) Serve children with disabilities

attending those schools in the same

manner as it serves children with

disabilities in its other schools; and

(b) Provide funds under Part B of the

Act to those schools in the same manner

as it provides those funds to its other

schools.

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

Note: The provisions of this part that apply

to other public schools also apply to public

charter schools. Therefore, children with

disabilities who attend public charter schools

and their parents retain all rights under this

part. With respect to this provision, the

House Committee Report on Pub. L. 105–17

states:

‘‘The Committee expects that charter

schools will be in full compliance with Part

B.’’ (H. Rep. 105–95, p. 97 (1997))

§ 300.242 Public information.

The LEA must have on file with the

SEA information to demonstrate to the

satisfaction of the SEA that it will make

available to parents of children with

disabilities and to the general public all

documents relating to the eligibility of

the agency under Part B of the Act.

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

§ 300.243 [Reserved]

§ 300.244 Coordinated services system.

(a) General. An LEA may not use more

than 5 percent of the amount the agency

receives under Part B of the Act for any

fiscal year, in combination with other

amounts (which must include amounts

other than education funds), to develop

and implement a coordinated services

system designed to improve results for

children and families, including

children with disabilities and their

families.

(b) Activities. In implementing a

coordinated services system under this

section, an LEA may carry out activities

that include—

(1) Improving the effectiveness and

efficiency of service delivery, including

developing strategies that promote

accountability for results;

(2) Service coordination and case

management that facilitate the linkage of

IEPs under Part B of the Act and IFSPs

under Part C of the Act with

individualized service plans under

multiple Federal and State programs,

such as title I of the Rehabilitation Act

of 1973 (vocational rehabilitation), title

XIX of the Social Security Act

(Medicaid), and title XVI of the Social

Security Act (supplemental security

income);

(3) Developing and implementing

interagency financing strategies for the

provision of education, health, mental

health, and social services, including

transition services and related services

under the Act; and

(4) Interagency personnel

development for individuals working on

coordinated services.

(c) Coordination with certain projects

under Elementary and Secondary

Education Act of 1965. If an LEA is

carrying out a coordinated services

project under title XI of the Elementary

and Secondary Education Act of 1965

and a coordinated services project under

Part B of the Act in the same schools,

the agency shall use the amounts under

§§ 300.244 in accordance with the

requirements of that title.

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

§ 300.245 School-based improvement

plan.

(a) General. Each LEA may, in

accordance with paragraph (b) of this

section, use funds made available under

Part B of the Act to permit a public

school within the jurisdiction of the

LEA to design, implement, and evaluate

a school-based improvement plan that is

consistent with the purposes described

in section 651(b) of the Act and that is

designed to improve educational and

transitional results for all children with

disabilities and, as appropriate, for other

children consistent with § 300.235 (a)

and (b) in that public school.

(b) Authority.

(1) General. A SEA may grant

authority to an LEA to permit a public

school described in § 300.245 (through a

school-based standing panel established

under § 300.247(b)) to design,

implement, and evaluate a school-based

improvement plan described in

§ 300.245 for a period not to exceed 3

years.

(2) Responsibility of LEA. If a SEA

grants the authority described in

paragraph (b)(1) of this section, an LEA

that is granted this authority must have

the sole responsibility of oversight of all

activities relating to the design,

implementation, and evaluation of any

school-based improvement plan that a

public school is permitted to design

under this section.

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

§ 300.246 Plan requirements.

A school-based improvement plan

described in § 300.245 must—

(a) Be designed to be consistent with

the purposes described in section 651(b)

of the Act and to improve educational

and transitional results for all children

with disabilities and, as appropriate, for

other children consistent with § 300.235

(a) and (b), who attend the school for

which the plan is designed and

implemented;

(b) Be designed, evaluated, and, as

appropriate, implemented by a schoolbased standing panel established in

accordance with § 300.247(b);

(c) Include goals and measurable

indicators to assess the progress of the

public school in meeting these goals;

and

(d) Ensure that all children with

disabilities receive the services

described in their IEPs.

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

§ 300.247 Responsibilities of the LEA.

An LEA that is granted authority

under § 300.245(b) to permit a public

school to design, implement, and

evaluate a school-based improvement

plan shall—

(a) Select each school under the

jurisdiction of the agency that is eligible

to design, implement, and evaluate the

plan;

(b) Require each school selected

under paragraph (a) of this section, in

accordance with criteria established by

the LEA under paragraph (c) of this

section, to establish a school-based

standing panel to carry out the duties

described in § 300.246(b);

(c) Establish—

(1) Criteria that must be used by the

LEA in the selection of an eligible

school under paragraph (a) of this

section;

(2) Criteria that must be used by a

public school selected under paragraph

(a) of this section in the establishment

of a school-based standing panel to

carry out the duties described in
55084 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

§ 300.246(b) and that ensure that the

membership of the panel reflects the

diversity of the community in which the

public school is located and includes, at

a minimum—

(i) Parents of children with

disabilities who attend a public school,

including parents of children with

disabilities from unserved and

underserved populations, as

appropriate;

(ii) Special education and general

education teachers of public schools;

(iii) Special education and general

education administrators, or the

designee of those administrators, of

those public schools; and

(iv) Related services providers who

are responsible for providing services to

the children with disabilities who

attend those public schools; and

(3) Criteria that must be used by the

LEA with respect to the distribution of

funds under Part B of the Act to carry

out this section;

(d) Disseminate the criteria

established under paragraph (c) of this

section to local school district personnel

and local parent organizations within

the jurisdiction of the LEA;

(e) Require a public school that

desires to design, implement, and

evaluate a school-based improvement

plan to submit an application at the

time, in the manner and accompanied

by the information, that the LEA shall

reasonably require; and

(f) Establish procedures for approval

by the LEA of a school-based

improvement plan designed under Part

B of the Act.

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

§ 300.248 Limitation.

A school-based improvement plan

described in § 300.245(a) may be

submitted to an LEA for approval only

if a consensus with respect to any

matter relating to the design,

implementation, or evaluation of the

goals of the plan is reached by the

school-based standing panel that

designed the plan.

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

§ 300.249 Additional requirements.

(a) Parental involvement. In carrying

out the requirements of §§ 300.245–

300.250, an LEA shall ensure that the

parents of children with disabilities are

involved in the design, evaluation, and,

if appropriate, implementation of

school-based improvement plans in

accordance with this section.

(b) Plan approval. An LEA may

approve a school-based improvement

plan of a public school within the

jurisdiction of the agency for a period of

3 years, if—

(1) The approval is consistent with

the policies, procedures, and practices

established by the LEA and in

accordance with §§ 300.245–300.250;

and

(2) A majority of parents of children

who are members of the school-based

standing panel, and a majority of other

members of the school-based standing

panel that designed the plan, agree in

writing to the plan.

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

§ 300.250 Extension of plan.

If a public school within the

jurisdiction of an LEA meets the

applicable requirements and criteria

described in §§ 300.246 and 300.247 at

the expiration of the 3-year approval

period described § 300.249(b), the

agency may approve a school-based

improvement plan of the school for an

additional 3-year period.

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

Secretary of the Interior— Eligibility

§ 300.260 Submission of information.

The Secretary may provide the

Secretary of the Interior amounts under

§ 300.715 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)–(9), (10) (B), (C), (11)–(12),

(14)–(17), (20), (21) and (22) 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), (6) and (7) of the

Act;

(d) Meets the requirements of this part

that implement the sections of the Act

listed in paragraphs (a)–(c) of this

section;

(e) 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;

(f) 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 described in paragraph (a) of

this section;

(g) Includes an assurance that the

Secretary of the Interior will provide the

information that the Secretary may

require to comply with section 618 of

the Act, including data on the number

of children and youth with disabilities

served and the types and amounts of

services provided and needed;

(h) 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 State and

LEAs and other entities to facilitate the

provision of services to Indian children

with disabilities residing on or near

reservations (the agreement must

provide for the apportionment of

responsibilities and costs including, but

not limited to, child find, evaluation,

diagnosis, remediation or therapeutic

measures, and (if appropriate)

equipment and medical or personal

supplies as needed for a child to remain

in school or a program).

(i) Includes an assurance that the

Department of the Interior will

cooperate with the Department in its

exercise of monitoring and oversight of

this application, 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. Section 616(a)

of the Act applies to the information

described in this section.

(Authority: 20 U.S.C. 1411(i)(2))

§ 300.261 Public participation.

In fulfilling the requirements of

§ 300.260 the Secretary of the Interior

shall provide for public participation

consistent with §§ 300.280–300.284.

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

§ 300.262 Use of Part B funds.

(a) The Department of the Interior

may use five percent of its payment

under § 300.715 in any fiscal year, or

$500,000, whichever is greater, for

administrative costs in carrying out the

provisions of this part.

(b) Payments to the Secretary of the

Interior under § 300.716 must be used in

accordance with that section.

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

§ 300.263 Plan for coordination of

services.

(a) The Secretary of the Interior shall

develop and implement a plan for the

coordination of services for all Indian

children with disabilities residing on

reservations covered under Part B of the

Act.

(b) The plan must provide for the

coordination of services benefiting these

children from whatever source,

including tribes, the Indian Health

Service, other BIA divisions, and other

Federal agencies.
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(c) In developing the plan, the

Secretary of the Interior shall 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, State and 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(i)(4))

§ 300.264 Definitions.

(a) Indian. As used in this part, the

term Indian means an individual who is

a member of an Indian tribe.

(b) Indian tribe. As used in this part,

the term 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).

(Authority: 20 U.S.C. 1401(9) and (10))

§ 300.265 Establishment of advisory

board.

(a) To meet the requirements of

section 612(a)(21) of the Act, the

Secretary of the Interior shall establish,

not later than December 4, 1997 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 the

children, teachers, service providers,

State and local educational officials,

representatives of tribes or tribal

organizations, representatives from State

Interagency Coordinating Councils

under section 641 of the Act in States

having reservations, and other members

representing the various divisions and

entities of the BIA. The chairperson

must be selected by the Secretary of the

Interior.

(b) The advisory board shall—

(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’s responsibilities described in

section 611(i) 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

educational programming for Indian

infants, toddlers, and children with

disabilities; and

(5) Provide assistance in the

preparation of information required

under § 300.260(g).

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

§ 300.266 Annual reports.

The advisory board established under

§ 300.265 shall prepare and submit to

the Secretary of the Interior and to the

Congress an annual report containing a

description of the activities of the

advisory board for the preceding year.

(Authority: 20 U.S.C. 1411(i)(6)(A))

§ 300.267 Applicable regulations.

The Secretary of the Interior shall

comply with the requirements of

§§ 300.301–300.303, 300.305–300.309,

300.340–300.348, 300.351, 300.360–

300.382, 300.400–300.402, 300.500–

300.586, 300.600–300.621, and 300.660–

300.662.

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

Public Participation

§ 300.280 Public hearings before adopting

State policies and procedures.

Prior to its adoption of State policies

and procedures related to this part, the

SEA shall—

(a) Make the policies and procedures

available to the general public;

(b) Hold public hearings; and

(c) Provide an opportunity for

comment by the general public on the

policies and procedures.

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

§ 300.281 Notice.

(a) The SEA shall provide notice to

the general public of the public

hearings.

(b) The notice must be in sufficient

detail to inform the general public

about—

(1) The purpose and scope of the State

policies and procedures and their

relation to Part B of the Act;

(2) The availability of the State

policies and procedures;

(3) The date, time, and location of

each public hearing;

(4) The procedures for submitting

written comments about the policies

and procedures; and

(5) The timetable for submitting the

policies and procedures to the Secretary

for approval.

(c) The notice must be published or

announced—

(1) In newspapers or other media, or

both, with circulation adequate to notify

the general public about the hearings;

and

(2) Enough in advance of the date of

the hearings to afford interested parties

throughout the State a reasonable

opportunity to participate.

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

§ 300.282 Opportunity to participate;

comment period.

(a) The SEA shall conduct the public

hearings at times and places that afford

interested parties throughout the State a

reasonable opportunity to participate.

(b) The policies and procedures must

be available for comment for a period of

at least 30 days following the date of the

notice under § 300.281.

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

§ 300.283 Review of public comments

before adopting policies and procedures.

Before adopting the policies and

procedures, the SEA shall—

(a) Review and consider all public

comments; and

(b) Make any necessary modifications

in those policies and procedures.

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

§ 300.284 Publication and availability of

approved policies and procedures.

After the Secretary approves a State’s

policies and procedures, the SEA shall

give notice in newspapers or other

media, or both, that the policies and

procedures are approved. The notice

must name places throughout the State

where the policies and procedures are

available for access by any interested

person.

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

Subpart C—Services

Free Appropriate Public Education.

§ 300.300 Provision of FAPE.

(a) General. Subject to paragraphs (b)

and (c) of this section and § 300.311,

each State receiving assistance under

this part shall ensure that FAPE is

available to all children with

disabilities, aged 3 through 21, residing

in the State, including children with

disabilities who have been suspended or

expelled from school.

(b) Exception for age ranges 3–5 and

18–21. (1) This paragraph provides the

rules for applying the requirements in

paragraph (a) of this section to children

with disabilities aged 3, 4, 5, 18, 19, 20

and 21 within the State:

(2) If State law or a court order

requires the State to provide education
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for children with disabilities in any

disability category in any of these age

groups, the State must make FAPE

available to all children with disabilities

of the same age who have that disability.

(3) If a public agency provides

education to nondisabled children in

any of these age groups, it must make

FAPE available to at least a

proportionate number of children with

disabilities of the same age.

(4) If a public agency provides

education to 50 percent or more of its

children with disabilities in any

disability category in any of these age

groups, it must make FAPE available to

all its children with disabilities of the

same age who have that disability. This

provision does not apply to children

aged 3 through 5 for any fiscal year for

which the State receives a grant under

section 619(a)(1) of the Act.

(5) If a public agency provides

education to a child with a disability in

any of these age groups, it must make

FAPE available to that child and

provide that child and his or her parents

all of the rights under Part B of the Act

and this part.

(6) A State is not required to make

FAPE available to a child with a

disability in one of these age groups

if—

(i) State law expressly prohibits, or

does not authorize, the expenditure of

public funds to provide education to

nondisabled children in that age group;

or

(ii) The requirement is inconsistent

with a court order that governs the

provision of free public education to

children with disabilities in that State.

(c) Children aged 3 through 21 on

Indian reservations. With the exception

of children identified in § 300.715(b)

and (c), the SEA shall ensure that all of

the requirements of Part B are

implemented for all children aged 3

through 21 on reservations.

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

1411(i)(1)(C), S. Rep. No. 94–168, p. 19

(1975))

Note 1: The requirement to make FAPE

available applies to all children with

disabilities within the State who are in the

age ranges required under § 300.300 and who

need special education and related services.

This includes children with disabilities

already in school and children with less

severe disabilities.

Note 2: In order to be in compliance with

§ 300.300, each State must ensure that the

requirement to identify, locate, and evaluate

all children with disabilities is fully

implemented by public agencies throughout

the State.

Note 3: Under the Act, the age range for the

child find requirement (birth through 21) is

greater than the mandated age range for

providing FAPE. One reason for the broader

age requirement under ‘‘child find’’ is to

enable States to be aware of and plan for

younger children who will require special

education and related services, especially in

any case in which infants and toddlers with

disabilities are not participating in the early

intervention program under Part C of the Act.

It also ties in with the full educational

opportunity goal requirement that has the

same age range as child find. Moreover,

while a State is not required to provide FAPE

to children with disabilities below the age

ranges mandated under § 300.300, the State

may, at its discretion, extend services to

those children. (See note 3 following

§ 300.125 regarding the relationship between

the child find requirements under Part B of

the Act and those under Part C of the Act.)

§ 300.301 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.

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

§ 300.302 Residential placement.

If placement in a public or private

residential program is necessary to

provide special education and related

services to a child with a disability, the

program, including non-medical care

and room and board, must be at no cost

to the parents of the child.

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

1412(a)(10)(B))

Note: This requirement applies to

placements that are made by public agencies

for educational purposes, and includes

placements in State-operated schools for

children with disabilities, such as a State

school for students with deafness or students

with blindness.

§ 300.303 Proper functioning of hearing

aids.

Each public agency shall ensure that

the hearing aids worn in school by

children with hearing impairments,

including deafness, are functioning

properly.

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

Note: The report of the House of

Representatives on the 1978 appropriation

bill includes the following statement

regarding hearing aids:

In its report on the 1976 appropriation bill

the Committee expressed concern about the

condition of hearing aids worn by children

in public schools. A study done at the

Committee’s direction by the Bureau of

Education for the Handicapped reveals that

up to one-third of the hearing aids are

malfunctioning. Obviously, the Committee

expects the Office of Education will ensure

that hearing impaired school children are

receiving adequate professional assessment,

follow-up and services. H. R. Rep. No. 95–

381, p. 67 (1977)

§ 300.304 Full educational opportunity

goal.

Each SEA shall ensure that each

public agency establishes and

implements a goal of providing full

educational opportunity to all children

with disabilities in the area served by

the public agency.

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

Note: In meeting the full educational

opportunity goal, the Congress also

encouraged LEAs to include artistic and

cultural activities in programs supported

under Part B of the Act. This point is

addressed in the following statements from

the Senate Report on Pub. L. 94–142:

The use of the arts as a teaching tool for

the handicapped has long been recognized as

a viable, effective way not only of teaching

special skills, but also of reaching youngsters

who had otherwise been unteachable. The

Committee envisions that programs under

this bill could well include an arts

component and, indeed, urges that LEAs

include the arts in programs for the

handicapped funded under this Act. Such a

program could cover both appreciation of the

arts by the handicapped youngsters, and the

utilization of the arts as a teaching tool per

se.

Museum settings have often been another

effective tool in the teaching of handicapped

children. For example, the Brooklyn Museum

has been a leader in developing exhibits

utilizing the heightened tactile sensory skill

of the blind. Therefore, in light of the

national policy concerning the use of

museums in federally supported education

programs enunciated in the Education

Amendments of 1974, the Committee also

urges LEAs to include museums in programs

for the handicapped funded under this Act.

(S. Rep. No. 94–168, p. 13 (1975))

§ 300.305 Program options.

Each public agency shall take steps to

ensure that its children with disabilities

have available to them the variety of

educational programs and services

available to nondisabled children in the

area served by the agency, including art,

music, industrial arts, consumer and

homemaking education, and vocational

education.

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

Note: The list of program options is not

exhaustive, and could include any program

or activity in which nondisabled students

participate.

§ 300.306 Nonacademic services.

(a) Each public agency shall take steps

to provide nonacademic and
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extracurricular services and activities in

the manner as is necessary to afford

children with disabilities an equal

opportunity for participation in those

services and activities.

(b) Nonacademic and extracurricular

services and activities may include

counseling services, athletics,

transportation, health services,

recreational activities, special interest

groups or clubs sponsored by the public

agency, referrals to agencies that

provide assistance to individuals with

disabilities, and employment of

students, including both employment by

the public agency and assistance in

making outside employment available.

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

§ 300.307 Physical education.

(a) General. Physical education

services, specially designed if necessary,

must be made available to every child

with a disability receiving FAPE.

(b) Regular physical education. Each

child with a disability must be afforded

the opportunity to participate in the

regular physical education program

available to nondisabled children

unless—

(1) The child is enrolled full time in

a separate facility; or

(2) The child needs specially designed

physical education, as prescribed in the

child’s IEP.

(c) Special physical education. If

specially designed physical education is

prescribed in a child’s IEP, the public

agency responsible for the education of

that child shall 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

shall ensure that the child receives

appropriate physical education services

in compliance with paragraphs (a) and

(c) of this section.

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

1412(a)(5)(A))

Note: The Report of the House of

Representatives on Public Law 94–142

includes the following statement regarding

physical education:

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.

* * * * *

The Committee expects the Commissioner

of Education to take whatever action is

necessary to assure that physical education

services are available to all handicapped

children, and has specifically included

physical education within the definition of

special education to make clear that the

Committee expects such services, specially

designed where necessary, to be provided as

an integral part of the educational program of

every handicapped child. (H.R. Rep. No. 94–

332, p. 9 (1975))

§ 300.308 Assistive technology.

Each public agency shall ensure that

assistive technology devices or assistive

technology services, or both, as those

terms are defined in §§ 300.5–300.6, are

made available to a child with a

disability if required as a part of the

child’s—

(a) Special education under § 300.24;

(b) Related services under § 300.22; or

(c) Supplementary aids and services

under §§ 300.26 and 300.550(b)(2).

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

§ 300.309 Extended school year services.

(a) General. (1) Subject to paragraph

(a)(2) of this section, each public agency

shall ensure that extended school year

services are available to each child with

a disability to the extent necessary to

ensure that FAPE is available to the

child.

(2) The determination of whether a

child with a disability needs extended

school year services must be made on an

individual basis by the child’s IEP team,

in accordance with §§ 300.340–300.351.

(b) Definition. As used in this section,

the term extended school year services

means special education and related

services that—

(1) Are provided to a child with a

disability—

(i) Beyond the normal school year of

the public agency;

(ii) In accordance with the child’s IEP;

and

(iii) At no cost to the parents of the

child; and

(2) Meet the standards of the SEA.

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

Note 1: In implementing the requirements

of this section, an LEA may not limit

extended school year services to particular

categories of disability or unilaterally limit

the duration of services. Imposing those

limitations would violate the individuallyoriented focus of Part B of the Act. However,

with respect to paragraph (b) of this section,

nothing in this part requires that every child

with a disability is entitled to, or must

receive, extended school year services.

Note 2: States may establish standards for

use in determining on an individual basis,

whether a child with a disability needs

extended school year services so long as

those standards are not inconsistent with the

requirements of Part B of the Act. Factors that

States may wish to consider include:

likelihood of regression, slow recoupment,

and predictive data based on the opinion of

professionals.

§ 300.310 [Reserved]

§ 300.311 FAPE requirements for students

with disabilities in adult prisons.

(a) Exception to FAPE for certain

students. The obligation to make FAPE

available to all children with disabilities

does not apply with respect to students

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—

(1) Were not actually identified as

being a child with a disability under

§ 300.7; and

(2) Did not have an IEP under Part B

of the Act.

(b) Requirements that do not apply.

The following requirements do not

apply to students with disabilities who

are convicted as adults under State law

and incarcerated in adult prisons:

(1) The requirements contained in

§ 300.138 and § 300.347(a)(5)(i) (relating

to participation of children with

disabilities in general assessments).

(2) The requirements in § 300.347(b)

(relating to transition planning and

transition services), with respect to the

students 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.

(c) Modifications of IEP or placement.

(1) Subject to paragraph (c)(2) of this

section, the IEP team of a student with

a disability, who is convicted as an

adult under State law and incarcerated

in an adult prison, may modify the

student’s IEP or placement if the State

has demonstrated a bona fide security or

compelling penological interest that

cannot otherwise be accommodated.

(2) The requirements of §§ 300.340(a),

300.347(a) relating to IEPs, and

300.550(b) relating to LRE, do not apply

with respect to the modifications

described in paragraph (c)(1) of this

section.

(Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6))

Evaluations and Reevaluations

§ 300.320 Initial evaluations.

(a) Each public agency shall ensure

that a full and individual evaluation is

conducted for each child being

considered for special education and

related services under Part B of the

Act—
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(1) To determine if the child is a

‘‘child with a disability’’ under § 300.7;

and

(2) To determine the educational

needs of the child.

(b) In implementing the requirements

of paragraph (a) of this section, the

public agency shall ensure that—

(1) The evaluation is conducted in

accordance with the procedures

described in §§ 300.530—300.535; and

(2) The results of the evaluation are

used by the child’s IEP team in meeting

the requirements of §§ 300.340—

300.351.

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

§ 300.321 Reevaluations.

Each public agency shall ensure

that—

(a) A reevaluation of each child with

a disability is conducted in accordance

with the requirements of §§ 300.530—

330.536; and

(b) The results of any reevaluations

are used by the child’s IEP team under

§§ 300.340–300.350 in reviewing and, as

appropriate, revising the child’s IEP.

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

§ 300.322–300.324 [Reserved]

Individualized Education Programs

§ 300.340 Definitions.

(a) As used in this part, the term

individualized education program

means a written statement for a child

with a disability that is developed,

reviewed, and revised in accordance

with §§ 300.341–300.351.

(b) As used in §§ 300.347 and

300.348, participating agency means a

State or local agency, other than the

public agency responsible for a

student’s education, that is financially

and legally responsible for providing

transition services to the student.

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

§ 300.341 State educational agency

responsibility.

(a) Public agencies. The SEA shall

ensure that each public agency develops

and implements an IEP for each child

with a disability served by that agency.

(b) Private schools and facilities. The

SEA shall ensure that an IEP is

developed and implemented for each

child with a disability who—

(1) Is placed in or referred to a private

school or facility by a public agency; or

(2) Is enrolled in a religiouslyaffiliated school or other private school

and receives special education or

related services from a public agency.

(Authority: 20 U.S.C. 1412(a)(4), (a) (10) (A)

and (B))

Note: This section applies to all public

agencies, including other State agencies (e.g.,

departments of mental health and welfare)

that provide special education to a child with

a disability either directly, by contract, or

through other arrangements. Thus, if a State

welfare agency contracts with a private

school or facility to provide special

education to a child with a disability, that

agency would be responsible for ensuring

that an IEP is developed for the child.

§ 300.342 When IEPs must be in effect.

(a) At the beginning of each school

year, each LEA, SEA, or other State

agency, shall have in effect, for each

child with a disability within its

jurisdiction, an individualized

education program, as defined in

§ 300.340.

(b) An IEP must—

(1) Be in effect before special

education and related services are

provided to a child; and

(2) Be implemented as soon as

possible following the meetings

described under § 300.343.

(c)(1) In the case of a child with a

disability aged 3 through 5 (or, at the

discretion of the SEA a 2-year-old child

with a disability who will turn age 3

during the school year), an IFSP that

contains the material described in

section 636 of the Act, and that is

developed in accordance with

§§ 300.340–300.346 and 300.349–

300.351, may serve as the IEP of the

child if using that plan 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 (c)(1) of this section, the

public agency shall—

(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.

(d)(1) All IEPs in effect on July 1, 1998

must meet the requirements of

§§ 300.340–300.351.

(2) The provisions of §§ 300.340—

300.350 that were in effect on June 3,

1997 remain in effect until July 1, 1998.

(Authority: 20 U.S.C. 1414(d)(2) (A) and (B),

Pub. L. 105–17, sec. 201(a)(1)(C))

Note 1: It is expected that the IEP of a child

with a disability will be implemented

immediately following the meetings under

§ 300.343. Exceptions to this would be if (1)

the meetings occur during the summer or a

vacation period, unless the child requires

services during that period, or (2) there are

circumstances that require a short delay (e.g.,

working out transportation arrangements).

However, there can be no undue delay in

providing special education and related

services to the child.

Note 2: Certain requirements regarding

IEPs for students who are incarcerated in

adult prisons apply as of June 4, 1997.

Note 3: At the time that a child with a

disability moves from an early intervention

program under Part C of the Act to a

preschool program under this part, the

parent, if the agency agrees, has the option,

under paragraph (c) of this section, to allow

the child to continue receiving early

intervention services under an IFSP, or to

begin receiving special education and related

services in accordance with an IEP. Because

of the importance of the IEP as the statutory

vehicle for ensuring FAPE to a child with a

disability, paragraph (c)(2) of this section

provides that the parents’ agreement to use

an IFSP for the child instead of an IEP

requires written informed consent by the

parents that is based on an explanation of the

differences between an IFSP and an IEP.

§ 300.343 IEP meetings.

(a) General. Each public agency is

responsible for initiating and

conducting meetings for the purpose of

developing, reviewing, and revising the

IEP of a child with a disability (or, if

consistent with State policy and at the

discretion of the LEA, and with the

concurrence of the parents, an IFSP

described in section 636 of the Act for

each child with a disability, aged 3

through 5).

(b) Timelines. (1) Each public agency

shall ensure that an offer of services in

accordance with an IEP is made to

parents within a reasonable period of

time from the agency’s receipt of parent

consent to an initial evaluation.

(2) In meeting the timeline in

paragraph (b)(1) of this section, a

meeting to develop an IEP for the child

must be conducted within 30-days of a

determination that the child needs

special education and related services.

(c) Review and revision of IEP. Each

public agency shall ensure that the IEP

team—

(1) Reviews the child’s IEP

periodically, but not less than annually,

to determine whether the annual goals

for the child are being achieved; and

(2) Revises the IEP as appropriate to

address—

(i) Any lack of expected progress

toward the annual goals described in

§ 300.347(a), and in the general

curriculum, if appropriate;

(ii) The results of any reevaluation

conducted under this section;

(iii) Information about the child

provided to, or by, the parents, as

described in § 300.533(a)(1);

(iv) The child’s anticipated needs; or

(v) Other matters.

(Authority: 20 U.S.C. 1414(d)(3))

Note: For most children, it would be

reasonable to expect that a public agency

offer services in accordance with an IEP

within 60 days of receipt of parent consent

to initial evaluation.
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§ 300.344 IEP team.

(a) General. The public agency shall

ensure that the IEP team for each child

with a disability includes—

(1) The parents of the child;

(2) At least one regular education

teacher of the child (if the child is, or

may be, participating in the regular

education environment);

(3) At least one special education

teacher, or if appropriate, at least one

special education provider of the child;

(4) A representative of the LEA 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 curriculum; and

(iii) Is knowledgeable about the

availability of resources of the LEA;

(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 (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) If appropriate, the child.

(b) Transition services participants.

(1) Under paragraph (a)(7) of this

section, the public agency shall invite a

student with a disability of any age if a

purpose of the meeting will be the

consideration of the statement of

transition services needs or statement of

needed transition services for the

student under § 300.347(b)(1).

(2) If the student does not attend the

IEP meeting, the public agency shall

take other steps to ensure that the

student’s preferences and interests are

considered.

(3)(i) In implementing the

requirements of paragraph (b)(1) of this

section, the public agency also shall

invite a representative of any other

agency that is likely to be responsible

for providing or paying for transition

services.

(ii) If an agency invited to send a

representative to a meeting does not do

so, the public agency shall take other

steps to obtain participation of the other

agency in the planning of any transition

services.

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

Note: The regular education teacher

participating in a child’s IEP meeting should

be the teacher who is, or may be, responsible

for implementing the IEP, so that the teacher

can participate in discussions about how best

to teach the child.

If the child has more than one teacher, the

LEA may designate which teacher or teachers

will participate. In a situation in which all

of the child’s teachers do not participate in

the IEP meeting, the LEA is encouraged to

seek input from teachers who will not be

attending, and should ensure that any teacher

not attending the meeting is informed about

the results of the meeting (including

receiving a copy of the IEP). In the case of

a child whose behavior impedes the learning

of the child or others, the LEA is encouraged

to have a person knowledgeable about

positive behavior strategies at the IEP

meeting.

Similarly, the special education teacher or

provider participating in a child’s IEP

meeting should be the person who is, or will

be, responsible for implementing the IEP. If,

for example, the child’s disability is a speech

impairment, the teacher could be the speechlanguage pathologist.

§ 300.345 Parent participation.

(a) Each public agency shall take steps

to ensure that one or both of the parents

of a child with a disability are present

at each IEP meeting or are afforded the

opportunity to participate, including—

(1) Notifying parents of the meeting

early enough to ensure that they will

have an opportunity to attend; and

(2) Scheduling the meeting at a

mutually agreed on time and place.

(b)(1) The notice under paragraph (a)(1)

of this section must indicate the

purpose, time, and location of the

meeting and who will be in attendance.

