# Vol. 78 Friday,

No. 240 December 13, 2013

Part III



# Department of Defense

Office of the Secretary

32 CFR Part 57
Provision of Early Intervention and Special Education Services to Eligible
DoD Dependents; Proposed Rule


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**DEPARTMENT OF DEFENSE**

**Office of the Secretary**

**32 CFR Part 57**

**[Docket ID: DOD–2011–OS–0095]**

**RIN 0790–AI77**

**Provision of Early Intervention and Special Education Services to Eligible**  **DoD Dependents**

**AGENCY :**  Office of the Secretary, Department of Defense (DoD).

**ACTION :**  Proposed rule.

**SUMMARY :**  This proposed rule reissues the current regulations and establishes policy, assigns responsibilities, andimplements the non-funding and nonreporting provisions of chapter 33 of 20
U.S.C., ‘‘The Individuals with Disabilities Education Act (IDEA),’’ in DoD for: provision of early intervention services (EIS) to infants and toddlers
with disabilities and their families, as well as special education and related

services to children with disabilities entitled under this part to receive
education services from the DoD; implementation of a comprehensive, multidisciplinary program of EIS for

infants and toddlers with disabilities and their families who, but for age, are eligible to be enrolled in DoD schools; provision of a free appropriate public education (FAPE), including special
education and related services, for children with disabilities, as specified

in their individualized education programs (IEP), who are eligible to enroll in DoD schools; and monitoring of DoD programs providing EIS, and special education and related services for compliance with this part; and establishes a DoD Coordinating Committee to recommend policies and provide compliance oversight for early intervention and special education.

**DATES :**  Comments must be received by February 11, 2014.

**ADDRESSES :**  You may submit comments, identified by docket number and/or RIN number and title, by any of the following methods:

• Federal Rulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments.

• Mail: Federal Docket Management System Office, 4800 Mark Center Drive,
2nd Floor, East Tower, Suite 02G09,
Alexandria, VA 22350–3100.

Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this Federal Register document. The general policy for comments and other submissions from members of the public

is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact

information.

**FOR FURTHER INFORMATION CONTACT :**  Lorie A. Sebestyen, 703–588–0254.

**SUPPLEMENTARY INFORMATION :** 

I. Purpose of the Regulatory Action

a. This proposed rule would revise the current regulations in 32 CFR part 57 to incorporate the 2004 amendments

to the IDEA and would establish other policy and assign responsibilities toimplement the non-funding and nonreporting provisions of Parts B and C of the IDEA. Under 10 U.S.C. 2164(f) and 20 U.S.C. 927(c), DoD implements, within the DoD school system, the Department of Defense Education Activity (DoDEA), the applicable statutory provisions of Parts B and C of the IDEA, other than the funding and reporting provisions. This proposed rule brings the DoD into compliance with the requirements of the non-funding and non-reporting provisions of IDEA by updating and amending the DoD implementation of the IDEA within the DoD school system. The revisions will ensure that eligible children with

disabilities are afforded the services and safeguards as required by applicable statutory provisions of IDEA. The IDEA regulations in 34 CFR parts 300 and 303, which apply to States that receive funds from the U.S. Department of Education under IDEA Parts B and C, do not apply to the DoD school systems as DoD does

not receive funds under the IDEA. Nothing in the proposed regulations in 32 CFR part 57 would affect the applicability of the U.S. Department of Education’s regulations implementing IDEA in 34 CFR parts 300 and 303.

b. The authority for the proposed regulatory changes to 32 CFR part 57 is
10 U.S.C. 2164, 20 U.S.C. 921–932 and chapter 33, which is codified at 20 U.S.C. 1400 et seq.

II. Summary of the Major Provisions of the Regulatory Action in Question

This proposed rule identifies the services and procedural safeguards afforded to DoD dependent infants and

toddlers and their families who are eligible for early intervention services under the IDEA and this part; identifies the services and procedural safeguards afforded to DoD dependent children with disabilities age 3–21 (inclusive) who are eligible for a free and appropriate public education under the IDEA and this part; outlines procedures and timelines for the transition of young children from early intervention services to school-based preschool services; identifies the procedures available for resolution of disputes regarding the provision of early intervention services, or special
education and related services; establishes early intervention and special education monitoring and reporting requirements; and establishes procedures within the DoD for implementing the applicable statutory provisions of the IDEA and this part.

III. Costs and Benefits

The provision of early intervention and special education, and related services is funded through Congressional appropriations to the DoD. The Department of Defense Education Activity (DoDEA) and the medical elements of the Military Departments, which are responsible for providing services to children with special needs, receive their funding from DoD. DoDEA funding is in Defense-wide, Operation and

Maintenance funds. The cost of the special education program is included in the combined DoDEA/Military Departments cost that is used to operate all parts of the educational program. The approximate cost for the special education program for FY2011 was
$107,851,606.94. Total includes cost for personnel (salaries/benefits), contracts, travel, and equipment/supplies.

The approximate cost for the provision of early intervention and related services by the Military Departments is $32,000,000 annually. Total includes cost for personnel, travel, professional development, and materials/supplies.

This rule updates DoD guidance to

reflect the current version of therequirements resulting from the nonfunding and non-reporting provisions of the IDEA, thereby ensuring that eligible

infants and toddlers and children with disabilities, including those of military families, are aware of and provided the services and safeguards required by federal statute. The non-funding and non-reporting provisions of the IDEA are the substantive rights, protections, and procedural safeguards that apply to DoD. These are applicable as opposed to the ‘‘funding’’ and ‘reporting’ provisions

because DoD schools and child development centers do not receive funding from the US Department of
Education and therefore, the IDEA statutory reporting and related funding provisions do not apply to DoD.


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Regulatory Procedures

Executive Order 12866, ‘‘Regulatory Planning and Review’’ and Executive Order 13563, ‘‘Improving Regulation and Regulatory Review’’

It has been certified that 32 CFR part

57 does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles

set forth in these Executive Orders.

Section 202, Public Law 104–4,

‘‘Unfunded Mandates Reform Act’’

It has been certified that 32 CFR part

57 does not contain a Federal mandate that may result in expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96–354, ‘‘Regulatory Flexibility Act’’ (5 U.S.C. 601)

It has been certified that 32 CFR part 57 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a

substantial number of small entities.

Public Law 96–511, ‘‘Paperwork Reduction Act’’ (44 U.S.C. Chapter 35)

It has been certified that 32 CFR part 57 does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. These reporting requirements have been approved by OMB and assigned OMB

Control Number 0704–0411.

Executive Order 13132, ‘‘Federalism’’

It has been certified that 32 CFR part

57 does not have federalism implications, as set forth in Executive

Order 13132. This rule does not have

substantial direct effects on:

(1) The States; (2) The relationship between the
National Government and the States; or

(3) The distribution of power and responsibilities among the various

levels of Government. 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 proposed to be revised to read as

follows:

**PART 57—PROVISION OF EARLY**

**INTERVENTION AND SPECIAL**

**EDUCATION SERVICES TO ELIGIBLE**

**DOD DEPENDENTS**

Sec. 57.1 Purpose. 57.2 Applicability.

57.3 Definitions. 57.4 Policy. 57.5 Responsibilities.

57.6 Procedures.

Authority: 10 U.S.C. 2164, 20 U.S.C. 921– 932 and chapter 33.

**§ 57.1 Purpose.**

(a) This part: (1) Establishes policy and assigns responsibilities to implement, other than the funding and reporting provisions, chapter 33 of 20 U.S.C. (also

known and hereinafter referred to in

this Part as ‘‘Individuals with Disabilities Education Act (IDEA)’’) in DoD, including DoD schools, pursuant to 20 U.S.C. 927(c) and 10 U.S.C. 2164 (f):

(i) Provision of early intervention services (EIS) to infants and toddlers
with disabilities and their families, as well as special education and related

services to children with disabilities entitled under this part to receive

education services from the DoD in
accordance with 20 U.S.C. 921–932, 10
U.S.C. 2164, and DoD Directive 1342.20 (see http://www.dtic.mil/whs/directives/ corres/pdf/134220p.pdf ), and the IDEA. (ii) Implementation of a comprehensive, multidisciplinary program of EIS for infants and toddlers

with disabilities and their DoD civilianemployed and military families.

(iii) Provision of a free appropriate public education (FAPE), including special education and related services

for children with disabilities who are eligible to enroll in DoDEA schools, as specified in their respective individualized education programs (IEP).

(iv) Monitoring of DoD programs providing EIS, or special education and related services for compliance with this

part.

(2) Establishes a DoD Coordinating Committee to recommend policies and provide compliance oversight for early intervention and special education.

(3) Authorizes the issuance of other guidance as necessary. (b) Reserved.

**§ 57.2 Applicability.**

This part applies to: (a) Office of the Secretary of Defense (OSD), the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the
Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD
Field Activities, and all other organizational entities in the DoD (hereinafter referred to collectively as the ‘‘DoD Components’’).

(b) Eligible infants, toddlers, and children receiving or entitled to receive early intervention services (EIS) or special education and related services from the DoD, whose parents have notelected voluntary enrollment in a nonDepartment of Defense Education Activity (DoDEA) school.

(c) All schools operated under the oversight of the DoDEA, including:

(1) Domestic Dependent Elementary and Secondary Schools (DDESS) operated by the DoD pursuant to 10

U.S.C. 2164.

(2) Department of Defense Dependents Schools (DoDDS) operated by the DoD pursuant to 20 U.S.C. 921–932 (hereinafter referred to as ‘‘overseas’’ schools).

(d) Does not create any substantive rights or remedies not otherwise authorized by the IDEA or other relevant law; and may not be relied upon by any person, organization, or other entity to allege a denial of substantive rights or remedies not otherwise authorized by

the IDEA or other relevant law.

**§ 57.3 Definitions.**

Unless otherwise noted, these terms and their definitions are for the purpose of this part.

Age of majority. The age when a person acquires the rights and responsibilities of being an adult. For purposes of this part, a child attains majority at age 18, unless the child has been determined by a court of competent jurisdiction to be incompetent, or if the child has not been determined to be incompetent, he or she is incapable of providing informed consent with respect to his or her educational program.

Alternate assessment. A process that measures the performance of students with disabilities unable to participate, even with appropriate accommodations provided as necessary and as determined by their respective CSC, in a system-wide assessment.

Alternative educational setting (AES). A temporary setting in or out of the school, other than the setting normally


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attended by the student (e.g., alternative classroom, home setting, installation library) determined by school authorities as the appropriate learning

environment for a student because of learning or behavioral issues.

Assessment for early intervention. The ongoing procedures used by appropriately qualified personnel throughout the period of a child’s eligibility determination to identify the child’s unique needs; the family’s strengths and needs related to development of the child; and the nature and extent of early intervention services (EIS) that are needed by the child and the child’s family to meet their unique needs. Also may include reviewing pertinent records and conducting observations.

Assistive technology device. Any item, piece of equipment, or product system, whether acquired commercially or off
the shelf, modified, or customized, that
is used to increase, maintain, or improve functional capabilities of

children with disabilities. This term

does not include a medical device that is surgically implanted or the replacement of that device.

Assistive technology service. Any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device. The term includes: evaluating the needs of an individual with a disability, including a

functional evaluation in the individual’s customary environment; purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by individuals with disabilities; selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices; coordinating and using other therapies,
interventions, or services with assistive technology devices, such as those associated with existing educational and rehabilitative plans and programs; training or technical assistance for an

individual with disabilities or the family of an individual with disabilities; and 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.

Case study committee (CSC). A school-level multidisciplinary team, including the child’s parents, responsible for making educational decisions concerning a child with a disability. Child-find. An outreach program used by DoDEA, the Military Departments, and the other DoD Components to locate, identify, and evaluate children from birth to age 21, inclusive, who may require EIS or special education and

related services. All children who are eligible to attend a DoD school under 20

U.S.C. 921–932 or 10 U.S.C. 2164 fall within the scope of the DoD child-find responsibilities. Child-find activities

include the dissemination of
information to Service members, DoD employees, and parents of students eligible to enroll in DoDEA schools; the identification and screening of children; and the use of referral procedures.

Children with disabilities. Children, ages 3 through 21, inclusive, who are
entitled to enroll, or are enrolled, in a

DoD school in accordance with 20
U.S.C. 921–932 and 10 U.S.C. 2164, have not graduated from high school or completed the General Education Degree, have one or more disabilities in accordance with section 1401(3) of the IDEA, and need and qualify for special

education and related services.

Complainant. Person making an administrative complaint.

Comprehensive system of personnel development (CSPD). A system of personnel development that is developed in coordination with the Military Departments and the Director, DoDEA. CSPD is the training of professionals, paraprofessionals, and primary referral source personnel with respect to the basic components of early intervention, special education, and related services. CSPD may also include implementing innovative strategies and

activities for the recruitment and retention of personnel providing special education and related services, ensuring that personnel requirements are established and maintaining qualifications to ensure that personnel necessary to carry out the purposes of this part are appropriately and adequately prepared to provide special education and related services. Training of personnel may include working within the military and with military
families, the emotional and social development of children, and transition services from early intervention to preschool and transitions withineducational settings and to postsecondary environments.

Consent. The permission obtained from the parent ensuring they are fully

informed of all information about the activity for which consent is sought, in his or her native language or in another mode of communication if necessary, and that the parent understands and agrees in writing to the implementation of the activity for which permission is sought.

Continuum of alternative placements. Instruction in general education classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; includes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

Controlled substance. As defined in
Sections 801–971 of title 21, United States Code (also known as the
‘‘Controlled Substances Act, as amended’’).

Day. A calendar day, unless otherwise indicated as a business day or a school day.

(1) Business day. Monday through Friday except for Federal and State holidays.

(2) School day. Any day, including a partial day, that children are in

attendance at school for instructional purposes. School day has the same meaning for all children in school, including children with and without

disabilities.

Department of Defense Education Activity (DoDEA). The Department of Defense Education Activity is a DoD Field Activity under the direction, operation, and control of the Under Secretary of Defense for Personnel & Readiness (USD)(P&R) and Assistant Secretary of Defense for Readiness & Force Management (ASD)(R&FM). The mission of DoDEA is to provide an exemplary education by effectively and efficiently planning, directing, and overseeing the management, operation,

and administration of the DoD Domestic Dependent Elementary and Secondary Schools (DDESS) and the DoD Dependents Schools (DoDDS), which provide instruction from kindergarten through grade 12 to eligible dependents.

Department of Defense Dependents Schools (DoDDS). The overseas schools (kindergarten through grade 12)

established in accordance with 20

U.S.C. 921–932.

Department of Defense Education Activity School. A DDESS or DoDDS school operated under the oversight of

DoDEA.

Developmental delay. A significant discrepancy, as defined and measured by implementing guidance authorized by this part and confirmed by clinical observation and judgment, in the actual functioning of an infant, toddler, or child, birth through age 7, whencompared with the functioning of a nondisabled infant, toddler, or child of the same chronological age in any of the following developmental areas: Physical, cognitive, communication,


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social or emotional, or adaptive. A child determined to have a developmental delay before the age of 7 may maintain that eligibility through age 9.

DoD school systems. The school systems established under the

authorities of 20 U.S.C. 921–932 and 10

U.S.C. 2164.

Domestic Dependent Elementary and Secondary Schools (DDESS). The schools (pre-kindergarten through grade 12) established in accordance with 10

U.S.C. 2164.

Early intervention service provider. An individual that provides early

intervention services in accordance with this part.

Educational and Developmental Intervention Services (EDIS). Programs operated by the Military Departments to provide EIS to eligible infants and
toddlers with disabilities, and related services to eligible children with disabilities in accordance with this part.

EIS. Developmental services for
infants and toddlers with disabilities, as defined in this part, that are provided under the supervision of a Military Department, including evaluation, individualized family service plan (IFSP) development and revision, and service coordination, provided at no cost to the child’s parents (except for incidental fees also charged to children without disabilities).

Extended school year (ESY) services. Special education and related services that are provided to a child with a disability beyond the normal DoDEA school year, in accordance with the child’s IEP, are at no cost to the parents,

and meet the standards of the DoDEA school system.

Evaluation: The method used by a multidisciplinary team to conduct and

review the assessments of the child and other relevant input to determine whether a child has a disability and a child’s initial and continuing need to receive EIS or special education and

related services.

FAPE. Special education and related services that are provided under the general supervision and direction of DoDEA at no cost to parents of a child with a disability, in conformity with an IEP in accordance with the requirements of the IDEA and DoD guidance.

Functional behavioral assessment. A process for identifying the events that predict and maintain patterns of problem behavior.

General education curriculum. The curriculum adopted by the DoDEA school systems for all children from preschool through secondary school. To the extent applicable to an individual child with a disability, the general

education curriculum can be used in any educational environment along a continuum of alternative placements.

IDEA. The Individuals with
Disabilities Education Act, 20 U.S.C.

1400 et seq. , is the federal law that governs the provision of early intervention and special education and related services to eligible children with

disabilities.

IEP. A written document that is developed, reviewed, and revised at a meeting of the CSC, identifying the required components of the individualized education program for a child with a disability.

Individualized Family Service Plan (IFSP). A written document identifying the specially designed services for an infant or toddler with a disability and the family of such infant or toddler.

Independent educational evaluation (IEE). An evaluation conducted by a qualified examiner who is not an EDIS examiner or an examiner funded by the

DoDEA school who conducted the evaluation with which the parent is in disagreement.

Infants and toddlers with disabilities. Children from birth up to 3 years of age,
inclusive, who need EIS because

(1) They are experiencing developmental delays as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: cognitive development, physical development including vision and hearing, communication development, social or emotional development, adaptive development; or

(2) They have a diagnosed physical or mental condition that has a high probability of resulting in developmental delay.

Inter-component. Cooperation among DoD organizations and programs, ensuring coordination and integration of
services to infants, toddlers, children
with disabilities, and their families.

Manifestation determination. The process in which the CSC reviews all

relevant information and the relationship between the child’s disability and the child’s behavior to

determine whether the behavior is a manifestation of the child’s disability and to identify what disciplinary proceedings will be permissible under IDEA and this part.’’ Mediation. A confidential, voluntary, informal dispute resolution process that is provided at no charge to the parents, whether or not a due process petition has been filed, in which the disagreeing parties engage in a discussion of issues related to the provision of the child’s EIS or special education and related

services in accordance with the requirements of IDEA and this part, in the presence of, or through, a qualified and impartial mediator who is trained in effective mediation techniques.

Medical services. Those evaluative, diagnostic, and therapeutic, services provided by a licensed and credentialed medical provider to assist providers of EIS, regular and special education teachers, and providers of related services to develop and implement

IFSPs and IEPs.

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 parents of the

child.

Natural environment. A setting, including home and community, in

which children without disabilities participate.

Non-academic and extracurricular

services and activities. Services and activities including counseling services; athletics, transportation, health services; recreational activities; special interest groups or clubs sponsored by the DoDEA school system; and referrals to agencies that provide assistance to

individuals with disabilities and employment of students, including employment by a public agency and assistance in making outside employment available.

Non-DoD placement. An assignment by the DoDEA school system of a child with a disability to a non-DoDEA school or facility.

Non-DoD school or facility. A public or private school or other educational program not operated by DoD.

