1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
BETH and DAVID PETIT, in their )
individual capacities and as next friends )
to their minor son, H.P., )
12 Emery Lane )
Stratham, NH 03885 )
)
and )
)
NICOLE and BENNIE UNDERWOOD, )
in their individual capacities and as )
next friends to their minor daughter, )
A.U. )
9936 Castle Lane )
Knoxville, TN 37922 )
Plaintiffs, )
)
v. ) Civ. No. 1:07CV01583(RMU)
)
UNITED STATES DEPARTMENT )
OF EDUCATION, )
400 Maryland Ave, SW )
Washington, DC 20202 )
)
and )
)
MARGARET SPELLINGS, in her official )
capacity as Secretary of the )
United States Department of Education )
400 Maryland Ave, SW )
Washington, DC 20202 )
Defendants. )
__________________________________________)
DEFENDANTS’ MOTION TO DISMISS
OR ALTERNATIVELY, FOR SUMMARY JUDGMENT
Defendants, the United States Department of Education and Margaret Spellings, in her
Case 1:07-cv-01583-RMU Document 11 Filed 12/13/2007 Page 1 of 3
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official capacity as Secretary of Education (collectively, “ED” or “the Secretary”), by and
through undersigned counsel, respectfully move to dismiss the above-captioned matter, or
alternatively for summary judgment. As set forth in the accompanying Memorandum of Points
and Authorities, Plaintiffs do not have a cause of action against ED under the Individuals with
Disabilities Education Act (“the IDEA”), and therefore that claim must be dismissed. In
addition, ED is entitled to judgment as a matter of law on Plaintiffs’ Administrative Procedures
Act (“APA”) claim because the regulations excluding mapping services for cochlear implants
from the definition of related services comply with the law and do not involve agency action that
is arbitrary, capricious, or an abuse of discretion.
In support of this motion, ED relies on the accompanying Memorandum of Points and
Authorities in Support of Defendants’ Motion to Dismiss Or Alternatively, For Summary
Judgment, the Administrative Record relevant to ED’s determination to exclude cochlear implant
mapping from the definition of related services, and the Statement of Material Facts as to Which
There is No Genuine Issue.
Accordingly, for the above-stated reasons, and those explained more fully in the
accompanying Memorandum of Points and Authorities, ED respectfully requests that the Court
grant this motion, dismiss Plaintiffs’ IDEA claim with prejudice, and enter judgment in its favor
on Plaintiffs’ APA claim.
Respectfully submitted,
JEFFREY S. BUCHOLTZ
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
Case 1:07-cv-01583-RMU Document 11 Filed 12/13/2007 Page 2 of 3
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SHEILA M. LIEBER
Deputy Branch Director
/s/ Tamra T. Moore
TAMRA T. MOORE D.C. Bar No. 488392
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Telephone: (202) 514-8095
Facsimile: (202) 616-8470
Email: Tamra.Moore@usdoj.gov
Dated: December 13, 2007 Attorneys for Defendants
Case 1:07-cv-01583-RMU Document 11 Filed 12/13/2007 Page 3 of 3
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
BETH and DAVID PETIT, in their )
individual capacities and as next friends )
to their minor son, H.P., )
12 Emery Lane )
Stratham, NH 03885 )
)
and )
)
NICOLE and BENNIE UNDERWOOD, )
in their individual capacities and as )
next friends to their minor daughter, )
A.U. )
9936 Castle Lane )
Knoxville, TN 37922 )
Plaintiffs, )
)
v. ) Civ. No. 1:07CV01583(RMU)
)
UNITED STATES DEPARTMENT )
OF EDUCATION, )
400 Maryland Ave, SW )
Washington, DC 20202 )
)
and )
)
MARGARET SPELLINGS, in her official )
capacity as Secretary of the )
United States Department of Education )
400 Maryland Ave, SW )
Washington, DC 20202 )
Defendants. )
__________________________________________)
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 1 of 40
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MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS’
MOTION TO DISMISS OR ALTERNATIVELY, FOR SUMMARY JUDGMENT
When Congress amended the Individuals with Disabilities Education Act (“the IDEA” or
the “Act”) in 2004, it narrowed the IDEA’s definition of related services to exclude the provision
or replacement of surgically implanted medical devices. The 2004 IDEA Amendments,
however, do not address whether the Act requires states to optimize and maintain the functioning
of those excluded medical devices. In light of that ambiguity, and after conducting notice-and-
comment rulemaking, the Secretary of the United States Department of Education promulgated a
rule that excludes from the definition of related services the optimization and maintenance of
surgically implanted medical devices (including mapping services for cochlear implants). The
Secretary made clear, however, that although the IDEA does not require states to optimize and
maintain the functioning of surgically implanted medical devices, states are required to conduct
routine monitoring of the external components of these otherwise exempt devices. Plaintiffs,
who respectively are parents of a child with a cochlear implant, now challenge both of these
rules (collectively “the mapping exclusion regulations”).
Plaintiffs have filed a two-count complaint against the United States Department of
Education and Margaret Spellings, in her official capacity as Secretary of Education
(collectively, “ED” or “the Secretary”), alleging violations of the IDEA and the Administrative
Procedures Act (“APA”). The gravamen of Plaintiffs’ Complaint is that, in promulgating a rule
that excludes cochlear implant mapping from the definition of related services, ED violated the
IDEA and the APA by failing to adopt their preferred interpretation of an otherwise ambiguous
statute. Plaintiffs’ claims, however, are without merit. Plaintiffs’ IDEA claim must fail because
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the IDEA does not create a private right of action against the federal government. To the extent
that Plaintiffs seek to challenge ED’s regulatory action under the IDEA, Plaintiffs must bring
their claim against ED under the APA only.
Plaintiffs’ APA claim, however, cannot withstand scrutiny. In their Complaint, Plaintiffs
contend that ED’s regulations excluding cochlear implant mapping from the definition of related
services are at odds with the plain language of the IDEA and its legislative history. But as at
least two of the Plaintiffs themselves asserted in other litigation and in a public hearing (see pp.
23-24, infra), neither the IDEA’s text nor its legislative history clearly addresses whether
Congress intended as a condition on receipt of federal funds to require states to pay for services
designed to optimize or maintain the functioning of surgically implanted medical devices that are
excluded from coverage under the Act. Under the APA, this Court’s review of ED’s
determinations must be based on the Administrative Record. The Administrative Record
(“A.R.”) demonstrates that the challenged regulations are not only consistent with the IDEA and
Supreme Court precedent interpreting the Act but also based on well-reasoned analysis. Such a
demonstration entitles ED to judgment in its favor on Plaintiffs’ APA claim. Thus, because both
of Plaintiffs’ claims are fatally flawed, the Court should grant this motion.
I. BACKGROUND
A. The IDEA
When Congress enacted the IDEA, 20 U.S.C. § 1400 et seq., it did so to “ensure that all
children with disabilities have available to them a free appropriate public education (“FAPE”)
that emphasizes special education and related services to meet their unique needs and prepare
them for further education employment and independent living.” 20 U.S.C. § 1400(d)(1)(A). To
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that end, the IDEA establishes a federal grant program that provides funding to states “to assist
them [] [in] provid[ing] special education and related services to children with disabilities.” 20
U.S.C. § 1411(a)(1). In order to receive federal funds, participating states must establish policies
and procedures to ensure that a “free appropriate public education is available to all children
with disabilities residing in the State.” 20 U.S.C. § 1412(a)(1)(A). The IDEA does not set forth
specific standards delineating the requirements for appropriate education for students with a
disability; instead, the Act provides general guidelines states must follow to ensure a FAPE for
children with disabilities. See generally, 20 U.S.C. § 1412(a).
A “free appropriate public education” is comprised of “special education” and “related
services” that have been provided at the state’s expense and under its direction, satisfy the state’s
standards governing education, and each are provided in conformity with the individualized
education program (“IEP”) required for students with a disability under § 1414(d) of the IDEA.
20 U.S.C. § 1401(9). The Act defines “special education” as “specially designed instruction, at
no cost to parents, to meet the unique needs of a child with a disability,” including instruction
conducted in the classroom, home, hospitals and institutions, and other settings. 20 U.S.C. §
1401(29). In turn, the IDEA defines related services as:
[T]ransportation, and such developmental, corrective, and other supportive services
(including speech-language pathology and audiology services, interpreting services,
psychological services, physical and occupational therapy, recreation, including
therapeutic recreation, social work services, school nurse services designed to enable a
child with a disability to receive a free appropriate public education as described in the
individualized education program of the child, counseling services, including
rehabilitation counseling, orientation and mobility services, and medical services, except
that such medical services shall be for diagnostic and evaluation purposes only) as may
be required to assist a child with a disability to benefit from special education, and
includes the early identification and assessment of disabling conditions.
20 U.S.C. § 1401(26)(A). When Congress amended the IDEA in 2004, it specified that the
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definition of related services excludes the provision of medical devices that are surgically
implanted or the replacement of such devices. See 20 U.S.C. § 1401(26)(B) (“The term [related
services] does not include a medical device that is surgically implanted, or the replacement of
such device.”).
In addition to establishing general guidelines with which states must comply, the IDEA
establishes procedures governing the provision of IEPs for children with disabilities. An IEP is
“a written statement for each child with a disability that is developed, reviewed, and revised in
accordance with” the standards and procedures set forth in § 1414 of the IDEA. 20 U.S.C. §
1414(d)(1)(A)(i). The IDEA requires local educational agencies, in consultation with the
child’s teachers and parents, to develop and prepare an IEP for a child with a disability that sets
forth, among other things, the child’s present educational achievement, annual academic and
functional goals, how the child’s progress toward such goals will be measured and reported to
parents, and a statement of the special education and related services to be provided to the child,
or on behalf of the child. See 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(VIII).
The IDEA also establishes certain procedural safeguards for children and their parents to
protect the student’s right to a FAPE. Section 1415 of the IDEA requires that states establish an
administrative process – i.e., procedures for an impartial due process hearing – through which
parents of children with disabilities must raise any disputes they have with the school district
regarding the school’s obligations under the IDEA. See generally 20 U.S.C. § 1415(f) (setting
forth the requirements for an impartial due process hearing). The IDEA permits a party
aggrieved by the findings and decisions made in the due process hearing to seek review of those
findings in federal court. 20 U.S.C. § 1415(i) (“Any party aggrieved by the findings and
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decision made [] [in the impartial due process hearing] . . . shall have the right to bring a civil
action . . . in any district court of the United States, without regard to the amount in
controversy.”). The IDEA’s administrative process is mandatory, and a party may not file a
federal court action under the IDEA without first exhausting the IDEA’s administrative
remedies. See Spencer v. District of Columbia, 416 F. Supp. 2d 5, 10 (D.D.C. 2006) (“The
[IDEA’s] administrative process is not ‘just an optional stop on the way to the court[,]’” but
rather, “requires a plaintiff to exhaust administrative remedies before turning to court.”) (internal
citation omitted).
B. The Mapping Exclusion Regulations
When Congress amended a number of the substantive provisions of the IDEA in 2004, it
also granted the Secretary of Education the authority to promulgate regulations “to the extent
that such regulations are necessary to ensure that there is compliance with the specific
requirements of the [][] [2004 IDEA Amendments].” 20 U.S.C. § 1406(a). In accordance with
this statutory grant of authority, ED, prior to developing and publishing proposed regulations,
first solicited advice and recommendations from the public regarding the nature and scope of the
proposed regulations in light of the 2004 IDEA Amendments. See A.R. ED-005411-5412. In
response, ED received over 6,000 comments that addressed the major provisions of the 2004
IDEA Amendments. A.R. ED-003424.
The vast majority of comments ED received addressing the medical devices exception to
the statutory definition of related services (collectively, “pre-NPRM comments”) requested that
ED clarify whether the medical devices exception prohibits the provision of mapping services
for cochlear implants. See, e.g., A.R. ED-003550 (“The regulations need to clarify whether the
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mapping of a cochlear device is considered a related service or does the language that prohibits
[local educational agencies] LEAs from paying for implanted medical devices cover mapping as
well.”); A.R. ED-003568 (same); A.R. ED-003672 (requesting that ED clarify whether the
medical devices exception applies to cochlear implant mapping and recommending that ED
clarify that mapping is not a related service). Other commenters opined that ED should
promulgate a regulation that excludes the mapping or programming of cochlear implants from
the definition of related services. See, e.g., A.R. ED-003573; A.R. ED-003577. ED reviewed
and considered all of these comments in developing the proposed regulations. A.R. ED-003422-
3424, ED-003426.
As ED determined the scope of the proposed rules, the agency considered both the pre-
NPRM comments and “[w]hether statutory changes required changes to existing regulations.”
Id. As applied to the medical devices exception, ED formulated a proposed rule that
“adddress[ed] the limitation on surgically implanted medical devices,” A.R. ED-003426,
specifying that related services would not include “the optimization of device functioning,
maintenance of the device, or the replacement of the device.” A.R. ED-003480. The rationale
for the proposed rule was ED’s concern that states not bear the burden associated with the cost of
maximizing and maintaining the functioning of these exempted medical devices. A.R. ED-
003426. On June 21, 2005, ED solicited comments in response to its proposed rule. A.R. ED-
003423.
ED received many comments on the proposed rule; some supported the proposed rule,
while others opposed it. 71 Fed. Reg. 46,540, 46,569 (Aug. 14, 2006). Some comments
suggested that surgically implanted medical devices should not be excluded from the definition
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of related services. Id. Other comments stated that the IDEA does not exclude the maintenance
or programming of surgically implanted medical devices and recommended that the definition of
related services specifically include the provision of mapping services for children with cochlear
implants. Id. Some comments requested that ED delineate whether the state or parents are
responsible for providing mapping services to children with cochlear implants. Id.
ED considered all of these comments and determined that mapping, which optimizes the
functioning of a cochlear implant, should be excluded from the definition of related services. 71
Fed. Reg. at 46,760. Although ED concluded that the IDEA and its implementing regulation do
not require states to optimize or maintain the functioning of surgically implanted medical
devices (such as mapping services for cochlear implants), the Secretary nevertheless determined
that the IDEA and its implementing regulation require states to “ensure that the external
components of surgically implanted medical devices are functioning properly.” 71 Fed. Reg. at
46,764.
C. Cochlear Implants & Mapping
A cochlear implant is an electronic prosthesis that partially replaces the functioning of
the cochlea, the portion of the inner ear that converts sound waves into electrical stimuli.
Thomas Balkany, A Brief Perspective on Cochlear Implants, 328 NEW ENG. J. MED. 281, 281
(1993). The cochlear implant converts sound into electrical signals and delivers the electrical
signals to the cochlear nerve. Id. The device consists of both internal and external components.
The internal components of a cochlear implant, a receiver connected to electrodes, are surgically
implanted. Bonnie Poitras Tucker, COCHLEAR IMPLANTS - A HANDBOOK 6 (McFarland &
Company, Inc., Publishers 1998). The cochlear implant’s external components consist of a
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microphone that is worn at ear level that detects sound and a wearable, pager-size speech
processor that converts the sound detected by the microphone into electrical signals and then
transmits the electrical signals to the internal components of the cochlear implant. Id. The Food
and Drug Administration (“FDA”) approved the use of cochlear implants for adults in 1980 and
for children in 1990. Id.
In order to operate effectively, the cochlear implant’s speech processor must be
“mapped,” or “adjusted,” to the child. See Debra Nussbaum, M.A., CCC-A/March 2003,
Cochlear Implants: Navigating a Forest of Information...One Tree at a Time, 2003, at 61,
available at http://clerccenter.gallaudet.edu/KidsWorldDeafNet/e-docs/CI/CI.pdf. Mapping is
performed by an audiologist who has specific expertise and training in cochlear implants,
including “450 hours of direct contact with individuals with cochlear implants, [] 50 hours of
case management of individuals with” cochlear implants, and expertise in cochlear implants.
See Complaint, ¶ 22; see also A.R. ED-000388 (delineating the extensive training that
audiologists who support children with cochlear implants must undergo and stating that these
audiologists possess “unique knowledge and skills”). When mapping is performed incorrectly,
it can lead to physical harm to the child. See A.R. ED-000388-389 (noting that “utilizing
inappropriate stimulation levels may lead to rejection of the cochlear implant” and that “lack of
knowledge about electrode array insertion may lead to facial nerve stimulation”).
To “map” the cochlear implant, the audiologist connects the child’s speech processor to a
computer that utilizes specialized computer software to objectively measure the child’s response
to electrical stimulation. Debra Nussbaum, M.A., CCC-A/March 2003, Cochlear Implants:
Navigating a Forest of Information...One Tree at a Time, 2003, at 62, available at
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http://clerccenter.gallaudet.edu/KidsWorldDeafNet/e-docs/CI/CI.pdf. The mapping software
measures the characteristics of the implanted electrodes and adjusts the parameters controlling
the electrical stimuli that will be delivered to the electrodes. Complaint, ¶ 22. As each
implanted electrode is activated, the mapping software adjusts and programs the speech
processor. See http://www.asha.org/public/hearing/treatment/cochlear_implants.htm. The
audiologist must ensure that the surgically implanted electrodes are loud enough for the child to
be aware of sound but not too loud as to cause the child discomfort. Debra Nussbaum, M.A.,
CCC-A/March 2003, Cochlear Implants: Navigating a Forest of Information...One Tree at a
Time, 2003, at 62, available at
http://clerccenter.gallaudet.edu/KidsWorldDeafNet/e-docs/CI/CI.pdf. In addition to measuring
electrode characteristics, the mapping software also monitors the integrity of the cochlear
implant’s functioning. Id.
A child who has undergone cochlear implant surgery must attend not only an initial
mapping session at the hospital where the surgery occurred but many subsequent mapping
sessions until a “good initial map is determined.” Debra Nussbaum, M.A., CCC-A/March 2003,
Cochlear Implants: Navigating a Forest of Information...One Tree at a Time, 2003, at 61,
available at http://clerccenter.gallaudet.edu/KidsWorldDeafNet/e-docs/CI/CI.pdf. Because
cochlear implants are designed to operate indefinitely, see Thomas Balkany, A Brief Perspective
on Cochlear Implants, 328 NEW ENG. J. MED. 281, 281 (1993), a child with a cochlear implant
will require ongoing mapping treatment.
According to the American Speech-Language-Hearing Association, the total costs for
cochlear implantation, including post-operative maintenance, mapping, and rehabilitation, can
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range between $45,000 and $55,000 and can far exceed $60,000 for patients requiring extensive
post-operative care. See http://www.cochlear.org/sys-tmpl/cochlearimplantcosts/. In order to
pay for the cochlear implant and the post-operative maintenance of the device, most individuals
use either private health insurance, Medicaid, or Medicare. See
http://www.cochlear.org/sys-tmpl/commericalplansandmanagedcare/. Currently, approximately
90 percent of private health plans provide some level of benefits coverage for cochlear implants
(including mapping). Id. In addition, nearly all states provide Medicaid benefits to children
receiving cochlear implants that cover “all costs necessary to effectively use a cochlear implant,”
including mapping and aural rehabilitation. See
http://www.cochlear.org/sys-tmpl/medicaidandcochlearimplants/.
D. Plaintiffs’ Allegations
Plaintiffs, Beth and David Petit and Nicole and Bennie Underwood, are parents of
children with cochlear implants. Plaintiffs contend that, as a result of ED’s mapping exclusion
regulations, their children have not received free cochlear implant mapping services as part of
their IEP since late 2006. Accordingly, Plaintiffs filed the instant action against ED, challenging
the exclusion of cochlear implant mapping as a related service.
Plaintiffs’ Complaint charges that ED violated both the IDEA and the APA in
promulgating the challenged rules. Plaintiffs’ IDEA claim asserts that the mapping exclusion
regulations violate ED’s rulemaking authority under the statute, violate and contradict provisions
of the Act, and substantively lessen the protections provided to children with disabilities.
Plaintiffs also contend that ED’s promulgation of the mapping exclusion regulations violates the
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APA because the regulations are “arbitrary, capricious, an abuse of discretion, contrary to law, in
excess of statutory authority, and otherwise not in accordance with law.” Complaint, ¶ 53.
ARGUMENT
II. LEGAL STANDARD
A court must grant a motion to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6) if plaintiffs can prove no set of facts that supports their claim entitling
them to relief. See Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325 (1991); Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating a motion to dismiss, although the
Court must construe the complaint liberally, “the Court need not accept inferences drawn by
plaintiff[s] if those inferences are unsupported by facts alleged in the complaint, nor must the
Court accept plaintiff[]s[’] legal conclusions.” National Postal Prof. Nurses, et al. v. U.S. Postal
Serv., 461 F. Supp. 2d 24, 28 (D.D.C. 2006).
As to Plaintiffs’ APA claims, whether agency action is arbitrary, capricious, or contrary
to law is a legal issue that a court resolves on the basis of the record made before the agency in
the context of both a motion under Rule 12(b) and a motion for summary judgment. Am.
Bioscience, Inc. v. Thompson, 269 F.3d 1077,1083 (D.C. Cir. 2001); Commercial Drapery
Contractors v. U.S., 133 F.3d 1, 7 (D.C. Cir. 1998). “Under the APA, it is the role of the agency
to resolve factual issues to arrive at a decision that is supported by the administrative record,
whereas ‘the function of the district court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did.’”
American Fed’n of Labor Cong. of Indus. Org. v. Chao, 496 F. Supp. 2d 76, 81-82 (D.D.C.
2007) (internal citation omitted). For this reason, when considering an APA challenge, the
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court’s review is limited to the administrative record. Toy v. U.S., 263 F. Supp. 2d 1, 5 (D.D.C.
2002). The court may not substitute its judgment for that of the agency’s unless it finds that the
agency’s interpretation of the statute is unreasonable or that the agency’s action is arbitrary and
capricious. See id.
III. PLAINTIFFS’ IDEA CLAIM MUST BE DISMISSED BECAUSE THE IDEA
DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST THE
FEDERAL GOVERNMENT
Plaintiffs fail to state a claim against ED under the IDEA because the statute does not
give Plaintiffs a private right of action against the federal government. It is well-established that
“private rights of action to enforce federal law must be created by Congress.” San Carlos
Apache Tribe v. U.S., 417 F.3d 1091, 1094 (9th Cir. 2005) (citing Alexander v. Sandoval, 532
U.S. 275, 286 (2001)). In order to determine whether a private right of action exists under a
particular statute, “‘[t]he judicial task is to interpret the statute Congress has passed to determine
whether it displays an intent to create not just a private right but also a private remedy.’” Id.;
National Trust for Historic Preservation v. Blanck, 938 F. Supp. 908, 914 (D.D.C. 1996) (“The
most important inquiry [when determining whether a statute creates a private right of action] is
whether Congress specifically intended to create such a right.”). Such intent may be shown
from the language and structure of the statute itself or its legislative history. See Middlesex Cty.
Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13 (1981). Here, Plaintiffs purport to
bring their IDEA claim against ED under § 1415(i)(2) of the IDEA. However, a review of the
statutory structure and language of the IDEA shows that only the state or other local agency -
and not the federal government - may be sued under this section of the IDEA.
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The IDEA’s statutory provisions demonstrate that Congress placed the burden of
ensuring the requirements of the IDEA are met squarely on the states’ shoulders. For example,
in enacting the IDEA, Congress expressly found that states and other local agencies are
“primarily responsible for providing an education for all children with disabilities. . . .” 20
U.S.C. § 1400(c)(6). To that end, under the IDEA, state educational agencies are “responsible
for ensuring that the requirements of [Part B of the IDEA] are carried out.” 20 U.S.C. §
1412(a)(11). The IDEA also requires participating states to submit a plan that delineates
compliance with all statutory and regulatory requirements, see 20 U.S.C. § 1412(a), to supervise
“all educational programs for children with disabilities in the State” (including programs
administered by other state agencies or local agencies), see 20 U.S.C. § 1412(a)(11), and to
review and approve applications submitted by local educational agencies and other public
agencies, see 20 U.S.C. § 1413(a).
Courts have recognized that, in light of the state’s pervasive role under the IDEA, the
state is the proper opposing party to an IDEA claim. See, e.g., David D. v. Dartmouth Sch.
Comm., 775 F.2d 411, 422 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986) (observing that
“Congress intended that the State should be named as an opposing party, if not the sole party to”
complaints brought under § 1415(e) alleging a failure to ensure rights under the IDEA). See also
Ullmo v. Gilmour Academy, 273 F.3d 671, 679 (6th Cir. 2001) (“Although the IDEA does not
specifically name the party against whom such an action may be brought, the ‘language and
structure of [the] IDEA suggest that [the state educational agency or the local educational
agency] may be held liable for the failure to provide a free appropriate public education.’”)
(internal citation omitted); Smith v. Robinson, 468 U.S. 992, 1010 (1984), superseded by statute
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1Moreover, Plaintiffs cannot rely on § 1415(i)(2) to support their IDEA claim because
Plaintiffs are not “aggrieved parties” within the meaning of that statutory provision. Section
1415(i)(2) allows parties to file suit in federal court only if they have exhausted the state
administrative process and are “aggrieved” by the findings made in those due process hearings. In
this case, because Plaintiffs’ Complaint challenges ED’s promulgation of certain rules and does not
directly challenge any grievance derived from findings made in their respective states’
administrative process, Plaintiffs are not “aggrieved parties” within the meaning of the IDEA. As
this Court has explained, “[t]he administrative process set forth by IDEA is not ‘just an optional stop
on the way to court.’ Rather, the philosophy underpinning IDEA requires a plaintiff to exhaust
[state] administrative remedies before turning to the courts.” Spencer, 416 F. Supp. 2d at 10
(quoting Andersen by Andersen v. Dist. of Columbia, 877 F.2d 1018, 1025 (D.C. Cir. 1989)). Under
the IDEA, a plaintiff’s failure to exhaust administrative remedies deprives the court of authority to
hear the suit. Spencer, 416 F. Supp. 2d at 10. Accordingly, because Plaintiffs are not “aggrieved
parties” within the meaning of § 1415, their IDEA claim must be dismissed.
15
on other grounds, Pub. L. No. 99-372, 100 Stat. 796 (1986) (“The responsibility for providing
the required education remains on the States.”); but see Metropolitan Sch. Dist. of Wayne Twp.,
Marion County, Ind. v. Davila, 969 F.2d 485 (7th Cir. 1992). Moreover, at least one federal
court has recognized that in proceedings brought under § 1415(i) of the IDEA – the provision on
which Plaintiffs rely – the state, not the federal government, is the proper defendant. See
Rodriguez-Pedraza v. U.S. Dep’t of Defense, 445 F. Supp. 2d 195, 198 (D.P.R. 2006) (finding
that two federal agencies were not amenable to suit under the IDEA because Ҥ 1415's mandate
is directed at ‘State educational agenc[ies], State agenc[ies], or local educational agenc[ies]’”
only).1
Indeed, the IDEA’s legislative history supports this interpretation of the Act’s provisions.
In discussing the statutory provision giving the states responsibility to carry out the IDEA’s
requirements, the Senate Report on the IDEA’s predecessor statute (the Education for All
Handicapped Children Act of 1975, Pub. L. No. 94-142) explains:
This provision is included specifically to assure a single line of responsibility with regard
to the education of [children with disabilities], and to assure that in the implementation of
all provisions of this Act and in carrying out the right to education for [children with
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16
disabilities], the State educational agency shall be the responsible agency. . . . Without
this requirement, there is an abdication of responsibility for the education of [children
with disabilities]. Presently, in many States, responsibility is divided. . . . While the
Committee understands that different agencies may, in fact, deliver services, the
responsibility must remain in a central agency overseeing the education of [children with
disabilities], so that failure to deliver services or the violation of the rights of [children
with disabilities] is squarely the responsibility of one agency.
S. Rep. No. 168, 94th Cong. 1st Sess., at 24 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1448.
In fact, to clarify its intent that the states are responsible for remedying any demonstrated
violations of the IDEA, Congress amended the statute to waive the sovereign immunity of states
sued in federal court for IDEA violations. See 20 U.S.C. § 1403(a) (“A State shall not be
immune under the 11th amendment to the Constitution of the United States from suit in Federal
court for a violation of this chapter.”). Congress, however, did not waive the federal
government’s sovereign immunity under the IDEA. Thus, the federal government’s immunity
from suit under the IDEA remains unchanged. See H.R. Rep. No. 544, 101st Cong., 2d Sess., at
12, reprinted in 1990 U.S.C.C.A.N. 1723, 1734.
To the extent that Plaintiffs contend that the IDEA creates an implied private right of
action against the federal government, that argument is foreclosed by well-settled case law that
holds that the APA is the proper mechanism by which Plaintiffs may challenge an alleged
unlawful regulatory action. See, e.g., Cousins v. Sec’y of the U.S. Dep’t of Transp., 880 F.2d
603, 606 (1st Cir. 1989) (observing that “in light of the existence of the APA, it rarely makes
sense to find that a substantive statute creates an ‘implied private right of action’ against the
federal government for relief from unlawful regulatory action” because “the general provisions
for judicial review of agency action, as embodied in the APA, offer adequate relief”). Indeed,
“‘it is difficult to understand why a court would ever hold that Congress, in enacting a statute
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2Even assuming arguendo that this Court is willing to find that Plaintiffs have an implied
right of action under the IDEA (even given the availability of relief under the APA), an “implied
right of action” is insufficient to waive the federal government’s sovereign immunity under the Act.
It is well-settled that “[t]he federal government’s waiver of sovereign immunity must be
‘unequivocally expressed.” Dorsey v. U.S. Dep’t of Labor, 41 F.3d 1551, 1555 (D.C. Cir. 1994).
As discussed supra, the IDEA does not contain any language that “unequivocally expresses”
Congress’s intent to waive the federal government’s sovereign immunity under the Act.
Accordingly, Plaintiffs do not have a cause of action against ED under the IDEA. See Dorsey, 41
F.3d at 1555 (observing that “[w]hile private rights of action may be implied, waivers of sovereign
immunity may not”).
17
that creates federal obligations, has implicitly created a private right of action against the federal
government, for there is hardly ever any need to do so’ because of the omnipresent availability
of APA review.”2 National Trust for Historic Pres., 938 F. Supp. at 915 (quoting N.A.A.C.P. v.
Sec’y of Hous. & Urban Dev., 817 F.2d 149, 153 (1st Cir. 1987)).
As discussed above, neither the express language of the IDEA nor the Act’s legislative
history provides any basis from which to conclude that the statute gives rise to a private right of
action against the federal government. To the extent that Plaintiffs’ Complaint challenges ED’s
regulatory action under the IDEA – which appears to be the gravamen of Plaintiffs’ Complaint,
see, e.g., Complaint, ¶ 7 (“In adopting these regulations, the Department acted in an arbitrary and
capricious manner, in excess of its statutory authority, and not in accordance with the law[]”) –
Plaintiffs’ claim must be decided under the APA, not the IDEA. See Natural Trust for Historic
Pres., 938 F. Supp. at 915 (“[T]he very existence of the APA makes it reasonable to assume that
‘when Congress means to permit a private party to ask a court to review the legality of federal
action in a manner that differs from APA review, Congress will say so explicitly in the statute.’”)
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3Even if this Court finds that Plaintiffs have a private right of action against ED under the
IDEA, Plaintiffs’ IDEA claim nevertheless must be dismissed because ED’s regulations excluding
the provision of mapping services from the definition of related services do not violate or contradict
any provision of the IDEA, or substantively lessen the protections afforded to children with
disabilities embodied in regulations in effect in 1983. See generally 20 U.S.C. § 1406 (proscribing
the manner in which, and the limitations on how, the Secretary may prescribe regulations to enforce
the provisions of the IDEA). As discussed in greater detail infra, Plaintiffs have not, nor can they,
point to any statutory section of the IDEA that expressly requires the provision of mapping services
as a related service. That is because no such statutory provision exists. ED’s regulations cannot
violate or contradict a statutory provision that does not exist.
Plaintiffs also contend that ED violated § 1406(b)(2) of the IDEA by enacting regulations
that “substantively lessened the protections provided to children with disabilities.” Complaint, ¶ 49.
Section 1406(b)(2) states in relevant part that ED may not promulgate any regulation that
“procedurally or substantively lessens the protections provided to children with disabilities . . . as
embodied in regulations in effect on July 20, 1983. . . .” (emphasis added). In 1983, however,
the FDA had not yet approved the use of cochlear implants for children; thus the need for mapping
services for children with cochlear implants did not yet exist. In fact, the FDA did not approve the
use of cochlear implants for children until 1990. Thomas Balkany, A Brief Perspective on Cochlear
Implants, 328 NEW ENG. J. MED. 281, 281 (1993). Because the FDA did not approve the use of
cochlear implants for children until 1990, the IDEA regulations in effect in 1983 could not
contemplate the provision of mapping services for children with cochlear implants. Thus, ED’s
regulations excluding the provision of mapping services from the definition of related services do
not substantively lessen the protections afforded to children with disabilities as embodied in the
1983 regulations because children with disabilities were not entitled to mapping services under the
IDEA or its implementing regulation in 1983. See Michael C. v. Radnor Twp. Sch. Dist., No. C.A.
98-4690, 1999 WL 89675, at *3 n.9 (E.D. Pa. Feb. 4, 1999) (rejecting plaintiff’s argument that ED’s
policy decision procedurally or substantively lessened the protections provided to children with
disabilities as embodied in the 1983 regulations because “[p]laintiff has pointed to no regulation in
effect prior to the listed date” that conflicts with the challenged policy decision); see also A.R.
ED–000927 (letter from Peter Smith, prior counsel for Plaintiffs Beth and David Petit,
acknowledging that “[b]ecause the [] [cochlear implant] was essentially unknown until the last 15
years (especially its use for children), it has been understandable that the regulations would have
been silent on the subject up to this point”). Furthermore, Plaintiffs’ claim that ED substantively
lessened the protections afforded to children under the IDEA by promulgating the challenged
regulations is without merit where, as here, Congress itself amended the IDEA to make clear that
the implantation of medical devices is not covered as a related service under the Act.
18
(internal citation omitted). Accordingly, because Plaintiffs do not have a private right of action
against ED under the IDEA, Count I of the Complaint must be dismissed.3
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19
IV. PLAINTIFFS’ APA CLAIM IS ALSO WITHOUT MERIT
Plaintiffs’ APA claim erroneously alleges that ED’s rules excluding the provision of
mapping services for cochlear implants as a related service are “contrary to the plain language,
intent, and purpose of IDEA,” “exceed the Secretary’s statutory rulemaking authority under [the
IDEA],” and are arbitrary and capricious. Compl., ¶¶ 52, 53. As discussed in detail below, the
mapping exclusion regulations are not contrary to the IDEA’s text or legislative history, and are
neither arbitrary nor capricious. Indeed, the detailed Administrative Record belies Plaintiffs’
unsupported assertions to the contrary. Accordingly, for the reasons set forth below, ED is
entitled to judgment as a matter of law.
A. ED’s Mapping Exclusion Regulations Are Within the Scope of ED’s
Statutory Authority Under the IDEA
This Court’s determination of whether ED’s interpretation of the IDEA is contrary to the
Act is subject to the standard of review articulated in Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984). See Universal Health Serv. of McAllen, Inc. v. Sullivan, 770
F. Supp. 704, 715 (D.D.C. 1991) (“In situations when Congress delegates authority to an agency
to administer a statute but does not directly address a particular question arising from the
agency’s statutory interpretation, the Court is guided by the Supreme Court holding in
Chevron.”). The Chevron standard of review employs a two-part inquiry. First, the court must
look to “‘whether Congress has directly spoken to the precise question at issue. . . .’” Baker
Norton Pharm. v. U.S. Food & Drug Admin., 132 F. Supp. 2d 30, 33 (D.D.C. 2001) (internal
citation omitted). If, as here, Congress has not directly spoken on the challenged issue, the Court
must proceed to the second step of the Chevron test. National Ass’n of Clean Air Agencies v.
EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007). Under this second step, “‘the question for the court
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20
is whether the agency’s interpretation is based on a permissible construction of the statute.’”
Baker Norton Pharm., 132 F. Supp. 2d at 33-34 (internal citation omitted).
Plaintiffs can prevail if, and only if, they are able to show that their reading of the IDEA
is the “inevitable one.” Regions Hospital v. Shalala, 522 U.S. 448, 460 (1998). This is a heavy
burden to bear. Indeed, in order to prevail, Plaintiffs must demonstrate either that Congress
made a deliberate decision to “compel” the result they urge, Auer v. Robbins, 519 U.S. 452, 458
(1997), in terms so “unambiguously manifest,” Babbitt v. Sweet Home Chapter of Communities
for a Great Oregon, 515 U.S. 687, 703 (1995), that Congress “would not have sanctioned [the
agency’s] interpretation,” Am. Mining Congress v. EPA, 965 F.2d 759, 765 (9th Cir. 1992), or
that the statutory language “cannot bear the interpretation adopted by the Secretary.” Sullivan v.
Everhart, 494 U.S. 83, 92 (1990). In other words, Plaintiffs’ construction of the statute must be
“the only possible interpretation.” Regions Hospital, 522 U.S. at 460; Sullivan, 494 U.S. at 89.
Thus, because the IDEA’s statutory text and legislative history are ambiguous regarding
Congress’s intent to provide mapping services for cochlear implants as a related service under
the IDEA, Plaintiffs cannot prevail.
1. The IDEA’s Statutory Text and Structure are Ambiguous Regarding
Congress’s Intent to Provide Mapping Services As A Related Service
To determine whether Congress has spoken directly on the issue of the states’ obligation
(if any) to provide free cochlear implant mapping as a related service under the IDEA, this Court
must focus on the plain language of the Act. See National Home Equity Mortgage Ass’n v.