(2) For a student with a disability

beginning at age 14, or younger, if

appropriate, the notice must also—

(i) Indicate that a purpose of the

meeting will be the development of a

statement of the transition services

needs of the student required in

§ 300.347(b)(1)(i); and

(ii) Indicate that the agency will invite

the student.

(3) For a student with a disability

beginning at age 16, or younger, if

appropriate, the notice must—

(i) Indicate that a purpose of the

meeting is the consideration of needed

transition services for the student

required in § 300.347(b)(1)(ii);

(ii) Indicate that the agency will invite

the student; and

(iii) Identify any other agency that

will be invited to send a representative.

(c) If neither parent can attend, the

public agency shall use other methods

to ensure parent participation, including

individual or conference telephone

calls.

(d) 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 have 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) The public agency shall take

whatever action is necessary to ensure

that the parent understands the

proceedings at a meeting, including

arranging for an interpreter for parents

with deafness or whose native language

is other than English.

(f) The public agency shall give the

parent, on request, a copy of the IEP.

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

Note: The notice in paragraph (a) of this

section could also inform parents that they

may bring other people to the meeting

consistent with § 300.344(a)(6). As indicated

in paragraph (d) of this section, the

procedure used to notify parents (whether

oral or written or both) is left to the

discretion of the agency, but the agency must

keep a record of its efforts to contact parents.

§ 300.346 Development, review, and

revision of IEP.

(a) Development of IEP.

(1) General. In developing each

child’s IEP, the IEP team, shall

consider—

(i) The strengths of the child and the

concerns of the parents for enhancing

the education of their child; and

(ii) The results of the initial or most

recent evaluation of the child.

(2) Consideration of special factors.

The IEP team also shall—

(i) In the case of a child whose

behavior impedes his or her learning or

that of others, consider, if appropriate,

strategies, including positive behavioral

interventions, strategies, and supports to

address that behavior;

(ii) In the case of a child with limited

English proficiency, consider the

language needs of the child as these

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
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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

requires assistive technology devices

and services.

(b) Review and Revision of IEP. In

conducting a meeting to review, and, if

appropriate, revise a child’s IEP, the IEP

team shall consider the factors

described in paragraph (a) of this

section.

(c) Statement in IEP. If, in considering

the special factors described in

paragraph (a) (1) and (2) of this section,

the IEP team determines that a child

needs a particular device or service

(including an intervention,

accommodation, or other program

modification) in order for the child to

receive FAPE, the IEP team must

include a statement to that effect in the

child’s IEP.

(d) Requirement with respect to

regular education teacher. The 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, review,

and revision of the child’s IEP,

including assisting in—

(1) The determination of appropriate

positive behavioral interventions and

strategies for the child; and

(2) The determination of

supplementary aids and services,

program modifications, and supports for

school personnel, consistent with

§ 300.347(a)(3).

(e) Construction. Nothing in this

section shall be construed to require 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) (3) and (4)(B)

and (e))

Note 1: The requirements of paragraph

(a)(2) of this section (relating to consideration

of special factors) were added by Pub. L.

105–17. These considerations are essential in

assisting the IEP team to develop meaningful

goals and other components of a child’s IEP,

if the considerations point to factors that

could impede learning. The results of

considering these special factors must, if

appropriate, be reflected in the IEP goals,

services, and provider responsibilities. As

appropriate, consideration of these factors

must include a review of valid evaluation

data and the observed needs of the child

resulting from the evaluation process.

Note 2: With respect to paragraph (a)(2)(iv)

of this section (relating to special

considerations for a child who is deaf or hard

of hearing), the House Committee Report on

Pub. L. 105–17 states that the IEP team

should implement the provision in a manner

consistent with the policy guidance entitled

‘‘Deaf Students Education Services,’’

published in the Federal Register (57 FR

49274, October 30, 1992) by the Department

(H. Rep. No. 105–95, p–104 (1997))

Note 3: In developing an IEP for a child

with limited English proficiency (LEP), the

IEP team must consider how the child’s level

of English language proficiency affects

special education and related services that

the child needs in order to receive FAPE.

Under Title VI of the Civil Rights Act of

1964, school districts are required to provide

LEP students with alternative language

services to enable the student to acquire

proficiency in English and to provide the

student with meaningful access to the

content of the educational curriculum that is

available to all students, including special

education and related services. A LEP

student with a disability may require special

education and related services for those

aspects of the educational program which

address the development of English language

skills and other aspects of the student’s

educational program. For a LEP student with

a disability, under paragraph (c) of this

section, the IEP must address whether the

special education and related services that

the child needs will be provided in a

language other than English.

§ 300.347 Content of IEP.

(a) General. The IEP for each child

must include—

(1) A statement of the child’s present

levels of educational performance,

including—

(i) How the child’s disability affects

the child’s involvement and progress in

the general curriculum; or

(ii) For preschool children, as

appropriate, how the disability affects

the child’s participation in appropriate

activities;

(2) A statement of measurable annual

goals, including benchmarks or shortterm objectives, related to—

(i) Meeting the child’s needs that

result from the child’s disability to

enable the child to be involved in and

progress in the general curriculum; and

(ii) Meeting each of the child’s other

educational needs that result from the

child’s disability;

(3) 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 and a statement of the program

modifications or supports for school

personnel that will be provided for the

child—

(i) To advance appropriately toward

attaining the annual goals;

(ii) To be involved and progress in the

general 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 paragraph;

(4) 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)(3) of this

section;

(5)(i) A statement of any individual

modifications in the administration of

State or district-wide assessments of

student achievement that are needed in

order for the child to participate in the

assessment; and

(ii) If the IEP team determines that the

child will not participate in a particular

State or district-wide assessment of

student achievement (or part of an

assessment), a statement of—

(A) Why that assessment is not

appropriate for the child; and

(B) How the child will be assessed;

(6) The projected date for the

beginning of the services and

modifications described in paragraph

(a)(3) of this section, and the anticipated

frequency, location, and duration of

those services and modifications; and

(7) A statement of—

(i) How the child’s progress toward

the annual goals described in paragraph

(a)(2) of this section will be measured;

and

(ii) How the child’s parents will be

regularly informed (through such means

as periodic report cards), at least as

often as parents are informed of their

nondisabled children’s progress, of—

(A) Their child’s progress toward the

annual goals; and

(B) The extent to which that progress

is sufficient to enable the child to

achieve the goals by the end of the year.

(b) Transition services. (1) The IEP

must include—

(i) For each student beginning at age

14 and younger if appropriate, and

updated annually, a statement of the

transition service needs of the student

under the applicable components of the

student’s IEP that focuses on the

student’s courses of study (such as

participation in advanced-placement

courses or a vocational education

program); and

(ii) For each student beginning at age

16 (or younger, if determined

appropriate by the IEP team), a

statement of needed transition services

for the student, including, if

appropriate, a statement of the

interagency responsibilities or any

needed linkages.

(2) If the IEP team determines that

services are not needed in one or more

of the areas specified in § 300.27(c)(1)

through (c)(4), the IEP must include a
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55091

statement to that effect and the basis

upon which the determination was

made.

(c) Transfer of rights. Beginning at

least one year before a student reaches

the age of majority under State law, the

student’s IEP must include a statement

that the student has been informed of

his or her rights under Part B of the Act,

if any, that will transfer to the student

on reaching the age of majority,

consistent with § 300.517.

(d) Students with disabilities

convicted as adults and incarcerated in

adult prisons. Special rules concerning

the content of IEPs for students with

disabilities convicted as adults and

incarcerated in adult prisons are

contained in § 300.311(b) and (c).

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

(d)(6)(A)(ii))

Note 1: Although the statute does not

mandate transition services for all students

below the age of 16, the provision of these

services could have a significantly positive

effect on the employment and independent

living outcomes for many of these students

in the future, especially for students who are

likely to drop out before age 16.

Note 2: The IEP provisions added by Pub.

L. 105–17 are intended to provide greater

access by children with disabilities to the

general curriculum and to educational

reforms, as an effective means of ensuring

better results for these children in preparing

them for employment and independent

living.

With respect to increased emphasis on the

general curriculum, the House Committee

Report on Pub. L. 105–17 includes the

following statement:

The Committee wishes to emphasize that,

once a child has been identified as being

eligible for special education, the connection

between special education and related

services and the child’s opportunity to

experience and benefit from the general

education curriculum should be

strengthened. The majority of children

identified as eligible for special education

and related services are capable of

participating in the general education

curriculum to varying degrees with some

adaptations and modifications. This

provision is intended to ensure that

children’s special education and related

services are in addition to and are affected by

the general education curriculum, not

separate from it. (H. Rep. No. 105–95, p-99

(1997))

Note 3: With respect to the impact on

States and LEAs in implementing the new

IEP provisions relating to accessing the

general curriculum, the House Committee

Report on Pub. L. 105–17 includes the

following statement:

The new emphasis on participation in the

general education curriculum is not intended

by the Committee to result in major

expansions in the size of the IEP of dozens

of pages of detailed goals and benchmarks or

objectives in every curricular content

standard skill. The new focus is intended to

produce attention to the accommodations

and adjustments necessary for disabled

children to access the general education

curriculum and the special services which

may be necessary for the appropriate

participation in particular areas of the

curriculum due to the nature of the

disability.

Note 4: With respect to paragraph (a) of

this section, the House Committee Report on

Pub. L. 105–17 includes the following

statement:

The Committee intends that, while

teaching and related services methodologies

or approaches are an appropriate topic for

discussion and consideration by the IEP team

during IEP development or annual review,

they are not expected to be written into the

IEP. Furthermore, the Committee does not

intend that changing particular methods or

approaches necessitates an additional

meeting of the IEP team.

Specific day to day adjustments in

instructional methods and approaches that

are made by either a regular or special

education teacher to assist a disabled child

to achieve his or her annual goals would not

normally require action by the child’s IEP

team. However, if changes are contemplated

in the child’s measurable annual goals,

benchmarks, or short-term objectives, or in

any of the services or program modifications,

or other components described in the child’s

IEP, the LEA must ensure that the child’s IEP

team is reconvened in a timely manner to

address those changes. (H. Rep. No. 105–95,

pp-100–101 (1997))

Note 5: The provision in paragraph

(a)(7)(ii) of this section concerning regularly

informing parents of their child’s progress

toward annual goals and the extent to which

this progress is sufficient to enable the child

to achieve the goals by the end of the year

is intended to be in addition to, rather than

in place of, regular reporting to the parents

(as for nondisabled children) of the child’s

progress in subjects or curricular areas for

which the child is not receiving special

education.

Note 6: With respect to paragraph (b)(1) of

this section (relating to transition service

needs beginning at age 14), the House

Committee report on Pub. L. 105–17 includes

the following statement:

The purpose of this requirement is to focus

attention on how the child’s educational

program can be planned to help the child

make a successful transition to his or her

goals for life after secondary school. This

provision is designed to augment, and not

replace, the separate transition services

requirement, under which children with

disabilities beginning no later than age

sixteen receive transition services, including

instruction, community experiences, the

development of employment and other postschool objectives, and, when appropriate,

independent living skills and functional

vocational evaluation. For example, for a

child whose transition goal is a job, a

transition service could be teaching the child

how to get to the job site on public

transportation. (H. Rep. No. 105–95, p. 101

(1997))

Note 7: Each State must, at a minimum,

ensure compliance with the transition

services requirements in paragraph (b) of this

section. However, it would not be a violation

of this part for a public agency to begin

planning for transition services needs and

needed transition services for students

younger than age 14 and age 16, respectively.

§ 300.348 Agency responsibilities for

transition services.

(a) If a participating agency, other

than the local educational agency, fails

to provide the transition services

described in the IEP in accordance with

§ 300.347(b)(1)(ii), the local educational

agency shall reconvene the IEP team to

identify alternative strategies to meet

the transition objectives for the child set

out in the IEP.

(b) 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 students with

disabilities who meet the eligibility

criteria of that agency.

(Authority: 20 U.S.C. 1414(d)(5);

1414(d)(1)(A)(vii))

§ 300.349 Private school placements by

public agencies.

(a) Developing individualized

education programs. (1) Before a public

agency places a child with a disability

in, or refers a child to, a private school

or facility, the agency shall initiate and

conduct a meeting to develop an IEP for

the child in accordance with § 300.347.

(2) The agency shall ensure that a

representative of the private school or

facility attends the meeting. If the

representative cannot attend, the agency

shall use other methods to ensure

participation by the private school or

facility, including individual or

conference telephone calls.

(b) Reviewing and revising

individualized education programs. (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 shall 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 program 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))
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§ 300.350 Children with disabilities in

religiously-affiliated or other private

schools.

If a child with a disability is enrolled

in a religiously-affiliated or other

private school and receives special

education or related services from a

public agency, the public agency shall—

(a) Initiate and conduct meetings to

develop, review, and revise an IEP for

the child, in accordance with § 300.347;

and

(b) Ensure that a representative of the

religiously-affiliated or other private

school attends each meeting. If the

representative cannot attend, the agency

shall use other methods to ensure

participation by the private school,

including individual or conference

telephone calls.

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

§ 300.351 Individualized education

program—accountability.

Each public agency must provide

special education and related services to

a child with a disability in accordance

with an IEP. However, Part B of the Act

does not require that any agency,

teacher, or other person be held

accountable if a child does not achieve

the growth projected in the annual goals

and benchmarks or objectives.

(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at

H7152 (daily ed., July 21, 1975))

Note: This section is intended to relieve

concerns that the IEP constitutes a guarantee

by the public agency and the teacher that a

child will progress at a specified rate.

However, this section does not relieve

agencies and teachers from making good faith

efforts to assist the child in achieving the

goals and objectives or benchmarks listed in

the IEP. Part B is premised on children

receiving the instruction, services and

modifications that they need to enable them

to make progress in their education. Further,

the section does not limit a parent’s right to

complain and ask for revisions of the child’s

IEP, or to invoke due process procedures

(§ 300.507), if the parent feels that these

efforts are not being made. This section does

not prohibit a State or public agency from

establishing its own accountability systems

regarding teacher, school or agency

performance.

Direct Service by the SEA

§ 300.360 Use of LEA allocation for direct

services.

(a) General. An SEA shall 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 local agency, or for whom that

State agency is responsible, if the SEA

determines that the LEA or State

agency—

(1) Has not provided the information

needed to establish the eligibility of the

agency under Part B of the Act;

(2) Is unable to establish and maintain

programs of FAPE that meet the

requirements of this part;

(3) Is unable or unwilling to be

consolidated with one or more LEAs in

order to establish and maintain the

programs; or

(4) Has one or more children with

disabilities who can best be served by a

regional or State program or servicedelivery system designed to meet the

needs of these children.

(b) In meeting the requirements in

paragraph (a) of this section, the SEA

may provide special education and

related services directly, by contract, or

through other arrangements.

(c) The excess cost requirements of

§§ 300.184 and 300.185 do not apply to

the SEA.

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

Note: The SEA, as a recipient of Part B

funds, is responsible for ensuring that all

public agencies in the State comply with the

provisions of the Act, regardless of whether

they receive Part B funds. If an LEA elects

not to apply for its Part B allotment, the State

would be required to use those funds to

ensure that FAPE is made available to

children residing in the area served by that

local agency. However, if the local allotment

is not sufficient for this purpose, additional

State or local funds would have to be

expended in order to ensure that FAPE and

the other requirements of the Act are met.

Moreover, if the LEA is the recipient of any

other Federal funds, it would have to be in

compliance with 34 CFR 104.31–104.39 of

the regulations implementing Section 504 of

the Rehabilitation Act of 1973. It should be

noted that the term ‘‘FAPE’’ has different

meanings under Part B and Section 504. For

example, under Part B, FAPE is a statutory

term that requires special education and

related services to be provided in accordance

with an IEP. However, under Section 504,

each recipient must provide an education

that includes services that are ‘‘designed to

meet individual educational needs of

handicapped persons as adequately as the

needs of nonhandicapped persons are met *

* *’’. (34 CFR 104.33(b)). Those regulations

state that implementation of an IEP, in

accordance with Part B, is one means of

meeting the FAPE requirement under section

504.

§ 300.361 Nature and location of services.

The SEA may provide special

education and related services under

§ 300.360(a) in the manner and at the

location it considers appropriate

(including regional and State centers).

However, the manner in which the

education and services are provided

must be consistent with the

requirements of this part (including the

LRE provisions of §§ 300.550–300.556).

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

§§ 300.362–300.369 [Reserved]

§ 300.370 Use of State agency allocations.

(a) Each State shall use any funds it

retains under § 300.602 and does not

use for administration under § 300.620

for any of the following:

(1) Support and direct services,

including technical assistance and

personnel development and training.

(2) Administrative costs of monitoring

and complaint investigation, but only to

the extent that those costs exceed the

costs incurred for those activities during

fiscal year 1985.

(3) To establish and implement the

mediation process required by

§ 300.506, including providing for the

costs of mediators and support

personnel.

(4) To assist LEAs in meeting

personnel shortages.

(5) To develop a State Improvement

Plan under subpart 1 of Part D of the

Act.

(6) Activities at the State and local

levels to meet the performance goals

established by the State under § 300.137

and to support implementation of the

State Improvement Plan under subpart 1

of Part D of the Act if the State receives

funds under that subpart.

(7) To supplement other amounts

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 to

exceed one percent of the amount

received by the State under section 611

of the Act. This system must be

coordinated with and, to the extent

appropriate, build on the system of

coordinated services developed by the

State under Part C of the Act.

(8) For subgrants to LEAs for the

purposes described in § 300.622.

(b) For the purposes of paragraph (a)

of this section—

(1) Direct services means services

provided to a child with a disability by

the State directly, by contract, or

through other arrangements; and

(2) Support services includes

implementing the comprehensive

system of personnel development under

§§ 300.380–300.382, recruitment and

training of hearing officers and surrogate

parents, and public information and

parent training activities relating to

FAPE for children with disabilities.

(Authority: 20 U.S.C. 1411(f)(3))

§ 300.371 [Reserved]

§ 300.372 Applicability of nonsupplanting

requirement.

A State may use funds it retains under

§ 300.602 without regard to—
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(a) The prohibition on commingling of

funds in § 300.152; and

(b) The prohibition on supplanting

other funds in § 300.153.

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

Comprehensive System of Personnel

Development

§ 300.380 General.

(a) Each State shall develop and

implement a comprehensive system of

personnel development that—

(1) Is consistent with the purposes of

this part and with section 635(a)(8) of

the Act;

(2) Is designed to ensure an adequate

supply of qualified special education,

regular education, and related services

personnel;

(3) Meets the requirements of

§§ 300.381 and 300.382; and

(4) Is updated at least every five years.

(b) A State that has a State

improvement grant has met the

requirements of paragraph (a) of this

section.

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

§ 300.381 Adequate supply of qualified

personnel.

Each State must include, at least, an

analysis of State and local needs for

professional development for personnel

to serve children with disabilities that

includes, at a minimum—

(a) The number of personnel

providing special education and related

services; and

(b) Relevant information on current

and anticipated personnel vacancies

and shortages (including the number of

individuals described in paragraph (a)

of this section with temporary

certification), and on the extent of

certification or retraining necessary to

eliminate these shortages, that is based,

to the maximum extent possible, on

existing assessments of personnel needs.

(Authority: 20 U.S.C. 1453(b)(2)(B))

§ 300.382 Improvement strategies.

Each State must describe the

strategies the State will use to address

the needs identified under § 300.381.

These strategies must include how the

State will address the identified needs

for in-service and pre-service

preparation to ensure that all personnel

who work with children with

disabilities (including both professional

and paraprofessional personnel who

provide special education, general

education, related services, or early

intervention services) have the skills

and knowledge necessary to meet the

needs of children with disabilities. The

plan must include a description of

how—

(a) The State will prepare general and

special education personnel with the

content knowledge and collaborative

skills needed to meet the needs of

children with disabilities including how

the State will work with other States on

common certification criteria;

(b) The State will prepare

professionals and paraprofessionals in

the area of early intervention with the

content knowledge and collaborative

skills needed to meet the needs of

infants and toddlers with disabilities;

(c) The State will work with

institutions of higher education and

other entities that (on both a pre-service

and an in-service basis) prepare

personnel who work with children with

disabilities to ensure that those

institutions and entities develop the

capacity to support quality professional

development programs that meet State

and local needs;

(d) The State will work to develop

collaborative agreements with other

States for the joint support and

development of programs to prepare

personnel for which there is not

sufficient demand within a single State

to justify support or development of

such a program of preparation;

(e) The State will work in

collaboration with other States,

particularly neighboring States, to

address the lack of uniformity and

reciprocity in credentialing of teachers

and other personnel;

(f) The State will enhance the ability

of teachers and others to use strategies,

such as behavioral interventions, to

address the conduct of children with

disabilities that impedes the learning of

children with disabilities and others;

(g) The State will acquire and

disseminate, to teachers, administrators,

school board members, and related

services personnel, significant

knowledge derived from educational

research and other sources, and how the

State will, if appropriate, adopt

promising practices, materials, and

technology;

(h) The State will recruit, prepare, and

retain qualified personnel, including

personnel with disabilities and

personnel from groups that are underrepresented in the fields of regular

education, special education, and

related services;

(i) The plan is integrated, to the

maximum extent possible, with other

professional development plans and

activities, including plans and activities

developed and carried out under other

Federal and State laws that address

personnel recruitment and training; and

(j) The State will provide for the joint

training of parents and special

education, related services, and general

education personnel.

(Authority: 20 U.S.C. 1453 (c)(3)(D))

§ 300.383—300.387 [Reserved]

Subpart D—Children in Private

Schools

Children With Disabilities in Private

Schools Placed or Referred by Public

Agencies

§ 300.400 Applicability of §§ 300.400—

300.402.

Sections §§ 300.401—300.402 apply

only to children with disabilities who

are or have been placed in or referred

to a private school or facility by a public

agency as a means of providing special

education and related services.

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

§ 300.401 Responsibility of SEA.

Each SEA shall 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 §§ 300.340—

300.350;

(2) At no cost to the parents; and

(3) At a school or facility that meets

the standards that apply to the SEA and

LEAs (including the requirements of

this part); and

(b) Has all of the rights of a child with

a disability who is served by a public

agency.

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

§ 300.402 Implementation by SEA.

In implementing § 300.401, the SEA

shall—

(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.

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

§ 300.403 Placement of children by parent

s if FAPE is at issue.

(a) General. Subject to § 300.451, 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
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FAPE available to the child and the

parents elected to place the child in a

private school or facility.

(b) Disagreements about FAPE.

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 of §§ 300.500—

300.515.

(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 elementary

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.

(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 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 may not be reduced or

denied for failure to provide the notice

if—

(1) The parent is illiterate and cannot

write in English;

(2) Compliance with paragraph (d)(1)

of this section would likely result in

physical or serious emotional harm to

the child;

(3) The school prevented the parent

from providing the notice; or

(4) The parents had not received

notice, pursuant to section 615 of the

Act, of the notice requirement in

paragraph (d)(1) of this section.

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

Children With Disabilities Enrolled by

Their Parents in Private Schools

§ 300.450 Definition of ‘‘private school

children with disabilities.’’

As used in this part, private school

children with disabilities means

children with disabilities enrolled by

their parents in private schools or

facilities other than children with

disabilities covered under §§ 300.400–

300.402.

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

§ 300.451 Child find for private school

children with disabilities.

Each public agency must locate,

identify and evaluate all private school

children, including religiously-affiliated

school children, who have disabilities

residing in the jurisdiction of the agency

in accordance with §§ 300.125 and

300.220.

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

§ 300.452 Basic requirement—services.

To the extent consistent with their

number and location in the State,

provision must be made for the

participation of private school children

with disabilities in the program assisted

or carried out under Part B of the Act

by providing them with special

education and related services in

accordance with §§ 300.453–300.462.

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

§ 300.453 Expenditures.

To meet the requirement of § 300.452,

each LEA must spend on providing

special education and related services to

private school children with

disabilities—

(a) For children aged 3 through 21, an

amount that is the same proportion of

the LEA’s total subgrant under sections

611(g) of the Act as the number of

private school children with disabilities

aged 3 through 21 residing in its

jurisdiction is to the total number of

children with disabilities in its

jurisdiction aged 3 through 21; and

(b) For children aged 3 through 5, an

amount that is the same proportion of

the LEA’s total subgrant under section

619(g) of the Act as the number of

private school children with disabilities

aged 3 through 5 residing in its

jurisdiction is to the total number of

children with disabilities in its

jurisdiction aged 3 through 5.

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

Note: SEAs and LEAs are not prohibited

from providing services to private school

children with disabilities in excess of those

required by this part, consistent with State

law or local policy.

§ 300.454 Services determined.

(a) No individual right to special

education and related services. No

private school child with a disability

has an individual right to receive some

or all of the special education and

related services that the child would

receive if enrolled in a public school.

Decisions about the services that will be

provided to private school children with

disabilities under §§ 300.452–300.462,

must be made in accordance with

paragraphs (b), (c) and (d) of this

section.

(b) Consultation with representatives

of private school children with

disabilities. Each LEA shall consult, in

a timely and meaningful way, with

appropriate representatives of private

school children with disabilities in light

of the funding under § 300.453, the

number of private school children with

disabilities, the needs of private school

children with disabilities, and their

location to decide—

(1) Which children will receive

services under § 300.452;

(2) What services will be provided;

(3) How the services will be provided;

and

(4) How the services provided will be

evaluated.

(c) Genuine opportunity. Each LEA

shall give appropriate representatives of

private school children with disabilities

a genuine opportunity to express their

views regarding each matter that is

subject to the consultation requirements

in this section.

(d) Timing. The consultation required

by paragraph (b) of this section must

occur before the LEA makes any

decision that affects the opportunities of

private school children with disabilities

to participate in services under

§§ 300.452–300.462.

(e) Decisions. The LEA shall make the

final decisions with respect to the

services to be provided to eligible

private school children.

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

§ 300.455 Services provided.

(a) Comparable services. The services

provided private school children with

disabilities must be comparable in
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quality to services provided to children

with disabilities enrolled in public

schools.

(b) Services provided in accordance

with an IEP. The IEP for each private

school child with a disability who

receives services under § 300.452 must

address the services that the LEA has

determined that it will provide the child

in light of the services that the LEA has

determined, through the process

described in §§ 300.453–300.454, it will

make available to private school

children with disabilities.

(c) Definition. As used in this section,

comparable in quality—

(1) Means that services provided

private school children with disabilities

must be provided by similarly qualified

personnel;

(2) Does not require the same amount

of service for private school children

with disabilities as for children with

disabilities in public schools; and

(3) Does not require that any

particular child receive service or

receive the same amount of service the

child would receive in a public school.

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

§ 300.456 Location of services.

(a) On-site. Services provided to

private school children with disabilities

may be provided on-site at a child’s

private school, including a religiouslyaffiliated school, to the extent consistent

with law.

(b) Transportation. (1) Transportation

of private school children with

disabilities to a site other than a child’s

private school must be provided if

necessary for a child to benefit from or

participate in the other services offered.

(2) The cost of that transportation may

be included in calculating whether the

LEA has met the requirement of

§ 300.453.

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

Note 1: The decisions of the Supreme

Court in Zobrest v. Catalina Foothills School

Dist. (1993) and Agostini v. Felton (1997)

make clear that LEAs may provide special

education and related services on-site at

religiously-affiliated private schools in a

manner that does not violate the

Establishment Clause of the First

Amendment to the U. S. Constitution.

Note 2: With regard to transportation

services, school districts are not required to

provide transportation from the student’s

home to the private school, but only to the

site where the services are offered, and either

return the student to the private school or to

the student’s home, depending on the timing

of the services.

§ 300.457 Complaints.

(a) Due process inapplicable. The

procedures in §§ 300.504–300.515 do

not apply to complaints that an LEA has

failed to meet the requirements of

§§ 300.452–300.462, including the

provision of services indicated on the

child’s IEP.

(b) State complaints. Complaints that

an SEA or LEA has failed to meet

requirements of §§ 300.451–300.462

may be filed under the procedures in

§§ 300.660–300.662.

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

§ 300.458 Separate classes prohibited.

An LEA may not use funds available

under section 611 or 619 of the Act for

classes that are organized separately on

the basis of school enrollment or

religion of the students if—

(a) The classes are at the same site;

and

(b) The classes include students

enrolled in public schools and students

enrolled in private schools.

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

§ 300.459 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 shall use funds provided

under Part B of the Act to meet the

special educational needs of students

enrolled in private schools, but not for—

(1) The needs of a private school; or

(2) The general needs of the students

enrolled in the private school.

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

§ 300.460 Use of public school personnel.

An LEA may use funds available

under sections 611 and 619 of the Act

to make public personnel available in

other than public facilities—

(a) To the extent necessary to provide

services under §§ 300.450–300.462 for

private school children with disabilities;

and

(b) If those services are not normally

provided by the private school.

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

§ 300.461 Use of private school personnel.

An LEA may use funds available

under sections 611 or 619 of the Act to

pay for the services of an employee of

a private school if—

(a) The employee performs the

services outside of his or her regular

hours of duty; and

(b) The employee performs the

services under public supervision and

control.

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

§ 300.462 Requirements concerning

property, equipment and supplies for the

benefit of private school children with

disabilities.

(a) A public agency must keep title to

and exercise continuing administrative

control of all property, equipment, and

supplies that the public agency acquires

with funds under section 611 or 619 of

the Act for the benefit of private school

children with disabilities.

(b) The public agency may place

equipment and supplies in a private

school for the period of time needed for

the program.

(c) The public agency shall 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 shall remove

equipment and supplies from a private

school if—

(1) The equipment and supplies are

no longer needed for Part B purposes; or

(2) Removal is necessary to avoid

unauthorized use of the equipment and

supplies for other than Part B purposes.

(e) No funds under Part B of the Act

may be used for repairs, minor

remodeling, or construction of private

school facilities.

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

Procedures for By-Pass

§ 300.480 By-pass—general.

(a) The Secretary implements a bypass if an SEA is, and was on December

2, 1983, prohibited by law from

providing for the participation of private

school children with disabilities in the

program assisted or carried out under

Part B of the Act, as required by section

612(a)(10)(A) of the Act and by

§§ 300.452–300.462.

(b) The Secretary waives the

requirement of section 612(a)(10)(A) of

the Act and of §§ 300.452–300.462 if the

Secretary implements a by-pass.

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

§ 300.481 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 to consider matters such as—

(1) The prohibition imposed by State

law that results in the need for a bypass;

(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; and
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(3) The establishment of policies and

procedures to ensure that private school

children with disabilities receive

services consistent with the

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

the Act and §§ 300.452–300.462.

(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 in

a manner consistent with the

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

the Act and §§ 300.452–300.462 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 that may not

exceed the amount per child provided

by the Secretary under Part B of the Act

for all children with disabilities in the

State for the preceding fiscal year; by

(2) The number of private school

children with disabilities (as defined by

§§ 300.7(a) and 300.450) in the State, 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))

Due Process Procedures

§ 300.482 Notice of intent to implement a

by-pass.

(a) Before taking any final action to

implement a by-pass, the Secretary

provides the affected SEA 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 to respond; and

(2) Advises the SEA 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 by certified mail with return

receipt requested.

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

§ 300.483 Request to show cause.

An SEA seeking an opportunity to

show cause why a by-pass should not be

implemented shall submit a written

request for a show cause hearing to the

Secretary.

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

§ 300.484 Show cause hearing.

(a) If a show cause hearing is

requested, the Secretary—

(1) Notifies the SEA and other

appropriate public and private school

officials of the time and place for the

hearing; and

(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.

(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 may interpret

applicable statutes and regulations, but

may not waive them or rule on their

validity.