Parent. The natural, adoptive, or foster parent of a child, a guardian, an individual acting in the place of a natural or adoptive parent with whom
the child lives, or an individual who is legally responsible for the child’s welfare if that person contributes at least one-half of the child’s support.

Personally identifiable information. Information that would make it possible to identify the infant, toddler, or child with reasonable certainty. Information
includes: the name of the child, the child’s parent or other family member; the address of the child; a personal
identifier, such as the child’s social security number or student number; or a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.


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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 bring the child to the attention of the

EDIS.

Psychological services. Psychological services include: Administering psychological and educational tests and other assessment procedures; interpreting assessment results; obtaining, integrating and interpreting

information about child behavior and conditions relating to learning; consulting with other staff members in planning school programs to meet the special educational needs of children as indicated by psychological tests,
interviews, direct observations, and behavioral evaluations; planning and managing a program of psychological services, including psychological counseling for children and parents; and assisting in developing positive behavioral intervention strategies.

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 EIS. Procedures to determine the availability of information on EIS 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 evaluation or assessment, EIS, special education or
related services to an infant, toddler, or child with a disability.

Rehabilitation counseling. Services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of the student with a disability. The term also

includes vocational rehabilitation services provided to a student with disabilities by vocational rehabilitation programs funded in accordance with the
Rehabilitation Act of 1973, 29 U.S.C. chapter 16.

Related services. Transportation and such developmental, corrective, and other supportive services, as required, to assist a child with a disability to benefit from special education under the child’s IEP. The term includes speech-language pathology and audiology; interpreting services; psychological services; physical and occupational therapy; recreation including therapeutic
recreation; social work services; and school nurse services designed to enable a child with a disability to receive a
FAPE as described in the child’s IEP; early identification and assessment of disabilities in children; counseling services including rehabilitation counseling; orientation and mobility services; and psychological and medical services for diagnostic, evaluative, and consultative purposes. The term does

not include a medical device that is surgically implanted or the replacement

of such.

Related services assigned to the Military Departments. Medical and psychological services, audiology, and optometry for diagnostic or evaluative purposes to determine whether a particular child has a disability, the type and extent of the disability, and the child’s eligibility to receive special

services. In the overseas and domestic areas, transportation is provided as a related service by the Military Department when transportation is prescribed in an IFSP for an infant or toddler, under 3 years of age, with

disabilities.

Resolution meeting. The meeting between parents and relevant school personnel, which must be convened within a specified number of days after receiving notice of a due process complaint and prior to the initiation of a due process hearing, in accordance with the IDEA and this part. The purpose of the meeting is for the parent to discuss the due process complaint and the facts giving rise to the complaint so that the school has the opportunity to resolve the complaint.

Resolution period. That period of time following a resolution meeting, the length of which is defined in this part, during which the school is afforded an opportunity to resolve the parent’s concerns before the dispute can proceed to a due process hearing.

Separate facility. A school or a portion of a school, regardless of whether it is operated by DoD, attended exclusively by children with

disabilities.

Serious bodily injury. A cut, abrasion, bruise, burn, illness, or any other injury to the body, which involves a
substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

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.

Special education. Specially designed instruction, which is provided at no cost to the parents, 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; and instruction in physical education.

Specially designed instruction. An instruction whose content, methodology, or delivery has been adapted to address the unique needs of an eligible child in accordance with this part; and that ensures access of the child to the general curriculum, so that she or

he can meet the educational standards within the DoDEA school systems.

Supplementary aids and services.
Include aids, services, and other supports that are provided in regular
education classes, other educationalrelated settings, and in extracurricular and nonacademic settings to enable

children with disabilities to be educated

with non-disabled children to the maximum extent appropriate.

Transition services. A coordinated set of activities for a child with a disabilitythat is designed to be within a resultsoriented process, that is focused on improving the academic and functional

achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary
education, vocational education, integrated employment (including supported employment), continuing and
adult education, adult services, independent living, or community participation, and is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests.

Transportation. A service that includes transportation and related costs, including the cost of mileage or travel by taxi, common carrier, tolls, and parking expenses, that are necessary to: enable an eligible child with a disability and the family to receive EIS, when prescribed in a child’s IFSP; enable an eligible child with a disability to receive special education and related services, when prescribed as a related service by
the child’s IEP; and enable a child to

obtain an evaluation to determine eligibility for special education and related services, if necessary. It also includes specialized equipment, including special or adapted buses, lifts, and ramps needed to transport children

with disabilities.

Weapon. Defined in Department of Defense Education Activity Regulation 2051.1 (see http://www.dodea.edu/foia/ iod/pdf/2051

_ 1a.pdf ).


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**§ 57.4 Policy.**

It is DoD policy that: (a) Infants and toddlers with disabilities and their families who (but for the children’s age) would be entitled

to enroll in a DoDEA school in

accordance with 20 U.S.C. 921–932 or 10 U.S.C. 2164 shall be provided EIS.

(b) The DoD shall engage in child-find activities for all children age birth to 21, inclusive, who are entitled by 20 U.S.C.

921–932 or 10 U.S.C. 2164 to enroll or

are enrolled in a DoDEA school.

(c) Children with disabilities who meet the enrollment eligibility criteria

of 20 U.S.C. 921–932 or 10 U.S.C. 2164 shall be provided a FAPE in the least restrictive environment, including if appropriate to the needs of the individual child, placement in a residential program for children with

disabilities in accordance with the child’s IEP and at no cost to the parents.

(d) The Military Departments and DoDEA shall cooperate in the delivery of related services prescribed by section 1401(26) of the IDEA and this part as may be required to assist eligible

children with disabilities to benefit from special education.

(e) Children with disabilities who are eligible to enroll in a DoDEA school in

accordance with 20 U.S.C. 921–932 or

10 U.S.C. 2164 shall not be entitled to provision of a FAPE by DoDEA, or to the procedural safeguards prescribed by this part in accordance with the IDEA, if:

(1) The sponsor is assigned to an

overseas area where a DoDEA school is available within the commuting area of the sponsor’s overseas assignment, but the sponsor does not elect to enroll the

child in a DoDEA school for reasons other than DoDEA’s alleged failure to provide a FAPE; or

(2) The sponsor is assigned in the United States or in a U.S. territory, commonwealth, or possession and the sponsor’s child meets the eligibility requirements for enrollment in a DoDEA school, but the sponsor does not elect to

enroll the child in a DoDEA school for reasons other than DoDEA’s alleged failure to provide a FAPE.

**§ 57.5 Responsibilities.**

(a) The Assistant Secretary of Defense for Readiness and Force Management (ASD(R&FM)) under the authority, direction, and control of the (USD(P&R))

shall:

(1) Establish, in accordance with DoD Instruction 5105.18 (see http:// www.dtic.mil/whs/directives/corres/pdf/ 510518p.pdf ), a DoD Coordinating Committee to recommend policies regarding the provision of early intervention and special education

services. (2) Ensure the development, implementation and administration of a system of services for infants and

toddlers with disabilities and their
families and children with disabilities; and provide compliance oversight for early intervention and special education

in accordance with DoD Directive 5124.02 (see http://www.dtic.mil/whs/ directives/corres/pdf/512402p.pdf ); 20 U.S.C. 921–932; the applicable statutory provision of the IDEA; 10 U.S.C. 2164;

DoD Directive 1342.20 and implementing guidance authorized by this part.

(3) Oversee DoD Component collaboration on the provision of services and transition support to infants, toddlers, and school-aged

children.

(4) Develop a DoD-wide comprehensive child-find system to identify eligible infants, toddlers, and children ages birth through 21 years, inclusive, who may require early intervention or special education
services, in accordance with the IDEA.

(5) Develop and provide guidance as necessary for the delivery of services for

children with disabilities and for the protection of procedural rights

consistent with the IDEA and implementing guidance authorized by this part.

(6) Coordinate with the Secretaries of the Military Departments to ensure that their responsibilities, as detailed in paragraph (f) of this section, are completed.

(7) Direct the development and implementation of a comprehensive system of personnel development (CSPD) for personnel serving infants

and toddlers with disabilities and their
families, and children with disabilities.

(8) Develop requirements and procedures for compiling and reporting data on the number of eligible infants

and toddlers with disabilities and their

families in need of EIS and children in need of special education and related

services.

(9) Require DoDEA schools provide educational information for assignment

coordination and enrollment in the Services’ Exceptional Family Member Program or Special Needs Program

consistent with DoD Instruction 1315.19 (see http://www.dtic.mil/whs/directives/ corres/pdf/131519p.pdf ). (10) Identify representatives to serve on the Department of Defense Coordinating Committee on Early Intervention, Special Education, and Related Services (DoD–CC).

(11) Ensure delivery of appropriate early intervention and educational services to eligible infants, toddlers, and
children, and their families as appropriate pursuant to the IDEA and this part through onsite monitoring of special needs programs and submission of an annual compliance report.

(b) The Assistant Secretary of Defense for Health Affairs (ASD(HA)), under the authority, direction, and control of the USD(P&R), shall:

(1) Advise the USD(P&R) and consult

with the General Counsel of the Department of Defense (GC, DoD) regarding the provision of EIS and

related services.

(2) Oversee development of provider workload standards and performance levels to determine staffing requirements for EIS and related

services. The standards shall take into account the provider training needs, the requirements of this part, and the additional time required to provide EIS

and related services in schools and the
natural environments, and for the

coordination with other DoD Components.

(3) Establish and maintain an automated data system to support the operation and oversight of the Military Departments’ delivery of EIS and related

services.

(4) Assign geographical areas of responsibility for providing EIS and related services under the purview of healthcare providers to the Military Departments. Periodically review the alignment of geographic areas to ensure that resource issues (e.g., base closures)

are considered in the cost-effective delivery of services.

(5) Establish a system for measuring EIS program outcomes for children and

their families.

(6) Resolve disputes among the DoD Components providing EIS.

(c) The Director, Tricare Management Activity, under the authority, direction, and control of the ASD(HA), shall identify representatives to serve on the

DoD–CC.

(d) The Director, DoD Education Activity (DoDEA), under the authority, direction, and control of the USD(P&R), and through the ASD(R&FM), in
accordance with DoD Directive 5124.02,

shall ensure that:

(1) Children who meet the enrollment eligibility criteria of 20 U.S.C. 921–932

or 10 U.S.C. 2164 are identified and referred for evaluation if they are suspected of having disabilities, and are afforded appropriate procedural safeguards in accordance with the IDEA and implementing guidance authorized by this part.

(2) Children who meet the enrollment eligibility criteria of 20 U.S.C. 921–932

or 10 U.S.C. 2164 shall be evaluated in

accordance with the IDEA and implementing guidance authorized by


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this part, as needed. If found eligible for special education and related services, they shall be provided a FAPE in
accordance with an IEP, with services

delivered in the least restrictive environment and procedural safeguards in accordance with the requirements of the IDEA and implementing guidance authorized by this part.

(3) Records are maintained on the special education and related services provided to children in accordance with this part, pursuant to 32 CFR part 310.

(4) Related services as prescribed in

an IEP for a child with disabilities

enrolled in a DoDEA school in the
United States, its territories, commonwealths, or possessions are provided by DoDEA.

(5) Transportation is provided by

DoDEA in overseas and domestic areas

as a related service to children with disabilities when transportation is prescribed in a child’s IEP. The related service of transportation includes necessary accommodations to access and leave the bus and to ride safely on the bus and transportation between the
child’s home, the DoDEA school, or another location, as specified in the

child’s IEP.

(6) Appropriate personnel participate in the development and implementation

of a CSPD.

(7) Appropriate written guidance is issued to implement the requirements pertaining to special education and

related services under 20 U.S.C. 921–
932, 10 U.S.C. 2164, and the IDEA.

(8) Activities to identify and train personnel to monitor the provision of services to eligible children with

disabilities are funded.

(9) DoDEA schools that operate pursuant to 20 U.S.C. 921–932 and 10

U.S.C. 2164 conduct child find activities for all eligible children;

(10) A free appropriate public education (FAPE) is made available to

children who are entitled to enroll in

DoDEA schools under the enrollment eligibility criteria of 10 U.S.C. 2164 or

20 U.S.C. 921–932. However, a FAPE, or the procedural safeguards prescribed by the IDEA and this part, shall NOT be
available to such children, if:

(i) The sponsor who is assigned to an

overseas area elects not to enroll his or

her child in a DoDEA school overseas

where a DoDEA school is available within the commuting area of the sponsor’s overseas assignment; or

(ii) The sponsor is assigned in the United States or in a U.S. territory, commonwealth, or possession and the sponsor’s child meets the eligibility requirements for enrollment in a DoDEA school, but the sponsor does not elect to

enroll the child in a DoDEA school for reasons other than DoDEA’s alleged failure to provide a FAPE.

(11) The educational needs of

children with and without disabilities are met comparably, in accordance with § 57.6 (b) of this part.

(12) Educational facilities and services (including the start of the school day and the length of the school year) operated by DoDEA for children

with and without disabilities are comparable.

(13) All programs providing special

education and related services are monitored for compliance with this part and with the substantive rights, protections, and procedural safeguards of the IDEA and this part at least once

every 3 years.

(14) A report to the USD(P&R) is submitted not later than September 30 of each year certifying whether all schools are in compliance with the IDEA and this part, and are affording

children with disabilities the substantive rights, protections, and procedural safeguards of the IDEA and this part.

(15) Transition assistance is provided in accordance with IDEA and this part to promote movement from early intervention or preschool into the school setting.

(16) Transition services are provided in accordance with IDEA and this part

to facilitate the child’s movement intodifferent educational settings and postsecondary environments.

(e) The GC, DoD shall identify representatives to serve on the DoD–CC.

(f) The Secretaries of the Military Departments shall:

(1) Establish educational and developmental intervention services (EDIS) to ensure infants and toddlers

with disabilities are identified and provided EIS where appropriate, and are afforded appropriate procedural safeguards in accordance with the requirements of the IDEA and implementing guidance authorized by this part.

(2) Staff EDIS with appropriate professional staff, based on the services required to serve children with

disabilities.

(3) Provide related services required to be provided by a Military Department

in accordance with the mandates of this part for children with disabilities. In the overseas areas served by DoDEA schools, the related services required to be provided by a Military Department under an IEP necessary for the student to benefit from special education include medical services for diagnostic or evaluative purposes; social work; community health nursing; dietary, audiological, optometric, and psychological testing and therapy; occupational therapy; and physical therapy. Transportation is provided as a related service by the Military Department when it is prescribed in a

child’s IFSP for an infant or toddler birth up to 3 years of age, inclusive,

with disabilities. Related services shall

be administered in accordance with guidance issued pursuant to this part, including guidance from the ASD(HA) on staffing and personnel standards.

(4) Issue implementing guidance and forms necessary for the operation of EDIS in accordance with this part.

(5) Provide EIS to infants and toddlers
with disabilities and their families, and

related services to children with disabilities as required by this part at the same priority that medical care is provided to active duty military

members.

(6) Provide counsel from the Military Department concerned or request

counsel from the Defense Office of Hearings and Appeals (DOHA) to represent the Military Department in impartial due process hearings and administrative appeals conducted in accordance with this part for infants and toddlers birth up to 3 years of age (inclusive) with disabilities who are eligible for EIS.

(7) Execute Departmental responsibilities under the Exceptional Family Member program (EFMP) prescribed by DoD Instruction 1315.19.

(8) Train command personnel to fully understand their legal obligations to ensure compliance with and provide the services required by this part.

(9) Fund activities to identify and train personnel to monitor the provision of services to eligible children with

disabilities.

(10) Require the development of policies and procedures for providing, documenting, and evaluating EDIS, including EIS and related services provided to children receiving special

education in a DoDEA school.

(11) Maintain EDIS to provide necessary EIS to eligible infants and

toddlers with disabilities and related services to eligible children with disabilities in accordance with this part and the substantive rights, protections, and procedural safeguards of the IDEA, § 57.6(a) and § 57.6(c) of this part.

(12) Implement a comprehensive, coordinated, inter-component, community-based system of EIS for eligible infants and toddlers with disabilities and their families using the procedures established in § 57.6 (a) of this part and guidelines from the ASD(HA) on staffing and personnel

standards.


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(13) Provide transportation for EIS pursuant to the IDEA and this part.

(14) Provide transportation for children with disabilities pursuant to the IDEA and this part. The Military Departments are to provide transportation for a child to receive medical or psychological evaluations at a medical facility in the event that the local servicing military treatment facility (MTF) is unable to provide such services and must transport the child to another facility.

(15) Require that EDIS programs maintain the components of an EIS as required by the IDEA and this part, to

include:

(i) A comprehensive child-find system, including a system for making

referrals for services that includes timelines and provides for participation by primary referral sources, and that establishes rigorous standards for appropriately identifying infants and

toddlers with disabilities for services.

(ii) A public awareness program focusing on early identification of

infants and toddlers with disabilities to

include:

(A) Preparation of information materials for parents regarding the availability of EIS, especially to inform parents with premature infants or infants with other physical risk factors associated with learning or developmental complications.

(B) Dissemination of those materials to all primary referral sources, especially hospitals and physicians, for distribution to parents.

(C) A definition of developmental delay, consistent with § 57.6(g) of this part, to be used in the identification of

infants and toddlers with disabilities

who are in need of services.

(D) Availability of appropriate EIS. (iii) A timely, comprehensive, multidisciplinary evaluation of the functioning of each infant or toddler

and identification of the needs of the child’s family to assist appropriately in the development of the infant or

toddler.

(iv) Procedures for development of an Individualized Family Service Plan (IFSP) and coordination of EIS for families of eligible infants and toddlers

with disabilities.

(v) A system of EIS designed to support infants and toddlers and their families in the acquisition of skills needed to become functionally independent and to reduce the need for additional support services as toddlers

enter school.

(vi) A central directory of information on EIS resources and experts available to military families. (16) Implement a comprehensive system of personnel development consistent with the requirements of the IDEA and this part.

(17) Require that EDIS participate in the existing MTF quality assurance program, which monitors and evaluates

the medical services for children receiving such services as described by this part. Generally accepted standards of practice for the relevant medical
services shall be followed, to the extent consistent with the requirements of the IDEA and this part including provision
of EIS in a natural environment, to ensure accessibility, acceptability, and adequacy of the medical portion of the program provided by EDIS.

(18) Require transition services to promote movement from early intervention, preschool, and other educational programs into different educational settings and post-secondary

environments.

(19) Direct that each program providing EIS is monitored for compliance with this part, and with the substantive rights, protections, and procedural safeguards of the IDEA, at least once every 3 years.

(20) Submit a report to the USD(P&R) not later than September 30 of each year stating whether all EDIS programs are in compliance with this part and are affording infants and toddlers the substantive rights, protections, and procedural safeguards of the IDEA, as stated in § 57.6(f) of this part.

(21) Compile and report EDIS workload and compliance data using the system established by the ASD(HA) as stated in § 57.6(f).

(g) The Director, DOHA, under the authority, direction, and control of the GC, DoD/Director, Defense Legal Services Agency, shall:

(1) Ensure impartial due process hearings are provided in accordance with the IDEA and implementing guidance authorized by this part with respect to complaints related to special education and related services arising

under the IDEA.

(2) Ensure DOHA Department Counsel represents DoDEA in all due process proceedings arising under the IDEA for children age 3 through 21 who are eligible for special education and

related services.

