Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 2565

processing of agricultural or

horticultural commodities.

* * * * *

27. Section 1952.345 is amended by

revising paragraph (b) to read as follows:

§ 1952.345 Level of Federal enforcement.

* * * * *

(b) In accordance with section 18(e),

final approval relinquishes Federal

OSHA authority only with regard to

occupational safety and health issues

covered by the Wyoming plan. OSHA

retains full authority over issues which

are not subject to State enforcement

under the plan. Thus, Federal OSHA

retains its authority relative to safety

and health in private sector maritime

activities and will continue to enforce

all provisions of the Act, Federal

standards, rules, or orders, and all

Federal standards, current or future,

specifically directed to maritime

employment (29 CFR Part 1915,

shipyard employment; Part 1917,

marine terminals; Part 1918,

longshoring; Part 1919, gear

certification) as well as provisions of

general industry standards (29 CFR Part

1910) appropriate to hazards found in

these employments. Federal jurisdiction

is retained and exercised by the

Employment Standards Administration,

U.S. Department of Labor, (Secretary’s

Order 5–96, dated December 27, 1996)

with respect to the field sanitation

standard, 29 CFR 1928.110; and the

enforcement of the temporary labor

camps standard, 29 CFR 1910.142, in

agriculture, as described in

§ 1952.344(b). Federal jurisdiction is

also retained for employment at Warren

Air Force Base and at private-sector

hazardous-waste disposal facilities

designated as Superfund sites as well as

with respect to Federal government

employers and employees. In addition,

any hazard, industry, geographical area,

operation or facility over which the

State is unable to effectively exercise

jurisdiction for reasons not related to

the required performance or structure of

the plan shall be deemed to be an issue

not covered by the finally approved

plan, and shall be subject to Federal

enforcement. Where enforcement

jurisdiction is shared between Federal

and State authorities for a particular

area, project, or facility, in the interest

of administrative practicability, Federal

jurisdiction may be assumed over the

entire project or facility. In either of the

two aforementioned circumstances,

Federal enforcement may be exercised

immediately upon agreement between

Federal and State OSHA.

* * * * *

28. Section 1952.347 is amended by

adding paragraph (d) to read as follows:

§ 1952.347 Changes to approved plans.

* * * * *

(d) Temporary Labor Camps/Field

Sanitation. Effective February 3, 1997,

the Assistant Secretary approved

Wyoming’s plan amendment, dated July

19, 1996, relinquishing coverage for the

issues of field sanitation (29 CFR

1928.110) and temporary labor camps

(29 CFR 1910.142) in agriculture (except

for agricultural temporary labor camps

associated with egg, poultry or red meat

production, or the post-harvest

processing of agricultural or

horticultural commodities.) The

Employment Standards Administration,

U.S. Department of Labor, has assumed

responsibility for enforcement of these

Federal OSHA standards in agriculture

in Wyoming pursuant to Secretary of

Labor’s Order 5–96, dated December 27,

1996.

[FR Doc. 97–1028 Filed 1–16–97; 8:45 am]

BILLING CODE 4510–26–P

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 57

[DoD Instruction 1342.12]

Provision of Early Intervention and

Special Education Services to Eligible

DOD Dependents in Overseas Areas

AGENCY: Department of Defense.

ACTION: Final rule.

SUMMARY: Prior to 1991, the Department

of Defense Dependents Schools (DoDDS)

was required by the ‘‘Defense

Dependent’s Education Act of 1978,’’ as

amended, to adhere to the provisions of

the ‘‘Education of All Handicapped

Children Act.’’ With the enactment of

‘‘Individuals with Disabilities Education

Act Amendments of 1991,’’ the

Department of Defense was required to

modify its existing special education

program for children with disabilities,

ages 3 through 21, and to provide early

intervention services to children birth

through 2 years. This final rule assigns

responsibility for the implementation of

the Act to the Under Secretary of

Defense for Personnel and Readiness,

reflecting a reorganization of the

Department of Defense; assigns

responsibilities for duties previously

assigned to Regional Directors to Area

Superintendents, reflecting a

reorganization of the DoDDS; requires

DoD to provide early intervention

services to children with disabilities

from birth through 2 years of age,

requires DoDDS to extend special

education services to students from 3

through 21 years of age rather than from

5 through 21; expands the categories of

disability to include both autism and

traumatic brain injury; expands special

education services to include both

assistive technology and transition;

expands the role of the DoD

Coordinating Committee to include

early intervention as well as special

education and related services;

establishes a DoD Inter-Component

Coordinating Council on Early

Intervention; expands the definition

section to include terminology not

contained in the previous part; and

transfers the administrative

responsibility for conducting hearings

pursuant to this rule to the Defense

Office of Hearings and Appeals.

EFFECTIVE DATE: March 12, 1996.

FOR FURTHER INFORMATION CONTACT: Dr.

Rebecca Posante, DOD, Office of Family

Policy, 4015 Wilson Blvd, BCT #3,

Arlington, VA 22203–5190, 703–696–

5734.

SUPPLEMENTARY INFORMATION: On May

31, 1995 (60 FR 28362), the Department

of Defense published a proposed rule.

Written comments were invited and due

by July 31, 1995. In response to this

invitation, six individuals and

organizations submitted comments. In

addition, pursuant to a notice appearing

in the Federal Register on July 13, 1995

(60 FR 36081), DoD conducted a public

hearing concerning the proposed rule on

August 4, 1995. All written comments

and the transcript of the public hearing

are available for public inspection in the

DoD Office of Family Policy at the above

address.

The Office of the Secretary of Defense

has carefully considered the views of

the public as reflected in the written

comments and testimony at the public

hearing. A description of these views

and a discussion of the Department’s

response to them follow.

General. One commenter noted that

the proposed rule did not contain a

reference to 29 U.S.C. 794, Section 504

of the Rehabilitation Act of 1973, as

amended. This section does not apply to

persons outside of the United States.

Therefore, the final rule will not include

a reference to it.

The same commenter noted that

reference should be made to the

Architectural Barriers Act of 1968. This

act is implemented in other regulatory

guidance, and therefore does not require

reference in this final rule.

One commenter recommended that

consideration be given to consolidating

the DoD Instructions that pertain to the
2566 Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations

1Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161.

2See footnote 1 to § 57.1(a).

Department’s overseas and domestic

schools’ special education and related

services programs. The underlying

statutory bases are different for the DoD

domestic and overseas schools and their

service delivery models are different.

Therefore, the Department will maintain

separate regulatory guidance.

Section 57.3. One commenter

recommended that the final rule include

the term ‘‘psychotherapy’’ in the

definition of psychological services. The

final rule uses the definition from the

U.S. Department of Education regulation

regarding special education. That

definition does not contain the term

‘‘psychotherapy;’’ therefore, this

recommendation was not accepted.

Section 57.3. One commenter

requested that the reference to early

intervention provided under the

supervision of a military health

department be changed to acknowledge

that early intervention services are not

necessarily health or medical in nature.

The final rule will not incorporate this

suggestion since the assignment of early

intervention to the military medical

departments was accomplished for

organizational efficiency.

The same commenter recommended

that reference in the definitions to

‘‘medically related services’’ might

confuse the supportive and educational

nature of occupational therapy in

schools and perpetuate a medical model

of services. The final rule will not

incorporate this recommendation.

Present practice in the DoD includes

occupational therapy and some other

types of related services under the

heading of medically related services

because these responsibilities were

assigned to the military medical

departments. The Department does not

believe that this has resulted in the use

of the medical model in the provision of

medically related services.

Appendix A, Section C.1.M. One

commenter noted that the definition for

‘‘developmental delay’’ contained in the

proposed rule included two criteria that

were not equivalent. In order to clarify

the intent of the criteria, the definition

was changed to the following. ‘‘C.1. The

child is experiencing a developmental

delay as measured by diagnostic

instruments and procedures of 2

standard deviations below the mean in

at least one area, or by a 25 percent

delay in at least one area on assessment

instruments that yield scores in months,

or a developmental delay of 1.5

standard deviations below the mean in

two or more areas, or by a 20 percent

delay on assessment instruments that

yield scores in months in two or more

of the following areas of development:

cognitive, physical, communication,

social or emotional, or adaptive.’’

Appendix B, Section B.1.(e). One

commenter recommended that the term

‘‘education’’ be defined for students

with disabilities to delineate clearly that

this is a broad concept including

socialization and life skills for more

involved students. The Final Rule will

not further define this term since DoD

guidance and practice include the

concept of education in the broadest

sense of the term.

Appendix B, Section 4. A commenter

noted that the frequency of the

reevaluation process should not be

limited to every three years, but should

occur each year. This section in the

proposed rule states that ‘‘a reevaluation

for eligibility must occur at least every

three years, or more frequently.’’

Evaluations to determine the need for

services may be completed at any time,

and progress reports on goals and

objectives must be developed at each

annual review. The final rule follows

the U.S. Department of Education

regulation regarding reevaluation.

Therefore, this recommendation will not

be incorporated in the final rule.

Appendix C, Appendix D, and

Appendix E. One commenter

recommended expanding the

membership on the National Advisory

Panel on the Education of Dependents

with Disabilities, the DoD Coordinating

Committee on Early Intervention,

Special Education and Related Services,

and the DoD Inter-Component

Coordinating Council on Early

Intervention to include individuals who

are knowledgeable of early intervention,

special education, and related services

in the States and who have experience

in providing those services to children

and their families. The proposed rule

conformed to the statutory requirements

of membership. Therefore, the

membership of the committees and

panel has not been changed in the final

rule.

Executive Order 12866, ‘‘Regulatory

Planning and Review’’

It has been determined that this final

rule will not be significant as defined by

Executive Order 12866.

Public Law 96–354, ‘‘Regulatory

Flexibility Act’’ (5 U.S.C. Chapter 6)

It has been determined that this final

rule will not have a significant

economic impact on substantial

numbers of small entities because it

affects only eligible DoD dependents in

overseas areas.

Public Law 96–511, ‘‘Paperwork

Reduction Act’’ (44 U.S.C. Chapter 44)

It has been certified that this final rule

will not impose any reporting and

recordkeeping requirements under the

Paperwork Reduction Act of 1995.

List of Subjects in 32 CFR Part 57

Education of individuals with

disabilities, Elementary and secondary

education, Government employees,

Military personnel.

Accordingly, 32 CFR part 57 is

revised to read as follows:

PART 57—PROVISION OF EARLY

INTERVENTION AND SPECIAL

EDUCATION SERVICES TO ELIGIBLE

DOD DEPENDENTS IN OVERSEAS

AREAS

Sec.

57.1 Purpose.

57.2 Applicability and scope.

57.3 Definitions.

57.4 Policy.

57.5 Responsibilities.

57.6 Procedures.

Appendix A to part 57—Procedures for the

Provision of Early Intervention Services

for Infants and Toddlers with Disabilities

and their Families

Appendix B to part 57—Procedures for

Education Programs and Services for

Children with Disabilities, Aged 3 to 21,

Inclusive

Appendix C to part 57—The National

Advisory Panel (NAP) on the Education

of Dependents with Disabilities

Appendix D to part 57—DoD Coordinating

Committee on Early Intervention, Special

Education, and Medically Related

Services

Appendix E to part 57—DoD InterComponent Coordinating Council (ICC)

on Early Intervention

Appendix F to part 57—Mediation and

Hearing Procedures

Authority: 20 U.S.C. 921 and 1400.

§ 57.1 Purpose.

