[Federal Register Volume 62, Number 204 (Wednesday, October 22, 1997)]
[Proposed Rules]
[Pages 55026-55135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28006]



[[Page 55025]]

_______________________________________________________________________

Part V





Department of Education





_______________________________________________________________________



34 CFR Parts 300, 301, and 303



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; Proposed Rule

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

[[Page 55026]]



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: <a href="/cdn-cgi/l/email-protection#f89b9795959d968cb89d9cd69f978e"><span class="__cf_email__" data-cfemail="9efdf1f3f3fbf0eadefbfab0f9f1e8">[email protected]</span></a>
    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


[[Page 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).

[[Page 55028]]

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 whole-school 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 Secs. 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 Secs. 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

[[Page 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 Sec. 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 
Secs. 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 Secs. 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 
Secs. 300.622-300.624. School districts are also authorized to 
establish school-based improvement programs, as described in 
Secs. 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 
Secs. 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 Secs. 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 Secs. 300.110-
300.111 and 300.180-300.181.

Subpart A--General

Purposes, Applicability, and Regulations That Apply to This Program
    Proposed Sec. 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 Sec. 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 
Sec. 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 Sec. 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 
Sec. 300.1(a) (relating to employment and independent living). The note 
describes the philosophy of independent living

[[Page 55030]]

contained in Section 701 of the Rehabilitation Act of 1973.
    Proposed Sec. 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 Sec. 300.2 would be amended to replace the term ``State 
correctional facilities'' with the term ``State and local juvenile and 
adult correctional facilities''.
    Proposed Sec. 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 Sec. 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'' (Secs. 300.450-300.462).
    All other regulations identified in Sec. 300.3 of the existing 
regulations for this part would be retained under proposed Sec. 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'' (Sec. 300.320(a)), and ``second priority children'' 
(Sec. 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 Sec. 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:
    <bullet> Base year (Relates to the new funding formula) (Section 
611(e)(2)(A); Sec. 300.707).
    <bullet> Controlled substance (Relates to the discipline 
provisions) (Section 615(k)(10)(A); Sec. 300.520).
    <bullet> 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); 
Sec. 300.284).
    <bullet> Freely associated States (Relates to the Pacific Basin 
entities that are eligible for assistance under this part) (Section 
611(b)(6); Sec. 300.722).
    <bullet> 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); Sec. 300.264).
    <bullet> Outlying area (Relates to grant requirements under this 
part) (Section 602.18; Sec. 300.718).
    <bullet> Substantial evidence (Relates to discipline provisions) 
(Section 615(k)(10)(C); Sec. 300.521).
    <bullet> Weapon (Relates to discipline provisions) (Section 
615(k)(10)(D); Sec. 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:
    <bullet> Comparable in quality (A definition of this term would be 
added to Sec. 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).
    <bullet> Extended school year services (A definition of this term 
would be added to a new provision under proposed Sec. 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, 
Sec. 300.309, in this preamble).
    <bullet> Meetings (A definition of this term would be added to 
Sec. 300.501, relating to participation of parents in meetings about 
their child on matters covered under this part).
    <bullet> Financial Costs (A definition of this term is included in 
proposed Sec. 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 Sec. 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 Secs. 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 Technology-Related Assistance for Individuals with 
Disabilities Act of 1988) would be retained in abbreviated form.

[[Page 55031]]

    Proposed Sec. 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 
Sec. 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 Sec. 300.7 of the current regulations (relating to 
children with autism) would be added without change to proposed 
Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Secs. 300.340-300.350 to Secs. 300.340-
300.351, to conform to a proposed change made in those requirements.
    The Secretary proposes to add in proposed Sec. 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

[[Page 55032]]

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 Sec. 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 Sec. 300.13 would retain the current regulatory definition 
of the term ``include''.
    Proposed Sec. 300.14 would include a definition of the term 
``individualized education program'' (IEP). Because the term ``IEP'' 
has traditionally been defined under Sec. 300.340 (an introductory 
section to the IEP requirements of Secs. 300.340-300.350) the 
definition in proposed Sec. 300.14 would simply reference the 
definition in Sec. 300.340.
    Proposed Sec. 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 
Sec. 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 
Secs. 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 Sec. 300.344.
    Proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 300.504(c). (The 
procedural safeguards notice is a new statutory provision that was 
added by section 614(d) of the Act.)
    Proposed Sec. 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, long-term 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 Sec. 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 Sec. 300.21 would incorporate without change the current 
regulatory definition of the term ``qualified.''
    Proposed Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 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., travel-training). 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 
Sec. 300.136(f).
    Note 4 would explain that (1) most children with disabilities 
should receive the same transportation services as non-disabled 
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 Sec. 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 Sec. 300.24 would retain the current regulatory definition 
of ``special education,'' except for the following changes:
    In Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 education-related settings to enable 
children with disabilities to be educated with nondisabled children to 
the maximum extent appropriate in accordance with the LRE provisions in 
Secs. 300.550-300.556.
    Proposed Sec. 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 Sec. 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 Secs. 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 Secs. 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

[[Page 55034]]

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 Sec. 300.121 would add to the current Sec. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 300.132 would 
apply.
    The second note to follow proposed Sec. 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 Sec. 300.122 revises the current Sec. 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 
Sec. 300.122(a)(2). A note, Note 2, would be added following 
Sec. 300.122 quoting the House Committee Report explaining the 
statutory change.
    The Secretary also proposes to amend Sec. 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

[[Page 55035]]

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 Sec. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 300.126 incorporates the evaluation procedures from 
sections 612(a)(7) and 612(a)(6)(B), by cross-referencing the 
provisions of proposed Secs. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 300.135 reflects the new statutory requirements 
concerning a comprehensive system of personnel development (CSPD). 
Section 612(a)(14)

[[Page 55036]]

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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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, drop-out 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 Sec. 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 Sec. 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 wide-scale 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 Sec. 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 Sec. 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

[[Page 55037]]

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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 300.706, 
this provision will be removed.
    Proposed Sec. 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 Sec. 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 Sec. 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 
Secs. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 300.154.
    Proposed Sec. 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 Secs. 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 Sec. 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)

[[Page 55038]]

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 Secs. 300.180--
300.182.
    The excess costs provisions in the current regulations would be 
condensed and streamlined in these proposed regulations in 
Secs. 300.184-300.185.
    Proposed Secs. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 300.231 reflects the new statutory provision that 
LEAs not reduce the level of expenditure of LEA funds.
    Proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 55039]]

based on its use of funds in accordance with this provision.
    Proposed Secs. 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 Sec. 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 Secs. 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 Sec. 300.260 
references to State eligibility requirements would be updated to 
reflect the new State eligibility requirements of the Act. In proposed 
Sec. 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 Secs. 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 Sec. 300.300 is essentially the same as in the current 
regulation, with minor changes to update and accommodate new statutory 
provisions. Proposed Secs. 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 
Sec. 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 Sec. 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 Secs. 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 Secs. 300.530-300.536.
Individualized Education Programs
    Proposed Sec. 300.340 would restate the current regulatory 
definitions of ``IEP'' and ``participating agency.''
    Proposed Sec. 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

[[Page 55040]]

placed in private schools by their parents. Proposed Secs. 300.401 and 
300.402 address children placed by public agencies in private schools. 
Proposed Sec. 300.403 concerns placement in private schools when the 
provision of FAPE is at issue. Proposed Secs. 300.450-300.462 concern 
children placed by their parents in private schools.
    Proposed Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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 
Sec. 300.347.
    Proposed Sec. 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

[[Page 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 Sec. 300.346(a). Proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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 Secs. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 300.370(a) (3)-(8). Proposed Sec. 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.