Office of Thrift Supervision, 271 F. Supp. 2d 264, 269 (noting that “the reviewing court inquires
whether the plain language of the statute addresses the precise issue”). If the plain language
does not provide any insight into Congress’s intent, the court employs other tools of statutory
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21
construction to ascertain Congress’s intent. See New York State Bar Ass’n v. F.T.C., 276 F.
Supp. 2d 110, 117 (D.D.C. 2003) (observing that “‘[i]n the first analytical step, the courts use
‘traditional tools of statutory interpretation - text, structure, purpose and legislative history’”)
(quoting Citizens Coal Council v. Norton, 330 F.3d 478, 481 (D.C. Cir. 2003)). As discussed
above, if, after examining the statute’s text and legislative history, the court determines that
Congress’s intent is unclear, the court must proceed to part two of the Chevron inquiry.
Tellingly, Plaintiffs’ Complaint does not cite to any provision of the IDEA that explicitly
requires states to provide cochlear implant mapping as a related service. In fact, it would be
impossible for Plaintiffs to do so because no such provision exists. The IDEA defines “related
services” as:
[T]ransportation, and such developmental, corrective, and other supportive services
(including speech-language pathology and audiology services, interpreting services,
psychological services, physical and occupational therapy, recreation, including
therapeutic recreation, social work services, school nurse services designed to enable a
child with a disability to receive a free appropriate public education as described in the
individualized education program of the child, counseling services, including
rehabilitation counseling, orientation and mobility services, and medical services, except
that such medical services shall be for diagnostic and evaluation purposes only) as may
be required to assist a child with a disability to benefit from special education, and
includes the early identification and assessment of disabling conditions in children.
20 U.S.C. § 1401(26)(A). In 2004, Congress amended the definition of related services to make
clear that the term does not apply to medical devices, like cochlear implants, that are surgically
implanted. See 20 U.S.C. § 1401(26)(B) (“The term [related services] does not include a
medical device that is surgically implanted, or the replacement of such device.”). However,
although the medical devices exception is clear that the IDEA does not require states to provide
or replace surgically implanted medical devices, the Act does not clearly address whether the
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4 Section 300.34 defines the term “audiology” to include: “(i) Identification of children with
hearing loss; (ii) Determination of the range, nature, and degree of hearing loss, including referral
for medical or other professional attention for the habilitation of hearing; (iii) Provision of
habilitative activities, such as language habilitation, auditory training, speech reading (lip reading),
hearing evaluation, and speech conservation; (iv) Creation and administration of programs for
prevention of hearing loss; (v) Counseling and guidance of children, parents, and teachers regarding
hearing loss; and (vi) Determination of children’s needs for group and individual amplification,
selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.” 34 C.F.R.
§ 300.34(c)(1). ED issued its regulation defining this term on August 23, 1977. 42 Fed. Reg.
42,474, 42,479. Since 1977, there has been no substantive change to the regulatory definition of
“audiology.” As discussed above (pp. 17-18, n.3), the FDA did not approve the use of cochlear
implants for children until 1990. Thus, the term “audiology,” as defined by the regulation
promulgated by ED in 1977, did not contemplate the provision of mapping services for children with
cochlear implants.
22
IDEA requires states to optimize and maintain the functioning of these exempted devices (e.g.,
mapping services for cochlear implants).
Plaintiffs, implicitly acknowledging that the IDEA does not address mapping services,
attempt to obfuscate this ambiguity by pointing to the reference to “audiology services” included
in the IDEA’s definition of related services. Plaintiffs contend that “the plain language of the
[IDEA]” requires the provision of mapping services because the “ordinary meaning of the term
‘audiology services,’” as referenced in the definition, “includes a service like cochlear implant
mapping which can only be provided by licensed audiologists.” Complaint, ¶¶ 3, 4, 7. Plaintiffs
must rely on the term’s “ordinary meaning” because the IDEA does not define the term
“audiology service.” Section 300.34 of the IDEA’s implementing regulation, moreover, defines
the term “audiology” without reference to the provision of mapping services.4
The glaring problem with Plaintiffs’ proposed statutory interpretation is that it construes
the term “audiology services” without considering the term within the statutory context of the
IDEA. It is axiomatic that in employing traditional tools of statutory interpretation, “the entire
statute [] must be reviewed. . . and not the specific clauses or provisions in isolation.” Burnett v.
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23
Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 93 (D.D.C. 2003). Even if the term
“audiology services” may in some contexts encompass the provision of mapping services for
cochlear implants, the construction is untenable when considered in connection with the IDEA’s
medical devices exception. Congress clearly did not intend to require states to absorb the cost of
providing or replacing medical devices (such as cochlear implants) that are surgically implanted.
See 20 U.S.C. § 1401(26)(B). Given Congress’s intent to except the provision or replacement of
cochlear implants from the related services definition, it is, at the very least, ambiguous to what
extent states must provide “audiology services” in connection with those exempted medical
devices. References to “audiology” and “audiology services” in the IDEA and its implementing
regulation do not establish that Congress intended states to provide mapping services for a
medical device that Congress clearly intended to exclude from the definition of related services.
Even if this Court were to accept Plaintiffs’ contorted construction of the IDEA, that
construction remains ambiguous in the context of the IDEA’s medical devices exception.
At least one federal court interpreting the 2004 IDEA Amendments reached this exact
conclusion, finding that the IDEA is ambiguous regarding Congress’s intent to provide mapping
services for children with cochlear implants. In A.U. v. Roane Cty. Bd. of Educ., 501 F. Supp.
2d 1134 (E.D. Tenn. 2007), plaintiffs, Nicole and Bennie Underwood -- the same Plaintiffs in the
case sub judice -- took a position directly contrary to what they are now claiming about the
“plain language of the statute,” arguing that the court should find that “the [related services]
amendment is ambiguous and does not specifically exclude mapping.” Id. at 1143. After
examining the IDEA’s statutory text and structure, the court agreed with the Underwoods,
observing that the medical devices exception to the definition of related services “is anything but
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5As mentioned before, the A.U. court did not have an opportunity to consider fully the
validity of ED’s regulations. Nevertheless, the court’s observations in A.U. regarding the deference
due to ED’s interpretation of the IDEA are instructive on the issue before this Court.
24
clear” regarding whether Congress intended to provide mapping services for a medical device
that is itself excluded from the definition of related services. Id. at 1144.
Although the A.U. court did not specifically rule on the validity of ED’s regulations
“because it was beyond the scope of the lawsuit,” Complaint, ¶ 44, the court’s observations – as
well as the Underwood’s own arguments – regarding the ambiguity inherent in the IDEA’s text
and structure nevertheless are instructive on the issue before this Court. At the time the A.U.
court issued this decision, ED’s regulations implementing the 2004 IDEA Amendments were not
yet effective. For this reason, the court determined that the school district was required to
provide cochlear implant mapping for Plaintiffs’ child until October 13, 2006, the effective date
of ED’s regulations implementing the 2004 IDEA Amendments. Id. To that point, the court
explained that, given the ambiguity in the 2004 IDEA Amendments, ED’s interpretation of the
related services definition was entitled to deference and thus concluded that the school district
was not required to provide cochlear implant mapping for Plaintiffs’ child after October 13,
2006.5 Id.
As the foregoing demonstrates, the IDEA’s text and structure do not address whether
Congress intended for states to include cochlear implant mapping as a related service under an
IEP. Indeed, it is hard to deny the existence of this ambiguity given the overwhelming number
of comments ED received in connection with its notice-and-comment rulemaking, requesting
that the Secretary clarify whether the medical devices exception to the related services definition
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6Indeed, it is odd (at best) that Plaintiffs now claim that the IDEA’s statutory language is
clear when they took a contrary position during public hearings the agency conducted to solicit
comments on this and other issues related to its rulemaking under the IDEA. A.R. ED-003324
(comment of Plaintiff Nicole Underwood at a public hearing in Nashville, Tennessee, requesting
“some kind of clarification” on the scope of the medical devices exception “because the regs are not
there, and there’s no case law”on the issue).
25
excludes the provision of mapping services for cochlear implants.6 See, e.g., A.R. ED-003556
(“The regulations need to clarify whether the mapping of a cochlear device is considered a
related service or does the language that excludes surgically implanted medical devices cover
mapping as well.”); A.R. ED-003672 (same).
2. The IDEA’s Legislative History Is Also Ambiguous Regarding
Congress’s Intent to Provide Mapping Services As a Related Service
Under the IDEA
Where, as here, the text of the statute is ambiguous regarding Congress’s intent, the
Court must then examine the statute’s legislative history to determine whether Congress has
spoken to the precise question at issue. See New York State Bar Ass’n., 276 F. Supp. 2d at 117.
Plaintiffs’ Complaint asserts that “[t]he legislative history of the 2004 amendments to the IDEA
confirms that Congress intended cochlear implant mapping to be provided as a “related
service[].” Complaint, ¶ 5. To support their claim, Plaintiffs point to the fact that the final
version of the 2004 IDEA Amendments omits language excluding the post-surgical maintenance
or programming of implanted devices that was contained in a Senate Committee’s prior iteration
of the bill. Plaintiffs contend that Congress’s decision to omit this language demonstrates
Congress’s intent to provide cochlear implant mapping as a related service. Complaint, ¶¶ 6, 7,
28, 32, 33.
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26
Contrary to Plaintiffs’ contentions, the IDEA’s legislative history does not provide any
insight into Congress’s intent regarding the scope of the medical devices exception as applied to
the provision of optimization (e.g., mapping of cochlear implants) and maintenance services for
surgically implanted medical devices. When considering the 2004 IDEA Amendments, the
Senate Committee on Health, Education, Labor and Pensions proposed a version of §
1401(26)(B) that excluded cochlear implant mapping from the definition of related services. The
Senate Committee’s proposed language for subsection (b) excluded from the definition of related
services “a medical device that is surgically implanted, or the post-surgical maintenance,
programming, or replacement of such device.” S. Rep. No. 108-185 at 8, S. Bill 1248 at 398
(2003). Prior to the full Senate voting on this version of the bill, a manager’s amendment
deleted the phrase “or the post-surgical [maintenance, programming]” from the Senate
Committee bill’s proposed language that defined the term “related services.” 150 Cong. Rec.
S5394 (daily ed. May 13, 2004) (statement of Sen. Gregg). The final version of the bill on
which the Senate voted, and which was ultimately enacted, does not include the “or the post-
surgical maintenance, programming” language in subsection (b) of the related services
definition. 150 Cong. Rec. S5414 (daily ed. May 13, 2004).
Notably, Congress did not replace this language with language expressly requiring states
to provide maintenance or programming services as a related service for the medical devices that
Congress expressly excluded from the related services definition. Nor, did Congress provide any
explanation regarding why this language was deleted from the final version of the bill, or any
statement regarding the effect of this deletion on the substantive provisions of the medical
devices exception. Thus, the legislative history sheds no light on whether Congress intended to
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27
provide mapping services for cochlear implants when it deleted the language “or the post-
surgical maintenance, programming” from the final version of the bill.
Predictably, Plaintiffs assert in their Complaint that the deletion of the phrase “or the
post-surgical maintenance, programming” from the final version of the bill demonstrates
Congress’s intent to “reject [the Senate Committee’s] proposal” and “confirms that Congress
intended cochlear implant mapping to be provided as a ‘related service[].’” Compl., ¶¶ 5, 28.
However, “the deletion of a word or phrase in the throes of the legislative process does not
ordinarily constitute, without more, evidence of a specific legislative intent.” Edison Elec. Inst.
v. U.S. Envtl. Prot. Agency, 2 F.3d 438, 451 (D.C. Cir. 1993); Rastelli v. Warden, Metro. Corr.
Ctr., 782 F.2d 17, 24 n.3 (2d Cir. 1986) (“Since Congress provided no explanation of its action[,
the deletion of language from the final version of the bill], we find this deletion alone an
ambiguous indication of Congressional purpose and draw no conclusion from it.”). Indeed,
without any explanation in the legislative record regarding why Congress deleted the “or the
post-surgical maintenance, programming” language from the final version of the bill, it can
hardly be said that Congress “rejected” this proposal. See Edison Elec. Inst., 2 F.3d at 451
(rejecting petitioners’ argument that Congress “considered and rejected” a certain course of
action, as evident by Congress’s decision to delete certain language from the final version of the
bill, because the deletion of a word or phrase, without more, does not provide sufficient evidence
of Congressional intent).
Here, one cannot ascertain from the legislative history whether Congress considered the
language superfluous given the medical devices exception, or having delegated to the Secretary
the authority to promulgate regulations necessary to ensure compliance with the IDEA, intended
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28
to “explicitly le[ave] a gap for [the Secretary] to fill,” National Ass’n of Clean Air Agencies,
489 F.3d at 1229, or - as Plaintiffs postulate - intended to require (without in any way stating)
that states pay for mapping services for cochlear implants.
What is clear from the foregoing is that there are multiple conclusions that can be drawn
from the same legislative record regarding why Congress deleted the “or the post-surgical
maintenance, programming” language from the final version of the bill. The existence of
numerous reasonable explanations for that congressional action requires this Court to conclude
that the IDEA’s legislative history is ambiguous. See OSG Bulk Ships, Inc. v. U.S., 921 F.
Supp. 812, 821 n.10 (D.D.C. 1996) (finding that Congress’s failure to explain why it deleted a
proposed amendment from the final version of the bill, coupled with plausible interpretations by
both parties regarding the meaning of this deletion, showed that Congress’s intent was unclear
and ambiguous); see also Whittaker v. Whittaker Corp., 639 F.2d 516, 532 (9th Cir. 1981)
(“Without some indication in the legislative history of the reasons why [certain language did not
appear in the final version of the bill] [ ], it is unwise to infer much from the silence of
Congress.”).
In an effort to circumvent this ambiguous legislative record, Plaintiffs also claim that
“[b]y reenacting IDEA with ‘related services’ still defined to include ‘audiology services,’
Congress ratified” a decision of the federal district court in New Hampshire, Compl., ¶ 27, which
held that “[a]bsent a clear indication that such audiology services were not intended to be
included within ‘related services,’ the definition would appear to encompass” cochlear implant
mapping. Stratham Sch. Dist. v. Beth & David P., No. 02-135, 2003 WL 260728, at *4 (D.N.H.
2003). However, as Plaintiffs acknowledge in their Complaint, the court in Stratham interpreted
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29
a version of the IDEA in effect prior to the 2004 Amendments that did not contain the medical
devices exception to the related services definition Congress enacted when it amended the IDEA
in 2004.
Moreover, the legislative history does not, as Plaintiffs proffer, suggest that Congress
ratified the (unpublished) Stratham decision; rather, Congress’s decision to expressly exclude the
provision and replacement of cochlear implants suggests, if anything, that Congress intended to
legislatively overturn the Stratham decision. Cf. Public Citizen, Inc. v. F.A.A., 988 F.2d 186,
194 (D.C. Cir. 1993) (“Congress is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when it re-enacts a statute without
change.”) (emphasis added). Here, Congress did not simply re-enact the IDEA “without
change”; it made affirmative revisions to the statute, including amending the definition of related
services to exclude surgically implanted medical devices, such as cochlear implants, from the
statute’s reach. Thus, contrary to Plaintiffs’ assertions otherwise, the legislative history contains
not a shred of evidence that Congress sought to ratify the court’s decision in Stratham. If
anything, it suggests that Congress reacted to the Stratham decision by affirmatively amending
the definition of related services to expressly exclude cochlear implants and the services
specifically associated with them from its coverage.
3. ED’s Mapping Exclusion Regulations Are a Permissible Construction
of the IDEA
If, as here, Congress’s intent with respect to the challenged issue is not clear from either
the statute’s text, structure, or legislative history, “the question for the court is whether the
agency’s answer is based on a permissible construction of the statute.” National Home Equity
Mortgage Ass’n, 271 F. Supp. 2d at 270 (internal quotation and citation omitted). In making this
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30
inquiry, this Court must accord considerable weight to the Secretary’s construction of the IDEA,
the administration of which Congress entrusted to the Secretary. See Irving Indep. Sch. Dist. v.
Tatro, 468 U.S. 883, 891-92 (1984) ( “[T]he regulations of the Department of Education
[interpreting the IDEA]. . . are entitled to deference.”); Honig, 484 U.S. at 325 n.8 (deferring to
ED’s interpretation of a statute it is charged with monitoring and enforcing); Ms. S. v. Vashon
Island Sch. Dist., 337 F.3d 1115, 1134 & n.23 (9th Cir. 2003) (observing that ED’s interpretation
of the IDEA is entitled to Chevron deference), superseded on other grounds, 20 U.S.C. §
1414(d)(1)(B). Accordingly, to find ED’s regulations permissible, this Court need not conclude
that it is the best interpretation of the IDEA, see United States v. Haggar Apparel Co., 526 U.S.
380, 394 (1999), or that it is “the most natural one,” Pauley v. BethEnergy Mines, Inc., 501 U.S.
680, 702 (1992). Rather, this Court must find only that ED’s interpretation of the IDEA is
reasonable. Chevron, 467 U.S. at 843. Given Congress’s intent to exclude surgically implanted
medical devices from the definition of related services, the Secretary’s decision to exclude from
that definition the optimization (e.g., mapping) and maintenance of those excluded devices is a
reasonable interpretation of the IDEA’s requirements.
When Congress amended the IDEA in 2004, it expressly granted the Secretary the
authority to promulgate regulations “to the extent necessary to ensure that there is compliance
with the specific requirements of [the IDEA].” 20 U.S.C. § 1406(a). Congress did not except
from this explicit grant of authority the statutory definition of related services. See Cedar Rapids
Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 75 n.6 (1999) (recognizing that the Secretary of
Education “has the authority to enumerate the services that are, and are not, fairly included
within the scope of [] [the related services definition]”); D.D. v. New York City Bd. of Educ.,
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 30 of 40
31
465 F.3d 503, 509 (2d Cir. 2006) (“The Secretary of Education ‘is primarily responsible for the
interpretation and implementation of the IDEA and has been granted regulatory and enforcement
powers.’”) (internal citation omitted). The 2004 IDEA Amendments do not explicitly delineate
whether the IDEA’s medical devices exception to the related services definition also applies to
the optimization and maintenance of those excluded devices. Given this ambiguity and the vast
number of comments ED received in connection with its notice-and-comment rulemaking that
specifically requested clarification on this issue, ED reasonably decided that it was necessary to
clarify the states’ responsibility to provide free optimization and maintenance services for
devices that Congress specifically exempted from the IDEA and its implementing regulation. 71
Fed. Reg. at 46,570.
In formulating the challenged rules, ED considered a number of issues weighing on the
states’ ability to provide optimization and maintenance services for surgically implanted medical
devices. 71 Fed. Reg. at 46,569-585. For example, ED examined the distinction between those
services that enable a child with a disability to remain in school during the day and those
services that are not necessary to ensure that the child is provided access to education. 71 Fed.
Reg. at 46,569. ED determined that as applied to cochlear implants, although the implant must
be mapped properly in order for a child to hear well in school, “the mapping does not have to be
done in school or during the school day in order to be effective.” Id.
ED also considered the services and costs associated with mapping cochlear implants,
including transportation and insurance co-payment costs. 71 Fed. Reg. at 46,570. ED
determined that these services and costs “are incidental to a particular course of treatment chosen
by the child’s parents to maximize the child’s functioning, and are not necessary to ensure that
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 31 of 40
32
the child is provided access to education, regardless of the child’s disability, including
maintaining health and safety while in school.” 71 Fed. Reg. at 46,570. In addition, ED
considered the level of expertise and skill required to provide optimization and maintenance
services for surgically implanted medical devices. 71 Fed. Reg. at 46,570, 46,571. ED’s final
rule reflects its reasonable determination that the optimization and maintenance of surgically
implanted medical devices, such as the mapping of cochlear implants, often require a level of
expertise and equipment beyond that which school personnel, such as school audiologists,
typically have. Id. (“The maintenance and monitoring of surgically implanted medical devices
require the expertise of a licensed physician or an individual with specialized technical expertise
beyond that typically available from school personnel.”).
Although ED determined that states are not required to optimize or maintain the
functioning of surgically implanted medical devices (such as mapping for cochlear implants), it
nevertheless recognized that the IDEA requires states to provide certain services for children
who have surgically implanted medical devices. 71 Fed. Reg. at 46,570-571, 46,581, 46,585.
Accordingly, for services that are not necessary to provide access to education by maintaining
the health or safety of the child while in school, ED established a rule that delineates those
services that the IDEA covers, such as verifying that a cochlear implant is functioning properly,
and those that the Act excludes, such as mapping. 71 Fed. Reg. at 46,571, 46,581, 46,764. The
regulations clarify that, although a public agency is not responsible for optimizing or maintaining
surgically implanted medical devices, it “is responsible for the routine checking of the external
components of a surgically implanted device in much the same manner as a public agency is
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 32 of 40
33
responsible for the proper functioning of hearing aids.” 71 Fed. Reg. at 46,571; see also 71 Fed.
Reg. at 46,764.
ED’s decision to exclude optimization and maintenance services for surgically implanted
medical devices (such as mapping services for cochlear implants) is not only a reasonable
interpretation of the IDEA but also consistent with Supreme Court precedent interpreting the
Act. The Supreme Court has recognized and in fact “endorsed” ED’s authority to promulgate
regulations under the IDEA that take into consideration the cost of the services sought under the
related services definition and the competence of school personnel to provide such services. See,
e.g., Tatro, 468 U.S. at 892-93 (interpreting regulations implementing the medical services
exception to the related services definition and observing that “the Secretary [of Education]
could reasonably have concluded that [the medical services exception] was designed to spare
schools from an obligation to provide a service [(clean intermittent catheritization)] that might
well prove unduly expensive and beyond the range of their competence”); Garret F., 526 U.S. at
74-75 (explaining that in Tatro, “[w]e referenced the likely cost of the services and the
competence of school staff as justifications for drawing a line between [services covered by the
IDEA and those services excluded under the IDEA’s medical services exception], but our
endorsement of that line was unmistakable”). ED’s consideration of these factors in its
rulemaking is, according to the Supreme Court, proper when construing a state’s obligation to
provide particular services as part of a FAPE. Tatro, 468 U.S. at 893.
Here, Plaintiffs challenge the scope of the medical devices exception, and not the
medical services exception at issue in Tatro and Garret F.. Nevertheless, the Court’s
endorsement of ED’s consideration of the states’ obligation to provide services that might be
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 33 of 40
34
unduly expensive and beyond the competence of school personnel in those decisions provided
the impetus for the rules ED ultimately formulated that exclude from the definition of related
services optimization (e.g., mapping) and maintenance services for surgically implanted medical
devices. 71 Fed. Reg. at 46,540, 46,547-85, 46,760, 46,764. Given the foregoing, even if the
IDEA could be read as Plaintiffs suggest, see Complaint, ¶¶ 3, 7, where, as here, “the agency’s
interpretation . . . is at least as plausible . . . there is little, if any, reason not to defer to its
construction.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993). Accordingly, ED’s
interpretation of the IDEA is entitled to deference, and Plaintiffs’ statutory challenge to ED’s
mapping exclusion regulations must fail.
B. The Mapping Exclusion Regulations Are Neither Arbitrary Nor Capricious
Section 706(2)(A) of the APA requires a court to set aside an agency action found to be
arbitrary and capricious. 5 U.S.C. § 706(2)(A). The court’s inquiry in a § 706(2)(A) challenge
to agency action focuses “mainly on the decision-making process and the rationale behind an
agency’s decision.” New York State Bar Ass’n, 276 F. Supp. 2d at 140. This Court must uphold
agency action where the agency has considered the relevant factors, based the rules on that data,
and articulated an explanation for its action. Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1982) (“[T]he agency must examine the relevant data and
articulate a satisfactory explanation for its action, including a ‘rational connection between the
facts found and the choice made.’”) (internal citation omitted); National Ass’n of Clean Air
Agencies, 489 F.3d at 1228 (explaining that the Court must uphold agency action where “it has
considered the relevant factors and articulated a rational connection between the facts found and
the choice made, and has not relied on improper factors”) (internal quotation and citation
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 34 of 40
35
omitted). The scope of review under the arbitrary and capricious standard is narrow, highly
deferential, and presumes the validity of agency action. See Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 415-16 (1971); National Ass’n of Clean Air Agencies, 489 F.3d at 1228.
As demonstrated by the voluminous Administrative Record, ED’s decision to exclude
mapping services for cochlear implants as a related service under the IDEA was neither arbitrary
nor capricious, but instead well-reasoned and deliberate. See 71 Fed. Reg. 46,540, 46,547-585,
46,760, 46,764 (Aug. 14, 2006). Prior to developing and publishing proposed regulations, ED
first solicited advice and recommendations from the public regarding the scope of the proposed
regulations in light of the 2004 IDEA Amendments. A.R. ED-005411-5412. In response to its
request for public comments about the scope of the proposed regulations, ED received over
6,000 comments that addressed the major provisions of the 2004 IDEA Amendments. A.R. ED-
003424. Based on the public comments ED received regarding the medical devices exception,
ED concluded that it was necessary to clarify the states’ obligation to provide optimization (e.g.,
mapping) and maintenance services for surgically implanted medical devices. 71 Fed. Reg. at
46,569. Accordingly, as requested by the commenters, ED formulated a proposed rule that
clarifies that the optimization and maintenance of a surgically implanted medical device “is not a
related service under the [IDEA]” and that the rule applies to mapping services for cochlear
implants. 71 Fed. Reg. at 46,570.
ED received comments that supported its proposed rule to exclude as a related service
mapping for children with cochlear implants, and those that opposed it. See 71 Fed. Reg. at
46,569. As the Administrative Record shows, after considering the comments of those who
opposed the proposed rule, ED concluded that excluding mapping services for cochlear implants
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 35 of 40
36
from the definition of related services was nevertheless necessary policy. See 71 Fed. Reg.
46,569-571, 46,581, 46,585. ED explained that “‘mapping’ and ‘optimization’ refer to adjusting
the electrical stimulation levels provided by the cochlear implant that is necessary for long-term
post-surgical follow-up of a cochlear implant.” 71 Fed. Reg. at 46,569. For children with
cochlear implants, “[o]ptimization or ‘mapping’ adjusts or fine tunes the electrical stimulation
levels provided by the cochlear implant and is changed as a child learns to discriminate signals to
a finer degree.” 71 Fed. Reg. at 46,570. After studying the issue and considering the comments
it received, ED determined that it was necessary to clarify that mapping is an example of device
optimization that is excluded under the IDEA because the services and costs associated with
mapping, including transportation and insurance co-payments, “are incidental to a particular
course of treatment chosen by the child’s parents to maximize the child’s functioning, and are
not necessary to ensure that the child is provided access to education, regardless of the child’s
disability, including maintaining health and safety while in school.” 71 Fed. Reg. at 46,570.
A number of commenters expressed concern that by excluding mapping services from the
definition of related services, children with cochlear implants would have limited access to
related services such as speech and language therapy, assistive listening devices, appropriate
classroom acoustics, auditory training, educational interpreters, cued speech transliterators, and
specialized instruction. In response to these comments, ED stated that the proposal “is not
intended to deny a child with a disability [access to related services] . . . or routine checking to
determine if the external components of the surgically implanted device is turned on and
working. Neither does the exclusion of mapping as a related service preclude a child with a
cochlear implant from receiving the related services (e.g., speech and language services) that are
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 36 of 40
37
necessary for the child to benefit from special education services.” Id. ED expressly recognized
that “a child with a cochlear implant may still require related services, such as speech and
language therapy, to process spoken language just as other children with hearing loss who are
using hearing aids may need those services and are entitled to them under the Act if they are
required for the child to benefit from special education.” Id. To that end, “the regulations
clearly state that a child with a cochlear implant or other surgically implanted device is entitled
to related services that are determined by the child’s [individualized education program] IEP
team to be necessary for the child to benefit from special education.” Id.; see also 71 Fed. Reg.
at 46,764.
Other commenters expressed concern that excluding cochlear implant mapping from the
definition of related services would establish different standards for serving children with
cochlear implants and those who use hearing aids and other external amplification devices. 71
Fed. Reg. at 46,570. These commenters recommended that ED further clarify that the IDEA
permits routine monitoring of surgically implanted medical devices, including cochlear implants,
to ensure that the device is functioning effectively and safely. Id.
In response to these comments, ED explained that, although mapping or optimization
services are generally provided by a specialized clinic and are not a related service under the
IDEA and its implementing regulation, “a public agency still has a role in providing services and
supports to help children with cochlear implants.” 71 Fed. Reg. at 46,570. ED recognized that
“[p]articularly with younger children or children who have recently obtained [cochlear] implants,
teachers and related services personnel frequently are the first to notice changes in the child’s
perception of sounds that the child may be missing. . . . The changes may indicate a need for
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38
remapping.” 71 Fed. Reg. at 46,570-571. To address this concern, ED expects “that school
personnel would communicate with the child’s parents about these issues.” 71 Fed. Reg. at
46,571. Thus, the final rule states that “a public agency is responsible for the routine checking of
the external components of a surgically implanted device in much the same manner as a public
agency is responsible for the proper functioning of hearing aids.” 71 Fed. Reg. at 46,571; see
also 71 Fed. Reg. at 46,764.
This rule reflects ED’s determination that “there is no substantive difference between
serving a child with a cochlear implant in a school setting and serving a child with a hearing
aid.” 71 Fed. Reg. at 46,571. Indeed, ED recognized that the externally worn speech processor
of the cochlear implant operates in much the same way as a hearing aid in that it must be
activated and “properly functioning in order for the child to benefit from his or her education.”
Id. To that point, ED explained that both the cochlear implant’s externally worn speech
processor and the hearing aid require extra batteries, cords, and other parts that parents bring to
school for their children in order to ensure that their child hears effectively and that the device
(i.e., the cochlear implant or the hearing aid) is functioning properly. Id. These observations
and considerations led ED to implement a rule requiring states to ensure that the external
components of surgically implanted medical devices (e.g., cochlear implants) are functioning
properly. See 71 Fed. Reg. at 46,764.
ED’s regulations reflect a nuanced and balanced approach that carefully delineates (for
those services that do not maintain the health and safety of the child while in school and thus are
not necessary to provide access to education) those services that the IDEA covers, such as
verifying that a cochlear implant is functioning properly, and those that the IDEA excludes, such
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39
as mapping. 71 Fed. Reg. at 46,571. ED explained that “the distinguishing factor [between
those services required by the IDEA and those that the Act does not require] is the level of
experience required.” Id. According to ED, “[t]he maintenance and monitoring of surgically
implanted devices require the expertise of a licensed physician or an individual with specialized
technical expertise beyond that typically available from school personnel. On the other hand,
trained lay persons or nurses can routinely check an externally worn processor connected with a
surgically implanted device to determine if the batteries are charged and the external processor is
operating.” Id. Thus, ED implemented a rule to cover the routine checking of hearing aids and
external components of surgically implanted medical devices. Id.; 71 Fed. Reg. at 46,764.
Given the foregoing, Plaintiffs’ suggestion that the only basis for ED’s decision to
exclude mapping services from the definition of related services is its reliance on language
contained in a Senate Committee Report that was deleted from the final version of the bill, see
Complaint, ¶¶ 32-33, is without merit. Indeed, a review of the preamble to the final rule
demonstrates that ED thought long and hard about the scope of the challenged regulations and
considered many issues related to the challenged rules, including those raised in public
comments, prior to developing and publishing the regulations. See 71 Fed. Reg. at 46,569-571,
46,581, 46,585. To that point, the Administrative Record contains a well-reasoned analysis of
the basis for the regulations ED promulgated. Where, as here, the agency has articulated a
satisfactory explanation for its action, including a rational connection between the facts found
and the choice made, the regulation is reasonable and must be upheld. Motor Veh. Mfrs. Ass’n,
463 U.S. at 43; Small Refiner Lead Phase-Down Task Force v. E.P.A., 705 F.2d 506, 521 (D.C.
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 39 of 40
40
Cir. 1983) (If “the agency’s reasons and policy choices . . . conform to ‘certain minimal
standards of rationality’ . . . the rule is reasonable and must be upheld.”).
CONCLUSION
For the foregoing reasons, the Court should grant Defendants’ motion to dismiss or
alternatively, for summary judgment, and enter judgment in favor of the Defendants.
Respectfully submitted,
JEFFREY S. BUCHOLTZ
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
SHEILA M. LIEBER
Deputy Branch Director
/s/ Tamra T. Moore
TAMRA T. MOORE D.C. Bar No. 488392
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Telephone: (202) 514-8095
Facsimile: (202) 616-8470
Email: Tamra.Moore@usdoj.gov
Dated: December 13, 2007 Attorneys for Defendants
Case 1:07-cv-01583-RMU Document 11-2 Filed 12/13/2007 Page 40 of 40
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
BETH and DAVID PETIT, in their )
individual capacities and as next friends )
to their minor son, H.P., )
12 Emery Lane )
Stratham, NH 03885 )
)
and )
)
NICOLE and BENNIE UNDERWOOD, )
in their individual capacities and as )
next friends to their minor daughter, )
A.U. )
9936 Castle Lane )
Knoxville, TN 37922 )
Plaintiffs, )
)
v. ) Civ. No. 1:07CV01583(RMU)
)
UNITED STATES DEPARTMENT )
OF EDUCATION, )
400 Maryland Ave, SW )
Washington, DC 20202 )
)
and )
)
MARGARET SPELLINGS, in her official )
capacity as Secretary of the )
United States Department of Education )
400 Maryland Ave, SW )
Washington, DC 20202 )
Defendants. )
__________________________________________)
STATEMENT OF MATERIAL FACTS AS TO WHICH
THERE IS NO GENUINE ISSUE IN SUPPORT OF DEFENDANTS’ MOTION TO
DISMISS OR ALTERNATIVELY, FOR SUMMARY JUDGMENT
Pursuant to Local Rules 7.1(h) and 56.1, Defendants, the United States Department of
Case 1:07-cv-01583-RMU Document 11-3 Filed 12/13/2007 Page 1 of 5
2
Education and Margaret Spellings, in her official capacity as Secretary of Education (collectively,
“ED” or “the Secretary”), by and through undersigned counsel, submit the following statement of
material facts as to which there is no genuine issue:
1. Plaintiffs, Beth and David Petit and Nicole and Bennie Underwood, respectively are
parents of a child with a cochlear implant. Plaintiffs’ children have not received free cochlear
implant mapping services as part of their individualized education plan (“IEP”) since late 2006.
2. Plaintiffs filed this action against ED, challenging ED’s promulgation of rules that
exclude cochlear implant mapping from the definition of related services as set forth in the
Individuals with Disabilities Education Act (“IDEA”). Plaintiffs’ Complaint alleges violations of
the IDEA and the Administrative Procedures Act (“APA”).
3. In A.U. v. Roane Cty. Bd. of Educ., Civ. Nos. 3:06-cv-123, 3:06-cv-125 (E.D.
Tenn.), Plaintiffs Nicole and Bennie Underwood argued that the provision of the 2004 IDEA
Amendments excluding surgically implanted medical devices from the definition of related
services is ambiguous.
4. When Congress amended the IDEA in 2004, Pub. L. No. 108-446, (codified at 20
U.S.C. §§ 1400 et seq.), it amended the provision defining related services. The amended
definition of related services “does not include a medical device that is surgically implanted, or
the replacement of such device.” 20 U.S.C. § 1401(26)(B).
5. The 2004 IDEA Amendments do not contain any statutory provision that expressly
requires States to optimize or maintain the functioning of the medical devices excluded under §
1401(26)(B).
6. When Congress amended the IDEA in 2004, it granted the Secretary of Education the
Case 1:07-cv-01583-RMU Document 11-3 Filed 12/13/2007 Page 2 of 5
3
authority to issue regulations “to the extent that such regulations are necessary to ensure that
there is compliance with the specific requirements of” the IDEA. 20 U.S.C. § 1406(a).
7. On December 29, 2004, prior to developing and publishing proposed rules to address
the 2004 IDEA Amendments, ED invited the public to submit comments and recommendations
regarding the nature and scope of the proposed rules and the need to clarify any provisions of the
new law. A.R. ED005411-5412.
8. In response to its December 29, 2004 solicitation of public comments, ED received
comments requesting that the Secretary clarify whether the medical devices exception to the
related services definition prohibits the provision of mapping services for children with cochlear
implants. See, e.g., A.R. ED-003550; A.R. ED-003568; A.R. ED-003672.
9. To respond to the comments seeking clarification regarding the scope of the medical
devices exception to the related services definition, ED issued its proposed rule addressing the
IDEA’s statutory limitation on surgically implanted medical devices. A.R. ED-003423, ED-
003426; A.R. ED-003480. The proposed rule specified that “related services do not include a
medical device that is surgically implanted, the optimization of device functioning, maintenance
of the device, or the replacement of the device.” A.R. ED-003480.
10. On June 21, 2005, ED solicited comments and recommendations from the public
regarding its proposed regulations. A.R. ED-003423. ED received over 5,000 comments in
response to its proposed regulations. 71 Fed. Reg. 46,540, 46,547 (Aug. 14, 2006).
11. ED reviewed and responded to the comments it received in response to its June 21,
2005 Notice of Proposed Rulemaking, including those comments related to ED’s proposed rule
excluding the optimization (e.g., mapping) and maintenance of surgically implanted device
Case 1:07-cv-01583-RMU Document 11-3 Filed 12/13/2007 Page 3 of 5
4
functioning from the definition of related services. 71 Fed. Reg. at 46,540, 46,569-71, 46,581-
82, 46,585.
12. The final rule that the Secretary promulgated states that “[r]elated services do not
include a medical device that is surgically implanted, the optimization of that device’s
functioning (e.g. mapping), maintenance of that device, or the replacement of that device.” 71
Fed. Reg. at 46,760.