This part:

(a) Implement policy and update

responsibilities and procedures under

20 U.S.C. 921–932, 20 U.S.C. 1400 et

seq., DoD Directive 1342.6 1, and DoD

Directive 1342.13 2 for providing the

following:

(1) A free appropriate public

education (FAPE) for children with

disabilities who are eligible to enroll in

the Department of Defense Dependent

Schools (DoDDS).

(2) Early intervention services for

infants and toddlers birth through age 2

years who, but for their age, would be

eligible to enroll in the DoDDS under

DoD Directive 1342.13.
Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 2567

3See footnote 1 to § 57.1(a).

4See footnote 1 to § 57.1(a).

5See footnote 1 to § 57.1(a).

6See footnote 1 to § 57.1(a).

7See footnote 1 to § 57.1(a).

(3) A comprehensive and

multidisciplinary program for early

intervention services for infants and

toddlers with disabilities and their

families.

(b) Establishes a National Advisory

Panel (NAP) on Education for Children

with Disabilities, ages 3 to 21, inclusive,

and a DoD Inter-Component Council

(ICC) on Early Intervention, in

accordance with DoD Directive 5105.4 3.

(c) Establishes a DoD Coordinating

Committee (DoD–CC) on Early

Intervention, Special Education, and

Medically Related Services (MRS).

(d) Authorizes implementing

instructions consistent with DoD

5025.1–M 4, and DoD forms consistent

with DoD 83201–M 5, DoD 8910.1–M 6,

and DoD Instruction 7750.7 7.

§ 57.2 Applicability and scope.

This part:

(a) Applies to the Office of the

Secretary of Defense, the Military

Departments, the Chairman of the Joint

Chiefs of Staff, the Unified Combatant

Commands, the Inspector General of the

Department of Defense, the Defense

Agencies, and the DoD Field Activities

(hereafter referred to collectively as ‘‘the

DoD Components’’).

(b) Does not apply to schools operated

by the Department of defense in the

United States, the District of Columbia,

the Commonwealth of Puerto Rico, the

Commonwealth of the Northern

Marianna Islands, and the possessions

of the United States (excluding the Trust

Territory of the Pacific Islands and

Midway Islands).

(c) Applies to infants, toddlers, and

children receiving or entitled to receive

early intervention services or special

educational instruction and related

services from the Department of

Defense, and their parents.

§ 57.3 Definitions.

Area superintendent. The

Superintendent of a DoDDS area, or

designee.

Assessment. Techniques, procedures,

and/or instruments used to measure the

individual components of an evaluation.

Assistive technology device. Any item,

piece of equipment, or product system

that is used to increase, maintain, or

improve functional capabilities of

children with disabilities.

Assistive technology service. Any

service that directly assists an

individual with a disability in the

selection, acquisition, or use of an

assistive technology device. That term

includes the following:

(1) The evaluation of the needs of an

individual with a disability, including a

functional evaluation in the individual’s

customary environment.

(2) Purchasing, leasing, or otherwise

providing for the acquisition of assistive

technology devices by individuals with

disabilities.

(3) Selecting, designing, fitting,

customizing, adapting, applying,

maintaining, repairing, or replacing

assistive technology devices.

(4) Coordinating and using other

therapies, interventions, or services

with assistive technology devices, such

as those associated with existing

educational and rehabilitative plans and

programs.

(5) Training or technical assistance for

an individual with disabilities, or, the

family of an individual with disabilities.

(6) Training or technical assistance for

professionals (including individuals

providing educational rehabilitative

services), employers, or other

individuals who provide services to

employ, or are otherwise substantially

involved in the major life functions of

an individual with a disability.

Audiology. A service that includes the

following:

(1) Identification of children with

auditory impairments.

(2) Determination of the range, nature,

and degree of hearing loss, and

communication functions including

referral for medical or other professional

attention for the habilitation of hearing.

(3) Provision of habilitative activities,

such as language habilitation, auditory

training, speech-reading (lip-reading),

hearing evaluation, and speech

conservation.

(4) Creation and administration of

programs for the prevention of hearing

loss.

(5) Counseling and guidance of pupils

for the prevention of hearing loss.

(6) Determination of the child’s need

for group and individual amplification,

selecting and fitting an aid, and

evaluating the effectiveness of

amplification.

Autism. A development disability

significantly affecting verbal and

nonverbal communication and social

interaction generally evident before age

3 that adversely affects educational

performance. That term does not

include a child with characteristics of

the disability termed ‘‘serious emotional

disturbance.’’

Case study committee (CSC). (1) A

school-level team comprised of, among

others, the principal, other educators,

parents, and MRS providers who do the

following:

(i) Oversee screening and referral of

children who may require special

education.

(ii) Oversee the multidisciplinary

evaluation of such children.

(iii) Determine the eligibility of the

student for special education and

related services.

(iv) Formulate an individualized

education curriculum reflected in an

Individualized Education Program (IEP),

in accordance with this part.

(v) Monitor the development, review,

and revision of IEPs.

(2) In addition to the required

members of the CSC, other membership

will vary depending on the purpose of

the meeting. An area CSC, appointed by

the DoDDS Area Superintendent, acts in

the absence of a school CSC. Members

of an area CSC may be assigned to

augment a school CSC. The area CSC

must have at least two members besides

the parent. One of the DoDDS members

must have the authority to commit

DoDDS resources; one shall be qualified

to provide, or supervise the provision of

special education. Other members may

be selected from the following groups:

(i) DoDDS regular education

personnel.

(ii) DoDDS special education

personnel.

(iii) MRS personnel.

Child-find. The ongoing process used

by the DoDDS, the Military

Departments, and the other DoD

Components to seek and identify

children from birth to age 21, inclusive,

who may require early intervention

services or special education and related

services. Child-find activities include

the dissemination of information to the

public, the identification and screening

of children, and the use of referral

procedures.

Children with disabilities (ages 3 To

21, inclusive). Children, before

graduation from high school or

completion of the General Education

Degree, who have one or more

impairments, as determined by a CSC

and who need special education and

related services.

Consent. That term means the

following:

(1) The parent is fully informed of all

information about the activity for which

consent is sought in the native language

or in another mode of communication,

if necessary.

(2) The parent understands and agrees

in writing to the implementation of the

activity for which permission is sought.

That consent describes the activity, lists

the child’s records (if any) to be released

outside the Department of Defense, and

specifies to whom the records shall be

sent. The signed consent acknowledges
2568 Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations

the parent’s understanding that the

parental consent is voluntary and may

be revoked at any time.

Counseling service. A service

provided by a qualified social worker,

psychologist, guidance counselor, or

other qualified personnel.

Deaf-blindness. Concomitant hearing

and visual impairments. That disability

causes such severe communication,

developmental, and educational

problems that it cannot be

accommodated in special education

programs solely for children with

deafness or blindness.

Deafness. A severe hearing loss or

deficit that impairs a child’s ability to

process linguistic information through

hearing, with or without amplification,

and affects the educational performance

adversely.

Developmental delay. That term

means the following:

(1) A significant discrepancy in the

actual functioning of an infant, toddler,

or child, birth through age 5, when

compared with the functioning of a

nondisabled infant, toddler, or child of

the same chronological age in any of the

following areas: physical, cognitive,

communication, social or emotional,

and adaptive developmental as

measured using standardized evaluation

instruments and confirmed by clinical

observation and judgment.

(2) High probability for developmental

delay. An infant or toddler, birth

through age 2, with a diagnosed

physical or mental condition, such as

chromosomal disorders and genetic

syndromes, that places the infant or

toddler at substantial risk of evidencing

a developmental delay without the

benefit of early intervention services.

Early identification. The

implementation of a formal plan for

identifying a disability as early as

possible in a child’s life.

Early intervention services. (1)

Developmental services that meet the

following criteria:

(i) Are provided under the

supervision of a Military medical

Department.

(ii) Are provided using Military

Health Services System resources at no

cost to the parents. Parents may be

charged in those instances where

Federal law provides for a system of

payments by families including a

schedule of sliding fees, if any, (and

incidental fees identified in Service

guidance) that are normally charged to

infants, toddlers, and children without

disabilities or to their parents.

(iii) Are designed to meet the

developmental needs of an infant or

toddler with a disability in any one or

more of the following areas:

(A) Physical.

(B) Cognitive.

(C) Communication.

(D) Social or emotional.

(E) Adaptive development.

(iv) Meet the standards developed or

adopted by the Department of Defense.

(v) Are provided by qualified

personnel including early childhood

special educators, speech and language

pathologists and audiologists,

occupational therapists, physical

therapists, psychologists, social

workers, nurses, nutritionists, family

therapists, orientation and mobility

specialists, and pediatricians and other

physicians.

(vi) Maximally, are provided in

natural environments including the

home and community settings where

infants and toddlers without disabilities

participate.

(vii) Are provided in conformity with

an Individualized Family Service Plan

(IFSP).

(2) Developmental services include,

but are not limited to, the following

services: family training, counseling,

and home visits; special instruction;

speech pathology and audiology;

occupational therapy; physical therapy;

psychological services; service

coordination services; medical services

only for diagnostic or evaluation

purposes; early identification, screening

and assessment services; vision services;

and social work services. Also included

are assistive technology devices and

assistive technology services; health

services necessary to enable the infant

or toddler to benefit from the above

early intervention services; and

transportation and related costs

necessary to enable an infant or toddler

and the family to receive early

intervention services.

Eligible. The term refers to children

who meet the age, command

sponsorship, and dependency

requirements established by the DDEA,

as amended, 20 U.S.C. 921 et seq. and

DoD Directive 1342.13. When those

conditions are met, children without

disabilities, ages 5 to 21, and children

with disabilities, ages 3 to 21, inclusive,

are authorized to receive educational

instruction from the DoDDS.

Additionally, an eligible infant or

toddler with disabilities is a child from

birth through age 2 years who meets all

of the DoDDS eligibility requirements

except for the age requirement. In

school year 1994 through 1995,

multidisciplinary assessments, IFSPs,

and case management services shall be

required and beginning in school year

1995 through 1996, an eligible infant or

toddler is entitled to receive early

intervention services, in accordance

with 20 U.S.C. 1400 et seq.

Evaluation. The synthesis of

assessment information by a

multidisciplinary team used to

determine whether a particular child

has a disability, the type and extent of

the disability, and the child’s eligibility

to receive early intervention or special

education and/or related services.

Family training, counseling, and

home visits. Services provided by social

workers, psychologists, and other

qualified personnel to assist the family

of an infant or toddler eligible for early

intervention services. Those services

assist a family in understanding the

special needs of the child and

enhancing the child’s development.

Free appropriate public education

(FAPE). Special education and related

services that do the following:

(1) Are provided at no cost to parents

of a child with a disability, and are

under the general supervision and

direction of the DoDDS.

(2) Are provided in the least

restrictive environment at a preschool,

elementary, or secondary school.

(3) Are provided in conformity with

an IEP.

(4) Meet the requirements of this part.

Functional vocational evaluation. A

student-centered appraisal process for

vocational development and career

decision making. It allows students,

educators, and others to gather

information about such development

and decision making. Functional

vocational evaluation activities for

transitional, vocational, and career

planning; instructional goals; objectives;

and implementation.

Health services. Services necessary to

enable an infant or toddler to benefit

from the other early intervention

services being received under this part.

That term includes the following:

(1) Services such as clean intermittent

catheterization, tracheotomy care, tube

feeding, changing of dressings or

colostomy collection bags, and other

health services.

(2) Consultation by physicians with

other service providers about the special

healthcare needs of infants and toddlers

with disabilities that shall need to be

addressed in the course of providing

other early intervention services.