[[Page 55042]]

    Proposed Sec. 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 Secs. 300.380-300.382 would 
be revised to reflect new statutory requirements concerning a State's 
comprehensive system of personnel development (CSPD). Proposed 
Sec. 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 Secs. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 300.403(a). Proposed Sec. 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 Sec. 300.403(c)-
(e).
Children With Disabilities Enrolled by their Parents in Private Schools
    Proposed Sec. 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 Secs. 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 
Sec. 300.451. Proposed Sec. 300.452 describes the basic statutory 
obligation to provide special

[[Page 55043]]

education and related services to private school children with 
disabilities and says that obligation is met by meeting the 
requirements of Secs. 300.453-300.462. In Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Secs. 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 Sec. 300.457(b) would 
clarify that complaints that an SEA or LEA has failed to meet the 
requirements of Secs. 300.451-300.462 may be filed under the State 
complaint procedures addressed in this NPRM at Secs. 300.660-300.662.
    Proposed Secs. 300.458-300.462 would incorporate, with only minor 
changes that are not intended to be substantive, the requirements from 
34 CFR Secs. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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

[[Page 55044]]

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 Sec. 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 agency-initiated 
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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

[[Page 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 Sec. 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 Sec. 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 Sec. 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 low-cost 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 Sec. 300.508 would maintain the current regulatory 
requirements concerning impartial hearing officers, consistent with the 
requirement of section 615(f)(3).
    Proposed Sec. 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

[[Page 55046]]

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 Sec. 300.510(a) maintains, with minor changes, the current 
regulatory provision regarding finality of decisions, consistent with 
section 615(i)(1)(A). Proposed Sec. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 55047]]

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 Sec. 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 Sec. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 55048]]

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 Sec. 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 Secs. 300.520-300.529 and section 612(a)(1)(A) 
of the Act.
    In proposed Sec. 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-business-day 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 300.534 would incorporate the requirements of section 614 
(b) (4) and (5) and (c)(5) of the Act regarding determinations of 
eligibility.
    Proposed Sec. 300.535 would maintain from the current regulations 
the procedures for determining eligibility.
    Proposed Sec. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 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 
Secs. 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 Secs. 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 Sec. 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 Sec. 300.552 to 
update a reference to another section of this regulation. A note 
following proposed Sec. 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 Sec. 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

[[Page 55049]]

participate in regular education classrooms.
Confidentiality of Information
    With the following exceptions, proposed Secs. 300.560-300.575 and 
Sec. 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 Sec. 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 Sec. 300.517. A new regulation would be added 
(proposed Sec. 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 Secs. 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 
Sec. 300.580 would state that if the Secretary determines a State is 
eligible to receive a grant, the Secretary notifies the State.
    A new Sec. 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 Sec. 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 one-year 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 Sec. 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 Sec. 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).

[[Page 55050]]

    Proposed Sec. 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 Sec. 300.620.
    Proposed Sec. 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 Sec. 300.622 would reflect this new authority, including 
the statutorily prescribed purposes of these subgrants to LEAs.
    Proposed Sec. 300.623 would describe the amount reserved for 
capacity-building 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 capacity-building 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 flow-through subgrants to all LEAs.
    In proposed Sec. 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 Sec. 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 Sec. 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 Sec. 300.652 would reflect the duties of the advisory 
panel, as specified in section 612(a)(21)(D) of the Act.
    Proposed Sec. 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 Secs. 300.660-300.662 would retain these 
State complaint procedures with the changes described.
    The Secretary proposes in proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 55051]]

to implement a due process hearing decision.
    The Secretary proposes in proposed Sec. 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 Sec. 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 Sec. 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 Sec. 300.702 would incorporate the statutory definition of 
``average per-pupil 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 300.709.
    Proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Secs. 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 
Secs. 300.717 through 300.722.
Reports
    Proposed Secs. 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

[[Page 55052]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 301.5(a) would replace the 
term ``intermediate educational unit'' with ``educational service 
agency,'' and proposed Sec. 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 Sec. 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 
Sec. 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 Sec. 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 
Secs. 301.21-301.23.
    Proposed Sec. 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 Sec. 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 Sec. 301.21(a) would 
provide that, except as provided in Sec. 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 
Sec. 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 
Sec. 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 Sec. 301.20 were 
equal to or greater than the amount allocated to States for the 
preceding fiscal year. Proposed Sec. 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 Sec. 301.22 (a) and (b).
    Proposed Sec. 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 Sec. 301.20 were less than the amount 
allocated to States for the preceding fiscal year. Proposed 
Sec. 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 Sec. 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 Sec. 301.24 
would provide that for each fiscal year a State may retain for 
administration and other State-level activities, in accordance with 
Secs. 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

[[Page 55053]]

Consumers, published by the Bureau of Labor Statistics of the 
Department of Labor.
    Consistent with section 619(e) of the Act, proposed Sec. 301.25 
would provide that a State may use not more than 20 percent of the 
maximum amount it may retain under Sec. 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 Sec. 301.26 
would provide that a State must use any funds that it retains under 
Sec. 301.24 and does not use for administration under Sec. 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 Sec. 301.30 would provide that a State must distribute any 
funds that it does not retain under Sec. 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 Sec. 301.31 would, in conformity with section 619(g)(1), 
set forth the basis on which a State must distribute the funds 
described in Sec. 301.30 to LEAs that have established their 
eligibility under section 613 of the Act. Proposed Sec. 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 Sec. 301.31(b) 
would further require that, after making the base payment allocations 
required by Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 300.19.
    In Sec. 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 
Secs. 303.510--303.512, including how to file a complaint and the 
timelines under the State complaint procedures. This change would 
conform to proposed Sec. 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 Sec. 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 Sec. 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 Sec. 300.660.
    In Sec. 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

[[Page 55054]]

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 Sec. 300.662.
    In Sec. 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 Sec. 300.661.
    In Sec. 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 Sec. 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 Sec. 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:
    <bullet> All children in America will start school ready to learn.
    <bullet> The high school graduation rate will increase to at least 
90 percent.
    <bullet> 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.
    <bullet> United States students will be first in the world in 
mathematics and science achievement.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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

[[Page 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 Sec. 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 
Sec. 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

[[Page 55056]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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,

[[Page 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 Sec. 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 Sec. 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 (Secs. 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 Sec. 300.520 would give 
school officials the authority to remove children who engaged in 
misconduct involving weapons or illegal drugs.