(3) Ensure DOHA Department Counsel, upon request by a Military Department, represents the Military Department in due process proceedings arising under the IDEA for infants and toddlers birth up to 3 years of age with disabilities who are eligible for EIS.

(4) Ensure the DOHA Center for Alternative Dispute Resolution (CADR) maintains a roster of mediators qualified in special education disputes and, when requested, provides a mediator for complaints related to special education and related services arising under the

IDEA.

**§ 57.6 Procedures.**

(a) Procedures for the Provision of EIS for Infants and Toddlers with

Disabilities.

(1) General. (i) There is an urgent and

substantial need to:

(A) Enhance the development of

infants and toddlers with disabilities to minimize their potential for developmental delay and to recognize the significant brain development that occurs during a child’s first 3 years of

life.

(B) Reduce educational costs by minimizing the need for special

education and related services after

infants and toddlers with disabilities reach school age.

(C) Maximize the potential for

individuals with disabilities to live independently.

(D) Enhance the capacity of families to meet the special needs of their infants

and toddlers with disabilities.

(ii) All procedures and services

within EIS must be in accordance with the IDEA and the provisions of this part.

(2) Identification and Screening. (i) Each Military Department shall develop and implement in its assignedgeographic area a comprehensive childfind and public awareness program, pursuant to the IDEA and this part, that focuses on the early identification of infants and toddlers who are eligible to receive EIS pursuant to this part.

(ii) The military treatment facility (MTF) and Family Advocacy Program must be informed that EDIS will accept

direct referrals for infants and toddlers from birth up to 3 years of age who are:

(A) Involved in a substantiated case of child abuse or neglect; or

(B) Identified as affected by illegal

substance abuse or withdrawal symptoms resulting from prenatal drug

exposure.

(iii) All other DoD Components will

refer infants and toddlers with suspected disabilities to EDIS in collaboration with the parents.

(iv) Upon receipt of a referral, EDIS shall appoint a service coordinator.

(v) All infants and toddlers referred to

the EDIS for EIS shall be screened to determine the appropriateness of the referral and to guide the assessment

process.

(A) Screening does not constitute a
full evaluation. At a minimum, screening shall include a review of the medical and developmental history of the referred infant or toddler through a


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parent interview and a review of

medical records.

(B) If screening is conducted prior to
the referral, or if there is a substantial or obvious biological risk, a screening following the referral may not be

necessary.

(C) If EDIS determines that an evaluation is not necessary based on screening results, EDIS will provide written notice to the parents in accordance with paragraph (a)(9) of this

section.

(3) Assessment and Evaluation. (i) Assessments and Evaluations. The

assessment and evaluation of each

infant and toddler must:

(A) Be conducted by a multidisciplinary team.

(B) Include: ( 1 ) A review of records related to the

infant’s or toddler’s current health status and medical history.

( 2 ) An assessment of the infant’s or

toddler’s needs for EIS based on personal observation of the child by qualified personnel.

( 3 ) An evaluation of the infant’s or toddler’s level of functioning in each of the following developmental areas, including a multidisciplinary assessment of the unique strengths and

needs of the child and the identification of services appropriate to meet those

needs.

( i) Cognitive development. ( ii) Physical development, including functional vision and hearing.

( iii) Communication development. ( iv ) Social or emotional development. ( v

) Adaptive development. ( 4 ) Informed clinical opinion of qualified personnel if the infant or toddler does not qualify based on standardized testing and there is probable need for services.

(ii) Family Assessments (A) Family assessments must include consultation with the family members.

(B) If EDIS conducts an assessment of the family, the assessment must:

( 1 ) Be voluntary on the part of the family.

( 2 ) Be conducted by personnel trained to utilize appropriate methods and procedures.

( 3 ) Be based on information provided by the family through a personal

interview.

( 4 ) Incorporate the family’s description of its resources, priorities, and concerns related to enhancing the infant’s or toddler’s development.

(iii) Standards for Assessment

Selection and Procedures. EDIS shall
ensure, at a minimum, that:

(A) Evaluators administer tests and other evaluations in the native language of the infant or toddler, or the family’s native language, or other mode of communication, unless it is clearly not

feasible to do so.

(B) Assessment, evaluation procedures, and materials are selected and administered so as not to be racially or culturally discriminatory.

(C) No single procedure is used as the sole criterion for determining an infant’s or toddler’s eligibility under this part.

(D) Qualified personnel conduct

evaluations and assessments.

(iv) Delivery of Intervention Services. With parental consent, the delivery of intervention services may begin before the completion of the assessment and

evaluation when it has been determined by a multidisciplinary team that the

infant or toddler or the infant’s or toddler’s family needs the service immediately. Although EDIS has not completed all assessments, EDIS must develop an IFSP before the start of services and complete the remaining assessments in a timely manner.

(4) Eligibility. (i) The EIS team shall meet with the parents and determine eligibility. The EIS team shall document the basis for eligibility in an eligibility report and provide a copy to the

parents.

(ii) Infants and toddlers from birth up to 3 years of age with disabilities are eligible for EIS if they meet one of the following criteria:

(A) The infant or toddler is experiencing a developmental delay.

(B) The infant or toddler has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay.

(5) Timelines. (i) EIS shall complete

the initial evaluation and assessment of each infant and toddler (including the family assessment) in a timely manner ensuring that the timeline in paragraph (a)(6)(ii) of this section is met.

(ii) The Military Department responsible for providing EIS shall develop procedures requiring that, if circumstances make it impossible to complete the evaluation and assessment within a timely manner (e.g., if an infant or toddler is ill), EDIS shall:

(A) Document those circumstances. (B) Develop and implement an appropriate interim IFSP in accordance with this part.

(6) IFSP. (i) The EDIS shall develop and implement an IFSP for each infant and toddler with a disability, from birth up to 3 years of age, who meets the eligibility criteria for EIS.

(ii) EDIS shall convene a meeting to develop the IFSP of an infant or toddler with a disability. The meeting shall be scheduled as soon as possible following

its determination that the infant or toddler is eligible for EIS, but not later than 45 days from the date of the

referral for services.

(iii) Meetings to develop and review

the IFSP must include:

(A) The parent or parents of the infant

or toddler.

(B) Other family members, as requested by the parent, if feasible.

(C) An advocate or person outside of the family if the parent requests that person’s participation.

(D) The service coordinator who has worked with the family since the initial

referral of the infant or toddler or who is responsible for the implementation of

the IFSP.

(E) The persons directly involved in conducting the evaluations and

assessments.

(F) As appropriate, persons who shall provide services to the infant or toddler or the family.

(iv) If a participant listed in paragraph (a)(6)(iii) of this part is unable to attend a meeting, arrangements must be made for the person’s involvement through other means, which may include:

(A) A telephone conference call or

other electronic means of

communication.

(B) Providing knowledgeable, authorized representation.

(C) Providing pertinent records for use at the meeting.

(v) The IFSP shall contain: (A) A statement of the infant’s or toddler’s current developmental levels including physical, cognitive,
communication, social or emotional, and adaptive behaviors based on the

information from the evaluation and

assessments.

(B) A statement of the family’s resources, priorities, and concerns about enhancing the infant’s or toddler’s development.

(C) A statement of the measurable

results or measurable outcomes expected to be achieved for the infant or toddler and the family. The statement shall contain pre-literacy and language skills, as developmentally appropriate
for the infant or toddler, and the criteria, procedures, and timelines used to determine the degree to which progress toward achieving the outcomes is being

made and whether modification or

revision of the results and services are

necessary.

(D) A statement of the specific EIS based on peer-reviewed research, to the extent practicable, necessary to meet the unique needs of the infant or toddler and the family, including the frequency, intensity, and method of delivering

services.

(E) A statement of the natural

environments in which EIS will be provided including a justification of the


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extent, if any, to which the services shall not be provided in a natural

environment because the intervention cannot be achieved satisfactorily for the

infant or toddler. The IFSP must include a justification for not providing a particular early intervention service in

the natural environment.

(F) The projected dates for initiation of services and the anticipated length, duration, and frequency of those

services.

(G) The name of the service coordinator who shall be responsible for the implementation of the IFSP and for coordination with other agencies and persons. In meeting these requirements, EDIS may:

( 1 ) Assign the same service coordinator appointed at the infant or

toddler’s initial referral for evaluation to implement the IFSP;

( 2 ) Appoint a new service
coordinator; or

( 3 ) Appoint a service coordinator requested by the parents.

(H) A description of the appropriate transition services supporting the

movement of the toddler with a disability to preschool or other services.

(vi) EDIS shall explain the contents of the IFSP to the parents and shall obtain
an informed, written consent from the parents before providing EIS described

in the IFSP.

(vii) The IFSP shall be implemented within ten business days of completing
the document, unless the IFSP team, including the parents, documents the need for a delay.

(viii) If a parent does not provide consent for participation in all EIS, EDIS shall still provide those interventions to which a parent does give consent.

(ix) EDIS shall evaluate the IFSP 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 needs of the child and family). The purpose of the periodic review is to determine:

(A) The degree to which progress toward achieving the outcomes is being

made.

(B) Whether modification or revision of the outcomes or services is necessary.

(x) The review may be carried out by a meeting or by another means that is acceptable to the parents and other participants.

(7) Transition. (i) EDIS shall provide a written transition plan for toddlers receiving

EIS to facilitate their transition to preschool, if appropriate. A transition plan must be recorded on the IFSP

between the toddler’s second and third birthday and not later than 90 days before the toddler’s third birthday. (ii) Families shall be included in the transition planning. EDIS shall inform the toddler’s parents regarding future preschool, the child find requirements of the school, and the procedures for transitioning the toddler from EIS to preschool.

(iii) Not later than 6 months before the toddler’s third birthday, the EDIS service coordinator shall obtain parental consent prior to release of identified records of a toddler receiving EIS to the

DoD local school in order to allow the

DoDEA school to meet child-find requirements.

(iv) The EDIS service coordinator shall initiate a pre-transition meeting with the CSC, and shall provide the toddler’s early intervention assessment reports, IFSP, and relevant supporting documentation. The parent shall receive reasonable notice of the pre-transition meeting, shall receive copies of any documents provided to the CSC, and shall have the right to participate in and provide input to the pre-transition meeting.

(v) As soon as reasonably possible following receipt of notice of a toddler potentially transitioning to preschool,

the local DoDEA school shall convene a CSC. The CSC and EDIS shall cooperate to obtain parental consent, in accordance with IDEA and this part, to

conduct additional evaluations if

necessary.

(vi) Based on the information received from EDIS, the CSC, coordinating withEDIS, will determine at the pretransition meeting whether:

(A) No additional testing or observation is necessary to determine that the toddler is eligible for special
education and related services, in which case the CSC shall develop an eligibility report based on the EDIS early intervention assessment reports, IFSP, supporting documentation and otherinformation obtained at the pretransition meeting, in accordance with paragraph (b) of this section; or

(B) Additional testing or observation is necessary to determine whether the toddler is eligible for special education
and related services, in which case the CSC shall develop an assessment plan to collect all required information necessary to determine eligibility for special education and obtain parental
consent, in accordance with IDEA and this part, for evaluation in accordance with paragraph (b) of this section.

(vii) In the event that the toddler is first referred to EDIS fewer than 90 days before the toddler’s third birthday, EDIS

and the DoDEA school shall work cooperatively in the evaluation process and shall develop a joint assessment plan to determine whether the toddler is eligible for EIS or special education.

(A) EDIS shall complete its eligibility determination process and the development of an IFSP, if applicable.

(B) The CSC shall determine eligibility for special education.

(viii) Eligibility assessments shall be multidisciplinary and family-centered and shall incorporate the resources of the EDIS as necessary and appropriate.

(ix) Upon completion of the
evaluations, the CSC shall schedule an eligibility determination meeting at the local school, no later than 90 days prior to the toddler’s third birthday.

(A) The parents shall receive reasonable notice of the eligibility determination meeting, shall receive copies of any documents provided to the CSC, and shall have the right to participate in and provide input to the meeting.

(B) EDIS and the CSC shall cooperate to develop an eligibility determination report based upon all available data, including that provided by EDIS and the parents, in accordance with paragraph (b) of this section.

(x) If the toddler is found eligible for special education and related services, the CSC shall develop an individualized education program (IEP) in accordance with paragraph (b) of this section, and must implement the IEP on or before the toddler’s third birthday.

(xi) If the toddler’s third birthday occurs during the period June through August (the traditional summer vacation period for school systems), the CSC shall complete the eligibility determination process and the development of an IEP before the end of the school year preceding the toddler’s third birthday. An IEP must be prepared

to ensure that the toddler enters preschool services with an instructional program at the start of the new school

year.

(xii) The full transition of a toddler

shall occur on the toddler’s third birthday unless the IFSP team and the

CSC determine that an extended

transition is in the best interest of the toddler and family.

(A) An extended transition may occur

when:

( 1 ) The toddler’s third birthday falls

within the last 6 weeks of the school

year;

( 2 ) The family is scheduled to have a permanent change of station (PCS)

within 6 weeks after a toddler’s third birthday; or

( 3 ) The toddler’s third birthday occurs after the end of the school year and

before October 1.

(B) An extended transition may occur

if the IFSP team and the CSC determine


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that extended EIS beyond the toddler’s third birthday are necessary and appropriate, and if so, how long extended services will be provided.

( 1 ) The IFSP team, including the parents, may decide to continue services

in accordance with the IFSP until the end of the school year, PCS date, or until the beginning of the next school

year.

( 2 ) Extended services must be

delivered in accordance with the toddler’s IFSP, which shall be updated if the toddler’s or family’s needs change on or before the toddler’s third birthday.

( 3 ) The CSC shall maintain in its records meeting minutes that reflect the decision for EDIS to provide an extended transition for the specified period.

( 4 ) Prior to the end of the extended transition period, the CSC shall meet to develop an IEP that shall identify all special education and related services that will begin at the end of the transition period and meet all requirements of the IDEA and this part, in accordance with paragraph (b) of this

section.

(C) The IFSP team and the CSC may jointly determine that the toddler should receive services in the special education preschool prior to the toddler’s third birthday.

( 1 ) If only a portion of the child’s services will be provided by the DoDEA
school, the information shall be
identified in the IFSP, which shall also specify responsibilities for service coordination and transition planning. The CSC shall develop an IEP that shall identify all services to be delivered at
the school, in accordance with paragraph (b) of this section.

( 2 ) If all the toddler’s services will be provided by the DoDEA school, the services will be delivered pursuant to an IEP developed in accordance with paragraph (b) of this section. Transition

activities and other services under the

IFSP will terminate with the toddler’s entry into the special education preschool.

( 3 ) Early entry into preschool services should occur only in exceptional circumstances (e.g., to facilitate natural transitions).

(xiii) In the case of a child who may not be eligible for DoDEA preschool special education services, with the approval of the parents, EDIS shall make

reasonable efforts to convene a conference among EDIS, the family, and providers of other services for children who are not eligible for special education preschool services (e.g., community preschools) in order to explain the basis for this conclusion to the parents and obtain parental input. (8) Maintenance of Records. (i) EDIS officials shall maintain all EIS records, in accordance with 32 CFR part

310.

(ii) EIS records, including the IFSP

and the documentation of services
delivered in accordance with the IFSP,

are educational records consistent with 32 CFR part 285 and shall not be placed

in the child’s medical record.

(9) Procedural Safeguards. (i) Parents of an infant or toddler who is eligible for EIS shall be afforded specific procedural safeguards that must

include:

(A) The right to confidentiality of personally identifiable information in accordance with 32 CFR part 310, including the right of a parent to receive written notice and give written consent to the exchange of information between the Department of Defense and outside agencies in accordance with Federal law and 32 CFR part 310 and 32 CFR part

285.

(B) The opportunity to inspect and review records relating to screening, evaluations and assessments, eligibility determinations, development and implementation of IFSPs.

(C) The right to determine whether they or other family members will accept or decline any EIS, and to

decline such a service after first accepting it, without jeopardizing the provision of other EIS.

(D) The right to written parental

consent.

( 1 ) Consent must be obtained before

evaluation of the infant or toddler in

accordance with this section.

( 2 ) Consent must be obtained before

initiation of EIS in accordance with this

section.

( 3 ) If consent is not given, EDIS shall

make reasonable efforts to ensure that the parent:

( i) Is fully aware of the nature of the

evaluation and assessment or the

services that would be available.

( ii) Understands that the infant or

toddler will not be able to receive the

evaluation and assessment or services unless consent is given.

(E) The right to prior written notice. ( 1 ) Prior written notice must be given to the parents of an infant or toddler

entitled to EIS a reasonable time before EDIS proposes to initiate or change, or refuses to initiate or change the identification, evaluation, or placement of the infant or toddler, or the provision of appropriate EIS to the infant or toddler and any family member.

( 2 ) The notice must be in sufficient detail to inform the parents about:

( i) The action that is being proposed

or refused.

( ii) The reasons for taking the action. ( iii) Each of the procedural safeguards

that are available in accordance with this section, including availability of mediation, administrative complaint procedures, and due process complaint procedures that are available for dispute
resolution as described in this section, including descriptions of how to file a complaint and the applicable timelines.

( 3 ) The notice must be provided in language written for a general lay audience and in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

(F) The right to timely administrative resolution of complaints.

(G) The availability of dispute resolution with respect to any matter relating to the provision of EIS to an infant or toddler, through the administrative complaint, mediation and due process procedures described in paragraph (d) of this section, except the requirement to conduct a resolution meeting, in the event of a dispute between the Military Department concerned and the parents regarding

EIS.

(H) Any party aggrieved by the decision regarding a due process complaint filed in accordance with paragraph (d) of this section shall have the right to bring a civil action in a

district court of the United States of competent jurisdiction without regard to the amount in controversy.

(ii) During the pendency of any proceeding or action involving a complaint by the parent of an infant or toddler with a disability relating to the provision of EIS, unless the parent and EDIS otherwise agree, the infant or

toddler shall continue to receive the appropriate EIS currently being provided under the most recent signed IFSP or, if applying for initial EIS
services, shall receive the services not in dispute.

(10) Mediation and Due Process

Procedures. Mediation and due process procedures, described in paragraph (d) of this section, except the requirement to conduct a resolution meeting, are applicable to early intervention when the Military Department concerned and the parents will be the parties in the dispute.

(b) Procedures for the Provision of Educational Programs and Services for Children With Disabilities, Ages 3 Through 21 Years, Inclusive

(1) Parent Involvement and General

Provisions.

(i) The CSC shall take reasonable steps to provide for the participation of the parent(s) in the special education program of his/her child. School


### 76009 Federal Register / Vol. 78, No. 240 / Friday, December 13, 2013 / Proposed Rules

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. Special education parental rights and responsibilities will be provided in the parent’s native language, unless it is clearly not feasible to do so, e.g., low incidence language or not a written language.

(ii) The CSC shall afford the child’s parents the opportunity to participate in CSC meetings to determine their child’s initial or continuing eligibility for special education and related services, to prepare or change the child’s IEP, or to determine or change the child’s placement.

(iii) No child shall be required to obtain a prescription for a substance covered by the Controlled Substances Act, as amended, 21 U.S.C. 801 et seq. as a condition of attending school, receiving an evaluation, or receiving

services.

(iv) For meetings described in this section, the parent of a child with a disability and the DoDEA school officials may agree to use alternative means of meeting participation, such as

video conferences and conference calls.