(e) The designee arranges for the

preparation, retention, and, if

appropriate, dissemination of the record

of the hearing.

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

§ 300.485 Decision.

(a) The designee who conducts the

show cause hearing—

(1) 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 15 days

of the date the party receives the

designee’s decision.

(c) The Secretary adopts, reverses, or

modifies the designee’s decision and

notifies the SEA 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))

§ 300.486 Filing requirements.

(a) Any written submission under

§§ 300.482–300.485 must be filed by

hand-delivery, by mail, or by facsimile

transmission. The Secretary discourages

the use of facsimile transmission for

documents longer than five pages.

(b) The filing date under paragraph (a)

of this section is the date the document

is—

(1) Hand-delivered;

(2) Mailed; or

(3) Sent by facsimile transmission.

(c) A party filing by facsimile

transmission is responsible for

confirming that a complete and legible

copy of the document was received by

the Department.

(d) If a document is filed by facsimile

transmission, the Secretary or the

hearing officer, as applicable, may

require the filing of a follow-up hard

copy by hand-delivery or by mail within

a reasonable period of time.

(e) If agreed upon by the parties,

service of a document may be made

upon the other party by facsimile

transmission.

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

§ 300.487 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)–(D) of

the Act.

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

Subpart E—Procedural Safeguards

Due Process Procedures for Parents and

Children

§ 300.500 General responsibility of public

agencies; definitions.

(a) Responsibility of SEA and other

public agencies. Each SEA shall ensure

that each public agency establishes,

maintains, and implements procedural

safeguards that meet the requirements of

§§ 300.500–§ 300.529.

(b) Definitions of ‘‘consent,’’

‘‘evaluation,’’ and ‘‘personally

identifiable.’’ As used in this part—

(1) Consent means that—

(i) 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;

(ii) 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
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(iii) The parent understands that the

granting of consent is voluntary on the

part of the parent and may be revoked

at any time;

(2) Evaluation means procedures used

in accordance with §§ 300.530–300.536

to determine whether a child has a

disability and the nature and extent of

the special education and related

services that the child needs. The term

means procedures used selectively with

an individual child and does not

include basic tests administered to or

procedures used with all children in a

school, grade, or class; and

(3) Personally identifiable means that

information includes—

(i) The name of the child, the child’s

parent, or other family member;

(ii) The address of the child;

(iii) A personal identifier, such as the

child’s social security number or

student number; or

(iv) 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))

Note: With respect to paragraph (b)(1)(iii)

of this section, the parent’s ability to revoke

consent, if invoked, is not retroactive, i.e., it

does not negate an action that has occurred

after the consent was given and before it was

revoked.

§ 300.501 Opportunity to examine records;

parent participation in meetings.

(a) General. The parents of a child

with a disability must be afforded, in

accordance with the procedures of

§§ 300.562–300.569, an opportunity to—

(1) Inspect and review all education

records with respect to—

(i) The identification, evaluation, and

educational placement of the child; and

(ii) The provision of FAPE to the

child; and

(2) Participate in all meetings with

respect to—

(i) The identification, evaluation, and

educational placement of the child; and

(ii) The provision of FAPE to the

child.

(b) Parent participation in meetings.

(1) Each public agency shall provide

notice consistent with § 300.345 (a)(1)

and (b)(1) to ensure that parents of

children with disabilities have the

opportunity to participate in meetings

described in paragraph (a)(2) of this

section.

(2) For purposes of this section, the

term ‘‘meetings’’ means a prearranged

event in which public agency personnel

come together at the same time and

place to discuss any matter described in

paragraph (a)(2) of this section relating

to an individual child with a disability.

The term does not include informal or

unscheduled conversations involving

public agency personnel and

conversations on issues such as teaching

methodology, lesson plans, or

coordination of service provision if

those issues are not addressed in the

child’s IEP. The term 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 shall

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.

(2) In implementing the requirements

of paragraph (c)(1) of this section, the

public agency shall use procedures

consistent with the procedures

described in § 300.345 (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 shall 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 the parents, if the public

agency is unable to obtain the parents’

participation in the decision. In this

case, the public agency must have a

record of its attempt to ensure their

involvement, including information that

is consistent with the requirements of

§ 300.345(d).

(5) The public agency shall take

whatever action is necessary to ensure

that the parents understand, and are

able to participate in, any group

discussions relating to the educational

placement of their child, including

arranging for an interpreter for parents

with deafness, or whose native language

is other than English.

(Authority: 20 U.S.C. 1414(f), 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 shall provide

to parents, on request, information

about where an independent

educational evaluation may be obtained.

(3) For the purposes of this part—

(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

§ 300.301.

(b) Parent right to evaluation at public

expense. 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. If a parent requests an

independent educational evaluation at

public expense, the public agency must,

without unnecessary delay, either

initiate a hearing under § 300.507 to

show that its evaluation is appropriate,

or insure an independent educational

evaluation is provided at public expense

unless the agency demonstrates in a

hearing under § 300.507 that the

evaluation obtained by the parent did

not meet agency criteria. If the public

agency initiates 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.

(c) Parent-initiated evaluations. If the

parent obtains an independent

educational evaluation at private

expense, the results of the evaluation—

(1) Must be considered by the public

agency, if it meets agency criteria, in

any decision made with respect to the

provision of FAPE to the child; and

(2) May be presented as evidence at a

hearing under this subpart regarding

that child.

(d) Requests for evaluations by

hearing officers. If a hearing officer

requests an independent educational

evaluation as part of a hearing, 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.

(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))

Note 1: If a parent requests an independent

educational evaluation at public expense,

there is no requirement under Part B of the

Act that the parent specify areas of

disagreement with the public agency’s

evaluation as a prior condition to obtaining
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the independent educational evaluation.

Thus, unless a public agency chooses to

initiate a due process hearing in accordance

with paragraph (b) of this section, the agency

must respond to the parent’s request by

insuring an independent educational

evaluation is provided at public expense in

a timely manner. A public agency may not

impose conditions on obtaining an

independent educational evaluation, other

than the agency criteria described in

paragraph (e) of this section.

Note 2: This section requires public

agencies to provide parents with information

on how and where an independent

educational evaluation of their child at

public expense can be obtained. Public

agencies are encouraged to make this

information widely available to parents in a

manner that is readily understandable to the

general public so that if parents disagree with

an agency evaluation they will have access to

the criteria the agency will apply to an IEE.

A public agency may not require that

evaluations obtained by parents meet all

agency criteria, if doing so would be

inconsistent with the parents’ right to an IEE.

For example, the agency could not require a

parent to meet a criterion that required the

IEE to be conducted by an agency employee.

§ 300.503 Prior notice by the public

agency; content of notice.

(a) Notice. (1) 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—

(i) Proposes to initiate or change the

identification, evaluation, or

educational placement of the child or

the provision of FAPE to the child; or

(ii) Refuses to initiate or change the

identification, evaluation, or

educational placement of the child or

the provision of FAPE to the child.

(2) If the notice described under

paragraph (a)(1) of this section relates to

an action proposed by the public agency

that also requires parental consent

under § 300.505, the agency may give

notice at the same time it requests

parent consent.

(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 any other options

that the agency considered and the

reasons why those options were

rejected;

(4) A description of each evaluation

procedure, test, record, or report the

agency used as a basis for the proposed

or refused action;

(5) A description of any other factors

that are relevant to the agency’s

proposal or refusal;

(6) 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;

(7) Sources for parents to contact to

obtain assistance in understanding the

provisions of this part; and

(8) A statement informing the parents

about the State complaint procedures

under §§ 300.660–300.662, including a

description of how to file a complaint

and the timelines under those

procedures.

(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 SEA or LEA

shall 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), (4) and (c),

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, at a minimum—

(1) Upon initial referral for evaluation;

(2) Upon each notification of an IEP

meeting;

(3) Upon reevaluation of the child;

and

(4) Upon receipt of a request for due

process under § 300.507.

(b) Contents. The procedural

safeguards notice must include a full

explanation of all of the procedural

safeguards available under §§ 300.403,

300.500–300.529, and 300.560–300.577

relating to—

(1) Independent educational

evaluation;

(2) Prior written notice;

(3) Parental consent;

(4) Access to educational records;

(5) Opportunity to present

complaints;

(6) The child’s placement during

pendency of due process proceedings;

(7) Procedures for students who are

subject to placement in an interim

alternative educational setting;

(8) Requirements for unilateral

placement by parents of children in

private schools at public expense;

(9) Mediation;

(10) Due process hearings, including

requirements for disclosure of

evaluation results and

recommendations;

(11) State-level appeals (if applicable

in that State);

(12) Civil actions; and

(13) Attorneys’ fees.

(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 SEA or LEA

shall 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(d))

§ 300.505 Parental consent.

(a)(1) Parental consent must be

obtained before—

(i) Conducting an initial evaluation;

(ii) Initial provision of special

education and related services to a child

with a disability in a program providing

special education and related services;

and

(iii) Except as provided in paragraph

(c) of this section, before conducting any

new test as a part of a reevaluation of

an eligible child under Part B of the Act.

(2) Consent for initial evaluation may

not be construed as consent for initial

placement described in paragraph

(a)(1)(ii) of this section.

(b) Refusal. If the parents of the child

with a disability refuse consent for

initial evaluation or a reevaluation, the

agency may continue to pursue those

evaluations by using the due process

procedures under §§ 300.507–300.509,

or the mediation procedures under

§ 300.506 if appropriate, except to the

extent inconsistent with State law

relating to parental consent.

(c) Failure to respond to request for

reevaluation.
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(1) Informed parental consent need

not be obtained for reevaluation if the

public agency can demonstrate that it

has taken reasonable measures to obtain

that consent, and the child’s parent has

failed to respond.

(2) To meet the reasonable measures

requirement in paragraph (c)(1) of this

section, the public agency must use

procedures consistent with those in

§§ 300.345(d).

(d) Additional State consent

requirements. 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.

(e) Limitation. A public agency may

not require parental consent as a

condition of any benefit to the parent or

the child except for the service or

activity for which consent is required

under paragraph (a) of this section.

(Authority: 20 U.S.C. 1415(b)(3); 1414

(a)(1)(C) and (c)(3))

Note 1: Paragraph (b) of this section means

that if the parents of a child with a disability

refuse consent for an initial evaluation or any

reevaluation, and the agency wishes to

pursue the evaluation or reevaluation, it may

do so by using the due process or mediation

procedures under Part B of the Act unless

doing so would be inconsistent with State

law relating to parent consent. For example,

if State law provides that parents’ right to

consent to an initial evaluation cannot be

overridden, the agency under Part B would

not be able to take any action regarding that

initial evaluation once parents had refused

consent. If State law provided a mechanism

different than due process or mediation

under Part B as the means to override a

parent refusal of consent, the agency would

use that State mechanism if it wished to

pursue the evaluation.

Note 2: If a State adopts a consent

requirement in addition to those described in

paragraph (a) of this section and consent is

refused, paragraph (e) of this section requires

that the public agency must nevertheless

provide the services and activities that are

not in dispute. For example, if a State

requires parental consent to the provision of

all services identified in an IEP and the

parent refuses to consent to physical therapy

services included in the IEP, the agency is

not relieved of its obligation to implement

those portions of the IEP to which the parent

consents.

If the parent refuses to consent and the

public agency determines that the service or

activity in dispute is necessary to provide

FAPE to the child, paragraph (d) of this

section requires that the agency must

implement its procedures to override the

refusal. This section does not preclude the

agency from reconsidering its proposal if it

believes that circumstances warrant.

Note 3: If parents refuse consent to a

reevaluation that the agency needs to provide

appropriate services to the child consistent

with § 300.536, the agency must either take

appropriate measures, consistent with

paragraph (b) of this section to override the

parents’ refusal of consent, or, if State law

prohibits override of parent consent for

reevaluation, the agency may cease providing

services to the child under Part B of the Act.

§ 300.506 Mediation.

(a) General. Each public agency shall

ensure that procedures are established

and implemented to allow parties to

disputes involving any matter described

in § 300.503(a)(1) to resolve the disputes

through a mediation process which, at

a minimum, must be available whenever

a hearing is requested under §§ 300.507

or 300.520–300.528.

(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 due process hearing

under § 300.506, 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) The State shall 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.

(3) The State shall bear the cost of the

mediation process, including the costs

of meetings described in paragraph

(b)(2) of this section.

(4) 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.

(5) An agreement reached by the

parties to the dispute in the mediation

process must be set forth in a written

mediation agreement.

(6) Discussions that occur during the

mediation process must be confidential

and may not be used as evidence in any

subsequent due process hearings or civil

proceedings and the parties to the

mediation process may be required to

sign a confidentiality pledge prior to the

commencement of the process.

(c) Impartiality of mediator. An

individual who serves as a mediator

under this part—

(1) May not be an employee of—

(i) Any LEA or any State agency

described under § 300.194; or

(ii) An SEA that is providing direct

services to a child who is the subject of

the mediation process; and

(2) Must not have a personal or

professional conflict of interest.

(d) Meeting to encourage mediation.

(1) A public agency may establish

procedures to require parents who elect

not to use the mediation process to

meet, at a time and location convenient

to the parents, with a disinterested

party—

(i) Who is under contract with a

parent training and information center

or community parent resource center in

the State established under section 682

or 683 of the Act, or an appropriate

alternative dispute resolution entity;

and

(ii) Who would explain the benefits of

the mediation process, and encourage

the parents to use the process.

(2) A public agency may not deny or

delay a parent’s right to a due process

hearing under § 300.507 if the parent

fails to participate in the meeting

described in paragraph (d)(1) of this

section.

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

Note 1: With respect to paragraph (b)(2) of

this section, the House Committee Report on

Pub. L. 105–17 includes the following

statement:

* * * the bill provides that the State shall

maintain a list of individuals who are

qualified mediators. The Committee intends

that whenever such a mediator is not selected

on a random basis from that list, both the

parents and the agency are involved in

selecting the mediator, and are in agreement

with the individual who is selected. (H. Rep.

No. 105–95, p. 106 (1997))

Note 2: With regard to the provision in

paragraph (b)(6) that mediation discussions

must be confidential and may not be used in

any subsequent due process hearings or civil

proceedings, the House Committee Report on

Pub. L. 105–17 notes that ‘‘nothing in this

bill shall supersede any parental access rights

under the Family Educational Rights and

Privacy Act of 1974 or foreclose access to

information otherwise available to the

parties.’’ (H. Rep. No. 105–95, p. 107 (1997)).

The Report also includes an example of a

confidentiality pledge, which makes clear

that the intent of this provision is to protect

discussions that occur in the mediation

process from use in subsequent due process

hearings and civil proceedings under the Act,

and not to exempt from discovery, because it

was disclosed during mediation, information

that otherwise would be subject to discovery.

§ 300.507 Impartial due process hearing;

parent notice; disclosure.

(a) General. (1) A parent or a public

agency may initiate a hearing 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).
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(2) When a hearing is initiated under

paragraph (a)(1) of this section, the

public agency shall inform the parents

of the availability of mediation

described in § 300.506.

(3) The public agency shall inform the

parent of any free or low-cost legal and

other relevant services available in the

area if—

(i) The parent requests the

information; or

(ii) The parent or the agency initiates

a hearing under this section.

(b) Agency responsible for conducting

hearing. The hearing described in

paragraph (a) of this section must be

conducted by the SEA or the public

agency directly responsible for the

education of the child, as determined

under State statute, State regulation, or

a written policy of the SEA.

(c) Parent notice to the public agency.

(1) General. The public agency must

have procedures that require the parent

of a child with a disability or the

attorney representing the child, to

provide notice (which must remain

confidential) to the public agency in a

request for a hearing under paragraph

(a)(1) of this section.

(2) Content of parent notice. The

notice required in paragraph (c)(1) of

this section must include—

(i) The name of the child;

(ii) The address of the residence of the

child;

(iii) The name of the school the child

is attending;

(iv) A description of the nature of the

problem of the child relating to the

proposed initiation or change, including

facts relating to the problem; and

(v) A proposed resolution of the

problem to the extent known and

available to the parents at the time.

(3) Model form to assist parents. Each

SEA shall develop a model form to

assist parents in filing a request for due

process that includes the information

required in paragraphs (c)(1) and (2) of

this section.

(4) Right to due process hearing. A

public agency may not deny or delay a

parent’s right to a due process hearing

for failure to provide the notice required

in paragraphs (c)(1) and (2) of this

section.

(Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7),

(b)(8), (e)(1) and (f)(1))

Note 1: Part B of the Act and the

regulations under Part B of the Act do not

provide any authority for a public agency to

deny a parent’s request for an impartial due

process hearing, even if the agency believes

that the parent’s issues are not new. Thus,

the determination of whether or not a

parent’s request for a hearing is based on new

issues can only be made by an impartial

hearing officer.

Note 2: The House Committee Report on

Pub. L. 105–17 notes that attorneys’ fees to

prevailing parents may be reduced if the

attorney representing the parents did not

provide the public agency with specific

information about the child and the basis of

the dispute described in paragraphs (c)(1)

and (2) of this section. With respect to the

intent of the new notice provision, the House

report includes the following statement:

* * * The Committee believes that the

addition of this provision will facilitate an

early opportunity for schools and parents to

develop a common frame of reference about

problems and potential problems that may

remove the need to proceed to due process

and instead foster a partnership to resolve

problems. (H. Rep. 105–95, p. 105 (1997))

§ 300.508 Impartial hearing officer.

(a) A hearing may not be conducted—

(1) By a person who is an employee

of the State agency or the LEA that is

involved in the education or care of the

child; or

(2) By any person having a personal

or professional interest that would

conflict with his or her objectivity in the

hearing.

(b) A person who otherwise qualifies

to conduct a hearing under paragraph

(a) 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.

(c) Each public agency shall 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.

(Authority: 20 U.S.C. 1415(f)(3))

§ 300.509 Hearing rights.

(a) General. Any party to a hearing

conducted pursuant to §§ 300.507 or

300.520—300.528, or an appeal

conducted pursuant to § 300.510, 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 5

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 requirement. (1) At least 5

business days prior to a hearing

conducted pursuant to § 300.507(a),

each party shall 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. (1)

Parents involved in hearings must be

given the right to—

(i) Have the child who is the subject

of the hearing present; and

(ii) Open the hearing to the public.

(2) The record of the hearing and the

findings of fact and decisions described

in paragraphs (a)(4) and (a)(5) of this

section must be provided at no cost to

parents.

(d) Findings and decision to advisory

panel and general public. The public

agency, after deleting any personally

identifiable information, shall—

(1) Transmit the findings and

decisions referred to in paragraph (a)(5)

of this section to the State advisory

panel established under § 300.650; and

(2) Make those findings and decisions

available to the public.

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

§ 300.510 Finality of decision; appeal;

impartial review.

(a) Finality of decision. A decision

made in a hearing conducted pursuant

to §§ 300.507 or 300.520—300.528 is

final, except that any party involved in

the hearing may appeal the decision

under the provisions of paragraph (b) of

this section and § 300.512.

(Authority: 20 U.S.C. 1415(i)(1)(A))

(b) Appeal of decisions; impartial

review.

(1) General. If the hearing required by

§ 300.507 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) SEA responsibility for review. If

there is an appeal, the SEA shall

conduct an impartial review of the

hearing. The official conducting the

review shall—

(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

§ 300.508 apply;

(iv) Afford the parties an opportunity

for oral or written argument, or both, at

the discretion of the reviewing official;

(v) Make an independent decision on

completion of the review; and
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(vi) Give a copy of written findings

and the decision to the parties.

(c) Findings and decision to advisory

panel and general public. The SEA,

after deleting any personally identifiable

information, shall—

(1) Transmit the findings and

decisions referred to in paragraph

(b)(2)(vi) of this section to the State

advisory panel established under

§ 300.650; 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 § 300.511.

(Authority: 20 U.S.C. 1415(g); H. R. Rep. No.

94—664, at p. 49 (1975))

Note 1: The SEA may conduct its review

either directly or through another State

agency acting on its behalf. However, the

SEA remains responsible for the final

decision on review.

Note 2: All parties have the right to

continue to be represented by counsel at the

State administrative review level, whether or

not the reviewing official determines that a

further hearing is necessary. If the reviewing

official decides to hold a hearing to receive

additional evidence, the other rights in

§ 300.509 relating to hearings also apply.

§ 300.511 Timelines and convenience of

hearings and reviews.

(a) The public agency shall ensure

that not later than 45 days after the

receipt of a request for a hearing—

(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 shall 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)

§ 300.512 Civil action.

(a) General. Any party aggrieved by

the findings and decision made under

§§ 300.507 or 300.520–300.528 who

does not have the right to an appeal

under § 300.510(b)(2), and any party

aggrieved by the findings and decision

under § 300.510(e), has the right to bring

a civil action with respect to the

complaint presented pursuant to

§ 300.507. 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) Additional requirements. In any

action brought under paragraph (a) of

this section, the court—

(1) Shall receive the records of the

administrative proceedings;

(2) Shall hear additional evidence at

the request of a party; and

(3) Basing its decision on the

preponderance of the evidence, shall

grant the relief that the court determines

to be appropriate.

(c) 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.

(d) 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

300.510 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), (i)(3)(A),

and 1415(l))

§ 300.513 Attorneys’ fees.

(a) 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 the parents of a child with a

disability who is the prevailing party.

(b) Funds under Part B of the Act may

not be used to pay attorney’s fees.

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

Note: There is nothing in this part that

prohibits a State from enacting a law that

permits hearing officers to award attorneys’

fees to parents who are prevailing parties

under Part B of the Act.

§ 300.514 Child’s status during

proceedings.

(a) Except as provided in § 300.526,

during the pendency of any

administrative or judicial proceeding

regarding a complaint, unless the State

or local agency and the parents of the

child agree otherwise, the child

involved in the complaint must remain

in his or her current educational

placement.

(b) If the complaint involves an

application for initial admission to

public school, the child, with the

consent of the parents, must be placed

in the public school until the

completion of all the proceedings.

(c) If the decision of a hearing officer

in a due process hearing or a review

official in an administrative appeal

agrees with the child’s parents that a

change of placement is appropriate, that

placement must be treated as an

agreement between the State or local

agency and the parents for purposes of

paragraph (a) of this section.

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

Note: This section does not permit a child’s

placement to be changed during a complaint

proceeding, unless the parents and agency

agree otherwise. While the placement may

not be changed, this does not preclude the

agency from using its normal procedures for

dealing with children who are endangering

themselves or others.

§ 300.515 Surrogate parents.

(a) General. Each public agency shall

ensure that the rights of a child are

protected if—

(1) No parent (as defined in § 300.19)

can be identified;

(2) The public agency, after

reasonable efforts, cannot discover the

whereabouts of a parent; or

(3) The child is a ward of the State

under the laws of that State.

(b) Duty of public agency. The duty of

a public agency under paragraph (a) of

this section includes 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) Criteria for selection of surrogates.

(1) The public agency may select a

surrogate parent in any way permitted

under State law.

(2) Public agencies shall ensure that a

person selected as a surrogate—

(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 interest that conflicts with

the interest of the child he or she

represents; and

(iii) Has knowledge and skills that

ensure adequate representation of the

child.

(d) Non-employee requirement;

compensation. (1) A person assigned as

a surrogate may not be an employee of

a public agency that is involved in the

education or care of the child.

(2) A person who otherwise qualifies

to be a surrogate parent under
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paragraphs (c) and (d)(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 surrogate parent.

(e) 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.

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

§ 300.516 [Reserved]

§ 300.517 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 shall provide

any notice required by this part to both

the individual and the parents; and

(ii) All other rights accorded to

parents under Part B of the Act transfer

to the child; and

(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.

(3) Whenever a State transfers rights

under this part pursuant to paragraph

(a) (1) or (2), the agency shall notify the

individual and the parents of the

transfer of rights.

(b) Special rule. If, under State law, a

child with a disability, described in

paragraph (a) of this section, is

determined not to have the ability to

provide informed consent with respect

to the educational program of the

student, the State shall establish

procedures for appointing the parent, or,

if the parent is not available another

appropriate individual, to represent the

educational interests of the student

throughout the student’s eligibility

under Part B of the Act.

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

Discipline Procedures

§ 300.520 Authority of school personnel.

(a) School personnel may order—

(1) The removal of a child with a

disability from the child’s current

educational placement to an appropriate

interim alternative educational setting,

another setting, or suspension,

including a suspension without the

provision of educational services, for

not more than 10 school days (to the

extent the alternatives would be applied

to children without disabilities); and

(2) A change in placement of a child

with a disability to an appropriate

interim alternative educational setting

for the same amount of time that a child

without a disability would be subject to

discipline, but for not more than 45

days, if—

(i) The child carries a weapon to

school or to a school function under the

jurisdiction of a State or a local

educational agency; or

(ii) The child knowingly possesses or

uses illegal drugs or sells or solicits the

sale of a controlled substance while at

school or a school function under the

jurisdiction of a State or local

educational agency.

(b) Except as provided in paragraph

(c) of this section, either before or not

later than 10 business days after taking

the action described in paragraph (a) of

this section—

(1) If the LEA did not conduct a

functional behavioral assessment and

implement a behavioral intervention

plan for the child before the behavior

that resulted in the suspension

described in paragraph (a) of this

section, the agency shall convene an IEP

meeting to develop an assessment plan

and appropriate behavioral

interventions to address that behavior;

or

(2) If the child already has a

behavioral intervention plan, the IEP

team shall review the plan and modify

it, as necessary, to address the behavior.

(c) If the child with a disability is

removed from the child’s current

educational placement for 10 school

days or fewer under paragraph (a)(1) of

this section in a given school year, and

no further removal or disciplinary

action is contemplated, the activities in

paragraph (b) of this section need not be

conducted.

(d) For purposes of this section, the

following definitions apply:

(1) Controlled substance means a drug

or other substance identified under

schedules I, II, III, IV, or V in section

202(c) of the Controlled Substances Act

(21 U.S.C. 812(c)).

(2) Illegal drug—

(i) Means a controlled substance; but

(ii) Does not include such a substance

that is legally possessed or used under

the supervision or 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) 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), (10))

Note 1: Removing a child with disabilities

from the child’s current educational

placement for not more than 10 school days

does not constitute a change of placement

under the Part B regulation. A series of

removals from a child’s current educational

placement in a school year each of which is

less than 10 school days but cumulate to

more than 10 school days in a school year

may constitute a change in placement, if, in

any given case, factors such as the length of

each removal, the total amount of time that

the child is removed, and the proximity of

the removals to one another, lead to the

conclusion that the child has been excluded

from the current placement to such an extent

that there has been a change of placement.

Note 2: Although paragraph (c) of this

section provides that public agencies need

not conduct the review described in

paragraph (b) if a child is removed from the

regular placement for 10 school days or fewer

and no further removal or disciplinary action

is contemplated, public agencies are strongly

encouraged to review as soon as possible the

circumstances surrounding the behavior that

led to the child’s removal and consider

whether the child was being provided

services in accordance with the IEP, and

whether the behavior could be addressed

through minor classroom or program

adjustments or whether the child’s IEP team

should be reconvened to address possible

changes in that document.

§ 300.521 Authority of hearing officer.

A hearing officer under section 615 of

the Act may order a change in the

placement of a child with a disability to

an appropriate interim alternative

educational setting for not more than 45

days if the hearing officer, in an

expedited due process hearing—

(a) Determines that the public agency

has demonstrated by substantial

evidence that maintaining the current

placement of the child is substantially

likely to result in injury to the child or

to others;

(b) Considers the appropriateness of

the child’s current placement;

(c) Considers 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

(d) Determines that the interim

alternative educational setting meets the

requirements of § 300.522.

(e) As used in this section, the term

substantial evidence means beyond a

preponderance of the evidence.

(Authority: 20 U.S.C. 1415(k) (2), (10))

§ 300.522 Determination of setting.

(a) General. The alternative

educational setting referred to in

§§ 300.520 and 300.521 must be

determined by the IEP team.

(b) Additional requirements. Any

interim alternative educational setting

in which a child is placed under

§ 300.520 or 300.521 must—
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(1) Be selected so as to enable the

child to continue to participate in the

general curriculum, although in another

setting, and to continue to receive those

services and modifications, including

those described in the child’s current

IEP, that will enable the child to meet

the goals set out in that IEP; and

(2) Include services and modifications

designed to address the behavior

described in § 300.520 or 300.521, or

any other behavior that results in the

child being removed from the child’s

current educational placement for more

than 10 school days in a school year, so

that it does not recur.

(Authority: 20 U.S.C. 1415(k)(3))

§ 300.523 Manifestation determination

review.

(a) General. If an action is

contemplated as described in § 300.520

or 300.521, or if an action involving a

removal of a child from the child’s

current educational placement for more

than 10 school days in a given school

year is contemplated for a child with a

disability who has engaged in other

behavior that violated any rule or code

of conduct of the LEA that applies to all

children—

(1) Not later than the date on which

the decision to take that action is made,

the parents must be notified of that

decision and of all procedural

safeguards accorded under this section;

and

(2) Immediately, if possible, but in no

case later than 10 school days after the

date on which the decision to take that

action is made, a review must be

conducted of the relationship between

the child’s disability and the behavior

subject to the disciplinary action.

(b) Exception. If, under

§ 300.520(a)(1), the child with

disabilities is removed from the child’s

current educational placement for 10

school days or fewer in a given school

year, and no further disciplinary action

is contemplated, the review in

paragraph (a) of this section need not be

conducted.

(c) Individuals to carry out review. A

review described in paragraph (a) of this

section must be conducted by the IEP

team and other qualified personnel.

(d) Conduct of review. In carrying out

a review described in paragraph (a) of

this section, the IEP team may

determine that the behavior of the child

was not a manifestation of the child’s

disability only if the IEP team—

(1) First considers, in terms of the

behavior subject to disciplinary action,

all relevant information, including—

(i) Evaluation and diagnostic results,

including the results or other relevant

information supplied by the parents of

the child;

(ii) Observations of the child; and

(iii) The child’s IEP and placement;

and

(2) Then determines that—

(i) In relationship to the behavior

subject to disciplinary action, the

child’s IEP and placement were

appropriate and the special education

services, supplementary aids and

services, and behavior intervention

strategies were provided consistent with

the child’s IEP and placement;

(ii) The child’s disability did not

impair the ability of the child to

understand the impact and

consequences of the behavior subject to

disciplinary action; and

(iii) The child’s disability did not

impair the ability of the child to control

the behavior subject to disciplinary

action.

(e) Decision. If the IEP team

determines that any of the standards in

(d)(2) of this section were not met, the

behavior must be considered a

manifestation of the child’s disability.

(f) Meeting. The review described in

paragraph (a) of this section may be

conducted at the same IEP meeting that

is convened under § 300.520(b).

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

Note 1: The House Committee Report on

Pub. L. No 105–17 states that the

determination described in § 300.523(c)(2):

. . . .recognizes that where there is a

relationship between a child’s behavior and

a failure to provide or implement an IEP or

placement, the IEP team must conclude that

the behavior was a manifestation of the

child’s disability. Similarly, where the IEP

team determines that an appropriate

placement and IEP were provided, the IEP

team must then determine that the remaining

two standards have been satisfied. This

section is not intended to require an IEP team

to find that a child’s behavior was a

manifestation of a child’s disability based on

a technical violation of the IEP or placement

requirements that are unrelated to the

educational/behavior needs of the child.