[[Page 55058]]

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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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

[[Page 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 Non-statutory 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

[[Page 55060]]

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

[[Page 55061]]

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

[[Page 55062]]

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

[[Page 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 short-term 
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

[[Page 55064]]

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 Secs. 300.660(b) and 300.503(b)(8) and 
Secs. 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 
``Sec. '' and a numbered heading; for example, Sec. 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, Secs. 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, Secs. 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, Secs. 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

[[Page 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, 
Secs. 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, Secs. 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--
    <bullet> 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;
    <bullet> 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;
    <bullet> Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
    <bullet> 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)


[[Page 55066]]


    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.

[[Page 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 Secs. 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 by-pass.
300.482  Notice of intent to implement a by-pass.
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 capacity-building 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 by-pass 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.

[[Page 55068]]

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


Sec. 300.1  Purposes.

    The purposes of this part are--
    (a) To ensure that all children with disabilities have available to 
them a free appropriate public education that emphasizes special 
education and related services designed to meet their unique needs and 
prepare them for 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.


Sec. 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 Sec. 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.


Sec. 300.3  Regulations that apply.

    The following regulations apply to this program:
    (a) 34 CFR part 76 (State-Administered Programs) except for
    Secs. 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 
(Sec. 300.136(a)(1))
Average per-pupil expenditure in public elementary and secondary 
schools in the United States (Sec. 300.702)
Base year (Sec. 300.706(b)(1))
Comparable quality (Sec. 300.455(c))
Consent (Sec. 300.500(b)(1))
Controlled Substance (Sec. 300.520(d)(1))
Destruction (Sec. 300.560)
Direct services (Sec. 300.370(b)(1))
Education records (Sec. 300.560)
Evaluation (Sec. 300.500(b)(2))
Excess costs (Sec. 300.184(b))
Extended school year services (Sec. 300.309(b))
Financial costs (Sec. 300.142(e)(2))
Freely associated States (Sec. 300.722)
Highest requirements in the State applicable to a specific 
profession or discipline (Sec. 300.136(a)(2))
Illegal drug (Sec. 300.520(d)(2))
Independent educational evaluation (Sec. 300.503(a)(3)(i))
Indian (Sec. 300.264(a))
Indian tribe (Sec. 300.264(b))
Outlying area (Sec. 300.718)
Participating agency, as used in the IEP requirements in 
Secs. 300.347 and 300.348 (Sec. 300.340(b))
Participating agency, as used in the confidentiality requirements in 
Secs. 300.560-300.576(Sec. 300.340(b))
Party or parties (Sec. 300.583(a))
Personally identifiable (Sec. 300.500(b)(3))
Private school children with disabilities (Sec. 300.450)
Profession or discipline (Sec. 300.136(a)(3))
Public expense (Sec. 300.502(a)(3)(ii))
Revoke consent at any time (Sec. 300.500 note)
State, special definition (Sec. 300.700)
State-approved or recognized certification, licensing, registration, 
or other comparable requirements (Sec. 300.136(a)(4))
Substantial evidence (Sec. 300.521(e))
Support services (Sec. 300.370(b)(2))
Weapon (Sec. 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.''

[[Page 55069]]

``LRE'' means ``least restrictive environment.''
``SEA'' means ``State educational agency.''

    Each abbreviation is used interchangeably with its 
nonabbreviated term.

Sec. 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))


Sec. 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))


Sec. 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.


Sec. 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 Secs. 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,

[[Page 55070]]

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 Sec. 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 Sec. 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.


Sec. 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)


Sec. 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))


Sec. 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 audio-visual instructional materials; 
telecommunications, sensory, and other technological aids and devices; 
and books, periodicals, documents, and other related materials.

(Authority: 20 U.S.C. 1401(6))


Sec. 300.11  Free appropriate public education.

    As used in this part, the term free appropriate public education 
means special education and related services that--

[[Page 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 Secs. 300.340-300.351.

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


Sec. 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 Secs. 300.500--300.553, the general curriculum 
could be used in any educational environment along a continuum of 
alternative placements described under Sec. 300.551.


Sec. 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)


Sec. 300.14  Individualized education program.

    As used in this part, the term individualized education program or 
IEP has the meaning given the term in Sec. 300.340.

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


Sec. 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 Sec. 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.


Sec. 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))


Sec. 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 Sec. 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.


Sec. 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: 
Sec. 300.503(c), Sec. 300.504(c) and Sec. 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).


Sec. 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 Sec. 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.


Sec. 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))


Sec. 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)


Sec. 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

[[Page 55072]]

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 (lip-reading), 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.


[[Page 55073]]


    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 Sec. 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.


Sec. 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))


Sec. 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 speech-language 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 specially-designed instruction is 
provided without charge, but does not preclude incidental fees that are 
normally charged to nondisabled students or their parents as a part of 
the regular education program.
    (2) Physical education 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 
Sec. 300.7). The definition of related services (Sec. 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.


Sec. 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))


Sec. 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 Secs. 300.550-
300.556.

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


Sec. 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 outcome-oriented 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.


Sec. 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


[[Page 55074]]


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

Subpart B--State and Local Eligibility--General State Eligibility--
General


Sec. 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 Secs. 300.121-300.156.

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


Sec. 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 Sec. 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))


Sec. 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))


Sec. 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 Secs. 300.581-300.587.

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


Secs. 300.114-300.120  [Reserved]

State Eligibility--Specific Conditions


Sec. 300.121  Free appropriate public education.

    (a) General. Each State must have on file with the Secretary 
information that shows that, subject to Sec. 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 Sec. 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 Sec. 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 Sec. 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.


Sec. 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 Sec. 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

[[Page 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 Sec. 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 Sec. 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 Sec. 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))


Sec. 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))


Sec. 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))


Sec. 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 Sec. 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 Secs. 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).


Sec. 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 Secs. 300.530-300.536 
are met.

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


Sec. 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 Secs. 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 Secs. 300.560-300.577.


Sec. 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 Secs. 300.340-300.351.

[[Page 55076]]

    (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))


Sec. 300.129  Procedural safeguards.