(2) Identification and Referral. (i) DoDEA shall: (A) Engage in child-find activities to locate, identify, and screen all children

who are entitled to enroll in DDESS in

accordance with DoD Instruction 1342.26 (see http://www.dtic.mil/whs/ directives/corres/pdf/134226p.pdf ) or in

DoDDS in accordance with DoDEA Regulation 1342.13 (see http:// www.dodea.edu/foia/iod/pdf/1342

_ 13.pdf ) who may require special

education and related services.

(B) Cooperate with the MilitaryDepartments to conduct ongoing childfind activities and periodically publish any information, guidelines, and

directions on child-find activities for eligible children with disabilities, ages 3 through 21 years, inclusive.

(C) Conduct the following activities to determine if children may need special

education and related services:

( 1 ) Review school records for information about student performance on system-wide testing and other basic skills tests in the areas of reading and language arts and mathematics.

( 2 ) Review 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. For children with disabilities, any health records or other information that tends to identify a child as a person with a disability must

be maintained in confidential files that are not co-mingled with other records and that are available only to essential staff for the purpose of providing

effective education and services to the

child.

( 3 ) Review school discipline records and maintain the confidentiality of such records and any information that tends to identify a child as a person with a disability.

( 4 ) Participate in transition activities of children receiving EIS who may require special education preschool

services.

(ii) DoDEA school system officials, related service providers, or others who suspect that a child has a possibledisabling condition shall submit a childfind referral to the CSC containing, at a
minimum, the name and contact

information for the child and the reason

for the referral.

(iii) The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be

considered to be an evaluation for eligibility for special education and related services and does not require

informed consent.

(3) Incoming Students. The DoDEA school will take the following actions, in consultation with the parent, when a

child transfers to a DoDEA school with

an active IEP:

(i) If the current IEP is from a nonDoDEA school:

(A) Promptly obtain the child’s educational records including information regarding assessment, eligibility, and provision of special

education and related services from the previous school.

(B) Provide FAPE, including services comparable (i.e., similar or equivalent) to those described in the incoming IEP, in consultation with the parents, until

the CSC:

( 1 ) Conducts an evaluation, if determined necessary by such agency.

( 2 ) Develops, adopts, and implements a new IEP, if appropriate, in accordance with the requirements of the IDEA and this part within 30 school days of receipt of the IEP.

(ii) If the current IEP is from a DoDEA school, the new school must provide the child a FAPE, including services comparable to those described in the incoming IEP, until the new school

either:

(A) Adopts the child’s IEP from the previous DoDEA school; or

(B) Develops, adopts, and implements a new IEP that meets the requirements of the IDEA and this part within 30 school days of receipt of the incoming

IEP. (iii) Coordinate assessments of

children with disabilities who transfer with the child’s previous school as quickly as possible to facilitate prompt completion of full evaluations.

(4) Referral by a Parent. Should a parent submit a written request for an evaluation because they suspect the child has a disability the CSC shall, within 15 school days, review the request, confer with the child’s teachers, and gather information related to the educational concerns. Following a
review of the information, the CSC

shall:

(i) Convene a conference among the parents, teachers, and one or more other

members of the CSC to discuss the

educational concerns and document their agreements. Following the discussion, the parents may agree that:

(A) The child’s needs are not indicative of a suspected disability and other supports and accommodations will be pursued;

(B) Additional information is necessary and a pre-referral process will
be initiated; or

(C) Information from the conference

will be forwarded to the CSC for action on the parent’s request for an

evaluation.

(ii) Within 10 school days of receipt

of information from the conference regarding the parents’ request for evaluation, agree to initiate the preparation of an assessment plan for a full and comprehensive educational evaluation or provide written notice to the parent denying the formal

evaluation.

(5) Referral by a Teacher. (i) Prior to referring a child to the CSC, the teacher shall identify the child’s areas of specific instructional need and target instructional

interventions to those needs as soon as the areas of need become apparent.

(ii) If the area of specific instructional
need is not resolved, the teacher shall initiate the pre-referral process involving other members of the school

staff.

(iii) If interventions conducted during pre-referral fail to resolve the area of specific instructional need, the teacher

shall submit a formal referral to the

CSC.

(6) Assessment and Evaluation. (i) A full and comprehensive

evaluation of educational needs shall be conducted prior to eligibility

determination and before an IEP is developed or placement is made in a special education program, subject to the provisions for incoming students transferring to a DoDEA school as set forth in paragraph (b)(3) of this section.

When the school determines that a child


### 76010 Federal Register / Vol. 78, No. 240 / Friday, December 13, 2013 / Proposed Rules

should be evaluated for a suspected disability, the school will:

(A) Issue a prior written notice to the parents of the school’s intention to evaluate and a description of the

evaluation in accordance with paragraph (b)(19) of this section.

(B) Provide parents notice of procedural safeguards.

(C) Request that the parent execute a

written consent for the evaluation in accordance with paragraph (b)(18) of

this section.

(ii) The CSC shall ensure that the following elements are included in a full and comprehensive assessment and

evaluation of a child:

(A) Screening of visual and auditory acuity.

(B) Review of existing school

educational and health records.

(C) Observation in an educational

environment.

(D) A plan to assess the type and extent of the disability. A child shall be

assessed in all areas related to the suspected disability. The assessment plan shall include, as appropriate:

( 1 ) An assessment of the level of functioning academically, intellectually, emotionally, socially, and in the family.

( 2 ) An assessment of physical status including perceptual and motor

abilities.

( 3 ) An assessment of the need for transition services for students 16 years

and older.

(iii) The CSC shall involve the parents in the assessment process in order to

obtain information about the child’s strengths and needs and family

concerns.

(iv) The CSC, as necessary, shall use all locally available community,
medical, and school resources to accomplish the assessment and evaluation. At least one specialist with knowledge in the area of the suspected disability shall be a member of the multidisciplinary assessment team.

(v) The CSC must obtain parental
consent, in accordance with IDEA and this part, before conducting an evaluation. The parent shall not be required to give consent for an evaluation without first being informed of the specific evaluation procedures that the school proposes to conduct.

(vi) The evaluation must be completed by the school within 45 school days following the receipt of the parent’s written consent to evaluate in

accordance with the school’s assessment plan.

(vii) The eligibility determination meeting must be conducted within 10 school days after completion of the

school’s formal evaluation. (viii) All DoD elements including the CSC and related services providers

shall:

(A) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, which may assist in determining:

( 1 ) Whether the child has a disability. ( 2 ) The content of the child’s IEP, including information related to enabling the child to be involved and progress in the general education curriculum or, for preschool children, to participate in appropriate activities.

(B) Not use any single measure or

assessment as the sole criterion for determining whether a child has a disability or determining an appropriate educational program for the child.

(C) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental

factors.

(ix) The CSC and DoD related services providers shall ensure that assessment materials and evaluation procedures are:

(A) Selected and administered so as not to be racially or culturally discriminatory.

(B) Provided in the child’s native language or other mode of

communication and in the form most likely to yield accurate information on

what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide and administer.

(C) Selected and administered to

assess the extent to which the child with limited English proficiency has a disability and needs special education, rather than measuring the child’s English language skills.

(D) Validated for the specific purpose for which they are used or intended to

be used.

(E) Administered by trained and knowledgeable personnel in compliance with the instructions of the testing

instrument.

(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 sensory, motor, or

communication skills so that the results accurately reflect a child’s aptitude or

achievement level or other factors the test purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills.

(x) As part of an initial evaluation and as part of any reevaluation, the CSC shall review existing evaluation data on the child, including: (A) The child’s educational records. (B) Evaluations and information provided by the parents of the child.

(C) Current classroom-based, local, or system-wide assessments and classroom

observations.

(D) Observations by teachers and related services providers.

(xi) On the basis of that review and input from the child‘s parents, identify what additional data, if any, are needed

to determine:

(A) Whether the child has a particular category of disability or, in the case of
a reevaluation of a child, whether the

child continues to have such a disability.

(B) The present levels of academic achievement and related developmental

needs of the child.

(C) Whether the child needs special
education and related services or, in the
case of a reevaluation of a child,

whether the child continues to need special education and related services.

(D) Whether any additions or modifications to the special education

and related services are needed to

enable the child to meet the measurable annual goals set out in the IEP and to participate, as appropriate, in the general education curriculum.

(xii) The CSC may conduct its review of existing evaluation data without a meeting.

(xiii) The CSC shall administer tests

and other evaluation materials as needed to produce the data identified in paragraph (b)(6)(ii) and (xi) of this

section.

(7) Eligibility. (i) The CSC shall: (A) Require that the full comprehensive evaluation of a child is accomplished by a multidisciplinary team, including specialists with knowledge in the area of the suspected disability and shall receive input from the child’s parent(s).

(B) Convene a meeting to determine eligibility of a child for special

education and related services not later than 10 school days after the child has been assessed by the school.

(C) Afford the child’s parents the opportunity to participate in the CSC eligibility meeting.

(D) Determine whether the child is a child with a disability as defined by the IDEA and this part, and the educational

needs of the child.

(E) Issue a written eligibility determination report, including a synthesis of evaluation findings, that documents a child’s primary eligibility in one of the disability categories described in paragraph (g) of this section, providing a copy of the eligibility determination report to the

parent.


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(F) Determine that a child does NOT have a disability if the determinant

factor is:

( 1 ) Lack of appropriate instruction in essential components of reading;

( 2 ) Lack of instruction in
mathematics; or

( 3 ) Limited English proficiency. (ii) The CSC shall reevaluate the eligibility of a child with a disability every 3 years, or more frequently, if the

child’s educational or related services needs, including improved academic

achievement and functional performance, warrant a reevaluation.

School officials shall not reevaluate more often than once a year, unless the parents and the school officials agree

otherwise.

(A) The scope and type of the

reevaluation shall be determined individually based on a child’s performance, behavior, and needs during the reevaluation and the review of existing data.

(B) If the CSC determines that no

additional data are needed to determine

whether the child continues to be a child with a disability, the CSC shall, in accordance with paragraph (b)(19) of this section, provide prior written notice to the child’s parents of:

( 1 ) The determination that no

additional assessment data are needed

and the reasons for their determination.

( 2 ) The right of the parents to request

an assessment to determine whether the child continues to have a disability and

to determine the child’s educational

needs.

(C) The CSC is not required to conduct assessments for the purposes described in paragraph (b)(7)(i)(B)( 2 ) of this section, unless requested to do so by the child’s parents.

(iii) The CSC shall evaluate a child in accordance with paragraph (b)(7)(ii) of this section before determining that the child no longer has a disability.

(iv) The CSC is not required to

evaluate a child before the termination of the child’s eligibility due to graduation from secondary school with a regular diploma, or due to exceeding the age of eligibility for FAPE.

(v) When a child’s eligibility has terminated due to graduation or exceeding the age of eligibility, the DoDEA school must provide the child, or the parent if the child has not yet reached the age of majority or is otherwise incapable of providing informed consent, with a summary of

the child’s academic achievement and functional performance.

(A) The summary of performance must be completed during the final year of a child’s high school education.

(B) The summary must include: ( 1 ) Child’s demographics. ( 2 ) Child’s postsecondary goal. ( 3 ) Summary of performance in the areas of academic, cognitive, and functional levels of performance to include the child’s present level of performance, and the accommodations, modifications, and assistive technology that were essential in high school to assist the student in achieving maximum progress.

( 4 ) Recommendations on how to assistthe child in meeting the child’s postsecondary goals.

(8) IEP. (i) IEP Development. (A) DoDEA shall ensure that the CSC develops and implements an IEP to provide FAPE for each child with a disability who requires special

education and related services as determined by the CSC. An IEP shall be in effect at the beginning of each school year for each child with a disability eligible for special education and

related services under the IDEA and this

part.

(B) In developing the child’s IEP, the

CSC shall consider:

( 1 ) The strengths of the child. ( 2 ) The concerns of the parents for enhancing the education of their child.

( 3 ) The results of the initial evaluation

or most recent evaluation of the child.

( 4 ) The academic, developmental, and

functional needs of the child.

(ii) IEP Development Meeting. The CSC shall convene a meeting to develop the IEP of a child with a disability. The meeting shall:

(A) Be scheduled within 10 school days from the eligibility meeting following a determination by the CSC that the child is eligible for special

education and related services.

(B) Include as participants: ( 1 ) An administrator or school representative other than the child’s teacher who is qualified to provide or supervise the provision of special education and is knowledgeable about the general education curriculum and

available resources.

( 2 ) Not less than one general education teacher of the child (if the child is, or may be, participating in the general education environment).

( 3 ) A special education teacher or provider.

( 4 ) One or both of the child’s parents. ( 5) An EIS coordinator or other representative of EIS, if the child is transitioning from EIS.

( 6) The child, if appropriate. ( 7) A representative of the evaluation team who is knowledgeable about the evaluation procedures used and can interpret the instructional implications

of the results of the evaluation. ( 8 ) Other individuals invited at the discretion of the parents or school who have knowledge or special expertise regarding the child, including related services personnel, as appropriate.

(iii) IEP Content. The CSC shall

include in the IEP:

(A) A statement of the child’s present

levels of academic achievement and functional performance including:

( 1 ) How the child’s disability affects involvement and progress in the general
education curriculum, or

( 2 ) For preschoolers, how the disability affects participation in appropriate activities.

(B) A statement of measurable annual goals including academic and functional goals designed to meet:

( 1 ) The child’s needs that result from the disability to enable the child to be involved in and make progress in the general education curriculum.

( 2 ) Each of the child’s other educational needs resulting from his or her disability.

(C) A description of how the child’s progress toward meeting the annual goals shall be measured, and when periodic progress reports will be provided to the parents.

(D) A statement of the special
education and related services, supplementary aids and services (which are based on peer-reviewed research to the extent practicable and shall be provided to the child or on behalf of the child), and a statement of the program modifications or supports for school personnel that shall be provided for the

child to:

( 1 ) Advance appropriately toward attaining the annual goals.

( 2 ) Be involved in and make progress in the general education curriculum and participate in extracurricular and other

non-academic activities.

( 3 ) Be educated and participate with other children who may or may not

have disabilities.

(E) An explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular class and in non-academic

activities.

(F) A statement of any individualized appropriate accommodations necessary

to measure the child’s academic

achievement and functionalperformance on system-wide or districtwide assessments. If the CSC determines

that the child shall take an alternate assessment of a particular system-wide

or district-wide assessment of student achievement (or part of an assessment), a statement of why:

( 1 ) The child cannot participate in the regular assessment.


### 76012 Federal Register / Vol. 78, No. 240 / Friday, December 13, 2013 / Proposed Rules

( 2 ) The particular alternate assessment selected is appropriate for

the child.

(G) Consideration of the following special factors:

( 1 ) Assistive technology devices and

services for all children.

( 2 ) Language needs for the child with limited English proficiency.

( 3 ) Instruction in Braille and the use

of Braille for a child who is blind or visually impaired, unless the CSC
determines, after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the

child’s future needs for instruction in Braille or the use of Braille) that

instruction in Braille or the use of Braille is not appropriate for the child.

( 4 ) Interventions, strategies, and supports including positive behavioral interventions and supports to address

behavior for a child whose behavior impedes his or her learning or that of

others.

( 5) Language and communication
needs, and in the case of a child who is deaf or hard of hearing, opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct

instruction in the child’s

communication mode.

(H) A statement of the amount of time that each service shall be provided to the child, including the date for beginning of services and the anticipated frequency, number of required related services sessions to be provided by EDIS, location and duration of those services (including adjusted school day or an extended school year),

and modifications.

(I) A statement of special transportation requirements, if any.

(J) Physical education services, specially designed if necessary, shall be made available to every child with a disability receiving a FAPE. Each child with a disability must be afforded the opportunity to participate in the regular physical education program available to

non-disabled children unless the child is enrolled full-time in a separate facility or needs specially designed physical education, as prescribed in the

child’s IEP.

(iv) Transition Services. (A) Beginning not later than the first

IEP to be in effect when the child turns 16, or younger if determined appropriate by the CSC, and updated annually, thereafter, the IEP must

include:

( 1 ) Appropriate measurablepostsecondary goals based on ageappropriate transition assessments related to training, education, employment and, where appropriate, independent living skills.

( 2 ) The transition services, including courses of study, needed to assist the child in reaching postsecondary goals.

(B) Beginning at least 1 year before the child reaches the age of majority (18 years of age), except for a child with a disability who has been determined to be incompetent in accordance with
Federal or State law, a statement that

the child has been informed of those rights that transfer to him or her in accordance with this part.

(9) Implementation of the IEP.
(i) The CSC shall ensure that all IEP provisions developed for any child entitled to an education by the DoDEA school system are fully implemented.

(ii) The CSC shall: (A) Seek to obtain parental agreement and signature on the IEP before delivery of special education and related services in accordance with that IEP is begun.

(B) Provide a copy of the child’s IEP to the parents.

(C) Ensure that the IEP is implemented as soon as possible following the IEP development meeting.

(D) Ensure the provision of special
education and related services, in

accordance with the IEP.

(E) Ensure that the child’s IEP is accessible to each general education teacher, special education teacher, related service provider, and any other service provider who is responsible for its implementation, and that each teacher and provider is informed of:

( 1 ) His or her specific responsibilities related to implementing the child’s IEP.

( 2 ) The specific accommodations, modifications, and supports that must be provided for the child in accordance

with the IEP.

(F) Review the IEP for each child periodically and at least annually in a CSC meeting to determine whether the child has been progressing toward the annual goals.

(G) Revise the IEP, as appropriate, and

address:

( 1 ) Any lack of progress toward the annual goals and in the general
education curriculum, where appropriate.

( 2 ) The results of any reevaluation.
( 3 ) Information about the child provided by the parents, teachers, or related service providers.

( 4 ) The child’s needs.
(10) Placement and Least Restrictive Environment (LRE).

(i) The CSC shall determine the educational placement of a child with a disability. (ii) The educational placement decision for a child with a disability

shall be:

(A) Determined at least annually. (B) Made in conformity with the

child’s IEP.

(C) Made in conformity with the requirements of IDEA and this part for

LRE.

( 1 ) A child with a disability shall be
educated, to the maximum extent appropriate, with children who are not disabled, and that special classes, separate schooling, or other removal of

children with disabilities from the regular educational environment shall occur only if the nature or severity of the child’s disability that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

( 2 ) A child with a disability shall notbe removed from education in ageappropriate general education classrooms solely because of needed modifications in the general education

classroom.

( 3 ) As appropriate, the CSC shall make provisions for supplementary services to be provided in conjunction with general education placement.

( 4 ) Special classes, separate schooling,

or other removal of a child with a disability from the general education environment shall occur only when the nature or severity of the disability is such that education in general

education classes with the use of supplementary aids and services cannot be achieved satisfactorily.

( 5) In providing or arranging for the provision of non-academic and
extracurricular services and activities, including meals, recess periods, assemblies, and study trips, the CSC

shall ensure that a child with a disability participates with non-disabled

children in those services and activities to the maximum extent appropriate to

the needs of that child.

(iv) In determining the LRE for an
individual student, the CSC shall

consider:

(A) The needs of the individual child as well as any potential harmful effect on the child or the quality of services

that he or she needs.