(3) That term does not include the

following:

(i) Services that are surgical or solely

medical.

(ii) Devices necessary to control or

treat a medical condition.

(iii) Medical or health services

routinely recommended for all infants

or toddlers.

Hearing impairment. An impairment

in hearing, whether permanent or
Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 2569

fluctuating, which adversely affects a

child’s educational performance, but is

not included under deafness.

Independent evaluation. An

evaluation conducted by a qualified

examiner who is not employed by the

DoDDS.

Individualized education program

(IEP). A written document defining

specially designed instruction for a

student with a disability, ages 3 to 21,

inclusive. That document is developed

and implemented, in accordance with

this part.

Individualized family service plan

(IFSP). A written document for an infant

or toddler, age birth through 2, with a

disability and the family of such infant

or toddler that is based on a

multidisciplinary assessment of the

unique needs of the child and concerns

and priorities of the family, and

identifies the early intervention and

other services appropriate to meet such

needs, concerns, and priorities.

Infants and toddlers with disabilities.

Children, ages birth through 2, who

need early intervention services because

they:

(1) Are experiencing a developmental

delay; or,

(2) Have a diagnosed physical or

mental condition that has high

probability of resulting in a

developmental delay.

Inter-component. Cooperation among

DoD organizations and programs,

ensuring coordination and integration of

services to infants, toddlers, children

with disabilities and to their families.

Medical services. Those evaluative,

diagnostic, therapeutic, and supervisory

services provided by a licensed and /or

credentialed physician to assist CSCs

and to implement IEPs. Medical services

include diagnosis, evaluation, and

medical supervision of related services

that, by statute, regulation, or

professional tradition, are the

responsibility of a licensed and

credentialed physician.

Medically related services. (1) Medical

services (as defined in definition

‘‘Medical services’’) are those services

provided under professional medical

supervision, which are required by a

CSC to determine a student’s eligibility

for special education and, if the student

is eligible, the special education and

related services required by the student

under this part.

(2) Direct or indirect services under

the development or implementation of

an IEP necessary for the student to

benefit from the educational

curriculum. Those services may include

medical services for diagnostic or

evaluative purpose, social work,

community health nursing, dietary,

occupational therapy, physical therapy,

audiology, ophthalmology, and

psychological testing and therapy.

Meetings. All parties attending a

meeting to determine eligibility or

placement of a child shall appear

personally at the meeting site on

issuance of written notice and

establishment of a date convenient to

the concerned parties. When a necessary

participant is unable to attend,

electronic communication suitable to

the occasion may be used to involve the

unavailable party. Parents generally

shall be responsible for the cost of travel

to personally attend meetings about the

eligibility or placement of their child.

Mental retardation. Significantly

subaverage general intellectual

functioning, existing concurrently with

deficits in adaptive behavior. That

disability is manifested during the

developmental period and adversely

affects a child’s educational

performance.

Multidisciplinary. The involvement of

two or more disciplines or professions

in the integration and coordination of

services, including evaluation and

assessment activities, and development

of an IFSP or an IEP.

Native language. When used with

reference to an individual of limited

English proficiency, the home language

normally used by such individuals, or

in the case of a child, the language

normally used by the parent of the

child.

Natural environments. Settings that

are natural or normal (e.g., home or day

care setting) for the infant, toddler, or

child’s same-age peers who have no

disability.

Non-DoDDS placement. An

assignment by the DoDDS of a child

with a disability to a non-DoDDS school

or facility.

Non-DoDDS school or facility. A

public or private school or other

institution not operated by the DoDDS.

Nutrition services. Those services to

infants and toddlers include the

following:

(1) Conducting individual

assessments in nutritional history and

dietary intake; anthropometric,

biochemical, and clinical variables;

feeding skills and feeding problems; and

food habits and food preferences.

(2) Developing and monitoring plans

to address the nutritional needs of

infants and toddlers eligible for early

intervention services.

(3) Making referrals to community

resources to carry out nutrition goals.

Occupational therapy. That term

includes services to address the

functional needs of children (birth to

age 21, inclusive) related to adaptive

development; adaptive behavior and

play; and sensory, motor, and postural

development. Those services are

designed to improve the child’s

functional ability to perform tasks in

home, school, and community settings,

and include the following:

(1) Identification, assessment, and

intervention.

(2) Adaption of the environment and

selection, design, and fabrication of

assistive and orthotic devices to help

development and promote the

acquisition of functional skills.

(3) Prevention or minimization of the

impact of initial or future impairment,

delay in development, or loss of

functional ability.

Orthopedic impairment. A severe

physical impairment that adversely

affects a child’s educational

performance. That term includes

congenital impairments such as club

foot or absence of some member;

impairments caused by disease, such as

poliomyelitis and bone tuberculosis,

and impairments from other causes such

as cerebra palsy, amputations, and

fractures or burns causing contractures.

Other health impairment. Limited

strength, vitality, or alterness due to

chronic or acute health problems that

adversely affect a child’s educational

performance. Such impairments include

heart condition, tuberculosis, rheumatic

fever, nephritis, asthma, sickle cell

anemia, hemophilia, seizure disorder,

lead poisoning, leukemia, diabetes, or

attention deficit disorder.

Parent. The biological father or

mother of a child; a person who, by

order of a court of competent

jurisdiction, has been declared the

father or mother of a child by adoption;

the legal guardian of a child; or a person

in whose household a child resides, if

such person stands in loco parentis to

that child and contributes at least onehalf of the child’s support.

Parent counseling and training. A

service to assist parents in

understanding the special needs of their

child’s development and by providing

them with information on child

development and special education.

Personally identifiable information.

Information that would make it possible

to identify the infant, toddler, or child

with reasonable certainty. Examples

include name, parent’s name, address,

social security number, or a list of

personal characteristics.

Physical therapy. That term includes

services to children (birth to age 21,

inclusive) to address the promotion of

sensorimotor function through

enhancement of musculoskeletal status,

neurobehavioral organization,

perceptual and motor development,
2570 Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations

cardiopulmonary status, and effective

environmental adaption. Those services

include the following:

(1) Screening, evaluation, and

assessment to identify movement

dysfunction.

(2) Obtaining, interpreting, and

integrating information to appropriate

program planning to prevent, alleviate,

or compensate for movement

dysfunction and related functional

problems.

(3) Providing individual and group

services or treatment to prevent,

alleviate, or compensate for movement

dysfunction and related functional

problems.

Primary referral source. Parents and

the DoD Components, including child

development centers, pediatric clinics,

and newborn nurseries, that suspect an

infant or toddler has a disability and

brings the child to the attention of the

EIP.

Psychological services. A service that

includes the following:

(1) Administering psychological and

educational tests and other assessment

procedures.

(2) Interpreting test and assessment

results.

(3) Obtaining, integrating, and

interpreting information about a child’s

behavior and conditions to learning.

(4) Consulting with other staff

members, including service providers,

to plan programs to meet the special

needs of children, as indicated by

psychological tests, interviews, and

behavioral evaluations.

(5) Planning and managing a program

of psychological services, including

psychological counseling for children

and parents, family counseling,

consultation on child development,

parent training, and education

programs.

Public awareness program. Activities

or print materials focusing on early

identification of infants and toddlers

with disabilities. Materials may include

information prepared and disseminated

by a military medical department to all

primary referral sources and

information for parents on the

availability of early intervention

services. Procedures to determine the

availability of information on early

intervention services to parents are also

included in that program.

Qualified. A person who meets the

DoD-approved or recognized

certification, licensing, or registration

requirements or other comparable

requirements in the area in which the

person provides special education or

related services or early intervention

services to an infant, toddler, or child

with a disability.

Recreation. A related service that

includes the following.

(1) Assessment of leisure activities.

(2) Therapeutic recreational activities.

(3) Recreational programs in schools

and community agencies.

(4) Leisure education.

Rehabilitation counseling. Services

provided by a rehabilitation counselor

or other qualified personnel in

individual or group sessions that focus

specifically on career development,

employment preparation, achieving

independence, and integration in the

workplace and community of the

student with a disability.

Related services. Transportation and

such developmental, corrective, and

other supportive services as required to

assist a child, age 3 to 21, inclusive,

with a disability to benefit from special

education under the child’s IEP. The

term includes speech therapy and

audiology, psychological services,

physical and occupational therapy,

recreation, early identification and

assessment of disabilities in children,

counseling services, and medical

services for diagnostic or evaluative

purposes. That term also includes

rehabilitation counseling services,

school health services, social work

services in schools, and parent

counseling. The sources for those

services are school, community, and

medical treatment facilities (MTFs).

School health services. Services

provided by a qualified school nurse or

other qualified person.

Separate facility. A school or a

portion of a school, regardless of

whether it is operated by the DoDDS,

attended exclusively by children with

disabilities.

Serious emotional disturbance. A

condition confirmed by clinical

evaluation and diagnosis and that, over

a long period of time and to a marked

degree, adversely affect educational

performance, and exhibits one or more

of the following characteristics:

(1) Inability to learn that cannot be

explained by intellectual, sensory, or

health factors.

(2) Inability to build or maintain

satisfactory interpersonal relationships

with peers and teachers.

(3) Inappropriate types of behavior

under normal circumstances.

(4) A tendency to develop physical

symptoms or fears associated with

personal or school problems.

(5) A general pervasive mood of

unhappiness or depression. Includes

children who are schizophrenic, but

does not include children who are

socially maladjusted unless it is

determined they are seriously

emotionally disturbed.

Service coordination. Activities of a

service coordinator to assist and enable

an infant or toddler and the family to

receive the rights, procedural

safeguards, and services that are

authorized to be provided under the

DoD EIP. Those activities include the

following:

(1) Coordinating the performance of

evaluation and assessments.

(2) Assisting families to identify their

resources, concerns, and priorities.

(3) Facilitating and participating in

the development, review, and

evaluation of IFSPs.

(4) Assisting in identifying available

service providers.

(5) Coordinating and monitoring the

delivery of available services.

(6) Informing the family of support or

advocacy services.

(7) Coordinating with medical and

health providers.

(8) Facilitating the development of a

transition plan to preschool services.

Service provider. Any individual who

provides services listed in an IEP or an

IFSP.

Social work services in schools. A

service that includes the following:

(1) Preparing a social or

developmental history on a child with

a disability.

(2) Counseling a child and the family

on a group or individual basis.

(3) Working with those problems in a

child’s home, school, or community that

adversely affect adjustment in school.

(4) Using school and community

resources to enable a child to receive

maximum benefit from the educational

program.

Special education. Instruction and

related services for which a child, age 3

to 21, inclusive, becomes entitled when

a CSC determines a child’s educational

performance is adversely affected by

one or more disabling conditions.

(1) Special education is specially

designed instruction, including physical

education, which is provided at no cost

to the parent or guardians to meet the

unique needs of a child with a

disability, including instruction

conducted in the classroom, in the

home, in hospitals and institutions, and

in other settings.

(2) That term includes speech therapy

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.

(3) That 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.

(4) At no cost. For a child eligible to

attend the DoDDS without paying
Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 2571

tuition, specially designed instruction

and related services are provided

without charge. Incidental fees normally

charged to nondisabled students or their

parents as a part of the regular

educational program may be imposed.

(5) Physical education. The

development of the following:

(i) Physical and motor fitness.

(ii) Fundamental motor skills and

patterns.

(iii) Skills in aquatics, dance, and

individual and group games and sports,

including intramural and lifetime

sports.

(iv) A program that includes special

physical education, adapted physical

education, movement education, and

motor development.