    (a) The State must have on file with the Secretary procedural 
safeguards that ensure that the requirements of Secs. 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))


Sec. 300.130  Least restrictive environment.

    (a) General. The State must have on file with the Secretary 
procedures that ensure that the requirements of Secs. 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 
Sec. 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))


Sec. 300.131  [Reserved]


Sec. 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 early-intervention programs assisted 
under Part C of the Act, and who will participate in preschool programs 
assisted under Part B of the Act, experience a smooth and effective 
transition to those preschool programs in a manner consistent with 
section 637(a)(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 Sec. 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))


Sec. 300.133  Private schools.

    The State must have on file with the Secretary policies and 
procedures that ensure that the requirements of Secs. 300.400-300.403 
and Secs. 300.450-300.462 are met.

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


Sec. 300.134  [Reserved]


Sec. 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 Sec. 300.135(a)(2) as a part of their State 
Improvement Plan under section 653 of the Act, if they choose to do 
so.


Sec. 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 Sec. 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 State-approved 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.

[[Page 55077]]

    (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 Sec. 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 Sec. 300.136(b) and (c).


Sec. 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 
Sec. 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))


Sec. 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 
district-wide 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.


Sec. 300.139  Reports relating to assessments.

    (a) General. In implementing the requirements of Sec. 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.

[[Page 55078]]

    (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).


Sec. 300.140  [Reserved]


Sec. 300.141  SEA responsibility for general supervision.

    (a) The State must have on file with the Secretary information that 
shows that the requirements of Sec. 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))


Sec. 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 Sec. 300.5 relating to assistive technology 
devices, Sec. 300.6 relating to assistive technology services, 
Sec. 300.22 relating to related services, Sec. 300.26 relating to 
supplementary aids and services, and Sec. 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

[[Page 55079]]

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 Secs. 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.


Sec. 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 
Sec. 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))


Sec. 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))


Sec. 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))


Sec. 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))


Sec. 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 Secs. 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 
Sec. 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))


Sec. 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 
Secs. 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))


Sec. 300.149  [Reserved]


Sec. 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 Secs. 300.650-
300.653.

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


Sec. 300.151  [Reserved]


Sec. 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).)


Sec. 300.153  State-level nonsupplanting.

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

[[Page 55080]]

    (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 Sec. 300.589.

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


Sec. 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 Sec. 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))


Sec. 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))


Sec. 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 Sec. 300.602 will be used to meet 
the requirements of this part;
    (2) How those amounts will be allocated among the activities 
described in Secs. 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 Secs. 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


Sec. 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 Secs. 300.220-
300.250.

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


Sec. 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 Sec. 300.194 has on file 
with the SEA policies and procedures that demonstrate that the LEA or 
State agency meets any requirement of Sec. 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))


Sec. 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))


Sec. 300.183  [Reserved]


Sec. 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 per-student 
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

[[Page 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))


Sec. 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 Sec. 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 Sec. 300.190, the minimum 
average amount is the average of the combined minimum average amounts 
determined under Sec. 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.


Secs. 300.186-300.189  [Reserved]


Sec. 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 Secs. 300.711-
300.714 if the agencies were eligible for these payments.

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


Sec. 300.191  [Reserved]


Sec. 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 Secs. 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 
Secs. 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 Sec. 300.130.

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


Sec. 300.193  [Reserved]


Sec. 300.194  State agency eligibility.

    Any State agency that desires to receive a subgrant for any fiscal 
year under Secs. 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))


Sec. 300.195  [Reserved]


Sec. 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))


Sec. 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 Secs. 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 
Secs. 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


Sec. 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 Secs. 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))


Sec. 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 Secs. 300.380-300.382; 
and

[[Page 55082]]

    (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 Sec. 300.135.

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


Sec. 300.222-300.229  [Reserved]


Sec. 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 Secs. 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))


Sec. 300.231  Maintenance of effort.

    (a) General. Except as provided in Sec. 300.232 and Sec. 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))


Sec. 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))


Sec. 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 Secs. 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))


Sec. 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 Sec. 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 Secs. 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))


Sec. 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 Sec. 300.244.
    (b) Application for certain use of funds. An LEA does not violate 
Secs. 300.152, 300.230, and 300.231 based on its use of funds provided 
under Part B of the Act in accordance with

[[Page 55083]]

paragraphs (a)(1) and (a)(2) of this section.

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


Sec. 300.236-300.239  [Reserved]


Sec. 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 Secs. 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))


Sec. 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))


Sec. 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))


Sec. 300.243  [Reserved]


Sec. 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 Secs. 300.244 in accordance with the requirements of that 
title.

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


Sec. 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 Sec. 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 Sec. 300.245 (through a school-based standing panel 
established under Sec. 300.247(b)) to design, implement, and evaluate a 
school-based improvement plan described in Sec. 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)).


Sec. 300.246  Plan requirements.

    A school-based improvement plan described in Sec. 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 Sec. 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 
school-based standing panel established in accordance with 
Sec. 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))


Sec. 300.247  Responsibilities of the LEA.

    An LEA that is granted authority under Sec. 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 Sec. 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

[[Page 55084]]

Sec. 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))


Sec. 300.248  Limitation.

    A school-based improvement plan described in Sec. 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))


Sec. 300.249  Additional requirements.

    (a) Parental involvement. In carrying out the requirements of 
Secs. 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 Secs. 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))


Sec. 300.250  Extension of plan.

    If a public school within the jurisdiction of an LEA meets the 
applicable requirements and criteria described in Secs. 300.246 and 
300.247 at the expiration of the 3-year approval period described 
Sec. 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


Sec. 300.260  Submission of information.

    The Secretary may provide the Secretary of the Interior amounts 
under Sec. 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))


Sec. 300.261  Public participation.

    In fulfilling the requirements of Sec. 300.260 the Secretary of the 
Interior shall provide for public participation consistent with 
Secs. 300.280-300.284.

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


Sec. 300.262  Use of Part B funds.

    (a) The Department of the Interior may use five percent of its 
payment under Sec. 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 Sec. 300.716 
must be used in accordance with that section.

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


Sec. 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.

[[Page 55085]]

    (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))


Sec. 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))


Sec. 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 
intra-agency collaboration, including modifications to regulations, and 
the elimination of barriers to inter- and intra-agency programs and 
activities;
    (4) Provide assistance and disseminate information on best 
practices, effective program coordination strategies, and 
recommendations for improved educational programming for Indian 
infants, toddlers, and children with disabilities; and
    (5) Provide assistance in the preparation of information required 
under Sec. 300.260(g).

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


Sec. 300.266  Annual reports.

    The advisory board established under Sec. 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))


Sec. 300.267  Applicable regulations.