(House Rep. No. 105–95, pp. 110–111)

Note 2: If the result of the manifestation

determination is that the behavior is a

manifestation of the child’s disability, the

LEA must take immediate steps to remedy

any deficiencies found in the child’s IEP or

placement, or their implementation. For a

child who has been placed in a 45-day

placement under § 300.520(a)(2) or 300.521

and for whom the child’s behavior subject to

discipline is a manifestation of the child’s

disability, these remedies often should

enable the child to return to the child’s

current educational placement before the

expiration of the 45-day period.

§ 300.524 Determination that behavior was

not manifestation of disability.

(a) General. If the result of the review

described in § 300.523 is a

determination, consistent with

§ 300.523(e), that the behavior of the

child with a disability was not a

manifestation of the child’s disability,

the relevant disciplinary procedures

applicable to children without

disabilities may be applied to the child

in the same manner in which they

would be applied to children without

disabilities, except as provided in

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

(b) Additional requirement. If the

public agency initiates disciplinary

procedures applicable to all children,

the agency shall ensure that the special

education and disciplinary records of

the child with a disability are

transmitted for consideration by the

person or persons making the final

determination regarding the disciplinary

action.

(c) Child’s status during due process

proceedings. Section 300.514 applies if

a parent requests a hearing to challenge

a determination, made through the

review described in § 300.523, that the

behavior of the child was not a

manifestation of the child’s disability.

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

Note: The provision in paragraph (c) of this

section means that during the pendency of

any administrative or judicial proceeding to

challenge a determination that the child’s

behavior is not a manifestation of the child’s

disability, the child remains in the child’s

current educational placement or the child’s

placement under § 300.526, whichever

applies.

§ 300.525 Parent appeal.

(a) General.

(1) If the child’s parent disagrees with

a determination that the child’s

behavior was not a manifestation of the

child’s disability or with any decision

regarding placement, the parent may

request a hearing.

(2) The State or local educational

agency shall arrange for an expedited

hearing in any case described in this

section if requested by a parent.

(b) Review of decision.

(1) In reviewing a decision with

respect to the manifestation

determination, the hearing officer shall

determine whether the public agency

has demonstrated that the child’s

behavior was not a manifestation of the

child’s disability consistent with the

requirements of § 300.523(e).

(2) In reviewing a decision under

§ 300.520(a)(2) to place the child in an

interim alternative educational setting,

the hearing officer shall apply the

standards in § 300.521.

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

§ 300.526 Placement during appeals.

(a) General. If a parent requests a

hearing regarding a disciplinary action
55104 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

described in § 300.520(a)(2) or 300.521

to challenge the interim alternative

educational setting or the manifestation

determination, the child must remain in

the interim alternative educational

setting pending the decision of the

hearing officer or until the expiration of

the time period provided for in

§ 300.520(a)(2) or 300.521, whichever

occurs first, unless the parent and the

State or local educational agency agree

otherwise.

(b) Current placement. If a child is

placed in an interim alternative

educational setting pursuant to—

§ 300.520(a)(2) or 300.521 and school

personnel propose to change the child’s

placement after expiration of the interim

alternative placement, during the

pendency of any proceeding to

challenge the proposed change in

placement the child must remain in the

current placement (the child’s

placement prior to the interim

alternative educational setting), except

as provided in paragraph (c) of this

section.

(c) Expedited hearing.

(1) If school personnel maintain that

it is dangerous for the child to be in the

current placement (placement prior to

removal to the interim alternative

education setting) during the pendency

of the due process proceedings, the LEA

may request an expedited due process

hearing.

(2) In determining whether the child

may be placed in the alternative

educational setting or in another

appropriate placement ordered by the

hearing officer, the hearing officer shall

apply the standards in § 300.521.

(3) A placement ordered pursuant to

paragraph (c)(2) of this section may not

be longer than 45 days.

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

Note: An LEA may seek subsequent

expedited hearings under paragraph (c)(1) of

this section if, at the expiration of the time

period of the placement ordered under

paragraph (c) of this section, the LEA

maintains that the child is still dangerous

and the issue has not been resolved through

due process.

§ 300.527 Protections for children not yet

eligible for special education and related

services.

(a) General. A child who has not been

determined to be eligible for special

education and related services under

this part and who has engaged in

behavior that violated any rule or code

of conduct of the local educational

agency, including any behavior

described in §§ 300.520 or 300.521, may

assert any of the protections provided

for in this part if the LEA had

knowledge (as determined in

accordance with this paragraph) that the

child was a child with a disability

before the behavior that precipitated the

disciplinary action occurred.

(b) Basis of knowledge. An LEA must

be deemed to have knowledge that a

child is a child with a disability if—

(1) The parent of the child has

expressed concern in writing (or orally

if the parent is illiterate in English or

has a disability that prevents a written

statement) to personnel of the

appropriate educational agency that the

child is in need of special education and

related services;

(2) The behavior or performance of

the child demonstrates the need for

these services;

(3) The parent of the child has

requested an evaluation of the child

pursuant to §§ 300.530–300.536; or

(4) The teacher of the child, or other

personnel of the local educational

agency, has expressed concern about the

behavior or performance of the child to

the director of special education of the

agency or to other personnel of the

agency.

(c) Conditions that apply if no basis

of knowledge.

(1) General. If an LEA does not have

knowledge that a child is a child with

a disability (in accordance with

paragraph (b) of this section) prior to

taking disciplinary measures against the

child, the child may be subjected to the

same disciplinary measures as measures

applied to children without disabilities

who engaged in comparable behaviors

consistent with paragraph (c)(2) of this

section.

(2) Limitations.

(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

§ 300.520 or 300.521, 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.

(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 shall provide special education

and related services in accordance with

the provisions of this part, including the

requirements of §§ 300.520–300.529 and

section 612(a)(1)(A) of the Act.

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

§ 300.528 Expedited due process hearings.

(a) Expedited due process hearings

under §§ 300.521–300.526 must—

(1) Result in a decision within 10

business days of the request for the

hearing, unless the parents and school

officials otherwise agree;

(2) Meet the requirements of

§ 300.508, except that a State may

provide that the time periods identified

in § 300.509(a)(3) and § 300.509(b) for

purposes of expedited due process

hearings under §§ 300.521–300.526 are

not less than two business days; and

(3) Be conducted by a due process

hearing officer who satisfies the

requirements of § 300.508.

(b) A State may establish different

procedural rules for expedited hearings

under §§ 300.521–300.526 than it has

established for due process hearings

under § 300.507.

(c) The decisions on expedited due

process hearings are appealable under a

State’s normal due process appeal

procedures.

(Authority: 20 U.S.C. 1415(k)(2), (6), (7))

§ 300.529 Referral to and action by law

enforcement and judicial authorities.

(a) Nothing in this part prohibits an

agency from reporting a crime

committed by a child with a disability

to appropriate authorities or to prevent

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) An agency reporting a crime

committed by a child with a disability

shall ensure that copies of the special

education and disciplinary records of

the child are transmitted for

consideration by the appropriate

authorities to whom it reports the crime.

(Authority: 20 U.S.C. 1415(k)(9))

Procedures for Evaluation and

Determination of Eligibility

§ 300.530 General.

Each SEA shall ensure that each

public agency establishes and

implements procedures that meet the

requirements of §§ 300.530–300.536.

(Authority: 20 U.S.C. 1414(b)(3); 1412(a)(7))

§ 300.531 Initial evaluation.

Each public agency shall conduct a

full and individual initial evaluation, in

accordance with §§ 300.532 and

300.533, before the initial provision of

special education and related services to

a child with a disability under Part B of

the Act.

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

§ 300.532 Evaluation procedures.

Each public agency shall ensure, at a

minimum, that—
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(a) Tests and other evaluation

materials used to assess a child under

Part B of the Act—

(1) Are selected and administered so

as not to be discriminatory on a racial

or cultural basis; and

(2) Are provided and administered in

the child’s native language or other

mode of communication, unless it is

clearly not feasible to do so;

(b) A variety of assessment tools and

strategies are used to gather relevant

functional and developmental

information about the child, including

information provided by the parent, that

may assist in determining—

(1) Whether the child is a child with

a disability under § 300.7; and

(2) The content of the child’s IEP,

including information related to

enabling the child—

(i) To be involved in and progress in

the general curriculum; or

(ii) For a preschool child, to

participate in appropriate activities.

(c) Any standardized tests that are

given to a child—

(i) Have been validated for the

specific purpose for which they are

used; and

(ii) Are administered by trained and

knowledgeable personnel in accordance

with any instructions provided by the

producer of the tests;

(d) Tests 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;

(e) Tests are selected and

administered so as best to ensure that if

a test is administered to a child with

impaired sensory, manual, or speaking

skills, the test 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);

(f) No single procedure is used 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;

(g) 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;

(h) The public agency uses technically

sound instruments that may assess the

relative contribution of cognitive and

behavioral factors, in addition to

physical or developmental factors; and

(i) The public agency uses assessment

tools and strategies that provide relevant

information that directly assists persons

in determining the educational needs of

the child.

(Authority: 20 U.S.C. 1414 (a)(6)(B), (b) (2)

and (3))

Note 1: Under Title VI of the Civil Rights

Act of 1964, in order to properly evaluate a

child who may be limited English proficient,

the public agency must first determine the

child’s proficiency in English and the child’s

native language. Under Title VI, an accurate

assessment of the child’s language

proficiency must include objective

assessment of reading, writing, speaking, and

understanding. Under this section and

§ 300.534(b), information about the child’s

language proficiency must be considered in

determining how to conduct the evaluation

of the child to prevent misclassification.

Under both Title VI and Part B of the Act,

the public agency has a responsibility to

ensure that children with limited English

proficiency are not evaluated on the basis of

criteria that essentially measure English

language skills.

Note 2: In some situations, there may be no

one on the staff of a public agency who is

able to administer a test or other evaluation

in a child’s native language, as required

under paragraph (a)(2) of this section, but an

appropriate individual is available in the

surrounding area. Ways that a public agency

can identify an individual in the surrounding

area who is able to administer a test or other

evaluation in the child’s native language

include contacting neighboring school

districts, local universities, and professional

organizations. For LEP students, in situations

where it is clearly not feasible to provide and

administer tests in the child’s native

language or mode of communication, the

public agency still needs to obtain and

consider accurate and reliable information

that will enable the agency to make an

informed decision as to whether the child

has a disability and the effects of the

disability on the child’s educational needs.

Note 3: If an assessment is not conducted

under standard conditions, information about

the extent to which the assessment varied

from standard conditions, such as the

qualifications of the person administering the

test or the method of test administration,

needs to be included in the evaluation report.

This information is needed so that the team

of qualified professionals can evaluate the

effects of these variances on the validity and

reliability of the information reported and to

determine whether additional assessments

are needed.

§ 300.533 Determination of needed

evaluation data.

(a) Review of existing evaluation data.

As part of an initial evaluation (if

appropriate) and as part of any

reevaluation under Part B of the Act, a

team that includes the individuals

required by § 300.344, and other

qualified professionals, as appropriate,

shall—

(1) Review existing evaluation data on

the child, including—

(i) Evaluations and information

provided by the parents of the child;

(ii) Current classroom-based

assessments and 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) Whether the child has a particular

category of disability, as described in

§ 300.7, or, in case of a reevaluation of

a child, whether the child continues to

have such a disability;

(ii) The present levels of performance

and educational needs of the child;

(iii) Whether the child needs special

education and related services, or in the

case of a reevaluation of a child,

whether the child continues to need

special education and related services;

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 curriculum.

(b) Need for additional data. The

public agency shall administer tests and

other evaluation materials as may be

needed to produce the data identified

under paragraph (a) of this section.

(c) Requirements if additional data

are not needed. (1) If the determination

under paragraph (a) of this section is

that no additional data are needed to

determine whether the child continues

to be a child with a disability, the public

agency shall notify the child’s parents—

(i) Of that determination and the

reasons for it; and

(ii) Of the right of the parents to

request an assessment to determine

whether the child continues to be a

child with a disability.

(2) The public agency is not required

to conduct the assessment described in

paragraph (c)(1)(ii) of this section unless

requested to do so by the child’s

parents.

(Authority: 20 U.S.C. 1414(c)(1), (2) and (4))

Note: The requirement in paragraph (a) of

this section and § 300.534(a)(1) that review of

evaluation data and eligibility decisions be

made by groups that include ‘‘qualified

professionals,’’ is intended to ensure that the

teams making these determinations include

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 a disability

under § 300.7, and to determine whether the

child needs special education and related

services. The composition of the team will
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vary depending upon the nature of the

child’s suspected disability and other

relevant factors. For example, if a student is

suspected of having a learning disability, a

professional whose sole expertise is visual

impairments would be an inappropriate

choice. If a student is limited English

proficient, it will be important to include a

person on the team of qualified professionals

who is knowledgeable about the

identification, assessment, and education of

limited English proficient students.

§ 300.534 Determination of eligibility

(a) Upon completing the

administration of tests and other

evaluation materials—

(1) A team of qualified professionals

and the parent of the child must

determine whether the child is a child

with a disability, as defined in § 300.7;

and

(2) The public agency must provide a

copy of the evaluation report and the

documentation of determination of

eligibility to the parent.

(b) A child may not be determined to

be a child with a disability if the

determinant factor for that

determination is—

(1) Lack of instruction in reading or

math; or

(2) Limited English proficiency.

(c) A public agency must evaluate a

child with a disability in accordance

with §§ 300.532 and 300.533 before

determining that the child is no longer

a child with a disability.

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

(c)(5))

§ 300.535 Procedures for determining

eligibility and placement.

(a) In interpreting evaluation data for

the purpose of determining if a child is

a child with a disability under § 300.7,

and the educational needs of the child,

each public agency shall—

(1) Draw upon information from a

variety of sources, including aptitude

and achievement tests, teacher

recommendations, physical condition,

social or cultural background, and

adaptive behavior; and

(2) Ensure that information obtained

from all of these sources is documented

and carefully considered.

(b) 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 §§ 300.340–300.350.

(Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4))

Note: Paragraph (a)(1) includes a list of

examples of sources that may be used by a

public agency in determining whether a child

is a child with a disability, as defined in

§ 300.7. The agency would not have to use all

the sources in every instance. The point of

the requirement is to ensure that more than

one source is used in interpreting evaluation

data and in making these determinations. For

example, while all of the named sources

would have to be used for a child whose

suspected disability is mental retardation,

they would not be necessary for certain other

children with disabilities, such as a child

who has a severe articulation impairment as

his primary disability. For such a child, the

speech-language pathologist, in complying

with the multiple source requirement, might

use (1) a standardized test of articulation, and

(2) observation of the child’s articulation

behavior in conversational speech.

§ 300.536 Reevaluation.

Each public agency shall ensure—

(a) That the IEP of each child with a

disability is reviewed in accordance

with §§ 300.340–300.350; and

(b) That a reevaluation of each child,

in accordance with §§ 300.530(b),

300.532, and 300.533, is conducted if

conditions warrant a reevaluation, or if

the child’s parent or teacher requests a

reevaluation, but at least once every

three years.

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

Additional Procedures for Evaluating

Children With Specific Learning

Disabilities

§ 300.540 Additional team members.

The determination of whether a child

suspected of having a specific learning

disability is a child with a disability as

defined in § 300.7, 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. 1411 note)

§ 300.541 Criteria for determining the

existence of a specific learning disability.

(a) A team may determine that a child

has a specific learning disability if—

(1) The child does not achieve

commensurate with his or her age and

ability levels in one or more of the areas

listed in paragraph (a)(2) of this section,

if provided with learning experiences

appropriate for the child’s age and

ability levels; and

(2) The team finds that a child has a

severe discrepancy between

achievement and intellectual ability in

one or more of the following areas:

(i) Oral expression.

(ii) Listening comprehension.

(iii) Written expression.

(iv) Basic reading skill.

(v) Reading comprehension.

(vi) Mathematics calculation.

(vii) Mathematics reasoning.

(b) The team may not identify a child

as having a specific learning disability

if the severe discrepancy between

ability and achievement is primarily the

result of—

(1) A visual, hearing, or motor

impairment;

(2) Mental retardation;

(3) Emotional disturbance; or

(4) Environmental, cultural or

economic disadvantage.

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

§ 300.542 Observation.

(a) At least one team member other

than the child’s regular teacher shall

observe the child’s academic

performance in the regular classroom

setting.

(b) In the case of a child of less than

school age or out of school, a team

member shall observe the child in an

environment appropriate for a child of

that age.

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

§ 300.543 Written report.

(a) For a child suspected of having a

specific learning disability, the

documentation of the team’s

determination of eligibility, as required

by § 300.534(a)(2), must include a

statement of—

(1) Whether the child has a specific

learning disability;

(2) The basis for making the

determination;

(3) The relevant behavior noted

during the observation of the child;

(4) The relationship of that behavior

to the child’s academic functioning;

(5) The educationally relevant

medical findings, if any;

(6) Whether there is a severe

discrepancy between achievement and

ability that is not correctable without

special education and related services;

and

(7) The determination of the team

concerning the effects of environmental,

cultural, or economic disadvantage.

(b) Each team member shall certify in

writing whether the report reflects his or

her conclusion. If it does not reflect his

or her conclusion, the team member

must submit a separate statement

presenting his or her conclusions.

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

Least Restrictive Environment

§ 300.550 General.

(a) A State shall demonstrate to the

satisfaction of the Secretary that the
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State has in effect policies and

procedures to ensure that it meets the

requirements of §§ 300.550–300.556.

(b) Each public agency shall ensure—

(1) 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

(2) 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.

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

§ 300.551 Continuum of alternative

placements.

(a) Each public agency shall 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 § 300.17 (instruction in

regular classes, special classes, special

schools, home instruction, and

instruction in hospitals and

institutions); and

(2) Make provision for supplementary

services (such as resource room or

itinerant instruction) to be provided in

conjunction with regular class

placement.

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

Note: Home instruction is usually

appropriate for only a limited number of

children, such as children who are medically

fragile and are not able to participate in a

school setting with other children.

§ 300.552 Placements.

In determining the educational

placement of a child with a disability,

each public agency shall 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 §§ 300.550–300.554;

(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; and

(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.

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

Note 1: With respect to paragraph (a)(1) of

this section, nothing in this part would

prohibit a public agency from allowing the

group of persons that makes the placement

decision also to serve as the child’s IEP team,

so long as all individuals described in

§ 300.344 are included.

Note 2: Section 300.552 includes some of

the main factors that must be considered in

determining the extent to which a child with

a disability can be educated with children

who are not disabled. The overriding rule in

this section is that placement decisions must

be made on an individual basis. The section

also requires each agency to have various

alternative placements available in order to

ensure that each child with a disability

receives an education that is appropriate to

his or her individual needs.

The requirements of § 300.552, as well as

the other requirements of §§ 300.550–

300.556, apply to all preschool children with

disabilities who are entitled to receive FAPE.

Public agencies that provide preschool

programs for nondisabled preschool children

must ensure that the requirements of

§ 300.552(c) are met. Public agencies that do

not operate programs for nondisabled

preschool children are not required to initiate

those programs solely to satisfy the

requirements regarding placement in the LRE

embodied in §§ 300.550–300.556. For these

public agencies, some alternative methods for

meeting the requirements of §§ 300.550–

300.556 include—

(1) Providing opportunities for the

participation (even part-time) of preschool

children with disabilities in other preschool

programs operated by public agencies (such

as Head Start);

(2) Placing children with disabilities in

private school programs for nondisabled

preschool children or private school

preschool programs that integrate children

with disabilities and nondisabled children;

and

(3) Locating classes for preschool children

with disabilities in regular elementary

schools.

In each case the public agency must ensure

that each child’s placement is in the LRE in

which the unique needs of that child can be

met, based upon the child’s IEP, and meets

all of the other requirements of §§ 300.340–

300.351 and §§ 300.550–300.556.

The analysis of the regulations for Section

504 of the Rehabilitation Act of 1973 (34 CFR

part 104—Appendix, Paragraph 24) includes

several points regarding educational

placements of children with disabilities that

are pertinent to this section:

1. With respect to determining proper

placements, the analysis states: ‘‘* * * it

should be stressed that, where a handicapped

child is so disruptive in a regular classroom

that the education of other students is

significantly impaired, the needs of the

handicapped child cannot be met in that

environment. Therefore regular placement

would not be appropriate to his or her needs

* * *.’’

2. With respect to placing a child with a

disability in an alternate setting, the analysis

states that among the factors to be considered

in placing a child is the need to place the

child as close to home as possible. Recipients

are required to take this factor into account

in making placement decisions. The parents’

right to challenge the placement of their

child extends not only to placement in

special classes or separate schools, but also

to placement in a distant school, particularly

in a residential program. An equally

appropriate education program may exist

closer to home, and this issue may be raised

by the parent under the due process

provisions of this subpart.

Note 3: If IEP teams appropriately consider

positive behavioral interventions and

supplementary aids and services and if

necessary include those services in IEPs,

many children who otherwise would be

disruptive will be able to participate in

regular education classrooms.

§ 300.553 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

§ 300.306, each public agency shall

ensure that each child with a disability

participates with nondisabled children

in those services and activities to the

maximum extent appropriate to the

needs of that child.

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

Note: Section 300.553 is taken from a

requirement in the regulations for Section

504 of the Rehabilitation Act of 1973. With

respect to this requirement, the analysis of

the Section 504 regulations includes the

following statement: ‘‘[This paragraph]

specifies that handicapped children must

also be provided nonacademic services in as

integrated a setting as possible. This

requirement is especially important for

children whose educational needs necessitate

their being solely with other handicapped

children during most of each day. To the

maximum extent appropriate, children in

residential settings are also to be provided

opportunities for participation with other

children.’’ (34 CFR part 104—Appendix,

Paragraph 24.)

§ 300.554 Children in public or private

institutions.

Each SEA shall make arrangements

with public and private institutions

(such as a memorandum of agreement or

special implementation procedures) as

may be necessary to ensure that

§ 300.550 is effectively implemented.

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

Note: The requirement to educate children

with disabilities with nondisabled children

also applies to children in public and private

institutions or other care facilities. Each SEA
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must ensure that each applicable agency and

institution in the State implements this

requirement. Regardless of other reasons for

institutional placement, no child in an

institution who is capable of education in a

regular public school setting may be denied

access to an education in that setting.

§ 300.555 Technical assistance and

training activities.

Each SEA shall carry out activities to

ensure that teachers and administrators

in all public agencies—

(a) Are fully informed about their

responsibilities for implementing

§ 300.550; and

(b) Are provided with technical

assistance and training necessary to

assist them in this effort.

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

§ 300.556 Monitoring activities.

(a) The SEA shall carry out activities

to ensure that § 300.550 is implemented

by each public agency.

(b) If there is evidence that a public

agency makes placements that are

inconsistent with § 300.550, the SEA

shall—

(1) Review the public agency’s

justification for its actions; and

(2) Assist in planning and

implementing any necessary corrective

action.

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

Confidentiality of Information

§ 300.560 Definitions.

As used in §§ 300.560–300.577—

Destruction means physical

destruction or removal of personal

identifiers from information so that the

information is no longer personally

identifiable.

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).

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))

§ 300.561 Notice to parents.

(a) The SEA shall give notice that is

adequate to fully inform parents about

the requirements of § 300.127,

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

the Family Educational Rights and

Privacy Act of 1974 and implementing

regulations in 34 CFR part 99.

(b) Before any major identification,

location, or evaluation activity, the

notice must be published or announced

in newspapers or other media, or both,

with circulation adequate to notify

parents throughout the State of the

activity.

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

§ 300.562 Access rights.

(a) Each participating agency shall

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 shall comply with a request

without unnecessary delay and before

any meeting regarding an IEP or any

hearing relating to the identification,

evaluation, or educational placement of

the child, or the provision of FAPE to

the child, 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))

§ 300.563 Record of access.

Each participating agency shall 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))

§ 300.564 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))

§ 300.565 List of types and locations of

information.

Each participating agency shall

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))

§ 300.566 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))

§ 300.567 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 shall 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 shall inform the

parent of the refusal and advise the

parent of the right to a hearing under

§ 300.568.

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

§ 300.568 Opportunity for a hearing.

The agency shall, on request, provide

an opportunity for a hearing to
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55109

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))

§ 300.569 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 shall 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 shall inform the

parent of the right to place in the

records it maintains on the child a

statement commenting on the

information or setting forth any reasons

for disagreeing with the decision of the

agency.

(c) Any explanation placed in the

records of the child under this section

must—

(1) Be maintained by the agency as

part of the records of the child as long

as the record or contested portion is

maintained by the agency; and

(2) If the records of the child or the

contested portion is disclosed by the

agency to any party, the explanation

must also be disclosed to the party.

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

§ 300.570 Hearing procedures.

A hearing held under § 300.568 must

be conducted according to the

procedures under 34 CFR 99.22.

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

§ 300.571 Consent.

(a) Parental consent must be obtained

before personally identifiable

information is—

(1) Disclosed to anyone other than

officials of participating agencies

collecting or using the information

under this part, subject to paragraph (b)

of this section; or

(2) Used for any purpose other than

meeting a requirement of this part.

(b) An educational agency or

institution subject to 34 CFR part 99

may not release information from

education records to participating

agencies without parental consent

unless authorized to do so under part

99.

(c) The SEA shall provide policies

and procedures that are used in the

event that a parent refuses to provide

consent under this section.

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

§ 300.572 Safeguards.

(a) Each participating agency shall

protect the confidentiality of personally

identifiable information at collection,

storage, disclosure, and destruction

stages.

(b) One official at each participating

agency shall assume responsibility for

ensuring the confidentiality of any

personally identifiable information.

(c) All persons collecting or using

personally identifiable information must

receive training or instruction regarding

the State’s policies and procedures

under § 300.127 and 34 CFR part 99.

(d) Each participating agency shall

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))

§ 300.573 Destruction of information.

(a) The public agency shall 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))

Note: Under § 300.573, the personally

identifiable information on a child with a

disability may be retained permanently

unless the parents request that it be

destroyed. Destruction of records is the best

protection against improper and

unauthorized disclosure. However, the

records may be needed for other purposes. In

informing parents about their rights under

this section, the agency should remind them

that the records may be needed by the child

or the parents for social security benefits or

other purposes. If the parents request that the

information be destroyed, the agency may

retain the information in paragraph (b) of this

section.

§ 300.574 Children’s rights.

The SEA shall provide 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.

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

Note 1: Under the regulations for the

Family Educational Rights and Privacy Act of

1974 (34 CFR 99.5(a)), the rights of parents

regarding education records are transferred to

the student at age 18.

Note 2: 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 § 300.517, the rights

regarding educational records in §§ 300.562–

300.573 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.

§ 300.575 Enforcement.

The SEA shall provide the policies

and procedures, including sanctions,

that the State uses to ensure that its

policies and procedures are followed

and that the requirements of the Act and

the regulations in this part are met.

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

§ 300.576 Disciplinary information.

(a) The State may require that a LEA

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 individualized

education program and any statement of

current or previous disciplinary action

that has been taken against the child.

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

§ 300.577 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 5 U.S.C. 552a (the Privacy Act

of 1974), the Secretary applies the

requirements of 5 U.S.C. 552a (b)(1)–(2),

(4)–(11); (c); (d); (e)(1), (2), (3)(A), (B),

and (D), (5)–(10); (h); (m); and (n); and

the regulations implementing those

provisions in 34 CFR part 5b.

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

Department Procedures

§ 300.580 Determination by the Secretary

that a State is eligible.

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.
55110 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

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

§ 300.581 Notice and hearing before

determining that a State is not eligible.

(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 calendar days after it receives

the notice of the proposed final

determination that the State is not

eligible; and

(4) Provides information about the

procedures followed for a hearing.

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

§ 300.582 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))

§ 300.583 Hearing procedures.

(a) As used in §§ 300.581–300.586 the

term party or parties means the

following:

(1) An SEA that requests a hearing

regarding the proposed disapproval of

its State plan 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

Panel.

(b) Within 15 days after receiving a

request for a hearing, the Secretary

designates a Hearing Official or Panel

and notifies the parties.

(c) The Hearing Official or Panel may

regulate the course of proceedings and

the conduct of the parties during the

proceedings. The Hearing Official or

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 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 Panel may

schedule a prehearing conference of the

Hearing Official or Panel and parties.

(3) Any party may request the Hearing

Official or Panel to schedule a

prehearing or other conference. The

Hearing Official or Panel decides

whether a conference is necessary and

notifies all parties.

(4) At a prehearing or other

conference, the Hearing Official or 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 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

Panel.

(5) A prehearing or other conference

held under paragraph (b)(4) of this

section may be conducted by telephone

conference call.

(6) At a prehearing or other

conference, the parties shall 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 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 Panel may

require parties to state their positions

and to provide all or part of the

evidence in writing.

(e) The Hearing Official or Panel may

require parties to present testimony

through affidavits and to conduct crossexamination through interrogatories.

(f) The Hearing Official or 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 Panel may

receive, rule on, exclude, or limit

evidence at any stage of the

proceedings.

(h) The Hearing Official or Panel may

rule on motions and other issues at any

stage of the proceedings.

(i) The Hearing Official or Panel may

examine witnesses.

(j) The Hearing Official or Panel may

set reasonable time limits for

submission of written documents.

(k) The Hearing Official or 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 Panel may

interpret applicable statutes and

regulations but may not waive them or

rule on their validity.

(m)(1) The parties shall present their

positions through briefs and the

submission of other documents and may

request an oral argument or evidentiary

hearing. The Hearing Official or 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 Panel gives

each party an opportunity to be

represented by counsel.

(n) If the Hearing Official or Panel

determines that an evidentiary hearing

would materially assist the resolution of

the matter, the Hearing Official or 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 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 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.
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(q) Each party shall file with the

Hearing Official or Panel all written

motions, briefs, and other documents

and shall at the same time provide a

copy to the other parties to the

proceedings.

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

§ 300.584 Initial decision; final decision.

(a) The Hearing Official or Panel

prepares an initial written decision that

addresses each of the points in the

notice sent by the Secretary to the SEA

under § 300.581.

(b) The initial decision of a Panel is

made by a majority of Panel members.

(c) The Hearing Official or 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 Panel

within 15 days of the date the party

receives the Panel’s decision.

(e) The Hearing Official or 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 Panel within seven days of

the date the party receives the initial

comments and recommendations.

(f) The Hearing Official or 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 Panel becomes the final

decision of the Secretary unless, within

25 days after the end of the time for

receipt of written comments, the

Secretary informs the Hearing Official or

Panel and the parties to a hearing in

writing that the decision is being further

reviewed for possible modification.

(h) The Secretary may reject or modify

the initial decision of the Hearing

Official or 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 Hearing Official’s or Panel’s

proceedings, and written comments.

The Secretary may remand the matter

for further proceedings.

(j) The Secretary issues the final

decision within 30 days after notifying

the Hearing Official or Panel that the

initial decision is being further

reviewed.

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

§ 300.585 Filing requirements.

(a) Any written submission under

§§ 300.581–300.585 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 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. 1413(c))

§ 300.586 Judicial review.

If a State is dissatisfied with the

Secretary’s final action 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 action,

file with the United States Court of

Appeals for the circuit in which that

State is located a petition for review of

that action. A copy of the petition must

be forthwith 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

action was based, as provided in section

2112 of title 28, United States Code.

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

§ 300.587 Enforcement.

(a) General. The Secretary initiates an

action described in paragraph (b) of this

section if the Secretary finds—

(1) That there has been a failure by the

State to comply substantially with any

provision of Part B of the Act, this part,

or 34 CFR part 301; or

(2) That there is a failure to comply

with any condition of an LEA’s or SEA’s

eligibility under Part B of the Act, this

part or 34 CFR part 301, including the

terms of any agreement to achieve

compliance with Part B of the Act, this

part, or Part 301 within the timelines

specified in the agreement.