(6) Vocational education. Organized

educational programs for the

preparation of individuals for paid or

unpaid employment or for additional

preparation for a career requiring other

than a baccalaureate or advanced

degree.

Special instruction. That term

includes the following:

(1) The design of learning

environments and activities to promote

acquisition of skills in a variety of

developmental areas, including

cognitive processes and social

interaction.

(2) Curriculum planning, including

the planned interaction of personnel,

materials, time, and space, that leads to

achieving the outcomes in an IEP or an

IFSP.

(3) Providing families with

information, skills, and support to

enhance skill development.

(4) Working with a child to enhance

development and cognitive processes.

Specific learning impairment. A

disorder in one or more of the basic

psychological processes involved in

understanding or in using spoken or

written language that may manifest

itself as an imperfect ability to listen,

think, speak, read, write, spell,

remember, or do mathematical

calculations. That term includes such

conditions as perceptual disabilities,

brain injury, minimal brain dysfunction,

dyslexia, and developmental aphasia.

The term, commonly called, ‘‘specific

learning disability,’’ does not include

learning problems that are primarily the

result of visual, hearing, or motor

disabilities; mental retardation;

emotional disturbance; or

environmental, cultural, or economic

differences.

Speech and language impairments. A

communication disorder, such as

stuttering, impaired articulation, voice

impairment, or a disorder in the

receptive or expressive areas of language

that adversely affects a child’s

educational performance.

Speech therapy. That related service

includes the following:

(1) Identification of children with

communicative or oropharyngeal

disorders and delays in development of

communication skills.

(2) Diagnosis and appraisal of specific

speech or language impairments.

(3) Referral for medical or other

professional attention to correct or

habilitate speech or language

impairments.

(4) Provision of speech and language

services for the correction, habilitation,

and prevention of communicative

impairments.

(5) Counseling and guidance of

children, parents, and teachers for

speech and language impairments.

Transition services. That term means

the following:

(1) A coordinated set of activities for

a student that may be required to

promote movement from early

intervention, preschool, and other

educational programs into different

educational settings or programs.

(2) For students 14 years of age and

older, transition services are designed in

an outcome-oriented process which

promotes movement from school to

postschool activities; including, postsecondary education, vocational

training, integrated employment; and

including supported employment,

continuing and adult education, adult

services, independent living, or

community participation. The

coordinated set of activities shall be

based on the individual student’s needs,

considering the student’s preferences

and interests, and shall include

instruction, community experiences, the

development of employment and other

postschool adult living objectives, and

acquisition of daily living skills and

functional vocational evaluation.

Transportation. A service that

includes the following:

(1) Services rendered under the IEP of

a child with a disability:

(i) Travel to and from school and

between schools, including travel

necessary to permit participation in

educational and recreational activities

and related services.

(ii) Travel in and around school

buildings.

(iii) Specialized equipment, including

special or adapted buses, lifts, and

ramps, if required to provide

transportation for a child with a

disability.

(2) Transportation and related costs

for early intervention services include

the cost of travel (e.g., mileage or travel

by taxi, common carrier, or other means)

and other costs (e.g., tolls and parking

expenses) that are necessary to enable

an eligible child and the family to

receive early intervention services.

Traumatic brain injury. An acquired

injury to the brain caused by an external

physical force resulting in total or

partial functional disability or

psychosocial impairment that adversely

affects educational performance. That

term includes open or closed head

injuries resulting in mild, moderate, or

severe impairments in one or more areas

including cognition, language, memory,

attention, reasoning, abstract thinking,

judgment, problem solving, sensory,

perceptual and motor abilities,

psychosocial behavior, physical

function, information processing, and

speech. That term does not include

brain injuries that are congenital or

degenerative, or brain injuries that are

induced by birth trauma.

Vision services. Services necessary to

habilitate or rehabilitate the effects of

sensory impairment resulting from a

loss of vision.

Visual impairment. An impairment of

vision that, even with correction,

adversely affects a child’s educational

performance. That term includes both

partially seeing and blind children.

§ 57.4 Policy.

It is DoD policy that:

(a) Eligible infants and toddlers with

disabilities and their families shall be

entitled to receive early intervention

services consistent with Appendix A to

this part.

(b) Eligible children with disabilities,

ages 3 to 21, inclusive, shall be provided

a FAPE in the least restrictive

environment, consistent with Appendix

B to this part.

(c) Parents of eligible infants,

toddlers, and children with disabilities

from birth to age 21, inclusive, shall be

full participants in early intervention

and special education services.

§ 57. 5 Responsibilities.

(a) The Under Secretary of Defense for

Personnel and Readiness shall:

(1) Establish a NAP consistent with

Appendix C to this part.

(2) Establish and chair, or designate a

‘‘Chair,’’ of the DoD-CC on Early

Intervention, Special Education, and

MRS consistent with Appendix D to this

part.

(3) Establish and chair, or designate a

‘‘Chair,’’ of the DoD Inter-Component

Coordinating Council (ICC) on Early

Intervention consistent with Appendix

E to this part.

(4) Ensure compliance with this part

in the provision of early intervention

services, special education, and related
2572 Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations

8See footnote 1 to § 57.1(a). 9See footnote 1 to § 57.1(a). 1The EIP shall be continuously implemented.

services through the DoD-CC, in

accordance with DoD Instruction

1342.14 8 and other appropriate

guidances.

(5) In consultation with the General

Counsel of the Department of Defense

(GC, DoD) and the Secretaries of the

Military Departments, do the following:

(i) Ensure that eligible infants and

toddlers with disabilities and their

families are provided early intervention

services under 20 U.S.C. 921 et seq. and

1400 et seq.

(ii) Ensure the coordination of early

intervention, special education, and

related services.

(iii) Ensure the development of a DoDwide comprehensive child-find system

to identify eligible infants, toddlers, and

children ages birth to age 21, inclusive,

under 20 U.S.C 921 et seq. and 1400 et

seq. who may require early intervention

or special education services.

(iv) Ensure that DoD personnel are

trained to provide the mediation

services specified in Appendix F to this

part.

(v) Ensure that transition services are

available to promote movement from

early intervention, preschool, and other

educational programs into different

educational settings and postsecondary

environments.

(vi) Ensure that DoD personnel who

provide services (e.g., child care,

medical care, and recreation) to infants

and toddlers and their families are

participants in a comprehensive interComponent system for early

intervention services.

(vii) Assign functions and geographic

regions of responsibility to the Military

Departments for providing MRS and

early intervention services.

(viii) Ensure that the Military

Departments deliver the following:

(A) A comprehensive, coordinated and

multidisciplinary program of early

intervention services for eligible infants and

toddlers with disabilities.

(B) MRS for eligible children with

disabilities, ages 3 to 21, inclusive.

(ix) Ensure that qualified personnel

participate in providing transition services

for eligible infants, toddlers, and children

with disabilities from birth to age 21,

inclusive.

(x) Ensure the development and

implementation of a comprehensive system

of personnel development for the DoDDS and

the Military Departments. That system shall

include professionals, paraprofessionals, and

primary referral source personnel in the areas

of early intervention, special education, and

MRS. That system may include the following:

(A) Implementing innovative strategies and

activities for the recruitment and retention of

providers of early intervention services,

special education, and MRS.

(B) Ensuring that personnel requirements

are established consistent with recognized

certification, licensing, registration, or other

comparable requirements for personnel

providing early intervention services, special

education, or MRS.

(C) Ensuring that training is provided in

and across disciplines.

(D) Training providers of early intervention

services, special education, and MRS to work

overseas.

(xi) Develop procedures to compile data on

the numbers of eligible infants and toddlers

with disabilities and their families in need of

early intervention services, in accordance

with DoD Directives 5400.7 and 5400.11.9

Those data elements shall include the

following:

(A) The number of infants and toddlers and

their families served.

(B) The types of services provided.

(C) Other information required to evaluate

the implementation of early intervention

programs (EIPs).

(xii) Resolve disputes in the DoD

Components arising under Appendix A to

this part.

(b) The Secretaries of the Military

Departments shall:

(1) Provide MRS for eligible children with

disabilities, ages 3 to 21, inclusive.

(2) Plan, develop, and implement a

comprehensive, coordinated, intraComponent, and community-based system of

early intervention services for eligible infants

and toddlers with disabilities and their

families.

(3) Design and implement activities to

ensure compliance through technical

assistance and program evaluation for early

intervention and MRS.

(c) The Director, Department of Defense

Education Activity, shall ensure that the

Director, DoDDS, does the following:

(1) Ensures that eligible children with

disabilities, ages 3 to 21, inclusive, are

provided a FAPE.

(2) Ensures that the educational needs of

children with and without disabilities are

met comparably, consistent with Appendix B

to this part.

(3) Ensures that educational facilities and

services operated by the DoDDS for children

with and without disabilities are comparable.

(4) Maintains records on special education

and related services provided to eligible

children with disabilities, ages 3 to 21,

inclusive, consistent with DoD Directive

5400.11.

(5) Provides any or all special education

and related services required by a child with

a disability, ages 3 to 21, inclusive, other

than those furnished by the Secretaries of the

Military Departments. The Director, DoDDS,

may act through inter-Agency, intra-Agency,

and inter-Service arrangements, or through

contracts with private parties when funds are

authorized and appropriated.

(6) Participates in the development and

implementation of a comprehensive system

of personnel development.

(7) Undertakes activities to ensure

compliance by the DoDDS with this part

through monitoring, technical assistance, and

program evaluation of special education and

those related services provided by the

DoDDS.

(d) The Director, Defense Office of

Hearings and Appeals, under the General

Counsel of the Department of Defense, shall

ensure impartial due process hearings are

provided consistent with Appendix F to this

part.

§ 57.6 Procedures.

(a) The procedures for early

intervention services for infants and

toddlers with disabilities and their

families are prescribed in Appendix A

to this part.

(b) The procedures for educational

programs and services for children with

disabilities, ages 3 to 21, inclusive, are

prescribed in Appendix B to this part.

(c) The procedures for conducting

hearings are prescribed in Appendix F

to this part.

Appendix A to Part 57—Procedures for

the Provision of Early Intervention

Services for Infants and Toddlers With

Disabilities and Their Families

A. Requirements for an Early Intervention

Program (EIP)

1. All eligible infants and toddlers with

disabilities from birth through age 2 and their

families shall receive early intervention

services, as follows:

a. In school years 1991 through 1994, the

Department of Defense planned and

continues to develop a comprehensive,

coordinated, multidisciplinary program of

early intervention services for infants and

toddlers with disabilities among DoD entities

involved in providing such services.

b. In school year 1994 through 1995, the

Department of Defense implemented and

shall continue to implement the following

program components described in paragraph

A.1.a. of this Appendix:

(1) Multidisciplinary assessments.

(2) IFSPs.

(3) Service coordination.

c. In school year 1995 through 1996, the

Department of Defense shall implement the

program described in paragraph A.1.a. of this

Appendix. 1

2. Early intervention services shall be

provided in the natural environment.

3. Parents of infants and toddlers with

disabilities are to be full and meaningful

participants in the EIP.

B. Military Department Responsibilities

Each Military Department shall develop

and implement in its assigned geographic

area a system to provide for the following:

1. A comprehensive child find procedure

coordinated with the DoDDS child find

system and primary referral sources such as

the child development center and the

pediatric clinic.

2. Administration and supervision of EIPs

and services.

3. Identification of available resources and

coordination with those resource providers,
Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 2573

2Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161.

including the DoD Components, who

routinely provide services to infants and

toddlers without disabilities and their

families.

4. Procedures to provide timely services for

infants and toddlers with disabilities and

their families.