13. The Secretary clarified that, although public agencies are not required to optimize or
maintain the functioning of surgically implanted medical devices, they do “have an obligation to
change a battery or routinely check an external component of a surgically implanted medical
device to make sure that it is turned on and operating.” 71 Fed. Reg. at 46,581-582.
Accordingly, the final rule states that “each public agency must ensure that the external
components of surgically implanted medical devices are functioning properly.” 71 Fed. Reg. at
46,764.
Respectfully submitted,
JEFFREY S. BUCHOLTZ
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
SHEILA M. LIEBER
Deputy Branch Director
/s/ Tamra T. Moore
TAMRA T. MOORE D.C. Bar No. 488392
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Case 1:07-cv-01583-RMU Document 11-3 Filed 12/13/2007 Page 4 of 5
5
Washington, D.C. 20530
Telephone: (202) 514-8095
Facsimile: (202) 616-8470
Email: Tamra.Moore@usdoj.gov
Dated: December 13, 2007 Attorneys for Defendants
Case 1:07-cv-01583-RMU Document 11-3 Filed 12/13/2007 Page 5 of 5
ATTACHMENT
Case 1:07-cv-01583-RMU Document 11-4 Filed 12/13/2007 Page 1 of 308
Monday,
August 14, 2006
Part II
Department of
Education
34 CFR Parts 300 and 301
Assistance to States for the Education of
Children With Disabilities and Preschool
Grants for Children With Disabilities;
Final Rule
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46540 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
DEPARTMENT OF EDUCATION
34 CFR Parts 300 and 301
RIN 1820–AB57
Assistance to States for the Education
of Children With Disabilities and
Preschool Grants for Children With
Disabilities
AGENCY: Office of Special Education and
Rehabilitative Services, Department of
Education.
ACTION: Final regulations.
SUMMARY: The Secretary issues final
regulations governing the Assistance to
States for Education of Children with
Disabilities Program and the Preschool
Grants for Children with Disabilities
Program. These regulations are needed
to implement changes made to the
Individuals with Disabilities Education
Act, as amended by the Individuals with
Disabilities Education Improvement Act
of 2004 (Act or IDEA).
DATES: These regulations take effect on
October 13, 2006.
FOR FURTHER INFORMATION CONTACT:
Alexa Posny, U.S. Department of
Education, Potomac Center Plaza, 550
12th Street, SW., Washington, DC
20202–2641. Telephone: (202) 245–
7459, ext. 3.
If you use a telecommunications
device for the deaf (TDD), you may call
the Federal Relay System (FRS) at 1–
800–877–8339.
Individuals with disabilities may
obtain this document in an alternate
format (e.g., Braille, large print,
audiotape, or computer diskette) on
request to the contact person listed
under FOR FURTHER INFORMATION
CONTACT.
SUPPLEMENTARY INFORMATION: These
regulations implement changes in the
regulations governing the Assistance to
States for Education of Children with
Disabilities Program and the Preschool
Grants for Children with Disabilities
Program necessitated by the
reauthorization of the IDEA. With the
issuance of these final regulations, part
301 has been removed and the
regulations implementing the Preschool
Grants for Children with Disabilities
Program are included under subpart H
of these final regulations.
On June 21, 2005, the Secretary
published a notice of proposed
rulemaking in the Federal Register (70
FR 35782) (NPRM) to amend the
regulations governing the Assistance to
States for Education of Children with
Disabilities Program, the Preschool
Grants for Children with Disabilities
Program, and Service Obligations under
Special Education Personnel
Development to Improve Services and
Results for Children with Disabilities. In
the preamble to the NPRM, the
Secretary discussed, on pages 35783
through 35819, the changes proposed to
the regulations for these programs;
specifically, the amendments to 34 CFR
part 300, the removal of 34 CFR part 301
and relocation of those provisions to
subpart H of 34 CFR part 300, and the
amendments to 34 CFR part 304.
Final regulations for 34 CFR Part
304—Special Education-Personnel
Development to Improve Services and
Results for Children with Disabilities
were published in the Federal Register
(71 FR 32396) on June 5, 2006, and
became effective July 5, 2006.
Major Changes in the Regulations
The following is a summary of the
major substantive changes in these final
regulations from the regulations
proposed in the NPRM (the rationale for
each of these changes is discussed in the
Analysis of Comments and Changes
section of this preamble):
Subpart A—General
Definitions
• The definition of child with a
disability in § 300.8 has been revised as
follows:
(1) Section 300.8(b) (Children aged
three through nine experiencing
developmental delays) has been
changed to clarify that the use of the
term ‘‘developmental delay’’ is subject
to the conditions described in
§ 300.111(b).
(2) The definition of other health
impairment in § 300.8(c)(9)(i) has been
changed to add ‘‘Tourette Syndrome’’ to
the list of chronic or acute health
problems.
• The definition of excess costs in
§ 300.16 has been revised to clarify that
the computation of excess costs may not
include capital outlay and debt service.
In addition, a new ‘‘Appendix A to Part
300—Excess Cost Calculation’’ has been
added to provide a description (and an
example) of how to calculate excess
costs under the Act and these
regulations.
• The definition of highly qualified
special education teacher in § 300.18
has been revised, as follows:
(1) Section 300.18(b), regarding
requirements for highly qualified
special education teachers in general,
has been modified to clarify that, when
used with respect to any special
education teacher teaching in a charter
school, highly qualified means that the
teacher meets the certification or
licensing requirements, if any, set forth
in the State’s public charter school law.
(2) A new § 300.18(e), regarding
separate ‘‘high objective uniform State
standards of evaluation’’ (HOUSSE), has
been added to provide that a State may
develop a separate HOUSSE for special
education teachers, provided that any
adaptations of the State’s HOUSSE
would not establish a lower standard for
the content knowledge requirements for
special education teachers and meets all
the requirements for a HOUSSE for
regular education teachers. This
provision also clarifies that a State may
develop a separate HOUSSE for special
education teachers, which may include
single HOUSSE evaluations that cover
multiple subjects.
(3) Section 300.18(g) (proposed
§ 300.18(f)) (‘‘Applicability of definition
to ESEA requirements; and clarification
of new special education teacher’’) has
been revised as follows: (1) The heading
has been revised, and (2) the language
changed to clarify when a special
education teacher is considered ‘‘new’’
for some purposes.
(4) Section 300.18(h) (proposed
§ 300.18(g)) has been modified to clarify
that the highly qualified special
education teacher requirements also do
not apply to private school teachers
hired or contracted by LEAs to provide
equitable services to parentally-placed
private school children with disabilities
under § 300.138.
• The definition of Indian and Indian
tribe in § 300.21 has been changed to
clarify that nothing in the definition is
intended to indicate that the Secretary
of the Interior is required to provide
services or funding to a State Indian
tribe that is not listed in the Federal
Register list of Indian entities
recognized as eligible to receive services
from the United States, published
pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of
1994, 25 U.S.C. 479a–1.
• The definition of parent in § 300.30
has been revised to substitute
‘‘biological’’ for ‘‘natural’’ each time it
appears in the definition, and to add
language clarifying that to be considered
a parent under this definition a
‘‘guardian’’ must be a person generally
authorized to act as the child’s parent,
or authorized to make educational
decisions for the child.
• The definition of related services in
§ 300.34 has been revised as follows:
(1) Section 300.34(a) (General) has
been modified to (A) add the statutory
term ‘‘early identification and
assessment of disabilities in children,’’
which was inadvertently omitted from
the NPRM, (B) combine ‘‘school health
services’’ and ‘‘school nurse services,’’
and (C) remove the clause relating to a
free appropriate public education under
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‘‘school nurse services’’ because it
duplicates the clause in § 300.34(c)(13).
(2) Section 300.34(b) has been
changed to (A) expand the title to read
‘‘Exception; services that apply to
children with surgically implanted
devices, including cochlear implants,’’
and (B) clarify, in new paragraph (b)(1),
that related services do not include a
medical device that is surgically
implanted, the optimization of that
device’s functioning (e.g., mapping),
maintenance of that device, or the
replacement of that device.
(3) A new § 300.34(b)(2) has been
added to make clear that nothing in
paragraph (b)(1) of § 300.34 (A) limits
the right of a child with a surgically
implanted device (e.g., a cochlear
implant) to receive related services, as
listed in § 300.34(a), that are determined
by the IEP Team to be necessary for the
child to receive FAPE; (B) limits the
responsibility of a public agency to
appropriately monitor and maintain
medical devices that are needed to
maintain the health and safety of the
child, including breathing, nutrition, or
operation of other bodily functions,
while the child is transported to and
from school or is at school; or (C)
prevents the routine checking of an
external component of a surgically-
implanted device to make sure it is
functioning properly, as required in
§ 300.113(b).
(4) The definition of interpreting
services in § 300.34(c)(4) has been
changed to clarify that the term includes
(A) transcription services, such as
communication access real-time
translation (CART), C-Print, and
TypeWell for children who are deaf or
hard of hearing, and (B) special
interpreting services for children who
are deaf-blind.
(5) The definition of orientation and
mobility services in § 300.34(c)(7) has
been changed to remove the term ‘‘travel
training instruction.’’ The term is under
the definition of special education, and
is defined in § 300.39(b)(4).
(6) The definition of school nurse
services in 300.34(c)(13) has been
expanded and re-named school health
services and school nurse services. The
expanded definition clarifies that
‘‘school nurse services’’ are provided by
a qualified school nurse, and ‘‘school
health services’’ may be provided by a
qualified school nurse or other qualified
person.
• A definition of scientifically based
research has been added in new
§ 300.35 that incorporates by reference
the definition of that term from the
Elementary and Secondary Education
Act of 1965, as amended, 20 U.S.C. 6301
et seq. (ESEA).
With the addition of the new
definition in § 300.35, the definitions in
subpart A, beginning with the definition
of secondary school, have been
renumbered.
• The definition of special education
in § 300.39 (proposed § 300.38) has been
revised to remove the definition of
vocational and technical education that
was included in proposed
§ 300.38(b)(6).
• The definition of supplementary
aids and services in § 300.42 (proposed
§ 300.41) has been modified to specify
that aids, services, and other supports
are also provided to enable children
with disabilities to participate in
extracurricular and nonacademic
settings.
Subpart B—State Eligibility
FAPE Requirements
• Section 300.101(c) has been revised
to clarify that a free appropriate public
education (FAPE) must be available to
any individual child with a disability
who needs special education and
related services, even though the child
has not failed or been retained in a
course, and is advancing from grade to
grade.
• Section 300.102(a)(3), regarding
exceptions to FAPE, has been changed
to clarify that a regular high school
diploma does not include an alternative
degree that is not fully aligned with the
State’s academic standards, such as a
certificate or a general educational
development credential (GED).
• Section 300.105, regarding assistive
technology and proper functioning of
hearing aids, has been re-titled
‘‘Assistive technology,’’ and proposed
paragraph (b), regarding the proper
functioning of hearing aids, has been
moved to new § 300.113(a).
• Section 300.107(a), regarding
nonacademic services, has been revised
to specify the steps each public agency
must take, including the provision of
supplementary aids and services
determined appropriate and necessary
by the child’s IEP Team, to provide
nonacademic and extracurricular
services and activities in the manner
necessary to afford children with
disabilities an equal opportunity for
participation in those services and
activities.
• Proposed § 300.108(a), regarding
physical education services, has been
revised to specify that physical
education must be made available to all
children with disabilities receiving
FAPE, unless the public agency enrolls
children without disabilities and does
not provide physical education to
children without disabilities in the same
grades.
• A new § 300.113, regarding routine
checking of hearing aids and external
components of surgically implanted
medical devices, has been added, as
follows:
(1) Paragraph (a) of § 300.113 requires
each public agency to ensure that
hearing aids worn in school by children
with hearing impairments, including
deafness, are functioning properly.
(2) A new § 300.113(b)(1) requires
each public agency to ensure that the
external components of surgically
implanted medical devices are
functioning properly. However, new
§ 300.113(b)(2) has been added to make
it clear that, for a child with a surgically
implanted medical device who is
receiving special education and related
services, a public agency is not
responsible for the post-surgical
maintenance, programming, or
replacement of the medical device that
has been surgically implanted (or of an
external component of the surgically
implanted medical device).
Least Restrictive Environment
• Section 300.116(b)(3) and (c)
regarding placements, has been revised
to remove the qualification ‘‘unless the
parent agrees otherwise’’ from the
requirements that (1) the child’s
placement be as close as possible to the
child’s home, and (2) the child is
educated in the school he or she would
attend if not disabled.
• Section 300.117 (Nonacademic
settings) has been changed to clarify that
each public agency must ensure that
each child with a disability has the
supplementary aids and services
determined by the child’s
individualized education program (IEP)
Team to be appropriate and necessary
for the child to participate with
nondisabled children in the
extracurricular services and activities to
the maximum extent appropriate to the
needs of that child.
Children With Disabilities Enrolled by
Their Parents in Private Schools
• Section 300.130 (definition of
parentally-placed private school
children with disabilities) has been
revised to clarify that the term means
children with disabilities enrolled by
their parents in private, including
religious, schools or facilities, that meet
the definition of elementary school in
§ 300.13 or secondary school in
§ 300.36.
• A new § 300.131(f), regarding child
find for out-of-State parentally-placed
private school children with disabilities,
has been added to clarify that each LEA
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in which private (including religious)
elementary schools and secondary
schools are located must include
parentally-placed private school
children who reside in a State other
than the State in which the private
schools that they attend are located.
• Section 300.133, regarding
expenditures for parentally-placed
private school children with disabilities,
has been revised, as follows:
(1) A new § 300.133(a)(2)(ii), has been
added to clarify that children aged three
through five are considered to be
parentally-placed private school
children with disabilities enrolled by
their parents in private, including
religious, elementary schools, if they are
enrolled in a private school that meets
the definition of elementary school in
§ 300.13.
(2) A new § 300.133(a)(3) has been
added to specify that, if an LEA has not
expended for equitable services for
parentally-placed private school
children with disabilities all of the
applicable funds described in
§ 300.133(a)(1) and (a)(2) by the end of
the fiscal year for which Congress
appropriated the funds, the LEA must
obligate the remaining funds for special
education and related services
(including direct services) to parentally-
placed private school children with
disabilities during a carry-over period of
one additional year.
• Section 300.136, regarding
compliance related to parentally-placed
private school children with disabilities,
has been revised to remove the
requirement that private school officials
must submit complaints to the SEA
using the procedures in §§ 300.151
through 300.153.
• Section 300.138(a), regarding the
requirement that services to parentally-
placed private school children with
disabilities must be provided by
personnel meeting the same standards
as personnel providing services in the
public schools, has been modified to
clarify that private elementary school
and secondary school teachers who are
providing equitable services to
parentally-placed private school
children with disabilities do not have to
meet the highly qualified special
education teacher requirements in
§ 300.18.
• Section 300.140, regarding due
process complaints and State
complaints, has been revised to make
the following changes:
(1) Section 300.140(b)(1) (proposed
§ 300.140(a)(2)), regarding child find
complaints, has been changed to clarify
that the procedures in §§ 300.504
through 300.519 apply to complaints
that an LEA has failed to meet the child
find requirements in § 300.131,
including the requirements in
§§ 300.301 through 300.311.
(2) A new paragraph (b)(2) has been
added to provide that any due process
complaint regarding the child find
requirements (as described in
§ 300.140(b)(1)) must be filed with the
LEA in which the private school is
located and a copy of the complaint
must be forwarded to the SEA.
(3) A new § 300.140(c), regarding
State complaints by private school
officials, has been added to clarify that
(A) any complaint that an SEA or LEA
has failed to meet the requirements in
§§ 300.132 through 300.135 and 300.137
through 300.144 must be filed in
accordance with the procedures
described in §§ 300.151 through
300.153, and (B) a complaint filed by a
private school official under
§ 300.136(a) must be filed with the SEA
in accordance with the procedures in
§ 300.136(b).
Children With Disabilities Enrolled by
Their Parents in Private Schools When
FAPE Is at Issue
Section 300.148 Placement of Children
by Parents if FAPE Is at Issue
• A new § 300.148(b), regarding
disagreements about FAPE, has been
added (from current § 300.403(b)) to
clarify that disagreements between a
parent and a public agency regarding
the availability of a program appropriate
for a child with a disability, and the
question of financial reimbursement, are
subject to the due process procedures in
§§ 300.504 through 300.520.
State Complaint Procedures
• Section 300.152(a)(3)(ii) (proposed
paragraph (a)(3)(B)) has been revised to
clarify that each SEA’s complaint
procedures must provide the public
agency with an opportunity to respond
to a complaint filed under § 300.153,
including, at a minimum, an
opportunity for a parent who has filed
a complaint and the public agency to
voluntarily engage in mediation
consistent with § 300.506.
• Section 300.152(b)(1)(ii), regarding
time extensions for filing a State
complaint, has been revised to clarify
that it would be permissible to extend
the 60-day timeline if the parent (or
individual or organization if mediation
or other alternative means of dispute
resolution is available to the individual
or organization under State procedures)
and the public agency agree to engage in
mediation or to engage in other
alternative means of dispute resolution,
if available in the State.
• Section 300.152(c), regarding
complaints filed under § 300.152 and
due process hearings under § 300.507
and §§ 300.530 through 300.532, has
been revised to clarify that if a written
complaint is received that is also the
subject of a due process hearing under
§§ 300.507 or 300.530 through 300.532,
or contains multiple issues of which one
or more are part of a due process
hearing, the State must set aside any
part of the complaint that is being
addressed in the due process hearing
until the conclusion of the hearing.
However, any issue in the complaint
that is not part of the due process
hearing must be resolved using the time
limit and procedures described
elsewhere in the State complaint
procedures. A new paragraph (c)(3) also
has been added to require SEAs to
resolve complaints alleging a public
agency’s failure to implement a due
process hearing. This is the same
requirement in current § 300.661(c)(3).
• Section 300.153(c), regarding the
one year time limit from the date the
alleged violation occurred and the date
the complaint is received in accordance
with § 300.151, has been revised by
removing the exception clause related to
complaints covered under
§ 300.507(a)(2).
Methods of Ensuring Services
• Section 300.154(d), regarding
children with disabilities who are
covered by public benefits or insurance,
has been revised to clarify that the
public agency must (1) obtain parental
consent each time that access to the
parent’s public benefits or insurance is
sought, and (2) notify parents that
refusal to allow access to their public
benefits or insurance does not relieve
the public agency of its responsibility to
ensure that all required services are
provided at no cost to the parents.
Additional Eligibility Requirements
• Section 300.156(e), regarding
personnel qualifications, has been
revised (1) to add ‘‘or a class of
students,’’ to clarify that a judicial
action on behalf of a class of students
may not be filed for failure of a
particular SEA or LEA employee to be
highly qualified, and (2) to substitute
the word ‘‘employee’’ for ‘‘staff person,’’
to be more precise in the rule of
construction in new § 300.18(f)
(proposed § 300.18(e)).
• Section 300.160 (participation in
assessments) has been removed, and the
section has been designated as
‘‘Reserved.’’ Participation in
assessments is the subject of a new
notice of proposed rulemaking issued
on December 15, 2005 (70 FR 74624) to
amend the regulations governing
programs under Title I of the ESEA and
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Part B of the IDEA regarding additional
flexibility for States to measure the
achievement of children with
disabilities based on modified
achievement standards.
Other Provisions Required for State
Eligibility
• Section 300.172, regarding access to
instructional materials, has been
revised: (1) To make clear that States
must adopt the National Instructional
Materials Accessibility Standard
(NIMAS), published as Appendix C to
these final regulations; (2) to establish a
definition of ‘‘timely manner,’’ for
purposes of § 300.172(b)(2) and (b)(3) if
the State is not coordinating with the
National Instructional Materials Access
Center (NIMAC), or § 300.172(b)(3) and
(c)(2) if the State is coordinating with
the NIMAC; (3) to add a new
§ 300.172(b)(4) to require SEAs to
ensure that all public agencies take all
reasonable steps to provide instructional
materials in accessible formats to
children with disabilities who need
those instructional materials at the same
time as other children receive
instructional materials; and (4) to add a
new § 300.172(e)(2) to clarify, that all
definitions in § 300.172(e)(1) apply to
each State and LEA, whether or not the
State or LEA chooses to coordinate with
the NIMAC.
• A new § 300.177 has been added to
include a provision regarding ‘‘States’
sovereign immunity.’’ That provision,
which has been added to incorporate
the language in section 604 of the Act,
makes clear that a State that accepts
funds under Part B of the Act waives its
immunity under the 11th amendment of
the Constitution of the United States
from suit in Federal court for a violation
of Part B of the Act.
Subpart D—Evaluations, Eligibility
Determinations, Individualized
Education Programs, and Educational
Placements
Parental Consent
• Section 300.300, regarding parental
consent, has been revised, as follows:
(1) Paragraph (a) of § 300.300,
regarding consent for initial evaluation,
has been changed to provide that the
public agency proposing to conduct an
initial evaluation to determine if a child
qualifies as a child with a disability
must, after providing notice consistent
with §§ 300.503 and 300.504, obtain
informed consent, consistent with
§ 300.9, from the parent of the child
before conducting the evaluation. A new
paragraph (a)(1)(iii) has been added to
require a public agency to make
reasonable efforts to obtain the informed
consent from the parent for an initial
evaluation.
(2) Section 300.300(a)(3), regarding a
parent’s failure to provide consent for
initial evaluation, has been changed to
clarify, in a new paragraph (a)(3)(ii), that
the public agency does not violate its
obligation under § 300.111 and
§§ 300.301 through 300.311 if it declines
to pursue the evaluation.
(3) Section 300.300(b), regarding
parental consent for services, has been
modified by a new paragraph (b)(2) that
requires a public agency to make
reasonable efforts to obtain informed
consent from the parent for the initial
provision of special education and
related services.
(4) Section 300.300(c)(1), regarding
parental consent for reevaluations, has
been modified to clarify that if a parent
refuses to consent to a reevaluation, the
public agency may, but is not required
to, pursue the reevaluation by using the
consent override procedures in
§ 300.300(a)(3), and the public agency
does not violate its obligation under
§ 300.111 and §§ 300.301 through
300.311 if it declines to pursue the
evaluation or reevaluation.
(5) A new § 300.300(d)(4) has been
added to provide that if a parent of a
child who is home schooled or placed
in a private school by the parent at the
parent’s expense, does not provide
consent for an initial evaluation or a
reevaluation, or the parent fails to
respond to a request to provide consent,
the public agency (A) may not use the
consent override procedures (described
elsewhere in § 300.300), and (B) is not
required to consider the child eligible
for services under the requirements
relating to parentally-placed private
school children with disabilities
(§§ 300.132 through 300.144).
(6) A new § 300.300(d)(5) has been
added to clarify that in order for a
public agency to meet the reasonable
efforts requirement to obtain informed
parental consent for an initial
evaluation, initial services, or a
reevaluation, a public agency must
document its attempts to obtain parental
consent using the procedures in
§ 300.322(d).
Additional Procedures for Evaluating
Children With Specific Learning
Disabilities (SLD)
• Section 300.307 (Specific learning
disabilities) has been revised, as
follows:
(1) Proposed paragraph (a)(1) of
§ 300.307, which allowed a State to
prohibit the use of a severe discrepancy
between intellectual ability and
achievement for determining if a child
has an SLD, has been removed, and
proposed paragraph (a)(2) of § 300.307
has been redesignated as paragraph
(a)(1).
(2) Section 300.307(a)(2) (proposed
paragraph (a)(3)) has been changed to
clarify that the criteria adopted by the
State must permit the use of a process
based on the child’s response to
scientific, research-based intervention.
• Section 300.308 (Group members)
has been changed to require the
eligibility group for children suspected
of having SLD to include the child’s
parents and a team of qualified
professionals, which must include the
child’s regular teacher (or if the child
does not have a regular teacher, a
regular classroom teacher qualified to
teach a child of his or her age) or for a
child of less than school age, an
individual qualified by the SEA to teach
a child of his or her age; and at least one
person qualified to conduct individual
diagnostic examinations of children,
such as a school psychologist, speech-
language pathologist, or remedial
reading teacher. These are the same
requirements in current § 300.540.
• Section 300.309 (Determining the
existence of a specific learning
disability) has been revised, as follows:
(1) Paragraph (a) of § 300.309 has been
changed (A) to clarify that the group
described in 300.306 may determine
that a child has a specific learning
disability if the child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards in
one or more of eight areas (e.g., oral
expression, basic reading skill, etc.),
when provided with learning
experiences and instruction appropriate
for the child’s age or State-approved
grade-level standards; and (B) to add
‘‘limited English proficiency’’ to the
other five conditions that could account
for the child’s learning problems, and
that the group considers in determining
whether the child has an SLD.
(2) Section 300.309(b) has been
changed to clarify (A) that, in order to
ensure that underachievement in a child
suspected of having an SLD is not due
to lack of appropriate instruction in
reading or math, the group must
consider, as part of the evaluation
described in §§ 300.304 through
300.306, data that demonstrate that
prior to, or as a part of, the referral
process, the child was provided
appropriate instruction in regular
education settings, delivered by
qualified personnel, and (B) to replace
(in paragraph (b)(1)) the term ‘‘high
quality research-based instruction’’ with
‘‘appropriate instruction.’’
(3) Section 300.309(c) has been
changed to provide that the public
agency must promptly request parental
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consent to evaluate a child suspected of
having an SLD who has not made
adequate progress after an appropriate
period of time when provided
appropriate instruction, and whenever a
child is referred for an evaluation.
• Section 300.310, regarding
Observation, has been revised, as
follows:
(1) Paragraph (a) of proposed
§ 300.310 has been revised (A) to
remove the phrase ‘‘trained in
observation, and (B) to specify that the
public agency must ensure that the
child is observed in the child’s learning
environment.
(2) A new § 300.310(b) has been
added to require the eligibility group to
decide to (A) use information obtained
from an observation in routine
classroom instruction and monitoring of
the child’s performance that was done
before the child was referred for an
evaluation, or (B) have at least one
member of the group described in
§ 300.306(a)(1) conduct an observation
of the child’s academic performance in
the regular classroom after the child has
been referred for an evaluation and
parental consent is obtained.
Paragraph (b) of proposed § 300.310
has been redesignated as new
§ 300.310(c).
• Section 300.311 (Written report) has
been renamed ‘‘Specific documentation
for the eligibility determination,’’ and
has been revised, as follows:
(1) Section 300.311(a)(5), regarding
whether the child does not achieve
commensurate with the child’s age, has
been modified and expanded to add
whether the child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards
consistent with § 300.309(a)(1), and (A)
the child does not make sufficient
progress to meet age or to meet State-
approved grade-level standards
consistent with § 300.309(a)(2)(i), or (B)
the child exhibits a pattern of strengths
and weaknesses in performance,
achievement, or both, relative to age,
State-approved grade level standards or
intellectual development consistent
with § 300.309(a)(2)(ii).
(2) Proposed § 300.311(a)(6), regarding
whether there are strengths or
weaknesses or both in performance or
achievement or both relative to
intellectual development, has been
removed.
(3) A new § 300.311(a)(6) has been
added to clarify that the documentation
must include a statement of the
determination of the group concerning
the effects of visual, hearing, or motor
disability, mental retardation, emotional
disturbance, cultural factors,
environmental or economic
disadvantage, or limited English
proficiency on the child’s achievement
level.
(4) A new § 300.311(a)(7) has been
added to provide that if the child has
participated in a process that assesses
the child’s response to scientific,
research-based intervention, the
documentation must include the
instructional strategies used and the
student-centered data collected, and
documentation that the child’s parents
were notified about (A) the State’s
policies regarding the amount and
nature of student performance data that
would be collected and the general
education services that would be
provided, (B) strategies for increasing
the child’s rate of learning, and (C) the
parents’ right to request an evaluation.
Individualized Education Programs
• Section 300.320 (Definition of IEP)
has been revised in paragraph (a)(5) to
replace ‘‘regular education
environment’’ with ‘‘regular class,’’ in
order to be consistent with the language
in the Act.
• Section 300.321(e), regarding
attendance at IEP Team meetings, has
been revised to clarify that the excusal
of IEP Team members from attending an
IEP Team meeting under certain
circumstances, refers to the IEP Team
members in § 300.320(a)(2) through
(a)(5).
• Section 300.322, regarding parent
participation, has been revised to: (1)
Include, in § 300.322(d), examples of the
records a public agency must keep of its
attempts to involve the parents in IEP
meetings; (2) add a new § 300.322(e),
which requires the public agency to take
whatever action is necessary to ensure
that the parent understands the
proceedings of the IEP meeting,
including arranging for an interpreter
for parents with deafness or whose
native language is other than English;
and (3) redesignate paragraph (e) as
paragraph (f) accordingly.
• Section 300.323(d) has been revised
to require public agencies to ensure that
each regular teacher, special education
teacher, related services provider, and
any other service provider who is
responsible for the implementation of a
child’s IEP, is informed of his or her
specific responsibilities related to
implementing the child’s IEP and the
specific accommodations,
modifications, and supports that must
be provided for the child in accordance
with the child’s IEP. These are the same
requirements in current
§ 300.342(b)(3)(i) and (b)(3)(ii).
• Section 300.323(e), regarding IEPs
for children who transfer public
agencies, has been revised to: (1) Divide
the provision into three separate
paragraphs (§ 300.323(e), (f), and (g)) for
purposes of clarity and improved
readability (e.g., transfers within the
same State, transfers from another State,
and transmittal of records); (2) adopt
‘‘school year’’ in lieu of ‘‘academic
year’’ as the term commonly used by
parents and public agencies; and (3)
adopt other modifiers (e.g., ‘‘new’’ and
‘‘previous’’) to distinguish between
States and public agencies that are
involved in transfers by children with
disabilities.
• Section 300.324(a)(4), regarding
changes to an IEP after the annual IEP
meeting for a school year, has been
restructured into two paragraphs, and a
new paragraph (a)(4)(ii) has been added
to require the public agency to ensure
that, if changes are made to a child’s IEP
without an IEP meeting, that the child’s
IEP Team is informed of the changes.
• Section 300.324(b), regarding the
review and revision of IEPs, has been
changed to include a new paragraph
(b)(2), to clarify that, in conducting a
review of a child’s IEP, the IEP Team
must consider the same special factors
it considered when developing the
child’s IEP.
Subpart E—Procedural Safeguards
• Section 300.502, regarding
independent educational evaluations,
has been revised, as follows:
(1) A new § 300.502(b)(5) has been
added to make clear that a parent is
entitled to only one independent
educational evaluation at public
expense each time the public agency
conducts an evaluation with which the
parent disagrees.
(2) Section 300.502(c) has been
changed to clarify that if a parent
obtains an independent evaluation at
public expense or shares with the public
agency an evaluation obtained at private
expense, the public agency must
consider the evaluation, if it meets
agency criteria, in any decision made
with respect to the provision of FAPE to
the child.
• Section 300.504 (Procedural
safeguards notice) has been revised, as
follows:
(1) Paragraph (a)(2) of § 300.504 has
been changed to add that a copy of the
procedural safeguards notice must be
given upon receipt of the first due
process complaint under § 300.507 in a
school year, as well as upon receipt of
the first State complaint under § 300.151
through 300.153.
(2) A new § 300.504(a)(3) has been
added to provide that the notice must be
given to the parents of a child with a
disability in accordance with the
discipline procedures in § 300.530(h).
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• Section 300.506(b), regarding the
requirements for mediation, has been
revised by (1) removing the provision
about the ‘‘confidentiality pledge,’’ in
proposed paragraph (b)(9), because it is
no longer required under the Act, and
(2) changing paragraph (b)(8), regarding
the prohibition against using
discussions that occur in the mediation
process, to clarify that ‘‘civil
proceedings’’ includes any Federal court
or State court of a State receiving
assistance under this part.
• Section 300.509, regarding model
forms to assist parents and public
agencies in filing due process
complaints and parents and other
parties in filing State complaints, has
been revised to add, with respect to due
process complaints, ‘‘public agencies,’’
and with respect to State complaints,
‘‘other parties,’’ as well as parents, and
to clarify that (1) while each SEA must
develop model forms, the SEA or LEA
may not require the use of the forms,
and (2) parents, public agencies, and
other parties may either use the
appropriate model form, or another form
or other document, so long as the form
or document meets, as appropriate, the
requirements for filing a due process
complaint or a State complaint.
• Section 300.510 (Resolution
process) has been revised, as follows:
(1) Section 300.510(b)(1), regarding
the resolution period, has been changed
to state that a due process hearing ‘‘may
occur’’ (in lieu of ‘‘must occur’’) by the
end of the resolution period, if the
parties have not resolved the dispute
that formed the basis for the due process
complaint.
(2) A new § 300.510(b)(3) has been
added to provide that, except where the
parties have jointly agreed to waive the
resolution process or to use mediation
(notwithstanding § 300.510(b)(1) and
(2)), the failure of a parent filing a due
process complaint to participate in the
resolution meeting will delay the
timelines for the resolution process and
due process hearing until the meeting is
held.
(3) A new § 300.510(b)(4) has been
added to provide that if an LEA is
unable to obtain the participation of the
parent in the resolution meeting after
reasonable efforts have been made, and
documented using the procedures in
§ 300.322(d), the LEA may, at the
conclusion of the 30-day resolution
period, request that a hearing officer
dismiss the parent’s due process
complaint.
(4) A new paragraph (b)(5) of
§ 300.510 has been added to provide
that, if the LEA fails to hold the
resolution meeting within 15 days of
receiving notice of a parent’s due
process complaint or fails to participate
in the resolution meeting, the parent
may seek the intervention of a hearing
officer to begin the due process hearing
timelines.
(5) A new § 300.510(c) (Adjustments
to the 30-day resolution period) has
been added that specifies exceptions to
the 30-day resolution period (e.g., (A)
both parties agree in writing to waive
the resolution meeting; (B) after either
the mediation or resolution meeting
starts but before the end of the 30-day
period, the parties agree in writing that
no agreement is possible; or (C) if both
parties agree in writing to continue the
mediation at the end of the 30-day
resolution period, but later, the parent
or public agency withdraws from the
mediation process). Subsequent
paragraphs have been renumbered
accordingly.
(6) Paragraph (d)(2) of § 300.510
(proposed paragraph(c)(2)), regarding
the enforceability of a written settlement
agreement in any State court of
competent jurisdiction or in a district
court of the United States, has been
expanded to add the SEA, if the State
has other mechanisms or procedures
that permit parties to seek enforcement
of resolution agreements, pursuant to a
new § 300.537.
• Section 300.513(a) (Decision of
hearing officer) has been revised by (1)
changing the paragraph title to read
‘‘Decision of hearing officer on the
provision of FAPE,’’ and (2) clarifying
that a hearing officer’s determination of
whether a child received FAPE must be
based on substantive grounds.
• Section 300.515(a), regarding
timelines and convenience of hearings
and reviews, has been revised to include
a specific reference to the adjusted time
periods described in § 300.510(c).
• Section 300.516(b), regarding the
90-day time limitation from the date of
the decision of the hearing to file a civil
action, has been revised to provide that
the 90-day period begins from the date
of the decision of the hearing officer or
the decision of the State review official.
• Section 300.518 (Child’s status
during proceedings) has been revised by
adding a new paragraph (c), which
provides that if a complaint involves an
application for initial services under
this part from a child who is
transitioning from Part C of the Act to
Part B and is no longer eligible for Part
C services because the child has turned
3, the public agency is not required to
provide the Part C services that the
child had been receiving. If the child is
found eligible for special education and
related services under Part B and the
parent consents to the initial provision
of special education and related services
under § 300.300(b), then the public
agency must provide those special
education and related services that are
not in dispute between the parent and
the public agency.
• Section 300.520(b), regarding a
special rule about the transfer of
parental rights at the age of majority, has
been revised to more clearly state that
a State must establish procedures for
appointing the parent of a child with a
disability, or if the parent is not
available, another appropriate
individual, to represent the educational
interests of the child throughout the
child’s eligibility under Part B of the Act
if, under State law, a child who has
reached the age of majority, but has not
been determined to be incompetent, can
be determined not to have the ability to
provide informed consent with respect
to the child’s educational program.
Discipline Procedures
• Section 300.530(d)(1)(i), regarding
services, has been revised to be
consistent with section 615(k)(1)(D)(i) of
the Act, by adding a reference to the
FAPE requirements in § 300.101(a).
• Section 300.530(d)(4), regarding the
removal of a child with a disability from
the child’s current placement for 10
school days in the same school year, has
been revised to remove the reference to
school personnel, in consultation with
at least one of the child’s teachers,
determining the location in which
services will be provided.
• Section 300.530(d)(5), regarding
removals that constitute a change of
placement under § 300.536, has been
revised to remove the reference to the
IEP Team determining the location in
which services will be provided.
• A new § 300.530(e)(3), has been
added to provide that, if the LEA, the
parent, and members of the child’s IEP
Team determine that the child’s
behavior was the direct result of the
LEA’s failure to implement the child’s
IEP, the LEA must take immediate steps
to remedy those deficiencies.
• Section 300.530(h), regarding
notification, has been changed to
specify that, on the date on which a
decision is made to make a removal that
constitutes a change in the placement of
a child with a disability because of a
violation of a code of student conduct,
the LEA must notify the parents of that
decision, and provide the parents the
procedural safeguards notice described
in § 300.504.
• Section 300.532 (Appeal) has been
revised, as follows:
(1) Paragraph (a) of § 300.532,
regarding the conditions in which the
parent of a child with a disability or an
LEA may request a hearing, has been
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modified to clarify that the hearing is
requested by filing a complaint pursuant
to §§ 300.507 and 300.508(a) and (b).