    The Secretary of the Interior shall comply with the requirements of 
Secs. 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


Sec. 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))


Sec. 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))


Sec. 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 
Sec. 300.281.

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


Sec. 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))


Sec. 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.


Sec. 300.300  Provision of FAPE.

    (a) General. Subject to paragraphs (b) and (c) of this section and 
Sec. 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

[[Page 55086]]

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 Sec. 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 Sec. 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 Sec. 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 
Sec. 300.300, the State may, at its discretion, extend services to 
those children. (See note 3 following Sec. 300.125 regarding the 
relationship between the child find requirements under Part B of the 
Act and those under Part C of the Act.)


Sec. 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))


Sec. 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.


Sec. 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)


Sec. 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))


Sec. 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.


Sec. 300.306  Nonacademic services.

    (a) Each public agency shall take steps to provide nonacademic and

[[Page 55087]]

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))


Sec. 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))


Sec. 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 Secs. 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 Sec. 300.24;
    (b) Related services under Sec. 300.22; or
    (c) Supplementary aids and services under Secs. 300.26 and 
300.550(b)(2).

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


Sec. 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 Secs. 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 individually-oriented 
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.


Sec. 300.310  [Reserved]


Sec. 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 Sec. 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 Sec. 300.138 and 
Sec. 300.347(a)(5)(i) (relating to participation of children with 
disabilities in general assessments).
    (2) The requirements in Sec. 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 Secs. 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


Sec. 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--

[[Page 55088]]

    (1) To determine if the child is a ``child with a disability'' 
under Sec. 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 Secs. 300.530--300.535; and
    (2) The results of the evaluation are used by the child's IEP team 
in meeting the requirements of Secs. 300.340--300.351.

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


Sec. 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 Secs. 300.530--330.536; and
    (b) The results of any reevaluations are used by the child's IEP 
team under Secs. 300.340-300.350 in reviewing and, as appropriate, 
revising the child's IEP.

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


Sec. 300.322-300.324  [Reserved]

    Individualized Education Programs


Sec. 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 Secs. 300.341-
300.351.
    (b) As used in Secs. 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))


Sec. 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 religiously-affiliated 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.


Sec. 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 Sec. 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 Sec. 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 Secs. 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 Secs. 300.340-300.351.
    (2) The provisions of Secs. 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 
Sec. 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.


Sec. 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 Sec. 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 Sec. 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.

[[Page 55089]]

Sec. 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 
Sec. 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 speech-language pathologist.


Sec. 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 Sec. 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 
Sec. 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 Sec. 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.


Sec. 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

[[Page 55090]]

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 
Sec. 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.


Sec. 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 
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;
    (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 Sec. 300.27(c)(1) through (c)(4), the 
IEP must include a

[[Page 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 Sec. 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 Sec. 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 post-school 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.


Sec. 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 Sec. 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))


Sec. 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 
Sec. 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))

[[Page 55092]]

Sec. 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 Sec. 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))


Sec. 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 (Sec. 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


Sec. 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 service-delivery 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 Secs. 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.


Sec. 300.361  Nature and location of services.

    The SEA may provide special education and related services under 
Sec. 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 
Secs. 300.550-300.556).

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


Secs. 300.362-300.369  [Reserved]


Sec. 300.370  Use of State agency allocations.

    (a) Each State shall use any funds it retains under Sec. 300.602 
and does not use for administration under Sec. 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 
Sec. 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 Sec. 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 
Sec. 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 Secs. 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))


Sec. 300.371  [Reserved]


Sec. 300.372  Applicability of nonsupplanting requirement.

    A State may use funds it retains under Sec. 300.602 without regard 
to--

[[Page 55093]]

    (a) The prohibition on commingling of funds in Sec. 300.152; and
    (b) The prohibition on supplanting other funds in Sec. 300.153.

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

Comprehensive System of Personnel Development


Sec. 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 Secs. 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))


Sec. 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))


Sec. 300.382  Improvement strategies.

    Each State must describe the strategies the State will use to 
address the needs identified under Sec. 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 under-represented 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))


Sec. 300.383--300.387  [Reserved]

Subpart D--Children in Private Schools

    Children With Disabilities in Private Schools Placed or Referred by 
Public Agencies


Sec. 300.400  Applicability of Secs. 300.400--300.402.

    Sections Secs. 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))


Sec. 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 
Secs. 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))


Sec. 300.402  Implementation by SEA.

In implementing Sec. 300.401, the SEA shall--

    (a) Monitor compliance through procedures such as written reports, 
on-site visits, and parent questionnaires;
    (b) Disseminate copies of applicable standards to each private 
school and facility to which a public agency has referred or placed a 
child with a disability; and
    (c) Provide an opportunity for those private schools and facilities 
to participate in the development and revision of State standards that 
apply to them.

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


Sec. 300.403  Placement of children by parent s if FAPE is at issue.

    (a) General. Subject to Sec. 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

[[Page 55094]]

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 Secs. 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 Sec. 300.503(a)(1), of its intent to evaluate 
the child (including a statement of the purpose of the evaluation that 
was appropriate and reasonable), but the parents did not make the child 
available for the evaluation; or
    (3) Upon a judicial finding of unreasonableness with respect to 
actions taken by the parents.
    (e) Exception. Notwithstanding the notice requirement in paragraph 
(d)(1) of this section, the cost of reimbursement 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


Sec. 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 Secs. 300.400-300.402.

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


Sec. 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 Secs. 300.125 and 300.220.

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


Sec. 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 Secs. 300.453-300.462.

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


Sec. 300.453  Expenditures.

    To meet the requirement of Sec. 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.


Sec. 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 Secs. 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 Sec. 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 Sec. 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 Secs. 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))


Sec. 300.455  Services provided.

    (a) Comparable services. The services provided private school 
children with disabilities must be comparable in

[[Page 55095]]

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 
Sec. 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 Secs. 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))


Sec. 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 religiously-affiliated 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 Sec. 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.


Sec. 300.457  Complaints.

    (a) Due process inapplicable. The procedures in Secs. 300.504-
300.515 do not apply to complaints that an LEA has failed to meet the 
requirements of Secs. 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 Secs. 300.451-300.462 may be filed under the 
procedures in Secs. 300.660-300.662.

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


Sec. 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))


Sec. 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))


Sec. 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 
Secs. 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))


Sec. 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))


Sec. 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


Sec. 300.480  By-pass--general.

    (a) The Secretary implements a by-pass 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 Secs. 300.452-300.462.
    (b) The Secretary waives the requirement of section 612(a)(10)(A) 
of the Act and of Secs. 300.452-300.462 if the Secretary implements a 
by-pass.

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


Sec. 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 by-pass;
    (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

[[Page 55096]]

    (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 
Secs. 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 Secs. 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 Secs. 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


Sec. 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))


Sec. 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))


Sec. 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))


Sec. 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))


Sec. 300.486  Filing requirements.