(B) A continuum of placement options

must be made available to meet the

needs of children with disabilities for special education and related services. The options on this continuum include the general education classroom, special classes (a self-contained classroom in the school), home bound instruction, or instruction in hospitals or institutions.

(v) When special schools and institutions may be appropriate, the CSC shall consider such placement options


### 76013 Federal Register / Vol. 78, No. 240 / Friday, December 13, 2013 / Proposed Rules

in coordination with the Area Special

Education Office.

(vi) In the case of a disciplinary placement, school officials shall follow the procedures set forth in paragraph (b)(13) of this section.

(12) Extended School Year (ESY)

Services. ESY services must be provided only if a child’s IEP team determines that the services are necessary for the provision of FAPE to the child. DoDEA

may not:

(i) Limit ESY services to particular categories of disability; or

(ii) Unilaterally limit the type,
amount, or duration of ESY services.

(13) Discipline. (i) School Discipline. All regular disciplinary rules and procedures applicable to children attending a DoDEA school shall apply to

children with disabilities who violate school rules and regulations or disrupt regular classroom activities, except that:

(A) A manifestation determination must be conducted for discipline proposed for children with disabilities in accordance with DoDEA disciplinary rules and regulations and paragraph (b)(13)(v) of this section, and

(B) The child subject to disciplinary

removal shall continue to receive

educational services in accordance with paragraph (b)(13)(iv) of this section.

(ii) Change of Placement. (A) It is a change of placement if a child is

removed from his or her current placement for more than 10 consecutive school days or for a series of removals

that cumulates to more than 10 school days during the school year that meets the criteria of paragraph (b)(13)(ii)(C) of

this section.

(B) It is not a change of placement if

a child is removed from his or her current academic placement for less than 10 consecutive or cumulative days in a school year for one incident of

misconduct. A child can be removed from the current educational placement for separate incidents of misconduct in the same school year (as long as those removals do not constitute a change of placement under IDEA to the extent such a disciplinary alternative is applied to children without disabilities).

(C) If a child has been removed from his or her current placement for more than 10 days in a school year, but not more than 10 consecutive school days,

the CSC shall determine whether the child has been subject to a series of removals that constitute a pattern. The determination is made on a case-by-case basis and is subject to review by a hearing officer in accordance with the provisions of paragraph (d)(5) of this

section. The CSC will base its

determination on whether the child has been subjected to a series of removals that constitute a pattern by examining

whether:

( 1 ) The child’s behavior is substantially similar to his or her behavior in previous incidents that
resulted in the series of removals, and,

( 2 ) Additional factors such as the length of each removal, the total amount
of time the child has been removed, and the proximity of the removals to one

another.

(D) On the date the decision is made to remove a child with a disability
because of misconduct, when the removal would change the child’s placement, the school must notify the parents of that decision and provide the parents the procedural safeguards notice described in paragraph (b)(19) of this

section.

(iii) Period of Removal. School personnel may remove a child with a disability for misconduct from his or her current placement to an appropriate interim alternative educational setting (AES), another setting, or suspension:

(A) For not more than 10 consecutive school days to the extent those alternatives are applied to children without disabilities (for example, removing the child from the classroom to the school library, to a different classroom, or to the child’s home), and

for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a pattern); or

(B) For not more than 45 school days, without regard to whether the behavior

is determined to be a manifestation of the child’s disability, if the child, at school, on school-provided transportation, on school premises, or at a school-sponsored event:

( 1 ) Carries a weapon or possesses a

weapon;

( 2 ) Knowingly possesses or uses illegal drugs or sells or solicits the sale
of a controlled substance; or

( 3 ) Has inflicted serious bodily injury upon another person.

(C) After an expedited hearing if school personnel believe that returning

the child to his or her current educational placement is substantially likely to cause injury to the child or to

others.

(iv) Required Services During

Removal. (A) If a child with a disability is removed from his or her placement for 10 cumulative school days or less in a school year, the school is required only to provide services comparable to the services it provides to a child without disabilities who is similarly

removed.

(B) If a child with a disability is removed from his or her placement for more than 10 school days, where the behavior that gave rise to the violation

of the school code is determined in accordance with paragraph (b)(13)(v) of

this section not to be a manifestation of the child’s disability, or who is removed under paragraph (b)(13)(iii)(B) of this section 9irrespective of whether the

behavior is determined to be a manifestation of the child’s disability,

the school must:

( 1 ) Continue to provide the child with the educational services as identified by

the child’s IEP as a FAPE so as to enable the child to continue participating in the general education curriculum, although in another setting, and to progress toward meeting the goals set

out in the child’s IEP.

( 2 ) Provide, as appropriate, a

functional behavioral assessment and

behavioral intervention services and modifications designed to address the

behavior violation so that it does not

recur.

(C) If a child with a disability has

been removed for more than 10 cumulative school days and the current

removal is for 10 consecutive school days or less, then the CSC must determine whether the pattern of removals constitutes a change of placement in accordance with paragraph (b)(13)(ii) of this section.

( 1 ) If the CSC determines the pattern of removals is NOT a change of placement, then the CSC must

determine the extent to which services

are needed to enable the child to continue participating in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s

IEP.

( 2 ) If the CSC determines that the pattern of removals IS a change of placement, then the CSC must conduct

a manifestation determination.

(v) Manifestation Determination (A) A principal must give the notice required

and convene a manifestation determination meeting with the CSC within 10 school days of recommending, in accordance with DoDEA Regulation 2051.1, a disciplinary action that would remove a

child with disabilities for:

( 1 ) More than 10 consecutive school days, or

( 2 ) A period in excess of 10 cumulative school days when the child has been subjected to a series of removals that constitute a pattern.

(B) The manifestation CSC will review

all relevant information in the child’s file (including the IEP, any teacher observations, and any information provided by the sponsor or parent) and


### 76014 Federal Register / Vol. 78, No. 240 / Friday, December 13, 2013 / Proposed Rules

determine whether the misconduct was a manifestation of the child’s disability.

( 1 ) The misconduct must be

determined to be a manifestation of the child’s disability if it is determined the

misconduct:

( i) Was caused by the child’s disability or had a direct and substantial relationship to the child’s disability; or

( ii) Was the direct result of the school’s failure to implement the IEP.

( 2 ) If the determination is made that

the misconduct was a manifestation of the child’s disability, the CSC must:

( i) Conduct a functional behavioral
assessment, unless the school

conducted a functional behavioral

assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or

( ii) Review any existing behavioral intervention or disciplinary plan and modify it, as necessary, to address the
behavior; and

( iii) Revise the student’s IEP or placement and delivery system to

ensure that the student receives services

in accordance with the IEP.

( 3 ) Unless the parent and school agree to a change of placement as part of the

modification of the behavioral intervention plan, the CSC must return the child to the placement from which

the child was removed:

( i) Not later than the end of 10 days
of removal; or

( ii) Not later than the end of 45 consecutive school days, if the student committed a weapon or drug offense or caused serious bodily injury for which

the student was removed to an AES.

( 4 ) If the determination is made that the misconduct in question was the

direct result of the school’s failure to implement the IEP, the school must take immediate steps to remedy those

deficiencies.

( 5) If the determination is made that

the behavior is NOT a manifestation of the child’s disability, school personnel may apply the relevant disciplinary procedures in the same manner and for the same duration as the procedures that would be applied to children without
disabilities, and must:

( i) Forward the case and a

recommended course of action to the school principal, who may then refer the case to a disciplinary committee for processing.

( ii) Reconvene the CSC following a disciplinary decision that would change the student’s placement to revise the child’s IEP and/or identify an appropriate educational setting and delivery system to ensure the child

receives services in accordance with the

IEP. (vi) Appeals of School Decision Regarding Placement or Manifestation

Determination. (A) The parent of a child with a disability who disagrees with any decision regarding placement or
manifestation determination, or a school that believes maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting an expedited due process hearing before a hearing officer by filing a petition in accordance with paragraph (d)(5) of this section.

(B) A hearing officer, appointed in accordance with paragraph (d) of this
section, hears and makes a determination regarding an appeal. In making the determination the hearing officer may:

( 1 ) Return the child with a disability to the placement from which the child was removed if the hearing officer

determines that the removal was a violation of the authority of school personnel in accordance with this part

or that the child’s behavior was a manifestation of the child’s disability; or

( 2 ) Order a change of placement of the child with a disability to an appropriate

interim AES for not more than 45 school days if the hearing officer determines that maintaining the child’s current placement is substantially likely to result in injury to the child or to others.

(C) At the end of the placement in the appropriate AES, the procedures for placement in an AES may be repeated,
with the consent of the Area Director, if the school believes that returning the child to the original placement is substantially likely to result in injury to

the child or to others.

(D) When an appeal has been made by either the parent or the school, the child

must remain in the interim AES pending the decision of the hearing officer or until the expiration of the specified time period, whichever occurs first, unless the parent and the DoDEA school system agree otherwise.

(14) Children Not Yet Determined Eligible for Special Education. (i) A

child who has not been determined to be eligible for special education and related services and who is subject to discipline may assert any of the protections provided for in paragraph (b)(19) of this section if the school had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action

occurred.

(ii) DoDEA shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action

occurred: (A) The parent of the child expressed concern in writing to a teacher of the child, the school principal or assistant principal, or the school special

education coordinator that the child was in need of special education and related

services;

(B) The child presented an active IEP
from another school;

(C) The parent of the child requested
an evaluation of the child; or

(D) The teacher of the child or other school personnel expressed specific concerns about a pattern of behavior demonstrated by the child directly to the principal or assistant principal, the special education coordinator, or to

another teacher of the child.

(iii) A school is deemed NOT to have knowledge that a child is a child with a disability if:

(A) The parent of the child has not

allowed an evaluation of the child or the parent has revoked consent, in writing, to the delivery of the child’s special
education and related services, in accordance with this part; or

(B) The child has been evaluated and

determined not to be a child with a disability.

(iv) Conditions that apply if there is no basis of knowledge that the child is a child with a disability.

(A) If a school has no basis of knowledge that a child is a child with a disability prior to taking disciplinary measures against the child, the child may be subjected to the disciplinary measures applied to non-disabled children who engage in comparable behaviors in accordance with paragraph (b)(13)(i) of this section.

(B) If a request is made for an evaluation of a child during the time period when the child is subjected to disciplinary measures:

( 1 ) The evaluation must be expedited. ( 2 ) Until the evaluation is completed,

the child remains in his or her then current educational placement, which can include suspension or expulsion

without educational services.

(v) If the child is determined to be a child with a disability, taking into

consideration information from the evaluation conducted by the agency and information provided by the parents, the school must provide special education

and related services in accordance with

an IEP.

(15) Referral to and Action by Law Enforcement and Judicial Authorities. (i) Rule of Construction. Nothing prohibits a school from reporting a crime threatened or committed by a child with a disability to appropriateauthorities, or prevents military, hostnation, or State law enforcement and judicial authorities from exercising their


### 76015 Federal Register / Vol. 78, No. 240 / Friday, December 13, 2013 / Proposed Rules

responsibilities with regard to the application of Federal, host-nation, and

State law to crimes committed or threatened by a child with a disability.

(ii) Transmittal of Records. An agency reporting a crime in accordance with this paragraph may transmit copies of the child’s special education and disciplinary records only to the extent

that the transmission is in accordance with 32 CFR part 285.

(16) Children With Disabilities Who

are Placed in a Non-DoDEA School or Facility Pursuant to an IEP. (i) Children with disabilities who are eligible to
receive a DoDEA school education, but are placed in a non-DoD school or facility by DoDEA because a FAPE cannot be provided by DoD, shall have all the rights of children with

disabilities who are enrolled in a

DoDEA school.

(ii) A child with a disability may be placed at DoD expense in a non-DoD school or facility only if required by the

IEP.

(iii) DoDEA school officials shall initiate and conduct a meeting to develop an IEP for the child beforeplacement. A representative of the nonDoD school or facility should attend the meeting. If the representative cannot
attend, the DoDEA school officials shall communicate in other ways to facilitate participation including individual or conference telephone calls. A valid IEP must document the necessity of the placement in a non-DoD school or facility. The IEP must:

(A) Be signed by an authorized

DoDEA official before it becomes valid.

(B) Include a determination that the DoDEA school system does not currently have and cannot reasonably create an educational program appropriate to meet the needs of the child with a disability.

(C) Include a determination that the non-DoD school or facility and its educational program and related services conform to the requirements of this part.

(iv) The DoD shall not be required to reimburse the costs of special education

and related services if DoDEA made

FAPE available in accordance with the requirements of the IDEA and a parentunilaterally places the child in a nonDoD school without the approval of

DoDEA.

(A) Reimbursement may be ordered by a hearing officer if he or she

determines that DoDEA had not made FAPE available in a timely manner prior

to enrollment in the non-DoDEA school and that the private placement is appropriate.

(B) Reimbursement may be reduced or

denied: ( 1 ) If, at the most recent CSC meeting that the parents attended prior to

removal of the child from the DoDEA school, the parents did not inform the CSC that they were rejecting the placement proposed by the DoDEA school to provide FAPE to their child, including stating their concerns and

their intent to enroll their child in nonDoD school at DoD expense.

( 2 ) If, at least 10 business days (including for this purpose any holidays that occur on a Monday through Friday) prior to the removal of the child from the DoDEA school, the parents did not give written notice to the school principal or CSC chairperson of the information described in paragraph (b)(16)(iv)(B)( 1 ) of this section.

( 3 ) If, the CSC informed the parents of its intent to evaluate the child, using the notice requirement described in paragraph (b)(6)(i) and paragraph (b)(19) of this section, but the parents did not
make the child available; or

( 4 ) Upon a hearing officer finding of unreasonableness with respect to actions taken by the parents.

(C) Reimbursement may not be reduced or denied for failure to provide the required notice if:

( 1 ) The DoDEA school prevented the parent from providing notice;

( 2 ) The parents had not received notification of the requirement that the school provide prior written notice required by paragraph (b)(19) of this

section;

( 3 ) Compliance would result in physical or emotional harm to the child;

or ( 4 ) The parents cannot read and write in English.

(17) Confidentiality of the Records.

The DoDEA school and EDIS officials

shall maintain all student records in accordance with 32 CFR part 310.

(18) Parental Consent. (i) Consent Requirements. The consent of a parent of a child with a disability or suspected of having a disability shall be obtained

before:

(A) Initiation of formal evaluation procedures to determine whether the child qualifies as a child with a disability and prior to conducting a
reevaluation;

(B) Initial provision of special
education and related services; or

(ii) Consent for Initial Evaluation. If the parent of a child does not provide

consent for an initial evaluation or fails to respond to a request for consent for an initial evaluation, then DoDEA may use the procedures described in paragraph (d) of this section to pursue an evaluation of a child suspected of having a disability. (A) Consent to evaluate shall not constitute consent for placement or receipt of special education and related

services.

(B) If a parent declines to give consent
for evaluation, DoDEA shall not be in violation of the requirement to conduct
child-find, the initial evaluation, or the duties to follow evaluation procedures or make an eligibility determination and write an IEP as prescribed in this

section.

(iii) Consent for Reevaluation. The school must seek to obtain parental

consent to conduct a reevaluation. If the parent does not provide consent or fails to respond to a request for consent for a reevaluation, then the school may

conduct the reevaluation without parental consent if the school can

demonstrate that it has made reasonable efforts to obtain parental consent and

documented its efforts. The

documentation must include a record of the school’s attempts in areas such as:

(A) Detailed records of telephone calls made or attempted and the results of

those calls.

(B) Copies of correspondence sent to the parents and any responses received.

(C) Detailed records of visits made to the parents’ home, place of employment or duty station, and the results of those

visits.

(iv) Consent for the Initial Provision of Special Education and Related Services. The school that is responsible for making a FAPE available to a child with a disability under this part must seek to obtain informed consent from the parent of such child before providing special

education and related services to the child. If the parent refuses initial
consent for services, the DoDEA school:

(A) May not use the procedures described in paragraph (d) of this section (mediation and due process) to obtain agreement or a ruling that the special education and related services recommended by the child’s CSC may be provided to the child without parental consent.

(B) Shall not be considered to be in violation of the requirement to make a

FAPE available to the child for its failure to provide those services to the child for which parental consent was requested.

(C) Shall not be required to convene an IEP meeting or develop an IEP for the

child.

(19) Parent Revocation of Consent for Continued Special Education and

Related Services.

(i) Parents may unilaterally withdraw their children from further receipt of all special education and related services by revoking their consent for the continued provision of special


### 76016 Federal Register / Vol. 78, No. 240 / Friday, December 13, 2013 / Proposed Rules

education and related services to their

children.

(ii) Parental revocation of consent must be in writing.

(iii) Upon receiving a written
revocation of consent, the DoDEA school must cease the provision of special education and related services and must provide the parents prior written notice before ceasing the provision of services. The notice shall comply with the requirements of paragraph (b)(19) of this section and shall advise the parent:

(A) Changes in educational placement

and services that will result from the

revocation of consent.

(B) That the school will terminate special education and related services to the child on a specified date, which

shall be within a reasonable time following the delivery of the written

notice.

(C) That DoDEA will not be

considered to be in violation of the requirement to make FAPE available to

the child because of the failure to provide the child with further special

education and related services.

(D) That the DoDEA school will not be deemed to have knowledge that the child is a child with a disability and the child may be disciplined as a general

education student and will not be entitled to the IDEA discipline protections.

(E) That the parents maintain the right to subsequently request an initial

evaluation to determine if the child is a child with a disability who needs special education and related services

and that their child will not receive special education and related services until eligibility has been determined.

(F) That the DoDEA school will not challenge, through mediation or a due process hearing, the revocation of consent to the provision of special

education or related services.

(G) That while the school is not required to convene a CSC meeting or to develop an IEP for further provision of special education and related services, it is willing to convene a CSC meeting upon request of the parent prior to the date that service delivery ceases.

(iv) Revocation of consent for a particular service:

(A) Upon receiving a revocation of consent for a particular special
education or related service, the DoDEA school must provide the parent prior

written notice in accordance with the requirements of paragraph (b)(19) of this

section.

(B) If parents disagree with the provision of a particular special

education or related service and the

school members of the CSC and the parents agree that the child would be provided a FAPE if the child did not receive that service, the child’s IEP may

be modified to remove the service.

(C) If the parent and the school members of the CSC disagree as to whether the child would be provided a

FAPE if the child did not receive a particular service, the parent may use the mediation or due process procedures under this part to obtain a

determination as to whether the service with which the parent disagrees is or is not appropriate to his or her child and necessary to FAPE, but the school may not cease the provision of a particular

service that has been included in the child’s active IEP until the dispute is

resolved.

(20) Procedural Safeguards. (i) Parental Rights. Parents of children, ages 3 through 21 inclusive, with disabilities must be afforded procedural safeguards with respect to the provision

of FAPE which shall include:

(A) The right to confidentiality of personally identifiable information in

accordance with Federal law and DoD regulations.

(B) The right to examine records and to participate in meetings with respect to assessment, screening, eligibility determinations, and the development and implementation of the IEP.

(C) The right to furnish or decline

consent in accordance with this section.

(D) The right to prior written notice when the school proposes to initiate or change, or refuses to initiate or change
the identification, evaluation, educational placement, or provision of FAPE to a child with a disability.

( 1 ) The notice must be in sufficient detail to inform parents about:

( i) The action that is being proposed

or refused.