(2) Section 300.532(b)(3) has been
changed to more definitively provide
that if the LEA believes that returning
the child to his or her original
placement is substantially likely to
result in injury to the child or others.
(3) Section 300.532(c)(3), regarding an
expedited due process hearing, has been
adjusted to provide that unless the
parents and an LEA agree in writing to
waive a resolution meeting, or agree to
use the mediation process described in
§ 300.506, the resolution meeting must
occur within seven days of receiving
notice of the due process complaint, and
the hearing may proceed within 15 days
of receipt of the due process complaint
unless the matter has been resolved to
satisfaction of both parties.
(4) Proposed § 300.532(c)(4), regarding
the two-day timeframe for disclosing
information to the opposing party prior
to an expedited due process hearing, has
been removed.
• Section 500.536(a)(2)(ii) (proposed
§ 300.536(b)(2)) has been revised to
remove the requirement that a child’s
behavior must have been a
manifestation of the child’s disability
before determining that a series of
removals constitutes a change in
placement under § 300.536. Paragraph
(a)(2)(ii) has also been amended to
reference the child’s behavior in
‘‘previous’’ incidents that resulted in the
series of removals.
• A new § 300.536(b) has been added
to clarify that the public agency (subject
to review through the due process and
judicial proceedings) makes the
determination, on a case-by-case basis,
whether a pattern of removals
constitutes a change in placement and
that the determination is subject to
review through due process and judicial
determinations.
• A new § 300.537 (State enforcement
mechanisms) has been added to clarify
that notwithstanding § 300.506(b)(7) and
§ 300.510(c)(2), which provide for
judicial enforcement of a written
agreement reached as a result of a
mediation or resolution meeting,
nothing in this part would prevent the
SEA from using other mechanisms to
seek enforcement of that agreement,
provided that use of those mechanisms
is not mandatory and does not delay or
deny a party the right to seek
enforcement of the written agreement in
a State court of competent jurisdiction
or in a district court of the United
States.
Subpart F—Monitoring, Enforcement,
Confidentiality, and Program
Information
Monitoring, Technical Assistance, and
Enforcement
• Section 300.600 (State monitoring
and enforcement) has been revised, as
follows:
(1) Section 300.600(a) has been
amended to require the State to enforce
Part B of the Act in accordance with
§ 300.604(a)(1) and (a)(3), (b)(2)(i) and
(b)(2)(v), and (c)(2).
(2) A new paragraph (d) has been
added, which provides that the State
must monitor the LEAs located in the
State, using quantifiable indicators in
each of the following priority areas, and
such qualitative indicators as are
needed to adequately measure
performance in those areas, including:
(A) Provision of FAPE in the least
restrictive environment; (B) State
exercise of general supervision,
including child find, effective
monitoring, the use of resolution
meetings, and a system of transition
services as defined in § 300.43 and in 20
U.S.C. 1437(a)(9); and (C)
disproportionate representation of racial
and ethnic groups in special education
and related services, to the extent the
representation is the result of
inappropriate identification.
• A new § 300.601(b)(2), regarding
State use of targets and reporting, has
been added to specify that, if permitted
by the Secretary, if a State collects data
on an indicator through State
monitoring or sampling, the State must
collect data on the indicator at least
once during the period of the State
performance plan.
• A new § 300.608(b), regarding State
enforcement, has been added to specify
that States are not restricted from
utilizing any other authority available to
them to monitor and enforce the
requirements of Part B of the Act.
Confidentiality of Information
• Section 300.622 (Consent) has been
restructured and revised to more
accurately reflect the Department’s
policy regarding when parental consent
is required for disclosures of personally
identifiable information, as follows:
(1) Paragraph (a) of § 300.622 has been
changed to provide that parental
consent must be obtained before
personally identifiable information is
disclosed to parties other than officials
of participating agencies, unless the
information is contained in education
records, and the disclosure is authorized
without parental consent under the
regulations for the Family Educational
Rights and Privacy Act (FERPA, 34 CFR
part 99).
(2) A new § 300.622(b)(1) has been
added to clarify that parental consent is
not required before personally
identifiable information is released to
officials of participating agencies for
purposes of meeting a requirement of
Part B of the Act or these regulations.
(3) A new § 300.622(b)(2) has been
added to provide that parental consent
must be obtained before personally
identifiable information is released to
officials of participating agencies that
provide or pay for transition services.
(4) A new paragraph (b)(3) has been
added to require that, with respect to
parentally-placed private school
children with disabilities, parental
consent must be obtained before any
personally identifiable information is
released between officials in the LEA
where the private school is located and
the LEA of the parent’s residence.
(5) Proposed § 300.622(c), regarding
the requirement to provide policies and
procedures for use in the event that a
parent refuses to consent, has been
removed because it is covered elsewhere
in these regulations.
Subpart G—Authorization, Allotment,
Use of Funds, and Authorization of
Appropriations
Allotments, Grants, and Use of Funds
• Section 300.701(a)(1)(ii)(A),
regarding the applicable requirements of
Part B of the Act that apply to freely
associated States, has been revised by
removing the five listed requirements
because those requirements did not
include all requirements that apply to
freely associated States. This change
clarifies that freely associated States
must meet the applicable requirements
that apply to States under Part B of the
Act.
• Section 300.704(c)(3)(i), regarding
the requirement to develop, annually
review, and revise (if necessary) a State
plan for the high cost fund, has been
revised to add a new paragraph (F) that
requires that if the State elects to reserve
funds for supporting innovative and
effective ways of cost sharing, it must
describe in its State plan how these
funds will be used.
• Section 300.706 (Allocation for
State in which by-pass is implemented
for parentally-placed private school
children with disabilities) has been
removed because it is no longer
applicable. The section has been
redesignated as ‘‘Reserved.’’
Secretary of the Interior
• Section 300.707 (Use of amounts by
Secretary of the Interior) has been
changed, as follows:
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(1) The definition of Tribal governing
body of a school has been replaced with
the definition of tribal governing body
from 25 U.S.C. 2021(19).
(2) Section 300.707(c), regarding an
additional requirement under ‘‘Use of
amounts by Secretary of the Interior,’’
has been revised to clarify that, with
respect to all other children aged 3 to
21, inclusive, on reservations, the SEA
of the State in which the reservation is
located must ensure that all the
requirements of Part B of the Act are
met.
• Section 300.713 (Plan for
coordination of services) has been
revised to require (1) in § 300.713(a), the
Secretary of the Interior to develop and
implement a plan for the coordination
of services for all Indian children with
disabilities residing on reservations
served by elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior, and (2) in § 300.713(b), the
plan to provide for the coordination of
services benefiting these children from
whatever source covered by the plan,
including SEAs, and State, local, and
tribal juvenile and adult correctional
facilities.
Analysis of Comments and Changes
Introduction
In response to the invitation in the
NPRM, more than 5,500 parties
submitted comments on the proposed
regulations. An analysis of the
comments and of the changes in the
regulations since publication of the
NPRM immediately follows this
introduction.
The perspectives of parents,
individuals with disabilities, teachers,
related services providers, State and
local officials, members of Congress,
and others were very important in
helping us to identify where changes to
the proposed regulations were
necessary, and in formulating many of
the changes. In light of the comments
received, a number of significant
changes are reflected in these final
regulations.
We discuss substantive issues under
the subpart and section to which they
pertain. References to subparts in this
analysis are to those contained in the
final regulations. The analysis generally
does not address—
(a) Minor changes, including
technical changes made to the language
published in the NPRM;
(b) Suggested changes the Secretary is
not legally authorized to make under
applicable statutory authority; and
(c) Comments that express concerns of
a general nature about the Department
or other matters that are not directly
relevant to these regulations, such as
requests for information about
innovative instructional methods or
matters that are within the purview of
State and local decision-makers.
Subpart A—General
Definitions Used in This Part
Applicability of This Part to State and
Local Agencies (§ 300.2)
Comment: None.
Discussion: Section § 300.2(c)(2)
contains an incorrect reference to
§ 300.148(b). The correct reference
should be to § 300.148.
Changes: We have removed the
reference to § 300.148(b) and replaced it
with a reference to § 300.148.
Assistive Technology Device (§ 300.5)
Comment: Some commenters opposed
the exclusion of surgically implanted
medical devices in the definition of
assistive technology device. Another
commenter recommended limiting the
definition of assistive technology device
to a device that is needed to achieve
educational outcomes, rather than
requiring local educational agencies
(LEAs) to pay for any assistive
technology device that increases,
maintains, or improves any functional
need of the child.
Discussion: The definition of assistive
technology device in § 300.5
incorporates the definition in section
602(1)(B) of the Act. We do not believe
the definition should be changed in the
manner suggested by the commenters
because the changes are inconsistent
with the statutory definition. The
definition in the Act specifically refers
to any item, piece of equipment, or
product system that is used to increase,
maintain, or improve the functional
capabilities of the child and specifically
excludes a medical device that is
surgically implanted or the replacement
of such device. Accordingly, we
continue to believe it is appropriate to
exclude surgically implanted medical
devices from this definition. In response
to the second comment, § 300.105(a)
requires each public agency to ensure
that assistive technology devices (or
assistive technology services, or both)
are made available to a child with a
disability if required as part of the
child’s special education, related
services, or supplementary aids and
services. This provision ties the
definition to a child’s educational
needs, which public agencies must meet
in order to ensure that a child with a
disability receives a free appropriate
public education (FAPE).
Changes: None.
Comment: One commenter requested
that the regulations clarify that an
assistive technology device is not
synonymous with an augmentative
communication device. A few
commenters recommended including
recordings for the blind and dyslexic
playback devices in the definition of
assistive technology devices. Some
commenters recommended including
language in the regulations clarifying
that medical devices used for breathing,
nutrition, and other bodily functions are
assistive technology devices.
Discussion: The definition of assistive
technology device does not list specific
devices, nor would it be practical or
possible to include an exhaustive list of
assistive technology devices. Whether
an augmentative communication device,
playback devices, or other devices could
be considered an assistive technology
device for a child depends on whether
the device is used to increase, maintain,
or improve the functional capabilities of
a child with a disability, and whether
the child’s individualized education
program (IEP) Team determines that the
child needs the device in order to
receive a free appropriate public
education (FAPE). However, medical
devices that are surgically implanted,
including those used for breathing,
nutrition, and other bodily functions,
are excluded from the definition of an
assistive technology device in section
602(1)(B) of the Act. The exclusion
applicable to a medical device that is
surgically implanted includes both the
implanted component of the device, as
well as its external components.
Changes: None.
Comment: A few commenters asked
whether the definition of assistive
technology device includes an internet-
based instructional program, and what
the relationship is between internet-
based instructional programs and
specially-designed instruction.
Discussion: An instructional program
is not a device, and, therefore, would
not meet the definition of an assistive
technology device. Whether an internet-
based instructional program is
appropriate for a particular child is
determined by the child’s IEP Team,
which would determine whether the
program is needed in order for the child
to receive FAPE.
Changes: None.
Comment: A few commenters
recommended including the proper
functioning of hearing aids in the
definition of assistive technology device.
Discussion: We believe that the
provision requiring public agencies to
ensure that hearing aids worn in school
are functioning properly is more
appropriately included in new § 300.113
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(proposed § 300.105(b)). As noted in the
Analysis of Comments and Changes
section discussing subpart B, we have
added a new § 300.113 to address the
routine checking (i.e., making sure they
are turned on and working) of hearing
aids and external components of
surgically implanted devices.
Changes: None.
Assistive Technology Service (§ 300.6)
Comment: One commenter requested
clarifying ‘‘any service’’ in the
definition of assistive technology
service.
Discussion: We believe the definition
is clear that an assistive technology
service is any service that helps a child
with a disability select an appropriate
assistive technology device, obtain the
device, or train the child to use the
device.
Changes: None.
Comment: One commenter stated that
services necessary to support the use of
playback devices for recordings for the
blind and dyslexic should be added to
the definition of assistive technology
service.
Discussion: A service to support the
use of recordings for the blind and
dyslexic on playback devices could be
considered an assistive technology
service if it assists a child with a
disability in the selection, acquisition,
or use of the device. If so, and if the
child’s IEP Team determines it is
needed for the child to receive FAPE,
the service would be provided. The
definition of assistive technology service
does not list specific services. We do not
believe it is practical or possible to
include an exhaustive list of assistive
technology services, and therefore,
decline to add the specific assistive
technology service recommended by the
commenter to the definition.
Changes: None.
Comment: One commenter
recommended evaluating all children
with speech or hearing disabilities to
determine if they can benefit from the
Federal Communications Commission’s
specialized telephone assistive services
for people with disabilities.
Discussion: Evaluations under section
614 of the Act are for the purpose of
determining whether a child has a
disability and because of that disability
needs special education and related
services, and for determining the child’s
special education and related services
needs. It would be inappropriate under
the Act to require evaluations for other
purposes or to require an evaluation for
telephone assistive services for all
children with speech and hearing
disabilities. However, if it was
determined that learning to use
telephone assisted services, was an
important skill for a particular child
(e.g., as part of a transition plan), it
would be appropriate to conduct an
evaluation of that particular child to
determine if the child needed
specialized instruction in order to use
such services.
Changes: None.
Comment: One commenter requested
that the definition of assistive
technology service specifically exclude a
medical device that is surgically
implanted, the optimization of device
functioning, maintenance of the device,
and the replacement of the device.
Discussion: The definition of related
services in § 300.34(b) specifically
excludes a medical device that is
surgically implanted, the optimization
of device functioning, maintenance of
the device, or the replacement of that
device. In addition, the definition of
assistive technology device in § 300.5
specifically excludes a medical device
that is surgically implanted and the
replacement of that device. We believe
it is unnecessary to repeat these
exclusions in the definition of assistive
technology service.
Changes: None.
Charter School (§ 300.7)
Comment: Several commenters
suggested that we include in the
regulations the definitions of terms that
are defined in other statutes. For
example, one commenter requested
including the definition of charter
school in the regulations.
Discussion: Including the actual
definitions of terms that are defined in
statutes other than the Act is
problematic because these definitions
may change over time (i.e., through
changes to statutes that establish the
definitions). In order for these
regulations to retain their accuracy over
time, the U.S. Department of Education
(Department) would need to amend the
regulations each time an included
definition that is defined in another
statute changes. The Department
believes that this could result in
significant confusion.
However, we are including the
current definition of charter school in
section 5210(1) of the ESEA here for
reference.
The term charter school means a
public school that:
1. In accordance with a specific State
statute authorizing the granting of
charters to schools, is exempt from
significant State or local rules that
inhibit the flexible operation and
management of public schools, but not
from any rules relating to the other
requirements of this paragraph [the
paragraph that sets forth the Federal
definition];
2. Is created by a developer as a
public school, or is adapted by a
developer from an existing public
school, and is operated under public
supervision and direction;
3. Operates in pursuit of a specific set
of educational objectives determined by
the school’s developer and agreed to by
the authorized public chartering agency;
4. Provides a program of elementary
or secondary education, or both;
5. Is nonsectarian in its programs,
admissions policies, employment
practices, and all other operations, and
is not affiliated with a sectarian school
or religious institution;
6. Does not charge tuition;
7. Complies with the Age
Discrimination Act of 1975, Title VI of
the Civil Rights Act of 1964, Title IX of
the Education Amendments of 1972,
Section 504 of the Rehabilitation Act of
1973, Title II of the Americans with
Disabilities Act of 1990, and Part B of
the Individuals with Disabilities
Education Act;
8. Is a school to which parents choose
to send their children, and that admits
students on the basis of a lottery, if more
students apply for admission than can
be accommodated;
9. Agrees to comply with the same
Federal and State audit requirements as
do other elementary schools and
secondary schools in the State, unless
such requirements are specifically
waived for the purpose of this program
[the Public Charter School Program];
10. Meets all applicable Federal,
State, and local health and safety
requirements;
11. Operates in accordance with State
law; and
12. Has a written performance
contract with the authorized public
chartering agency in the State that
includes a description of how student
performance will be measured in charter
schools pursuant to State assessments
that are required of other schools and
pursuant to any other assessments
mutually agreeable to the authorized
public chartering agency and the charter
school.
Changes: None.
Child With a Disability (§ 300.8)
General (§ 300.8(a))
Comment: Several commenters stated
that many children with fetal alcohol
syndrome (FAS) do not receive special
education and related services and
recommended adding a disability
category for children with FAS to help
solve this problem.
Discussion: We believe that the
existing disability categories in section
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602(3) of the Act and in these
regulations are sufficient to include
children with FAS who need special
education and related services. Special
education and related services are based
on the identified needs of the child and
not on the disability category in which
the child is classified. We, therefore, do
not believe that adding a separate
disability category for children with
FAS is necessary to ensure that children
with FAS receive the special education
and related services designed to meet
their unique needs resulting from FAS.
Changes: None.
Comment: Some commenters
suggested that the definition of child
with a disability be changed to ‘‘student
with a disability’’ and that the word
‘‘student,’’ rather than ‘‘child,’’ be used
throughout the regulations because
students over the age of 18 are not
children.
Discussion: Section 602(3) of the Act
defines child with a disability, not
student with a disability. Therefore, we
do not believe it is appropriate to
change the definition as requested by
the commenters. The words ‘‘child’’ and
‘‘student’’ are used throughout the Act
and we generally have used the word
‘‘child’’ or ‘‘children,’’ except when
referring to services and activities for
older students (e.g., transition services,
postsecondary goals).
Changes: None.
Comment: Some commenters
supported § 300.8(a)(2), which states
that if a child needs only a related
service and not special education, the
child is not a child with a disability
under the Act. Another commenter
recommended a single standard for the
provision of a related service as special
education, rather than allowing States to
determine whether a related service is
special education.
Discussion: Section 300.8(a)(2)(i)
states that if a child has one of the
disabilities listed in § 300.8(a)(1), but
only needs a related service, the child
is not a child with a disability under the
Act. However, § 300.8(a)(2)(ii) provides
that, if a State considers a particular
service that could be encompassed by
the definition of related services also to
be special education, then the child
would be determined to be a child with
a disability under the Act. We believe it
is important that States have the
flexibility to determine whether,
consistent with the definition of the
term special education in section
602(29) of the Act and new § 300.39
(proposed § 300.38), such a service
should be regarded as special education
and to identify a child who needs that
service as a child with a disability.
States are in the best position to
determine whether a service that is
included in the definition of related
services should also be considered
special education in that State.
Changes: None.
Comment: None.
Discussion: Section § 300.8(a)(2)(ii)
contains an incorrect reference to
§ 300.38(a)(2). The correct reference
should be to § 300.39(a)(2).
Changes: We have removed the
reference to § 300.38(a)(2) and replaced
it with a reference to § 300.39(a)(2).
Children Aged Three Through Nine
Experiencing Developmental Delays
(§ 300.8(b))
Comment: Several commenters
expressed support for allowing LEAs to
select a subset of the age range from
three through nine for their definition of
developmental delay. A few
commenters recommended clarifying
that States, not the LEAs, define the age
range of children eligible under this
category of developmental delay.
Discussion: Section 300.8(b) states
that the use of the developmental delay
category for a child with a disability
aged three through nine, or any subset
of that age range, must be made in
accordance with § 300.111(b). Section
300.111(b) gives States the option of
adopting a definition of developmental
delay, but does not require an LEA to
adopt and use the term. However, if an
LEA uses the category of developmental
delay, the LEA must conform to both the
State’s definition of the term and the age
range that has been adopted by the
State. If a State does not adopt the
category of developmental delay, an
LEA may not use that category as the
basis for establishing a child’s eligibility
for special education and related
services.
Based on the comments, it appears
that § 300.8(b) has been misinterpreted
as stating that LEAs are allowed to
establish the age range for defining
developmental delay independent of the
State. We believe it is important to
avoid such confusion and, therefore,
will modify § 300.8(b) to clarify the
provision.
Changes: For clarity, we have
removed the phrase, ‘‘at the discretion
of the State and LEA in accordance with
§ 300.111(b)’’ and replaced it with
‘‘subject to the conditions in
§ 300.111(b).’’
Deafness (§ 300.8(c)(3))
Comment: One commenter stated that
children who are hard of hearing are
often denied special education and
related services because the definition
of deafness includes the phrase,
‘‘adversely affects a child’s educational
performance,’’ which school district
personnel interpret to mean that the
child must be failing in school to
receive special education and related
services.
Discussion: As noted in the Analysis
of Comments and Changes section
discussing subpart B, we have clarified
in § 300.101(c) that a child does not
have to fail or be retained in a course
or grade in order to be considered for
special education and related services.
However, in order to be a child with a
disability under the Act, a child must
have one or more of the impairments
identified in section 602(3) of the Act
and need special education and related
services because of that impairment.
Given the change in § 300.101(c), we do
not believe clarification in § 300.8(c)(3)
is necessary.
Changes: None.
Emotional Disturbance (§ 300.8(c)(4))
Comment: Numerous commenters
requested defining or eliminating the
term ‘‘socially maladjusted’’ in the
definition of emotional disturbance
stating that there is no accepted
definition of the term, and no valid or
reliable instruments or methods to
identify children who are, or are not,
‘‘socially maladjusted.’’ Some
commenters stated that children who
need special education and related
services have been denied these
services, or have been inappropriately
identified under other disability
categories and received inappropriate
services because the definition of
emotional disturbance excludes
children who are socially maladjusted.
One commenter stated that using the
term ‘‘socially maladjusted’’ contributes
to the negative image of children with
mental illness and does a disservice to
children with mental illness and those
who seek to understand mental illness.
One commenter stated that emotional
disturbance is one of the most misused
and misunderstood disability categories
and is often improperly used to protect
dangerous and aggressive children who
violate the rights of others. The
commenter stated that the definition of
emotional disturbance is vague and
offers few objective criteria to
differentiate an emotional disability
from ordinary development, and
requires the exclusion of conditions in
which the child has the ability to
control his or her behavior, but chooses
to violate social norms.
One commenter recommended adding
autism to the list of factors in
§ 300.8(c)(4)(i)(A) that must be ruled out
before making an eligibility
determination based on emotional
disturbance. The commenter stated that
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many children with autism are
inappropriately placed in alternative
educational programs designed for
children with serious emotional and
behavioral problems.
Discussion: Historically, it has been
very difficult for the field to come to
consensus on the definition of
emotional disturbance, which has
remained unchanged since 1977. On
February 10, 1993, the Department
published a ‘‘Notice of Inquiry’’ in the
Federal Register (58 FR 7938) soliciting
comments on the existing definition of
serious emotional disturbance. The
comments received in response to the
notice of inquiry expressed a wide range
of opinions and no consensus on the
definition was reached. Given the lack
of consensus and the fact that Congress
did not make any changes that required
changing the definition, the Department
recommended that the definition of
emotional disturbance remain
unchanged. We reviewed the Act and
the comments received in response to
the NPRM and have come to the same
conclusion. Therefore, we decline to
make any changes to the definition of
emotional disturbance.
Changes: None.
Comment: One commenter suggested
that the regulations include a process to
identify children who are at risk for
having an emotional disturbance.
Discussion: We decline to include a
process to identify children who are at
risk for having an emotional
disturbance. A child who is at risk for
having any disability under the Act is
not considered a child with a disability
under § 300.8 and section 602(3) of the
Act and, therefore, is not eligible for
services under the Act.
Changes: None.
Mental Retardation (§ 300.8(c)(6))
Comment: One commenter suggested
using the term ‘‘intellectual disability’’
in place of ‘‘mental retardation’’ because
‘‘intellectual disability’’ is a more
acceptable term. The commenter also
stated that the definition of mental
retardation is outdated, and should,
instead, address a child’s functional
limitations in specific life areas.
Discussion: Section 602(3)(A) of the
Act refers to a ‘‘child with mental
retardation,’’ not a ‘‘child with
intellectual disabilities,’’ and we do not
see a compelling reason to change the
term. However, States are free to use a
different term to refer to a child with
mental retardation, as long as all
children who would be eligible for
special education and related services
under the Federal definition of mental
retardation receive FAPE.
We do not believe the definition of
mental retardation needs to be changed
because it is defined broadly enough in
§ 300.8(c)(6) to include a child’s
functional limitations in specific life
areas, as requested by the commenter.
There is nothing in the Act or these
regulations that would prevent a State
from including ‘‘functional limitations
in specific life areas’’ in a State’s
definition of mental retardation, as long
as the State’s definition is consistent
with these regulations.
Changes: None.
Multiple Disabilities (§ 300.8(c)(7))
Comment: One commenter asked why
the category of multiple disabilities is
included in the regulations when it is
not in the Act.
Discussion: The definition of multiple
disabilities has been in the regulations
since 1977 and does not expand
eligibility beyond what is provided for
in the Act. The definition helps ensure
that children with more than one
disability are not counted more than
once for the annual report of children
served because States do not have to
decide among two or more disability
categories in which to count a child
with multiple disabilities.
Changes: None.
Orthopedic Impairment (§ 300.8(c)(8))
Comment: One commenter requested
that the examples of congenital
anomalies in the definition of
orthopedic impairment in current
§ 300.7(c)(8) be retained.
Discussion: The examples of
congenital anomalies in current
§ 300.7(c)(8) are outdated and
unnecessary to understand the meaning
of orthopedic impairment. We,
therefore, decline to include the
examples in § 300.8(c)(8).
Changes: None.
Other Health Impairment (§ 300.8(c)(9))
Comment: We received a significant
number of comments requesting that we
include other examples of specific acute
or chronic health conditions in the
definition of other health impairment. A
few commenters recommended
including children with dysphagia
because these children have a
swallowing and feeding disorder that
affects a child’s vitality and alertness
due to limitations in nutritional intake.
Other commenters recommended
including FAS, bipolar disorders, and
organic neurological disorders.
Numerous commenters requested
including Tourette syndrome disorders
in the definition of other health
impairment because children with
Tourette syndrome are frequently
misclassified as emotionally disturbed.
A number of commenters stated that
Tourette syndrome is a neurological
disorder and not an emotional disorder,
yet children with Tourette syndrome
continue to be viewed as having a
behavioral or conduct disorder and,
therefore, do not receive appropriate
special education and related services.
Discussion: The list of acute or
chronic health conditions in the
definition of other health impairment is
not exhaustive, but rather provides
examples of problems that children
have that could make them eligible for
special education and related services
under the category of other health
impairment. We decline to include
dysphagia, FAS, bipolar disorders, and
other organic neurological disorders in
the definition of other health
impairment because these conditions
are commonly understood to be health
impairments. However, we do believe
that Tourette syndrome is commonly
misunderstood to be a behavioral or
emotional condition, rather than a
neurological condition. Therefore,
including Tourette syndrome in the
definition of other health impairment
may help correct the misperception of
Tourette syndrome as a behavioral or
conduct disorder and prevent the
misdiagnosis of their needs.
Changes: We have added Tourette
syndrome as an example of an acute or
chronic health problem in
§ 300.8(c)(9)(i).
Comment: A few commenters
expressed concern about determining a
child’s eligibility for special education
services under the category of other
health impairment based on conditions
that are not medically determined
health problems, such as ‘‘central
auditory processing disorders’’ or
‘‘sensory integration disorders.’’ One
commenter recommended that the
regulations clarify that ‘‘chronic or acute
health problems’’ refer to health
problems that are universally
recognized by the medical profession.
Discussion: We cannot make the
change requested by the commenters.
The determination of whether a child is
eligible to receive special education and
related services is made by a team of
qualified professionals and the parent of
the child, consistent with
§ 300.306(a)(1) and section 614(b)(4) of
the Act. The team of qualified
professionals and the parent of the child
must base their decision on careful
consideration of information from a
variety of sources, consistent with
§ 300.306(c). There is nothing in the Act
that requires the team of qualified
professionals and the parent to consider
only health problems that are
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universally recognized by the medical
profession, as requested by the
commenters. Likewise, there is nothing
in the Act that would prevent a State
from requiring a medical evaluation for
eligibility under other health
impairment, provided the medical
evaluation is conducted at no cost to the
parent.
Changes: None.
Comment: One commenter stated that
the category of other health impairment
is one of the most rapidly expanding
eligibility categories because the
definition is vague, confusing, and
redundant. The commenter noted that
the definition of other health
impairment includes terms such as
‘‘alertness’’ and ‘‘vitality,’’ which are
difficult to measure objectively.
Discussion: We believe that the
definition of other health impairment is
generally understood and that the group
of qualified professionals and the parent
responsible for determining whether a
child is a child with a disability are able
to use the criteria in the definition and
appropriately identify children who
need special education and related
services. Therefore, we decline to
change the definition.
Changes: None.
Specific Learning Disability
(§ 300.8(c)(10))
Comment: One commenter
recommended changing the definition
of specific learning disability to refer to
a child’s response to scientific, research-
based intervention as part of the
procedures for evaluating children with
disabilities, consistent with
§ 300.307(a). A few commenters
recommended aligning the definition of
specific learning disability with the
requirements for determining eligibility
in § 300.309.
One commenter recommended using
the word ‘‘disability,’’ instead of
‘‘disorder,’’ and referring to specific
learning disabilities as a ‘‘disability in
one or more of the basic psychological
processes.’’ A few commenters stated
that the terms ‘‘developmental aphasia’’
and ‘‘minimal brain dysfunction’’ are
antiquated and should be removed from
the definition. A few commenters
questioned using ‘‘imperfect ability’’ in
the definition because it implies that a
child with minor problems in listening,
thinking, speaking, reading, writing,
spelling, or calculating math could be
determined to have a specific learning
disability.
Discussion: The definition of specific
learning disability is consistent with the
procedures for evaluating and
determining the eligibility of children
suspected of having a specific learning
disability in §§ 300.307 through
300.311. We do not believe it is
necessary to repeat these procedures in
the definition of specific learning
disability.
Section 602(30) of the Act refers to a
‘‘disorder’’ in one or more of the basic
psychological processes and not to a
‘‘disability’’ in one or more of the basic
psychological processes. We believe it
would be inconsistent with the Act to
change ‘‘disorder’’ to ‘‘disability,’’ as
recommended by one commenter. We
do not believe that the terms
‘‘developmental aphasia’’ and ‘‘minimal
brain dysfunction’’ should be removed
from the definition. Although the terms
may not be as commonly used as
‘‘specific learning disability,’’ the terms
continue to be used and we see no harm
in retaining them in the definition. We
do not agree that the phrase ‘‘imperfect
ability’’ implies that a child has a minor
problem and, therefore, decline to
change this phrase in the definition of
specific learning disability.
Changes: None.
Comment: We received several
requests to revise the definition of
specific learning disability to include
specific disabilities or disorders that are
often associated with specific learning
disabilities, including Aspergers
syndrome, FAS, auditory processing
disorders, and nonverbal learning
disabilities.
Discussion: Children with many types
of disabilities or disorders may also
have a specific learning disability. It is
not practical or feasible to include all
the different disabilities that are often
associated with a specific learning
disability. Therefore, we decline to add
these specific disorders or disabilities to
the definition of specific learning
disability.
Changes: None.
Comment: A few commenters
suggested clarifying the word ‘‘cultural’’
in § 300.8(c)(10)(ii) to clarify that
cultural disadvantage or language
cannot be the basis for determining that
a child has a disability.
Discussion: We believe the term
‘‘cultural’’ is generally understood and
do not see a need for further
clarification. We also do not believe that
it is necessary to clarify that language
cannot be the basis for determining
whether a child has a specific learning
disability. Section 300.306(b)(1)(iii),
consistent with section 614(b)(5)(C) of
the Act, clearly states that limited
English proficiency cannot be the basis
for determining a child to be a child
with a disability under any of the
disability categories in § 300.8.
Changes: None.
Consent (§ 300.9)
Comment: Numerous commenters
noted that the regulations include the
terms ‘‘consent,’’ ‘‘informed consent,’’
‘‘agree,’’ and ‘‘agree in writing’’ and
asked whether all the terms have the
same meaning.
Discussion: These terms are used
throughout the regulations and are
consistent with their use in the Act. The
definition of consent requires a parent
to be fully informed of all information
relevant to the activity for which
consent is sought. The definition also
requires a parent to agree in writing to
an activity for which consent is sought.
Therefore, whenever consent is used in
these regulations, it means that the
consent is both informed and in writing.
The meaning of the terms ‘‘agree’’ or
‘‘agreement’’ is not the same as consent.
‘‘Agree’’ or ‘‘agreement’’ refers to an
understanding between the parent and
the public agency about a particular
question or issue, which may be in
writing, depending on the context.
Changes: None.
Comment: A few commenters
recommended adding a requirement to
the definition of consent that a parent be
fully informed of the reasons why a
public agency selected one activity over
another.
Discussion: We do not believe it is
necessary to include the additional
requirement recommended by the
commenter. The definition of consent
already requires that the parent be fully
informed of all the information relevant
to the activity for which consent is
sought.
Changes: None.
Comment: A few commenters
requested that the Department address
situations in which a child is receiving
special education services and the
child’s parent wants to discontinue
services because they believe the child
no longer needs special education
services. A few commenters stated that
public agencies should not be allowed
to use the procedural safeguards to
continue to provide special education
and related services to a child whose
parent withdraws consent for the
continued provision of special
education and related services.
Discussion: The Department intends
to propose regulations to permit parents
who previously consented to the
initiation of special education services,
to withdraw their consent for their child
to receive, or continue to receive,
special education services. Because this
is a change from the Department’s
longstanding policies and was not
proposed in the NPRM, we will provide
the public the opportunity to comment
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on this proposed change in a separate
notice of proposed rulemaking.
Changes: None.
Core Academic Subjects (§ 300.10)
Comment: A few commenters
suggested adding the definition of core
academic subjects from the ESEA to the
regulations and including any
additional subjects that are considered
core academic subjects for children in
the State in which the child resides.
Discussion: The definition of core
academic subjects in § 300.10,
consistent with section 602(4) of the
Act, is the same as the definition in
section 9101 of the ESEA. We believe it
is unnecessary to change the definition
to include additional subjects that
particular States consider to be core
academic subjects. However, there is
nothing in the Act or these regulations
that would prevent a State from
including additional subjects in its
definition of ‘‘core academic subjects.’’
Changes: None.
Comment: A few commenters
requested clarifying the definition of
core academic subjects for a secondary
school student when the student is
functioning significantly below the
secondary level.
Discussion: The definition of core
academic subjects does not vary for
secondary students who are functioning
significantly below grade level. The Act
focuses on high academic standards and
clear performance goals for children
with disabilities that are consistent with
the standards and expectations for all
children. As required in § 300.320(a),
each child’s IEP must include annual
goals to enable the child to be involved
in and make progress in the general
education curriculum, and a statement
of the special education and related
services and supplementary aids and
services to enable the child to be
involved and make progress in the
general education curriculum. It would,
therefore, be inconsistent and contrary
to the purposes of the Act for the
definition of core academic subjects to
be different for students who are
functioning below grade level.
Changes: None.
Comment: One commenter asked that
the core content area of ‘‘science’’ apply
to social sciences, as well as natural
sciences.
Discussion: We cannot change the
regulations in the manner recommended
by the commenter because the ESEA
does not identify ‘‘social sciences’’ as a
core academic subject. Neither does it
identify ‘‘social studies’’ as a core
academic subject. Instead, it identifies
specific core academic areas: History,
geography, economics, and civics and
government. The Department’s
nonregulatory guidance on ‘‘Highly
Qualified Teachers, Improving Teacher
Quality State Grants’’ (August 3, 2005)
explains that if a State issues a
composite social studies license, the
State must determine in which of the
four areas (history, geography,
economics, and civics and government),
if any, a teacher is qualified. (see
question A–20 in the Department’s
nonregulatory guidance available at
http://www.ed.gov/programs/
teacherqual/legislation.html#guidance).
Changes: None.
Day; Business Day; School Day
(§ 300.11)
Comment: A few commenters stated
that a partial day should be considered
a school day only if there is a safety
reason for a shortened day, such as a
two hour delay due to snow, and that
regularly scheduled half days should
not be considered a school day for
funding purposes. One commenter
stated that many schools count the time
on the bus, recess, lunch period, and
passing periods as part of a school day
for children with disabilities, and
recommended that the regulations
clarify that non-instructional time does
not count against a child’s instructional
day unless such times are counted
against the instructional day of all
children. One commenter recommended
the definition of school day include
days on which extended school year
(ESY) services are provided to children
with disabilities.
Discussion: The length of the school
day and the number of school days do
not affect the formula used to allocate
Part B funds to States. School day, as
defined in § 300.11(c)(1), is any day or
partial day that children are in
attendance at school for instructional
purposes. If children attend school for
only part of a school day and are
released early (e.g., on the last day
before summer vacation), that day
would be considered to be a school day.
Section 300.11(c)(2) already defines
school day as having the same meaning
for all children, including children with
and without disabilities. Therefore, it is
unnecessary for the regulations to
clarify that non-instructional time (e.g.,
recess, lunch) is not counted as
instructional time for a child with a
disability unless such times are counted
as instructional time for all children.
Consistent with this requirement, days
on which ESY services are provided
cannot be counted as a school day
because ESY services are provided only
to children with disabilities.
Changes: None.
Educational Service Agency (§ 300.12)
Comment: One commenter questioned
the accuracy of the citation, 20 U.S.C.
1401(5), as the basis for including
‘‘intermediate educational unit’’ in the
definition of educational service agency.
Discussion: The definition of
educational service agency is based on
the provisions in section 602(5) of the
Act. The definition was added by the
Amendments to the Individuals with
Disabilities Education Act in 1997, Pub.
L. 105–17, to replace the definition of
‘‘intermediate educational unit’’ (IEU) in
section 602(23) of the Act, as in effect
prior to June 4, 1997. Educational
service agency does not exclude entities
that were considered IEUs under prior
law. To avoid any confusion about the
use of this term, the definition clarifies
that educational service agency includes
entities that meet the definition of IEU
in section 602(23) of the Act as in effect
prior to June 4, 1997. We believe the
citation for IEU is consistent with the
Act.