5. Procedures to resolve inter-Component

disputes about the delivery of early

intervention services.

6. Procedures to collect and report data

reflecting the number of infants and toddlers

and their families served, the types of

services provided, and other information

required by the USD(P&R) implementation of

early intervention services.

7. Multidisciplinary, comprehensive, and

functional assessment of the unique strengths

and needs of infants or toddlers and the

identification of services to meet those needs.

8. Procedures for a family-directed

assessment to determine resources, priorities,

and concerns of a family and to identify

services necessary to enhance a family’s

capacity to meet the child’s needs.

9. An IFSP that details the early

intervention services and the coordination of

those services.

10. A public awareness program focusing

on early identification of infants and toddlers

with disabilities.

11. A central directory that includes a

description of the early intervention services

and other relevant resources available in each

military community overseas.

12. Information to parents about their EIP

procedural safeguards.

13. Establishment of ICCs at appropriate

levels. Memberships shall include parents

and the DoD Components who are involved

in the delivery of early intervention services.

14. Policies and procedures for the

establishment and maintenance of standards

to ensure that personnel necessary to carry

out the EIP are prepared and trained.

C. Eligibility

Infants and toddlers with disabilities from

birth through age 2 are eligible for early

intervention services because they meet one

of the following criteria:

1. The child is experiencing a

developmental delay as measured by

diagnostic instruments and procedures of 2

standard deviations below the mean in at

least one area, or by a 25 percent delay in at

least one area on assessment instruments that

yield scores in months, or a developmental

delay of 1.5 standard deviations below the

mean in two or more areas, or by a 20 percent

delay on assessment instruments that yield

scores in months in two or more of the

following areas of development: Cognitive,

physical, communication, social or

emotional, or adaptive.

2. The child has a diagnosed physical or

mental condition which has a high

probability of resulting in developmental

delay; e.g., chromosomal disorders or genetic

syndromes.

D. IFSP

1. Each military medical department shall

develop and implement procedures to ensure

that an IFSP is developed by a

multidisciplinary team including the parents

of each infant or toddler with a disability

who meets the eligibility criteria in section

C.1. of this appendix.

2. Meetings to develop and review the IFSP

must include the following participants:

a. The parent or parents of the child.

b. Other family members, as requested by

the parent, if possible.

c. An advocate outside of the family, if the

parent requests that person’s participation.

d. The EIP services coordinator who has

worked with the family since the initial

referral of the child or who has been

designated as ‘‘responsible for the

implementation of the IFSP.’’

e. The person(s) directly involved in

conducting the evaluations and assessments.

f. As appropriate, persons who shall

provide services to the child or family.

3. If a person listed in section D.2. of this

appendix is unable to attend a meeting,

arrangements must be made for the person’s

involvement through other means, including

the following:

a. Participating in a telephone conference

call.

b. Having a knowledgeable representative

attend the meeting.

c. Making pertinent records available at the

meeting.

4. The IFSP shall be written in a reasonable

time after assessment and shall contain the

following:

a. A statement of the child’s current

developmental levels including physical,

cognitive, communication, social or

emotional, and adaptive behaviors based on

acceptable objective criteria.

b. A statement of the family’s resources,

priorities, and concerns on enhancing the

child’s development.

c. A statement of the major outcomes

expected to be achieved for the child and the

family. Additionally, the statement shall

contain the criteria, procedures, and

timeliness used to determine the degree to

which progress toward achieving the

outcomes is being made and whether

modification or revision of the outcomes and

services are necessary.

d. A statement of the specific early

intervention services necessary to meet the

unique needs of the child and the family

including the frequency, intensity, and

method of delivering services.

e. A statement of the natural environments

in which early intervention services shall be

provided.

f. The projected dates for initiation of

services and the anticipated duration of those

services.

g. The name of the EIP service coordinator.

h. The steps to be taken supporting the

transition of the toddler with a disability to

preschool or other services.

5. The IFSP shall be evaluated at least once

a year and the family shall be provided an

opportunity to review the plan at 6-month

intervals (or more frequently, based on the

child and family needs).

6. The contents of the IFSP shall be

explained to the parents and an informed,

written consent from the parents shall be

obtained before providing early intervention

services described in that plan.

7. With the parent’s consent, early

intervention services may begin before the

completion of the evaluation and assessment

when it has been determined by a

multidisciplinary team that a service is

needed immediately by the child and/or the

child’s family. Although all assessments have

not been completed, an IFSP must be

developed before the start of services. The

remaining assessments must then be

completed in a timely manner.

8. If a parent does not provide consent for

participation in all early intervention

services, the services shall still be provided

for those interventions to which a parent

does give consent.

E. Procedural Safeguards in the EIP

1. Parents of infants and toddlers with

disabilities are afforded the following

procedural safeguards to ensure that their

children receive appropriate early

intervention services:

a. The timely administrative resolution of

parental complaints, including hearing

procedures in appendix F to this part.

b. The right to confidentiality of personally

identifiable information under DoD Directive

5400.11.2

c. The right to written notice and consent

to the release of relevant information outside

the Department of Defense.

d. The right to determine whether they,

their child, or other family members shall

accept or decline any early intervention

services without jeopardizing other early

intervention services.

e. The opportunity to examine records on

assessment, screening, eligibility

determinations, and the development and

implementation of the IFSP.

f. The right to prior written notice when

the EIP multidisciplinary team proposes, or

refuses, to initiate or change the

identification, evaluation, placement, or

provision of early intervention services to the

infant or toddler with a disability.

g. The right to prior written notice in their

native language, unless it clearly is not

possible to do so, which informs them of all

procedural safeguards.

h. During the pendency of any proceeding

or action involving a complaint, unless the

EIP and the parents otherwise agree, the

child shall continue to receive the

appropriate early intervention services

currently being provided, or, if applying for

initial services, shall receive the services not

in dispute.

2. Parents shall be advised of their rights

to due process, as defined in appendix F to

this part.

Appendix B to Part 57—Procedures for

Educational Programs and Services for

Children With Disabilities, Ages 3 to 21,

Inclusive

A. Identification and Screening

It is the responsibility of school officials of

the DoDDS to locate, identify, and with the

consent of a child’s parent, evaluate all

children who are eligible to enroll in the
2574 Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations

1Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161.

DoDDS under DoD Directive 1342.13 1 who

may require special education and related

services.

1. Procedures for Identification and

Screening. The DoDDS officials shall conduct

the following activities to determine if a

child needs special education and related

services:

a. Screen educational records.

b. Screen students using system-wide or

other basic skill tests in the areas of reading,

math, and language arts.

c. Screen school health data such as reports

of hearing, vision, speech, or language tests

and reports from healthcare personnel about

the health status of a child.

d. Analyze school records to obtain

pertinent information about the basis for

suspensions, exclusions, withdrawals, and

disciplinary actions.

e. In cooperation with the Military

Departments, conduct on-going child-finding

activities and publish, periodically, any

information, guidelines, and direction on

child-find activities for eligible children with

disabilities, ages 3 to 21, inclusive.

f. Coordinate the transition of children

from early intervention to preschool with the

Military Services.

2. Referral of a Child for Special Education

or Related Services. The DoDDS officials,

MRS providers, or others who suspect that a

child has a possible disabling condition shall

refer that child to the CSC.

B. Assessment and Evaluation

Any eligible child who is referred to a CSC

shall receive a full and comprehensive

diagnostic evaluation of educational needs.

An evaluation shall be conducted before an

IEP is developed or placement is made in a

special education program.

1. Procedures for Assessment and

Evaluation. A CSC shall ensure that the

following elements are included in a

comprehensive assessment and evaluation of

a child:

a. Assessment of visual and auditory

acuity.

b. A plan to assess the type and extent of

the disability. A child shall be assessed in all

areas related to the suspected disability.

When necessary, the assessment plan shall

include the following:

(1) Assessment of the level of functioning

academically, intellectually, emotionally,

socially, and in the family.

(2) Observation in an educational

environment.

(3) Assessment of physical status including

perceptual and motor abilities.

(4) Assessment of the need for transition

services for students 14 years and older, the

acquisition of daily living skills, and

functional vocational assessment.

c. The involvement of parents, under this

part.

d. The use of all locally available

community, medical, and school resources to

accomplish the assessment. At least one

specialist with knowledge in the area of the

suspected disability shall be a member of the

multidisciplinary assessment team.

e. The requirement that each assessor

prepare an individual assessment report that

describes the instruments and techniques

used, the results of the testing, and the

relationship of those findings to educational

functioning.

f. The inclusion of a description of the

problem area constituting the basis for an

MRS referral.

2. Standards for Assessment Selection and

Procedures. All DoD elements, including the

CSC and MRS providers, shall ensure that

assessment materials and evaluation

procedures comply, as follows:

a. Selected and administered so as not to

be racially or culturally discriminatory.

b. Administered in the native language or

mode of communication of the child unless

it clearly is not possible to do so.

c. Validated for the specific purpose for

which they are used or intended to be used.

d. Administered by trained personnel in

compliance with the instructions of the

testing instrument.

e. Administered such that no single

procedure is the sole criterion for

determining an appropriate educational

program for a child with a disability.

f. Selected to assess specific areas of

educational needs and strengths and not

merely to provide a single general

intelligence quotient.

g. Administered to a child with impaired

sensor, motor, or communication skills so

that the results reflect a child’s actual ability

or level of achievement, and simply not the

impaired skill itself.

3. Determination of Eligibility for Special

Education and Related Services. The CSC

shall be convened to determine the eligibility

of a child for special education and related

services. The CSC shall do the following:

a. Ensure that the full comprehensive

evaluation of a child is accomplished by a

multidisciplinary team. The team shall be

comprised of teachers or other specialists

with knowledge in the area of the suspected

disability.

b. Meet as soon as possible after a child has

been assessed to determine the eligibility of

the child for services.

c. Afford the child’s parents the

opportunity to participate in the CSC

eligibility meeting.

d. Issue a written eligibility report that

contains the following:

(1) A description of the nature of the

child’s disabling condition.

(2) A synthesis of the formal and informal

findings of the multidisciplinary assessment

team of the child’s academic progress.

(3) A summary of information from the

parents, the child, or other persons having

significant previous contact with the child.

(4) A determination of eligibility statement.

(5) A list of the educational areas affected

by a child’s disability and a description of a

child’s educational needs.

4. Reevaluation for Eligibility for Special

Education and Related Services. School

officials shall provide a comprehensive

reevaluation of a child with a disability every

3 years, or more frequently, if conditions

warrant. The scope and type of the

comprehensive reevaluation shall be

determined individually based on a child’s

performance, behavior, and needs during the

reevaluation.

C. Individualized Education Program (IEP)

The DoDDS officials shall ensure that the

CSC develops and implements an IEP for

each child with a disability who is enrolled

in the DoDDS or is placed in another

institution by the DoDDS.

1. The CSC Meeting for the Development

and Implementation of an IEP. The CSC shall

establish and convene a meeting to develop,

review, or revise the IEP of a child with a

disability. That meeting shall be scheduled as

soon as possible following a determination

by the school or area CSC that the child is

eligible for special education and related

services. The meeting participants shall,

minimally, include the following:

a. A principal or school representative

other than the child’s teacher who is

qualified to provide or supervise the

provision of special education.

b. The child’s teacher.

c. A special education teacher.

d. One or both of the child’s parents.

e. The child, if appropriate.

f. For a child with a disability who has

been evaluated for the first time, a

representative of the evaluation team who is

knowledgeable about the evaluation

procedures used and is familiar with the

results of the evaluation.

g. Other individuals invited at the

discretion of the parent or school.