( ii) An explanation of why the agency proposes or refuses to take the action.

( iii) A description of any other options considered by the CSC and the reasons why those options were rejected.

( iv ) A description of the factors that were relevant to the agency’s proposal

or refusal.

( v

) Each of the procedural safeguards

that is available in accordance with the IDEA and this part.

( vi) Sources for parents to contact to obtain assistance in understanding the provisions of this part.

( vii) Dispute resolution procedures, including a description of mediation, how to file a complaint, due process hearing procedures, and applicable

timelines.

( 2 ) The notice must be provided in language understandable to a lay person and in the native language of the parent

or other mode of communication used by the parent, unless it is clearly not

feasible to do so.

(E) The right to obtain an independent educational evaluation (IEE) of the

child.

(F) The right to timely administrative resolution of complaints.

(G) The availability of dispute resolution through the administrative complaint, mediation, and due process procedures described in paragraph (d) of this section with respect to any matter relating to the identification, evaluation, or educational placement of the child, or a FAPE for the child, age 3 through 21 years, inclusive.

(H) The right of any party aggrieved by the decision regarding a due process complaint to bring a civil action in a

district court of the United States of competent jurisdiction in accordance with paragraph (d)(21) of this section.

(ii) Procedural Safeguards Notice. A DoDEA school shall not be required to give parents a copy of the procedural safeguards notice more than once a school year, except that a copy must be given to parents upon a request from the parents; upon initial referral for evaluation or parental request for evaluation; and upon receipt of the first due process complaint.

(A) The procedural safeguards notice must include a full explanation of all of the procedural safeguards available, including:

( 1 ) Independent evaluation for children (3 through 21 years, inclusive).

( 2 ) Prior written notice. ( 3 ) Parental consent. ( 4 ) Access to educational records. ( 5) Dispute resolution procedures together with applicable timelines including:

( i) The availability of mediation. ( ii) Procedures for filing a due process complaint and the required time period within which a due process complaint

must be filed.

( iii) The opportunity for the DoDEA school system to resolve a due process complaint filed by a parent through the resolution process.

( iv ) Procedures for filing an administrative complaint and for

administrative resolution of the issues.

( 6) The child’s placement during pendency of due process proceedings in accordance with paragraph (d)(18) of

this section.

( 7) Procedures for children (3 through 21 years, inclusive) who are subject to placement in an interim AES.

( 8 ) Requirements for unilateral placement by parents of children in private schools at public expense.

( 9) Due process hearings, including requirements for disclosure of

evaluation results and

recommendations.


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( 10) The right to bring a civil action

in a district court of the United States in accordance with paragraph (d)(21) of this section, including the time period

in which to file such action.

( 11 ) The possibility of an award of attorney’s fees to the prevailing party in

certain circumstances.

(B) The procedural safeguards notice

must be:

( 1 ) Written in language understandable to the general public.

( 2 ) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the procedural safeguards notice is not translated into the native language of the parent, then the DoDEA school system shall ensure that:

( i) The notice is translated orally or by other means for the parent in his or her native language or other mode of

communication.

( ii) The parent understands the

content of the notice.

( iii) There is written evidence that the requirements above have been met.

(iii) Independent Educational Evaluation (IEE).

(A) Obtaining an IEE. The DoDEA school system shall provide to the parents, upon request for an IEE,

information about where an IEE that meets DoDEA school system criteria, as set forth in paragraph (b)(19)(iii)(F) of this section, may be obtained.

(B) Right to IEE. The parents of a child with a disability have a right to an IEE at the DoDEA school system expense if the parent disagrees with an evaluation obtained by the DoDEA school system, subject to paragraph (b)(19)(iii)(C) to (H)

of this section.

(C) Written Request for IEE. If a parent provides the DoDEA school system with a written request for an IEE funded by the school system, then the school system shall either:

( 1 ) Agree to fund an appropriate IEE that meets the DoDEA school system

criteria, or

( 2 ) Initiate a due process hearing in accordance with paragraph (d) of this section, without unnecessary delay, and

demonstrate that its evaluation was appropriate under this part.

( i) If the DoDEA school system initiates a due process hearing and the final decision is that the school system’s evaluation is appropriate, the parent still has the right to an IEE, but not at public expense.

( ii) If a parent requests an IEE, the DoDEA school system may ask for the parent’s reason why he or she objects to the school system’s evaluation. However, the parent may not be compelled to provide an explanation and the DoDEA school system may not unreasonably delay either agreeing to

fund an IEE that meets DoDEA school system criteria or initiating a due process hearing to defend its evaluation.

(D) Parent-Initiated Evaluations. If the parent obtains an IEE funded by the school system or shares with the DoDEA school system an evaluation obtained at private expense:

( 1 ) The results of the evaluation shall be considered by the DoDEA school if it meets the school system’s criteria in any decision made with respect to the provision of FAPE to the child.

( 2 ) The results may be presented by any party as evidence at a due process hearing under this section regarding that

child.

( 3 ) The DoDEA school system may not be required to fund an IEE that has been obtained by a parent if at a due process hearing initiated by either party and
conducted under this section, the DoDEA school system demonstrates

either that:

( i) The parentally obtained evaluation was not educationally appropriate or failed to meet agency criteria; or

( ii) The DoDEA school system’s evaluation was appropriate.

(E) Hearing Officer Order for

Evaluation. A hearing officer may only

order an IEE at the DoDEA school system’s expense as part of a due process hearing under this section if:

( 1 ) The school system has failed to

demonstrate its assessment was appropriate; or

( 2 ) The school system has not already funded an IEE in response to a given

school evaluation.

(F) DoDEA School System Criteria. An IEE provided at the DoDEA school system’s expense must:

( 1 ) Conform to the requirements of paragraph (b)(6)(viii) and (ix) of this

section.

( 2 ) Be conducted, when possible, in the geographic area where the child resides utilizing available qualified resources, including qualified examiners employed by the Military Department, unless the parent can

demonstrate to the satisfaction of the DoDEA school system or in a due process hearing filed in accordance with paragraph (d) of this section, that the geographic limitation renders the IEE impossible.

( 3 ) Meet DoD standards governing persons qualified to conduct an IEE, including an evaluation for related

services.

(G) Conditions. Except for the criteria in paragraph (b)(6)(viii) and(b)(6)(ix) of this section, the DoDEA school system shall not impose conditions or timelines related to obtaining an IEE at the DoDEA school system expense.

(H) Limitations. A parent is entitled to only one IEE at DoDEA school system expense in response to a given DoDEA school system evaluation with which the parent disagrees.

(iv) Placement During Due Process, Appeal, or Civil Procedures. While an impartial due process proceeding, appeal proceeding, or civil proceeding is pending, unless the DoDEA school system and the parent of the child agree otherwise in writing, the child shall remain in his or her current placement, subject to the disciplinary procedures prescribed in paragraph (b)(13) of this

section.

(v) Transfer of Parental Rights at Age of Majority.

(A) In the DoDEA school system, a child reaches the age of majority at age

18.

(B) When a child with a disability reaches the age of majority (except for a child with a disability who has been determined to be incompetent in accordance with Federal or State law) the rights afforded to the parents in accordance with the IDEA and this part

transfer to the child.

(C) When a child reaches the age of majority, the DoDEA school shall notify the child and the parents of the transfer of rights.

(D) When a child with a disability

who has not been determined to be incompetent, but who does not have the ability to provide informed consent with respect to his or her educational program, reaches the age of majority, the DoD shall appoint a parent or the parents of the child to represent the

educational interests of the child throughout the period of eligibility for special education services.

(c) Procedures for Provision of Related Services by the Military Departments to

Students With Disabilities in a DoDDS

(1) Evaluation Procedures. (i) Upon request by a CSC, the responsible EDIS shall ensure that a qualified medical authority conducts or verifies a medical evaluation for use by the CSC in determining the medically related disability that results in a child’s need for special education and related
services, and shall oversee an EDIS evaluation used in determining a child’s

need for related services.

(ii) The medical or related services evaluation, including necessary

consultation with other medical personnel, shall be supervised by a physician or other qualified healthcare provider.

(iii) The medical or related services evaluation shall be specific to the


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concerns addressed in the request from

the CSC.

(iv) The EDIS shall provide to the CSC an evaluation report that responds to the questions posed in the original request for an evaluation. The written report

shall include:

(A) Demographic information about
the child, such as the child’s name, date of birth, and grade level

(B) Behavioral observation of the child during testing.

(C) Instruments and techniques used. (D) Evaluation results. (E) Descriptions of the child’s strengths and limitations.

(F) Instructional implications of the findings.

(G) The impact of the child’s medical condition(s), if applicable, on his or her educational performance.

(v) If the EDIS that supports the DoDDS school requires assistance to conduct or complete an evaluation, the EDIS shall contact the MTF designated by the Military Department with geographic responsibility for the area

where the EDIS is located.

(vi) If EDIS determines that in order to respond to the CSC referral the scope

of its assessment and evaluation must be expanded beyond the areas specified in the initial parental permission, EDIS

must:

(A) Obtain parental permission for the

additional activities.

(B) Complete its initial evaluation by the original due date.

(C) Notify the CSC of the additional

evaluation activities.

(vii) When additional evaluation information is submitted by EDIS, the

CSC shall review all data and determine the need for program changes and the reconsideration of eligibility.

(viii) An EDIS provider shall serve on the CSC when eligibility, placement, or requirements for related services that EDIS provides are to be determined.

(2) IEP (i) EDIS shall be provided the opportunity to participate in the IEP meeting.

(ii) EDIS shall provide related services assigned to EDIS that are listed on the

IEP.

(3) Liaison With DoDDS. Each EDIS shall designate a special education

liaison officer to:

(i) Provide liaison between the EDIS and DoDDS on requests for evaluations and other matters within their purview.

(ii) Offer, on a consultative basis, training for school personnel on medical aspects of specific disabilities.

(iii) Offer consultation and advice as needed regarding the medical services provided at school (for example, tracheotomy care, tube feeding, occupational therapy). (iv) Participate with school personnel in developing and delivering in-service training programs that include

familiarization with various conditions that impair a child’s educational endeavors, the relationship of medical findings to educational functioning, related services, and the requirements of the IDEA and this part.

(d) Dispute Resolution and Due Process

Procedures

(1) General. This section establishes requirements for resolving disputes regarding the provision of EIS to an infant or toddler up to 3 years of age, or
the identification, evaluation, or educational placement of a child (ages 3 through 21, inclusive), or the provision of a FAPE to such child in accordance with the IDEA and this part.

(2) Conferences. Whenever possible, parties are encouraged to resolve disputes through the use of conferences at the lowest level possible between the parents and EDIS or the DoDEA school.

(i) Within a DoDEA school, problems should be brought first to the teacher,
then the school administrator, and then

the district office.

(ii) At EDIS, problems should be brought first to the EDIS provider, then the EDIS program manager, and then the

local MTF commander.

(3) Administrative Complaints. (i) A complaint filed with the responsible agency, relating to the provision of services under the IDEA and this part, other than due process complaints filed in accordance with paragraph (d)(5) of
this section, is known as an administrative complaint.

(ii) An individual or organization may file an administrative complaint alleging issues relating to services required to be delivered under the IDEA and this part

with:

(A) The Office of the Inspector General of a Military Department when the issue involves services or programs

for infants and toddlers with disabilities, or related services provided by the Military Departments to children

with disabilities.

(B) The DoDEA Director, Office of Investigations and Internal Review (OI&IR) when the issue involves the services or programs for children ages 3
to 21, inclusive that are under the

direction or control of the DoDEA school system.

(iii) An administrative complaint alleging issues relating to services required to be delivered under the IDEA or this part must include:

(A) A statement that the Military Service or the DoDEA school system has violated a requirement of the IDEA or this part. (B) The facts on which the statement

is based.

(C) The signature and contact information for the complainant.

(D) If alleging violations with respect to specific children:

( 1 ) The name of the school the child is attending.

( 2 ) The name and address of the

residence of the child.

( 3 ) A description of the nature of the problem of the child, including facts relating to the problem.

( 4 ) A proposed resolution of the problem to the extent known and available to the complainant at the time the complaint is filed.

(iv) An administrative complaint may not allege a violation that occurred more than 1 year prior to the date that the complaint is received.

(v) The complainant filing an administrative complaint alleging issues related to services required to be delivered under the IDEA or this part must forward a copy of the complaint to the DoDEA school or EDIS clinic serving

the child at the same time the complainant files the complaint with the appropriate authority in paragraph (d)(3)(i) of this section.

(A) Upon receipt of the complaint, the Inspector General of the Military Department concerned will notify the Secretary of the Military Department concerned, and the OCA will notify the Director, DoDEA, of the complaint.

(B) Upon receipt of a complaint, the responsible Military Department Inspector General or the OCA shall, if warranted, promptly open an investigation consistent with its established procedures for investigating complaints.

( 1 ) The investigation shall afford the complainant an opportunity to submit

additional information about the allegations.

( 2 ) The investigation shall afford the DoDEA school system or the Military Department an opportunity to:

(i) Respond to the complaint; (ii) Propose a resolution to the complaint; or

(iii) If the parties are willing, voluntarily engage in mediation of the complaint.

( 3 ) The investigation shall produce a report consistent with those the investigating agency routinely provides, shall determine whether its findings support the complaint, and shall state whether the DoDEA school system or the Military Department is violating a requirement of the IDEA or this part.

(vi) The findings and conclusions of the report of investigation related to the administrative complaint shall be made available to the complainant and


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members of the public in accordance with the standard operating procedures of the investigating activity and 32 CFR part 310 and 32 CFR part 285.

(A) The investigating activity shall provide a copy of the report to the Director, DoDEA and the Secretary of a Military Department concerned or in accordance with the investigating activity’s protocols.

(B) The report shall be provided, to the extent practicable, within 60 days of initiating the investigation, unless extended by the complainant and the DoDEA school system or the Military Department.

(vii) The Secretary of the Military Department concerned or the Director, DoDEA shall resolve complaints within their respective area of responsibility when the Military Service or the DoDEA school system is found to have failed to provide appropriate services consistent with the requirements of the IDEA or this part. Remediation may include corrective action appropriate to address

the needs of the child such as compensatory services, or monetary

reimbursement where otherwise authorized by law.

(viii) When a complaint received under this section is also the subject of a due process complaint regarding alleged violations of rights afforded under the IDEA and this part, or contains multiple issues of which one or more are part of that due process complaint, the investigation activity shall set aside any issues alleged in the due process complaint until a hearing is

concluded in accordance with the IDEA and this part. Any issue that is not part of the due process hearing must be resolved using the procedures of this

section.

(ix) If an issue raised in a complaint

filed under this section has been previously decided in a due process hearing involving the same parties:

(A) The due process hearing decision is binding on that issue.

(B) The Director, DoDEA or the Secretary of the Military Department

concerned shall so inform the complainant.

(4) Mediation. (i) A parent, the Military Department concerned, or DoDEA may request mediation at any time, whether or not a due process petition has been filed, to informally resolve a disagreement on any matter relating to the provision of EIS to an infant or toddler (birth up to 3 years of age), or the identification, evaluation, or educational placement of a child (ages 3 through 21, inclusive), or the provision of a FAPE to such child.

(ii) Mediation must be voluntary on the part of the parties and shall not be used to deny or delay a parent’s right to a due process hearing or to deny other substantive or procedural rights

afforded under the IDEA.

(A) DoDEA school officials participate in mediation involving special
education and related services; the cognizant Military Department participates in mediation involving EIS.

(B) The initiating party’s request must be written, include a description of the dispute, bear the signature of the requesting party, and be provided:

( 1 ) In the case of a parent initiating
mediation, to:

( i) The local EDIS program manager in disputes involving EDIS; or

( ii) The school principal in disputes involving a DoDEA school.

( 2 ) In the case of the school or EDIS initiating mediation, to the parent.

(C) Acknowledgment of the request for mediation shall occur in a timely

manner.

(D) Agreement to mediate shall be provided in writing to the other party in a timely manner.

(ii) Upon agreement of the parties to mediate a dispute, the local EDIS or DoDEA school shall forward a request for a mediator to the Military Department or to DoDEA’s Center for Early Dispute Resolution (CEDR), respectively.

(iii) The mediator shall be obtained from the Defense Office of Hearings and Appeals (DOHA) unless another qualified and impartial mediator is obtained by the Military Department or

CEDR.

(A) Where DOHA is used, the DOHA Center for Alternate Dispute Resolution (CADR) shall provide the mediator from its roster of mediators qualified in special education disputes.

(B) Where the Military Department or

DoDEA elects to secure a mediator through its own DoD Component
resources, the mediator shall be selected from the Component’s roster of mediators qualified in special education disputes, or by contract with an outside mediator duly qualified in special education disputes and who is trained in effective mediation techniques.

(iv) The Military Department or DoDEA through CEDR shall obtain a mediator within 15 business days of receipt of a request for mediation, or immediately request a mediator through the Director, DOHA, through the DOHA

CADR.

(v) When requested, the Director, DOHA, through the CADR, shall appoint a mediator within 15 business days of receiving the request, unless a party provides written notice to the Director, DOHA that the party refuses to participate in mediation. (vi) Unless both parties agree
otherwise, mediation shall commence in a timely manner after both parties agree

to mediation.

(vii) The parents of the infant, toddler,
or child, and EDIS or the school shall be parties in the mediation. With the consent of both parties, other persons may attend the mediation.

(viii) Mediation shall be conducted using the following rules:

(A) The Military Department

concerned shall bear the cost of the mediation process in mediations concerning EIS.

(B) DoDEA shall bear the cost of the mediation process in mediations concerning special education and

related services.

(C) The mediator may require the parties to sign a confidentiality pledge

before the commencement of mediation.

(D) Unless the parties and the mediator agree, no person may record a mediation session, nor shall any written notes be taken from the room by either

party.

(E) Either party may request a recess

of a mediation session to consult advisors, whether or not present, or to consult privately with the mediator.

(F) The mediator shall ensure and the

contract for mediation services shall require that any partial or complete resolution or agreement of any issue in mediation is reduced to writing, and that the written agreement is signed and dated by the parties, with a copy given to each party.

(ix) Any written agreement resulting

from the mediation shall state that all discussions that occurred during the mediation process and all records of the

mediation other than a final executed agreement shall be confidential and may

not be discoverable or admissible as evidence in any subsequent due process proceeding, appeal proceeding, or civil proceeding under this part, and shall be legally binding upon the parties and

enforceable in a district court of the

United States.

(x) All mediation sessions shall be

held in a location that is convenient to both parties.

(xi) No hearing officer or adjudicative body shall draw any inference from the fact that a mediator or a party withdrew

from mediation or from the fact that

mediation did not result in settlement of a dispute.

(xii) Discussions and statements made during the mediation process, and any
minutes, statements or other records of

a mediation session other than a final executed mediation agreement, shall be

considered confidential between the parties to that mediation and are not

discoverable or admissible in a due


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process proceeding, appeal proceeding, or civil proceeding under this part.

(5) Due Process Complaint

Procedures.

(i) Parents of infants, toddlers, and children who are covered by this part and the cognizant Military Department or DoDEA, are afforded impartial hearings and administrative appeals after the parties have waived or participated in and failed to resolve a dispute through:

(A) Mediation, in the case of an infant
or toddler; or

(B) A resolution process, or mediation in lieu of the resolution process prior to proceeding to a due process hearing, in the case of a child (ages 3 through 21 years, inclusive).