Changes: None.
Comment: One commenter requested
that the regulations clarify that the
reference to the definition of
educational service agency in the
definition of local educational agency or
LEA in § 300.28 means that educational
service agencies (ESAs) and Bureau of
Indian Affairs (BIA) schools have full
responsibility and rights as LEAs under
all provisions of the Act, including
§ 300.226 (early intervening services).
Discussion: With respect to ESAs, we
believe that the provisions in § 300.12
and § 300.28 clarify that ESAs have full
responsibility and rights as LEAs,
including the provisions in § 300.226
related to early intervening services.
However, the commenter’s request
regarding BIA schools is inconsistent
with the Act. The definition of local
educational agency in § 300.28 and
section 602(19) of the Act, including the
provision on BIA funded schools in
section 602(19)(C) of the Act and in
§ 300.28(c), states that the term ‘‘LEA’’
includes an elementary school or
secondary school funded by the BIA,
‘‘but only to the extent that the
inclusion makes the school eligible for
programs for which specific eligibility is
not provided to the school in another
provision of law and the school does not
have a student population that is
smaller than the student population of
the LEA receiving assistance under the
Act with the smallest student
population.’’ Therefore, BIA schools do
not have full responsibility and rights as
LEAs under all provisions of the Act.
Changes: None.
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Excess Costs (§ 300.16)
Comment: One commenter stated that
an example on calculating excess costs
would be a helpful addition to the
regulations.
Discussion: We agree with the
commenter and will include an example
of calculating excess costs in Appendix
A to Part 300—Excess Costs
Calculation. In developing the example,
we noted that while the requirements in
§ 300.202 exclude debt service and
capital outlay in the calculation of
excess costs, the definition of excess
costs in § 300.16 does not mention this
exclusion. We believe it is important to
include this exclusion in the definition
of excess costs and will add language in
§ 300.16 to make this clear and
consistent with the requirements in
§ 300.202.
Changes: We have revised § 300.16(b)
to clarify that the calculation of excess
costs may not include capital outlay or
debt service. We have also added
Appendix A to Part 300—Excess Costs
Calculation that provides an example
and an explanation of how to calculate
excess costs under the Act. A reference
to Appendix A has been added in
§ 300.16(b).
Free Appropriate Public Education or
FAPE (§ 300.17)
Comment: One commenter stated that
the requirements in §§ 300.103 through
300.112 (Other FAPE Requirements)
should be included in the definition of
FAPE.
Discussion: The other FAPE
requirements in §§ 300.103 through
300.112 are included in subpart B of
these regulations, rather than in the
definition of FAPE in subpart A, to be
consistent with the order and structure
of section 612 of the Act, which
includes all the statutory requirements
related to State eligibility. The order and
structure of these regulations follow the
general order and structure of the
provisions in the Act in order to be
helpful to parents, State and LEA
personnel, and the public both in
reading the regulations, and in finding
the direct link between a given statutory
requirement and the regulation related
to that requirement.
Changes: None.
Comment: Some commenters stated
that the definition of FAPE should
include special education services that
are provided in conformity with a
child’s IEP in the least restrictive
environment (LRE), consistent with the
standards of the State educational
agency (SEA).
Discussion: The definition of FAPE in
§ 300.17 accurately reflects the specific
language in section 602(9) of the Act.
We believe it is unnecessary to change
the definition of FAPE in the manner
recommended by the commenters
because providing services in
conformity with a child’s IEP in the LRE
is implicit in the definition of FAPE.
Consistent with § 300.17(b), FAPE
means that special education and
related services must meet the standards
of the SEA and the requirements in Part
B of the Act, which include the LRE
requirements in §§ 300.114 through
300.118. Additionally, § 300.17(d)
provides that FAPE means that special
education and related services are
provided in conformity with an IEP that
meets the requirements in section
614(d) of the Act. Consistent with
section 614(d)(1)(i)(V) of the Act, the
IEP must include a statement of the
extent, if any, to which the child will
not participate with nondisabled
children in the regular education class.
Changes: None.
Comment: One commenter
recommended removing ‘‘including the
requirements of this part’’ in § 300.17(b)
because this phrase is not included in
the Act, and makes every provision in
Part B of the Act a component of FAPE.
Discussion: Section 300.17 is the same
as current § 300.13, which has been in
the regulations since 1977. We do not
believe that § 300.17 makes every
provision of this part applicable to
FAPE.
Changes: None.
Highly Qualified Special Education
Teachers (§ 300.18)
Comment: One commenter requested
including the definition of ‘‘highly
qualified teacher,’’ as defined in the
ESEA, in the regulations.
Discussion: The ESEA defines ‘‘highly
qualified’’ with regard to any public
elementary or secondary school teacher.
For the reasons set forth earlier in this
notice, we are not adding definitions
from other statutes to these regulations.
However, we will include the current
definition here for reference.
The term ‘‘highly qualified’’—
(A) When used with respect to any
public elementary school or secondary
school teacher teaching in a State,
means that—
(i) The teacher has obtained full State
certification as a teacher (including
certification obtained through
alternative routes to certification) or
passed the State teacher licensing
examination, and holds a license to
teach in such State, except that when
used with respect to any teacher
teaching in a public charter school, the
term means that the teacher meets the
requirements set forth in the State’s
public charter school law; and
(ii) The teacher has not had
certification or licensure requirements
waived on an emergency, temporary, or
provisional basis;
(B) When used with respect to—
(i) An elementary school teacher who
is new to the profession, means that the
teacher—
(I) Holds at least a bachelor’s degree;
and
(II) Has demonstrated, by passing a
rigorous State test, subject knowledge
and teaching skills in reading, writing,
mathematics, and other areas of the
basic elementary school curriculum
(which may consist of passing a State-
required certification or licensing test or
tests in reading, writing, mathematics,
and other areas of the basic elementary
school curriculum); or
(ii) A middle or secondary school
teacher who is new to the profession,
means that the teacher holds at least a
bachelor’s degree and has demonstrated
a high level of competency in each of
the academic subjects in which the
teacher teaches by—
(I) Passing a rigorous State academic
subject test in each of the academic
subjects in which the teacher teaches
(which may consist of a passing level of
performance on a State-required
certification or licensing test or tests in
each of the academic subjects in which
the teacher teaches); or
(II) Successful completion, in each of
the academic subjects in which the
teacher teaches, of an academic major,
a graduate degree, coursework
equivalent to an undergraduate
academic major, or advanced
certification or credentialing; and
(C) When used with respect to an
elementary, middle, or secondary school
teacher who is not new to the
profession, means that the teacher holds
at least a bachelor’s degree and—
(i) Has met the applicable standard in
clause (i) or (ii) of subparagraph (B),
which includes an option for a test; or
(ii) Demonstrates competence in all
the academic subjects in which the
teacher teaches based on a high
objective uniform State standard of
evaluation that—
(I) Is set by the State for both grade
appropriate academic subject matter
knowledge and teaching skills;
(II) Is aligned with challenging State
academic content and student academic
achievement standards and developed
in consultation with core content
specialists, teachers, principals, and
school administrators;
(III) Provides objective, coherent
information about the teacher’s
attainment of core content knowledge in
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the academic subjects in which a
teacher teaches;
(IV) Is applied uniformly to all
teachers in the same academic subject
and the same grade level throughout the
State;
(V) Takes into consideration, but not
be based primarily on, the time the
teacher has been teaching in the
academic subject;
(VI) Is made available to the public
upon request; and
(VII) May involve multiple, objective
measures of teacher competency.
Changes: None.
Comment: A few commenters
recommended defining the term
‘‘special education teacher.’’ Other
commenters recommended that States
define highly qualified special
education teachers and providers. One
commenter stated that the regulations
should define the role of the special
education teacher as supplementing and
supporting the regular education teacher
who is responsible for teaching course
content.
One commenter requested that the
regulations clarify that a special
education teacher who is certified as a
regular education teacher with an
endorsement in special education meets
the requirements for a highly qualified
special education teacher. Another
commenter recommended changing the
definition of a highly qualified special
education teacher so that States cannot
provide a single certification for all
areas of special education. One
commenter requested clarification
regarding the highly qualified special
education teacher standards for special
education teachers with single State
endorsements in the area of special
education. A few commenters
recommended clarifying that when a
State determines that a teacher is fully
certified in special education, this
means that the teacher is knowledgeable
and skilled in the special education area
in which certification is received. One
commenter recommended that teacher
qualifications and standards be
consistent from State to State.
Discussion: Section 300.18(b),
consistent with section 602(10)(B) of the
Act, provides that a highly qualified
special education teacher must have full
State special education certification
(including certification obtained
through alternative routes to
certification) or have passed the State
special education teacher licensing
examination and hold a license to teach
in the State; have not had special
education certification or licensure
requirements waived on an emergency,
temporary, or provisional basis; and
hold at least a bachelor’s degree. Except
to the extent addressed in § 300.18(c)
and (d), special education teachers who
teach core academic subjects must, in
addition to meeting these requirements,
demonstrate subject-matter competency
in each of the core academic subjects in
which the teacher teaches.
States are responsible for establishing
certification and licensing standards for
special education teachers. Each State
uses its own standards and procedures
to determine whether teachers who
teach within that State meet its
certification and licensing requirements.
Teacher qualifications and standards are
consistent from State to State to the
extent that States work together to
establish consistent criteria and
reciprocity agreements. It is not the role
of the Federal government to regulate
teacher certification and licensure.
Changes: None.
Comment: One commenter stated that
LEAs must train special education
teachers because most special education
teachers are not highly qualified upon
graduation from a college program. A
few commenters recommended that the
regulations encourage SEAs to require
coursework for both special education
and general education teachers in the
areas of behavior management and
classroom management. One commenter
recommended that the requirements for
special education teachers include
competencies in reading instruction and
in properly modifying and
accommodating instruction. Another
commenter supported training in
special education and related services
for general education teachers. One
commenter expressed support for
collaboration between special education
and regular education teachers. Some
commenters recommended requiring a
highly qualified general education
teacher teaching in a self-contained
special education classroom to work in
close collaboration with the special
education teacher assigned to those
children. Another commenter stated
that the definition of a highly qualified
special education teacher will be
meaningless if the training for teachers
is not consistent across States.
Discussion: Personnel training needs
vary across States and it would be
inappropriate for the regulations to
require training on specific topics.
Consistent with § 300.156 and section
612(a)(14) of the Act, each State is
responsible for ensuring that teachers,
related services personnel,
paraprofessionals, and other personnel
serving children with disabilities under
Part B of the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
required to serve children with
disabilities.
Changes: None.
Comment: One commenter
recommended that the regulations
include standards for highly qualified
special education paraprofessionals,
similar to the requirements under the
ESEA.
Discussion: Section § 300.156(b)
specifically requires the qualifications
for paraprofessionals to be consistent
with any State-approved or State-
recognized certification, licensing,
registration, or other comparable
requirements that apply to the
professional discipline in which those
personnel are providing special
education or related services.
In addition, the ESEA requires that
paraprofessionals, including special
education paraprofessionals who assist
in instruction in title I-funded programs,
have at least an associate’s degree, have
completed at least two years of college,
or meet a rigorous standard of quality
and demonstrate, through a formal State
or local assessment, knowledge of, and
the ability to assist in instruction in
reading, writing, and mathematics,
reading readiness, writing readiness, or
mathematics readiness, as appropriate.
Paraprofessionals in title I schools do
not need to meet these requirements if
their role does not involve instructional
support, such as special education
paraprofessionals who solely provide
personal care services. For more
information on the ESEA requirements
for paraprofessionals, see 34 CFR 200.58
and section 1119 of the ESEA, and the
Department’s nonregulatory guidance,
Title I Paraprofessionals (March 1,
2004), which can be found on the
Department’s Web site at: http://
www.ed.gov/policy/elsec/guid/
paraguidance.pdf.
We believe these requirements are
sufficient to ensure that children with
disabilities receive services from
paraprofessionals who are appropriately
and adequately trained. Therefore, we
decline to include additional standards
for paraprofessionals.
Changes: None.
Comment: Numerous commenters
requested clarification as to whether
early childhood and preschool special
education teachers must meet the highly
qualified special education teacher
standards. Several commenters stated
that requiring early childhood and
preschool special education teachers to
meet the highly qualified special
education teacher standards would
exceed statutory authority and
exacerbate the shortage of special
education teachers. A few commenters
supported allowing States to decide
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whether the highly qualified special
education teacher requirements apply to
preschool teachers.
Discussion: The highly qualified
special education teacher requirements
apply to all public elementary school
and secondary school special education
teachers, including early childhood or
preschool teachers if a State includes
the early childhood or preschool
programs as part of its elementary
school and secondary school system. If
the early childhood or preschool
program is not a part of a State’s public
elementary school and secondary school
system, the highly qualified special
education teacher requirements do not
apply.
Changes: None.
Comment: One commenter requested
clarification regarding the scope of the
highly qualified special education
teacher requirements for instructors
who teach core academic subjects in
specialized schools, such as schools for
the blind, and recommended that there
be different qualifications for instructors
who provide orientation and mobility
instruction or travel training for
children who are blind or visually
impaired.
One commenter requested adding
travel instructors to the list of special
educators who need to be highly
qualified. Some commenters
recommended adding language to
include certified and licensed special
education teachers of children with low
incidence disabilities as highly qualified
special education teachers. A few
commenters requested that the
requirements for teachers who teach
children with visual impairments
include competencies in teaching
Braille, using assistive technology
devices, and conducting assessments,
rather than competencies in core subject
areas. Some commenters requested more
flexibility in setting the standards for
teachers of children with visual
impairments and teachers of children
with other low incidence disabilities.
One commenter requested clarification
regarding the requirements for teachers
of children with low incidence
disabilities.
Discussion: Consistent with § 300.156
and section 612(a)(14) of the Act, it is
the responsibility of each State to ensure
that teachers and other personnel
serving children with disabilities under
Part B of the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
to serve children with disabilities,
including teachers of children with
visual impairments and teachers of
children with other low incidence
disabilities.
The highly qualified special
education teacher requirements apply to
all public school special education
teachers. There are no separate or
special provisions for special education
teachers who teach in specialized
schools, for teachers of children who are
blind and visually impaired, or for
teachers of children with other low
incidence disabilities and we do not
believe there should be because these
children should receive the same high
quality instruction from teachers who
meet the same high standards as all
other teachers and who have the subject
matter knowledge and teaching skills
necessary to assist these children to
achieve to high academic standards.
Changes: None.
Comment: One commenter requested
clarification on how the highly qualified
special education teacher requirements
impact teachers who teach children of
different ages. A few commenters
recommended adding a provision for
special education teachers who teach at
multiple age levels, similar to the
special education teacher who teaches
multiple subjects.
Discussion: The Act does not include
any special requirements for special
education teachers who teach at
multiple age levels. Teachers who teach
at multiple age levels must meet the
same requirements as all other special
education teachers to be considered
highly qualified. The clear intent of the
Act is to ensure that all children with
disabilities have teachers with the
subject matter knowledge and teaching
skills necessary to assist children with
disabilities achieve to high academic
standards. Therefore, we do not believe
there should be different requirements
for teachers who teach at multiple age
levels.
Changes: None.
Comment: One commenter
recommended including specific criteria
defining a highly qualified special
education literacy teacher.
Discussion: Under § 300.18(a), a
special education literacy teacher who
is responsible for teaching reading must
meet the ESEA highly qualified teacher
requirements including competency in
reading, as well as the highly qualified
special education teacher requirements.
We do not believe that further
regulation is needed as the Act leaves
teacher certification and licensing
requirements to States.
Changes: None.
Comment: Many commenters
expressed concern that the highly
qualified special education teacher
standards will make it more difficult to
recruit and retain special education
teachers. Some commenters stated that
most special education teachers will
need to hold more than one license or
certification to meet the highly qualified
special education teacher requirements
and that the time and expense needed
to obtain the additional licenses or
certifications is unreasonable. One
commenter stated that schools will have
to hire two or three teachers for every
one special education teacher, thereby
increasing education costs.
One commenter expressed concern
about losing special education teachers
who teach multiple subjects in
alternative education and homebound
programs because they will not meet the
highly qualified special education
teacher requirements. One commenter
expressed concern that the requirements
set a higher standard for teachers in self-
contained classrooms. Another
commenter stated that requiring special
education teachers in secondary schools
to be experts in all subjects is a burden
that elementary teachers do not have.
Discussion: The Department
understands the concerns of the
commenters. However, the clear
intention of the Act is to ensure that all
children with disabilities have teachers
with the subject-matter knowledge and
teaching skills necessary to assist
children with disabilities achieve to
high academic standards.
To help States and districts meet
these standards, section 651 of the Act
authorizes State Personnel Development
grants to help States reform and
improve their systems for personnel
preparation and professional
development in early intervention,
educational, and transition services in
order to improve results for children
with disabilities. In addition, section
662 of the Act authorizes funding for
institutions of higher education, LEAs,
and other eligible local entities to
improve or develop new training
programs for teachers and other
personnel serving children with
disabilities.
Changes: None.
Comment: One commenter requested
further clarification regarding the
requirements for secondary special
education teachers to be highly
qualified in the core subjects they teach,
as well as certified in special education.
Discussion: Consistent with
§ 300.18(a) and (b) and section
602(10)(A) and (B) of the Act, secondary
special education teachers who teach
core academic subjects must meet the
highly qualified teacher standards
established in the ESEA (which
includes competency in each core
academic subject the teacher teaches)
and the highly qualified special
education teacher requirements in
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§ 300.18(b) and section 602(10)(B) of the
Act.
Consistent with § 300.18(c) and
section 602(10)(C) of the Act, a
secondary special education teacher
who teaches core academic subjects
exclusively to children assessed against
alternate achievement standards can
satisfy the highly qualified special
education teacher requirements by
meeting the requirements for a highly
qualified elementary teacher under the
ESEA, or in the case of instruction
above the elementary level, have subject
matter knowledge appropriate to the
level of instruction being provided, as
determined by the State, to effectively
teach to those standards.
Changes: None.
Comment: One commenter expressed
concern that the highly qualified teacher
requirements will drive secondary
teachers who teach children with
emotional and behavioral disorders out
of the field and requested that the
requirements be changed to require
special education certification in one
core area, plus a reasonable amount of
training in other areas. Another
commenter recommended permitting
special education teachers of core
academic subjects at the elementary
level to be highly qualified if they major
in elementary education and have
coursework in math, language arts, and
science. One commenter recommended
that any special education teacher
certified in a State prior to 2004 be
exempt from having to meet the highly
qualified special education teacher
requirements.
Discussion: The definition of a highly
qualified special education teacher in
§ 300.18 accurately reflects the
requirements in section 602(10) of the
Act. To change the regulations in the
manner recommended by the
commenters would be inconsistent with
the Act and the Act’s clear intent of
ensuring that all children with
disabilities have teachers with the
subject matter knowledge and teaching
skills necessary to assist children with
disabilities achieve to high academic
standards. Therefore, we decline to
change the requirements in § 300.18.
Changes: None.
Comment: One commenter stated that
there is a double standard in the highly
qualified teacher requirements because
general education teachers are not
required to be certified in special
education even though they teach
children with disabilities. Another
commenter recommended requiring
general education teachers who teach
children with disabilities to meet the
highly qualified special education
teacher requirements.
Discussion: We cannot make the
changes suggested by the commenter
because the Act does not require general
education teachers who teach children
with disabilities to be certified in
special education. Further, the
legislative history of the Act would not
support these changes. Note 21 in the
U.S. House of Representatives
Conference Report No. 108–779 (Conf.
Rpt.), p. 169, clarifies that general
education teachers who are highly
qualified in particular subjects and who
teach children with disabilities in those
subjects are not required to have full
State certification as a special education
teacher. For example, a reading
specialist who is highly qualified in
reading instruction, but who is not
certified as a special education teacher,
would not be prohibited from providing
reading instruction to children with
disabilities.
The Act focuses on ensuring that
children with disabilities achieve to
high academic standards and have
access to the same curriculum as other
children. In order to achieve this goal,
teachers who teach core academic
subjects to children with disabilities
must be competent in the core academic
areas in which they teach. This is true
for general education teachers, as well
as special education teachers.
Changes: None.
Comment: Some commenters
expressed concern that LEAs may
reduce placement options for children
with disabilities because of the shortage
of highly qualified teachers. A few
commenters recommended requiring
each State to develop and implement
policies to ensure that teachers meet the
highly qualified special education
teacher requirements, while maintaining
a full continuum of services and
alternative placements to respond to the
needs of children with disabilities.
Discussion: It would be inconsistent
with the LRE requirements in section
612(a)(5) of the Act for a public agency
to restrict the placement options for
children with disabilities. Section
300.115, consistent with section
612(a)(5) of the Act, requires each
public agency to ensure that a
continuum of alternative placements is
available to meet the needs of children
with disabilities.
The additional requirements
requested by the commenter are not
necessary because States already must
develop and implement policies to
ensure that the State meets the LRE and
personnel standards requirements in
sections 612(a)(5) and (a)(14) of the Act,
respectively.
Changes: None.
Comment: One commenter stated that
personnel working in charter schools
should meet the same requirements as
all other public school personnel.
Several commenters expressed concern
regarding the exemption of charter
school teachers from the highly
qualified special education teacher
requirements. One commenter stated
that while a special education teacher in
a charter school does not have to be
licensed or certified by the State if the
State’s charter school law does not
require such licensure or certification,
all other elements of the highly
qualified special education teacher
requirements should apply to charter
school teachers, including demonstrated
competency in core academic subject
areas.
Discussion: The certification
requirements for charter school teachers
are established in a State’s public
charter school law, and may differ from
the requirements for full State
certification for teachers in other public
schools. The Department does not have
the authority to change State charter
school laws to require charter school
teachers to meet the same requirements
as all other public school teachers.
In addition to the certification
requirements established in a State’s
public charter school law, if any, section
602(10) of the Act requires charter
school special education teachers to
hold at least a bachelor’s degree and, if
they are teaching core academic
subjects, demonstrate competency in the
core academic areas they teach. We will
add language in § 300.18(b) to clarify
that special education teachers in public
charter schools must meet the
certification or licensing requirements,
if any, established by a State’s public
charter school law.
Changes: We have added the words
‘‘if any’’ in § 300.18(b)(1)(i) to clarify
that special education teachers in public
charter schools must meet any
certification or licensing requirements
established by a State’s public charter
school law.
Comment: One commenter stated that
the regulations use the terms ‘‘highly
qualified’’ and ‘‘fully certified’’ in a
manner that implies they are
synonymous, and recommended that
the regulations maintain the distinction
between the two terms.
Discussion: Full State certification is
determined under State law and policy
and means that a teacher has fully met
State requirements, including any
requirements related to a teacher’s years
of teaching experience. For example,
State requirements may vary for first-
year teachers versus teachers who are
not new to the profession. Full State
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certification also means that the teacher
has not had certification or licensure
requirements waived on an emergency,
temporary, or provisional basis.
The terms ‘‘highly qualified’’ and
‘‘fully certified’’ are synonymous when
used to refer to special education
teachers who are not teaching core
academic subjects. For special
education teachers teaching core
academic subjects, however, both full
special education certification or
licensure and subject matter
competency are required.
Changes: We have changed the
heading to § 300.18(a) and the
introductory material in § 300.18(a) and
(b)(1) for clarity.
Comment: A few commenters
recommended prohibiting States from
creating new categories to replace
emergency, temporary, or provisional
licenses that lower the standards for full
certification in special education.
Discussion: We do not believe it is
necessary to add the additional language
recommended by the commenters.
Section 300.18(b)(1)(ii) and section
602(10)(B)(ii) of the Act are clear that a
teacher cannot be considered a highly
qualified special education teacher if
the teacher has had special education
certification or licensure waived on an
emergency, temporary, or provisional
basis. This would include any new
certification category that effectively
allows special education certification or
licensure to be waived on an emergency,
temporary, or provisional basis.
Changes: None.
Comment: Some commenters
supported alternative route to
certification programs for special
education teachers. One commenter
stated that these programs are necessary
to increase the number of highly
qualified teachers and will help schools
on isolated tribal reservations recruit,
train, and retain highly qualified
teachers. However, numerous
commenters expressed concerns and
objections to alternative route to
certification programs for special
education teachers. Several commenters
stated that allowing individuals making
progress in an alternative route to
certification program to be considered
highly qualified and fully certified
creates a lower standard, short-changes
children, is not supported by any
provision in the Act, and undermines
the requirement for special education
teachers to be fully certified. One
commenter stated that this provision is
illogical and punitive to higher
education teacher training programs
because it allows individuals in an
alternative route to certification program
to be considered highly qualified and
fully certified during their training
program, while at the same time
individuals in regular teacher training
programs that meet the same
requirements as alternative route to
certification programs are not
considered highly qualified or fully
certified. One commenter argued that an
individual participating in an
alternative route to certification program
would need certification waived on an
emergency, temporary, or provisional
basis, which means the individual has
not met the requirements in
§ 300.18(b)(1)(ii). Another commenter
stated that three years is not enough
time for a teacher enrolled in an
alternative route to certification program
to assume the functions of a teacher.
Discussion: While we understand the
general objections to alternative route to
certification programs expressed by the
commenters, the Department believes
that alternative route to certification
programs provide an important option
for individuals seeking to enter the
teaching profession. The requirements
in § 300.18(b)(2) were included in these
regulations to provide consistency with
the requirements in 34 CFR
200.56(a)(2)(ii)(A) and the ESEA,
regarding alternative route to
certification programs. To help ensure
that individuals participating in
alternative route to certification
programs are well trained, there are
certain requirements that must be met as
well as restrictions on who can be
considered to have obtained full State
certification as a special education
teacher while enrolled in an alternative
route to certification program. An
individual participating in an
alternative route to certification program
must (1) hold at least a bachelor’s degree
and have demonstrated subject-matter
competency in the core academic
subject(s) the individual will be
teaching; (2) assume the functions of a
teacher for not more than three years;
and (3) demonstrate satisfactory
progress toward full certification, as
prescribed by the State. The individual
also must receive, before and while
teaching, high-quality professional
development that is sustained,
intensive, and classroom-focused and
have intensive supervision that consists
of structured guidance and regular
ongoing support.
It was the Department’s intent to
allow an individual who wants to
become a special education teacher, but
does not plan to teach a core academic
subject, to enroll in an alternative route
to certification program and be
considered highly qualified, provided
that the individual holds at least a
bachelor’s degree. This requirement,
however, was inadvertently omitted in
the NPRM. Therefore, we will add
appropriate references in § 300.18(b)(3)
to clarify that an individual
participating in an alternative route to
certification program in special
education who does not intend to teach
a core academic subject, may be
considered a highly qualified special
education teacher if the individual
holds at least a bachelor’s degree and
participates in an alternative route to
certification program that meets the
requirements in § 300.18(b)(2).
Changes: Appropriate citations have
been added in § 300.18(b)(3) to clarify
the requirements for individuals
enrolled in alternative route to special
education teacher certification
programs.
Comment: A few commenters
recommended more specificity in the
requirements for teachers participating
in alternative route to certification
programs, rather than giving too much
discretion to States to develop programs
that do not lead to highly qualified
personnel. However, one commenter
recommended allowing States the
flexibility to create their own guidelines
for alternative route to certification
programs.
Several commenters recommended
clarifying the requirements for the
teacher supervising an individual who
is participating in an alternative route to
certification program. One commenter
recommended requiring supervision,
guidance, and support by a professional
with expertise in the area of special
education in which the teacher desires
to become certified.
Discussion: Consistent with
§ 300.18(b)(2)(ii), States are responsible
for ensuring that the standards for
alternative route to certification
programs in § 300.18(b)(2)(i) are met. It
is, therefore, up to each State to
determine whether to require specific
qualifications for the teachers
responsible for supervising teachers
participating in an alternative route to
certification program.
Changes: None.
Comment: One commenter requested
clarification regarding the roles and
responsibilities of special education
teachers who do not teach core
academic subjects.
Discussion: Special education
teachers who do not directly instruct
children in any core academic subject or
who provide only consultation to highly
qualified teachers of core academic
subjects do not need to demonstrate
subject-matter competency in those
subjects. These special educators could
provide consultation services to other
teachers, such as adapting curricula,
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using behavioral supports and
interventions, or selecting appropriate
accommodations for children with
disabilities. They could also assist
children with study skills or
organizational skills and reinforce
instruction that the child has already
received from a highly qualified teacher
in that core academic subject.
Changes: None.
Comment: Many commenters
recommended including language in the
regulations to clarify that special
education teachers who do not teach
core academic subjects and provide only
consultative services must restrict their
services to areas that supplement, not
replace, the direct instruction provided
by a highly qualified general education
teacher. One commenter recommended
that States develop criteria for teachers
who provide consultation services.
Another commenter stated that special
education teachers should not work on
a consultative basis.
Discussion: The definition of
consultation services and whether a
special education teacher provides
consultation services are matters best
left to the discretion of each State.
While States may develop criteria to
distinguish consultation versus
instructional services, the Act and the
ESEA are clear that teachers who
provide direct instruction in a core
academic subject, including special
education teachers, must meet the
highly qualified teacher requirements,
which include demonstrated
competency in each of the core
academic subjects the teacher teaches.
Changes: None.
Requirements for Highly Qualified
Special Education Teachers Teaching to
Alternate Achievement Standards
(§ 300.18(c))
Comment: One commenter
recommended replacing ‘‘alternate
achievement standards’’ with ‘‘alternate
standards.’’ A few commenters
requested including a definition of
alternate achievement standards in the
regulations.
Discussion: ‘‘Alternate achievement
standards’’ is statutory language and,
therefore, it would be inappropriate to
change ‘‘alternate achievement
standards’’ to ‘‘alternate standards.’’
For the reasons set forth earlier in this
notice, we are not adding definitions
from other statutes to these regulations.
However, we will include the current
description of alternate achievement
standards in 34 CFR 200.1(d) of the
ESEA regulations here for reference.
For children under section 602(3) of
the Individuals with Disabilities
Education Act with the most significant
cognitive disabilities who take an
alternate assessment, a State may,
through a documented and validated
standards-setting process, define
alternate academic achievement
standards, provided those standards—
(1) Are aligned with the State’s
academic content standards;
(2) Promote access to the general
curriculum; and
(3) Reflect professional judgment of
the highest achievement standards
possible.
Changes: None.
Comment: Several commenters
expressed concern with allowing high
school students with significant
cognitive disabilities to be taught by a
certified elementary school teacher. One
commenter stated that high school
students with disabilities should be
prepared to lead productive adult lives,
and not be treated as young children.
Another commenter stated that these
requirements foster low expectations for
children with the most significant
cognitive disabilities and will be used to
justify providing children with
instruction that is not age appropriate or
that denies access to the general
education curriculum. A few
commenters stated that the
requirements for special education
teachers teaching to alternate
achievement standards should be the
same as the requirements for all special
education teachers.
Some commenters recommended
requiring teachers who teach to
alternate achievement standards to have
subject matter knowledge to provide
instruction aligned to the academic
content standards for the grade level in
which the student is enrolled. One
commenter recommended requiring any
special education teacher teaching to
alternate achievement standards to
demonstrate knowledge of age-
appropriate core curriculum content to
ensure children with disabilities are
taught a curriculum that is closely tied
to the general education curriculum
taught to other children of the same age.
Discussion: The regulations
promulgated under section 1111(b)(1) of
the ESEA permit States to use alternate
achievement standards to evaluate the
performance of a small group of
children with the most significant
cognitive disabilities who are not
expected to meet grade-level standards
even with the best instruction. An
alternate achievement standard sets an
expectation of performance that differs
in complexity from a grade-level
achievement standard. Section
602(10)(C)(ii) of the Act, therefore,
allows special education teachers
teaching exclusively children who are
assessed against alternate achievement
standards to meet the highly qualified
teacher standards that apply to
elementary school teachers. In the case
of instruction above the elementary
level, the teacher must have subject
matter knowledge appropriate to the
level of instruction being provided, as
determined by the State, in order to
effectively teach to those standards.
We do not agree that allowing middle
and high school students with the most
significant cognitive disabilities to be
taught by teachers who meet the
qualifications of a highly qualified
elementary teacher fosters low
expectations, encourages students to be
treated like children, promotes
instruction that is not age appropriate,
or denies students access to the general
curriculum. Although alternate
achievement standards differ in
complexity from grade-level standards,
34 CFR 200.1(d) requires that alternate
achievement standards be aligned with
the State’s content standards, promote
access to the general curriculum, and
reflect professional judgment of the
highest achievement standards possible.
In short, we believe that the
requirements in § 300.18(c) will ensure
that teachers teaching exclusively
children who are assessed against
alternate achievement standards will
have the knowledge to provide
instruction aligned to grade-level
content standards so that students with
the most significant cognitive
disabilities are taught a curriculum that
is closely tied to the general curriculum.
Changes: None.
Comment: A few commenters
requested clarification regarding the
meaning of ‘‘subject matter knowledge
appropriate to the level of instruction
provided’’ in § 300.18(c)(2).
Discussion: Section 300.18(c)(2)
requires that if a teacher (who is
teaching exclusively to alternate
achievement standards) is teaching
students who need instruction above the
elementary school level, the teacher
must have subject matter knowledge
appropriate to the level of instruction
needed to effectively teach to those
standards. The purpose of this
requirement is to ensure that teachers
exclusively teaching children who are
assessed based on alternate academic
achievement standards above the
elementary level have sufficient subject
matter knowledge to effectively instruct
in each of the core academic subjects
being taught, at the level of difficulty
being taught. For example, if a high
school student (determined by the IEP
Team to be assessed against alternate
achievement standards) has knowledge
and skills in math at the 7th grade level,
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but in all other areas functions at the
elementary level, the teacher would
need to have knowledge in 7th grade
math in order to effectively teach the
student to meet the 7th grade math
standards. No further clarification is
necessary.
Changes: None.
Comment: A few commenters
recommended that the regulations
include requirements for teachers who
provide instruction to children assessed
against modified achievement
standards. Several commenters stated
that the requirements for teachers
teaching children assessed against
modified achievement standards should
be the same for teachers teaching
children assessed against alternate
achievement standards.
Discussion: The Department has not
issued final regulations addressing
modified achievement standards and
the specific criteria for determining
which children with disabilities should
be assessed based on modified
achievement standards. As proposed,
the modified achievement standards
must be aligned with the State’s
academic content standards for the
grade in which the student is enrolled
and provide access to the grade-level
curriculum. For this reason, we see no
need for a further exception to the
‘‘highly qualified teacher’’ provisions at
this time.
Changes: None.
Requirements for Highly Qualified
Special Education Teachers Teaching
Multiple Subjects (§ 300.18(d))
Comment: A few commenters stated
that the requirements for teachers who
teach two or more core academic
subjects exclusively to children with
disabilities are confusing. Some
commenters requested additional
guidance and flexibility for special
education teachers teaching two or more
core academic subjects. Other
commenters recommended allowing
special education teachers more time to
become highly qualified in all the core
academic subjects they teach.
Discussion: The requirements in
§ 300.18(d), consistent with section
602(10)(C) of the Act, provide flexibility
for teachers who teach multiple core
academic subjects exclusively to
children with disabilities. Section
300.18(d)(2) and (3) allows teachers who
are new and not new in the profession
to demonstrate competence in all the
core academic subjects in which the
teacher teaches using a single, high
objective uniform State standard of
evaluation (HOUSSE) covering multiple
subjects. In addition, § 300.18(d)(3)
gives a new special education teacher
who teaches multiple subjects, and who
is highly qualified in mathematics,
language arts, or science at the time of
hire, two years after the date of
employment to demonstrate competence
in the other core academic subjects in
which the teacher teaches. We do not
believe that further clarification is
necessary.
Changes: None.
Comment: One commenter requested
clarification regarding the meaning of
the following phrases in § 300.18(d):
‘‘multiple subjects,’’ ‘‘in the same
manner,’’ and ‘‘all the core academic
subjects.’’
Discussion: ‘‘Multiple subjects’’ refers
to two or more core academic subjects.
Section 300.18(d) allows teachers who
are new or not new to the profession to
demonstrate competence in ‘‘all the core
subjects’’ in which the teacher teaches
‘‘in the same manner’’ as is required for
an elementary, middle, or secondary
school teacher under the ESEA. As used
in this context, ‘‘in the same manner’’
means that special education teachers
teaching multiple subjects can
demonstrate competence in the core
academic subjects they teach in the
same way that is required for
elementary, middle, or secondary school
teachers in 34 CFR 200.56 of the ESEA
regulations. ‘‘All the core subjects’’
refers to the core academic subjects,
which include English, reading or
language arts, mathematics, science,
foreign languages, civics and
government, economics, arts, history,
and geography, consistent with § 300.10.
Changes: None.
Comment: One commenter
recommended ensuring that the
requirements in § 300.18(d) apply to
special education teachers who teach
children with severe disabilities in more
than one core subject area.
Discussion: The requirements in
§ 300.18(d) do not exclude teachers who
teach children with severe disabilities
in more than one core subject area.
Consistent with § 300.18(d) and section
602(10)(D) of the Act, the requirements
apply to special education teachers who
teach two or more core academic
subjects exclusively to children with
disabilities, including, but not limited
to, children with severe disabilities. We
do not believe that further clarification
is necessary.
Changes: None.
Comment: A significant number of
commenters recommended adding
language to the regulations to permit a
separate HOUSSE for special education
teachers, including a single HOUSSE
that covers multiple subjects. Some
commenters supported a single
HOUSSE covering multiple subjects for
special education teachers, as long as
those adaptations of a State’s HOUSSE
for use with special education teachers
do not establish lower standards for the
content knowledge requirements for
special education teachers.