    (a) Any written submission under Secs. 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))


Sec. 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


Sec. 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 Secs. 300.500-
Sec. 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

[[Page 55097]]

    (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 
Secs. 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.


Sec. 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 Secs. 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 Sec. 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 Sec. 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 
Sec. 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))


Sec. 300.502  Independent educational evaluation.

    (a) General. (1) The parents of a child with a disability have the 
right under this part to obtain an independent educational evaluation 
of the child, subject to paragraphs (b) through (e) of this section.
    (2) Each public agency 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 
Sec. 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 Sec. 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 Sec. 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

[[Page 55098]]

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.


Sec. 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 Sec. 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 Secs. 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))


Sec. 300.504  Procedural safeguards notice.

    (a) General. A copy of the procedural safeguards available to the 
parents of a child with a disability must be given to the parents, 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 Sec. 300.507.
    (b) Contents. The procedural safeguards notice must include a full 
explanation of all of the procedural safeguards available under 
Secs. 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))


Sec. 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 Secs. 300.507-300.509, or the mediation procedures 
under Sec. 300.506 if appropriate, except to the extent inconsistent 
with State law relating to parental consent.
    (c) Failure to respond to request for reevaluation.

[[Page 55099]]

    (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 Secs. 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 Sec. 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.


Sec. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 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.


Sec. 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 Sec. 300.503(a)(1) and (2) (relating 
to the identification, evaluation or educational placement of a child 
with a disability, or the provision of FAPE to the child).

[[Page 55100]]

    (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 Sec. 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))


Sec. 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))


Sec. 300.509  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to 
Secs. 300.507 or 300.520--300.528, or an appeal conducted pursuant to 
Sec. 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 
Sec. 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 
Sec. 300.650; and
    (2) Make those findings and decisions available to the public.

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


Sec. 300.510  Finality of decision; appeal; impartial review.

    (a) Finality of decision. A decision made in a hearing conducted 
pursuant to Secs. 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 Sec. 300.512.

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

    (b) Appeal of decisions; impartial review.
    (1) General. If the hearing required by Sec. 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 Sec. 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

[[Page 55101]]

    (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 Sec. 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 
Sec. 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 Sec. 300.509 
relating to hearings also apply.


Sec. 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)


Sec. 300.512  Civil action.

    (a) General. Any party aggrieved by the findings and decision made 
under Secs. 300.507 or 300.520-300.528 who does not have the right to 
an appeal under Sec. 300.510(b)(2), and any party aggrieved by the 
findings and decision under Sec. 300.510(e), has the right to bring a 
civil action with respect to the complaint presented pursuant to 
Sec. 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 Secs. 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))


Sec. 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.


Sec. 300.514  Child's status during proceedings.

    (a) Except as provided in Sec. 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.


Sec. 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 Sec. 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

[[Page 55102]]

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))


Sec. 300.516  [Reserved]


Sec. 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


Sec. 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.


Sec. 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 Sec. 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))


Sec. 300.522  Determination of setting.

    (a) General. The alternative educational setting referred to in 
Secs. 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 Sec. 300.520 or 300.521 must--

[[Page 55103]]

    (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 Sec. 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))


Sec. 300.523  Manifestation determination review.

    (a) General. If an action is contemplated as described in 
Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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.


Sec. 300.524  Determination that behavior was not manifestation of 
disability.

    (a) General. If the result of the review described in Sec. 300.523 
is a determination, consistent with Sec. 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 Sec. 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 
Sec. 300.526, whichever applies.


Sec. 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 Sec. 300.523(e).
    (2) In reviewing a decision under Sec. 300.520(a)(2) to place the 
child in an interim alternative educational setting, the hearing 
officer shall apply the standards in Sec. 300.521.

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


Sec. 300.526  Placement during appeals.

    (a) General. If a parent requests a hearing regarding a 
disciplinary action

[[Page 55104]]

described in Sec. 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 Sec. 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--Sec. 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 Sec. 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.


Sec. 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 
Secs. 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 Secs. 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 Sec. 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 Secs. 300.520-
300.529 and section 612(a)(1)(A) of the Act.

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


Sec. 300.528  Expedited due process hearings.

    (a) Expedited due process hearings under Secs. 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 Sec. 300.508, except that a State may 
provide that the time periods identified in Sec. 300.509(a)(3) and 
Sec. 300.509(b) for purposes of expedited due process hearings under 
Secs. 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 Sec. 300.508.
    (b) A State may establish different procedural rules for expedited 
hearings under Secs. 300.521-300.526 than it has established for due 
process hearings under Sec. 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))


Sec. 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


Sec. 300.530  General.

    Each SEA shall ensure that each public agency establishes and 
implements procedures that meet the requirements of Secs. 300.530-
300.536.

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


Sec. 300.531  Initial evaluation.

    Each public agency shall conduct a full and individual initial 
evaluation, in accordance with Secs. 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))


Sec. 300.532  Evaluation procedures.

    Each public agency shall ensure, at a minimum, that--

[[Page 55105]]

    (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 
Sec. 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 Sec. 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.


Sec. 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 
Sec. 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 Sec. 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 
Sec. 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 Sec. 300.7, and to determine whether the child needs special 
education and related services. The composition of the team will

[[Page 55106]]

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.


Sec. 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 Sec. 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 Secs. 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))


Sec. 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 Sec. 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 Secs. 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 Sec. 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.


Sec. 300.536  Reevaluation.

    Each public agency shall ensure--
    (a) That the IEP of each child with a disability is reviewed in 
accordance with Secs. 300.340-300.350; and
    (b) That a reevaluation of each child, in accordance with 
Secs. 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


Sec. 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 
Sec. 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)


Sec. 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)


Sec. 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)


Sec. 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 Sec. 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


Sec. 300.550  General.

    (a) A State shall demonstrate to the satisfaction of the Secretary 
that the

[[Page 55107]]

State has in effect policies and procedures to ensure that it meets the 
requirements of Secs. 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))


Sec. 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 Sec. 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.


Sec. 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 Secs. 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 
Sec. 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 Sec. 300.552, as well as the other 
requirements of Secs. 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 Sec. 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 Secs. 300.550-300.556. For these public agencies, some 
alternative methods for meeting the requirements of Secs. 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 Secs. 300.340-300.351 and Secs. 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.


Sec. 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 Sec. 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.)


Sec. 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 
Sec. 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

[[Page 55108]]

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.


Sec. 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 Sec. 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))


Sec. 300.556  Monitoring activities.

    (a) The SEA shall carry out activities to ensure that Sec. 300.550 
is implemented by each public agency.
    (b) If there is evidence that a public agency makes placements that 
are inconsistent with Sec. 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


Sec. 300.560  Definitions.