(b) Types of action. The Secretary,

after notifying the SEA (and any LEA or

State agency affected by a failure

described in paragraph (a)(2) of this

section)—

(1) Withholds in whole or in part any

further payments to the State under Part

B of the Act;

(2) Refers the matter to the

Department of Justice for enforcement;

or

(3) Takes any other enforcement

action authorized by law.

(c) Nature of withholding. (1) If the

Secretary determines that it is

appropriate to withhold further

payments under paragraph (b)(1) of this

section, the Secretary may determine

that the withholding will be limited to

programs or projects, or portions

thereof, affected by the failure, or that

the SEA shall not make further

payments under Part B of the Act to

specified LEA or State agencies affected

by the failure.

(2) Until the Secretary is satisfied that

there is no longer any failure to comply

with the provisions of Part B of the Act,

this part, or 34 CFR part 301, as

specified in paragraph (a) of this

section, payments to the State under

Part B of the Act are withheld in whole

or in part, or payments by the SEA

under Part B of the Act are limited to

local educational agencies and State

agencies whose actions did not cause or

were not involved in the failure, as the

case may be.

(3) Any SEA, LEA, or other State

agency that has received notice under

paragraph (a) of this section shall, by

means of a public notice, take such

measures as may be necessary to bring

the pendency of an action pursuant to

this subsection to the attention of the

public within the jurisdiction of that

agency.

(4) Before withholding under

paragraph (b)(1) of this section, the

Secretary provides notice and a hearing

pursuant to the procedures in

§§ 300.581–300.586.

(d) Referral for appropriate

enforcement. (1) Before the Secretary

makes a referral under paragraph (b)(2)

of this section for enforcement, or takes

any other enforcement action authorized

by law under paragraph (b)(3), the

Secretary provides the State—

(i) With reasonable notice; and

(ii) With an opportunity for a hearing.

(2) The hearing described in

paragraph (d)(1)(ii) of this section

consists of an opportunity to meet with

the Assistant Secretary for the Office of

Special Education and Rehabilitative

Services to demonstrate why the

Department should not make such a

referral for enforcement.
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(e) Divided State agency

responsibility. For purposes of this part,

if responsibility for ensuring that the

requirements of this part 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 § 300.600(d), and if

the Secretary finds that the failure to

comply substantially with the

provisions of Part B of the Act or this

part are related to a failure by the public

agency, the Secretary takes one of the

enforcement actions described in

paragraph (b) of this section to ensure

compliance with Part B of the Act and

this part, except—

(1) Any reduction or withholding of

payments to the State under paragraph

(b)(1) of this section is 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 State educational

agency; and

(2) Any withholding of funds under

paragraph (e)(1) of this section is limited

to the specific agency responsible for

the failure to comply with Part B of the

Act or this part.

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

Note: Other enforcement actions

authorized by law include issuance of a

complaint to compel compliance through a

cease and desist order under 20 U.S.C. 1234e

and entering into a compliance agreement to

bring a recipient into compliance under 20

U.S.C. 1234f.

§§ 300.588 [Reserved]

§ 300.589 Waiver of requirement regarding

supplementing and not supplanting with

Part B funds.

(a) Except as provided under

§§ 300.232–300.235, 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 § 300.602

without regard to the prohibition on

supplanting other funds (See § 300.372).

(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 § 300.153 (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

§ 300.125 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 §§ 300.660–300.662; and

(D) The State’s hearing procedures

under §§ 300.507–300.511 and 300.520–

300.528;

(3) A summary of all State and

Federal monitoring reports, and State

complaint decisions (see §§ 300.660–

300.662) and hearing decisions (see

§§ 300.507–300.511 and 300.520–

300.528), issued within three years prior

to the date of the State’s request for a

waiver under this section, that includes

any finding that FAPE has not been

available to one or more eligible

children, and evidence that FAPE is

now available to all children addressed

in those reports or decisions; and

(4) Evidence that the State, in

determining that FAPE is currently

available to all eligible children with

disabilities in the State, has consulted

with the State advisory panel under

§ 300.650, the State’s Parent Training

and Information Center or Centers, the

State’s Protection and Advocacy

organization, and other organizations

representing the interests of children

with disabilities and their parents, and

a summary of the input of these

organizations.

(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 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)(19)(A) and

§ 300.154(a) if it satisfies the

requirements of paragraphs (b) through

(e) of this section.

(g)(1) The Secretary may grant

subsequent waivers for a period of one

year each, if the Secretary determines

that the State has provided clear and

convincing evidence that all eligible

children with disabilities throughout

the State have, and will continue to

have throughout the one-year period of

the waiver, FAPE available to them.

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

(19)(C)(ii) and (E))

Subpart F—State Administration;

General

§ 300.600 Responsibility for all educational

programs.

(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—

(i) Is under the general supervision of

the persons responsible for educational

programs for children with disabilities

in the SEA; and
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55113

(ii) Meets the education standards of

the SEA (including the requirements of

this part).

(b) The State must comply with

paragraph (a) of this section through

State statute, State regulation, signed

agreement between respective agency

officials, or other documents.

(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 children with

disabilities who are convicted as adults

under State law and incarcerated in

adult prisons.

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

Note: The requirement in § 300.600(a)

reflects the desire of the Congress for a

central point of responsibility and

accountability in the education of children

with disabilities within each State. With

respect to SEA responsibility, the Senate

Report on Pub. L. 94–142 includes the

following statements:

This provision is included specifically to

assure a single line of responsibility with

regard to the education of handicapped

children, and to assure that in the

implementation of all provisions of this Act

and in carrying out the right to education for

handicapped children, the SEA shall be the

responsible agency * * *.

Without this requirement, there is an

abdication of responsibility for the education

of handicapped children. In many States,

responsibility is divided, depending upon

the age of the handicapped child, sources of

funding, and type of services delivered.

While the Committee understands that

different agencies may, in fact, deliver

services, the responsibility must remain in a

central agency overseeing the education of

handicapped children, so that failure to

deliver services or the violation of the rights

of handicapped children is squarely the

responsibility of one agency. (S. Rep. No. 94–

168, p. 24 (1975))

In meeting the requirements of this

section, there are a number of

acceptable options that may be adopted,

including the following:

(1) Written agreements are developed

between respective State agencies

concerning SEA standards and

monitoring. These agreements are

binding on the local or regional

counterparts of each State agency.

(2) The Governor’s office issues an

administrative directive establishing the

SEA responsibility.

(3) State law, regulation, or policy

designates the SEA as responsible for

establishing standards for all

educational programs for individuals

with disabilities, and includes

responsibility for monitoring.

(4) State law mandates that the SEA

is responsible for all educational

programs.

§ 300.601 Relation of Part B to other

Federal programs.

Part B of the Act may not be

construed to permit a State to reduce

medical and other assistance available

to children with disabilities, or to alter

the eligibility of a child with a

disability, under title V (Maternal and

Child Health) or title XIX (Medicaid) of

the Social Security Act, to receive

services that are also part of FAPE.

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

§ 300.602 State-level activities.

(a) Each State may retain not more

than the amount described in paragraph

(b) of this section for administration in

accordance with §§ 300.620 and 300.621

and other State-level activities in

accordance with § 300.370.

(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 this section 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 611 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. 1411(f)(1)(A) and (B))

Use of Funds

§ 300.620 Use of funds for State

administration.

(a) For the purpose of administering

Part B of the Act, including 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)—

(1) Each State may use not more than

twenty percent of the maximum amount

it may retain under § 300.602(a) for any

fiscal year or $500,000 (adjusted by the

cumulative rate of inflation since fiscal

year 1998, as measured by the

percentage increase, if any, in the

Consumer Price Index For All Urban

Consumers, published by the Bureau of

Labor Statistics of the Department of

Labor), whichever is greater; and

(2) Each outlying area may use up to

five percent of the amount it receives

under this section for any fiscal year or

$35,000, whichever is greater.

(b) Funds described in paragraph (a)

of this section may also be used for the

administration of Part C of the Act, if

the SEA is the lead agency for the State

under that part.

(Authority: 20 U.S.C. 1411(f)(2))

§ 300.621 Allowable costs.

(a) The SEA may use funds under

§ 300.620 for—

(1) Administration of State activities

under Part B of the Act and for planning

at the State level, including planning, or

assisting in the planning, of programs or

projects for the education of children

with disabilities;

(2) Approval, supervision,

monitoring, and evaluation of the

effectiveness of local programs and

projects for the education of children

with disabilities;

(3) Technical assistance to LEAs with

respect to the requirements of Part B of

the Act;

(4) Leadership services for the

program supervision and management

of special education activities for

children with disabilities; and

(5) Other State leadership activities

and consultative services.

(b) The SEA shall use the remainder

of its funds under § 300.620 in

accordance with § 300.370.

(Authority: 20 U.S.C. 1411(f)(2))

§ 300.622 Subgrants to LEAs for capacitybuilding and improvement.

In any fiscal year in which the

percentage increase in the State’s

allocation under 611 of the Act exceeds

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),

each State shall reserve, from its

allocation under 611 of the Act, the

amount described in § 300.623 to make

subgrants to LEAs, unless that amount

is less than $100,000, to assist them in

providing direct services and in making

systemic change to improve results for

children with disabilities through one or

more of the following:

(a) Direct services, including

alternative programming for children

who have been expelled from school,

and services for children in correctional

facilities, children enrolled in Stateoperated or State-supported schools,

and children in charter schools.

(b) Addressing needs or carrying out

improvement strategies identified in the
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State’s Improvement Plan under subpart

1 of Part D of the Act.

(c) Adopting promising practices,

materials, and technology, based on

knowledge derived from education

research and other sources.

(d) Establishing, expanding, or

implementing interagency agreements

and arrangements between LEAs and

other agencies or organizations

concerning the provision of services to

children with disabilities and their

families.

(e) Increasing cooperative problemsolving between parents and school

personnel and promoting the use of

alternative dispute resolution.

(Authority: 20 U.S.C. 1411(f)(4)(A))

§ 300.623 Amount required for subgrants

to LEAs.

For each fiscal year, the amount

referred to in § 300.622 is—

(a) The maximum amount the State

was allowed to retain under § 300.602(a)

for the prior fiscal year, or, for fiscal

year 1998, 25 percent of the State’s

allocation for fiscal year 1997 under

section 611; multiplied by

(b) The difference between the

percentage increase in the State’s

allocation under this section and 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(f)(4)(B))

Note: The amount required for these

subgrants will vary from year to year and is

determined by the size of the increase in the

State’s allocation. Funds used for the

required subgrants to LEAs in one year

become part of the required flow-through to

LEAs under § 300.712 in the next year. In

those years in which the State’s allocation

does not increase over the prior year by at

least the rate of inflation, the required setaside for these grants will be zero. However,

States may always use, at their discretion,

funds reserved for State-level activities under

§ 300.602 for these subgrants.

§ 300.624 State discretion in awarding

subgrants.

The State may establish priorities in

awarding subgrants under § 300.622 to

LEAs competitively or on a targeted

basis.

(Authority: 20 U.S.C. 1411(f)(4)(B))

Note: The purpose of these subgrants, as

distinguished from the formula subgrants to

LEAs, is to provide funding that the SEA can

direct to address particular needs not readily

addressed through formula assistance to

school districts such as funding for services

to children who have been suspended or

expelled. The SEA can also use these funds

to promote innovation, capacity-building,

and systemic changes that are needed to

improve educational results.

State Advisory Panel

§ 300.650 Establishment of advisory

panels.

(a) Each State shall establish and

maintain, in accordance with

§§ 300.650—300.653, a State advisory

panel on the education of children with

disabilities.

(b) The advisory panel must be

appointed by the Governor or any other

official authorized under State law to

make those appointments.

(c) If a State has an existing advisory

panel that can perform the functions in

§ 300.652, the State may modify the

existing panel so that it fulfills all of the

requirements of §§ 300.650—300.653,

instead of establishing a new advisory

panel.

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

Note: The advisory panel required by

§§ 300.650—300.653 must advise the State

regarding the education of all children with

disabilities in the State. This includes

advising the State on the education of eligible

students with disabilities who have been

convicted as adults and incarcerated in adult

prisons, even if, consistent with § 300.600(d),

a State assigns general supervision

responsibility for those students to a public

agency other than an SEA.

§ 300.651 Membership.

(a) General. The membership of the

State advisory panel must consist of

members appointed by the Governor, or

any other official authorized under State

law to make these appointments, that is

representative of the State population

and that is composed of individuals

involved in, or concerned with the

education of children with disabilities,

including—

(1) Parents of children with

disabilities;

(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;

(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) At least one representative of a

vocational, community, or business

organization concerned with the

provision of transition services to

children with disabilities; and

(10) 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.

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

§ 300.652 Advisory panel functions.

The State advisory panel shall—

(a) Advise the SEA of unmet needs

within the State in the education of

children with disabilities;

(b) Comment publicly on any rules or

regulations proposed by the State

regarding the education of children with

disabilities;

(c) Advise the SEA in developing

evaluations and reporting on data to the

Secretary under section 618 of the Act;

(d) Advise the SEA in developing

corrective action plans to address

findings identified in Federal

monitoring reports under Part B of the

Act; and

(e) Advise the SEA in developing and

implementing policies relating to the

coordination of services for children

with disabilities.

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

§ 300.653 Advisory panel procedures.

(a) The advisory panel shall meet as

often as necessary to conduct its

business.

(b) By July 1 of each year, the advisory

panel shall submit an annual report of

panel activities and suggestions to the

SEA. This report must be made

available to the public in a manner

consistent with other public reporting

requirements of Part B of the Act.

(c) Official minutes must be kept on

all panel meetings and must be made

available to the public on request.

(d) All advisory panel meetings and

agenda items must be publicly

announced prior to the meeting, and

meetings must be open to the public.

(e) Interpreters and other necessary

services must be provided at panel

meetings for panel members or

participants. The State may pay for

these services from funds under

§ 300.620.

(f) The advisory panel shall serve

without compensation but the State

must reimburse the panel for reasonable

and necessary expenses for attending

meetings and performing duties. The

State may use funds under § 300.620 for

this purpose.

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

State Complaint Procedures

§ 300.660 Adoption of State complaint

procedures.

Each SEA shall adopt written

procedures for—
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(a) Resolving any complaint that

meets the requirements of § 300.662

by—

(1) Providing for the filing of a

complaint with the SEA; and

(2) 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

(b) Widely disseminating to parents

and other interested individuals,

including parent training centers,

protection and advocacy agencies,

independent living centers, and other

appropriate entities, the State’s

procedures under §§ 300.660—300.662.

(Authority: 20 U.S.C. 2831(a))

Note: In resolving a complaint alleging

failure to provide appropriate services, an

SEA, pursuant to its general supervisory

authority under Part B of the Act, may award

compensatory services as a remedy for the

denial of FAPE.

§ 300.661 Minimum State complaint

procedures.

Each SEA shall include the following

in its complaint procedures:

(a) A time limit of 60 calendar days

after a complaint is filed under

§ 300.660(a) to—

(1) Carry out an independent on-site

investigation, if the SEA determines that

such 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) 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

(4) 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) An extension of the time limit

under paragraph (a) of this section only

if exceptional circumstances exist with

respect to a particular complaint.

(c) Procedures for effective

implementation of the SEA’s final

decision, if needed, including technical

assistance activities, negotiations, and

corrective actions to achieve

compliance.

(Authority: 20 U.S.C. 2831(a))

Note 1: If a written complaint is received

that is also the subject of a due process

hearing under § 300.507, or contains multiple

issues, of which one or more may be 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 within the

60 calendar-day timeline using the complaint

procedures described in this section.

Note 2: If an issue is raised in a complaint

filed under this section that has previously

been decided in a due process hearing

involving the same parties, then the hearing

decision is binding, and the SEA would

inform the complainant to that effect. A

complaint alleging a public agency’s failure

to implement a due process decision,

however, would have to be resolved by the

SEA.

§ 300.662 Filing a complaint.

(a) An organization or individual may

file a signed written complaint under

the procedures described in §§ 300.660–

300.661.

(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; and

(2) The facts on which the statement

is based.

(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 § 300.660(a) unless a longer period

is reasonable because the violation is

continuing, or the complainant is

requesting compensatory services for a

violation that occurred not more than

three years prior to the date the

complaint is received under

§ 300.660(a).

(Authority: 20 U.S.C. 2831(a))

Note: The SEA must resolve any complaint

that meets the requirements of this section,

even if the complaint is filed by an

organization or individual from another

State.

Subpart G—Allocation of Funds;

Reports Allocations

§ 300.700 Special definition of the term

‘‘State’’.

For the purposes of §§ 300.701,

300.703–300.714, the term State means

each of the 50 States, the District of

Columbia, and the Commonwealth of

Puerto Rico.

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

§ 300.701 Grants to States.

(a) Purpose of grants. The Secretary

makes grants to States and the outlying

areas 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 amounts. The

maximum amount of the grant a State

may receive under section 611 of the

Act for any fiscal year is—

(1) The number of children with

disabilities in the State who are

receiving special education and related

services—

(i) Aged 3 through 5 if the State is

eligible for a grant under section 619 of

the Act; and

(ii) Aged 6 through 21; multiplied

by—

(2) Forty (40) percent of the average

per-pupil expenditure in public

elementary and secondary schools in

the United States.

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

§ 300.702 Definition.

For the purposes of this section the

term average per-pupil expenditure in

public elementary and secondary

schools in the United States means—

(a) Without regard to the source of

funds—

(1) 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

(2) Any direct expenditures by the

State for the operation of those agencies;

divided by

(b) 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. 1411(h)(1))

§ 300.703 Allocations to States.

(a) General. After reserving funds for

studies and evaluations under section

674(e) of the Act, and for payments to

the outlying areas and the Secretary of

the Interior under §§ 300.717–300.722

and 300.715, the Secretary allocates the

remaining amount among the States in

accordance with paragraph (b) of this

section and §§ 300.704–300.705 or

300.706–300.709.

(b) Interim formula. Except as

provided in §§ 300.706–300.709, the

Secretary allocates the amount

described in paragraph (a) of this

section among the States in accordance

with section 611(a)(3), (4), (5) and (b)(1),

(2) and (3) of the Act, as in effect prior

to June 4, 1997, except that the

determination of the number of children

with disabilities receiving special

education and related services under

section 611(a)(3) of the Act (as then in

effect) may be calculated as of December

1, or, at the State’s discretion, the last

Friday in October, of the fiscal year for

which the funds were appropriated.

(Authority: 20 U.S.C. 1411(d))
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§§ 300.704–300.705 [Reserved]

§ 300.706 Permanent formula.

(a) Establishment of base year. The

Secretary allocates the amount

described in § 300.703(a) among the

States in accordance with §§ 300.706–

300.709 for each fiscal year beginning

with the first fiscal year for which the

amount appropriated under 611(j) of the

Act is more than $4,924,672,200.

(b) Use of base year.

(1) Definition. As used in this section,

the term base year means the fiscal year

preceding the first fiscal year in which

this section applies.

(2) Special rule for use of base year

amount. If a State received any funds

under this section for the base year on

the basis of children aged 3 through 5,

but does not make FAPE available to all

children with disabilities aged 3

through 5 in the State in any subsequent

fiscal year, the Secretary computes the

State’s base year amount, solely for the

purpose of calculating the State’s

allocation in that subsequent year under

§§ 300.707–300.709, by subtracting the

amount allocated to the State for the

base year on the basis of those children.

(Authority: 20 U.S.C. 1411(e)(1) and (2))

§ 300.707 Increase in funds.

If the amount available for allocations

to States under § 300.706 is equal to or

greater than the amount allocated to the

States under this section for the

preceding fiscal year, those allocations

are calculated as follows:

(a) Except as provided in § 300.708,

the Secretary—

(1) Allocates to each State the amount

it received for the base year;

(2) Allocates 85 percent of any

remaining funds to States on the basis

of their 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

(3) Allocates 15 percent of those

remaining funds to States on the basis

of their relative populations of children

described in paragraph (a)(2) of this

section 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. 1411(e)(3))

§ 300.708 Limitation.

(a) Notwithstanding § 300.707,

allocations under this section are

subject to the following:

(1) No State’s allocation may be less

than its allocation for the preceding

fiscal year.

(2) No State’s allocation may be less

than the greatest of—

(i) The sum of—

(A) The amount it received for the

base year; and

(B) One-third of one percent of the

amount by which the amount

appropriated under section 611(j) of the

Act exceeds the amount appropriated

under section 611 of the Act for the base

year;

(ii) The sum of—

(A) The amount it received for the

preceding fiscal year; and

(B) That amount multiplied by the

percentage by which the increase in the

funds appropriated from the preceding

fiscal year exceeds 1.5 percent; or

(iii) The sum of—

(A) The amount it received for the

preceding fiscal year; and

(B) That amount multiplied by 90

percent of the percentage increase in the

amount appropriated from the

preceding fiscal year.

(b) Notwithstanding paragraph (a)(2)

of this section, no State’s allocation

under § 300.707 may exceed the sum

of—

(1) The amount it received 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.

(c) If the amount available for

allocations to States under § 300.307

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. 1411(e)(3)(B) and (C))

§ 300.709 Decrease in funds.

If the amount available for allocations

to States under § 300.706 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:

(a) If the amount available for

allocations is greater than the amount

allocated to the States for the base year,

each State is allocated the sum of—

(1) The amount it received for the

base year; and

(2) An amount that bears the same

relation to any remaining funds as the

increase the State received for the

preceding fiscal year over the base year

bears to the total of those increases for

all States.

(b)(1) If the amount available for

allocations is equal to or less than the

amount allocated to the States for the

base year, each State is allocated the

amount it received for the base year.

(2) If the amount available is

insufficient to make the allocations

described in paragraph (b)(1) of this

section, those allocations are ratably

reduced.

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

§ 300.710 Allocation for State in which bypass is implemented for private school

children with disabilities.

In determining the allocation under

§§ 300.700—300.709 of a State in which

the Secretary will implement a by-pass

for private school children with

disabilities under §§ 300.451—300.487,

the Secretary includes in the State’s

child count—

(a) For the first year of a by-pass, the

actual or estimated number of private

school children with disabilities (as

defined in §§ 300.7(a) and 300.450) in

the State, as of the preceding December

1; and

(b) For succeeding years of a by-pass,

the number of private school children

with disabilities who received special

education and related services under the

by-pass in the preceding year.

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

§ 300.711 Subgrants to LEAs.

Each State that receives a grant under

section 611 of the Act for any fiscal year

shall distribute in accordance with

§ 300.712 any funds it does not retain

under § 300.602 and is not required to

distribute under §§ 300.622 and 300.623

to LEAs in the State that have

established their eligibility under

section 613 of the Act, and to State

agencies that received funds under

section 614A(a) of the Act for fiscal year

1997, as then in effect, and have

established their eligibility under

section 613 of the Act, for use in

accordance with Part B of the Act.

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

§ 300.712 Allocations to LEAs.

(a) Interim procedure. For each fiscal

year for which funds are allocated to

States under § 300.703(b) each State

shall allocate funds under § 300.711 in

accordance with section 611(d) of the

Act, as in effect prior to June 4, 1997.

(b) Permanent procedure. For each

fiscal year for which funds are allocated

to States under §§ 300.706–300.709,

each State shall allocate funds under

§ 300.711 as follows:

(1) Base payments. The State first

shall award each agency described in

§ 300.711 the amount that agency would

have received under this section for the

base year, as defined in § 300.706(b)(1),

if the State had distributed 75 percent

of its grant for that year under section

§ 300.703(b).
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(2) Allocation of remaining funds. The

State then shall—

(i) Allocate 85 percent of any

remaining funds to those agencies on

the basis of the relative numbers of

children enrolled in public and private

elementary and secondary schools

within the agency’s jurisdiction; and

(ii) Allocate 15 percent of those

remaining funds to those agencies in

accordance with their relative numbers

of children living in poverty, as

determined by the SEA.

(Authority: 20 U.S.C. 1411(g)(2))

Note: In distributing funds under

paragraph (b)(2)(i) of this section, States

should use the best data that are available to

them on enrollment in public and private

schools. If data on enrollment in private

schools are not available, States or LEAs are

not expected to initiate new data collections

to obtain these data. However, States are

encouraged to try to obtain enrollment data

from private, nonprofit schools that want

their students to participate in the program.

In distributing funds under paragraph

(b)(2)(ii) of this section, States have

discretion in determining what data to use to

allocate funds among LEAs on the basis of

children living in poverty. States should use

the best data available to them that reflect the

distribution of children living in poverty.

Examples of options include census poverty

data, data on children in families receiving

assistance under the State program funded

under Part A of title IV of the Social Security

Act, data on children participating in the free

or reduced-price meals program under the

National School Lunch Act, and allocations

under title I of the Elementary and Secondary

Education Act.

§ 300.713 Former Chapter 1 State

agencies.

(a) To the extent necessary, the

State—

(1) Shall use funds that are available

under § 300.602(a) to ensure that each

State agency that received fiscal year

1994 funds under subpart 2 of Part D of

chapter 1 of title I of the Elementary and

Secondary Education Act of 1965 (as in

effect in fiscal year 1994) receives, from

the combination of funds under

§ 300.602(a) and funds provided under

§ 300.711, an amount equal to—

(i) The number of children with

disabilities, aged 6 through 21, to whom

the agency was providing special

education and related services on

December 1, or, at the State’s discretion,

the last Friday in October, of the fiscal

year for which the funds were

appropriated, subject to the limitation in

paragraph (b) of this section; multiplied

by

(ii) The per-child amount provided

under such subpart for fiscal year 1994;

and

(2) May use those funds to ensure that

each LEA that received fiscal year 1994

funds under that subpart for children

who had transferred from a Stateoperated or State-supported school or

program assisted under that subpart

receives, from the combination of funds

available under § 300.602(a) and funds

provided under § 300.711, an amount

for each child, aged 3 through 21 to

whom the agency was providing special

education and related services on

December 1, or, at the State’s discretion,

the last Friday in October, of the fiscal

year for which the funds were

appropriated, equal to the per-child

amount the agency received under that

subpart for fiscal year 1994.

(b) The number of children counted

under paragraph (a)(1)(i) of this section

may not exceed the number of children

aged 3 through 21 for whom the agency

received fiscal year 1994 funds under

subpart 2 of Part D of chapter 1 of title

I of the Elementary and Secondary

Education Act of 1965 (as in effect in

fiscal year 1994).

(Authority: 20 U.S.C. 1411(g)(3))

§ 300.714 Reallocation of LEA funds.

If a 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 Part B

of the Act that are not needed by that

local agency 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 they

serve.

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

§ 300.715 Payments to the Secretary of the

Interior for the education of Indian children.

(a) Reserved amounts for Secretary of

Interior. From the amount appropriated

for any fiscal year under 611(j) of the

Act, the Secretary reserves 1.226 percent

to provide assistance to the Secretary of

the Interior in accordance with this

section.

(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 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 paragraph (a) of

this section for that fiscal year.

(c) Calculation of number of children.

In the case of Indian students aged 3 to

5, inclusive, who are enrolled in

programs affiliated with the Bureau of

Indian Affairs (BIA) schools and that are

required by the States in which these

schools are located to attain or maintain

State accreditation, and which schools

have this accreditation prior to the date

of enactment of the Individuals with

Disabilities Education Act Amendments

of 1991, the school may count those

children for the purpose of distribution

of the funds provided under this section

to the Secretary of the Interior.

(d) Responsibility for meeting the

requirements of Part B. The Secretary of

the Interior shall meet all of the

requirements of Part B of the Act for the

children described in paragraph (b) of

this section, in accordance with

§ 300.260.

(Authority: 20 U.S.C. 1411(c); 1411(i)(1) (A)

and (B))

§ 300.716 Payments for education and

services for Indian children with disabilities

aged 3 through 5.

(a) General. With funds appropriated

under 611(j) 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 SelfDetermination and Education

Assistance Act) or consortia of those

tribes or tribal organizations to provide

for the coordination of assistance for

special education and related services

for children with disabilities aged 3

through 5 on reservations served by

elementary 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 § 300.715(a).

(b) Distribution of funds. The

Secretary of the Interior shall distribute

the total amount of the payment under

paragraph (a) of this section by

allocating to each tribe or tribal

organization an amount based on the

number of children with disabilities

ages 3 through 5 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 shall

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
55118 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

early identification of children aged 3

through 5, 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 entities shall, as appropriate,

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 shall provide to the

Secretary of the Interior a biennial

report of activities undertaken under

this paragraph, 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 one in which

the report is made. The Secretary of the

Interior shall include a summary of this

information on a biennial basis in the

report to the Secretary required under

section 611(i). 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(i)(3))

§ 300.717 Outlying areas and freely

associated States.

From the amount appropriated for any

fiscal year under 611(j) of the Act, the

Secretary reserves not more than one

percent, which must be used—

(a) To provide assistance to the

outlying areas in accordance with their

respective populations of individuals

aged 3 through 21; and

(b) For fiscal years 1998 through 2001,

to carry out the competition described

in § 300.719, except that the amount

reserved to carry out that competition

may not exceed the amount reserved for

fiscal year 1996 for the competition

under Part B of the Act described under

the heading ‘‘SPECIAL EDUCATION’’ in

Public Law 104–134.

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

§ 300.718 Outlying area—definition.

As used in this part, the term outlying

area means the United States Virgin

Islands, Guam, American Samoa, and

the Commonwealth of the Northern

Mariana Islands.

(Authority: 20 U.S.C. 1402(18))

§ 300.719 Limitation for freely associated

States.

(a) Competitive grants. The Secretary

uses funds described in § 300.717(b) to

award grants, on a competitive basis, to

Guam, American Samoa, the

Commonwealth of the Northern Mariana

Islands, and the freely associated States

to carry out the purposes of this part.

(b) Award basis. The Secretary awards

grants under paragraph (a) of this

section on a competitive basis, pursuant

to the recommendations of the Pacific

Region Educational Laboratory in

Honolulu, Hawaii. Those

recommendations must be made by

experts in the field of special education

and related services.

(c) Assistance requirements. Any

freely associated State that wishes to

receive funds under Part B of the Act

shall include, in its application for

assistance—

(1) Information demonstrating that it

will meet all conditions that apply to

States under this part;

(2) An assurance that,

notwithstanding any other provision of

this part, 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;

(3) 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

(4) Such other information and

assurances as the Secretary may require.

(d) Termination of eligibility.

Notwithstanding any other provision of

law, the freely associated States may not

receive any funds under Part B of the

Act for any program year that begins

after September 30, 2001.

(e) Administrative costs. The

Secretary may provide not more than

five percent of the amount reserved for

grants under this section to pay the

administrative costs of the Pacific

Region Educational Laboratory under

paragraph (b) of this section.

(f) Eligibility for award. An outlying

area is not eligible for a competitive

award under § 300.719 unless it receives

assistance under § 300.717(a).

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

§ 300.720 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 those areas or to the

freely associated States under Part B of

the Act.

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

§ 300.721 [Reserved]

§ 300.722 Definition.

As used in this part, the term freely

associated States means the Republic of

the Marshall Islands, the Federated

States of Micronesia, and the Republic

of Palau.

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

Reports

§ 300.750 Annual report of children

served—report requirement.

(a) The SEA shall report to the

Secretary no later than February 1 of

each year the number of children with

disabilities aged 3 through 21 residing

in the State who are receiving special

education and related services.

(b) The SEA shall submit the report

on forms provided by the Secretary.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a))

Note: It is very important to understand

that this report and the requirements that

relate to it are solely for allocation purposes.