Discussion: States have the option of
developing a method by which teachers
can demonstrate competency in each
subject they teach on the basis of a
HOUSSE. Likewise, we believe States
should have the option of developing a
separate HOUSSE for special education
teachers.
States have flexibility in developing
their HOUSSE evaluation as long as it
meets each of the following criteria
established in section 9101(23)(C)(ii) of
the ESEA:
• Be set by the State for both grade-
appropriate academic subject-matter
knowledge and teaching skills;
• Be aligned with challenging State
academic content and student academic
achievement standards and developed
in consultation with core content
specialists, teachers, principals, and
school administrators;
• Provide objective, coherent
information about the teacher’s
attainment of core content knowledge in
the academic subjects in which a
teacher teaches;
• Be applied uniformly to all teachers
in the same academic subject and
teaching in the same grade level
throughout the State;
• Take into consideration, but not be
based primarily on, the time the teacher
has been teaching in the academic
subject; and
• Be made available to the public
upon request.
The ESEA also permits States, when
developing their HOUSSE procedures,
to involve multiple, objective measures
of teacher competency. Each evaluation
should have a high, objective, uniform
standard that the candidate is expected
to meet or to exceed. These standards
for evaluation must be applied to each
candidate in the same way.
We believe it is appropriate and
consistent with the Act to permit States
to develop a separate HOUSSE for
special education teachers to
demonstrate subject matter competency
and to use a single HOUSSE covering
multiple subjects, provided that any
adaptations to the HOUSSE do not
establish a lower standard for the
content knowledge requirements for
special education teachers and meet all
the requirements for a HOUSSE for
regular education teachers established
in section 9101(23)(C)(ii) of the ESEA.
Changes: We have added a new
paragraph (e) to § 300.18 to allow States
to develop a separate HOUSSE for
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special education teachers and to permit
the use of a single HOUSSE covering
multiple subjects. Subsequent
paragraphs have been renumbered.
Comment: A few commenters stated
that the HOUSSE should only be used
to address the content requirements, not
primary certification as a special
educator.
Discussion: A HOUSSE is a method
by which teachers can demonstrate
competency in each subject they teach.
A HOUSSE does not address the
requirement for full State certification as
a special education teacher.
Changes: None.
Comment: Several commenters
recommended clarifying the
requirements for a HOUSSE,
particularly at the high school level.
One commenter recommended
clarifying the use of a separate HOUSSE
for teachers of children with visual
impairments.
Discussion: The requirements for a
HOUSSE apply to public school
elementary, middle, and high school
special education teachers. Neither the
Act nor the ESEA provides for different
HOUSSE procedures at the high school
level. Similarly, there are no
requirements for separate HOUSSE
procedures for teachers who teach
children with visual impairments or any
other specific type of disability. We do
not believe it is necessary or appropriate
to establish separate requirements for
separate HOUSSE procedures for
teachers who teach children with visual
impairments or any other specific type
of disability. All children with
disabilities, regardless of their specific
disability, should have teachers with the
subject matter knowledge to assist them
to achieve to high academic standards.
Changes: None.
Comment: One commenter
recommended that States work
collaboratively to ensure there is State
reciprocity of content area standards for
special education teachers, including
HOUSSE provisions.
Discussion: It is up to each State to
determine when and on what basis to
accept another State’s determination
that a particular teacher is highly
qualified. Additionally, each State
determines whether to consider a
teacher from another State to be both
fully certified and competent in each
subject area.
Changes: None.
Comment: One commenter requested
specific guidance on how to design a
multi-subject HOUSSE for special
education teachers.
Discussion: The Department’s non-
regulatory guidance on Improving
Teacher Quality State Grants issued on
August 3, 2005 (available at http://
www.ed.gov/programs/teacherqual/
guidance.doc.) provides the following
guidance to States when developing
their HOUSSE procedures (see question
A–10):
• Do the HOUSSE procedures provide
an ‘‘objective’’ way of determining
whether teachers have adequate subject-
matter knowledge in each core academic
subject they teach?
• Is there a strong and compelling
rationale for each part of the HOUSSE
procedures?
• Do the procedures take into
account, but not primarily rely on,
previous teaching experience?
• Does the plan provide solid
evidence that teachers have mastered
the subject-matter content of each of the
core academic subjects they are
teaching? (Note: experience and
association with content-focused groups
or organizations do not necessarily
translate into an objective measure of
content knowledge.)
• Has the State consulted with core
content specialists, teachers, principals,
and school administrators?
• Does the State plan to widely
distribute its HOUSSE procedures, and
are they presented in a format
understandable to all teachers?
Changes: None.
Comment: A few commenters asked
whether the additional time allowed for
teachers living in rural areas who teach
multiple subjects applies to special
education teachers. One commenter
requested that teachers in rural areas
have three extra years after the date of
employment to meet the standards.
Another commenter stated it will be
difficult for these teachers to meet the
highly qualified special education
teacher requirements even with an
extended deadline.
Discussion: The Department’s policy
on flexibility for middle and high school
teachers in rural schools applies to
special education teachers. Under this
policy, announced on March 15, 2004,
States may permit LEAs eligible to
participate in the Small Rural School
Achievement (SRSA) program that
employ teachers who teach multiple
subjects and are highly qualified in at
least one core academic subject, to have
until the end of the 2006–07 school year
for these teachers to be highly qualified
in each subject that they teach. Newly-
hired teachers in these covered LEAs
have three years from the date of hire to
become highly qualified in each core
academic subject that they teach. More
information about this policy is
available in the Department’s
nonregulatory guidance, Improving
Teacher Quality State Grants (August 3,
2005), which can be found on the
Department’s Web site at: http://
www.ed.gov/programs/teacherqual/
guidance.doc.
Changes: None.
Comment: Some commenters
requested a definition of ‘‘new’’ special
education teacher and asked whether it
applies to teachers hired after the date
of enactment of the Act, December 3,
2004, or after the 2005–06 school year.
One commenter asked whether a fully
certified regular education teacher who
enrolls in a special education teacher
training program would be considered
‘‘new’’ to the profession when he or she
completes the training program.
Discussion: Under the Act, mere
completion of a special education
teacher training program is not a
sufficient predicate for being considered
a highly qualified special education
teacher. Section 602(10)(B) of the Act
requires full State certification or
licensure as a special education teacher,
and this would apply to teachers who
are already certified or licensed as a
regular education teacher, as well as to
other individuals.
On the question of when a person is
‘‘new to the profession,’’ the
Department’s non-regulatory guidance
on Improving Teacher Quality State
Grants issued on August 3, 2005,
clarifies that States have the authority to
define which teachers are new and not
new to the profession; however, those
definitions must be reasonable. The
guidance further states that the
Department strongly believes that a
teacher with less than one year of
teaching experience is ‘‘new’’ to the
profession (see Question A–6). (The
guidance is available at http://
www.ed.gov/programs/teacherqual/
guidance.doc). This guidance is
applicable to determinations of when a
person is new or not new to the
profession under section 602(10)(C) and
(D)(ii) of the Act and § 300.18(c) and
(d)(2).
Under section 602(10)(D)(iii) of the
Act, and reflected in § 300.18(d)(3),
there is additional flexibility for ‘‘a new
special education teacher’’ who is
teaching multiple subjects and is highly
qualified in mathematics, language arts,
or science, to demonstrate competence
in the other core academic subjects in
which the teacher teaches in the same
manner as is required for an elementary,
middle, or secondary school teacher
who is not new to the profession, which
may include a single, high objective
uniform State standard of evaluation
covering multiple subjects, not later
than 2 years after the date of
employment. The phrase ‘‘2 years after
the date of employment’’ in section
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602(10)(D)(iii) of the Act is interpreted
to mean 2 years after employment as a
special education teacher.
For purposes of this provision, we
consider it appropriate to consider a
fully certified regular education teacher
who subsequently becomes fully
certified or licensed as a special
education teacher to be considered a
‘‘new special education teacher’’ when
they are first hired as a special
education teacher. We will add language
to new § 300.18(g) (proposed § 300.18(f))
to make this clear.
Changes: We have restructured
§ 300.18(g) (proposed § 300.18(f)) and
added a new paragraph (g)(2) to permit
a fully certified regular education
teacher who subsequently becomes fully
certified or licensed as a special
education teacher to be considered a
new special education teacher when
first hired as a special education
teacher.
Comment: Some commenters
recommended that the regulations
clarify how co-teaching fits with the
highly qualified special education
teacher requirements. A few
commenters stated that a special
education teacher should be considered
a highly qualified teacher if co-teaching
with a highly qualified general
education teacher. One commenter
stated that co-teaching will encourage
districts to work toward more inclusive
settings for children with disabilities
while also ensuring that teachers with
appropriate qualifications are in the
classroom. One commenter supported
co-teaching as a method for special
education teachers to learn core content
knowledge and be supported by the
general education teacher. One teacher
recommended that a highly qualified
general education teacher supervise
teachers who do not meet the highly
qualified special education teacher
requirements.
Discussion: The term ‘‘co-teaching’’
has many different meanings depending
on the context in which it is used.
Whether and how co-teaching is
implemented is a matter that is best left
to State and local officials’ discretion.
Therefore, we decline to include
language regarding co-teaching in these
regulations. Regardless of whether co-
teaching models are used, States and
LEAs must ensure that teachers meet the
highly qualified teacher requirements in
34 CFR 200.56 and section 9101(23) of
the ESEA and the highly qualified
special education teacher requirements
in § 300.18 and section 602(10) of the
Act, as well as the personnel
requirements in § 300.156 and section
612(a)(14) of the Act.
Changes: None.
Comment: One commenter
recommended requiring schools to post
the credentials of educational personnel
in a place with public access, and to
include in the procedural safeguards
notice a parent’s right to request the
credentials of any teacher who supports
the child in an educational
environment. Another commenter stated
that parents should have access to
records documenting the type of
supervision that is being provided when
a teacher or other service provider is
under the supervision of a highly
qualified teacher. One commenter stated
that the ESEA requires districts to
provide parents with information about
the personnel qualifications of their
child’s classroom teachers and asked
whether this requirement applies to
special education teachers.
Discussion: There is nothing in the
Act that authorizes the Department to
require schools to publicly post the
credentials of educational personnel or
to provide parents with information
about the qualification of their child’s
teachers and other service providers.
Section 615 of the Act describes the
guaranteed procedural safeguards
afforded to children with disabilities
and their parents under the Act but does
not address whether parents can request
information about the qualifications of
teachers and other service providers.
However, section 1111(h)(6) of the
ESEA requires LEAs to inform parents
about the quality of a school’s teachers
in title I schools. The ESEA requires that
at the beginning of each school year, an
LEA that accepts title I, part A funding
must notify parents of children in title
I schools that they can request
information regarding their child’s
classroom teachers, including, at a
minimum: (1) Whether the teacher has
met the State requirements for licensure
and certification for the grade levels and
subject matters in which the teacher
provides instruction; (2) whether the
teacher is teaching under emergency or
other provisional status through which
State qualification or licensing criteria
have been waived; (3) the college major
and any other graduate certification or
degree held by the teacher, and the field
of discipline of the certification or
degree; and (4) whether the child is
provided services by paraprofessionals,
and if so, their qualifications. In
addition, each title I school must
provide parents with timely notice that
the parent’s child has been assigned, or
has been taught for four or more
consecutive weeks by, a teacher who is
not highly qualified. These
requirements apply only to those special
education teachers who teach core
academic subjects in title I schools.
Changes: None.
Rule of Construction (New § 300.18(f))
(Proposed § 300.18(e))
Comment: A number of commenters
stated that the rule of construction in
new § 300.18(f) (proposed § 300.18(e))
and § 300.156(e) should use the same
language. One commenter stated that in
order to prevent confusion, the right of
action limitations regarding highly
qualified teachers in new § 300.18(f)
(proposed § 300.18(e)) and personnel
qualifications in § 300.156(e) should use
consistent language regarding
individual and class actions, and clearly
underscore that the limitations are
applicable to both administrative and
judicial actions. One commenter
recommended reiterating the language
from section 612(a)(14)(D) of the Act
that nothing prevents a parent from
filing a State complaint about staff
qualifications. Another commenter
expressed concern because new
§ 300.18(f) (proposed § 300.18(e)) and
§ 300.156(e) may be construed to
prevent due process hearings when an
LEA or SEA fails to provide a highly
qualified teacher.
Discussion: We agree that the rule of
construction in new § 300.18(f)
(proposed § 300.18(e)) and § 300.156(e)
should be the same. We will change the
regulations to clarify that a parent or
student may not file a due process
complaint on behalf of a student, or file
a judicial action on behalf of a class of
students for the failure of a particular
SEA or LEA employee to be highly
qualified; however, a parent may file a
complaint about staff qualifications with
the SEA. In addition to permitting a
parent to file a complaint with the SEA,
an organization or an individual may
also file a complaint about staff
qualifications with the SEA, consistent
with the State complaint procedures in
§§ 300.151 through 300.153.
Changes: We have added ‘‘or to
prevent a parent from filing a complaint
about staff qualifications with the SEA
as provided for under this part’’ in new
§ 300.18(f) (proposed § 300.18(e)).
Comment: Several commenters
recommended that the regulations
specify that the failure of an SEA or LEA
to provide a child with a disability a
highly qualified teacher can be a
consideration in the determination of
whether a child received FAPE, if the
child is not learning the core content
standards or not meeting IEP goals.
However, a few commenters
recommended that the regulations
clarify that it is not a denial of FAPE if
a special education teacher is not highly
qualified.
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Discussion: If the only reason a parent
believes their child was denied FAPE is
that the child did not have a highly
qualified teacher, the parent would have
no right of action under the Act on that
basis. The rules of construction in new
§ 300.18(f) (proposed § 300.18(e)) and
§ 300.156(e) do not allow a parent or
student to file a due process complaint
for failure of an LEA or SEA to provide
a highly qualified teacher.
Changes: None.
Comment: One commenter expressed
concern with the rule of construction in
new § 300.18(f) (proposed § 300.18(e))
because there are no requirements to
develop a specific enforcement system
to ensure that teachers meet the highly
qualified standard. A few commenters
recommended changing the rule of
construction so that States meet their
supervisory responsibilities under the
Act if LEAs in the State are sanctioned
under the ESEA for not having highly
qualified teachers.
Some commenters recommended
clarifying that when the SEA or LEA
employs an individual who is not
highly qualified, States meet their
responsibilities for general supervision
under the Act through the notice and
other sanction procedures identified
under the ESEA.
One commenter stated that the
regulations are silent with regard to SEA
actions when meeting the general
supervision requirements under the Act,
and noted that unless the regulations are
expanded to clarify that SEA
enforcement procedures under
compliance monitoring are limited to
ESEA enforcement procedures, the
highly qualified teacher requirements of
an individual teacher may
inappropriately become the target for a
finding of noncompliance. This
commenter further stated that the ESEA
contains specific procedures for failure
of a district to comply with the highly
qualified teacher provisions, and if the
SEA also exercises sanctioning authority
under the Act, schools could be
punished twice under two separate
provisions of Federal law for the same
infraction. The commenter
recommended that to avoid double
jeopardy the regulations should clarify
that the ESEA enforcement procedures
for a district’s failure to hire a highly
qualified teacher follow the provisions
of the ESEA, not the Act.
Discussion: The implementation and
enforcement of the highly qualified
teacher standards under the ESEA and
the Act complement each other. The
Office of Elementary and Secondary
Education (OESE) currently monitors
the implementation of the highly
qualified teacher standards for teachers
of core academic subjects under the
ESEA. This includes special education
teachers who teach core academic
subjects.
The Office of Special Education
programs (OSEP) collects data about
special education personnel
qualifications and requires that SEAs
establish and maintain qualifications to
ensure that personnel essential to
carrying out the purposes of Part B of
the Act are appropriately and
adequately prepared and trained. Those
personnel must also have the content
knowledge and skills to serve children
with disabilities, consistent with
§ 300.156.
OESE and OSEP will share their data
to ensure that the highly qualified
teacher requirements under the ESEA
and the Act are met. This sharing of
information will also prevent schools
from being punished twice for the same
infraction.
Changes: None.
Teachers Hired by Private Elementary
and Secondary Schools (New
§ 300.18(h)) (Proposed § 300.18(g))
Comment: Some commenters agreed
with new § 300.18(h) (proposed
§ 300.18(g)), which states that the highly
qualified special education teacher
requirements do not apply to teachers
hired by private elementary schools and
secondary schools. However, many
commenters disagreed, stating that
children placed by an LEA in a private
school are entitled to receive the same
high quality instruction as special
education children in public schools. A
few commenters stated that LEAs will
place children in private schools to
avoid hiring highly qualified teachers.
Some commenters stated that public
funds should not be used for any school
that is not held to the same high
standards as public schools. Other
commenters stated that children with
the most significant disabilities who are
placed in private schools are children
with the most need for highly qualified
teachers. A few commenters stated that
this provision is contrary to the intent
of the ESEA and the Act to support the
educational achievement of children
with disabilities. Other commenters
stated that if instruction by a highly
qualified teacher is a hallmark of FAPE,
it should be an element of FAPE in any
educational setting in which the child is
enrolled by a public agency.
A few commenters recommended that
States have the discretion to determine
whether and to what extent the highly
qualified teacher requirements apply to
teachers who teach publicly-placed and
parentally-placed children with
disabilities. The commenters stated that
the SEA is in the best position to weigh
the needs of private school children for
highly qualified teachers and to assess
what effect these requirements would
have on the shortage of special
education teachers in the State. One
commenter asked whether the highly
qualified teacher requirements apply to
providers in private residential
treatment centers where children with
disabilities are placed to receive FAPE.
Discussion: New § 300.18(h)
(proposed § 300.18(g)) accurately
reflects the Department’s position that
the highly qualified special education
teacher requirements do not apply to
teachers hired by private elementary
schools and secondary schools. This
includes teachers hired by private
elementary schools and secondary
schools who teach children with
disabilities. Consistent with this
position and in light of comments
received regarding the requirements for
private school teachers providing
equitable services for parentally-placed
private school children with disabilities
under § 300.138, we will add language
to new § 300.18(h) (proposed
§ 300.18(g)) to clarify that the highly
qualified special education teacher
requirements also do not apply to
private school teachers who provide
equitable services to parentally-placed
private school children with disabilities
under § 300.138.
Changes: We have added language in
new § 300.18(h) (proposed § 300.18(g))
to clarify that the highly qualified
special education teacher requirements
also do not apply to private school
teachers who provide equitable services
to parentally-placed private school
children with disabilities under
§ 300.138.
Homeless Children (§ 300.19)
Comment: Several commenters
requested adding the definition of
homeless children in the regulations so
that it is readily accessible to parents,
advocates, and educators.
Discussion: The term homeless
children is defined in the McKinney-
Vento Homeless Assistance Act. For the
reasons set forth earlier in this notice,
we are not adding the definitions of
other statutes to these regulations.
However, we will include the current
definition of homeless children in
section 725 (42 U.S.C. 11434a) of the
McKinney-Vento Homeless Assistance
Act, as amended, 42 U.S.C. 11431 et seq.
(McKinney-Vento Act) here for
reference.
The term homeless children and
youths—
(A) means individuals who lack a
fixed, regular, and adequate nighttime
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residence (within the meaning of
section 103(a)(1)); and
(B) includes—
(i) children and youths who are
sharing the housing of other persons
due to loss of housing, economic
hardship, or a similar reason; are living
in motels, hotels, trailer parks, or
camping grounds due to the lack of
alternative adequate accommodations;
are living in emergency or transitional
shelters; are abandoned in hospitals; or
are awaiting foster care placement;
(ii) children and youths who have a
primary nighttime residence that is a
public or private place not designed for
or ordinarily used as a regular sleeping
accommodation for human beings
(within the meaning of section
103(a)(2)(C));
(iii) children and youths who are
living in cars, parks, public spaces,
abandoned buildings, substandard
housing, bus or train stations, or similar
settings; and
(iv) migratory children (as such term
is defined in section 1309 of the
Elementary and Secondary Education
Act of 1965) who qualify as homeless
for the purposes of this subtitle because
the children are living in circumstances
described in clauses (i) through (iii).
Changes: None.
Comment: One commenter stated that
regulations are needed to address school
selection and enrollment provisions
under the McKinney-Vento Act.
Another commenter recommended that
the regulations include the McKinney-
Vento Act’s requirement that school
stability for homeless children be
maintained during periods of residential
mobility and that homeless children
enrolled in new schools have the ability
to immediately attend classes and
participate in school activities.
Discussion: We appreciate the
commenters’ concerns, but do not
believe it is necessary to duplicate the
requirements of the McKinney-Vento
Act in these regulations. We believe that
these issues, as well as other issues
regarding children with disabilities who
are homeless, would be more
appropriately addressed in non-
regulatory guidance, in which more
detailed information and guidance can
be provided on how to implement the
requirements of the Act and the
McKinney-Vento Act to best meet the
needs of homeless children with
disabilities. We will work with the
Office of Elementary and Secondary
Education to provide guidance and
disseminate information to special
education teachers and administrators
regarding their responsibilities for
serving children with disabilities who
are homeless.
Changes: None.
Indian and Indian Tribe (§ 300.21)
Comment: One commenter expressed
support for combining and moving the
definition of Indian and Indian tribe
from current § 300.264 to the definitions
section of these regulations because the
term is applicable in instances not
related to BIA schools. However,
another commenter stated that the
definition was unnecessary because the
purpose of the Act is to ensure that
every child has FAPE.
Discussion: The definitions of Indian
and Indian tribe are included in
sections 602(12) and (13) of the Act,
respectively, and are, therefore,
included in subpart A of these
regulations. Subpart A includes
definitions for those terms and phrases
about which we are frequently asked
and which we believe will assist SEAs
and LEAs in implementing the
requirements of the Act. Including the
definitions of Indian and Indian tribe in
the definitions section does not in any
way affect the provision of FAPE to all
eligible children under the Act.
Changes: None.
Comment: One commenter requested
omitting ‘‘State Indian tribes’’ that are
not also federally-recognized tribes from
the definition of Indian and Indian tribe
stating that Federal recognition of an
Indian tribe should be a predicate for
the tribe’s eligibility for Federal
programs and services. One commenter
expressed concern that including ‘‘State
Indian tribes’’ in the definition could
imply that the Secretary of the Interior
is responsible for providing special
education and related services or
funding to all State Indian tribes.
Discussion: Section 602(13) of the Act
and § 300.21(b) define Indian tribe as
‘‘any Federal or State Indian tribe’’ and
do not exclude State Indian tribes that
are not federally-recognized tribes. We
will add a new paragraph (c) to § 300.21
clarifying that the definition of Indian
and Indian tribe is not intended to
indicate that the Secretary of Interior is
required to provide services or funding
to a State Indian tribe that is not listed
in the Federal Register list of Indian
entities recognized as eligible to receive
services from the United States,
published pursuant to Section 104 of
the Federally Recognized Indian Tribe
List Act of 1994, 25 U.S.C. 479a–1.
Changes: A new paragraph (c) has
been added to § 300.21 to provide this
clarification.
Comment: One commenter stated that
it was unclear how many States have
defined Indian tribes that are not
defined by the Federal government and
asked what the effect would be on the
provision of services by including State
Indian tribes in the definition. Another
commenter stated that including State
Indian tribes in the definition of Indian
and Indian tribe implies that children of
State-recognized tribes are considered
differently than other children.
Discussion: As noted in the
discussion responding to the previous
comment, the list of Indian entities
recognized as eligible to receive services
from the United States is published in
the Federal Register, pursuant to
Section 104 of the Federally Recognized
Indian Tribe List Act of 1994, 25 U.S.C.
479a–1. The Federal government does
not maintain a list of other State Indian
tribes. Including State Indian tribes that
are not federally recognized in the
definition does not affect who is
responsible under the Act for the
provision of services to children with
disabilities who are members of State
Indian tribes. Under section 611(h)(1) of
the Act, the Secretary of the Interior is
responsible for providing special
education and related services to
children age 5 through 21 with
disabilities on reservations who are
enrolled in elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior. With respect to all other
children aged 3 through 21 on
reservations, the SEA of the State in
which the reservation is located is
responsible for ensuring that all the
requirements of Part B of the Act are
implemented.
Changes: None.
Individualized Family Service Plan
(§ 300.24)
Comment: A few commenters
recommended including the entire
definition of individualized family
service plan in the regulations so that
parents and school personnel do not
have to shift back and forth between
documents.
Discussion: Adding the entire
definition of individualized family
service plan in section 636 of the Act,
which includes information related to
assessment and program development;
periodic review; promptness after
assessment; content of the plan; and
parental consent, would unnecessarily
add to the length of the regulations.
However, the required content of the
IFSP in section 636(d) of the Act is
added here for reference.
The individualized family service
plan shall be in writing and contain—
(1) A statement of the infant’s or
toddler’s present levels of physical
development, cognitive development,
communication development, social or
emotional development, and adaptive
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development, based on objective
criteria;
(2) a statement of the family’s
resources, priorities, and concerns
relating to enhancing the development
of the family’s infant or toddler with a
disability;
(3) a statement of the measurable
results or outcomes expected to be
achieved for the infant or toddler and
the family, including pre-literacy and
language skills, as developmentally
appropriate for the child, and the
criteria, procedures, and timelines used
to determine the degree to which
progress toward achieving the results or
outcomes is being made and whether
modifications or revisions of the results
or outcomes or services are necessary;
(4) a statement of specific early
intervention services based on 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;
(5) a statement of the natural
environments in which early
intervention services will appropriately
be provided, including a justification of
the extent, if any, to which the services
will not be provided in a natural
environment;
(6) the projected dates for initiation of
services and the anticipated length,
duration, and frequency of the services;
(7) the identification of the service
coordinator from the profession most
immediately relevant to the infant’s or
toddler’s or family’s needs (or who is
otherwise qualified to carry out all
applicable responsibilities under this
part) who will be responsible for the
implementation of the plan and
coordination with other agencies and
persons, including transition services;
and
(8) the steps to be taken to support the
transition of the toddler with a
disability to preschool or other
appropriate services.
Changes: None.
Infant or Toddler With a Disability
(§ 300.25)
Comment: A few commenters
recommended including the entire
definition of infant or toddler with a
disability in the regulations so that
parents and school personnel do not
have to shift back and forth between
documents.
Discussion: We agree with the
commenters and, therefore, will include
the definition of infant or toddler with
a disability from section 632(5) of the
Act in these regulations for reference.
Changes: Section 300.25 has been
revised to include the entire definition
of infant or toddler with a disability
from section 632(5) of the Act.
Institution of Higher Education
(§ 300.26)
Comment: One commenter
recommended including the definition
of institution of higher education in
these regulations.
Discussion: The term institution of
higher education is defined in section
101 of the Higher Education Act of
1965, as amended, 20 U.S.C. 1021 et
seq. (HEA). For the reasons set forth
earlier in this notice, we are not adding
definitions from other statutes to these
regulations. However, we are including
the current definition here for reference.
(a) Institution of higher education—
For purposes of this Act, other than title
IV, the term institution of higher
education means an educational
institution in any State that—
(1) Admits as regular students only
persons having a certificate of
graduation from a school providing
secondary education, or the recognized
equivalent of such a certificate;
(2) is legally authorized within such
State to provide a program of education
beyond secondary education;
(3) provides an educational program
for which the institution awards a
bachelor’s degree or provides not less
than a 2-year program that is acceptable
for full credit toward such a degree;
(4) is a public or other nonprofit
institution; and
(5) is accredited by a nationally
recognized accrediting agency or
association, or if not so accredited, is an
institution that has been granted
preaccreditation status by such an
agency or association that has been
recognized by the Secretary for the
granting of preaccreditation status, and
the Secretary has determined that there
is satisfactory assurance that the
institution will meet the accreditation
standards of such an agency or
association within a reasonable time.
(b) Additional Institutions Included—
For purposes of this Act, other than title
IV, the term institution of higher
education also includes—
(1) Any school that provides not less
than a 1-year program of training to
prepare students for gainful
employment in a recognized occupation
and that meets the provision of
paragraphs (1), (2), (4), and (5) of
subsection (a); and
(2) a public or nonprofit private
educational institution in any State that,
in lieu of the requirement in subsection
(a)(1), admits as regular students
persons who are beyond the age of
compulsory school attendance in the
State in which the institution is located.
Changes: None.
Comment: One commenter requested
that we add language to the regulations
that would allow Haskell and Sipi,
postsecondary programs under the
Haskell Indian Nations University and
Southwestern Indian Polytechnic
Institute Administrative Act of 1988, 25
U.S.C. 3731 et seq., to be included in the
definition of institution of higher
education.
Discussion: The Haskell and Sipi
postsecondary programs under the
Haskell Indian Nations University and
Southwestern Indian Polytechnic
Institute Administrative Act of 1988, 25
U.S.C. 3731 et seq. meet the statutory
definition of institution of higher
education in section 602(17) of the Act
because they meet the definition of the
term in section 101 of the HEA. The Act
does not include specific institutions in
the definition of institution of higher
education, nor do we believe it is
necessary to add specific institutions to
the definition in § 300.26.
Changes: None.
Limited English Proficient (§ 300.27)
Comment: One commenter requested
specific information about bilingual
qualified personnel and qualified
interpreters. Some commenters
recommended including the definition
of ‘‘limited English proficient’’ in the
regulations.
Discussion: Each State is responsible
for determining the qualifications of
bilingual personnel and interpreters for
children with limited English
proficiency.
The term limited English proficient is
defined in the ESEA. For the reasons set
forth earlier in this notice, we are not
adding the definitions from other
statutes to these regulations. However,
we will include the current definition in
section 9101(25) of the ESEA here for
reference.
The term limited English proficient
when used with respect to an
individual, means an individual—
(A) Who is aged 3 through 21;
(B) Who is enrolled or preparing to
enroll in an elementary school or
secondary school;
(C)(i) who was not born in the United
States or whose native language is a
language other than English;
(ii)(I) who is a Native American or
Alaska Native, or a native resident of the
outlying areas; and
(II) who comes from an environment
where a language other than English has
had a significant impact on the
individual’s level of English language
proficiency; or
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(iii) who is migratory, whose native
language is a language other than
English, and who comes from an
environment where a language other
than English is dominant; and
(D) whose difficulties in speaking,
reading, writing, or understanding the
English language may be sufficient to
deny the individual—
(i) the ability to meet the State’s
proficient level of achievement on State
assessments described in section
1111(b)(3);
(ii) the ability to successfully achieve
in classrooms where the language of
instruction is English; or
(iii) the opportunity to participate
fully in society.
Changes: None.
Local Educational Agency (§ 300.28)
Comment: One commenter suggested
revising § 300.28 to ensure that all
responsibilities and rights attributed to
an LEA apply to an ESA.
Discussion: We believe that the
provisions in § 300.12 and § 300.28 are
clear that ESAs have full responsibilities
and rights as LEAs. We, therefore,
decline to revise § 300.28.
Changes: None.
Comment: None.
Discussion: Through its review of
charter schools’ access to Federal
funding, it has come to the Department’s
attention that additional guidance is
needed regarding whether charter
schools that are established as their own
LEAs must be nonprofit entities in order
to meet the definition of LEA in
§ 300.28. The definition of LEA in
§ 300.28(b)(2) specifically includes a
public charter school that is established
as an LEA under State law and that
exercises administrative control or
direction of, or performs a service
function for, itself. For purposes of the
Act, the definitions of charter school,
elementary school, and secondary
school in §§ 300.7, 300.13, and 300.36,
respectively, require that a public
elementary or secondary charter school
be a nonprofit entity. Therefore, a public
elementary or secondary charter school
established as its own LEA under State
law, also must be a nonprofit entity.
Although these regulations do not
specifically define nonprofit, the
definition in 34 CFR § 77.1 applies to
these regulations. In order to eliminate
any confusion on this issue, we will
revise the definition of LEA to reflect
that a public elementary or secondary
charter school that is established as its
own LEA under State law must be a
nonprofit entity.
Changes: For clarity, we have revised
§ 300.28(b)(2) by inserting the term
‘‘nonprofit’’ before ‘‘charter school that
is established as an LEA under State
law.’’
Comment: One commenter stated that
§ 300.28(c) is in error from a technical
drafting perspective because it does not
follow the statutory language in section
602(19)(C) of the Act. The commenter
also suggested adding a definition of
‘‘BIA funded school,’’ rather than
adding a new definition of LEA related
to BIA funded schools.
Discussion: We agree that § 300.28(c)
does not accurately reflect the statutory
language in section 602(19)(C) of the Act
and, as written, could be interpreted as
defining BIA funded schools. This was
not our intent. Rather, the intent was to
include ‘‘BIA funded schools’’ in the
definition of LEA, consistent with
section 602(19)(C) of the Act.
In order to correct the technical
drafting error, we will change
§ 300.28(c) to accurately reflect section
602(19)(C) of the Act. We decline to add
a definition of ‘‘BIA funded schools.’’
The Act does not define this term and
the Department does not believe that it
is necessary to define the term.
Changes: In order to correct a
technical drafting error, § 300.28(c) has
been revised to be consistent with
statutory language.
Native Language (§ 300.29)
Comment: A few commenters
expressed support for retaining the
definition of native language, stating
that it is important to clarify that sign
language is the native language of many
children who are deaf. One commenter
stated it is important to clarify that the
language normally used by the child
may be different than the language
normally used by the parents. Another
commenter stated that the definition of
native language does not adequately
cover individuals with unique language
and communication techniques such as
deafness or blindness or children with
no written language.
Discussion: The definition of native
language was expanded in the 1999
regulations to ensure that the full range
of needs of children with disabilities
whose native language is other than
English is appropriately addressed. The
definition clarifies that in all direct
contact with the child (including an
evaluation of the child), native language
means the language normally used by
the child and not that of the parents, if
there is a difference between the two.
The definition also clarifies that for
individuals with deafness or blindness,
or for individuals with no written
language, the native language is the
mode of communication that is
normally used by the individual (such
as sign language, Braille, or oral
communication). We believe this
language adequately addresses the
commenters’ concerns.
Changes: None.
Parent (§ 300.30)
Comment: Several commenters
objected to the term ‘‘natural parent’’ in
the definition of parent because
‘‘natural parent’’ presumes there are
‘‘unnatural parents.’’ The commenters
recommended using ‘‘birth parent’’ or
‘‘biological parent’’ throughout the
regulations.
Discussion: We understand that many
people find the term ‘‘natural parent’’
offensive. We will, therefore, use the
term ‘‘biological parent’’ to refer to a
non-adoptive parent.
Changes: We have replaced the term
‘‘natural parent’’ with ‘‘biological
parent’’ in the definition of parent and
throughout these regulations.
Comment: A significant number of
commenters recommended retaining the
language in current § 300.20(b), which
states that a foster parent can act as a
parent if the biological parent’s
authority to make educational decisions
on the child’s behalf have been
extinguished under State law, and the
foster parent has an ongoing, long-term
parental relationship with the child; is
willing to make the educational
decisions required of parents under the
Act; and has no interest that would
conflict with the interest of the child.
A few commenters stated that current
§ 300.20(b) better protects children’s
interests and should not be removed.
Another commenter stated that
removing current § 300.20 will have
unintended consequences for the many
foster children who move frequently to
new homes because there will be
confusion as to who has parental rights
under the Act. A few commenters stated
that short-term foster parents may not
have the knowledge of the child or the
willingness to actively participate in the
special education process, which will
effectively leave the child without a
parent.
One commenter stated that § 300.30
needs to be changed to protect
biological and adoptive parents from
arbitrary decisions by educational
officials who lack the legal authority to
make educational decisions for the child
and to ensure that when no biological or
adoptive parent is available, a person
with a long-term relationship with, and
commitment to, the child has decision-
making authority.
Discussion: Congress changed the
definition of parent in the Act. The
definition of parent in these regulations
reflects the revised statutory definition
of parent in section 602(23) of the Act.
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The Department understands the
concerns expressed by the commenters,
but believes that the changes requested
would not be consistent with the intent
of the statutory changes. In changing the
definition of parent in the Act, Congress
incorporated some of the wording from
the current regulations and did not
incorporate in the new definition of
parent, the current foster parent
language referenced by the commenters.
Changes: None.
Comment: One commenter
recommended allowing a foster parent
who does not have a long-term
relationship to be the parent, if a court,
after notifying all interested parties,
determines that it is in the best interest
of the child.
Discussion: Section 300.30(b)(2)
clearly states that if a person is specified
in a judicial order or decree to act as the
parent for purposes of § 300.30, that
person would be considered the parent
under Part B of the Act.
Changes: None.
Comment: One commenter stated that
§ 300.30(a)(2) withdraws the rights of
biological parents under the Act without
due process of law.
Discussion: We do not agree with the
commenter. If more than one person is
attempting to act as a parent,
§ 300.30(b)(1) provides that the
biological or adoptive parent is
presumed to be the parent if that person
is attempting to act as the parent under
§ 300.30, unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child, or there is a judicial order
or decree specifying some other person
to act as a parent under Part B of the
Act. We do not believe that provisions
regarding lack of legal authority or
judicial orders or decrees would apply
unless there has already been a
determination, through appropriate
legal processes, that the biological
parent should not make educational
decisions for the child or that another
person has been ordered to serve as the
parent.
Changes: None.
Comment: One commenter stated that
§ 300.30(a)(2) is unwieldy and difficult
to implement because it requires
extensive fact finding by the LEA to
determine whether any contractual
obligations would prohibit the foster
parent from acting as a parent.