2. Requirements for the Development of the

IEP. The CSC shall prepare the IEP with the

following:

a. A statement of the child’s present levels

of educational performance.

b. A statement of annual goals including

short-term instructional objectives.

c. Objective criteria for determining, at

least annually, whether the educational

objectives are being achieved.

d. A statement of the physical education

program provided in one of the following

settings:

(1) In the regular education program.

(2) In the regular education program with

adaptations, modifications, or the use of

assistive technology.

(3) Through specially designed instruction

based on the goals and objectives included in

the IEP.

e. A statement of the transition services

beginning at age 14 and annually, thereafter.

When appropriate, include a statement of the

inter-Agency responsibilities or linkages (or

both) before the student leaves the school

setting. If a specially designed instructional

program is required, include the goals and

objectives in the IEP.

f. A statement of special transportation

requirement.

g. A statement of the amount of time a

week that each special education and related

service shall be provided to the child.

h. The extent to which the child shall

participate in regular educational programs,

including the following:

(1) The projected date for the initiation and

the anticipated length of IEP activities and

services.

(2) Any statements requiring an adjusted

school day or an extended school year

program.
Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 2575

2See footnote 1 to section A. of this appendix.

i. A statement of the vocational education

program for secondary students. If a specially

designed instructional program is required,

the necessary goals and objectives in the IEP

shall be included.

3. Requirements for the Implementation of

the IEP. The DoDDS CSC shall:

a. Obtain parental agreement and signature

before implementation of the IEP.

b. Provide a copy of the child’s IEP to the

parents.

c. Ensure that the IEP is in effect before a

child receives special education and related

services.

d. Review and revise the IEP for each child

at least annually in a CSC meeting.

e. Accept a child’s current IEP when he or

she transfers to the DoDDS if the CSC of the

gaining school or the area CSC does the

following:

(1) Notifies and obtains consent of the

parents to use the current IEP and all

elements contained in it.

(2) Involves the local DoD Component

responsible for the delivery of the MRS of the

medical requirements in the IEP.

(3) Initiates a CSC meeting to revise the

current IEP.

(4) If necessary, initiates an evaluation of

the child.

f. Afford the child’s parents the

opportunity to participate in every CSC

meeting to determine their child’s initial or

continuing eligibility for special education

and related services, or to prepare or change

the child’s IEP or to determine or change the

child’s placement.

g. Ensure that at least one parent

understands the special education

procedures including the due process

procedures described in appendix F of this

part and the importance of the parent’s

participation in those processes. School

officials shall use devices or hire interpreters

or other intermediaries who might be

necessary to foster effective communications

between the school and the parent about the

child.

h. Provide special education and related

services, in accordance with the IEP. The

Department of Defense and its constituent

elements and personnel are not accountable

if a child does not achieve the growth

projected in the IEP.

i. Ensure that all provisions developed for

any child entitled to an education by the

DoDDS are fully implemented in schools or

in non-DoDDS schools or facilities including

those requiring special facilities, other

adaptations, or assistive devices.

D. Placement Procedures and Least

Restrictive Environment

1. A child shall not be placed by the

DoDDS in any special education program

unless the CSC has developed an IEP. If a

child with a disability is applying for initial

admission to a school, the child shall enter

on the same basis as a child without a

disability. A child with a disability and with

the consent of a parent and school officials

may receive an initial placement in a special

education program under procedures listed

in paragraph C.3.e. of this appendix.

2. A placement decision requires the

following:

a. A parent consent to the placement before

actual placement of the child, except as

otherwise provided in section F.2. of this

appendix.

b. Delivery of educational instruction and

related services in the least restrictive

environment. To the maximum extent, a

child with a disability should be placed with

children who are not disabled. Special

classes, separate schooling, or other removal

of a child with a disability from the regular

education environment shall occur only

when the type or severity of the disability is

such that education in regular classes with

the use of supplementary aids and services

cannot be achieved satisfactorily.

c. The CSC to base placements on the IEP

and to review the IEP at least annually.

d. A child shall participate, to the

maximum extent, in school activities

including meals, assemblies, recess periods,

and field trips with children who are not

disabled.

e. Consideration of factors affecting the

child’s well-being including the effects of

separation from parents.

f. A child shall attend a DoDDS school that

is located as close as possible to the

residence of the parent who is sponsoring the

child’s attendance. Unless otherwise required

by the IEP, the school should be the same

school that the child would have attended

had he or she not been disabled.

E. Children With Disabilities Who Are Placed

in a Non-DOD School or Facility

Children with disabilities who are eligible

to receive a DoDDS education, but are placed

in a non-DoDDS school or facility by the

DoDDS, shall have all the rights of children

with disabilities who are enrolled in a

DoDDS school. A child with a disability may

be placed in a non-DoDDS school or facility

only if required by the IEP.

1. Requirements for a Non-DoDDS School or

Facility Placement

a. Placement in a non-DoDDS school or

facility shall be made under the host-nation

requirements.

b. Placement in a non-DoDDS school or

facility is subject to all treaties, Executive

agreements, and status of forces agreements

between the United States and the host

nations, and all DoD and DoDDS regulations.

c. If the DoDDS places a child with a

disability in a non-DoDDS school or facility

as a means of providing special education

and related services, the program of that

institution including nonmedical care and

room and board, as in the child’s IEP, must

be provided at no cost to the child or the

child’s parents. The DoDDS or the

responsible DoD Component shall pay the

costs in accordance with DoD 1010.13–R2.

d. Local school officials shall initiate and

conduct a meeting to develop an IEP for the

child before placement. A representative of

the non-DoDDS school or facility should

attend the meeting. If the representative

cannot attend, the DoDDS officials shall

communicate in other ways to ensure

participation including individual or

conference telephone calls. The IEP must

meet the following standards:

(1) Be signed by an authorized DoDDS

official before it becomes valid.

(2) Include a determination that the DoDDS

does not currently have or cannot reasonably

create an educational program appropriate to

meet the needs of the child with a disability.

(3) Include a determination that the nonDoDDS school or facility and its educational

program and related services conform to the

requirements of this part.

2. Cost of Tuition For Non-DoDDS School

or Facility. The Department of Defense is not

authorized to fund non-DoDDS placement

unless it is directed by the DoDDS Area

Superintendent in coordination with the

Director, DoDDS; or it is directed by an

impartial hearing officer or court of

competent jurisdiction. A valid IEP must

document the necessity of the placement in

a non-DoDDS school or facility.

F. Procedural Safeguards for Children and

Parents

Parents of children with disabilities are

afforded procedural safeguards to ensure that

their children receive a free public education

consistent with appendix F to this part.

1. Notice of Procedural Safeguards

a. Parents shall be provided a written

notice in a reasonable time before one of the

following:

(1) Receiving a proposal to initiate or

change the identification, evaluation, or

educational placement of the child or the

provision of free public education to the

child.

(2) Receiving refusal from the DoDDS to

initiate or change the identification,

evaluation, or educational placement of the

child or the provision of a free public

education.

b. The notice shall inform the parent of the

following:

(1) Parental procedural rights detailed in

appendix F to this part.

(2) A description of the action proposed or

refused by the DoDDS with a brief

explanation for the decision.

c. The notice shall be provided so as to

ensure the parent’s understanding. That may

be achieved by using simplified language,

delivering the notice in the parent’s native

language, or using an interpreter or other

person selected by the parents.

2. Parental Consent

a. The consent of a parent of a child with

a disability or suspected of having a

disability shall be obtained before any of the

following:

(1) Initiation of formal evaluation

procedures.

(2) Initial educational placement.

(3) Change in educational placement.

b. If the parent refuses consent to any

formal evaluation or initial placement in a

special education program, the DoDDs or the

parent may do the following:

(1) Request a conference between the

school and parents.

(2) Request mediation.

(3) Initiate an impartial due process

hearing under appendix F to this part, to

show cause as to why an evaluation or

placement in a special education program

should or should not occur without such
2576 Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations

3Copies of the appropriate forms are available at

every school office.

4See footnote 1 to section A. of this appendix.

1Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161. 2See footnote 1 to section A. of this appendix.

consent. If the hearing officer sustains the

DoDDS position in the impartial due process

hearing, the DoDDS may evaluate or provide

special education and related services to the

child without the consent of a parent, subject

to the further exercise of due process rights.

3. Independent Evaluation

a. A parent is entitled to an independent

evaluation at the expense of the DoDDS if the

parent disagrees with the DoDDS evaluation

of the child and successfully challenges the

evaluation in an impartial due process

hearing. An independent evaluation

provided at the DoDDS expense must do the

following:

(1) Conform to the requirements of this

part.

(2) Be conducted, when possible, in the

area where the child resides.

(3) Meet DoD standards governing persons

qualified to conduct an educational

evaluation including an evaluation for MRS.

b. If the final decision rendered in an

impartial due process hearing sustains the

DoDDS evaluation, the parent has the right to

an independent evaluation, but not at the

DoDDS expense.

c. The DoDDS, the CSC, and a hearing

officer appointed under this part shall

consider any evaluation report presented by

a parent.

4. Access to Records. The parents of a child

with a disability shall be afforded an

opportunity to inspect and review

educational records about the identification,

evaluation, and educational placement of the

child, and the provision of a free public

education for the child.

5. Due Process Rights

a. The parent of a child with a disability

or the DoDDS has the opportunity to file a

written petition for an impartial due process

hearing at the DoDDS expense under

appendix F to this part. The dispute may

concern issues effecting a partial child’s

identification, evaluation, or placement, or

the provision of a free and appropriate public

education.

b. While an impartial due process hearing

or judicial proceeding is pending, unless the

DoDDS and a parent of the child agree

otherwise, the child shall remain in the

present educational setting, subject to the

disciplinary procedures prescribed in section

H. of this appendix.

6. Dispute Resolution—Other Complaints.

A parent, teacher, or other person covered by

this part may file a written complaint about

any aspect of this part that is not a proper

subject for adjudication by a due process

hearing officer, in accordance with DSR

2500.10.3

G. Confidentiality of Records

The DoDDS officials shall maintain all

student records, in accordance with DoD

Directive 5400.11.4

H. Disciplinary Procedures

All regular disciplinary rules and

procedures applicable to children receiving

educational instruction in the DoDDS shall

apply to children with disabilities who

violate school rules and regulations or

disrupt regular classroom activities, subject

to the following provisions:

1. Before suspending or expelling a child

with a disability, the CSC or, a child with a

disability in a non-DoDDS school, authorized

DoDDS officials, shall determine the

following:

a. Whether the behavioral conduct is the

result of the child’s disability.

b. If any change in the educational

placement is needed.

2. If it is determined that the child’s

conduct results in whole or part from the

disability, the child may not be subject to any

regular disciplinary rules and procedures and

the following procedures must be followed:

a. The child’s parents shall be notified of

the right to have an IEP meeting before any

change in the child’s educational placement.

b. The CSC or authorized DoDDS officials

shall ensure that a meeting is held to

determine the appropriate educational

placement for the child in consideration of

the child’s conduct.

c. The child may not be suspended for

more than 10 days during a school year.

3. A child with a disability may be

suspended on an emergency basis when it

reasonably appears that the child’s behavior

may endanger the health, welfare, or safety

of self or any other child, teacher, or school

personnel. The following conditions apply:

a. The child’s parents shall be notified

immediately of that suspension and of the

time, purpose, and location of the CSC

meeting and of their right to attend the

meeting.

b. That suspension remains in effect only

for the duration of the emergency.