The population of children the State may

count for allocation purposes may differ from

the population of children to whom the State

must make FAPE available. For example,

while section 611(a)(5) of the Act prior to the

Individuals with Disabilities Education Act

Amendments of 1997 limits the number of

children who may be counted for allocation

purposes to 12 percent of the general school

population aged 3 through 17 (in States that

serve all children with disabilities aged 3

through 5) or 5 through 17 (in States that do

not serve all children with disabilities aged

3 through 5), a State might find that 13

percent (or some other percentage) of its

children have disabilities. In that case, the

State must make FAPE available to all of

those children with disabilities.

§ 300.751 Annual report of children

served—information required in the report.

(a) For any year before the total

appropriation for section 611 of the Act

first exceeds $4,924,672,200, the SEA

shall include in its report a table that

shows—

(1) The number of children with

disabilities receiving special education

and related services on December 1, or

at the State’s discretion on the last

Friday in October, of that school year;

(2) The number of children with

disabilities aged 3 through 5 who are

receiving FAPE;

(3) The number of those children with

disabilities aged 6 through 21 within

each disability category, as defined in

the definition of ‘‘children with

disabilities’’ in § 300.7; and
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55119

(4) The number of those children with

disabilities aged 3 through 21 for each

year of age (3, 4, 5, etc.).

(b) For the purpose of this part, a

child’s age is the child’s actual age on

the date of the child count: December 1,

or, at the State’s discretion, the last

Friday in October.

(c) The SEA may not report a child

aged 6 through 21 under more than one

disability category.

(d) If a child with a disability aged 6

through 21 has more than one disability,

the SEA shall report that child in

accordance with the following

procedure:

(1) A child with deaf-blindness must

be reported under the category ‘‘deafblindness.’’

(2) A child who has more than one

disability (other than deaf-blindness)

must be reported under the category

‘‘multiple disabilities.’’

(Authority: 20 U.S.C. 1411(d)(2); 1418(a))

§ 300.752 Annual report of children

served—certification.

The SEA shall include in its report a

certification signed by an authorized

official of the agency that the

information provided is an accurate and

unduplicated count of children with

disabilities receiving special education

and related services on the dates in

question.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))

§ 300.753 Annual report of children

served—criteria for counting children.

(a) 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 either—

(1) Provides them with both special

education and related services; or

(2) Provides them only with special

education if they do not need related

services to assist them in benefitting

from that special education.

(b) The SEA may not include children

with disabilities in its report who—

(1) Are not enrolled in a school or

program operated or supported by a

public agency;

(2) Are not provided special

education that meets State standards;

(3) Are not provided with a related

service that they need to assist them in

benefitting from special education; or

(4) Are receiving special education

funded solely by the Federal

Government. However, the State may

count children covered under

§ 300.184(c)(2).

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))

Note 1: Under paragraph (a) of this section,

the State may count children with disabilities

in a Head Start or other preschool program

operated or supported by a public agency if

those children are provided special

education that meets State standards.

Note 2: Both special education and related

services must be at no cost to parents.

There may be some situations,

however, where a child receives special

education from a public source at no

cost, but whose parents pay for the basic

or regular education. This child may be

counted. The Department expects that

there would only be limited situations

in which special education would be

clearly separate from regular

education—generally, if speech services

are the only special education required

by the child. For example, the child’s

parents may have enrolled the child in

a regular program in a private school,

but the child might be receiving speech

services in a program funded by the

LEA. Allowing these children to be

counted will provide incentives (in

addition to complying with the legal

requirement in section 612(a)(10)(A) of

the Act regarding private schools) to

public agencies to provide services to

children enrolled by their parents in

private schools, since funds are

generated in part on the basis of the

number of children provided special

education and related services. Agencies

should understand, however, that if a

public agency places or refers a child

with a disability to a public or private

school for educational purposes, special

education includes the entire

educational program provided to the

child. In that case, parents may not be

charged for any part of the child’s

education.

A State may not count Indian children

on or near reservations and children on

military facilities if it provides them no

special education. If an SEA or LEA is

responsible for serving these children,

and does provide them special

education and related services, they

may be counted.

§ 300.754 Annual report of children

served—other responsibilities of the State

education agency.

In addition to meeting the other

requirements of §§ 300.750–300.753, the

SEA shall—

(a) Establish procedures to be used by

LEAs and other educational institutions

in counting the number of children with

disabilities receiving special education

and related services;

(b) Set dates by which those agencies

and institutions must report to the SEA

to ensure that the State complies with

§ 300.750(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 §§ 300.750–300.753; and

(e) Ensure that documentation is

maintained that enables the State and

the Secretary to audit the accuracy of

the count.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))

Note: States should note that the data

required in the annual report of children

served are not to be transmitted to the

Secretary in personally identifiable form.

States are encouraged to collect these data in

non-personally identifiable form.

§ 300.755 Disproportionality.

(a) General. Each State that receives

assistance under Part B of the Act, and

the Secretary of the Interior, shall

provide for the collection and

examination of data to determine if

significant disproportionality based on

race is occurring in the State or in the

schools operated by the Secretary of the

Interior 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; and

(2) The placement in particular

educational settings of these children.

(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 shall 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 Part B of the Act.

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

§ 300.756 Acquisition of equipment;

construction or alteration of facilities.

(a) General. If the Secretary

determines that a program authorized

under Part B of the Act would 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
55120 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

facilities 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 Guidelines for

Buildings and Facilities’’); or

(2) Appendix A of part 101–19.6 of

title 41, Code of Federal Regulations

(commonly known as the ‘‘Uniform

Federal Accessibility Standards’’).

(Authority: 20 U.S.C. 1405)

Appendices A and B to Part 300

[Reserved]

2. Part 301 is revised to read as

follows:

PART 301—PRESCHOOL GRANTS

FOR CHILDREN WITH DISABILITIES

Subpart A—General

Sec.

301.1 Purpose of the Preschool Grants for

Children With Disabilities Program.

301.2–301.3 [Reserved]

301.4 Applicable regulations.

301.5 Applicable definitions.

301.6 Applicability of Part C of the Act to

two-year-old children with disabilities.

Subpart B—State Eligibility for a Grant.

301.10 Eligibility of a State to receive a

grant.

301.11 [Reserved]

301.12 Sanctions if a State does not make

a free appropriate public education

available to all preschool children with

disabilities.

Subpart C—Allocation of Funds to a State.

301.20 Allocations to States.

301.21 Increase in funds.

301.22 Limitation.

301.23 Decrease in funds.

301.24 State-level activities.

301.25 Use of funds for State

administration.

301.26 Use of State agency allocations.

Subpart D—Allocations of Funds to Local

Educational Agencies.

301.30 Subgrants to local educational

agencies.

301.31 Allocations to local educational

agencies.

301.32 Reallocation of local educational

agency funds.

Authority: 20 U.S.C. 1419, unless

otherwise noted.

Subpart A—General

§ 301.1 Purpose of the Preschool Grants

for Children With Disabilities Program.

The purpose of the Preschool Grants

for Children With Disabilities program

(Preschool Grants program) is to provide

grants to States to assist them in

providing special education and related

services—

(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))

§§ 301.2–301.3 [Reserved]

§ 301.4 Applicable regulations.

The following regulations apply to the

Preschool Grants program:

(a) The Education Department General

Administrative Regulations (EDGAR) in

title 34 of the Code of Federal

Regulations—

(1) Part 76 (State-Administered

Programs) except §§ 76.125–76.137 and

76.650—76.662;

(2) Part 77 (Definitions that Apply to

Department Regulations);

(3) Part 79 (Intergovernmental Review

of Department of Education Programs

and Activities);

(4) Part 80 (Uniform Administrative

Requirements for Grants and

Cooperative Agreements to State and

Local Governments);

(5) Part 81 (General Education

Provision Act—Enforcement);

(6) Part 82 (New Restrictions on

Lobbying); and

(7) Part 85 (Governmentwide

Debarment and Suspension

(Nonprocurement) and

Governmentwide Requirements for a

Drug-Free Workplace (Grants)).

(b) The regulations in this part 301.

(c) The regulations in 34 CFR part

300.

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

§ 301.5 Applicable definitions.

(a) Definitions in the Act. The

following terms used in this part are

defined in the Act: Educational service

agency Local educational agency State

educational agency

(b) Definitions in EDGAR. The

following terms used in this part are

defined in 34 CFR 77.1:

Applicant

Application

Award

EDGAR

Fiscal year

Grant period

Secretary

Subgrant

(c) Other definitions. The following

definitions also apply to this part:

Act means the Individuals with

Disabilities Education Act, as amended.

Part B child count means the child

count required by section 611(d)(2) of

the Act.

Preschool means the age range of 3

through 5 years.

State means each of the 50 States, the

District of Columbia, and the

Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1402, 1419)

§ 301.6 Applicability of Part C of the Act to

two-year-old children with disabilities.

Part C of the Act does not apply to

any child with disabilities receiving a

free appropriate public education, in

accordance with part B of the Act, with

funds received under the Preschool

Grants program.

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

Subpart B—State Eligibility for a Grant

§ 301.10 Eligibility of a State to receive a

grant.

A State is eligible to receive a grant

if—

(a) The State is eligible under 34 CFR

part 300; and

(b) The State demonstrates to the

satisfaction of the Secretary that it has

in effect policies and procedures that

assure the provision of a free

appropriate public education—

(1) For all children with disabilities

aged three through five years in

accordance with the requirements in 34

CFR part 300; and

(2) For any two-year-old children,

provided services by the SEA or by an

LEA or ESA under section 301.1.

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

§ 301.11 [Reserved]

§ 301.12 Sanctions if a State does not

make a free appropriate public education

available to all preschool children with

disabilities.

If a State does not meet the

requirements in section 619(b) of the

Act—

(a) The State is not eligible for a grant

under the Preschool Grant program;

(b) The State is not eligible for funds

under 34 CFR part 300 for children with

disabilities aged 3 through 5 years; and

(c) No SEA, LEA, ESA, or other public

institution or agency within the State is

eligible for a grant under Subpart 2 of

part D of the Act if the grant relates

exclusively to programs, projects, and

activities pertaining to children with

disabilities aged 3 through 5 years.

(Authority: 20 U.S.C. 1411(d)(2) and (e)(2)(B);

1419(b); 1461(j))

Subpart C—Allocation of Funds to

States

§ 301.20 Allocations to States.

After reserving funds for studies and

evaluations under section 674(e) of the

Act, the Secretary allocates the

remaining amount among the States in

accordance with §§ 301.21–301.23.

(Authority: 20 U.S.C. 1419(c)(1))
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55121

§ 301.21 Increase in funds.

If the amount available for allocation

to States under § 301.20 is equal to or

greater than the amount allocated to the

States under section 619 of the Act for

the preceding fiscal year, those

allocations are calculated as follows:

(a) Except as provided in § 301.22, the

Secretary—

(1) Allocates to each State the amount

it received for fiscal year 1997;

(2) Allocates 85 percent of any

remaining funds to States on the basis

of their relative populations of children

aged 3 through 5; and

(3) Allocates 15 percent of those

remaining funds to States on the basis

of their relative populations of children

described in paragraph (a)(2) of this

section 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))

§ 301.22 Limitation.

(a) Notwithstanding § 301.21,

allocations under that section are

subject to the following:

(1) No State’s allocation may be less

than its allocation for the preceding

fiscal year.

(2) No State’s allocation may be less

than the greatest of—

(i) The sum of—

(A) The amount it received 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 exceeds the amount appropriated

under section 619 of the Act for fiscal

year 1997;

(ii) The sum of—

(A) The amount it received for the

preceding fiscal year; and

(B) That amount multiplied by the

percentage by which the increase in the

funds appropriated from the preceding

fiscal year exceeds 1.5 percent; or

(iii) The sum of—

(A) The amount it received for the

preceding fiscal year; and

(B) That amount multiplied by 90

percent of the percentage increase in the

amount appropriated from the

preceding fiscal year.

(b) Notwithstanding paragraph (a)(2)

of this section, no State’s allocation

under § 301.21 may exceed the sum of—

(1) The amount it received 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.

(c) If the amount available for

allocation to States under § 301.21 and

paragraphs (a) and (b) of this section is

insufficient to pay those allocations in

full, the Secretary ratably reduces those

allocations, subject to paragraph (a)(1) of

this section.

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

§ 301.23 Decrease in funds.

If the amount available for allocations

to States under § 301.20 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 it received for fiscal

year 1997; and

(2) An amount that bears the same

relation to any remaining funds as the

increase the State received for the

preceding fiscal year over fiscal year

1997 bears to the total of those increases

for all States.

(b)(1) If the amount available for

allocations is equal to the amount

allocated to the States for fiscal year

1997, each State is allocated the amount

it received for that year.

(2) If the amount available is less than

the amount allocated to States for fiscal

year 1997, the Secretary allocates

amounts equal to the allocations for

fiscal year 1997, ratably reduced.

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

§ 301.24 State-level activities.

(a) Each State may retain not more

than the amount described in paragraph

(b) of this section for administration and

other State-level activities in accordance

with §§ 301.25 and 301.26.

(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))

§ 301.25 Use of funds for 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), each State may use not

more than twenty percent of the

maximum amount it may retain under

§ 301.24 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, if

the SEA is the lead agency for the State

under that part.

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

§ 301.26 Use of State agency allocations.

Each State shall use any funds it

retains under § 301.24 and does not use

for administration under § 301.25 for

any of the following:

(a) 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

3 or older than 5 as long as those

services also benefit children with

disabilities aged 3 through 5.

(b) Direct services for children eligible

for services under section 619 of the

Act.

(c) Developing a State improvement

plan under subpart 1 of Part D of the

Act.

(d) Activities at the State and local

levels to meet the performance goals

established by the State under section

612(a)(16) of the Act and to support

implementation of the State

improvement plan under subpart 1 of

Part D of the Act if the State receives

funds under that subpart.

(e) Supplementing 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 to

exceed one percent of the amount

received by the State under section 619

of the Act for a fiscal year.

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

Note: The Individual with Disabilities

Education Act Amendments of 1997 made a

number of changes to the Act designed to

encourage better coordination of services

among programs, including flexibility for

States to use State administration funds

under section 619(e) to coordinate activities

with other programs that provide services to

children with disabilities and to fund

administrative costs related to part C.

Consistent with the intent of these

provisions, an example of an authorized

activity under paragraph (a) would be to plan
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and develop a statewide comprehensive

delivery system for children with disabilities

aged birth through five.

Subpart D—Allocation of funds to local

educational agencies.

§ 301.30 Subgrants to local educational

agencies.

Each State that receives a grant under

section 619 of the Act for any fiscal year

shall distribute any funds it does not

retain under § 301.24 to local

educational agencies in the State that

have established their eligibility under

section 613 of the Act.

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

§ 301.31 Allocations to local educational

agencies.

(a) Base payments. The State shall

first award each agency described in

§ 301.27 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

then in effect.

(b) Allocation of remaining funds.

After making allocations under

paragraph (a) of this section, the State

shall—

(1) Allocate 85 percent of any

remaining funds to those agencies on

the basis of the relative numbers of

children enrolled in public and private

elementary and secondary schools

within the agency’s jurisdiction; and

(2) Allocate 15 percent of those

remaining funds to those agencies in

accordance with their relative numbers

of children living in poverty, as

determined by the SEA.

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

Note: In distributing funds under

paragraph (b)(1) of this section, States should

use the best data that is available to them on

enrollment in public and private schools. If

data on enrollment in private schools is not

available, States or LEAs are not expected to

initiate new data collections to obtain this

data. However, States are encouraged to try

to obtain enrollment data from private

schools that want their students to

participate in the program.

In distributing funds under paragraph

(b)(2) of this section, States have discretion

in determining what data to use to allocate

funds among LEAs on the basis of children

living in poverty. States should use the best

data available to them that reflect the

distribution of children living in poverty.

Examples of options include census poverty

data, data on children in families receiving

assistance under the State program funded

under Part A of title IV of the Social Security

Act, data on children participating in the free

or reduced-price meals program under the

National School Lunch Act, and allocations

under title I of the Elementary and Secondary

Education Act.

§ 301.32 Reallocation of LEA funds.

(a) If a SEA determines that an LEA

is adequately providing a free

appropriate public education to all

children with disabilities aged 3

through 5 residing in the area served by

that agency 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 local agency

to provide a free appropriate public

education to other local educational

agencies in the State that are not

adequately providing special education

and related services to all children with

disabilities aged 3 through 5 residing in

the areas they serve.

(b) If a State provides services to

preschool children with disabilities

because some or all LEAs and ESAs are

unable or unwilling to provide

appropriate programs, the SEA may use

payments that would have been

available to those LEAs or ESAs to

provide special education and related

services to children with disabilities

aged 3 through 5 years, and to two-yearold children with disabilities receiving

services consistent with § 301.1 who are

residing in the area served by those

LEAs and ESAs.

(Authority 20 U.S.C. 1414(d), 1419(g)(2))

PART 303—EARLY INTERVENTION

PROGRAM FOR INFANTS AND

TODDLERS WITH DISABILITIES

3. The authority citation for part 303

is revised to read as follows:

Authority: 20 U.S.C. 1431–1445, unless

otherwise noted.

4. Section 303.18 is revised to read as

follows:

§ 303.18 Parent.

(a) As used in this part, ‘‘parent’’

means a parent, a guardian, a person

acting as a parent of a child, or a

surrogate parent who has been

appointed in accordance with § 303.406.

The term does not include the State if

the child is a ward of the State.

(b) State law may provide that a foster

parent qualifies as a parent under this

part if—

(1) The natural parents’ authority to

make early intervention or educational

decisions on the child’s behalf has been

relinquished under State law;

(2) The foster parent has an ongoing,

long-term parental relationship with the

child;

(3) The foster parent is willing to

participate in making early intervention

or educational decisions on the child’s

behalf; and

(4) The foster parent has no interest

that would conflict with the interests of

the child.

(Authority: 20 U.S.C. 1436)

Note: The term ‘‘parent’’ has been defined

to include persons acting in the place of a

parent, such as a grandparent or stepparent

with whom a child lives, as well as persons

who are legally responsible for the child’s

welfare, and, at the discretion of the State, a

foster parent meeting the requirements of

paragraph (b) of this section. The definition

in this section is identical to the definition

used in the regulations under Part B of the

Act (34 CFR 300.19).

5. Section 303.403 is amended by

removing the word ‘‘and’’ at the end of

paragraph (b)(2); removing the period at

the end of paragraph (b)(3) and adding,

in its place, ‘‘; and’’; by adding a new

paragraph (b)(4); and by revising the

citation of authority to read as follows:

§ 303.403 Prior notice; native language.

* * * * *

(b) Content of notice. The notice must

be in sufficient detail to inform the

parents about—

* * * * *

(4) The State complaint procedures

under §§ 303.510–512, including a

description of how to file a complaint

and the timelines under those

procedures.

(Authority: 20 U.S.C. 1439(a)(6) and (7))

6. Section 303.510 is amended by

revising paragraph (b); redesignating the

existing note as Note 1; adding a new

Note 2; and revising the citation of

authority to read as follows:

§ 303.510 Adopting complaint procedures.

* * * * *

(b) Widely disseminating to parents

and other interested individuals,

including parent training centers,

protection and advocacy agencies,

independent living centers, and other

appropriate entities, the State’s

procedures under §§ 303.510 through

303.512.

(Authority: 20 U.S.C. 1435(a)(10))

Note 1: Because of the interagency nature

of Part C of the Act, complaints received

under these regulations could concern

violations by (1) any public agency in the

State that receives funds under this part (e.g.,

the lead agency and the Council), (2) other

public agencies that are involved in the

State’s early intervention program, or (3)

private service providers that receive Part C

funds on a contract basis from a public

agency to carry out a given function or

provide a given service required under this

part. These complaint procedures are in

addition to any other rights under State or

Federal law. The lead agency must provide

for the filing of a complaint with the lead

agency and, at the lead agency’s discretion,

with a public agency subject to a right of

appeal to the lead agency.

Note 2: In resolving a complaint alleging

failure to provide services in the IFSP, a lead
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agency, pursuant to its general supervisory

authority under this part, may award

compensatory services as a remedy.

7. Section 303.511 is amended by

adding a new paragraph (c) and a note;

and revising the citation of authority to

read as follows:

§ 303.511 An organization or individual

may file a complaint.

* * * * *

(c) The alleged violation must have

occurred not more than one year prior

to the date that the complaint is

received by the public agency unless a

longer period is reasonable because the

violation is continuing, or the

complainant is requesting compensatory

services for a violation that occurred not

more than three years prior to the date

the complaint is received by the public

agency.

(Authority: 20 U.S.C. 1435(a)(10))

Note: The lead agency must resolve any

complaint that meets the requirements of this

section, even if the complaint is filed by an

organization or individual from another

State.

8. Section 303.512 is revised by

removing paragraph (d), revising the

citation of authority, and adding two

notes following the revised citation of

authority to read as follows:

§ 303.512 Minimum State complaint

procedures.

* * * * *

(Authority: 20 U.S.C. 1435(a)(10))

Note 1: If a written complaint is received

that is also the subject of a due process

hearing under § 303.420, or contains multiple

issues, of which one or more may be 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 within the

60-calendar-day timeline using the complaint

procedures described in this section.

Note 2: If an issue is raised in a complaint

filed under this section that has previously

been decided in a due process hearing

involving the same parties, then the hearing

decision is binding, and the lead agency

would inform the complainant to that effect.

A complaint alleging a public agency’s

failure to implement a due process decision,

however, would have to be resolved by the

lead agency.

9. Section 303.520 is amended by

adding new paragraphs (d) and (e) and

three notes; and revising the citation of

authority to read as follows:

§ 303.520 Policies related to payment for

services.

* * * * *

(d) Infants and toddlers with

disabilities who are covered by private

insurance.

(1) A lead agency may not require

parents of infants and toddlers with

disabilities, if they would incur a

financial cost, to use private insurance

proceeds to pay for the services that

must be provided to an eligible infant or

toddler under this part.

(2) For the purposes of this section,

the term ‘‘financial costs’’ includes—

(i) An out-of-pocket expense such as

the payment of a deductible or co-pay

amount incurred in filing a claim, but

not including incidental costs such as

the time needed to file an insurance

claim or the postage needed to mail the

claim;

(ii) A decrease in available lifetime

coverage or any other benefit under an

insurance policy; and

(iii) An increase in premiums or the

discontinuation of the policy.

(e) Proceeds from public or private

insurance. Proceeds from public or

private insurance may not be treated as

program income for purposes of 34 CFR

80.25.

(Authority: 20 U.S.C. 1435(a)(10); 1432(4)(B))

Note 1: Under paragraph (d), States are

prohibited from requiring that families use

private insurance as a condition of receiving

services under this part, if that use results in

financial cost to the family. The use of

parents’ insurance proceeds to pay for

services in these circumstances must be

voluntary. For example, a family could not be

required to access private insurance that is

required to enable a child to receive

Medicaid services, if that insurance use

results in financial costs to the family.

Note 2: If the State cannot get parental

consent to use private insurance, the State

may use funds under this part to pay for the

service. In addition, in order to avoid

financial cost to parents who would

otherwise consent to use of private

insurance, the lead agency may use funds

under this part to pay the costs of accessing

the insurance; e.g., deductible or co-pay

amounts.

Note 3: Paragraph (e) clarifies that, if a

State receives funds from public or private

insurance for services under this part, the

State is not required to return those funds to

the Department or to dedicate those funds for

use in this program, although a State retains

the option of using those funds in this

program. If a State 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 nonsupplanting provision in

§ 303.124. This is because the expenditure

that is reimbursed is considered to be an

expenditure of funds from the source that

provides the reimbursement.

Appendix C to Part 300—Notice of

Interpretation

Authority: Individuals with Disabilities

Education Act (20 U.S.C. 1401, et seq.),

unless otherwise noted.

Interpretation of Individualized Education

Program (IEP) Requirements of the

Individuals with Disabilities Education Act

(IDEA)

The IEP requirements of the IDEA

emphasize the importance of each child with

a disability’s involvement and progress in the

general curriculum; of the involvement of

parents and students, together with regular

and special education personnel in making

individualized decisions to support each

child’s educational success; and of preparing

students with disabilities for employment

and other post-school experiences. This

Appendix provides guidance regarding Part B

IEP requirements, especially as they relate to

these core concepts, as well as other issues

regarding the development and content of

IEPs.

I. Involvement and Progress in the General

Curriculum

In enacting the IDEA Amendments of 1997,

the Congress found that:

* * * research, demonstration, and

practice [over the past 20 years] in special

education and related disciplines have

demonstrated that an effective educational

system now and in the future must—(A)

maintain high academic standards and clear

performance goals for children with

disabilities, consistent with the standards

and expectations for all students in the

educational system, and provide for

appropriate and effective strategies and

methods to ensure that students who are

children with disabilities have maximum

opportunities to achieve those standards and

goals. [§ 651(a)(6)(A) of the Act.]

Accordingly, the evaluation and IEP

provisions of Part B place great emphasis on

the involvement and progress of children

with disabilities in the general curriculum.

While the Act and regulations recognize that

IEP teams must make individualized

decisions about the special education and

related services, and supplementary aids and

services, provided to each child with a

disability, they are driven by IDEA’s strong

preference that, to the maximum extent

appropriate, children with disabilities be

educated in regular classes with their

nondisabled peers with appropriate

supplementary aids and services.

1. What are the major Part B IEP

requirements that govern the involvement

and progress of children with disabilities in

the general curriculum?

Present Levels of Educational Performance

Section 300.347(a)(1) requires that the IEP

for each child with a disability include

‘‘* * * a statement of the child’s present

levels of educational performance,

including—(i) How the child’s disability

affects the child’s involvement and progress

in the general curriculum; or (ii) for

preschool children, as appropriate, how the

disability affects the child’s participation in

appropriate activities * * *’’ (Italics added.)

(‘‘Appropriate activities’’ in this context

refers to age-relevant developmental abilities

or milestones that typically developing

children of the same age would be

performing or would have achieved.)
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Measurable Annual Goals, Including

Benchmarks or Short-term Objectives

Measurable annual goals, including

benchmarks or short-term objectives, are

instrumental to the strategic planning process

used to develop and implement the IEP for

each child with a disability. Once the IEP

team has developed measurable annual goals

for a child, the team can (1) develop

strategies that will be most effective in

realizing those goals and (2) develop

measurable, intermediate steps (short-term

objectives) or major milestones (benchmarks)

that will enable families, students, and

educators to monitor progress during the

year, and, if appropriate, to revise the IEP

consistent with the child’s instructional

needs.

Part B’s strong emphasis on linking the

educational program of children with

disabilities to the general curriculum is

reflected in § 300.347(a)(2), which requires

that the IEP include:

a statement of measurable annual goals,

including benchmarks or short-term

objectives, related to—(i) meeting the child’s

needs that result from the child’s disability

to enable the child to be involved in and

progress in the general curriculum; and (ii)

meeting each of the child’s other educational

needs that result from the child’s disability.

[Italics added.]

Special Education and Related Services and

Supplementary Aids and Services

The requirements regarding services

provided to address a child’s present levels

of educational performance and to make

progress toward the identified goals reinforce

the emphasis on progress in the general

curriculum, as well as maximizing the extent

to which children with disabilities are

educated with nondisabled children. Section

300.347(a)(3) requires that the IEP 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, and a statement of the

program modifications or supports for school

personnel that will be provided for the

child—(i) To advance appropriately toward

attaining the annual goals; (ii) to be involved

and progress in the general curriculum * * *

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

[extracurricular and other nonacademic

activities] * * * [Italics added.]

Extent to Which Child Will Participate With

Nondisabled Children

Section 300.347(a)(4) requires that each

child’s IEP include ‘‘* * * an explanation of

the extent, if any, to which the child will not

participate with nondisabled children in the

regular class and in [extracurricular and

other nonacademic] activities] * * *’’ This is

consistent with the least restrictive

environment provisions at §§ 300.550–

300.553, which include requirements that:

(1) Each child with a disability be educated

with nondisabled children to the maximum

extent appropriate (§ 300.550(b)(1));

(2) Each child with a disability be removed

from the regular educational environment

only when the nature or severity of the

child’s disability is such that education in

regular classes with the use of supplementary

aids and services cannot be achieved

satisfactorily (§ 300.550(b)(1)); and

(3) To the maximum extent appropriate to

the child’s needs, each child with a disability

participate with nondisabled children in

nonacademic and extracurricular services

and activities (§ 300.553).

Participation in State or Districtwide

Assessments of Student Achievement

Consistent with § 300.138(a), which sets

forth a presumption that children with

disabilities will be included in general Stateand district-wide assessment programs, and

provided with appropriate accommodations

if necessary, § 300.347(a)(5) requires that the

IEP for each student with a disability

include: (i) A statement of any individual

modifications in the administration of State

or district-wide assessments of student

achievement that are needed in order for the

child to participate in the assessment; and (ii)

if the IEP Team determines that the child will

not participate in a particular State or

district-wide assessment of student

achievement (or part of an assessment), a

statement of—(A) Why that assessment is not

appropriate for the child; and (B) How the

child will be assessed.

Regular Education Teacher Participation in

the Development, Review, and Revision of

IEPs

Very often, regular education teachers play

a central role in the education of children

with disabilities (House Report No. 105–95,

p. 103 (1997)) and have important expertise

regarding the general curriculum and the

general education environment. Further,

especially with the emphasis on involvement

and progress in the general curriculum added

by the IDEA Amendments of 1997, regular

education teachers have an increasingly

critical role in implementing, together with

special education and related services

personnel, the program of FAPE for most

children with disabilities, as described in

their IEPs. Accordingly, the IDEA

Amendments of 1997 added a requirement

that each child’s IEP team must include at

least one regular education teacher of the

child, if the child is, or may be, participating

in the regular education environment (see

§ 300.344(a)(2)). (See also §§ 300.346(d) on

the role of a regular education teacher in the

development, review and revision of IEPs.)

2. Must a child’s IEP address his or her

involvement in the general curriculum,

regardless of the nature and severity of the

child’s disability and the setting in which the

child is educated?

Yes. The IEP for all children with

disabilities must address how the child will

be involved and progress in the general

curriculum, as described. The Part B

regulations recognize that some children

with disabilities will have some educational

needs that result from their disabilities that

cannot be fully met by involvement and

progress in the general curriculum;

accordingly, § 300.347(a)(2) requires that

each child’s IEP include:

a statement of measurable annual goals,

including benchmarks or short-term

objectives, related to—(i) Meeting the child’s

needs that result from the child’s disability

to enable the child to be involved in and

progress in the general curriculum; and (ii)

meeting each of the child’s other educational

needs that result from the child’s disability.

[Italics added.]

Thus, the IEP team for each child with a

disability must make an individualized

determination regarding how the child will

participate in the general curriculum, and

what, if any, educational needs that will not

be met through involvement in the general

curriculum should be addressed in the IEP.

This includes children who are educated in

separate classrooms or schools.

3. What must public agencies do to meet

the requirements at §§ 300.344(a)(2) and

300.346(d), regarding the participation of a

‘‘regular education teacher’’ in the

development and review of the IEP, for

children aged 3 through 5 who are receiving

preschool special education services?

If a public agency provides ‘‘regular

education’’ preschool services to nondisabled children, then the requirements of

§§ 300.344(a)(2) and 300.346(d) apply as they

do in the case of older children with

disabilities. If a public agency makes

kindergarten available to nondisabled

children, then a regular education

kindergarten teacher could appropriately be

the regular education teacher who would

participate in an IEP meeting for a

kindergarten-aged child who is, or may be,

participating in the regular education

environment. If a public agency does not

provide regular preschool education services

to nondisabled children, the agency would

designate an individual who, under State

standards, is qualified to serve nondisabled

children of the same age.