Discussion: The statutory language
concerning the definition of parent was
changed to permit foster parents to be
considered a child’s parent, unless State
law prohibits a foster parent from
serving as a parent. The language in the
regulations also recognizes that similar
restrictions may exist in State
regulations or in contractual agreements
between a State or local entity and a
foster parent, and should be accorded
similar deference. We believe it is
essential for LEAs to have knowledge of
State laws, regulations, and any
contractual agreements between a State
or local entity and a foster parent to
ensure that the requirements in
§ 300.30(a)(2) are properly
implemented. States and LEAs should
develop procedures to make this
information more readily and easily
available so that LEAs do not have to
engage in extensive fact finding each
time a child with a foster parent enrolls
in a school.
Changes: None.
Comment: One commenter stated that
the regulations need to clarify that
guardians ad litem do not meet the
definition of a parent except for wards
of the State where consent for the initial
evaluation has been given by an
individual appointed by the judge to
represent the child in the educational
decisions concerning the child.
Discussion: We agree that guardians
with limited appointments that do not
qualify them to act as a parent of the
child generally, or do not authorize
them to make educational decisions for
the child, should not be considered to
be a parent within the meaning of these
regulations. What is important is the
legal authority granted to individuals
appointed by a court, and not the term
used to identify them. Whether a person
appointed as a guardian ad litem has the
requisite authority to be considered a
parent under this section depends on
State law and the nature of the person’s
appointment. We will revise
§ 300.30(a)(3) to clarify that a guardian
must be authorized to act as the child’s
parent generally or must be authorized
to make educational decisions for the
child in order to fall within the
definition of parent.
Changes: We have added language in
§ 300.30(a)(3) to clarify when a guardian
can be considered a parent under the
Act.
Comment: One commenter requested
adding a ‘‘temporary parent’’ appointed
in accordance with sections 615(b)(2) or
639(a)(5) of the Act to the definition of
parent.
Discussion: There is nothing in the
Act that would prevent a temporary
surrogate parent from having all the
rights of a parent. Note 89 of the Conf.
Rpt., p. 35810, provides that appropriate
staff members of emergency shelters,
transitional shelters, independent living
programs, and street outreach programs
would not be considered to be
employees of agencies involved in the
education or care of unaccompanied
youth (and thus prohibited from serving
as a surrogate parent), provided that
such a role is temporary until a
surrogate parent can be appointed who
meets the requirements for a surrogate
parent in § 300.519(d). This provision is
included in § 300.519(f), regarding
surrogate parents. Therefore, we do not
believe it is necessary to add
‘‘temporary parent’’ to the definition of
parent in § 300.30.
Changes: None.
Comment: A few commenters stated
that the definition of parent is
confusing, especially in light of the
definition of ward of the State in new
§ 300.45 (proposed § 300.44) and the
LEA’s obligation to appoint a surrogate
parent. These commenters stated that
§ 300.30 should cross-reference the
definition of ward of the State in new
§ 300.45 (proposed § 300.44) and state
that the appointed surrogate parent for
a child who is a ward of the State is the
parent.
Discussion: Section 615(b)(2) of the
Act does not require the automatic
appointment of a surrogate parent for
every child with a disability who is a
ward of the State. States and LEAs must
ensure that the rights of these children
are protected and that a surrogate parent
is appointed, if necessary, as provided
in § 300.519(b)(1). If a child who is a
ward of the State already has a person
who meets the definition of parent in
§ 300.30, and that person is willing and
able to assume the responsibilities of a
parent under the Act, a surrogate parent
might not be needed. Accordingly, we
do not believe it is necessary to make
the changes suggested by the
commenters.
Changes: None.
Comment: One commenter expressed
concern that public agencies will
require biological or adoptive parents to
affirmatively assert their rights or to take
action in order to be presumed to be the
parent. The commenter requested
clarifying in § 300.30(b)(1) that
biological or adoptive parents do not
have to take affirmative steps in order
for the presumption to apply.
Discussion: The biological or adoptive
parent would be presumed to be the
parent under these regulations, unless a
question was raised about their legal
authority. There is nothing in the Act
that requires the biological or adoptive
parent to affirmatively assert their rights
to be presumed to be the parent. We
continue to believe that § 300.30(b)(1) is
clear and, therefore, will not make the
changes requested by the commenters.
Changes: None.
Comment: Some commenters
recommended removing ‘‘when
attempting to act as a parent under this
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part’’ in § 300.30(b)(1). A few
commenters stated that there is no
explanation of what it means for a
biological parent to ‘‘attempt to act as a
parent.’’ Another commenter stated that
the regulations do not set any guidelines
for determining how a public agency
decides if a biological or adoptive
parent is attempting to act as a parent.
One commenter stated ‘‘attempting to
act’’ would require LEAs to make
determinations about a biological
parent’s decision-making authority and
this should be left up to courts to
determine. One commenter stated that
the regulations permit multiple persons
to act as a child’s parent and do not
adequately set forth a process to
determine who should be identified as
the actual parent for decision-making
purposes. The commenter further stated
that the regulations do not set out a
procedure or a timeframe by which
public agency officials should
determine if a biological parent has
retained the right to make educational
decisions for his or her child.
One commenter stated that the
definition of parent gives school
districts excessive power; for example a
school could appoint a surrogate parent
if the foster parent was excessively
demanding. The commenter further
stated that a clearer order of priority and
selection mechanism with judicial
oversight needs to be in place so that
school districts cannot ‘‘parent shop’’
for the least assertive individual, and so
that relatives, foster parents, social
workers, and others involved with the
child will know who has educational
decision making authority.
One commenter questioned whether
§ 300.30(b) helps identify parents or
confuses situations in which the person
to be designated the parent is in dispute.
Another commenter stated that the
requirements in § 300.30(b) place the
responsibility of determining who
serves as the parent of a child in foster
care directly on the shoulders of school
administrators who are not child
welfare experts. The commenter
recommended that a foster parent
automatically qualify as a parent when
the rights of the child’s biological
parents have been extinguished and the
foster parent has a long-term
relationship with the child, no conflict
of interest, and is willing to make
educational decisions.
Discussion: Section 300.30(b) was
added to assist schools and public
agencies in determining the appropriate
person to serve as the parent under Part
B of the Act in those difficult situations
in which more than one individual is
‘‘attempting to act as a parent’’ and
make educational decisions for a child.
It recognizes the priority of the
biological or adoptive parent and the
authority of the courts to make
decisions, and does not leave these
decisions to school administrators.
The phrase ‘‘attempting to act as a
parent’’ is generally meant to refer to
situations in which an individual
attempts to assume the responsibilities
of a parent under the Act. An individual
may ‘‘attempt to act as a parent’’ under
the Act in many situations; for example,
if an individual provides consent for an
evaluation or reevaluation, or attends an
IEP Team meeting as the child’s parent.
We do not believe it is necessary or
possible to include in these regulations
the numerous situations in which an
individual may ‘‘attempt to act as a
parent.’’
Section 300.30(b)(1) provides that the
biological or adoptive parent is
presumed to be the parent if that person
is attempting to act as the parent under
§ 300.30, unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child, or there is a judicial order
or decree specifying some other person
to act as a parent under Part B of the
Act. Section 300.30(b)(2) provides that if
a person (or persons) is specified in a
judicial order or decree to act as the
parent for purposes of § 300.30, that
person would be the parent under Part
B of the Act. We do not believe that it
is necessary for these regulations to
establish procedures or a timeline for a
public agency to determine whether a
biological parent has retained the right
to make educational decisions for a
child. Such procedures and timelines
will vary depending on how judicial
orders or decrees are routinely handled
in a State or locality, and are best left
to State and local officials to determine.
Changes: None.
Comment: A few commenters
recommended modifying § 300.30(b)(2)
to clarify that a court has the discretion
to decide who has the right to make
educational decisions for a child. One
commenter recommended clarifying
that the judicial decree referred to in
§ 300.30(b)(2) relates specifically to
divorce situations, rather than situations
involving children who are wards of the
State. Another commenter stated that
§ 300.30(b)(2) appears to be aimed at
situations where the court has
designated a parent, such as in a
custody decree, and that it is not clear
what the provision adds.
Discussion: Section 300.30(b)(2)
specifically states that if a judicial
decree or order identifies a person or
persons to act as the parent of a child
or to make educational decisions on
behalf of a child, then that person
would be determined to be the parent.
It was intended to add clarity about who
would be designated a parent when
there are competing individuals under
§ 300.30(a)(1) through (4) who could be
considered a parent for purposes of this
part. It is not necessary to specify or
limit this language to provide that the
judicial decree or order applies to
specific situations, such as divorce or
custody cases. However, it should not
authorize courts to appoint individuals
other than those identified in
§ 300.30(a)(1) through (4) to act as
parents under this part. Specific
authority for court appointment of
individuals to provide consent for
initial evaluations in limited
circumstances is in § 300.300(a)(2)(c).
Authority for court appointment of a
surrogate parent in certain situations is
in § 300.519(c).
Changes: We have revised
§ 300.30(b)(2) to limit its application to
individuals identified under
§ 300.30(a)(1) through (4) and have
deleted the phrase ‘‘except that a public
agency that provides education or care
for the child may not act as the parent’’
as unnecessary.
Comment: One commenter
recommended allowing foster parents to
act as parents only when the birth
parent’s rights have been extinguished
or terminated. A few commenters
requested that the regulations clarify the
circumstances under which a foster
parent can take over educational
decision making. One commenter stated
that allowing a foster parent to act as a
parent would disrupt the special
education process.
Discussion: Under § 300.30(a)(2), a
foster parent can be considered a parent,
unless State law, regulations, or
contractual obligations with a State or
local entity prohibit a foster parent from
acting as a parent. However, in cases
where a foster parent and a biological or
adoptive parent attempt to act as the
parent, § 300.30(b)(1) clarifies that the
biological or adoptive parent is
presumed to be the parent, unless the
biological or adoptive parent does not
have legal authority to make educational
decisions for the child. Section
300.30(b)(2) further clarifies that if a
person or persons such as a foster parent
or foster parents is specified in a
judicial order or decree to act as the
parent for purposes of § 300.30, that
person would be the parent under Part
B of the Act. We do not believe that
further clarification is necessary.
Changes: None.
Comment: A few commenters
recommended that ‘‘extinguished under
State law’’ be defined to mean both
temporary and permanent termination
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of parental rights to make educational
decisions because this would allow
courts to make more timely decisions
regarding the role of a parent and not
feel bound to wait for a full termination
of parental rights.
Discussion: The phrase ‘‘extinguished
under State law’’ is not used in the Act
or these regulations. The phrase was
used in the definition of parent in
current § 300.20(b)(1). The comparable
provision in these regulations is in
§ 300.30(b)(1), which refers to situations
in which the ‘‘biological or adoptive
parent does not have legal authority to
make educational decisions for the
child.’’ We do not believe that either of
these phrases affects the timeliness of
decision making by courts regarding
parental rights.
Changes: None.
Comment: Some commenters stated
that ‘‘consistent with State law’’ should
be included in § 300.30(b)(2) in order to
honor local laws already in place to
protect these children.
Discussion: We do not believe the
change recommended by the
commenters is necessary. Courts issue
decrees and orders consistent with
applicable laws.
Changes: None.
Comment: One commenter stated that
it would not be wise to completely
exclude an agency involved in the
education or care of the child from
serving as a parent because situations in
which an LEA acts as a parent are very
rare and only occur under very unusual
circumstances.
Discussion: The exclusion of an
agency involved in the education or care
of the child from serving as a parent is
consistent with the statutory prohibition
that applies to surrogate parents in
sections 615(b)(2) and 639(a)(5) of the
Act.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify the responsibilities of the LEA
when a biological or adoptive parent
and a foster parent attempt to act as the
parent. Although the regulations state
that the biological or adoptive parent
must be presumed to be the parent
unless the biological or adoptive parent
has been divested of this authority by a
court, the commenter stated that the
regulations are not clear as to whether
the LEA has the duty to notify the
biological or adoptive parent,
accommodate his or her schedule, or
otherwise take steps to facilitate the
biological or adoptive parent’s
participation.
One commenter recommended
clarifying the relative rights of a
biological or adoptive parent and a
foster parent when a child is in foster
care and the foster parent is not
prohibited by the State from acting as a
parent.
Discussion: Section 300.30(b)(1) states
that when more than one party is
qualified under § 300.30(a) to act as the
parent, the biological or adoptive parent
is presumed to be the parent (unless a
judicial decree or order identifies a
specific person or persons to act as the
parent of a child). The biological or
adoptive parent has all the rights and
responsibilities of a parent under the
Act, and the LEA must provide notice
to the parent, accommodate his or her
schedule when arranging meetings, and
involve the biological or adoptive parent
in the education of the child with a
disability. Thus, if a child is in foster
care (and the foster parent is not
prohibited by the State from acting as a
parent) and the biological or adoptive
parent is attempting to act as a parent,
the biological or adoptive parent is
presumed to be the parent unless the
biological or adoptive parent does not
have legal authority to make educational
decisions for the child or a judicial
decree or order identifies a specific
person or persons to act as the parent of
a child.
Changes: None.
Comment: A few commenters stated
that it is unclear when or under what
circumstances a biological or adoptive
parent ceases or surrenders their rights
to a foster parent to make educational
decisions for a child. One commenter
stated that the regulations should define
clearly the situations when this would
occur and the level of proof that must
be shown by the party seeking to make
educational decisions on behalf of a
child. The commenter stated that only
under the most extreme and compelling
circumstances should a court be able to
appoint another individual to take the
place of a biological or adoptive parent.
Discussion: It would be inappropriate
and beyond the authority of the
Department to regulate on the
termination of parental rights to make
educational decisions. It is the
responsibility of a court to decide
whether to appoint another person or
persons to act as a parent of a child or
to make educational decisions on behalf
of a child.
Changes: None.
Comment: One commenter requested
clarifying to whom LEAs must provide
notice, or obtain consent in situations
where there are disputes between
biological or adoptive parents (e.g.,
when parents separate or divorce).
Discussion: In situations where the
parents of a child are divorced, the
parental rights established by the Act
apply to both parents, unless a court
order or State law specifies otherwise.
Changes: None.
Comment: A few commenters
recommended clarifying in the
regulations that a private agency that
contracts with a public agency for the
education or care of the child may not
act as a parent.
Discussion: A private agency that
contracts with a public agency for the
education or care of the child, in
essence, works for the public agency,
and therefore, could not act as a parent
under the Act. We do not believe it is
necessary to regulate on this matter.
Changes: None.
Parent Training and Information Center
(§ 300.31)
Comment: One commenter requested
describing a parent training and
information center (PTI) and a
community parent resource center
(CPRC) in the regulations, rather than
referencing section 671 or 672 of the
Act.
Discussion: We do not believe it is
necessary to include these descriptions
in the regulations. Section 671 of the
Act describes the program requirements
for a PTI and section 672 of the Act
describes the program requirements for
a CPRC. These sections describe the
activities required of PTIs and CPRCs, as
well as the application process for
discretionary funding under Part D of
the Act, and would unnecessarily add to
the length of the regulations.
Changes: None.
Comment: One commenter stated that,
in order for a State or LEA to be
considered for funding under the Act,
the regulations should require
partnerships with the PTIs and the
CPRCs, as well as input from PTIs and
CPRCs on assessing State and local
needs, and developing and
implementing a plan to address State
and local needs.
Discussion: We disagree with the
commenter. There is nothing in the Act
that requires States or LEAs, as a
condition of funding, to obtain input
from PTIs and CPRCs in assessing needs
or developing and implementing a plan
to address State or local needs. States
and LEAs are free to do so, but it is not
a requirement for funding.
Changes: None.
Public Agency (§ 300.33)
Comment: One commenter stated that
the term public agency is not in the Act
and noted that no State has created a
new type of public education agency
beyond LEAs and SEAs. The commenter
stated that including the definition of
public agency in the regulations,
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therefore, raises concerns regarding the
responsibility and authority for future
special education services.
Discussion: The definition of public
agency refers to all agencies responsible
for various activities under the Act. The
terms ‘‘LEA’’ or ‘‘SEA’’ are used when
referring to a subset of public agencies.
We disagree that the definition raises
concerns about the responsibility and
authority for future educational services
because the term public agency is used
only for those situations in which a
particular regulation does not apply
only to SEAs and LEAs.
During our internal review of the
NPRM, we found several errors in the
definition of public agency. Our intent
was to use the same language in current
§ 300.22. We will, therefore, correct
these errors to be consistent with
current § 300.22. Additionally, we will
clarify that a charter school must be a
nonprofit charter school. As noted in
the discussion regarding § 300.28(b)(2),
we clarified that a charter school
established as its own LEA under State
law, must be a nonprofit charter school.
Changes: We have removed the
phrase ‘‘otherwise included as’’ the
second time it appears, and replaced it
with ‘‘a school of an’’ in § 300.33. We
have also changed ‘‘LEAs’’ to ‘‘LEA’’
and ‘‘ESAs’’ to ‘‘ESA’’ the third time
these abbreviations appear in § 300.33.
Related Services (§ 300.34)
Related Services, General (§ 300.34(a))
Comment: One commenter requested
defining related services as enabling a
child with a disability to receive FAPE
in the LRE.
Discussion: The definition of related
services is consistent with section
601(26) of the Act, which does not refer
to LRE. The Department believes that
revising the regulations as requested
would inappropriately expand the
definition in the Act. Furthermore, the
regulations in § 300.114(a)(2)(ii) already
prevent placement of a child outside the
regular education environment unless
the child cannot be satisfactorily
educated in the regular education
environment with the use of
supplementary aids and services.
Therefore, we see no need to make the
change suggested by the commenter.
Changes: None.
Comment: We received numerous
requests to revise § 300.34 to add
specific services in the definition of
related services. A few commenters
recommended including marriage and
family therapy. One commenter
recommended adding nutrition therapy
and another commenter recommended
adding recreation therapy. A significant
number of commenters recommended
adding art, music, and dance therapy.
One commenter recommended adding
services to ensure that medical devices,
such as those used for breathing,
nutrition, and other bodily functions,
are working properly. One commenter
requested adding programming and
training for parents and staff as a related
service.
A few commenters requested
clarification on whether auditory
training and aural habilitation are
related services. One commenter asked
whether hippotherapy should be
included as a related service. Other
commenters recommended adding
language in the regulations stating that
the list of related services is not
exhaustive. A few commenters asked
whether a service is prohibited if it is
not listed in the definition of related
services.
Discussion: Section 300.34(a) and
section 602(26) of the Act state that
related services include other
supportive services that are required to
assist a child with a disability to benefit
from special education. We believe this
clearly conveys that the list of services
in § 300.34 is not exhaustive and may
include other developmental, corrective,
or supportive services if they are
required to assist a child with a
disability to benefit from special
education. It would be impractical to
list every service that could be a related
service, and therefore, no additional
language will be added to the
regulations.
Consistent with §§ 300.320 through
300.328, each child’s IEP Team, which
includes the child’s parent along with
school officials, determines the
instruction and services that are needed
for an individual child to receive FAPE.
In all cases concerning related services,
the IEP Team’s determination about
appropriate services must be reflected in
the child’s IEP, and those listed services
must be provided in accordance with
the IEP at public expense and at no cost
to the parents. Nothing in the Act or in
the definition of related services
requires the provision of a related
service to a child unless the child’s IEP
Team has determined that the related
service is required in order for the child
to benefit from special education and
has included that service in the child’s
IEP.
Changes: None.
Comment: One commenter
recommended adding behavior
interventions to the list of related
services, stating that while positive
behavioral interventions and supports
are often provided by one of the
professionals listed in § 300.34(c), other
types of specialists also often provide
them.
Discussion: The list of related services
in § 300.34 is consistent with section
602(26) of the Act and, as noted above,
we do not believe it is necessary to add
additional related services to this list.
We agree with the commenter that there
may be many professionals in a school
district who are involved in the
development of positive behavioral
interventions. Including the
development of positive behavioral
interventions in the description of
activities under psychological services
(§ 300.34(b)(10)) and social work
services in schools (§ 300.34(b)(14)) is
not intended to imply that school
psychologists and social workers are
automatically qualified to perform these
services or to prohibit other qualified
personnel from providing these services,
consistent with State requirements.
Changes: None.
Exception; Services That Apply to
Children With Cochlear Implants
(§ 300.34(b))
Comment: Many commenters opposed
the exclusion of surgically implanted
devices from the definition of related
services. Many commenters stated that
the Act does not exclude the
maintenance or programming of
surgically implanted devices from the
definition of related services, and that
the regulations should specifically state
that related services includes the
provision of mapping services for a
child with a cochlear implant. A few
commenters stated that the issue of
mapping cochlear implants needs to be
clarified so that schools and parents
understand who is responsible for
providing this service. One commenter
requested that the regulations clearly
specify that optimization of a cochlear
implant is a medical service and define
mapping as an audiological service.
Discussion: The term ‘‘mapping’’
refers to the optimization of a cochlear
implant and is not included in the
definition of related services.
Specifically, ‘‘mapping’’ and
‘‘optimization’’ refer to adjusting the
electrical stimulation levels provided by
the cochlear implant that is necessary
for long-term post-surgical follow-up of
a cochlear implant. Although the
cochlear implant must be properly
mapped in order for the child to hear
well in school, the mapping does not
have to be done in school or during the
school day in order for it to be effective.
The exclusion of mapping from the
definition of related services reflects the
language in Senate Report (S. Rpt.) No.
108–185, p. 8, which states that the
Senate committee did not intend that
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mapping a cochlear implant, or even the
costs associated with mapping, such as
transportation costs and insurance co-
payments, be the responsibility of a
school district. These services and costs
are incidental to a particular course of
treatment chosen by the child’s parents
to maximize the child’s functioning, and
are not necessary to ensure that the
child is provided access to education,
regardless of the child’s disability,
including maintaining health and safety
while in school. We will add language
in § 300.34(b) to clarify that mapping a
cochlear implant is an example of
device optimization and is not a related
service under the Act.
Changes: We have added ‘‘(e.g.,
mapping)’’ following ‘‘functioning’’ in
§ 300.34(b) to clarify that mapping a
surgically implanted device is not a
related service under the Act.
Comment: A significant number of
commenters stated that children with
cochlear implants need instruction in
listening and language skills to process
spoken language, just as children with
hearing loss who use hearing aids, and
requested that the regulations clarify
that excluding the optimization of
device functioning from the definition
of related services does not impact a
child’s access to related services such as
speech and language therapy, assistive
listening devices, appropriate classroom
acoustics, auditory training, educational
interpreters, cued speech transliterators,
and specialized instruction.
One commenter requested that the
regulations explicitly state whether a
public agency is required to provide
more speech and language services or
audiology services to a child with a
cochlear implant. Another commenter
requested that the regulations clarify
that optimization only refers to access to
assistive technology, such as assistive
listening devices (e.g., personal
frequency modulation (FM) systems)
and monitoring and troubleshooting of
the device function that is required
under proper functioning of hearing
aids.
Discussion: Optimization generally
refers to the mapping necessary to make
the cochlear implant work properly and
involves adjusting the electrical
stimulation levels provided by the
cochlear implant. The exclusion of
mapping as a related service is not
intended to deny a child with a
disability assistive technology (e.g., FM
system); proper classroom acoustical
modifications; educational support
services (e.g., educational interpreters);
or routine checking to determine if the
external component of a surgically
implanted device is turned on and
working. Neither does the exclusion of
mapping as a related service preclude a
child with a cochlear implant from
receiving the related services (e.g.,
speech and language services) that are
necessary for the child to benefit from
special education services. As the
commenters point out, a child with a
cochlear implant may still require
related services, such as speech and
language therapy, to process spoken
language just as other children with
hearing loss who use hearing aids may
need those services and are entitled to
them under the Act if they are required
for the child to benefit from special
education. Each child’s IEP Team,
which includes the child’s parent along
with school officials, determines the
related services, and the amount of
services, that are required for the child
to benefit from special education. It is
important that the regulations clearly
state that a child with a cochlear
implant or other surgically implanted
medical device is entitled to related
services that are determined by the
child’s IEP Team to be necessary for the
child to benefit from special education.
Therefore, we will add language in
§ 300.34(b) to clarify that a child with a
cochlear implant or other surgically
implanted medical device is entitled to
those related services that are required
for the child to benefit from special
education, as determined by the child’s
IEP Team.
Changes: We have reformatted
§ 300.34(b) and added a new paragraph
(2) to clarify that a child with a cochlear
implant or other surgically implanted
device is entitled to the related services
that are determined by the child’s IEP
Team to be required for the child to
benefit from special education. We have
also added the phrase ‘‘services that
apply to children with surgically
implanted devices, including cochlear
implants’ to the heading in § 300.34(b).
Comment: One commenter expressed
concern that excluding the optimization
of device functioning and maintenance
of the device as related services will
establish different standards for serving
children with cochlear implants versus
children who use hearing aids and other
external amplification devices, and
recommended clarifying that routine
monitoring of cochlear implants and
other surgically implanted devices to
ensure that they are functioning in a
safe and effective manner is permitted
under the Act.
A few commenters stated that some
schools are interpreting the exclusion of
device optimization, functioning, and
maintenance to mean that they do not
have to help the child change a battery
in the externally worn speech processor
connected with the surgically implanted
device, make certain that it is turned on,
or help the child to learn to listen with
the cochlear implant. One commenter
stated that children with cochlear
implants should have the same services
as children who use a hearing aid when
the battery needs changing or
equipment breaks down.
One commenter stated that § 300.34(b)
is confusing and should explicitly state
that the exception of the optimization of
device functioning, maintenance of the
device, or replacement of the device is
limited to surgically implanted devices.
The commenter stated that the language
could erroneously lead to an
interpretation that this exception is
applicable to all medical devices. One
commenter expressed concern that this
misinterpretation could put insulin
pumps and other medical devices that
are required for the health of the child
in the same category as cochlear
implants.
A few commenters stated that it is
important to clarify that excluding the
optimization of device functioning and
the maintenance of the device should
not be construed to exclude medical
devices and services that children need
to assist with breathing, nutrition, and
other bodily functions while the child is
involved with education and other
school-related activities.
One commenter stated that a school
nurse, aide, teacher’s aide, or any other
person who is qualified and trained
should be allowed to monitor and
maintain, as necessary, a surgically
implanted device.
Discussion: A cochlear implant is an
electronic device surgically implanted
to stimulate nerve endings in the inner
ear (cochlea) in order to receive and
process sound and speech. The device
has two parts, one that is surgically
implanted and attached to the skull and,
the second, an externally worn speech
processor that attaches to a port in the
implant. The internal device is intended
to be permanent.
Optimization or ‘‘mapping’’ adjusts or
fine tunes the electrical stimulation
levels provided by the cochlear implant
and is changed as a child learns to
discriminate signals to a finer degree.
Optimization services are generally
provided at a specialized clinic. As we
discussed previously regarding § 300.34,
optimization services are not a covered
service under the Act. However, a
public agency still has a role in
providing services and supports to help
children with cochlear implants.
Particularly with younger children or
children who have recently obtained
implants, teachers and related services
personnel frequently are the first to
notice changes in the child’s perception
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of sounds that the child may be missing.
This may manifest as a lack of attention
or understanding on the part of the
child or frustration in communicating.
The changes may indicate a need for
remapping, and we would expect that
school personnel would communicate
with the child’s parents about these
issues. To the extent that adjustments to
the devices are required, a specially
trained professional would provide the
remapping, which is not considered the
responsibility of the public agency.
In many ways, there is no substantive
difference between serving a child with
a cochlear implant in a school setting
and serving a child with a hearing aid.
The externally worn speech processor
connected with the surgically implanted
device is similar to a hearing aid in that
it must be turned on and properly
functioning in order for the child to
benefit from his or her education.
Parents of children with cochlear
implants and parents of children with
hearing aids both frequently bring to
school extra batteries, cords, and other
parts for the hearing aids and externally
worn speech processors connected with
the surgically-implanted devices,
especially for younger children. The
child also may need to be positioned so
that he or she can directly see the
teacher at all times, or may need an FM
amplification system such as an audio
loop.
For services that are not necessary to
provide access to education by
maintaining the health or safety of the
child while in school, the distinguishing
factor between those services that are
not covered under the Act, such as
mapping, and those that are covered,
such as verifying that a cochlear implant
is functioning properly, in large
measure, is the level of expertise
required. The maintenance and
monitoring of surgically implanted
devices require the expertise of a
licensed physician or an individual
with specialized technical expertise
beyond that typically available from
school personnel. On the other hand,
trained lay persons or nurses can
routinely check an externally worn
processor connected with a surgically
implanted device to determine if the
batteries are charged and the external
processor is operating. (As discussed
below, the Act does require public
agencies to provide those services that
are otherwise related services and are
necessary to maintain a child’s health or
safety in school even if those services
require specialized training.) Teachers
and related services providers can be
taught to first check the externally worn
speech processor to make sure it is
turned on, the volume and sensitivity
settings are correct, and the cable is
connected, in much the same manner as
they are taught to make sure a hearing
aid is properly functioning. To allow a
child to sit in a classroom when the
child’s hearing aid or cochlear implant
is not functioning is to effectively
exclude the child from receiving an
appropriate education. Therefore, we
believe it is important to clarify that a
public agency is responsible for the
routine checking of the external
components of a surgically implanted
device in much the same manner as a
public agency is responsible for the
proper functioning of hearing aids.
The public agency also is responsible
for providing services necessary to
maintain the health and safety of a child
while the child is in school, with
breathing, nutrition, and other bodily
functions (e.g., nursing services,
suctioning a tracheotomy, urinary
catheterization) if these services can be
provided by someone who has been
trained to provide the service and are
not the type of services that can only be
provided by a licensed physician.
(Cedar Rapids Community School
District v. Garret F., 526 U.S. 66 (1999)).
Changes: We have added new
§ 300.113 to cover the routine checking
of hearing aids and external components
of surgically implanted devices. The
requirement for the routine checking of
hearing aids has been removed from
proposed § 300.105 and included in
new § 300.113(a). The requirement for
routine checking of an external
component of a surgically implanted
medical device has been added as new
§ 300.113(b). The requirements for
assistive technology devices and
services remain in § 300.105 and the
heading has been changed to reflect this
change. We have also included a
reference to new § 300.113(b) in new
§ 300.34(b)(2).
Comment: A few commenters stated
that specialized cochlear implant
audiologists who are at implant centers
or closely associated with them should
program cochlear implants. One
commenter stated that, typically, school
audiologists and school personnel do
not have the specialized experience to
program cochlear implants.
Discussion: The personnel with the
specific expertise or licensure required
for the optimization (e.g., mapping) of
surgically implanted devices are
decisions to be made within each State
based on applicable State statutes and
licensing requirements. Since mapping
is not covered under the Act, personnel
standards for individuals who provide
mapping services are beyond the scope
of these regulations.
Changes: None.
Audiology (§ 300.34(c)(1))
Comment: One commenter stated that
the definition of audiology does not
reflect current audiology practice in
schools and recommended new
language to include services for children
with auditory-related disorders,
provision of comprehensive audiologic
habilitation and rehabilitation services;
consultation and training of teachers
and other school staff; and involvement
in classroom acoustics.
Discussion: The definition of
audiology is sufficiently broad to enable
audiologists to be involved in the
activities described by the commenter.
We do not believe it is necessary to
change the definition to add the specific
functions recommended by the
commenter.
Changes: None.
Comment: A few commenters
requested adding mapping services for a
child with a cochlear implant to the
definition of audiology.
Discussion: For the reasons discussed
previously in this section, § 300.34(b)
specifically excludes the optimization of
a surgically implanted device from the
definition of related services. This
includes mapping of a cochlear implant.
Changes: None.
Comment: One commenter stated that
the definition of audiology appears to be
limited to children who are deaf or hard
of hearing, and recommended adding
language to allow children without
expressive speech to receive such
services.
Discussion: The term audiology, as
defined in § 300.34(c)(1), focuses on
identifying and serving children who
are deaf or hard of hearing. It is not
necessary to add language in the
regulations regarding children without
expressive speech because the
determining factor of whether audiology
services are appropriate for a child is
whether the child may be deaf or hard
of hearing, not whether a child has
expressive speech.
Changes: None.
Early Identification and Assessment of
Disabilities (§ 300.34(c)(3))
Comment: Some commenters noted
that ‘‘early identification and
assessment of disabilities’’ was removed
from the list of related services in
§ 300.34(a).
Discussion: ‘‘Early identification and
assessment of disabilities’’ was
inadvertently omitted from the list of
related services in § 300.34(a).
Changes: ‘‘Early identification and
assessment’’ will be added to the list of
related services in § 300.34(a).
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Interpreting Services (§ 300.34(c)(4))
Comment: One commenter
recommended that the definition of
interpreting services requires that such
services be provided by a qualified
interpreter who is able to effectively,
accurately, and impartially use any
specialized vocabulary, both receptively
and expressively. A few commenters
strongly recommended requiring
interpreting services to be provided by
qualified interpreters to ensure
equivalent communication access and
effective communication with, and for,
children who are deaf or hard of
hearing. The commenter stated that
personnel standards for interpreters
vary greatly across SEAs and LEAs, and
requiring qualified interpreters would
be consistent with the definition of
other related services included in these
regulations such as physical therapy
and occupational therapy.
One commenter recommended
defining the function of an interpreter as
a person who facilitates communication
between children who are deaf or hard
of hearing, staff, and children,
regardless of the job title.
Discussion: Section 300.156,
consistent with section 612(a)(14) of the
Act, clarifies that it is the responsibility
of each State to establish personnel
qualifications to ensure that personnel
necessary to carry out the purposes of
the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
to serve children with disabilities. It is
not necessary to add more specific
functions of individuals providing
interpreting services, as recommended
by the commenters. States are
appropriately given the flexibility to
determine the qualifications and
responsibilities of personnel, based on
the needs of children with disabilities in
the State.
Changes: None.
Comment: A few commenters
recommended including American sign
language and sign language systems in
the definition of interpreting services.
Discussion: The definition of
interpreting services is sufficiently
broad to include American sign
language and sign language systems,
and therefore, will not be changed. We
believe it is important to include sign
language transliteration (e.g., translation
systems such as Signed Exact English
and Contact Signing), in addition to sign
language interpretation of another
language (e.g., American sign language)
in the definition of interpreting services,
and will add this language to
§ 300.34(c)(4)(i).
Changes: We have added language to
§ 300.34(c)(4)(i) to include sign language
transliteration.
Comment: A few commenters
recommended changing the definition
of interpreting services to clarify that the
need for interpreting services must be
based on a child’s disability and not
degree of English proficiency.
Discussion: The definition of
interpreting services clearly states that
interpreting services are used with
children who are deaf or hard of
hearing. The nature and type of
interpreting services required for
children who are deaf or hard of hearing
and also limited in English proficiency
are to be determined by reference to the
Department’s regulations and policies
regarding students with limited English
proficiency. For example, the
Department’s regulations in 34 CFR part
100, implementing Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d,
require that recipients of Federal
financial assistance ensure meaningful
access to their programs and activities
by students who are limited English
proficient, including those who are deaf
or hard of hearing. The requirement to
provide services to students who are
limited English proficient and others is
also governed by various Department
policy memoranda including the
September 27, 1991 memorandum,
‘‘Department of Education Policy
Update on Schools’ Obligations Toward
National Origin Minority Students With
Limited English Proficiency’’; the
December 3, 1985 guidance document,
‘‘The Office for Civil Rights’ Title VI
Language Minority Compliance
Procedures’’; and the May 1970
memorandum to school districts,
‘‘Identification of discrimination and
Denial of Services on the Basis of
National Origin,’’ 35 FR 11595. These
documents are available at http://
www.lep.gov. We do not believe
additional clarification is necessary.
Changes: None.
Comment: One commenter stated that
the definition of interpreting services
appears to be limited to children who
are deaf or hard of hearing, and
recommended adding language to allow
children without expressive speech to
receive such services.
Discussion: Interpreting services, as
defined in § 300.34(c)(4), clearly states
that interpreting services are used with
children who are deaf and hard of
hearing. Therefore, a child who is not
deaf or hard of hearing, but who is
without expressive speech, would not
be considered eligible to receive
interpreting services as defined in
§ 300.34(c)(4). However, such a child
could be considered eligible for speech-
language pathology services, consistent
with § 300.34(c)(15).
Changes: None.
Comment: Some commenters
recommended including
communication access real-time
transcription (CART) services in the
definition of interpreting services
because these services are being used
with increasing frequency in
postsecondary education and
employment settings, and familiarity
and experience with CART services may
better prepare children who are deaf or
hard of hearing to transition to higher
education and employment
environments. A few commenters stated
that the definition of interpreting
services appears to limit interpreting
services to the methods listed in
§ 300.34(c)(4), which exclude tactile and
close vision interpreting for children
who are deaf-blind.
Discussion: Although the definition of
interpreting services is written broadly
to include other types of interpreting
services, we believe that it is important
to include in the definition services in
which oral communications are
transcribed into real-time text.
Therefore, we are adding language to
§ 300.34(c)(4) to refer to transcription
services and include several examples
of transcription systems used to provide
such services.
We also believe that it is important
that the definition of interpreting
services include services for children
who are deaf-blind. However, because
there are many types of interpreting
services for children who are deaf-blind,
in addition to tactile and close vision
interpreting services, we will add a
more general statement to include
interpreting services for children who
are deaf-blind, rather than listing all the
different methods that might be used for
children who are deaf-blind.
Changes: We have restructured
§ 300.34(c)(4) and added ‘‘and
transcription services such as
communication real-time translation
(CART), C-Print, and TypeWell’’ to the
definition of interpreting services in
paragraph (c)(4)(i). We have also added
a new paragraph (c)(4)(ii) to include
interpreting services for children who
are deaf-blind.
Medical Services (§ 300.34(c)(5))
Comment: One commenter stated that
the definition of medical services is not
in the Act and recommended that the
definition be broader than the decision
in Cedar Rapids Community School
Dist. v. Garrett F., 526 U.S. 66 (1999),
which the definition appears to follow.