(ii) An impartial due process hearing is available to resolve any dispute concerning the provision of EIS to

infants and toddlers with disabilities or with respect to any matter relating to the
identification, evaluation, educational placement of, and the FAPE provided by the Department of Defense to children (ages 3 through 21, inclusive) who are covered by this part, in accordance with the IDEA and this part.

(A) Whenever the parents or the cognizant Military Department present a due process complaint (petition) in accordance with this part, an impartial due process hearing is available to resolve any dispute concerning the provision of EIS.

(B) When the parents of children ages 3 through 21 years, inclusive, or the cognizant Military Department or DoDEA, present a due process complaint (petition) in accordance with this part relating to any matter regarding
the identification, evaluation, placement, or the provision of FAPE, the parties shall first proceed in accordance with the requirements for a statutory resolution process in accordance with this part, after which time an impartial due process hearing is available to resolve the dispute set forth by the complaint.

(iii) An expedited impartial due process hearing may be requested:

(A) By a parent when the parent disagrees with the manifestation determination or any decision regarding the child’s disciplinary placement.

(B) By the school when it believes that maintaining a student in his or her current educational placement is substantially likely to result in injury to

the student or others and.

(iv) Any party to a special education dispute may initiate a due process hearing by filing a petition stating the specific issues that are in dispute. The initiating party is the ‘‘petitioner’’ and the responding party is the ‘‘respondent.’’ The petition itself will
remain confidential, in accordance with applicable law, not be released to those not a party to the litigation and its Personally Identifiable Information shall be protected in accordance with the DoD Privacy Act.

(v) Petitioner and respondent are each entitled to representation by counsel at their own expense. The parent and child may choose to be assisted by a personal representative with special knowledge or training with respect to the problems of disabilities rather than by legal

counsel.

(vi) To file a petition that affords

sufficient notice of the issues and commences the running of relevant timelines, petitioners shall specifically include in the petition:

(A) The name and residential address

of the child and the name of the school the child is attending or the location of the EDIS serving the child.

(B) A description of the dispute(s) between the parents and the school or EDIS describing the facts (who, what, when, where, how, why) pertinent to each dispute and relating those facts to:

( 1 ) A proposal, or the refusal of a proposal, to initiate or change the
identification, evaluation, or educational placement of the child; or

( 2 ) Any allegation of the failure to provide a FAPE to the child.

(C) A proposed resolution of the problem to the extent known and available to the petitioner at the time.

(D) The signature of the parent, or if the petitioner is DoDEA or a Military Department, an authorized representative of that petitioner, or of the counsel or personal representative for the petitioner, and his or her telephone number and mailing address.

(vii) When the cognizant Military Department or DoDEA petitions for a hearing, it shall additionally:

(A) Inform the parent of the 10 business-day deadline (or 5 school days in the case of an expedited hearing) for filing a response that specifically

addresses the issues raised in the petition.

(B) Provide the parent with a copy of this part.

(viii) A special rule applies for expedited hearing requests. The petitioner must state, as applicable to his or her petition:

(A) The disciplinary basis for the child’s change in placement to an

interim AES or other removal from the child’s current placement.

(B) The reasons for the change in placement.

(C) The reasoning of the manifestation determination committee in concluding that a particular act of misconduct was not a manifestation of the child’s disability.

(D) How the child’s current educational placement is or is not substantially likely to result in injury to

the child or others.

(ix) The petition or request for an expedited due process hearing must be

delivered to:

(A) The Director, DOHA, by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703–696–1831, or email

to specialedcomplaint@osdgc.osd.mil. Filing may also be made by hand delivery to the office of the Director, DOHA if approval from the Director,

DOHA is obtained in advance of delivery.

(B) The respondent by mail, fax, email, or hand delivery.

( 1 ) If the petitioner is a parent of a child (ages of 3–21, inclusive), or a child (in the event that rights have been

transferred in accordance with paragraph (b)(19) of this section, the respondent is DoDEA and the petition must be delivered to and received by the principal of the school in which the
child is enrolled, or if the child is

enrolled in the Non-DoD School Program (NDSP) to the DoDEA General Counsel (generalcounsel@ hq.dodea.edu ).

( 2 ) If the petitioner is the parent of an infant or toddler (birth to age 3), the respondent is the responsible Military Department and the petition must be delivered to and received by the EDIS

manager.

( 3 ) If the petitioner is the responsible Military Department or DoDEA, the petition must be delivered to and received by the parent of the child.

(C) Filing of the due process petition with DOHA is considered complete when received by DOHA.

(x) The timelines for requesting and conducting a due process hearing are:

(A) Timelines for Requesting a Hearing. A petitioner may not allege a

violation that occurred more than 2 years before the date the petitioner
knew, or should have known, about the alleged action that forms the basis of the complaint, unless the parent was prevented from requesting the hearing

due to:

( 1 ) Specific misrepresentation by

DoDEA or EDIS that it had resolved the problem forming the basis of the complaint.

( 2 ) The withholding of information by DoDEA or EDIS from the petitioning parent that was required to be provided to the parent in accordance with the IDEA and this part.

(B) Timeline for Conducting a Due Process Hearing. Except as provided in paragraph (d)(5)(x)(D) and (d)(8)(ii) of


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this section, a hearing officer shall issue findings of fact and conclusions of law not later than 50 business days:

( 1 ) In a case involving EDIS, following the filing and service of a legally sufficient petition or amended petition

in accordance with this section.

( 2 ) In disputes involving a school and a child age 3–21, inclusive, following the filing and service of a legally sufficient petition or amended petition

in accordance with this section and the hearing officer’s receipt of notice that the 30-day resolution period concluded without agreement, the parties waived the resolution meeting, or the parties

have concluded mediation in lieu of the resolution process without reaching

agreement.

(C) Exceptions to the Timelines for Conduct of a Hearing

( 1 ) When the hearing officer grants a request for discovery made by either party, as provided for in paragraph (d)(10) of this section, in which case the time required for such discovery does not count toward the 50 business days.

( 2 ) When the hearing officer grants a specific extension of time for good cause in accordance with paragraph (d)(8) of

this section.

(D) Timeline for Conducting an Expedited Hearing. (i) In the event of a petition for expedited hearing is requested, a DOHA hearing officer shall arrange for the hearing to be held not later than 20 school days (when school is in session) of the date the request is filed with DOHA, subject to the timeline for scheduling a resolution meeting and the 15 day resolution period requirements of this section.

(ii) The hearing officer must make a determination within 10 school days after the hearing.

(6) Responses and Actions Required Following Receipt of a Petition or Request for Expedited Hearing. (i) Immediately upon receipt of the petition, the Director, DOHA, shall appoint a hearing officer to take charge

of the case.

(A) The hearing officer shall immediately notify the parties of his or her appointment.

(B) Upon receipt of notice that a hearing officer is appointed, the parties
shall communicate all motions, pleadings, or amendments in writing to the hearing officer, with a copy to the opposing party, unless the hearing

officer directs otherwise.

(ii) Within 10 business days of receipt of the petition (5 school days when

school is in session in the case of a petition for an expedited hearing), the respondent shall deliver a copy of the written response to the petitioner and file the original written response with the hearing officer. Filing may be made by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703–696–1831, by hand delivery if approved in advance by the hearing officer, or by email to specialedcomplaint@osdgc.osd.mil. If a hearing officer has not yet been appointed, the respondent will deliver the original written response to the
Director, DOHA in accordance with paragraph (d)(5)(ix) of this section.

(iii) The respondent shall specifically

address the issues raised in the due process hearing petition.

(iv) If the respondent is the cognizant Military Department or DoDEA, the response shall include:

(A) An explanation of why the respondent proposed or refused to take the action at issue in the due process complaint.

(B) A description of each evaluation procedure, assessment, record, or report the DoD Component used as the basis for the proposed or refused action.

(C) A description of the options that the respondent considered and the reasons why those options were rejected.

(D) A description of the other factors that are relevant to the respondent’s proposed or refused action.

(v) The respondent may file a notice of insufficient petition within 15 business days of receiving a petition if the respondent wishes to challenge the sufficiency of the petition for failure to state the elements required by the IDEA. Within 5 business days of receiving a notice of insufficient petition, the hearing officer will issue a decision and will notify the parties in writing of that

determination.

(vi) A response to the petitioner shall not be construed to preclude the respondent from asserting that the parents’ due process complaint was

insufficient.

(vii) Parties may amend a petition only if:

(A) The other party consents in writing to such amendment and is given the opportunity to resolve the complaint through the resolution process; or

(B) The hearing officer grants permission, except that the hearing officer may not grant such permission at any time later than 5 days before a due process hearing is scheduled to begin.

(viii) The filing of an amended petition resets the timelines for:

(A) The conduct of a resolution meeting and the resolution period relating to the amended petition, and

(B) All deadlines for responses and action required following the receipt of the amended petition, and for conducting a due process hearing on the amended petition. (7) Statutory Resolution Process. A resolution meeting shall be convened by DoDEA and a resolution period
afforded, in accordance with this section, for any dispute in which a due process petition has been filed regarding
the the identification, evaluation, or educational placement, or the provision of FAPE for children ages 3 to 21,

inclusive.

(i) Within 15 calendar days of receiving the parent’s petition for due process (7 calendar days in the case of an expedited hearing), DoDEA, through the pertinent school principal or superintendent, shall convene a dispute resolution meeting, which must be attended by:

(A) The parents. (B) A legal representative of the parents if desired by the parents.

(C) A DoDEA official designated and authorized by the District Superintendent or Area Director to exercise decision-making authority on

behalf of DoDEA.

(D) A DoDEA legal representative, only if the parent is represented by counsel at the resolution meeting.

(E) The relevant members of the child’s CSC who have specific knowledge of the facts identified in the petition.

(ii) The parties may agree to mediate in lieu of conducting a resolution meeting or in lieu of completing the resolution period. The resolution meeting need not be held if the parties agree in writing to waive the meeting or agree to use the mediation process.

(iii) Failure to convene or participate in resolution meeting.

(A) If DoDEA has offered to convene a resolution meeting and has been unable to obtain parental participation in the resolution meeting after making and documenting its reasonable efforts, DoDEA may, at the conclusion of the resolution period (30 days or 15 days in the case of an expedited hearing) request that a hearing officer dismiss the parent’s due process complaint or request for an expedited due process hearing.

(B) If DoDEA fails to convene a resolution meeting within 15 days of receipt of a due process complaint or if it fails to participate in the resolution meeting, the parent may request the hearing officer to immediately convene the due process hearing without waiting for the 30-day resolution period to expire.

(iv) DoDEA shall have a 30-day resolution period, counted from the receipt of the complaint by the school principal, (15 days in the case of an expedited hearing request) within


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which to resolve the complaint to the satisfaction of the parents.

(v) The resolution period may be adjusted because of one of the following

events:

(A) Both parties agree in writing to waive the resolution meeting.

(B) After the resolution meeting starts, but before the end of the applicable resolution period, the parties agree in writing that no agreement is possible and agree to waive the balance of the resolution period.

(C) Both parties agree in writing to continue the resolution meeting at the end of the applicable resolution period, but later the parent or the school withdraws from the resolution process.

(vi) If a partial or complete resolution to the dispute is reached at the resolution meeting, the parties must execute a written agreement that is:

(A) Signed by both the parents and a representative of the school with authority to bind the school to the terms of the agreement.

(B) Legally enforceable in a U.S. District Court of competent jurisdiction, unless the parties have voided the agreement within an agreement review period of 3 business days following the execution of the agreement.

(vii) Discussions held, minutes,
statements, and other records of a resolution meeting, and any final executed resolution agreement are not presumed confidential and therefore are

discoverable and admissible in a due process proceeding, appeal proceeding, or civil proceeding, except when the parties have agreed to confidentiality.

(viii) If DoDEA has not resolved the complaint to the satisfaction of the parents at the expiration of the resolution period or the adjusted resolution period, if applicable:

(A) DoDEA shall provide written notice to the hearing officer, copy to the parents, within 3 business days (1 business day in the case of an expedited hearing) of the expiration of the resolution period or adjusted resolution period that the parties failed to reach

agreement.

(B) Upon receipt of that notification by the hearing officer, all of the applicable timelines for proceeding to a due process hearing under this section

shall commence.

(ix) If the parties execute a binding written agreement at the conclusion of the resolution period, and do not subsequently declare it void during the 3-business day agreement review period, then:

(A) DoDEA shall provide written notice to the hearing officer, copy to the parents, at the conclusion of the agreement review period that the parties have reached an agreement for resolution of complaints set forth in the due process petition.

(B) Upon receipt of that notification by the presiding hearing officer, no due process hearing shall proceed on the

issues resolved.

(8) The Due Process Hearing. (i) Purpose. The purpose of the due process hearing is to establish the relevant facts necessary for the hearing officer to reach a fair and impartial determination of the

case.

(ii) Hearing Officer Duties. The hearing officer shall be the presiding officer, with judicial powers to manage the proceeding and conduct the hearing. Those powers shall include, but are not limited to, the authority to:

(A) Determine the adequacy of pleadings.

(B) Decide whether to allow amendment of pleadings, provided permission is granted to authorize the amendment not later than 5 days before a due process hearing occurs.

(C) Rule on questions of timeliness and grant specific extension of time for good cause either on his or her own motion or at the request of either party.

( 1 ) Good cause includes the time required for mediation in accordance with paragraph (d)(4) of this section where the parties have jointly requested

an extension of time in order to complete mediation.

( 2 ) If the hearing officer grants an
extension of time, he or she shall identify the length of the extension and

the reason for the extension in the record of the proceeding. Any such

extension shall be excluded from the time required to convene a hearing or
issue a final decision, and at the discretion of the hearing officer may delay other filing dates specified by this

section.

(D) Rule on requests for discovery and discovery disputes.

(E) Order an evaluation of the child at the expense of the DoDEA school system or the Military Department

concerned.

(F) Rule on evidentiary issues. (G) Ensure a full and complete record of the case is developed.

(H) Decide when the record in a case

is closed.

(I) Issue findings of fact and

conclusions of law.

(J) Issue a decision on substantive grounds based on a determination of

whether the child received a FAPE. When the petition alleges a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies:

( 1 ) Impeded the child’s right to a

FAPE; ( 2 ) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the child; or

( 3 ) Caused a deprivation of

educational benefits.

(K) Order such relief as is necessary

for the child to receive a FAPE or appropriate EIS, including ordering the DoDEA school system or the responsible Military Department to:

( 1 ) Correct a procedural deficiency

that caused a denial of a FAPE or appropriate EIS;

( 2 ) Conduct evaluations or assessments and report to the hearing
officer;

( 3 ) Change the school-aged child’s placement or order the child to an AES for up to 45 days;

( 4 ) Provide EIS or specific school-age

educational or related services to a child to remedy a denial of FAPE, including compensatory services when appropriate and in accordance with the current early intervention or educational program; or

( 5) Placement of a school-aged child in an appropriate residential program

for children with disabilities at DoD expense, when appropriate under the law and upon a determination that DoDEA has failed to provide and cannot provide an otherwise eligible child with a FAPE at the appropriate DoD facility.

( i) A residential program must be one that can address the specific needs of the child as determined by the DoDEA

school.

( ii) The program should, whenever possible, be located near members of the child’s family.

(9) Attendees at the Hearing. Attendance at the hearing is limited to:

(i) The parents and the counsel or personal representative of the parents.

(ii) A representative of DoDEA or the

EDIS concerned and the counsel representing DoDEA or the EDIS.

(iii) Witnesses for the parties, including but not limited to the professional employees of DoDEA or the EDIS concerned and any expert

witnesses.

(iv) A person qualified to transcribe or record the proceedings.

(v) Other persons with the agreement of the parties or the order of the hearing officer, in accordance with the privacy interests of the parents and the

individual with disabilities.

(10) Discovery. (i) Full discovery shall
be available, with the Federal Rules of
Civil Procedure, Rules 26–37, 28 U.S.C. appendix, serving as a guide to parties to a due process hearing or conducted in accordance with this part.

(ii) If voluntary discovery cannot be accomplished, a party seeking discovery


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may file a motion with the hearing officer to accomplish discovery. The hearing officer shall grant an order to accomplish discovery upon a showing that the document or information sought is relevant or reasonably calculated to lead to the discovery of admissible evidence. An order granting discovery, or compelling testimony or the production of evidence shall be enforceable by all reasonable means within the authority of the hearing
officer, to include the exclusion of testimony or witnesses, adverse inferences, and dismissal or summary judgment.

(iii) Records compiled or created in the regular course of business, which have been provided to the opposing party at least 5 business days prior to the hearing, may be received and considered by the hearing officer without authenticating witnesses.

(iv) A copy of the written or electronic transcription of a deposition taken by a Military Department or DoDEA shall be made available by the Military Department or DoDEA without charge to the opposing party.

(11) Right to an Open Hearing. The parents, or child who has reached the age of majority, have the right to an open hearing upon waiving, in writing, their privacy rights and those of the

individual with disabilities who is the subject of the hearing.

(12) Location of Hearing. Subject to modification by the hearing officer for good cause shown or upon the agreement of the parties, the hearing

shall be held:

(i) In the DoDEA school district attended by the child (ages 3 through 21, inclusive):

(ii) On the military installation of the EDIS serving infants and toddlers with
disabilities; or

(iii) At a suitable video teleconferencing facility convenient for the parents of the child involved in the hearing and available for the duration of a hearing.

(13) Witnesses and Documentary

Evidence. (i) At least 5 business days prior to a hearing, the parties shall exchange lists of all documents and materials that each party intends to use at the hearing, including all evaluations and reports. Each party also shall

disclose the names of all witnesses it intends to call at a hearing along with a proffer of the anticipated testimony of

each witness.

(ii) At least 10 business days prior to a hearing, each party must provide the name, title, description of professional qualifications, and summary of proposed testimony of any expert witness it intends to call at the hearing. (iii) Failure to disclose documents, materials, or witnesses may result in the hearing officer barring their introduction at the hearing.

(iv) Parties must limit evidence to the issues specifically pleaded, except by order of the hearing officer or with the consent of the parties.

(v) The rules of evidence shall be relaxed to permit the development of a full evidentiary record with the Federal Rules of Evidence, 28 U.S.C. appendix, serving as guide.

(vi) All witnesses testifying at the hearing shall be advised by the hearing
officer that under 18 U.S.C. 1001, it is a criminal offense to knowingly and willfully make a materially false,
fictitious, or fraudulent statement or representation to a department or agency of the U.S. Government as to any matter within the jurisdiction of that department or agency, and may result in a fine or imprisonment.

(vii) A party calling a witness shall

bear the witness’ travel and incidental expenses associated with testifying at the hearing. The DoDEA school system or the Military Department concerned shall pay such expenses if a witness is called by the hearing officer.

(viii) The parties shall have the right to cross-examine witnesses testifying at the hearing.

(ix) The hearing officer may issue an order compelling a party to make a specific witness employed by or under control of the party available for testimony at the party’s expense or to submit specific documentary or physical evidence for inspection by the hearing officer or for submission into the record on motion of either party or on the hearing officer’s own motion.