4. Must the measurable annual goals in a

child’s IEP address all areas of the general

curriculum, or only those areas in which the

child’s involvement and progress are affected

by the child’s disability?

Section 300.347(a)(2) requires that each

child’s IEP include a ‘‘.* * * statement of

measurable annual goals, including

benchmarks or short-term objectives, related

to—(i) Meeting the child’s needs that result

from the child’s disability to enable the child

to be involved in and progress in the general

curriculum; and (ii) meeting each of the

child’s other educational needs that result

from the child’s disability* * * *’’

(Italics added). Thus, a public agency is not

required to include in an IEP annuals goals

that relate to areas of the general curriculum

in which the child’s disability does not affect

the child’s ability to be involved in and

progress in the general curriculum.

II. Involvement of Parents and Students

One of the key purposes of the IDEA

Amendments of 1997 is to ‘‘Expand and

promote opportunities for parents, special

education, related services, regular

education, and early intervention service

providers, and other personnel to work in

new partnerships at both the State and local

levels (House Report 105–95, p. 82 (1997)).

Indeed, the Committee viewed the

Amendments as an opportunity to

‘‘[strengthen] the role of parents.’’ (House
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Report 105–95, p-82 (1997).) Accordingly, the

Amendments require that parents have ‘‘an

opportunity * * * to participate in meetings

with respect to the identification, evaluation,

and educational placement of the child, and

the provision of FAPE to the child’’

(§ 300.501). Parents must now be part of the

teams that determine what additional data

are needed as part of an evaluation of their

child (§ 300.533(a)(1)); their child’s eligibility

(§ 300.534(a)(1)); and the educational

placement of their child (§ 300.501(c)).

Parents’ concerns, and information that they

provide regarding their children, must be

considered in developing and reviewing their

children’s IEPs (§§ 300.343(c)(iii) and

300.346 (a)(1)(i) and (b)).

As explained, the requirements for keeping

parents informed about the educational

progress of their children, particularly as it

relates to their progress in the general

curriculum, have been strengthened

(§ 300.347(a)(7)).

The IDEA Amendments of 1997 and the

1990 amendments have both included

provisions which greatly strengthen

involvement of students with disabilities in

decisions regarding their own futures, to

facilitate movement from school to postschool activities. The IDEA Amendments of

1990 included provisions regarding

transition services, which require: (a) A

coordinated set of activities within an

outcome-oriented process to facilitate

movement from school to post-school

activities; (b) that the transition services

provided to each student be ‘‘* * * based on

the individual student’s needs, taking into

account the student’s preferences and

interests’’ (§ 300.27(b)), (c) that the public

agency invite a student with a disability to

any IEP meetings for which a purpose is the

consideration of transition services

(§ 300.344(b)(1)), and that, if ‘‘* * * the

student does not attend, the public agency

* * * take other steps to ensure that the

student’s preferences and interests are

considered (§ 300.344(b)(2)). States may now

transfer most parent rights under Part B to

the student when the student reaches the age

of majority under State law (§ 300.517), and

beginning at least one year before a student

reaches the age of majority under State law,

the IEP must include a statement that the

student has been informed of any rights that

will transfer to him or her upon reaching the

age of majority (§ 300.347(c)).

5. What is the role of the parents, including

surrogate parents, in decisions regarding the

educational program of their children?

The parents of a child with a disability are

expected to be equal participants along with

school personnel, in developing, reviewing,

and revising the IEP for their child. This is

an active role in which the parents (1)

provide critical information about their

child’s abilities, interests, performance, and

history, (2) participate in the discussion

about the child’s need for special education

and related services and supplementary aids

and services, and (2) join with the other

participants in deciding how the child will

be involved and progress in the general

curriculum and participate in State and

district-wide assessments, and what services

the agency will provide to the child and in

what setting.

As noted, Part B specifically provides that

parents have the right to:

(a) Participate in meetings about their

child’s identification, evaluation, educational

program (including IEP meetings), and

educational placement (§§ 300.344(a)(1) and

300.517);

(b) Be part of the teams that determine

what additional data are needed as part of an

evaluation of their child (§ 300.533(a)(1)),

and determine their child’s eligibility

(§ 300.534(a)(1)) and educational placement

(§ 300.501(c));

(c) Have their concerns and information

that they provide regarding their child

considered in developing and reviewing their

child’s IEPs (§§ 300.343(c)(iii) and 300.346

(a)(1)(i) and (b)); and

(d) Be regularly informed (by such means

as periodic report cards), as specified in their

child’s IEP, at least as often as parents are

informed of their nondisabled children’s

progress, of their child’s progress toward the

annual goals in the IEP and the extent to

which that progress is sufficient to enable the

child to achieve the goals by the end of the

year (§ 300.347(a)(7)).

A surrogate parent is a person appointed to

represent the interests of a child with a

disability in the educational decision-making

process when no parent (as defined at

§ 300.19) is known, the agency, after

reasonable efforts, cannot locate the child’s

parents, or the child is a ward of the State

under the laws of the State. A surrogate

parent has all of the rights and

responsibilities of a parent under Part B.

Thus, the surrogate parent is entitled to (1)

participate in the child’s IEP meeting, (2)

examine the child’s education records, and

(3) receive notice, grant consent, and invoke

due process to resolve differences. (See

§ 300.515, Surrogate parents.)

6. What are the Part B requirements

regarding the participation of a child or

youth with a disability in an IEP meeting?

If a purpose of an IEP meeting will be the

consideration of needed transition services,

the public agency must invite the student

and, as part of notification to the parent of

the IEP meeting, inform the parents that the

agency will invite the student to the IEP

meeting. If the student does not attend, the

public agency must take other steps to ensure

that the student’s preferences and interests

are considered. Section § 300.517 permits

States to transfer procedural rights under Part

B from the parents to students with

disabilities who reach the age of majority

under State law, but who have not been

determined to be incompetent under State

law. If procedural rights under Part B are,

consistent with State law and § 300.517,

transferred from the parents to the student,

the public agency would be required to

ensure that the student has the right to

participate in IEP meetings set forth for

parents in § 300.345. However, at the

discretion of the student or the public

agency, the parents also could attend IEP

meetings as ‘‘individuals who have

knowledge or special expertise regarding the

child * * *’’ (see § 300.344(a)(6)).

In other circumstances, the child may

attend ‘‘if appropriate.’’ (§ 300.344(a)(7))

Generally, a child with a disability should

attend the IEP meeting if the parent decides

that it is appropriate for the child to do so.

If possible, the agency and parents should

discuss the appropriateness of the child’s

participation before a decision is made, in

order to help the parents determine whether

or not the child’s attendance will be (1)

helpful in developing the IEP or (2) directly

beneficial to the child or both. The agency

should inform the parents before each IEP

meeting—as part of notification under

§ 300.345(a)(1)—that they may invite their

child to participate.

7. Must the public agency let the parents

know who will be at the IEP meeting?

Yes. In notifying parents about the

meeting, the agency ‘‘must indicate the

purpose, time, and location of the meeting,

and who will be in attendance.’’

(§ 300.345(b), italics added.) In addition, if a

purpose of the IEP meeting is the

consideration of transition services for a

student, the notice must also inform the

parents that the agency is inviting the

student, and identify any other agency that

will be invited to send a representative. The

public agency should also inform the parents

of their right to invite to the meeting ‘‘other

individuals who have knowledge or special

expertise regarding the child, including

related services personnel as

appropriate * * *’’ (§ 300.344(a)(6)). It is

also appropriate for the agency to ask the

parents what if any individuals they will to

bring to the meeting.

8. Do parents have the right to a copy of

their child’s IEP?

Yes. Section 300.345(f) states that the

public agency shall give the parent, on

request, a copy of the IEP. It is recommended

that public agencies provide parents with a

copy of the IEP within a reasonable time

following the IEP meeting, or inform them at

the IEP meeting of their right to request and

receive a copy.

9. What is a public agency’s responsibility

if it is not possible to reach consensus on

what services should be included in a child’s

IEP?

The IEP meeting serves as a

communication vehicle between parents and

school personnel, and enables them, as equal

participants, to make joint, informed

decisions regarding the child’s needs and

appropriate goals, the extent to which the

child will be involved in the general

curriculum and participate in the regular

education environment and State and

districtwide assessments, and the services

needed to support that involvement and

participation and to achieve agreed-upon

goals. Parents are to be equal partners with

school personnel in making these decisions,

and the IEP team must consider parents’

concerns and information that they provide

regarding their child in developing and

reviewing IEPs (§§ 300.343(c)(iii) and

300.346(a)(1) and (b)).

The IEP team should work toward

consensus, but the public agency has

ultimate responsibility to ensure that the IEP

includes the services that the child needs in

order to receive FAPE. If it is not possible to

reach consensus in an IEP meeting, the

public agency must provide the parents with
55126 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

prior written notice of the agency’s proposals

or refusals, or both, regarding the child’s

educational program and placement, and the

parents have the right to seek resolution of

any disagreements through mediation or

other informal means, or by initiating an

impartial due process hearing. Every effort

should be made to resolve differences

between parents and school staff through

voluntary mediation or some other informal

step, without resort to a due process hearing.

However, mediation or other informal

procedures may not be used to deny or delay

a parent’s right to a due process hearing.

10. Does Part B require that public agencies

inform parents regarding the educational

progress of their children with disabilities?

Yes, the Part B statute and regulations

include a number of provisions to help

ensure that parents are involved in decisions

regarding, and informed about, their child’s

educational progress, including the child’s

progress in the general curriculum. First, the

parents will be informed regarding their

child’s present levels of educational

performance through the development of the

IEP. Section 300.347(a)(1) requires that each

IEP include:

* * * a statement of the child’s present

levels of educational performance,

including—(i) How the child’s disability

affects the child’s involvement and progress

in the general curriculum; or (ii) for

preschool children, as appropriate, how the

disability affects the child’s participation in

appropriate activities * * *

Further, § 300.347(a)(7) sets forth

requirements for regularly informing parents

about their child’s educational progress. That

section requires that the IEP include:

* * * a statement of—(i) How the child’s

progress toward the annual goals * * * will

be measured; and (ii) how the child’s parents

will be regularly informed (by such means as

periodic report cards), at least as often as

parents of nondisabled children are

informed, of—(A) Their child’s progress

toward the annual goals * * * ; and (B) the

extent to which that progress is sufficient to

enable the child to achieve the goals by the

end of the year.

Finally, the parents will, as part of the IEP

team, participate, at least once every 12

months, in a review of their child’s

educational progress. Part B requires that a

public agency initiate and conduct a meeting,

at which the IEP team:

* * * (1) Reviews the child’s IEP

periodically, but not less than annually to

determine whether the annual goals for the

child are being achieved; and (2) revises the

IEP as appropriate to address—(i) Any lack

of expected progress toward the annual goals

* * * and in the general curriculum, if

appropriate; (ii) The results of any

reevaluation * * * ; (iii) Information about

the child provided to, or by, the parents

* * * ; (iv) The child’s anticipated needs; or

(v) Other matters.

III. Preparing Students With Disabilities for

Employment and Other Post-School

Experiences

One of the primary purposes of the IDEA

is 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 employment and

independent living * * *’’ (§ 300.1(a)).

Similarly, one of the key purposes of the

IDEA Amendments of 1997 was to ‘‘promote

improved educational results for children

with disabilities through early intervention,

preschool, and educational experiences that

prepare them for later educational challenges

and employment.’’ (House Report No. 105–

95, p. 82 (1997).) Thus, throughout their

preschool, elementary, and secondary

education, the IEP for each child with a

disability must, to the extent appropriate for

the individual child, focus on providing

instruction and experiences that enable the

child to prepare himself or herself for later

educational experiences and for post-school

activities, including formal education, if

appropriate, employment, and independent

living.

Although preparation for adult life is, as

explained, a key component of a free

appropriate public education throughout a

child’s educational experiences, Part B sets

forth specific requirements for transition

from secondary education to post-school

activities, which must be implemented no

later than age 14 and 16, respectively, which

require an intensified focus on that

preparation as students with disabilities

begin and prepare to complete their

secondary education.

11. What must the IEP team do to meet the

requirements that the IEP include ‘‘a

statement of * * * transition service needs’’

beginning at age 14 (§ 300.347(b)(1)(i)),’’ and

a statement of needed transition services’’ no

later than age 16 (§ 300.347(b)(1)(ii))?

Section 300.347(b)(1) requires that,

beginning no later than age 14, each student’s

IEP include specific transition-related

content, and, beginning no later than age 16,

a statement of needed transition services:

Beginning at age 14, each student’s IEP

must include ‘‘* * * a statement of the

transition service needs of the child under

the applicable components of the child’s IEP

that focuses on the child’s courses of study

(such as participation in advanced-placement

courses or a vocational education program)’’

(§ 300.347(b)(1)(i)).

No later than age 16 (and younger, if

determined appropriate by the IEP Team),

each student’s IEP must include ‘‘a statement

of needed transition services for the child,

including, if appropriate, a statement of the

interagency responsibilities or any needed

linkages * * *’’ (§ 300.347(b)(1)(ii)).

The House Report on the IDEA

Amendments of 1997 makes clear that the

requirement added to the statute in 1997 that

beginning at age 14, or younger if

appropriate, the IEP include ‘‘a statement of

the transition service needs’’ is ‘‘* * *

designed to augment, and not replace,’’ the

separate, preexisting requirement that the IEP

include, ‘‘* * * beginning at age 16 (or

younger, if determined appropriate by the

IEP Team), a statement of needed transition

services * * *’’ (House Report No. 105–95,

p. 102 (1997).) As clarified by the Report,

‘‘The purpose of [the requirement in

§ 300.347(b)(1)(i)] is to focus attention on

how the child’s educational program can be

planned to help the child make a successful

transition to his or her goals for life after

secondary school.’’ (House Report No. 105–

95, pp. 101–102 (1997).) The report further

explains that ‘‘[F]or example, for a child

whose transition goal is a job, a transition

service could be teaching the child how to

get to the job site on public transportation.’’

(House Report No. 105–95, p–102 (1997).)

Thus, beginning at age 14, the IEP team, in

determining appropriate measurable annual

goals (including benchmarks or short-term

objectives) and services for a student, must

determine what instruction and educational

experiences will assist the student to prepare

for transition from secondary education to

post-secondary life. The statement of

transition service needs should relate directly

to the student’s goals beyond secondary

education, and show how planned studies

are linked to these goals. For example, a

student interested in exploring a career in

computer science may have a statement of

transition service needs connected to

technology course work, while another

student’s statement of transition needs could

describe why public bus transportation

training is important for future independence

in the community. Though the focus of the

transition planning process may shift as the

student approaches graduation, the IEP team

must discuss specific areas beginning at the

age of 14 years and review these areas

annually.

This requirement is distinct from the

requirement, at § 300.347(b)(1)(ii), that the

IEP include:

* * * beginning at age 16 (or younger, if

determined appropriate by the IEP Team), a

statement of needed transition services for

the child, including, if appropriate, a

statement of the interagency responsibilities

or any needed linkages.

The term ‘‘transition services’’ is defined at

§ 300.27 to mean:

* * * a coordinated set of activities for a

student with a disability that—(a) Is designed

within an outcome-oriented process, that

promotes movement from school to postschool activities, including postsecondary

education, vocational training, integrated

employment (including supported

employment), continuing and adult

education, adult services, independent

living, or community participation; (b) Is

based on the individual student’s needs,

taking into account the student’s preferences

and interests; and (c) Includes—(1)

Instruction; (2) Related services; (3)

Community experiences; (4) The

development of employment and other postschool adult living objectives; and (5) If

appropriate, acquisition of daily living skills

and functional vocational evaluation.

(Section § 300.347(b)(2) provides, however,

that, ‘‘If the IEP team determines that services

are not needed in one or more of the areas

specified in § 300.27((c)(1) through (4), the

IEP must include a statement to that effect

and the basis upon which the determination

was made.)

Thus, while § 300.347(b)(1)(i) requires that

the IEP team begin by age 14 to address the
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student’s need for instruction that will assist

the student to prepare for transition,

§ 300.347(b)(2)(ii) requires that by age 16 the

IEP include a ‘‘coordinated set of activities

* * *, designed within an outcome-oriented

process, that promotes movement from

school to post-school activities. * * *’’

Section 300.344(b)(3) further requires that, in

implementing § 300.347(b)(2)(ii), public

agencies invite (in addition to required

participants for all IEP meetings), must also

invite a representative of any other agency

that is likely to be responsible for providing

or paying for transition services. Thus,

§ 300.346(a)(7)(ii) requires a broader focus on

coordination of services across, and linkages

between, agencies beyond the SEA and LEA.

12. Must the IEP for each student with a

disability, beginning no later than age 16,

include all ‘‘needed transition services,’’ as

identified by the IEP team and consistent

with the definition at § 300.27, even if an

agency other than the public agency will

provide those services? What is the public

agency’s responsibility if another agency fails

to provide agreed-upon transition services?

Section 300.347(b)(1)(ii) requires that the

IEP for each child with a disability,

beginning no later than age 16, or younger if

determined appropriate by the IEP team,

include all ‘‘needed transition services,’’ as

identified by the IEP team and consistent

with the definition at § 300.27, regardless of

whether the public agency or some other

agency will provide those services. Section

300.346(b)(1)(ii) specifically requires that the

statement of needed transition services

include, ‘‘* * * if appropriate, a statement of

the interagency responsibilities or any

needed linkages.’’

Further, the need to include in the IEP

transition services to be provided by agencies

other than the public agency is contemplated

by § 300.348(a), which specifies what the

public agency must do if another agency

participating in the development of the

statement of needed transition services fails

to provide a needed transition service that it

agreed to provide:

If a participating agency fails to provide

agreed-upon transition services contained in

the IEP of a student with a disability, the

public agency responsible for the student’s

education shall, as soon as possible, initiate

a meeting for the purpose of identifying

alternative strategies to meet the transition

objectives and, if necessary, revising the

student’s IEP.

This requirement is consistent with the

public agency’s ultimate responsibility to

ensure that FAPE is available to each eligible

child with a disability (see § 300.300). That

responsibility includes the planning and

coordination of transition services through

the IEP. This inter-agency planning and

coordination may be supported through a

variety of mechanisms, including

memoranda of understanding, interagency

agreements, assignment of a transition

coordinator to work with other participating

agencies, or the establishment of guidelines

to work with other agencies identified as

potential service providers. If an agreed-upon

service by another agency is not provided,

the public agency responsible for the student

must exercise alternative strategies to meet

the student’s needs. This requires that the

public agency provide the services, or

convene an IEP meeting as soon as possible

to identify alternative strategies to meet the

needs of the transition services needs of the

student, and to revise the IEP accordingly.

Alternative strategies might include the

identification of another funding source,

referral to another agency, the public

agency’s identification of other district-wide

or community resources that it can use to

meet the student’s identified need

appropriately, or a combination of these

strategies. As emphasized by § 300.348(b),

however:

Nothing in [Part B] 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

students with disabilities who meet the

eligibility criteria of that agency.

However, the fact that an agency other than

the LEA does not fulfill its responsibility

does not relieve the LEA of its responsibility

to ensure that FAPE is available to each

student with a disability.

Note: See also § 300.142(b)(2), which

requires that if an agency other than the LEA

fails to provide or pay for a special education

or related service (which could include a

transition service), the LEA must provide or

pay for the service, and may then claim

reimbursement from the agency that failed to

provide or pay for the service.

13. Under what circumstances must a

public agency invite representatives from

other agencies to an IEP meeting at which a

child’s need for transition services will be

considered?

Section 300.344(c)(ii) requires that, ‘‘In

implementing the requirements of

[§ 300.347(b)(1)(ii) requiring a statement of

needed transition services], the public agency

shall also invite a representative of any other

agency that is likely to be responsible for

providing or paying for transition services.’’

To meet this requirement, the public agency

must establish and implement appropriate

procedures to ensure that it identifies all

agencies that are ‘‘likely to be responsible for

providing or paying for transition services’’

for each student addressed by

§ 300.347(b)(1)(ii), and invites each of those

agencies to the IEP meeting. If, during the

course of an IEP meeting, the team identifies

additional agencies that are ‘‘likely to be

responsible for providing or paying for

transition services’’ for the student, the

public agency must determine whether it is

necessary to invite those agencies to an

additional IEP meeting in order to develop an

appropriate statement of needed transition

services for the student.

IV. Other Questions Regarding the

Development and Content of IEPS

14. For a child with a disability receiving

special education for the first time, when

must an IEP be developed—before placement

or after placement?

Section 300.342(b)(1) requires that an IEP

be ‘‘in effect before special education and

related services are provided to a child.’’

(Italics added.) The appropriate placement

for a particular child with a disability cannot

be determined until after decisions have been

made about the child’s needs and the

services that the public agency will provide

to meet those needs. These decisions must be

made at the IEP meeting, and it would not

be permissible first to place the child and

then develop the IEP. Therefore, the IEP must

be developed before placement. This

requirement does not preclude temporarily

placing an eligible child with a disability in

a program as part of the evaluation process—

before the IEP is finalized—to assist a public

agency in determining the appropriate

placement for the child. It is essential that

the temporary placement not become the

final placement before the IEP is finalized. In

order to ensure that this does not happen, the

State might consider requiring LEAs to take

the following actions:

a. Develop an interim IEP for the child that

sets out the specific conditions and timelines

for the trial placement. (See paragraph c.)

b. Ensure that the parents agree to the

interim placement before it is carried out,

and that they are involved throughout the

process of developing, reviewing, and

revising the child’s IEP.

c. Set a specific timeline (e.g., 30 days) for

completing the evaluation, finalizing the IEP,

and making judgments about the most

appropriate placement for the child.

d. Conduct an IEP meeting at the end of the

trial period in order to finalize the child’s

IEP.

15. Who is responsible for ensuring the

development of IEPs for children with

disabilities served by a public agency other

than an LEA?

The answer as to which public agency has

direct responsibility for ensuring the

development of IEPs for children with

disabilities served by a public agency other

than an LEA will vary from State to State,

depending upon State law, policy, or

practice. The SEA is ultimately responsible

for ensuring that all Part B requirements,

including the IEP requirements, are met for

eligible children within the State, including

those children served by a public agency

other than an LEA. (See § 300.600 regarding

the SEA’s general supervisory responsibility

for all education programs for children with

disabilities, with one exception. The

Governor (or another individual pursuant to

State law) may, consistent with State law,

assign to any public agency in the State the

responsibility of ensuring that Part B

requirements are met with respect to children

with disabilities who are convicted as adults

under State law and incarcerated in adult

prisons.)

The SEA must ensure that every child with

a disability in the State has FAPE available,

regardless of which State or local agency is

responsible for educating the child. (The only

exception to this responsibility is that, as

noted, the SEA is not responsible for

ensuring that FAPE is made available to

children with disabilities who are convicted

as adults under State law and incarcerated in

adult prisons, if the State has assigned that

responsibility to a public agency other than

the SEA.) Although the SEA has flexibility in

deciding the best means to meet this

obligation (e.g., through interagency
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agreements), the SEA must ensure that no

eligible child with a disability is denied

FAPE due to jurisdictional disputes among

agencies.

When an LEA is responsible for the

education of a child with a disability, the

LEA remains responsible for developing the

child’s IEP, regardless of the public or private

school setting into which it places the child.

16. For a child placed out of State by an

educational or non-educational State or local

agency, is the placing or receiving State

responsible for the child’s IEP?

Regardless of the reason for the placement,

the ‘‘placing’’ State is responsible for

developing the child’s IEP and ensuring that

it is implemented. The determination of the

specific agency in the placing State that is

responsible for the child’s IEP would be

based on State law, policy, or practice.

However, the SEA in the placing State is

responsible for ensuring that the child has

FAPE available.

17. If a disabled child has been receiving

special education from one public agency

and transfers to another public agency in the

same State, must the new public agency

develop an IEP before the child can be placed

in a special education program?

If a child with a disability changes school

districts in the same State, the State and its

public agencies have an ongoing

responsibility to ensure that the child

receives FAPE, and the new public agency is

responsible for ensuring that the child

receives special education and related

services in conformity with an IEP. The new

public agency must ensure that the child has

an IEP in effect before the agency can provide

special education and related services. The

new public agency may meet this

responsibility by either adopting the IEP the

former public agency developed for the child

or by developing a new IEP for the child.

Before the child’s IEP is finalized, the new

public agency may provide interim services

agreed upon by both the parents and the new

public agency. If the parents and the new

public agency are unable to agree on an

interim IEP and placement, the new public

agency must implement the old IEP to the

extent possible until a new IEP is developed

and implemented.

In general, while the new public agency

must conduct an IEP meeting, it would not

be necessary if: (1) A copy of the child’s

current IEP is available; (2) the parents

indicate that they are satisfied with the

current IEP; and (3) the new public agency

determines that the current IEP is appropriate

and can be implemented as written.

If the child’s current IEP is not available,

or if either the new public agency or the

parent believes that it is not appropriate, the

new public agency must conduct an IEP

meeting within a short time after the child

enrolls in the new public agency (normally,

within one week).

18. What timelines apply to the

development and implementation of an

initial IEP for a child with a disability?

Section 300.343(b) requires a public agency

to: (1) Ensure that an offer of services in

accordance with an IEP is made to parents

within a reasonable period of time from the

agency’s receipt of parent consent to an

initial evaluation; and (2) in meeting that

timeline, conduct a meeting to develop the

IEP within 30-calendar days of a

determination that the child needs special

education and related services. Section

300.342(b)(2) requires that an IEP be

implemented as soon as possible following

the meeting in which the IEP is developed.

19. Must a public agency hold separate

meetings to determine a child’s eligibility for

special education and related services,

develop the child’s IEP, and determine the

child’s placement, or may the agency meet all

of these requirements in a single meeting?

A public agency may, after a child is

determined by ‘‘a team of qualified

professionals and the parent’’ (see

§ 300.534(a)(1)) to be a child with a disability

who needs special education services,

continue in the same meeting to develop an

IEP for the child and to determine the child’s

placement. However, the public agency must

ensure that it: (1) Meets all of the Part B

requirements regarding meetings to develop

IEPs, including providing appropriate

notification to the parents, consistent with

the requirements of § 300.345, and including

the required team participants, consistent

with the requirements of § 300.344; and (2)

the requirements of § 300.533 regarding

eligibility decisions.

20. How frequently must a public agency

conduct meetings to review, and if

appropriate revise, the IEP for each child

with a disability?

A public agency must initiate and conduct

meetings periodically, but at least once every

twelve months, to determine whether the

annual goals for the child are being achieved,

and to revise the IEP as appropriate to

address: (a) Any lack of expected progress

toward the annual goals and in the general

curriculum, if appropriate; (b) the results of

any reevaluation; (c) information about the

child provided to, or by, the parents; (d) the

child’s anticipated needs; or (e) other matters

(§ 300.343(c)).

A public agency must also ensure that an

IEP is in effect for each child at the beginning

of each school year (§ 300.342(a)). It may

conduct IEP meetings at any time during the

year. However, if the agency conducts the IEP

meeting prior to the beginning of the next

school year, it must ensure that the IEP

contains the necessary special education and

related services and supplementary aids and

services to ensure that the student’s IEP can

be appropriately implemented during the

next school year. Otherwise, it would be

necessary for the public agency to conduct

another IEP meeting.

Although the public agency is responsible

for determining when it is necessary to

conduct an IEP meeting, the parents of a

child with a disability have the right to

request an IEP meeting at any time. For

example, if the parents believe that the child

is not progressing satisfactorily or that there

is a problem with the child’s current IEP, it

would be appropriate for the parents to

request an IEP meeting. If a child’s teachers

feels that the child’s placement or IEP

services are not appropriate to the child, the

teachers should follow agency procedures

with respect to (1) calling or meeting with the

parents or (2) requesting the agency to hold

another IEP meeting to review the child’s

IEP. The legislative history of Public Law 94–

142 makes it clear that there should be as

many meetings a year as any one child may

need (121 Cong. Rec. S20428–29 (Nov. 19,

1975) (remarks of Senator Stafford)).

In general, if either a parent or a public

agency believes that a required component of

the student’s IEP should be changed, the

public agency must conduct an IEP meeting

if it believes that the question of whether the

student’s IEP needs to be revised to ensure

the provision of FAPE to the student is a

matter that must be considered by the IEP

team. If a parent requests an IEP meeting

because the parent believes that a change in

the provision of FAPE to the child or the

educational placement of the child, and the

agency refuses to convene an IEP meeting to

determine whether such a change is needed,

the agency must provide written notice to the

parents of the refusal, including an

explanation of why the agency has

determined that conducting the meeting is

not necessary to ensure the provision of

FAPE to the student. Under § 300.506(a), the

parents or agency may initiate a due process

hearing at any time regarding any proposal or

refusal regarding the identification,

evaluation, or educational placement of the

child, or the provision of FAPE to the child.

21. May IEP meetings be audio or videotape-recorded?

Part B does not address the use of audio

or video recording devices at IEP meetings,

and no other Federal statute either authorizes

or prohibits the recording of an IEP meeting

by either a parent or a school official.

Therefore, an SEA or public agency has the

option to require, prohibit, limit, or

otherwise regulate the use of recording

devices at IEP meetings. If a public agency

has a policy prohibiting the use of these

devices at IEP meetings, that policy must

provide for exceptions if they are necessary

to ensure that the parent understands the IEP

or the IEP process or to implement other

parental rights guaranteed under Part B. Any

recording of an IEP meeting that is

maintained by the public agency is an

‘‘education record,’’ within the meaning of

the Family Educational Rights and Privacy

Act (‘‘FERPA’’; 20 U.S.C. 1232g), and would,

therefore, be subject to the confidentiality

requirements of the regulations under both

FERPA (34 CFR Part 99) and Part B

(§§ 300.560–300.575).

Parents wishing to use audio or video

recording devices at IEP meetings should

consult State or local policies for further

guidance.

22. Who can serve as the representative of

the public agency at an IEP meeting?

The IEP team must include a representative

of the local educational agency who: (a) Is

qualified to provide, or supervise the

provision of, specially designed instruction

to meet the unique needs of children with

disabilities; (b) is knowledgeable about the

general curriculum; and (c) is knowledgeable

about the availability of resources of the local

educational agency (§ 300.344(a)(4)). Each

State or local agency may determine which

specific staff member will serve as the agency

representative in a particular IEP meeting, so

long as the individual meets these
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55129

requirements. It is, however, important that

the agency representative have the authority

to commit agency resources and be able to

ensure that whatever services are set out in

the IEP will actually be provided.

Note: IEP meetings for continuing

placements may in some instances be more

routine than those for initial placements,

and, thus, may not require the participation

of a key administrator.

23. For a child with a disability being

considered for initial placement in special

education, which teacher or teachers should

attend the IEP meeting?

A child’s IEP team must include at least

one of the student’s regular education

teachers (if the child is, or may be

participating in the regular education

environment) and at least one special

education teacher, or, if appropriate, at least

one of the child’s special education providers

(§ 300.344(a)(2) and (3)). Each IEP must

include a statement of present levels of

educational performance, including a

statement of how the child’s disability affects

the child’s involvement and progress in the

general curriculum (§ 300.347(a)(1)). The

regular education teacher is a required

participant on the IEP team of a child who

is, or may be, participating in the regular

educational environment, regardless of the

extent of that participation.

The child’s special education teacher could

be either (1) a teacher qualified to provide

special education in the child’s area of

suspected disability, or (2) another special

education provider such as a speech

pathologist, physical or occupational

therapist, etc., if the related service consists

of specially designed instruction and is

considered special education under the

applicable State standard.