4. If it is determined that the child requires

a change in educational placement, the CSC

or, in the case of a child with a disability in

a non-DoDDS school, authorized DoDDS

officials shall ensure that a meeting is held

to determine the appropriate educational

placement for the child in consideration of

the child’s conduct.

Appendix C to Part 57—The National

Advisory Panel (Nap) on the Education

of Dependents With Disabilities

A. Membership

The NAP shall meet as needed in publicly

announced, accessible meetings open to the

general public and shall comply with DoD

Directive 5105.41. The NAP members,

appointed by the Secretary of Defense, or

designee, shall include at least one

representative from each of the following

groups.

1. Persons with disabilities

2. The DoDDS special education teachers

3. The DoDDS regular education teachers.

4. Parents of children, ages 3 to 21,

inclusive, who are receiving special

education from the DoDDS.

5. The staff personnel of the DoDDS

Headquarters.

6. Special education program managers

from the DoDDS field activities.

7. Representatives of the Military

Departments and overseas commands,

including providers of related services.

8. Providers of the DoD early intervention

services.

9. Other appropriate persons.

B. Activities

1. The NAP shall perform the following

activities:

a. Review information about improvements

in service provided to children with

disabilities, ages 3 to 21, inclusive in the

Department of Defense.

b. Receive and consider comments from

parents, students, professional groups, and

individuals with disabilities.

c. When necessary establish committees for

short-term purposes comprised of

representatives from parent, student,

professional groups, and individuals with

disabilities.

d. Review the findings of fact and

decisions of each impartial due process

hearing conducted under appendix F of this

part.

e. Assist in developing and reporting such

information and evaluations as may assist the

Department of Defense.

f. Make recommendations based on

program and operational information for

changes in policy and procedures and in the

budget, organization, and general

management of the special education

program.

g. Comment publicly on rules or standards

about the education of children with

disabilities, ages 3 to 21, inclusive.

h. Perform such other tasks as may be

requested by the USD(P&R) or the Director,

DoDDS.

2. The NAP members shall serve under

appointments that shall be for a term not to

exceed 3 years.

C. Reporting Requirements

Submit an annual report of the NAP’s

activities and suggestions to the USD(P&R)

and the Director, DoDDS, by July 31 of each

year. That report is exempt from formal

review and licensing under section E. of DoD

Instruction 7750.7.2

Appendix D to Part 57—DoD

Coordinating Committee on Early

Intervention, Special Education, and

Medically Related Services

A. Committee Membership

The committee shall meet at least twice

yearly to facilitate collaboration in early

intervention, special education, and

Medically Related Services (MRS) in the

Department of Defense. The committee shall

consist of the following members:

1. A representative of the USD(P&R) or

designee, who shall serve as the Chair.

2. Representatives of the Secretaries of the

Military Departments.

3. Representatives of the Assistant

Secretary of Defense (Health Affairs)

(ASD(HA)).
Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 2577

1Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161. 2See footnote 1 to section A. of this appendix.

4. Representatives from the DoD school

systems (domestic and overseas).

5. Representatives from the GC, DoD.

B. Responsibilities

1. Advise and assist the USD(P&R) in the

performance of his or her responsibilities.

2. At the direction of the USD(P&R), advise

and assist the Military Departments, and the

DoD school systems (overseas and domestic)

in the coordination of services among

providers of early intervention, special

education, and MRS.

3. Ensure compliance in the provision of

early intervention services for infants and

toddlers and special education and related

services for children ages 3 to 21, inclusive.

4. Oversee the coordination of early

intervention, special education, and related

services.

5. Review the recommendations of the

NAP and the Early Intervention ICC to

identify common concerns, ensure

coordination of effort, and forward issues

requiring resolution to the USD(P&R).

6. Promote the coordination of services and

information sharing among the providers of

early intervention, special education, and

MRS.

7. Assist in the coordination of

assignments of sponsors who have children

with disabilities who are or who may be

eligible for special education and MRS in the

DoDDS or the EIP through the Military

Departments.

Appendix E to Part 57—DoD InterComponent Coordinating Council (ICC)

on Early Intervention

A. Council Membership

The USD(P&R) shall appoint members to

the ICC. The Council shall meet at least

yearly in publicly announced, open meetings

that are accessible to the general public and

shall comply with DoD Directive 5105.4.1

The Council shall be comprised of the

following:

1. Parents. At least 20 percent of the

members shall be parents with infants or

toddlers with disabilities or children ages 12

or younger with disabilities, with knowledge

of, or experience with, programs for infants

and toddlers with disabilities. At least one

such member shall be a parent of an infant

or toddler or a child age 6 or younger.

2. Representatives of the Surgeons General

of the Military Departments.

3. Representatives of the family support

programs of the Military Departments.

4. Representatives from the ASD(HA).

5. Representative(s) from the DoDDS.

6. A representative from the GC, DoD.

B. Responsibilities

1. Advise and assist the Military medical

Departments in the performance of their

responsibilities, particularly the

identification of appropriate resources and

Agencies for providing early intervention

services and the promoting of interComponent agreements.

2. Advise and assist the DoDDS on the

transition of toddlers with disabilities to

preschool services.

3. Identify strategies to address areas of

conflict, overlap, duplication, or omission of

early intervention services.

4. Review policy memoranda on effective

inter-Department and inter-Component

collaboration.

5. Review reports of technical assistance

and monitoring activities and make

recommendations to improve the policies,

procedures, programs, and delivery of early

intervention services.

6. Make recommendations based on

program and operational information for

changes in the policy, procedures, budget,

organization, and general management of the

EIPs.

7. Provide advice and technical assistance

in the establishment, membership, and

operation of installation or command level

ICCs.

8. When necessary, establish committees

for short-term purposes comprised of parents

of children with disabilities, service

providers, and representatives of professional

groups.

9. Submit an annual report of its activities

and suggestions to the USD(P&R) by July 31

of each year. That report is exempt from

formal review and licensing under section E.

of DoD Instruction 7750.7.2

C. Procedures

1. The USD(P&R) shall nominate and select

all members to the ICC to include those listed

in section A.1. of this appendix.

2. Appointments shall be for a term not to

exceed 3 years except for DoD personnel who

are not representing the parent category of

membership.

3. The USD(P&R), or designee, shall call

and conduct the meeting of the Council.

Appendix F to Part 57—Mediation and

Hearing Procedures

A. Purpose

This appendix establishes requirements for

the resolution of conflicts through mediation

and impartial due process hearings. Parents

of infants, toddlers, and children who are

covered by this Instruction and, as the case

may be, the cognizant Military Department or

the DoDDS are afforded impartial mediation

and/or impartial due process hearings and

administrative appeals about the provision of

early intervention services, or the

identification, evaluation, educational

placement of, and the FAPE provided to,

such children by the Department of Defense,

in accordance with 20 U.S.C. 921 et seq. and

1400 et seq.

B. Mediation

1. Mediation may be initiated by either a

parent or the Military Department concerned,

or the DoDDS to resolve informally a

disagreement on the early intervention

services for an infant or toddler or the

identification, evaluation, educational

placement of, or the FAPE provided to, a

child age 3 to 21, inclusive. The cognizant

Military Department, rather than the DoDDS,

shall participate in mediation involving early

intervention services. Mediation shall consist

of, but not be limited to, an informal

discussion of the differences between the

parties in an effort to resolve those

differences. The parents and the school or

Military Department officials may attend

mediation sessions.

2. Mediation must be conducted,

attempted, or refused in writing by a parent

of the infant, toddler, or child whose early

intervention or special education services

(including related services) are at issue before

a request for, or initiation of, a formal due

process hearing authorized by this appendix.

Any request by the DoDDS or the Military

Department for a hearing under this

appendix shall state how that requirement

has been satisfied. No stigma may be attached

to the refusal of a parent to mediate or to an

unsuccessful attempt to mediate.

C. Hearing Administration

1. The Defense Office of Hearings and

Appeals (DOHA) shall have administrative

responsibility for the proceedings authorized

by sections D. through G. of this appendix.

2. This appendix shall be administered to

ensure that the findings, judgments, and

determinations made are prompt, fair, and

impartial.

3. Impartial hearing officers who shall be

DOHA Administrative Judges, shall be

appointed by the Director, DOHA, and shall

be attorneys in good standing of the bar of

any State, the District of Columbia, or a

territory or possession of the United States

who are independent of the DoDDS or the

Military Department concerned in

proceedings conducted under this appendix.

A parent shall have the right to be

represented in such proceedings, at no cost

to the Government, by counsel, and by

persons with special knowledge or training

with respect to the problems of individuals

with disabilities. The DOHA Department

counsel normally shall appear and represent

the DoDDS in proceedings conducted under

this appendix, when such proceedings

involve a child age 3 to 21, inclusive. When

an infant or toddler is involved, the Military

Department responsible under this

Instruction for delivering early intervention

services shall either provide its own counsel

or request counsel from DOHA.

D. Hearing Practice and Procedure

1. Hearing

a. Should mediation be refused or

otherwise fail to resolve the issues on the

provision of early intervention services to an

infant or toddler or the identification or

evaluation of such an individual, the parent

may request and shall receive a hearing

before a hearing officer to resolve the matter.

The parents of an infant or toddler and the

Military Department concerned shall be the

only parties to a hearing conducted under

this appendix.

b. Should mediation be refused or

otherwise fail to resolve the issues on the

provision of a FAPE to a child with a

disability, age 3 to 21, inclusive, or the

identification, evaluation, or educational

placement of such an individual, the parent

or the school principal, for the DoDDS, may
2578 Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations

request and shall receive a hearing before a

hearing officer to resolve the matter. The

parents of a child age 3 to 21, inclusive, and

the DoDDS shall be the only parties to a

hearing conducted under this appendix.

c. The party seeking the hearing shall

submit a written request, in the form of a

petition, setting forth the facts, issues, and

proposed relief, to the Director, DOHA. The

petitioner shall deliver a copy of the petition

to the opposing party (i.e., the parent or the

school principal, for the DoDDS, or the

military MTF commander, for the Military

Department), either in person or by first-class

mail, postage prepaid. Delivery is complete

on mailing. When the DoDDS or the Military

Department petitions for a hearing, it shall

inform the other parties of the deadline for

filing an answer under paragraph D.1.c. of

this appendix, and shall provide the other

parties with a copy of this part.

d. An opposing party shall submit an

answer to the petition to the Director, DOHA,

with a copy to the petitioner, within 15

calendar days of receipt of the petition. The

answer shall be as full and complete as

possible, addressing the issues, facts, and

proposed relief. The submission of the

answer is complete on mailing.

e. In 10 calendar days after receiving the

petition, the Director, DOHA, shall assign a

hearing officer, who then shall have

jurisdiction over the resulting proceedings.