(x) When the hearing officer determines that a party has failed to obey an order to make a specific witness available for testimony or to submit specific documentary or physical evidence in accordance with the hearing
officer’s order, and that such failure is in knowing and willful disregard of the order, the hearing officer shall so certify as a part of the written record in the case and may order appropriate sanctions.

(14) Transcripts. (i) A verbatim written transcription of any deposition taken by a party shall be provided to the opposing party in hardcopy written

format or as attached to an electronic email with prior permission of the recipient. If a Military Department or DoDEA takes a desposition, the verbatim written transcript of that deposition shall be provided to the parent(s) without charge.

(ii) A verbatim written transcription of the due process hearing shall be arranged by the hearing officer and shall be made available to the parties in hardcopy written format, or as an
attachment to an electronic email, with prior permission of the recipient, on request and without cost to the parent(s), and a copy of the verbatim written transcript of the hearing shall become a permanent part of the record

(15) Hearing Officer’s Written

Decision. (i) The hearing officer shall make written findings of fact and

conclusions of law and shall set forth both in a written decision addressing the issues raised in the due process complaint, the resolution of those
issues, and the rationale for the

resolution.

(ii) The hearing officer’s decision of
the case shall be based on the record, which shall include the petition, the answer, the transcript 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.

(iii) The hearing officer shall file the
written decision with the Director, DOHA, and additionally provide the Director, DOHA with a copy of that decision from which all personally

identifiable information has been

redacted.

(iv) The Director, DOHA, shall forward to parents and to the DoDEA or the EDIS concerned, copies, unredacted and with all personally identifiable information redacted, of the hearing

officer’s decision.

(v) The decision of the hearing officer shall become final unless a timely notice of appeal is filed in accordance with paragraph (d)(17) of this section.

(vi) The DoDEA or the EDIS concerned shall implement the decision as soon as practicable after it becomes

final.

(16) Determination Without Hearing. (i) At the request of a parent of an infant or toddler, birth to 3 years of age, when EIS are at issue, or of a parent of a child age 3 through 21, inclusive, or child who has reached the age of majority, when special education (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 conclusions of law and issue a written decision within the period fixed by paragraph (d)(5)(x) of this section.

(ii) DoDEA or the EDIS concerned may oppose a request to waive a hearing. In that event, the hearing officer shall rule on the request.


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(iii) Documentary evidence submitted to the hearing officer in a case determined without a hearing shall comply with the requirements of paragraph (d)(13) of this section. A party submitting such documents shall provide copies to all other parties.

(17) Appeal of Hearing Officer

Decision. (i) A party may appeal the hearing officer’s findings of fact and decision by filing a written notice of appeal within 15 business days of receipt of the hearing officer’s decision with the Chairperson, DOHA Appeal Board by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703–696–1831, by email to specialedcomplaint@osdgc.osd.mil, or by hand delivery to the office of the Chairperson, DOHA Appeal Board if approval from the Chairperson, DOHA Appeal Board is obtained in advance of delivery. The notice of appeal must contain the appealing party’s certification that a copy of the notice of appeal has been provided to the other party by mail.

(ii) Within 30 business days of filing the notice of appeal, the appealing party

shall file a written statement of issues and arguments on appeal with the Chairperson, DOHA Appeal Board by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703–696–1831, by email to specialedcomplaint@ osdgc.osd.mil , or by hand delivery to the office of the Chairperson, DOHA Appeal Board if approval from the Chairperson, DOHA Appeal Board is obtained in advance of filing. The appealing party shall deliver a copy to the other party by mail.

(iii) The non-appealing party shall file any reply within 20 business days of receiving the appealing party’s statement of issues and arguments on appeal with the Chairperson, DOHA Appeal Board by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703–696–1831, by email to specialedcomplaint@osdgc.osd.mil, or by hand delivery to the office of the Chairperson, DOHA Appeal Board if approval from the Chairperson, DOHA Appeal Board is obtained in advance of filing. The non-appealing party shall deliver a copy of the reply to the appealing party by mail.

(iv) Appeal filings with DOHA are complete upon transmittal. It is the burden of the appealing party to provide timely transmittal to and receipt to

DOHA.

(v) The DOHA Appeal Board, shall issue a decision on all parties’ appeals within 45 business days of receipt of the

matter.

(vi) 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, in accordance with the IDEA, to bring a civil action on the matters in dispute in a district court of the United States of competent jurisdiction without regard to the amount in controversy.

(vii) No provision of this part 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 section before seeking judicial review of a determination.

(18) Maintenance of Current

Educational Placement. (i) Except when

a child is in an interim AES for disciplinary reasons, during the pendency of any proceeding conducted pursuant to this section, unless the school and the parents otherwise agree,

the child will remain in the then current educational placement.

(ii) When the parent has appealed a decision to place a child in an interim
AES, the child shall remain in the interim setting until the expiration of the prescribed period or the hearing officer makes a decision on placement, whichever occurs first, unless the parent and the school agree otherwise.

(19) General Hearing Administration.
The Director, DOHA, shall:

(i) Exercise administrative responsibility for ensuring the timeliness, fairness, and impartiality of the hearing and appeal procedures to be

conducted in accordance with this

section.

(ii) Appoint hearing officers from the DOHA Administrative judges who shall:

(A) Be attorneys who are active members of the bar of the highest court
of a State, U.S. Commonwealth, U.S. Territory, or the District of Columbia and permitted to engage in the active practice of law, who are qualified in

accordance with DoD Instruction 1442.02 (see http://www.dtic.mil/whs/ directives/corres/pdf/144202p.pdf ). (B) Possess the knowledge of and ability to:

( 1 ) Understand the provisions of the IDEA and this part, and related Federal regulations and legal interpretations of those regulations by Federal courts.

( 2 ) Conduct hearings in accordance with appropriate, standard legal practice.

( 3 ) Render and write decisions in accordance with the requirements of this part.

(C) Be disqualified from presiding in any individual case if the hearing

officer: ( 1 ) Has a personal or professional interest that conflicts with the hearing officer’s objectivity in the hearing.

( 2 ) Is a current employee of, or military member assigned to, DoDEA or the Military Medical Department providing services in accordance with the IDEA and this part.

(20) Publication and Reporting of

Final Decisions. The Director, DOHA, shall ensure that hearing officer and appeal board decisions in cases arising

in accordance with this section are published and indexed with all personally identifiable information redacted to protect the privacy rights of the parents who are parties in the due process hearing and the children of such parents, in accordance with 32 CFR part

310.

(21) Civil Actions. Any party aggrieved by the final administrative decision of a due process complaint shall have the right to file a civil action

in a district court of the United States of competent jurisdiction, without regard to the amount in controversy. The party bringing the civil action shall have 90 days from the date of the decision of the hearing officer or, if applicable, the date of the decision of the DOHA Appeal Board, to file a civil

action.

(e) DoD–CC on Early Intervention, Special Education, and Related Services

(1) Committee Membership. The DoD– CC shall meet at least annually to facilitate collaboration in early intervention, special education, and related services in the Department of Defense. The Secretary of Defense shall appoint representatives to serve on the

DoD–CC who shall be full-time or permanent part-time government employees or military members from:

(i) USD(P&R), who shall serve as the

Chair.

(ii) Secretaries of the Military Departments.

(ii) TRICARE Management Activity. (iv) DoDEA. (v) GC, DoD. (2) Responsibilities. The responsibilities of the DoD–CC include:

(i) Implementation of a comprehensive, multidisciplinary program of EIS for infants and toddlers

with disabilities and their families.

(ii) Provision of a FAPE, including special education and related services,

for children with disabilities who are

enrolled full-time in the DoDEA school system, as specified in their IEP.

(iii) Designation of a subcommittee on compliance to:

(A) Advise and assist the USD(P&R) in the performance of his or her responsibilities.

(B) At the direction of the USD(P&R), advise and assist the Military


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Departments and DoDEA in the coordination of services among providers of early intervention, special
education, and related services.

(C) Monitor compliance in the provision of EIS for infants and toddlers and special education and related services for children ages 3 to 21,

inclusive.

(D) Identify common concerns,
facilitate coordination of effort, and forward issues requiring resolution to the USD(P&R).

(E) Assist in the coordination of assignments of sponsors who have

children with disabilities who are or who may be eligible for special education and related services through DoDEA or EIS through the Military Departments.

(F) Perform other duties as assigned by the USD(P&R), including oversight for monitoring the delivery of services consistent with the IDEA and this part.

(f) Monitoring. (1) Program Monitoring and Oversight.

(i) The USD(P&R) shall monitor the implementation of the provisions of the IDEA and this part in the programs operated by the Department of Defense. The USD(P&R) will carry out his or her responsibilities under this section primarily through the DoD–CC.

(ii) The primary focus of monitoring

shall be on:

(A) Improving educational results and

functional outcomes for all children

with disabilities.

(B) Ensuring the DoD programs meet the requirements of the IDEA and this

part.

(iii) Monitoring shall include the following priority areas and any additional priority areas identified by the USD(P&R):

(A) Provision of a FAPE in the LRE and the delivery of early intervention

services.

(B) Child-find. (C) Program management. (D) The use of dispute resolution including administrative complaints, due process and the mandatory resolution process, and voluntary

mediation.

(E) A system of transition services. (iv) The USD(P&R) shall develop quantifiable indicators in each of the priority areas and such qualitative indicators necessary to adequately measure performance.

(v) DoDEA and the Military Departments shall establish procedures for monitoring special services and reviewing program compliance in accordance with the requirements of

this section.

(vi) By January 1 of each calendar year, the DoD–CC shall identify any additional information required to support compliance activities that will

be included in the next annual compliance report to be submitted no later than September 30 of that year. The results of monitoring program areas described in paragraph (f)(1)(iii) of this section shall be reported in a manner

that does not result in the disclosure of

data identifiable to individual children.

(2) Compliance Reporting. The Director, DoDEA, and the Military Departments shall submit reports to the DoD–CC not later than September 30 each year that summarize the status of compliance. The reports shall:

(i) Identify procedures conducted at headquarters and at each subordinate level, including on-site visits, to evaluate compliance with the IDEA and this part.

(ii) Summarize the findings and indicate the status of program compliance.

(iii) Describe corrective actions required of the programs that did not meet the requirements of the IDEA and this part and identify the technical assistance that was or shall be provided to ensure compliance.

(iv) Include applicable data on the operation of special education and early intervention in the Department of

Defense. Data must be submitted in the format required by the DoD–CC to enable the aggregation of data across components. March 31 shall be the census date for counting children for the reporting period that begins on July 1 and ends on June 30 of the following

year.

(3) School Level Reporting. (i) The reporting requirements for school aged children (3 through 21, inclusive) with

disabilities shall also include:

(A) Data to determine if significant disproportionality based on race and ethnicity is occurring with respect to:

( 1 ) The identification of school-aged

children as children with disabilities including the identification of children as children with disabilities affected by a particular impairment described in paragraph (g) of this section.

( 2 ) The placement of these children in particular educational settings.

( 3 ) The incidence, duration, and type of disciplinary suspensions and expulsions.

( 4 ) Removal to an interim AES, the acts or items precipitating those
removals, and the number of childrenwith disabilities who are subject to longterm suspensions or expulsions.

( 5) The number and percentage of school-aged children with disabilities, by race, ethnicity, limited English proficiency status, gender, and disability category, who are: (i) Receiving special education and

related services.

( ii) Participating in regular education. ( iii) In separate classes, separate schools or facilities, or public or private

residential facilities.

(B) The number of due process complaints requested, the number of hearings conducted, and the number of changes in placement ordered as a result of those hearings.

(C) The number of mediations held

and the number of settlement agreements reached through such

mediations.

(ii) For each year of age from age 16 through 21, children who stopped receiving special education and related services because of program completion (including graduation with a regular secondary school diploma) or other reasons, and the reasons why those children stopped receiving special

education and related services.

(4) Early Intervention Reporting. The reporting requirements for infants and

toddlers with disabilities shall also

include:

(i) Data to determine if significant disproportionality based on race, gender, and ethnicity is occurring with respect to infants and toddlers with

disabilities who:

(A) Received EIS by criteria of developmental delay or a high probability of developing a delay.

(B) Stopped receiving EIS because of program completion or for other

reasons.

(C) Received EIS in natural

environments.

(D) Received EIS in a timely manner as defined in paragraph (a) of this

section.

(ii) The number of due process complaints requested and the number of hearings conducted.

(iii) The number of mediations held

and the number of settlement agreements reached through such

mediations.

(5) USD(P&R) Oversight. (i) On behalf of the USD(P&R), the DoD–CC shall make or arrange for periodic visits, not less than annually, to selected programs to ensure the monitoring process is in place; validate the compliance data and reporting; and address select focus areas identified by the DoD–CC and priority areas identified in paragraph (f)(1) of this section. The DoD–CC may use other means in addition to periodic visits to ensure compliance with the requirements established in this part.

(ii) The DoD–CC shall identify monitoring team members to conduct monitoring activities.

(iii) For DoD–CC monitoring visits, the Secretaries of the Military Departments shall:


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(A) Provide necessary technical assistance and logistical support to monitoring teams during monitoring visits to facilities for which they are responsible.

(B) Provide necessary travel funding and support for their respective team

members.

(C) Cooperate with monitoring teams, including making all pertinent records

available to the teams.

(D) Promptly implement monitoring teams’ recommendations concerning early intervention and related services for which the Secretary concerned has responsibility, including those to be furnished through an inter-Service

agreement.

(iv) For DoD–CC monitoring visits, the
Director, DoDEA, shall:

(A) Provide necessary technical assistance and logistical support to monitoring teams during monitoring

visits to facilities for which he or she is responsible.

(B) Cooperate with monitoring teams, including making all pertinent records

available to the teams.

(C) Promptly implement monitoring teams’ recommendations concerning special education and related services for which the DoDEA school system concerned has responsibility.

(v) The ASD(HA) shall provide

technical assistance to the DoD monitoring teams when requested.

(vi) The GC, DoD shall: (A) Provide legal counsel to the USD(P&R), and, where appropriate, to DoDEA, monitored agencies, and monitoring teams regarding monitoring activities conducted pursuant to this

part.

(B) Provide advice about the legal requirements of this part and Federal law to the DoDEA school systems, military medical commanders, military
installation commanders, and to other DoD personnel as appropriate, in connection with monitoring activities conducted pursuant to this part.

(g) Types of Disabilities (1) Autism Spectrum Disorder. A developmental disability significantly affecting verbal

and nonverbal communication and social interaction that adversely affects a child’s educational performance.

Other characteristics often associated with autism are engagement in repetitive activities and stereotyped
movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. Essential features are typically but not necessarily manifested before age 3. Autism may include autism spectrum disorders such as but
not limited to autistic disorder, pervasive developmental disorder not otherwise specified, and Asperger’s syndrome. The term does not apply if a child’s educational performance is adversely affected primarily because the

child has an emotional disturbance.

(2) Deafness. A hearing loss or deficit so severe that it impairs a child’s ability to process linguistic information through hearing, with or without amplification, and affects the child’s educational performance adversely.

(3) Deaf-Blindness. A combination of hearing and visual impairments causing
such severe communication, developmental, and educational problems that the child cannot be accommodated in a program specifically for the deaf or a program specifically for

the blind.

(4) Developmental Delay. A significant discrepancy, as defined and measured in accordance with this part and confirmed by clinical observation and judgment, in the actual functioning
of an infant, toddler, or child, birth through age 7, when compared with the functioning of a non-disabled infant,
toddler, or child of the same chronological age in any of the following developmental areas: physical, cognitive, communication,

social or emotional. A child determined to have a developmental delay before the age of 7 may maintain that eligibility through age 9.

(i) Significant Discrepancy. The child is experiencing a developmental delay

of two standard deviations below the mean as measured by diagnostic instruments and procedures in at least one area; a 25 percent delay in at least one developmental area on assessment instruments that yield scores in months; a developmental delay of 1.5 standard

deviations below the mean as measured by diagnostic instruments and procedures in two or more areas; or a 20 percent delay in two or more developmental areas on assessment instruments that yield scores in months.

(ii) High Probability for Developmental Delay. An infant or toddler, birth up to age 3, with a diagnosed physical or mental condition that places the infant or toddler at substantial risk of evidencing a developmental delay without the benefit

of EIS. Includes conditions such as chromosomal abnormalities; genetic or congenital disorders; severe sensory impairments; inborn errors of metabolism; disorders reflecting disturbance of the development of the nervous system; congenital infections; and disorders secondary to exposure to toxic substances, including fetal alcohol syndrome.

(5) Emotional Disturbance. A condition confirmed by clinical evaluation and diagnosis and that, over a long period of time and to a marked degree, adversely affects educational performance and exhibits one or more of the following characteristics:

(i) Inability to learn that cannot be explained by intellectual, sensory, or

health factors.

(ii) Inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(iii) Inappropriate types of behavior or feelings under normal circumstances.

(iv) A tendency to develop physical symptoms or fears associated with personal or school problems.

(v) 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 emotionally

disturbed.

(6) Hearing Impairment. An impairment in hearing, whether permanent or fluctuating, that adversely

affects a child’s educational performance but is not included under

the definition of deafness.

(7) Intellectual Disability. Significantly below-average general intellectual functioning, existing concurrently with deficits in adaptive behavior. This disability is manifested during the developmental period and adversely affects a child’s educational performance.

(8) Orthopedic Impairment. A severe orthopedic 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 cerebral palsy, amputations, and fractures or burns causing contractures.

(9) Other Health Impairment. Limited strength, vitality, or alertness including a heightened alertness to environmental
stimuli, that results in limited alertness with respect to the educational
environment, that due to chronic or acute health problems that adversely affect a child’s educational performance. Such impairments may include, but are not necessarily limited to, attention
deficit disorder, attention deficit hyperactivity disorder, heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, seizure disorder, lead poisoning,
leukemia, or diabetes.

(10) Specific Learning Disability. A

disorder in one or more of the basic psychological processes involved in understanding or in using spoken or written language that may manifest


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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. This term 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.

(11) Speech or Language Impairments. (i) Communication disorder is characterized by stuttering, impaired articulation, voice impairment, or a disorder in the receptive or expressive areas of language that adversely affects a child’s educational performance.

(ii) Articulation disorder is characterized by substitutions,
distortions, and/or omissions of phonemes that are not commensurate with expected developmental age
norms, that are not the result of limited English proficiency or dialect difference, and that may cause unintelligible conversational speech.

(iii) Fluency disorder is characterized by atypical rate, rhythm, repetitions, and/or secondary behaviors that

interfere with communication or is inconsistent with age or development.

(iv) Language and phonological disorders are characterized by an impairment or delay in receptive or expressive language including semantics, morphology and syntax, phonology, or pragmatics. This impairment does not include students whose language problems are due to English being their second language or

dialect differences.

(v) Voice disorder is characterized by abnormal pitch, intensity, resonance, duration, or quality that are inappropriate for chronological age or gender.

(12) 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 (or both) that adversely affects educational performance. Includes open or closed head injuries resulting in 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. The term does not include brain injuries that are congenital or degenerative or brain injuries that are induced by birth

trauma.

(13) Visual Impairment, Including

Blindness. An impairment of vision that, even with correction, adversely

affects a child’s educational performance. That term includes both partial sight and blindness.

Dated: December 5, 2013.

Aaron Siegel,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 2013–29433 Filed 12–12–13; 8:45 am]

**BILLING CODE 5001–06–P**