Note: Sometimes more than one meeting is

necessary in order to finalize a child’s IEP.

In this process, if the special education

teacher who will be working with the child

is identified, it would be useful to have that

teacher participate in the meeting with the

parents and other members of the IEP team

in finalizing the IEP. If this is not possible,

the agency should ensure that the teacher is

given a copy of the child’s IEP as soon as

possible after the IEP is finalized and before

the teacher begins working with the child.

24. If a child with a disability attends

several regular classes, must all of the child’s

regular education teachers attend the IEP

meeting?

No. The IEP team need not include more

than one regular education teacher of the

child. If the participation of more than one

regular education teacher is considered by

the agency or the parents to be beneficial to

the child’s success in school (e.g., in terms

of enhancing the child’s participation in the

general curriculum), it would be appropriate

for them to attend the meeting.

25. For a child whose primary disability is

a speech impairment, may a public agency

meet its responsibility under § 300.344(a)(3)

to ensure that the IEP team includes ‘‘at least

one special education teacher, or, if

appropriate, at least one special education

provider of the child’’ by including a speechlanguage pathologist in the IEP team?

Yes, if speech is considered special

education under State standards. As with

other children with disabilities, the IEP team

must also include at least one of the child’s

regular education teachers if the child is, or

may be, participating in the regular education

environment.

26. Do public agencies and parents have

the option of bringing any individual of their

choice to a student’s IEP meeting? Would it

be permissible for other individuals to attend

IEP meetings at the discretion of the parents

or the agency?

The IEP team may, at the discretion of the

parent or the agency, include ‘‘other

individuals who have knowledge or special

expertise regarding the child * * * ’’

(§ 300.344(a)(6), italics added). This is a

change from prior law, which had provided,

without qualification, that parents or

agencies could bring other individuals to IEP

meetings at the discretion of the parents or

agency. However, the legislative history of

Public Law 94–142 made it clear that

attendance at IEP meetings should be limited

to those who have an intense interest in the

child. (121 Cong. Rec. S10974 (June 18, 1975)

(remarks of Sen. Randolph).)

Part B does not provide for the

participation of individuals such as

representatives of teacher organizations or

attorneys at IEP meetings. For example, since

a representative of a teacher organization

would be concerned with the interests of the

teacher rather than the interests of the child,

and generally would not possess knowledge

or expertise regarding the child, it generally

would be inappropriate for such an official

to attend an IEP meeting. While either the

parent or public agency may consider

inviting their attorneys to an IEP meeting,

parents and public agencies need to ensure

that their attorneys possess knowledge and

expertise regarding the child to warrant their

participation. However, the participation of

attorneys at IEP meetings should be

discouraged if their participation would have

the potential for creating an adversarial

atmosphere which would not necessarily be

in the best interests of the child. Further, as

provided in Section 615(i)(3)(D)(ii) of the

Act, ‘‘Attorneys’’ fees may not be awarded

relating to any meeting of the IEP Team

unless such meeting is convened as a result

of an administrative proceeding or judicial

action, or, at the discretion of the State, for

a mediation * * * conducted prior to the

[request for a due process hearing].’’

27. Must related services personnel attend

IEP meetings?

Although Part B does not expressly require

that the IEP team include related services

personnel as part of the IEP team

(§ 300.344(a)), it is appropriate for those

persons to be included if a particular related

service is to be discussed as part of the IEP

meeting. Section 300.344(a)(6) provides that

the IEP team also includes ‘‘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 * * *.’’

(Italics added.)

Further, § 300.344(a)(3) requires that the

IEP team for each child with a disability

include ‘‘at least one special education

teacher, or, if appropriate, at least one special

education provider of the child * * * ’’ This

requirement can be met by the participation

of either (1) a special education teacher of the

child, or (2) another special education

provider such as a speech pathologist,

physical or occupational therapist, etc., if the

related service consists of specially designed

instruction and is considered special

education under the applicable State

standard.

If a child with a disability has an identified

need for related services, it would be

appropriate for the related services personnel

to attend the meeting or otherwise be

involved in developing the IEP. As explained

in the House Report on the IDEA

Amendments of 1997, ‘‘Related services

personnel should be included on the team

when a particular related service will be

discussed at the request of the child’s parents

or the school.’’ (House Report 105–95, p. 103

(1997).) For example, if the child’s evaluation

indicates the need for a specific related

service (e.g., physical therapy, occupational

therapy, special transportation services,

school social work services, school health

services, or counseling), the agency should

ensure that a qualified provider of that

service either (1) attends the IEP meeting, or

(2) provides a written recommendation

concerning the nature, frequency, and

amount of service to be provided to the child.

This written recommendation could be a part

of the evaluation report.

28. Must the public agency ensure that all

services specified in a child’s IEP are

provided?

Yes. The public agency must ensure that

all services set forth in the child’s IEP are

provided, consistent with the child’s needs

as identified in the IEP. It may provide each

of those services directly, through its own

staff resources; indirectly, by contracting

with another public or private agency; or

through other arrangements. In providing the

services, the agency may use whatever State,

local, Federal, and private sources of support

are available for those purposes (see

§ 300.301(a)), but the services must be at no

cost to the parents, and the public agency

remains responsible for ensuring that the IEP

services are provided in a manner that

appropriately meets the student’s needs as

specified in the IEP. The SEA and

responsible public agency may not allow the

failure of another agency to provide services

described in the child’s IEP to deny or delay

the provision of FAPE to a child.

29. Is it permissible for an agency to have

the IEP completed before the IEP meeting

begins?

No. Agency staff may come to an IEP

meeting prepared with evaluation findings

and proposed recommendations regarding

IEP content, but the agency must make it

clear to the parents at the outset of the

meeting that the services proposed by the

agency are only recommendations for review

and discussion with the parents. Agencies

that use this approach must ensure that there

is a full discussion with the parents of the

child’s needs and the services to be provided

to meet those needs before the child’s IEP is

finalized.
55130 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

30. Must a public agency include

transportation in a child’s IEP as a related

service?

A public agency must provide

transportation as a related service if it is

required to assist the disabled child to benefit

from special education. (This includes

transporting a preschool-aged child to the

site at which the public agency provides

special education and related services to the

child, if that site is different from the site at

which the child receives other preschool or

daycare services.) In determining whether to

include transportation in a child’s IEP, the

IEP team must consider how the child’s

disability affects the child’s need for

transportation, including determining

whether the child’s disability prevents the

child from using the same transportation

provided to nondisabled children, or from

getting to school in the same manner as

nondisabled children. The public agency

must ensure that any transportation service

included in a child’s IEP as a related service

is provided at public expense and at no cost

to the parents, and that the child’s IEP

describes the transportation arrangement.

Even if a child’s IEP team determines that

the child does not require transportation as

a related service, Section 504 of the

Rehabilitation Act of 1973 requires that the

child receive the same transportation

provided to nondisabled children. If a public

agency transports nondisabled children, it

must transport disabled children under the

same terms and conditions. However, if a

child’s IEP team determines that a student

does not need transportation as a related

service, and the public agency transports

only those children whose IEPs specify

transportation as a related service, and does

not transport nondisabled children, the

public agency would not be required to

provide transportation to a disabled child.

31. Must a public agency provide related

services that are required to assist a child

with a disability to benefit from special

education, whether or not those services are

included in the list of related services in

§ 300.16?

The Note following § 300.16 clarifies that

‘‘[T]he list of related services 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.’’ This could, depending

upon the unique needs of a child, include

such services as nutritional services or

service coordination.

32. Must the IEP specify the amount of

services or may it simply list the services to

be provided?

The amount of services to be provided

must be stated in the IEP, 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 (1) appropriate to the

specific service, and (2) stated in the IEP in

a manner that is clear to all who are involved

in both the development and implementation

of the IEP.

APPENDIX—DISTRIBUTION TABLE SHOWING EACH CURRENT REGULATORY SECTION AND THE CORRESPONDING PROPOSED

REGULATORY SECTION 1

[Note: Appendix will not be codified in the Code of Federal Regulations]

Current regulatory

section

current

section No.

Comparable proposed

regulatory section

proposed

section No.

Subpart and section title

Subpart A—General

Purpose Applicability, and Regulations That Apply to This Program

300.1 .......................... 300.1 ......................... Purpose.

300.2 .......................... 300.2 ......................... Applicability to State, local, and private agencies.

300.3 .......................... 300.3 ......................... Regulations that apply.

Definitions

300.4 .......................... 300.4 ......................... Act.

300.5 .......................... 300.5 ......................... Assistive technology device.

300.6 .......................... 300.6 ......................... Assistive technology service.

300.7 .......................... 300.7 ......................... Children with disabilities. (Retitled ‘‘Child with a disability.’’)

300.8 .......................... 300.11 ....................... Free appropriate public education.

300.9 .......................... 300.13 ....................... Include.

300.10 ........................ 300.9 ......................... Intermediate educational unit. (Replaced by new definition from Pub. L. 105–17, entitled, ‘‘Educational service agency.’’)

300.11 ........................ 300.17 ....................... Local educational agency.

300.12 ........................ 300.18 ....................... Native language.

300.13 ........................ 300.19 ....................... Parent.

300.14 ........................ 300.20 ....................... Public agency.

300.15 ........................ 300.21 ....................... Qualified.

300.16 ........................ 300.22 ....................... Related service.

300.17 ........................ 300.24 ....................... Special education.

300.18 ........................ 300.27 ....................... Transition services.

Subpart B—State Plans and [LEA] Applications (Retitled ‘‘State and Local Eligibility’’)

State Plans—General (Retitled ‘‘State Eligibility—General’’)

300.110 ...................... 300.110 ..................... Condition of assistance.

300.111 ...................... ............................... Contents of plans.

State Plans—Contents (Retitled ‘‘State Eligibility—Specific Conditions’’)

300.121 ...................... 300.121 ..................... Right to a free appropriate public education. (Retitled ‘‘Free appropriate public education’’

(FAPE).

300.122 ...................... 300.122 ..................... Timelines and ages for free appropriate public education. (Retitled ‘‘Exception to FAPE for certain ages.’’)

300.123 ...................... 300.123 ..................... Full educational opportunity goal (FEOG).

300.124 ...................... .................................... [Reserved].

300.125 ...................... 300.124 ..................... FEOG—Timetable.

300.126 ...................... .................................... FEOG—Facilities, personnel, and services.

300.127 ...................... .................................... Priorities.

300.128 ...................... 300.125 ..................... Identification, location, and evaluation of children with disabilities.

300.129 ...................... 300.127 ..................... (Retitled ‘‘child find.’’) Confidentiality of personally identifiable information.
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55131

APPENDIX—DISTRIBUTION TABLE SHOWING EACH CURRENT REGULATORY SECTION AND THE CORRESPONDING PROPOSED

REGULATORY SECTION 1—Continued

[Note: Appendix will not be codified in the Code of Federal Regulations]

Current regulatory

section

current

section No.

Comparable proposed

regulatory section

proposed

section No.

Subpart and section title

300.130 ...................... 300.128 ..................... Individualized education programs.

300.131 ...................... 300.129 ..................... Procedural safeguards.

300.132 ...................... 300.130 ..................... Least restrictive environment.

300.133 ...................... 300.126 ..................... Protection in evaluation procedures. (Retitled ‘‘Procedures for evaluation and determination of

eligibility.’’)

300.134 ...................... 300.141 ..................... Responsibility of [SEA] for all educational programs. (Retitled ‘‘SEA Responsibility for general

supervision.’’)

300.135 ...................... .................................... [Reserved].

300.136 ...................... 300.143 ..................... Implementation procedures—SEA. (Retitled ‘‘SEA implementation of procedural safeguards.’’)

300.137 ...................... 300.148 ..................... Procedures for consulation. (Retitled ‘‘Public participation.’’)

300.138 ...................... 300.151 ..................... Other Federal programs.

300.139 ...................... 300.135 ..................... Comprehensive system of personnel development.

300.140 ...................... 300.133 ..................... Private schools.

300.141 ...................... 300.145 ..................... Recovery of funds for misclassified children.

300.142–143 .............. .................................... [Reserved].

300.144 ...................... 300.144 ..................... Hearing on application. (Retitled ‘‘Hearings relating to LEA eligibility.’’)

300.145 ...................... 300.152 ..................... Prohibition of commingling.

300.146 ...................... 300.137 ..................... Annual evaluation. (Replaced by new section from P.L. 105–17, entitled, ‘‘Performance goals

and indicators.’’)

300.147 ...................... 300.150 ..................... State advisory panel.

300.148 ...................... 300.155 ..................... Policies and procedures for use of Part B funds.

300.149 ...................... 300.156 ..................... Description of use of Part B funds. (Retitled ‘‘Annual description of use of Part B funds.’’)

300.150 ...................... 300.153 ..................... State-level nonsupplanting.

300.151 ...................... 300.147 ..................... Additional information if [SEA] provides direct services.

300.152 ...................... 300.142 ..................... Interagency agreements. (Retitled ‘‘Methods of ensuring services.’’)

300.153 ...................... 300.136 ..................... Personnel standards.

300.154 ...................... 300.132 ..................... Transition of individuals from Part H to Part B. (Retitled ‘‘Transition of children from Part C to

preschool programs.’’)

LEA Applications—General (Retitled ‘‘LEA Eligibility—General’’)

300.180 ...................... 300.180 ..................... Submission of application. (Retitled ‘‘Condition of assistance.’’)

300.181 ...................... .................................... [Reserved].

300.182 ...................... 300.184 ..................... The excess cost requirement. (Retitled ‘‘Excess cost requirement.’’)

300.183 ...................... 300.185 ..................... Meeting the excess cost requirement.

300.184 ...................... .................................... Excess costs—computation of minimum amount.

300.185 ...................... .................................... Computation of excess costs—consolidated application.

300.186 ...................... .................................... Excess costs—limitation on use of Part B funds.

300.187–189 .............. 300.186–189 ............. [Reserved].

300.190 ...................... 300.190 ..................... Consolidated applications. (Retitled ‘‘Joint establishment of eligibility.’’)

300.191 ...................... 300.191 ..................... [Reserved].

300.192 ...................... 300.192 ..................... State regulation of consolidated applications. (Retitled ‘‘Requirements for establishing eligibility.’’)

300.193 ...................... 300.197 ..................... SEA approval; disapproval. (Retitled ‘‘LEA and State agency compliance.’’)

300.194 ...................... 300.197 ..................... Withholding. (Retitled ‘‘LEA and State agency compliance.’’)

LEA Applications—Contents (Retitled ‘‘LEA Eligibility—Specific Conditions’’)

300.220 ...................... 300.220 ..................... Child identification. (Incorporated into a new requirement added by P.L. 105–17, entitled, ‘‘Consistency with State policies.’’)

300.221 ...................... 300.220 ..................... Confidentiality of personally identififable information. (Incorporated into a new requirement

added by P.L. 105–17, entitled, ‘‘Consistency with State policies.’’)

300.222 ...................... 300.220 ..................... Full educational opportunity goal—timetable. (Incorporated into a new requirement added by

P.L. 105–17, entitled, ‘‘Consistency with State policies.’’)

300.223 ...................... .................................... Facilities, personnel, and services.

300.224 ...................... 300.221 ..................... Personnel development.

300.225 ...................... .................................... Priorities.

300.226 ...................... .................................... Parent involvement.

300.227 ...................... 300.220 ..................... Participation in regular education programs. (Incorporated into a new requirement added by

P.L. 105–17, entitled, ‘‘Consistency with State policies.’’)

300.228 ...................... .................................... [Reserved].

300.229 ...................... 300.230 ..................... Excess cost. (Incorporated into a new requirement added by P.L. 105–17, entitled, ‘‘Use of

amounts.’’)

300.230 ...................... 300.230 ..................... Nonsupplanting. (Amended by P.L. 105–17, and incorporated into a new requirement, entitled,

‘‘Use of amounts.’’)

300.231 ...................... .................................... Comparable services.

300.232–234 .............. ............................... [Reserved].

300.235 ...................... 300.220 ..................... [IEPs]. (Incorporated into a new requirement added by P.L. 105–17, entitled, ‘‘Consistency with

State policies.’’)
55132 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

APPENDIX—DISTRIBUTION TABLE SHOWING EACH CURRENT REGULATORY SECTION AND THE CORRESPONDING PROPOSED

REGULATORY SECTION 1—Continued

[Note: Appendix will not be codified in the Code of Federal Regulations]

Current regulatory

section

current

section No.

Comparable proposed

regulatory section

proposed

section No.

Subpart and section title

300.236 ...................... ............................... [Reserved].

300.237 ...................... 300.220 ..................... Procedural safeguards. (Incorporated into a new requirement added by P.L. 105–17, entitled,

‘‘Consistency with State policies.’’)

300.238 ...................... ............................... Use of Part B funds.

300.239 ...................... ............................... [Reserved].

300.240 ...................... 300.240 ..................... Other requirements. (Comparable to a provision added by P.L. 105–17, entitled, ‘‘Information

for SEA.’’)

Application From Secretary of the Interior (Retitled ‘‘Secretary of the Interior—Eligibility’’)

300.260 ...................... 300.260 ..................... Submission of application; approval. (Retitled, ‘‘Submission of information.’’)

300.261 ...................... 300.261 ..................... Public participation.

300.262 ...................... 300.262 ..................... Use of Part B funds.

300.263 ...................... 300.267 ..................... Applicable regulations.

Public Participation

300.280 ...................... 300.280 ..................... Public hearings before adopting a State plan. (Retitled ‘‘Public hearings before adopting State

policies and procedures.’’)

300.281 ...................... 300.281 ..................... Notice.

300.282 ...................... 300.282 ..................... Opportunity to participate; comment period.

300.283 ...................... 300.283 ..................... Review of public comments before adopting plan. (Retitled ‘‘Review public comments before

adopting policies and procedures.’’)

300.284 ...................... 300.284 ..................... Publication and availability of approved plan. (Retitled ‘‘Publication and availability of approved

policies and procedures.’’)

Subpart C—Services

Free Appropriate Public Education

300.300 ...................... 300.300 ..................... Timelines for [FAPE]. (Retitled ‘‘Provision of FAPE.’’)

300.301 ...................... 300.301 ..................... FAPE—methods and payments.

300.302 ...................... 300.302 ..................... Residential placement.

300.303 ...................... 300.303 ..................... Proper functioning of hearing aids.

300.304 ...................... 300.304 ..................... Full educational opportunity goal.

300.305 ...................... 300.305 ..................... Program options.

300.306 ...................... 300.306 ..................... Nonacademic services.

300.307 ...................... 300.307 ..................... Physical education.

300.308 ...................... 300.308 ..................... Assistive technology.

Priorities in the Use of Part B Funds

300.320 ...................... Definitions of ‘‘first priority children’’ and ‘‘second priority children.’’

300.321 ...................... .................................... Priorities.

300.322 ...................... .................................... [Reserved].

300.323 ...................... .................................... Services to other children.

300.324 ...................... .................................... Application of local educational agency to use funds for the second priority.

Individualized Education Programs

300.340 ...................... 300.340 ..................... Definitions.

300.341 ...................... 300.341 ..................... State educational agency responsibility.

300.342 ...................... 300.342 ..................... When individualized education programs must be in effect.

300.343 ...................... 300.343 ..................... Meetings.

300.344 ...................... 300.344 ..................... Participants in meetings. (Retitled ‘‘IEP Team.’’)

300.345 ...................... 300.345 ..................... Parent participant.

300.346 ...................... 300.347 ..................... Content of individualized education program.

300.347 ...................... 300.348 ..................... Agency responsibilities for transition services.

300.348 ...................... 300.349 ..................... Private school placements by public agencies.

300.349 ...................... 300.350 ..................... Children with disabilities in parochial or other private schools. (Retitled ‘‘Children with disabilities in religious affiliated or other private schools.’’)

300.350 ...................... 300.351 ..................... Individualized education program—accountability.

oi0Direct Service by the Sea

300.360 ...................... 300.360 ..................... Use of [LEA] allocation for direct services.

300.361 ...................... 300.361 ..................... Nature and location of services.

300.370 ...................... 300.370 ..................... Use of State agency allocations.

300.371 ...................... .................................... State matching.

300.372 ...................... 300.372 ..................... Applicability of nonsupplanting requirement.

oi0Comprehensive System of Personnel Development

300.380 ...................... 300.380 ..................... General.

300.381 ...................... 300.381 ..................... Adequate supply of qualified personnel.

300.382 ...................... .................................... Personnel preparation and continuing education.

300.383 ...................... .................................... Data system on personnel and personnel development.
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55133

APPENDIX—DISTRIBUTION TABLE SHOWING EACH CURRENT REGULATORY SECTION AND THE CORRESPONDING PROPOSED

REGULATORY SECTION 1—Continued

[Note: Appendix will not be codified in the Code of Federal Regulations]

Current regulatory

section

current

section No.

Comparable proposed

regulatory section

proposed

section No.

Subpart and section title

300.384–387 .............. 300.383–387 ............. [Reserved].

Subpart D—Private Schools

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

300.400 ...................... 300.400 ..................... Applicability of Secs. 300.400–300.402.

300.401 ...................... 300.401 ..................... Responsibility of State educational agency.

300.402 ...................... 300.402 ..................... Implementation by State educational agency.

300.403 ...................... 300.403 ..................... Placement of children by parents.

Children With Disabilities Enrolled by Their Parents in Private Schools

300.450 ...................... 300.450 ..................... Definition of ‘‘private school children with disabilities.’’

300.451 ...................... 300.452 ..................... [SEA] responsibility. (Retired ‘‘Basic requirement-services’’).

300.452 ...................... 300.453 ..................... [LEA] responsibility. (Revised based on P.L. 105–17, and retitled ‘‘Expenditures.’’)

Procedures for By-Pass

300.480 ...................... 300.480 ..................... By-pass—general.

300.481 ...................... 300.481 ..................... Provisions for services under a by-pass.

300.482 ...................... 300.482 ..................... Notice of intent to implement a by-pass.

300.483 ...................... 300.483 ..................... Request to show cause.

300.484 ...................... 300.484 ..................... Show cause hearing.

300.485 ...................... 300.485 ..................... Decision.

300.486 ...................... 300.486 ..................... Filing requirements.

300.487 ...................... 300.487 ..................... Judicial review.

Subpart E—Procedural Safeguards

Due Process Procedures for Parents and Children

300.500 ...................... 3300.500 ................... Definitions of ‘‘consent’’, ‘‘evaluation’’, and ‘‘personally identifiable’’. (Combined §§ 300.500 and

300.501, and retitled ‘‘General responsibility of public agencies; definitions.’’)

300.501 ...................... 300.500 ..................... General responsibility of public agencies. (Combined §§ 300.500 and 300.501, and retitled

‘‘General responsibility of public agencies; definitions.’’)

300.502 ...................... 300.501 ..................... Opportunity to examine records.

300.503 ...................... 300.502 ..................... Independent educational evaluation.

300.504 ...................... 300.503 ..................... Prior notice; parent consent. (Retitled ‘‘Prior notice by the public agency; content of notice.’’)

300.505 ...................... 300.503 ..................... Content of notice. (Retitled ‘‘Prior notice by the public agency; content of notice.’’)

300.506 ...................... 300.507 ..................... Impartial due process hearing. (Retitled ‘‘Impartial due process hearing; parent notice; disclosure.’’)

300.507 ...................... 300.508 ..................... Impartial hearing officer.

300.508 ...................... 300.509 ..................... Hearing rights.

300.509 ...................... 300.510 ..................... Hearing decision; appeal. (Combined §§ 300.509 and 300.510, and retitled ‘‘Finality of decision;

appeal; impartial review.’’)

300.510 ...................... 300.510 ..................... Administrative appeal; impartial review. (Combined §§ 300.509 and 300.510, and retitled ‘‘Finality of decision; appeal; impartial review.’’)

300.511 ...................... 300.512 ..................... Civil action.

300.512 ...................... 300.511 ..................... Timeless and convenience of hearings and reviews.

300.513 ...................... 300.514 ..................... Child’s status during proceedings.

300.514 ...................... 300.515 ..................... Surrogate parents.

300.515 ...................... 300.513 ..................... Attorneys’ fees.

Protection in Evaluation Procedures (Retitled ‘‘Procedures for Evaluation and Determination of

Eligibility’’)

300.530 ...................... 300.530 ..................... General.

300.531 ...................... 300.531 ..................... Preplacement evaluation. (Retitled ‘‘Initial evaluation.’’)

300.532 ...................... 300.532 ..................... Evaluation procedures.

300.533 ...................... 300.534–35 ............... Placement procedures. (Replaced by § 300.534 (‘‘Determination of eligibility’’) and § 300.535

(‘‘Procedures for determining eligibility.’’)

300.534 ...................... 300.536 ..................... Reevaluation.

Additional Procedures for Evaluating Children With Specific Learning Disabilities

300.540 ...................... 300.540 ..................... Additional team members.

300.541 ...................... 300.541 ..................... Criteria for determining the existence of a specific learning disability.

300.542 ...................... 300.542 ..................... Observation.

300.543 ...................... 300.543 ..................... Written report.

Least Restrictive Environment

300.550 ...................... 300.550 ..................... General.

300.551 ...................... 300.551 ..................... Continuum of alternative placements.

300.552 ...................... 300.552 ..................... Placements.

300.553 ...................... 300.553 ..................... Nonacademic settings.

300.554 ...................... 300.554 ..................... Children in public or private institutions.
55134 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules

APPENDIX—DISTRIBUTION TABLE SHOWING EACH CURRENT REGULATORY SECTION AND THE CORRESPONDING PROPOSED

REGULATORY SECTION 1—Continued

[Note: Appendix will not be codified in the Code of Federal Regulations]

Current regulatory

section

current

section No.

Comparable proposed

regulatory section

proposed

section No.

Subpart and section title

300.555 ...................... 300.555 ..................... Technical assistance and training activities.

300.556 ...................... 300.556 ..................... Monitoring activities.

Confidentially of Information

300.560 ...................... 300.560 ..................... Definitions.

300.561 ...................... 300.561 ..................... Notice to parents.

300.562 ...................... 300.562 ..................... Access rights.

300.563 ...................... 300.563 ..................... Record of access.

300.564 ...................... 300.564 ..................... Records on more than one child.

300.565 ...................... 300.565 ..................... List of types and location of information.

300.566 ...................... 300.566 ..................... Fees.

300.567 ...................... 300.567 ..................... Amendment of records at parent’s request.

300.568 ...................... 300.568 ..................... Opportunity for a hearing.

300.569 ...................... 300.569 ..................... Result of hearing.

300.570 ...................... 300.570 ..................... Hearing procedures.

300.571 ...................... 300.571 ..................... Consent.

300.572 ...................... 300.572 ..................... Safeguards.

300.573 ...................... 300.573 ..................... Destruction of information.

300.574 ...................... 300.574 ..................... Children’s rights.

300.575 ...................... 300.575 ..................... Enforcement.

300.576 ...................... 300.577 ..................... Department. (Retitled ‘‘Department use of personally identifiable information.’’)

Department Procedures

300.580 ...................... .................................... [Reserved].

300.581 ...................... 300.581 ..................... Disapproval of a State plan. (Combined §§ 300.581 and 300.582, and retitled ‘‘Notice and hearing before determining that a State is not eligible.’’)

300.582 ...................... 300.581 ..................... Content of notice. (Combined §§ 300.581 and 300.582, and retitled ‘‘Notice and hearing before

determining that a State is not eligible.’’)

300.583 ...................... 300.582 ..................... Hearing Official or Panel.

300.584 ...................... 300.583 ..................... Hearing procedures.

300.585 ...................... 300.584 ..................... Initial decision; final decision.

300.586 ...................... 300.585 ..................... Filing requirements.

300.587 ...................... 300.586 ..................... Judicial review.

300.588 ...................... .................................... [Reserved].

300.589 ...................... 300.589 ..................... Waiver of requirement regarding supplementing and supplanting with Part B funds.

Subpart F—State Administration

General

300.600 ...................... 300.600 ..................... Responsibility for all educational programs.

300.601 ...................... 300.601 ..................... Relation of Part B to other Federal programs.

Use of Funds

300.620 ...................... 300.620 ..................... Federal funds for State administration. (Retitled ‘‘Use of funds for State administration.’’)

300.621 ...................... 300.621 ..................... Allowable costs.

State Advisory Panel

300.650 ...................... 300.650 ..................... Establishment (Retitled ‘‘Establishment of advisory panels.’’)

300.6651 .................... 300.651 ..................... Membership.

300.652 ...................... 300.652 ..................... Advisory panel functions.

300.653 ...................... 300.653 ..................... Advisory panel procedures.

State Complaint Procedures

300.660 ...................... 300.660 ..................... Adoption of State complaint procedures.

300.661 ...................... 300.661 ..................... Minimum State complaint procedures.

300.662 ...................... 300.662 ..................... Filing a complaint.

Subpart G—Allocation of Funds; Reports

Allocations

300.700 ...................... 300.700 ..................... Special definition of the term State.

300.701 ...................... 300.701 ..................... State entitlement; formula. (Retitled ‘‘Grants to States.’’)

300.702 ...................... 300.704 ..................... [Reserved].

300.703 ...................... 300.705 ..................... [Reserved].

300.704 ...................... 300.708 ..................... Hold harmless provision. (Comparable, in part, to § 300.708 (‘‘Limitations’’).

300.705 ...................... 300.710 ..................... Allocation for State in which by-pass is implemented for private school children with disabilities.

300.706 ...................... 300.703 ..................... Within-State distribution: Fiscal Year 1979 and after. (Comparable, in part, to § 300.703 (‘‘Allocations to States.’’), which sets out the formula added by Public Law 105–17).

300.707 ...................... 300.711–712 ............. Local educational agency entitlement; formula. (Retitled ‘‘Subgrants to local educational agencies’’) (Retitled ‘‘Allocation to local educational agencies.’’)
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Proposed Rules 55135

APPENDIX—DISTRIBUTION TABLE SHOWING EACH CURRENT REGULATORY SECTION AND THE CORRESPONDING PROPOSED

REGULATORY SECTION 1—Continued

[Note: Appendix will not be codified in the Code of Federal Regulations]

Current regulatory

section

current

section No.

Comparable proposed

regulatory section

proposed

section No.

Subpart and section title

300.708 ...................... 300.714 ..................... Reallocation of [LEA] funds.

300.709 ...................... 300.715 ..................... Payments to the Secretary of the Interior for the education of Indian children.

300.710 ...................... 300.716 ..................... Payments to the Secretary of the Interior for Indian tribes or tribal organizations. (Retitled ‘‘Payments for education and services for Indian children with disabilities aged 3 through 5.’’)

300.711 ...................... 300.716 ..................... Entitlements to jurisdictions. (Replaced by §§ 300.717 (‘‘Outlying areas and freely associated

States.’’) and 300.718 (‘‘Outlying area—definition.’’)

Reports

300.750 ...................... 300.750 ..................... Annual report of children served—report requirement.

300.751 ...................... 300.751 ..................... Annual report of children served—information required in the report.

300.752 ...................... 300.752 ..................... Annual report of children served—certification.

300.753 ...................... 300.753 ..................... Annual report of children served—criteria for counting children.

300.754 ...................... 300.754 ..................... Annual report of children served—other responsibilities of [SEA].

1The purpose of this table is to assist each reader to find where a given section number in the current regulations is located in this NPRM.

The table does not include (1) any new regulatory provisions that have been added as a result of the IDEA Amendments of 1997, or (2) any

other new area on which the Secretary is proposing to regulate.

[FR Doc. 97–28006 Filed 10–22–97; 8:45 am]

BILLING CODE 4000–01–P