The Director, DOHA, shall forward all

pleadings to the hearing officer.

f. The questions for adjudication shall be

based on the petition and the answer, if a

party may amend a pleading if the

amendment is filed with the hearing officer

and is received by the other parties at least

5 calendar days before the hearing.

g. The Director, DOHA, shall arrange for

the time and place of the hearing, and shall

provide administrative support. Such

arrangements shall be reasonably convenient

to the parties.

h. The purpose of a hearing is to establish

the relevant facts necessary for the hearing

officer to reach a fair and impartial

determination of the case. Oral and

documentary evidence that is relevant and

material may be received. The technical rules

of evidence shall be relaxed to permit the

development of a full evidentiary record,

with the ‘‘Federal Rules of Evidence’’ (Rules

1–1102) of 28 U.S.C., serving as a guide.

i. The hearing officer shall be the presiding

officer, with judicial powers to manage the

proceeding and conduct the hearing. Those

powers shall include the authority to order

an independent evaluation of the child at the

expense of the DoDDS or the Military

Department concerned and to call and

question witnesses.

j. Those normally authorized to attend a

hearing shall be the parents of the individual

with disabilities, the counsel and personal

representative of the parents, the counsel and

professional employees of the DoDDS or the

Military Department concerned, the hearing

officer, and a person qualified to transcribe

or record the proceedings. The hearing officer

may permit other persons to attend the

hearing, consistent with the privacy interests

of the parents and the individual with

disabilities, if the parents have the right to an

open hearing on waiving in writing their

privacy rights and those of the individual

with disabilities.

k. A verbatim transcription of the hearing

shall be made in written or electronic form

and shall become a permanent part of the

record. A copy of the written transcript or

electronic record of the hearing shall be made

available to a parent on request and without

cost. The hearing officer may allow

corrections to the written transcript or

electronic recording for conforming it to

actual testimony after adequate notice of

such changes is given to all parties.

l. The hearing officer’s decision of the case

shall be based on the record, which shall

include the petition, the answer, the written

transcript or the electronic recording of the

hearing, exhibits admitted into evidence,

pleadings or correspondence properly filed

and served on all parties, and such other

matters as the hearing officer may include in

the record, if such matter is made available

to all parties before the record is closed

under paragraph D.1.m. of this appendix.

m. The hearing officer shall make a full

and complete record of a case presented for

adjudication.

n. The hearing officer shall decide when

the record in a case is closed.

o. The hearing officer shall issue findings

of fact and render a decision in a case not

later than 50 calendar days after being

assigned to the case, unless a discovery

request under section D.2. of this appendix,

is pending.

2. Discovery

a. Full and complete discovery shall be

available to parties to the proceeding, with

the ‘‘Federal Rules of Civil Procedure,’’ Rules

26–37, codified at 28 U.S.C. serving as a

guide.

b. If voluntary discovery cannot be

accomplished, a party seeking discovery may

file a motion with the hearing officer to

accomplish discovery, provided such motion

is founded on the relevance and materiality

of the proposed discovery to the issues. An

order granting discovery shall be enforceable

as is an order compelling testimony or the

production of evidence.

c. A copy of the written or electronic

transcription of a deposition taken by the

DoDDS or the Military Department concerned

shall be made available free of charge to a

parent.

3. Witnesses; Production of Evidence

a. All witnesses testifying at the hearing

shall be advised that it is a criminal offense

knowingly and willfully to make a false

statement or representation to a Department

or Agency of the U.S. Government as to any

matter in the jurisdiction of that Department

or Agency. All witnesses shall be subject to

cross-examination by the parties.

b. A party calling a witness shall bear the

witness’ travel and incidental expenses

associated with testifying at the hearing. The

DoDDS or the Military Department concerned

shall pay such expenses when a witness is

called by the hearing officer.

c. The hearing officer may issue an order

compelling the attendance of witnesses or the

production of evidence on the hearing

officer’s own motion or, if good cause be

shown, on motion of a party.

d. When the hearing officer determines that

a person has failed to obey an order to testify

or to produce evidence, and such failure is

in knowing and willful disregard of the

order, the hearing officer shall so certify.

e. The party or the hearing officer seeking

to compel testimony or the production of

evidence may, on the certification provided

for in paragraph D.3.d. of this appendix, file

an appropriate action in a court of competent

jurisdiction to compel compliance with the

hearing officer’s order.

4. Hearing Officer’s Findings of Fact and

Decision

a. The hearing officer shall make written

findings of fact and shall issue a decision

setting forth the questions presented, the

resolution of those questions, and the

rationale for the resolution. The hearing

officer shall file the findings of fact and

decision with the Director, DOHA, with a

copy to the parties.

b. The Director, DOHA, shall forward to

the Director, DoDDS, or to the Military

Department concerned, and to the NAP or the

ICC, as appropriate, copies with all

personally identifiable information deleted,

of the hearing officer’s findings of fact and

decision or, in cases that are administratively

appealed, of the final decision of the DOHA

Appeal Board.

c. The hearing officer shall have the

authority to impose financial responsibility

for early intervention services, educational

placements, evaluations, and related services

under his or her findings of fact and decision.

d. The findings of fact and decision of the

hearing officer shall become final unless a

notice of appeal is filed under section F.1.

The DoDDS or the Military Department

concerned shall implement a decision as

soon as practicable after it becomes final.

E. Determination Without Hearing

1. At the request of a parent of an infant,

toddler, or child age 3 to 21, inclusive, when

early intervention or special educational

(including related) services are at issue, the

requirement for a hearing may be waived,

and the case may be submitted to the hearing

officer on written documents filed by the

parties. The hearing officer shall make

findings of fact and issue a decision in the

period fixed by paragraph D.1.o. of this

appendix.

2. The DoDDS or the Military Department

concerned may oppose a request to waive

that hearing. In that event, the hearing officer

shall rule on that request.

3. Documents submitted to the hearing

officer in a case determined without a

hearing shall comply with paragraph D.1.h.

of this appendix. A party submitting such

documents shall provide copies to all other

parties.

F. Appeal

1. A party may appeal the hearing officer’s

findings of fact and decision by filing a

written notice of appeal with the Director,

DOHA, within 5 calendar days of receipt of

the findings of fact and decision. The notice

of appeal must contain the appellant’s

certification that a copy of the notice of

appeal has been provided to all other parties.

Filing is complete on mailing.
Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 2579

1Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161.

2. Within 10 calendar days of filing the

notice of appeal, the appellant shall submit

a written statement of issues and arguments

to the Director, DOHA, with a copy to the

other parties. The other parties shall submit

a reply or replies to the Director, DOHA,

within 15 calendar days of receiving the

statement, and shall deliver a copy of each

reply to the appellant. Submission is

complete on mailing.

3. The Director, DOHA, shall refer the

matter on appeal to the DOHA Appeal Board.

It shall determine the matter, including the

making of interlocutory rulings, within 60

calendar days of receiving timely submitted

replies under section F.2. of this appendix.

The DOHA Appeal Board may require oral

argument at a time and place reasonably

convenient to the parties.

4. The determination of the DOHA Appeal

Board shall be a final administrative decision

and shall be in written form. It shall address

the issues presented and set forth a rationale

for the decision reached. A determination

denying the appeal of a parent in whole or

in part shall state that the parent has the right

under 20 U.S.C. 921 et seq. and 1400 et seq.,

to bring a civil action on the matters in

dispute in a district court of the United States

without regard to the amount in controversy.

5. No provision of this Instruction or other

DoD guidance may be construed as

conferring a further right of administrative

review. A party must exhaust all

administrative remedies afforded by this

appendix before seeking judicial review of a

determination made under this appendix.

G. Publication and Indexing of Final

Decisions

The Director, DOHA, shall ensure that final

decisions in cases arising under this

appendix are published and indexed to

protect the privacy rights of the parents who

are parties in those cases and the children of

such parents, in accordance with DoD

Directive 5400.111.

Dated: January 9, 1997.

L.M. Bynum,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 97–888 Filed 1–16–97; 8:45 am]

BILLING CODE 5000–04–M

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024–AC30

Badlands National Park, Commercial

Vehicles

AGENCY: National Park Service, Interior.

ACTION: Final rule.

SUMMARY: The National Park Service

(NPS) is implementing this final rule to

exempt local commercial vehicle traffic

on the 5.8 miles of park roads between

the park’s Northeast and Interior

Entrances from the general prohibition

on the use of NPS roads by commercial

vehicles. The Superintendent will retain

sufficient discretion: To require permits

for local commercial vehicles traveling

within or through the park; establish

terms and conditions of such permits;

and annually establish and adjust fees

for such use based on current

administrative costs. The rule will

prohibit the transportation of hazardous

materials on all park roads, except in

limited circumstances. The rule will

also prohibit certain oversize/

overweight vehicles on all park roads,

except in limited circumstances.

EFFECTIVE DATE: This rule is effective on

February 18, 1997.

FOR FURTHER INFORMATION CONTACT:

Irvin L. Mortenson, Superintendent,

Badlands National Park, P.O. Box 6,

Interior, SD 57750. Telephone 605–433–

5361.

SUPPLEMENTARY INFORMATION:

Background

South Dakota Route 240, from Exit

131 on Interstate 90, passes through the

northeast corner of Badlands National

Park, traversing the Badlands ‘‘Wall’’ at

Cedar Pass and intersects with South

Dakota Route 377 which, in turn,

connects with South Dakota Route 44 at

the town of Interior. In 1929, Congress

passed legislation authorizing the

establishment of Badlands National

Monument, subject to the condition

‘‘that the State of South Dakota first

construct 30 miles of highways through

the ‘proposed park’ area in a manner

satisfactory to the Secretary of Interior.’’

After the State of South Dakota

completed the highway construction,

Badlands National Monument was

proclaimed on January 25, 1939. In

1941, the State relinquished ownership

to roads within the Monument’s

boundary.

A general park regulation, 36 CFR 5.6,

prohibits commercial traffic in National

Parks. Under the final regulation, local

commercial traffic would be allowed to

use the park road connecting the

Northeast entrance and the Interior

entrance. The transportation of certain

hazardous materials and oversize/

overweight vehicles on park roads will

be prohibited, except as permitted by

the Superintendent. The NPS may allow

transportation of certain hazardous

materials on park roads as necessary to

provide access to otherwise inaccessible

lands within or contiguous to the park,

or in emergency situations as

determined by the Superintendent.

The paving of South Dakota Highway

44 in 1986 considerably changed the

park’s recreational and commercial

vehicle patterns and number. In

December of 1989, in response to these

increases, Badlands National Park

mailed over 500 ‘‘scoping brochures’’ to

various organizations, agencies and

individuals seeking public participation

in the development of alternatives for

the management of commercial traffic in

the park. A public scoping meeting was

held on January 24, 1990, in Interior,

South Dakota, attended by

approximately 115 people. Following

the public meeting, written comments

also were solicited. Public input was

received during review of the

environmental assessment prepared for

the regulation of commercial traffic.

This review occurred in April of 1990.

Public comments received during that

time and NPS review of the issues are

reflected in the proposed rule.

Existing Conditions

Local commercial vehicles and some

long haul trucks continue to travel

through the Badlands National Park’s

northeast corner on 5.8 miles of park

road between the Northeast and the

Interior Entrances. South Dakota Route

240 connects with the Badlands Loop

Road at the Northeast Entrance and

South Dakota Route 377 connects to the

park road at the Interior Entrance. South

Dakota Routes 240 and 377 are exterior

to park boundaries and are maintained

by the State of South Dakota only up to

the park boundaries. Inside the park,

road maintenance is the responsibility

of the NPS.

South Dakota Routes 240 and 377 are

two-lane, paved rural highways

designed for a 55-mph speed limit for

all vehicle types. The park roads are

two-lane, paved roads designed for 45

mph and 25 mph speed limits. Their

purpose, as defined by the Park Road

Standards for the National Park System,

* * * ‘‘(R)emains in sharp contrast to that

of the Federal and State highway systems.

Park roads are not intended to provide fast

and convenient transportation; they are

intended to enhance visitor experience while

providing safe and efficient accommodation

of park visitors and to serve essential

management access needs. They are not,

therefore intended nor designed as

continuations of the State and Federal-aid

network.’’

Conclusion

Based on available data on road use

and relevant environmental analysis,

the impact of local commercial traffic on

park roads within Badlands National

Park is not sufficient to compel the NPS

to prohibit all local commercial traffic

on park roads between the Northeast