    As used in Secs. 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))


Sec. 300.561  Notice to parents.

    (a) The SEA shall give notice that is adequate to fully inform 
parents about the requirements of Sec. 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))


Sec. 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))


Sec. 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))


Sec. 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))


Sec. 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))


Sec. 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))


Sec. 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 Sec. 300.568.

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


Sec. 300.568  Opportunity for a hearing.

    The agency shall, on request, provide an opportunity for a hearing 
to

[[Page 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))


Sec. 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))


Sec. 300.570  Hearing procedures.

    A hearing held under Sec. 300.568 must be conducted according to 
the procedures under 34 CFR 99.22.

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


Sec. 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))


Sec. 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 Sec. 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))


Sec. 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 Sec. 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.


Sec. 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 Sec. 300.517, the rights regarding educational 
records in Secs. 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.


Sec. 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))


Sec. 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))


Sec. 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


Sec. 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.


[[Page 55110]]


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


Sec. 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))


Sec. 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))


Sec. 300.583  Hearing procedures.

    (a) As used in Secs. 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 cross-examination 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.

[[Page 55111]]

    (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))


Sec. 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 Sec. 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))


Sec. 300.585  Filing requirements.

    (a) Any written submission under Secs. 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))


Sec. 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))


Sec. 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 
Secs. 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.

[[Page 55112]]

    (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 Sec. 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.


Secs. 300.588  [Reserved]


Sec. 300.589  Waiver of requirement regarding supplementing and not 
supplanting with Part B funds.

    (a) Except as provided under Secs. 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 
Sec. 300.602 without regard to the prohibition on supplanting other 
funds (See Sec. 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 Sec. 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 Sec. 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 Secs. 300.660-300.662; 
and
    (D) The State's hearing procedures under Secs. 300.507-300.511 and 
300.520-300.528;
    (3) A summary of all State and Federal monitoring reports, and 
State complaint decisions (see Secs. 300.660-300.662) and hearing 
decisions (see Secs. 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 Sec. 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 Sec. 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


Sec. 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

[[Page 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 Sec. 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.


Sec. 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))


Sec. 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 
Secs. 300.620 and 300.621 and other State-level activities in 
accordance with Sec. 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


Sec. 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 Sec. 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))


Sec. 300.621  Allowable costs.

    (a) The SEA may use funds under Sec. 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 Sec. 300.620 
in accordance with Sec. 300.370.

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


Sec. 300.622  Subgrants to LEAs for capacity-building 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 Sec. 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 State-operated or State-
supported schools, and children in charter schools.
    (b) Addressing needs or carrying out improvement strategies 
identified in the

[[Page 55114]]

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 problem-solving between parents and 
school personnel and promoting the use of alternative dispute 
resolution.

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


Sec. 300.623  Amount required for subgrants to LEAs.

    For each fiscal year, the amount referred to in Sec. 300.622 is--
    (a) The maximum amount the State was allowed to retain under 
Sec. 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 
Sec. 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 set-aside for these grants will be 
zero. However, States may always use, at their discretion, funds 
reserved for State-level activities under Sec. 300.602 for these 
subgrants.


Sec. 300.624  State discretion in awarding subgrants.

    The State may establish priorities in awarding subgrants under 
Sec. 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


Sec. 300.650  Establishment of advisory panels.

    (a) Each State shall establish and maintain, in accordance with 
Secs. 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 Sec. 300.652, the State may modify the existing panel so 
that it fulfills all of the requirements of Secs. 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 Secs. 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 Sec. 300.600(d), a State assigns general supervision 
responsibility for those students to a public agency other than an 
SEA.


Sec. 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))


Sec. 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))


Sec. 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 Sec. 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 Sec. 300.620 for this purpose.

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

State Complaint Procedures


Sec. 300.660  Adoption of State complaint procedures.

    Each SEA shall adopt written procedures for--

[[Page 55115]]

    (a) Resolving any complaint that meets the requirements of 
Sec. 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 Secs. 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.


Sec. 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 Sec. 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 Sec. 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.


Sec. 300.662  Filing a complaint.

    (a) An organization or individual may file a signed written 
complaint under the procedures described in Secs. 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 Sec. 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 
Sec. 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


Sec. 300.700  Special definition of the term ``State''.

    For the purposes of Secs. 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))


Sec. 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))


Sec. 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))


Sec. 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 Secs. 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 Secs. 300.704-
300.705 or 300.706-300.709.
    (b) Interim formula. Except as provided in Secs. 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))

[[Page 55116]]

Secs. 300.704-300.705  [Reserved]


Sec. 300.706  Permanent formula.

    (a) Establishment of base year. The Secretary allocates the amount 
described in Sec. 300.703(a) among the States in accordance with 
Secs. 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 Secs. 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))


Sec. 300.707  Increase in funds.

    If the amount available for allocations to States under 
Sec. 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 Sec. 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))


Sec. 300.708  Limitation.

    (a) Notwithstanding Sec. 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 Sec. 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 
Sec. 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))


Sec. 300.709  Decrease in funds.

    If the amount available for allocations to States under 
Sec. 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))


Sec. 300.710  Allocation for State in which by-pass is implemented for 
private school children with disabilities.

    In determining the allocation under Secs. 300.700--300.709 of a 
State in which the Secretary will implement a by-pass for private 
school children with disabilities under Secs. 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 
Secs. 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))


Sec. 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 Sec. 300.712 any 
funds it does not retain under Sec. 300.602 and is not required to 
distribute under Secs. 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))


Sec. 300.712  Allocations to LEAs.

    (a) Interim procedure. For each fiscal year for which funds are 
allocated to States under Sec. 300.703(b) each State shall allocate 
funds under Sec. 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 Secs. 300.706-300.709, each State shall 
allocate funds under Sec. 300.711 as follows:
    (1) Base payments. The State first shall award each agency 
described in Sec. 300.711 the amount that agency would have received 
under this section for the base year, as defined in Sec. 300.706(b)(1), 
if the State had distributed 75 percent of its grant for that year 
under section Sec. 300.703(b).

[[Page 55117]]

    (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.


Sec. 300.713  Former Chapter 1 State agencies.

    (a) To the extent necessary, the State--
    (1) Shall use funds that are available under Sec. 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 Sec. 300.602(a) and funds 
provided under Sec. 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 State-operated or State-supported school or program 
assisted under that subpart receives, from the combination of funds 
available under Sec. 300.602(a) and funds provided under Sec. 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))


Sec. 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))


Sec. 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 Sec. 300.260.

(Authority: 20 U.S.C. 1411(c); 1411(i)(1) (A) and (B))


Sec. 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 Self-Determination 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 Sec. 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

[[Page 55118]]

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))


Sec. 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 Sec. 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))


Sec. 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))


Sec. 300.719  Limitation for freely associated States.

    (a) Competitive grants. The Secretary uses funds described in 
Sec. 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 Sec. 300.719 unless it receives assistance 
under Sec. 300.717(a).

(Authority: 20 U.S.C. 1411(b)(2) and (3))


Sec. 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))


Sec. 300.721  [Reserved]


Sec. 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


Sec. 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.


Sec. 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 Sec. 300.7; and

[[Page 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 
``deaf-blindness.''
    (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))


Sec. 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))


Sec. 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 
Sec. 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.


Sec. 300.754  Annual report of children served--other responsibilities 
of the State education agency.

    In addition to meeting the other requirements of Secs. 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 Sec. 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 Secs. 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.


Sec. 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))


Sec. 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

[[Page 55120]]

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


Sec. 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-year-old children with 
disabilities who will turn three during the school year.

(Authority: 20 U.S.C. 1419(a))


Secs. 301.2-301.3  [Reserved]


Sec. 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 Secs. 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)


Sec. 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)


Sec. 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


Sec. 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))


Sec. 301.11  [Reserved]


Sec. 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


Sec. 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 Secs. 301.21-301.23.

(Authority: 20 U.S.C. 1419(c)(1))

[[Page 55121]]

Sec. 301.21  Increase in funds.

    If the amount available for allocation to States under Sec. 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 Sec. 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))


Sec. 301.22  Limitation.

    (a) Notwithstanding Sec. 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 Sec. 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 
Sec. 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))


Sec. 301.23  Decrease in funds.

    If the amount available for allocations to States under Sec. 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))


Sec. 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 Secs. 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))


Sec. 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 
Sec. 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))


Sec. 301.26  Use of State agency allocations.

    Each State shall use any funds it retains under Sec. 301.24 and 
does not use for administration under Sec. 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

[[Page 55122]]

and develop a statewide comprehensive delivery system for children 
with disabilities aged birth through five.

Subpart D--Allocation of funds to local educational agencies.


Sec. 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 
Sec. 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))


Sec. 301.31  Allocations to local educational agencies.

    (a) Base payments. The State shall first award each agency 
described in Sec. 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.


Sec. 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-year-old children with disabilities receiving 
services consistent with Sec. 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:


Sec. 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 Sec. 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:


Sec. 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 Secs. 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:


Sec. 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 Secs. 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

[[Page 55123]]

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:


Sec. 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:


Sec. 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 Sec. 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:


Sec. 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 
Sec. 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. 
[Sec. 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.)

[[Page 55124]]

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 
Sec. 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 
Secs. 300.550-300.553, which include requirements that:
    (1) Each child with a disability be educated with nondisabled 
children to the maximum extent appropriate (Sec. 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 (Sec. 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 
(Sec. 300.553).

Participation in State or Districtwide Assessments of Student 
Achievement

    Consistent with Sec. 300.138(a), which sets forth a presumption 
that children with disabilities will be included in general State-
and district-wide assessment programs, and provided with appropriate 
accommodations if necessary, Sec. 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 
Sec. 300.344(a)(2)). (See also Secs. 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, Sec. 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 
Secs. 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 non-disabled children, then the requirements of 
Secs. 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

[[Page 55125]]

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'' 
(Sec. 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 (Sec. 300.533(a)(1)); their child's eligibility 
(Sec. 300.534(a)(1)); and the educational placement of their child 
(Sec. 300.501(c)). Parents' concerns, and information that they 
provide regarding their children, must be considered in developing 
and reviewing their children's IEPs (Secs. 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 (Sec. 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 post-school 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'' 
(Sec. 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 (Sec. 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 (Sec. 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 (Sec. 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 (Sec. 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 (Secs. 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 (Sec. 300.533(a)(1)), 
and determine their child's eligibility (Sec. 300.534(a)(1)) and 
educational placement (Sec. 300.501(c));
    (c) Have their concerns and information that they provide 
regarding their child considered in developing and reviewing their 
child's IEPs (Secs. 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 (Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 300.344(a)(6)).
    In other circumstances, the child may attend ``if appropriate.'' 
(Sec. 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 Sec. 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.'' (Sec. 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 * * *'' (Sec. 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 
(Secs. 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

[[Page 55126]]

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, Sec. 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 * * *'' (Sec. 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 (Sec. 300.347(b)(1)(i)),'' and a statement of 
needed transition services'' no later than age 16 
(Sec. 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)'' 
(Sec. 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 * * *'' (Sec. 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 
Sec. 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 
Sec. 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 Sec. 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 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. (Section 
Sec. 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 Sec. 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 Sec. 300.347(b)(1)(i) requires that the IEP team 
begin by age 14 to address the

[[Page 55127]]

student's need for instruction that will assist the student to 
prepare for transition, Sec. 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 Sec. 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, Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 [Sec. 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 
Sec. 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 Sec. 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

[[Page 55128]]

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 Sec. 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 
Sec. 300.345, and including the required team participants, 
consistent with the requirements of Sec. 300.344; and (2) the 
requirements of Sec. 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 (Sec. 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 (Sec. 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 Sec. 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 video-tape-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 
(Secs. 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 (Sec. 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

[[Page 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 (Sec. 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 (Sec. 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 Sec. 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 speech-language 
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 * * * '' (Sec. 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 
(Sec. 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, Sec. 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 Sec. 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.

[[Page 55130]]

    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 Sec. 300.16?
    The Note following Sec. 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    Comparable proposed regulatory section                                  
              section No.                        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.      

[[Page 55131]]

                                                                                                                
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.'')        

[[Page 55132]]

                                                                                                                
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.         

[[Page 55133]]

                                                                                                                
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 Secs.  300.500 and   
                                                                                 300.501, and retitled ``General
                                                                                 responsibility of public       
                                                                                 agencies; definitions.'')      
300.501...............................  300.500...............................  General responsibility of public
                                                                                 agencies. (Combined Secs.      
                                                                                 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 Secs.  300.509 and   
                                                                                 300.510, and retitled          
                                                                                 ``Finality of decision; appeal;
                                                                                 impartial review.'')           
300.510...............................  300.510...............................  Administrative appeal; impartial
                                                                                 review. (Combined Secs.        
                                                                                 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 Sec.  300.534               
                                                                                 (``Determination of            
                                                                                 eligibility'') and Sec.        
                                                                                 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.                  

[[Page 55134]]

                                                                                                                
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 Secs.  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    
                                                                                 Secs.  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 Sec.  
                                                                                 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 Sec.  
                                                                                 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.'')       

[[Page 55135]]

                                                                                                                
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 Secs.  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].                      
----------------------------------------------------------------------------------------------------------------
\1\ The 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


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