Discussion: The list of related services
in § 300.34(a) includes medical services
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for diagnostic and evaluation purposes,
consistent with section 602(26) of the
Act. The Department continues to
believe that using language from the Act
to define medical services is essential.
Defining medical services more broadly,
as recommended by the commenter,
would not be consistent with the Act.
Changes: None.
Orientation and Mobility Services
(§ 300.34(c)(7))
Comment: Several commenters
supported including travel training in
the definition of orientation and
mobility services and recommended
adding a reference to the definition of
travel training in new § 300.39(b)(4)
(proposed § 300.38(b)(4)). However,
other commenters stated that travel
training should appear as a distinct
related service and should not be
included in the definition of orientation
and mobility services because children
who are blind and visually impaired
receive this type of instruction from
certified orientation and mobility
specialists. One commenter stated that
the regulations should specify that
travel training is for children with
cognitive or other disabilities.
Discussion: We believe that including
travel training in the definition of
orientation and mobility services may be
misinterpreted to mean that travel
training is available only for children
who are blind or visually impaired or
that travel training is the same as
orientation and mobility services. We
will, therefore, remove travel training
from § 300.34(c)(7). This change,
however, does not diminish the services
that are available to children who are
blind or visually impaired.
Travel training is defined in new
§ 300.39(b)(4) (proposed § 300.38(b)(4))
for children with significant cognitive
disabilities and any other children with
disabilities who require this instruction,
and, therefore, would be available for
children who are blind or visually
impaired, as determined by the child’s
IEP Team. Travel training is not the
same as orientation and mobility
services and is not intended to take the
place of appropriate orientation and
mobility services.
Changes: We have removed ‘‘travel
training instruction’’ from
§ 300.34(c)(7)(ii) to avoid confusion
with the definition of travel training in
new § 300.39(b)(4) (proposed
§ 300.38(b)(4)), and to clarify that travel
training is not the same as orientation
and mobility services and cannot take
the place of appropriate orientation and
mobility services.
Comment: One commenter
recommended that the regulations
specify who is qualified to provide
travel training instruction and stated
that it is critical that skills such as street
crossing be taught correctly.
Discussion: Section 300.156,
consistent with section 612(a)(14) of the
Act, requires each State to establish
personnel qualifications to ensure that
personnel necessary to carry out the
purposes of the Act are appropriately
and adequately prepared and trained
and have the content knowledge and
skills to serve children with disabilities.
It is, therefore, the State’s responsibility
to determine the qualifications that are
necessary to provide travel training
instruction.
Changes: None.
Parent Counseling and Training
(§ 300.34(c)(8))
Comment: A few commenters stated
that the definition of parent counseling
and training in § 300.34(c)(8) is not
included in the definition of related
services in section 602(26)(A) of the Act
and, therefore, should not be included
in the regulations.
Discussion: Paragraphs (i) and (ii) of
§ 300.34(c)(8), regarding assisting
parents in understanding the special
needs of their child, and providing
parents with information about child
development, respectively, are protected
by section 607(b) of the Act, and cannot
be removed. Section 300.34(c)(8)(iii),
regarding helping parents acquire the
skills to allow them to support the
implementation of their child’s IEP or
IFSP, was added in the 1999 regulations
to recognize the more active role of
parents as participants in the education
of their children. Although not included
in the Act, we believe it is important to
retain this provision in these regulations
so that there is no question that parent
counseling and training includes
helping parents acquire skills that will
help them support the implementation
of their child’s IEP or IFSP.
Changes: None.
Comment: One commenter
recommended that the regulations
describe the responsibility of LEAs to
provide parent counseling and training.
Discussion: As with other related
services, an LEA only is responsible for
providing parent counseling and
training if a child’s IEP Team
determines that it is necessary for the
child to receive FAPE. To include this
language in the definition of parent
counseling and training, moreover,
would be unnecessarily duplicative of
§ 300.17(d), which states that FAPE
means special education and related
services that are provided in conformity
with an IEP that meets the requirements
in §§ 300.320 through 300.324.
Changes: None.
Physical Therapy (§ 300.34(c)(9))
Comment: One commenter
recommended the definition of physical
therapy include related therapeutic
services for children with degenerative
diseases.
Discussion: We do not believe the
suggested change is necessary because
the definition of physical therapy is
broadly defined and could include
therapeutic services for children with
degenerative diseases. It is the
responsibility of the child’s IEP Team to
determine the special education and
related services that are necessary for a
child to receive FAPE. There is nothing
in the Act that prohibits the provision
of therapeutic services for children with
degenerative diseases, if the IEP Team
determines they are needed for an
individual child and, thereby, includes
the services in the child’s IEP.
Changes: None.
Comment: One commenter stated that
the definition of physical therapy in
§ 300.34(c)(9) is circular and requested
that a functional definition be provided.
Discussion: The definition of physical
therapy has been in the regulations
since 1977 and is commonly accepted
by SEAs, LEAs, and other public
agencies. We do not believe it is
necessary to change the definition.
Changes: None.
Psychological Services (§ 300.34(c)(10))
Comment: One commenter
recommended that the definition of
psychological services include strategies
to facilitate social-emotional learning.
Discussion: We do not believe the
definition should be revised to add a
specific reference to the strategies
recommended by the commenter. The
definition of psychological services is
sufficiently broad to enable
psychologists to be involved in
strategies to facilitate social-emotional
learning.
Changes: None.
Comment: One commenter stated that
unless the definition of psychological
services includes research-based
counseling, schools will argue that they
are required to provide counseling
services delivered by social workers
because counseling is included in the
definition of social work services in
schools.
Discussion: We do not believe
including research-based counseling in
the definition of psychological services
is necessary. Including counseling in
the definition of social work services in
schools in § 300.34(c)(14) is intended to
indicate the types of personnel who
assist in this activity and is not intended
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either to imply that school social
workers are automatically qualified to
perform counseling or to prohibit other
qualified personnel from providing
counseling, consistent with State
requirements.
Changes: None.
Comment: One commenter stated that
other related services personnel, in
addition to school psychologists, should
be permitted to develop and deliver
positive behavioral intervention
strategies.
Discussion: There are many
professionals who might also play a role
in developing and delivering positive
behavioral intervention strategies. The
standards for personnel who assist in
developing and delivering positive
behavioral intervention strategies will
vary depending on the requirements of
the State. Including the development
and delivery of positive behavioral
intervention strategies in the definition
of psychological services is not intended
to imply that school psychologists are
automatically qualified to perform these
duties or to prohibit other qualified
personnel from providing these services,
consistent with State requirements.
Changes: None.
Recreation (§ 300.34(c)(11))
Comment: A few commenters
requested modifying the definition of
recreation to include therapeutic
recreation services provided by a
qualified recreational therapist, which
include services that restore, remediate,
or rehabilitate to improve functioning
and independence, and reduce or
eliminate the effects of illness or
disability.
Discussion: We do not believe it is
necessary to change the definition of
recreation as recommended by the
commenters because the definition is
sufficiently broad to include the
services mentioned by the commenters.
Changes: None.
School Health Services and School
Nurse Services (Proposed School Nurse
Services) (§ 300.34(c)(13))
Comment: Some commenters noted
that while ‘‘school health services’’ is
included in the list of related services in
§ 300.34(a), it is not defined, which will
result in confusion about the
relationship between ‘‘school health
services’’ and ‘‘school nurse services.’’
Some commenters stated that adding
the definition of school nurse services
and eliminating the definition of school
health services must not narrow the
range of related services available to
children. One commenter recommended
that the definition of school nurse
services allow school nurse services to
be provided by other qualified persons,
as well as a qualified school nurse,
because the majority of schools do not
have a school nurse on staff. One
commenter requested that the
regulations clarify that schools can
continue to use registered nurses or
other personnel to provide school nurse
services, consistent with State law.
Another commenter stated that there is
well-established case law upholding the
obligation of an SEA and LEA to
provide health-related services
necessary for a child to benefit from
special education.
Discussion: School health services
was retained in the definition of related
services in § 300.34(a). However, the
definition of school health services was
inadvertently removed in the NPRM. To
correct this error, we will add school
health services to the definition of
school nurse services and clarify that
school health services and school nurse
services means health services that are
designed to enable a child with a
disability to receive FAPE. We will also
add language to clarify that school nurse
services are provided by a qualified
school nurse and that school health
services are provided by either a
qualified school nurse or other qualified
person. We recognize that most schools
do not have a qualified school nurse on
a full-time basis (i.e., a nurse that meets
the State standards for a qualified
school nurse), and that many schools
rely on other qualified school personnel
to provide school health services under
the direction of a school nurse.
Therefore, we believe it is important to
retain the definition of school health
services and school nurse services in
these regulations.
With the changes made in § 300.34(c),
it is not necessary for the reference to
‘‘school nurse services’’ in § 300.34(a) to
include the phrase, ‘‘designed to enable
a child with a disability to receive a free
appropriate public education as
described in the IEP of the child.’’ We
will, therefore, remove this phrase in
§ 300.34(a).
Changes: Section 300.34(c)(13) has
been revised to include a definition of
school health services and school nurse
services. Additional language has been
added to clarify who provides school
health services and school nurse
services. We have also modified
§ 300.34(a) by deleting the redundant
phrase, ‘‘designed to enable a child with
a disability to receive a free appropriate
public education as described in the IEP
of the child.’’
Comment: One commenter stated that
adding school nurse services to the
definition of related services makes it
more burdensome for the delivery of
services to children who are medically-
fragile.
Discussion: It is unclear how adding
school nurse services to the definition of
related services affects services to
children who are medically fragile. As
defined in § 300.34(c)(13), school health
services and school nurse services are
designed to enable a child with a
disability to receive FAPE as described
in the child’s IEP. A child who is
medically fragile and needs school
health services or school nurse services
in order to receive FAPE must be
provided such services, as indicated in
the child’s IEP.
Changes: None.
Comment: One commenter stated that
the definition of school nurse services
should include services that enable a
child with a disability to receive FAPE
in the LRE. Another commenter stated
that school nurses can be extremely
supportive of children with disabilities
receiving FAPE in the LRE and
recommended changing the regulations
to ensure that parents understand that
the definition of related services
includes school nurse services.
Discussion: The LRE requirements in
§§ 300.114 through 300.120 provide,
that to the maximum extent appropriate,
children with disabilities are to be
educated with children who are not
disabled. It is not necessary to repeat
this requirement in the definition of
school health services and school nurse
services.
We agree that school health services
and school nurse services are important
related services. Section 300.34(a) and
section 602(26)(A) of the Act are clear
that the definition of related services
includes school health services and
school nurse services. The IEP Team, of
which the parent is an integral member,
is responsible for determining the
services that are necessary for the child
to receive FAPE. We, therefore, do not
believe that it is necessary to add a
regulation requiring public agencies to
ensure that parents understand that
related services include school health
services and school nurse services.
Changes: None.
Comment: One commenter stated that
including the phrase, ‘‘designed to
enable a child with a disability to
receive a free appropriate public
education’’ in § 300.34(c)(13) in relation
to school nurse services, is unnecessary
and confusing.
Discussion: As stated in § 300.34(a),
the purpose of related services is to
assist a child with a disability to benefit
from special education. We believe it is
necessary to specify that school health
services and school nurse services are
related services only to the extent that
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the services allow a child to benefit
from special education and enable a
child with a disability to receive FAPE.
Changes: None.
Social Work Services in Schools
(§ 300.34(c)(14))
Comment: One commenter
recommended including strategies to
facilitate social-emotional learning in
the definition of social work services in
schools. A few commenters stated that
the role of the school social worker is
evolving and recommended that the
definition include the role of social
workers as integral members of pre-
referral teams that deliver interventions
to decrease the number of referrals to
special education. One commenter
recommended that the definition
include a reference to the social
worker’s role in addressing the relevant
history and current functioning of an
individual within his or her
environmental context, rather than
referring to social-developmental
histories. Another commenter stated
that social workers are trained to find
resources in the home, school, and
community and recommended
including such language in the
definition.
Discussion: The definition of social
work services in schools is sufficiently
broad to include the services described
by the commenters and we do not
believe the definition should be revised
to add these more specific functions.
Changes: None.
Comment: One commenter stated that
the definition of social work services in
schools removes language from the 1983
regulations that states that social work
services allow children with disabilities
to maximize benefit from the learning
program. The commenter stated that this
is a higher standard than what is
required in § 300.34(c)(14), which only
requires that services enable a child to
learn as effectively as possible, and,
therefore, the 1983 definition should be
retained, consistent with section 607(b)
of the Act.
Discussion: We disagree with the
commenter. The definition of social
work services in schools in the 1977
regulations included ‘‘mobilizing school
and community resources to enable the
child to receive maximum benefit from
his or her educational program.’’ As
explained in the preamble to the final
1992 regulations, the phrase ‘‘to receive
maximum benefit’’ was intended only to
provide that the purpose of activities
carried out by personnel qualified to
provide social work services in schools
is to mobilize resources so that a child
can learn as effectively as possible in his
or her educational program. The
language in the preamble to the final
1992 regulations also clarified that this
provision did not set a legal standard for
that program or entitle the child to a
particular educational benefit. The
preamble further explained that, during
the public comment period for the 1992
regulations, commenters raised
concerns that the term ‘‘maximum
benefit’’ appeared to be inconsistent
with the decision by the United States
Supreme Court in Board of Education v.
Rowley, 458 U.S. 176 (1982). Therefore,
the phrase was revised to read ‘‘to learn
as effectively as possible in his or her
educational program.’’ This is the same
phrase used in the 1999 regulations and
in these regulations in
§ 300.34(c)(14)(iv). Because the language
in the 1977 final regulations did not
entitle a child to any particular benefit,
the change made in 1992 did not lessen
protections for a child, and, therefore, is
not subject to section 607(b) of the Act.
Changes: None.
Comment: One commenter
recommended adding a reference to
‘‘functional behavioral assessments’’ in
§ 300.34(c)(14)(v) because functional
behavioral assessments should always
precede the development of behavioral
intervention strategies. Another
commenter expressed concern that
§ 300.34(c)(14)(iv), regarding social
work services to mobilize school and
community resources to enable the
child to learn as effectively as possible,
creates a potential for litigation. The
commenter asked whether a school
district could face a due process hearing
for failure to mobilize community
resources if there are no community
resources to address the needs of the
child or family.
Discussion: The definition of social
work services in schools includes
examples of the types of social work
services that may be provided. It is not
a prescriptive or exhaustive list. The
child’s IEP Team is responsible for
determining whether a child needs
social work services, and what specific
social work services are needed in order
for the child to receive FAPE. Therefore,
while conducting a functional
behavioral assessment typically
precedes developing positive behavioral
intervention strategies, we do not
believe it is necessary to include
functional behavioral assessments in the
definition of social work services in
schools because providing positive
behavioral intervention strategies is just
an example of a social work service that
might be provided to a child if the
child’s IEP Team determines that such
services are needed for the child to
receive FAPE. Similarly, if a child’s IEP
Team determines that mobilizing
community resources would not be an
effective means of enabling the child to
learn as effectively as possible because
there are no community resources to
address the needs of the child, the IEP
Team would need to consider other
ways to meet the child’s needs. While
there is the possibility that a due
process hearing might be filed based on
a failure to mobilize community
resources that do not exist, we do not
believe that such a claim could ever be
successful, as the regulation does not
require the creation of community
resources that do not exist.
Changes: None.
Speech-language Pathology Services
(§ 300.34(c)(15))
Comment: One commenter stated that
children who need speech therapy
should have it for a full classroom
period, five days a week, and not be
removed from other classes to receive
this related service.
Discussion: It would be inconsistent
with the Act to dictate the amount and
location of services for all children
receiving speech-language pathology
services, as recommended by the
commenter. As with all related services,
section 614(d)(1)(A)(i)(IV) of the Act
provides that the child’s IEP Team is
responsible for determining the services
that are needed for the child to receive
FAPE. This includes determining the
type of related service, as well as the
amount and location of services.
Changes: None.
Comment: One commenter stated that
the definition of speech-language
pathology services appears to be limited
to children who are deaf or hard of
hearing, and recommended adding
language to the regulations to allow
children without expressive speech to
receive such services.
Discussion: There is nothing in the
Act or the regulations that would limit
speech-language pathology services to
children who are deaf or hard of hearing
or to children without expressive
speech. The definition of speech-
language pathology services specifically
includes services for children who have
language impairments, as well as speech
impairments.
Changes: None.
Comment: One commenter requested
the definition of speech-language
pathology services specify the
qualifications and standards for speech-
language professionals. Another
commenter requested that the definition
require a highly qualified provider to
deliver speech-language services. One
commenter requested that the definition
require a speech-language pathologist to
provide speech-language services.
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Discussion: Consistent with § 300.156
and section 612(a)(14) of the Act, it is
up to each State to establish personnel
qualifications to ensure that personnel
necessary to carry out the purposes of
the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
to serve children with disabilities.
Section 300.156(b), consistent with
section 614(a)(14)(B) of the Act,
specifically requires that these
personnel qualifications must include
qualifications for related services
personnel. Establishing qualifications
for individuals providing speech-
language services in these regulations
would be inconsistent with these
statutory and regulatory requrements.
Changes: None.
Comment: One commenter stated that
the roles and responsibilities for speech-
language pathologists in schools have
been expanded to help all children gain
language and literacy skills and
recommended that the definition of
speech-language pathology services be
revised to include consultation and
collaboration with other staff members
to plan and implement special
intervention monitoring programs and
modify classroom instruction to assist
children in achieving academic success.
The commenter also recommended
including services for other health
impairments, such as dysphagia, in the
definition of speech-language pathology
services.
Discussion: The Act provides for
speech-language pathology services for
children with disabilities. It does not
include speech-language pathology
services to enable all children to gain
language and literacy skills, as
suggested by the commenter. It would,
therefore, be inconsistent with the Act
to change the definition of speech-
language pathology services in the
manner recommended by the
commenter. We believe that the
definition is sufficiently broad to
include services for other health
impairments, such as dysphagia, and
therefore, decline to revise the
definition to include this specific
service.
Changes: None.
Transportation (§ 300.34(c)(16))
Comment: A few commenters stated
that the definition of transportation
should require transportation to be
provided between school and other
locations in which IEP services are
provided. Other commenters requested
that the definition explicitly define
transportation as door-to-door services,
including provisions for an aide to
escort the child to and from the bus
each day.
Discussion: A child’s IEP Team is
responsible for determining whether
transportation between school and other
locations is necessary in order for the
child to receive FAPE. Likewise, if a
child’s IEP Team determines that
supports or modifications are needed in
order for the child to be transported so
that the child can receive FAPE, the
child must receive the necessary
transportation and supports at no cost to
the parents. We believe the definition of
transportation is sufficiently broad to
address the commenters’ concerns.
Therefore, we decline to make the
requested changes to the definition.
Changes: None.
Comment: Some commenters
recommended removing the term
‘‘special transportation’’ from the
definition of transportation because the
term gives the impression that adapted
buses are used for a separate and
different transportation system, when,
in fact, adapted buses are part of the
regular transportation fleet and system.
These commenters stated that adapted
buses should only be used as a separate,
special transportation service if the
child’s IEP indicates that the
transportation needs of the child can be
met only with transportation services
that are separate from the transportation
services for all children.
Discussion: We do not believe it is
necessary to make the change requested
by the commenters. It is assumed that
most children with disabilities will
receive the same transportation
provided to nondisabled children,
consistent with the LRE requirements in
§§ 300.114 through 300.120, unless the
IEP Team determines otherwise. While
we understand the commenter’s
concern, adapted buses may or may not
be part of the regular transportation
system in a particular school system. In
any case, if the IEP Team determines
that a child with a disability requires
transportation as a related service in
order to receive FAPE, or requires
supports to participate in integrated
transportation with nondisabled
children, the child must receive the
necessary transportation or supports at
no cost to the parents.
Changes: None.
Scientifically Based Research (new
§ 300.35)
Comment: A number of commenters
requested that the regulations include a
definition of scientifically based
research.
Discussion: The definition of
scientifically based research is
important to the implementation of Part
B of the Act and, therefore, we will
include a reference to the definition of
that term in section 9101(37) of the
ESEA.
For the reasons set forth earlier in this
notice, we are not including definitions
from other statutes in these regulations.
However, we will include the current
definition of scientifically based
research in section 9101(37) of the
ESEA here for reference.
Scientifically based research—
(a) Means research that involves the
application of rigorous, systematic, and
objective procedures to obtain reliable
and valid knowledge relevant to
education activities and programs; and
(b) Includes research that—
(1) Employs systematic, empirical
methods that draw on observation or
experiment;
(2) Involves rigorous data analyses
that are adequate to test the stated
hypotheses and justify the general
conclusions drawn;
(3) Relies on measurements or
observational methods that provide
reliable and valid data across evaluators
and observers, across multiple
measurements and observations, and
across studies by the same or different
investigators;
(4) Is evaluated using experimental or
quasi-experimental designs in which
individuals, entities, programs, or
activities are assigned to different
conditions and with appropriate
controls to evaluate the effects of the
condition of interest, with a preference
for random-assignment experiments, or
other designs to the extent that those
designs contain within-condition or
across-condition controls;
(5) Ensures that experimental studies
are presented in sufficient detail and
clarity to allow for replication or, at a
minimum, offer the opportunity to build
systematically on their findings; and
(6) Has been accepted by a peer-
reviewed journal or approved by a panel
of independent experts through a
comparably rigorous, objective, and
scientific review.
Changes: A cross-reference to the
definition of scientifically based
research in section 9101(37) of the
ESEA has been added as new § 300.35.
Subsequent definitions have been
renumbered accordingly.
Secondary School (New § 300.36)
(Proposed § 300.35)
Comment: One commenter requested
clarification regarding the definition of
secondary school and whether ‘‘grade
12’’ refers to the regular grade 12
curriculum aligned to State academic
achievement standards under the ESEA
or a limit on the number of years
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children with a disabilities can spend in
school.
Discussion: The term ‘‘grade 12’’ in
the definition of secondary school has
the meaning given it under State law. It
is not intended to impose a Federal
limit on the number of years a child
with a disability is allowed to complete
his or her secondary education, as some
children with disabilities may need
more than 12 school years to complete
their education.
Changes: None.
Services Plan (New § 300.37) (Proposed
§ 300.36)
Comment: One commenter stated that
the term services plan is not in the Act
and, therefore, should be removed.
However, the commenter stated that if
the definition of services plan remained
in the regulations, it should reflect the
fact that parentally-placed private
school children are not entitled to
FAPE.
Discussion: The definition of services
plan was included to describe the
content, development, and
implementation of plans for parentally-
placed private school children with
disabilities who have been designated to
receive equitable services. The
definition cross-references the specific
requirements for the provision of
services to parentally-placed private
school children with disabilities in
§ 300.132 and §§ 300.137 through
300.139, which provide that parentally-
placed private school children have no
individual right to special education
and related services and thus are not
entitled to FAPE. We do not believe
further clarification is necessary.
Changes: None.
Special Education (New § 300.39)
(Proposed § 300.38)
Comment: One commenter requested
modifying the definition of special
education to distinguish special
education from other forms of
education, such as remedial
programming, flexible grouping, and
alternative education programming. The
commenter stated that flexible grouping,
diagnostic and prescriptive teaching,
and remedial programming have
expanded in the general curriculum in
regular classrooms and the expansion of
such instruction will only be
encouraged with the implementation of
early intervening services under the Act.
Discussion: We believe the definition
of special education is clear and
consistent with the definition in section
602(29) of the Act. We do not believe it
is necessary to change the definition to
distinguish special education from the
other forms of education mentioned by
the commenter.
Changes: None.
Individual Special Education Terms
Defined (New § 300.39(b)) (Proposed
§ 300.38(b))
Comment: A few commenters
provided definitions of
‘‘accommodations’’ and ‘‘modifications’’
and recommended including them in
new § 300.39(b) (proposed § 300.38(b)).
Discussion: The terms
‘‘accommodations’’ and ‘‘modifications’’
are terms of art referring to adaptations
of the educational environment, the
presentation of educational material, the
method of response, or the educational
content. They are not, however,
examples of different types of
‘‘education’’ and therefore we do not
believe it is appropriate to define these
terms of art or to include them in new
§ 300.39(b) (proposed § 300.38(b)).
Changes: None.
Physical Education (New § 300.39(b)(2))
(Proposed § 300.38(b)(2))
Comment: One commenter requested
that adaptive physical education be
subject to the LRE requirements of the
Act.
Discussion: The requirements in
§§ 300.114 through 300.120 require that,
to the maximum extent appropriate,
children with disabilities are educated
with children who are nondisabled.
This requirement applies to all special
education services, including adaptive
physical education. We see no need to
repeat this requirement specifically for
the provision of adaptive physical
education.
Changes: None.
Specially Designed Instruction (New
§ 300.39(b)(3)) (Proposed § 300.38(b)(3))
Comment: One commenter stated that
the regulations should strengthen the
requirements ensuring children access
to the general curriculum, because many
children with disabilities still do not
have the tools they need or the teachers
with expertise to access the general
curriculum.
Discussion: We believe the regulations
place great emphasis on ensuring that
children with disabilities have access to
the general education curriculum. New
§ 300.39(b)(3) (proposed § 300.38(b)(3))
defines specially designed instruction as
adapting the content, methodology, or
delivery of instruction to address the
unique needs of the child and to ensure
access to the general curriculum so that
the child can meet the educational
standards within the jurisdiction of the
public agency that apply to all children.
In addition, ensuring that children with
disabilities have access to the general
curriculum is a major focus of the
requirements for developing a child’s
IEP. For example, § 300.320(a)(1)
requires a child’s IEP to include a
statement of how the child’s disability
affects the child’s involvement and
progress in the general education
curriculum; § 300.320(a)(2)(i) requires
annual IEP goals to be designed to
enable the child to be involved in and
make progress in the general education
curriculum; and § 300.320(a)(4) requires
the IEP to include a statement of the
special education and related services
the child will receive, as well as the
program modifications or supports for
school personnel that will be provided,
to enable the child to be involved in and
make progress in the general education
curriculum. We do not believe
additional language is necessary.
Changes: None.
Travel Training (New § 300.39(b)(4))
(Proposed § 300.38(b)(4))
Comment: A few commenters
recommended strengthening the
definition of travel training in new
§ 300.39(b)(4) (proposed § 300.38(b)(4))
and adding travel training to new
§ 300.43 (proposed § 300.42) (transition
services) to acknowledge that
transportation is vitally important for
children with disabilities to have full
participation in the community. The
commenters recommended that the
definition of travel training include
providing instruction to children with
disabilities, other than blindness, to
enable them to learn the skills and
behaviors necessary to move effectively
and safely in various environments,
including use of public transportation.
Discussion: We believe the definition
of travel training already acknowledges
the importance of transportation in
supporting children with disabilities to
fully participate in their communities.
New § 300.43(a)(4) (proposed
§ 300.42(a)(4)) defines travel training to
include providing instruction that
enables children to learn the skills
necessary to move effectively and safely
from place to place in school, home, at
work and in the community. Therefore,
we do not believe that further
clarification is necessary. We also do
not believe that it is necessary to add
travel training to the definition of
transition services, as recommended by
the commenters. We believe that IEP
Teams already consider the importance
of transportation and travel training
services in the course of planning for a
student’s postsecondary transition
needs. It is unnecessary to state that
travel training includes instructing
children with disabilities other than
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blindness, as requested by the
commenters, because the definition of
travel training already states that travel
training is appropriate for any child
with a disability who requires this
instruction.
Changes: None.
Comment: A few commenters strongly
recommended clarifying that the
definition of travel training does not
include training for children with visual
impairments, regardless of whether they
have additional disabilities.
Discussion: Any child with a
disability, including a child with a
visual impairment, who needs travel
training instruction to receive FAPE, as
determined by the child’s IEP Team, can
receive travel training instruction. New
§ 300.39(b)(4) (proposed § 300.38(b)(4))
specifically states that travel training
means providing instruction to children
with significant cognitive disabilities
and any other children with disabilities
who require this instruction. We,
therefore, decline to change the
definition, as recommended by the
commenters.
Changes: None.
Vocational Education (New
§ 300.39(b)(5)) (Proposed § 300.38(b)(5))
Comment: A few commenters
recommended revising the definition of
vocational education to include
specially designed educational
programs that are directly related to the
preparation of individuals for paid or
unpaid employment or for additional
preparation for a career not requiring a
baccalaureate or advanced degree.
Discussion: We believe that the more
general reference to ‘‘organized
education programs’’ in the definition of
vocational education is accurate and
should not be changed to refer to
‘‘specially designed educational
programs,’’ as recommended by the
commenter, because some children with
disabilities will benefit from
educational programs that are available
for all children and will not need
specially designed programs.
Changes: None.
Comment: Some commenters stated
that Congress did not intend that the
definition of vocational education
would include vocational and technical
education. The commenters stated that
the addition of vocational and technical
education to the definition of vocational
education creates a right under the Act
to educational services that would be
extremely costly for States and LEAs to
implement.
Other commenters stated that
including the definition of vocational
and technical education from the Carl
D. Perkins Act expands FAPE beyond
secondary education, which is an
unwarranted responsibility for school
districts. One commenter stated that the
definition could be interpreted to
require public agencies to provide two
years of postsecondary education for
students with disabilities. A few
commenters strongly recommended
removing the definition of vocational
and technical education.
Some commenters recommended
removing the reference to the
postsecondary level for a 1-year
certificate, an associate degree, and
industry-recognized credential in the
definition of vocational and technical
education. One commenter suggested
that proposed § 300.38(b)(6)(i)(A)
conclude with the word ‘‘or’’ to clarify
that the sequence of courses is
discretionary.
Discussion: The definition of
vocational education was revised to
include the definition of vocational and
technical education in the Carl D.
Perkins Vocational and Applied
Technology Act of 1988, as amended, 20
U.S.C. 2301, 2302(29). However, based
on the comments we received, it is
apparent that including the definition of
vocational and technical education has
raised concerns and confusion regarding
the responsibilities of SEAs and LEAs to
provide vocational education.
Therefore, we will remove the definition
of vocational and technical education in
proposed § 300.38(b)(6) and the
reference to vocational and technical
education in proposed § 300.38(b)(5)(ii).
Changes: The definition of vocational
and technical education in proposed
§ 300.38(b)(6) has been removed.
Accordingly, the reference to vocational
and technical education in proposed
§ 300.38(b)(5)(ii)) has also been
removed.
Supplementary Aids and Services (New
§ 300.42) (Proposed § 300.41)
Comment: A few commenters stated
that the definition of supplementary
aids and services should be changed to
mean aids, services, and other supports
provided in general education classes or
other settings to children with
disabilities, as well as to educators,
other support staff, and nondisabled
peers, if necessary, to support the
inclusion of children with disabilities.
Discussion: The definition of
supplementary aids and services in new
§ 300.42 (proposed § 300.41) is
consistent with the specific language in
section 602(33) of the Act, and refers to
aids, services, and other supports for
children with disabilities. We do not
believe it is necessary to change the
definition to include providing aids,
services, and supports to other
individuals because § 300.320(a)(4)
requires each child’s IEP to include a
statement of the program modifications
or supports for school personnel that
will be provided to enable the child to
be involved in and make progress in the
general education curriculum, and to
participate in extracurricular and other
nonacademic activities.
As noted in the Analysis of Comments
and Changes section for subpart B, we
have clarified in § 300.107(a) that States
must ensure that public agencies take
steps to provide nonacademic and
extracurricular services and activities,
including providing supplementary aids
and services determined appropriate
and necessary by the child’s IEP Team
to afford children with disabilities an
equal opportunity for participation in
those services and activities. We have,
therefore, revised the definition of
supplementary aids and services in new
§ 300.42 (proposed § 300.41) to be
consistent with this change.
Changes: We have added language in
new § 300.42 (proposed § 300.41) to
clarify that supplementary aids and
services can be provided in
extracurricular and nonacademic
settings to enable children with
disabilities to be educated with
nondisabled children to the maximum
extent appropriate.
Comment: None.
Discussion: New § 300.42 (proposed
§ 300.41) contains an incorrect reference
to § 300.112. The correct reference
should be to § 300.114.
Changes: We have removed the
reference to § 300.112 and replaced it
with a reference to § 300.114.
Transition Services (New § 300.43)
(Proposed § 300.42)
Comment: One commenter
recommended replacing the word
‘‘child’’ with ‘‘student’’ in the definition
of transition services.
Discussion: The definition of
transition services follows the language
in section 602(34) of the Act. The words
‘‘child’’ and ‘‘student’’ are used
throughout the Act and we have used
the statutory language in these
regulations whenever possible.
Changes: None.
Comment: One commenter
recommended that the regulations
include vocational and career training
through work-study as a type of
transition service. A few commenters
stated that the definition of transition
services must specify that a student’s
need for transition services cannot be
based on the category or severity of a
student’s disability, but rather on the
student’s individual needs.
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Discussion: We do not believe it is
necessary to change the definition of
transition services because the
definition is written broadly to include
a range of services, including vocational
and career training that are needed to
meet the individual needs of a child
with a disability. The definition clearly
states that decisions regarding transition
services must be made on the basis of
the child’s individual needs, taking into
account the child’s strengths,
preferences, and interests. As with all
special education and related services,
the student’s IEP Team determines the
transition services that are needed to
provide FAPE to a child with a
disability based on the needs of the
child, not on the disability category or
severity of the disability. We do not
believe further clarification is necessary.
Changes: None.
Comment: A few commenters stated
that the regulations do not define
‘‘functional’’ or explain how a student’s
functional performance relates to the
student’s unique needs or affects the
student’s education. The commenters
noted that the word ‘‘functional’’ is used
throughout the regulations in various
forms, including ‘‘functional
assessment,’’ ‘‘functional goals,’’
‘‘functional abilities,’’ ‘‘functional
needs,’’ ‘‘functional achievement,’’ and
‘‘functional performance,’’ and should
be defined to avoid confusion. One
commenter recommended either
defining the term or explicitly
authorizing States to define the term.
One commenter recommended
clarifying that ‘‘functional performance’’
must be a consideration for any child
with a disability who may need services
related to functional life skills and not
just for students with significant
cognitive disabilities. A few
commenters stated that the definition of
transition services must specify that
‘‘functional achievement’’ includes
achievement in all major life functions,
including behavior, social-emotional
development, and daily living skills.
Discussion: We do not believe it is
necessary to include a definition of
‘‘functional’’ in these regulations
because the word is generally used to
refer to activities and skills that are not
considered academic or related to a
child’s academic achievement as
measured on Statewide achievement
tests. There is nothing in the Act that
would prohibit a State from defining
‘‘functional,’’ as long as the definition
and its use are consistent with the Act.
We also do not believe it is necessary
for the definition of transition services
to refer to all the major life functions or
to clarify that functional performance
must be a consideration for any child
with a disability, and not just for
students with significant cognitive
disabilities. As with all special
education and related services, the
student’s IEP Team determines the
services that are needed to provide
FAPE to a child with a disability based
on the needs of the child.
Changes: None.
Comment: One commenter requested
a definition of ‘‘results-oriented
process.’’
Discussion: The term ‘‘results-
oriented process,’’ which appears in the
statutory definition of transition
services, is generally used to refer to a
process that focuses on results. Because
we are using the plain meaning of the
term (i.e., a process that focuses on
results), we do not believe it is
necessary to define the term in these
regulations.
Changes: None.
Comment: A few commenters stated
that ‘‘acquisition of daily living skills
and functional vocational evaluation’’ is
unclear as a child does not typically
‘‘acquire’’ an evaluation. The
commenters stated that the phrase
should be changed to ‘‘functional
vocational skills.’’
Discussion: We agree that the phrase
is unclear and will clarify the language
in the regulation to refer to the
‘‘provision of a functional vocational
evaluation.’’
Changes: We have added ‘‘provision
of a’’ before ‘‘functional vocational
evaluation’’ in new § 300.43(a)(2)(v) for
clarity.
Universal Design (New § 300.44)
(Proposed § 300.43)
Comment: Many commenters
requested including the full definition
of universal design in the regulations,
rather than providing a reference to the
definition of the term.
Discussion: The term universal design
is defined in the Assistive Technology
Act of 1998, as amended. For the
reasons set forth earlier in this notice,
we are not including in these
regulations full definitions of terms that
are defined in other statutes. However,
we will include the definition of this
term from section 3 of the Assistive
Technology Act of 1998, as amended, 29
U.S.C. 3002, here for reference.
The term universal design means a
concept or philosophy for designing and
delivering products and services that are
usable by people with the widest
possible range of functional capabilities,
which include products and services
that are directly accessible (without
requiring assistive technologies) and
products and services that are
interoperable with assistive
technologies.
Changes: None.
Comment: Several commenters stated
that the definition of universal design
should be changed to include the
universal design of academic content
standards, curricula, instructional
materials, and assessments.
Discussion: The definition of
universal design is statutory. Congress
clearly intended that we use this
specific definition when it used this
term in the Act. We do not believe we
can change this definition as suggested
by the commenters.
Changes: None.
Subpart B—State Eligibility
FAPE Requirements
Free Appropriate Public Education
(FAPE) (§ 300.101)
Comment: One commenter
recommended revising § 300.101 to
ensure that children with disabilities
who are suspended or expelled from
their current placement are provided
educational services consistent with
State academic achievement standards.
One commenter asked whether children
with disabilities who are suspended or
expelled from their current placement
must continue to be taught by highly
qualified teachers.
Discussion: We believe the concern
raised by the commenter is already
addressed by this regulation and
elsewhere in the regulations and that no
changes to § 300.101 are necessary.
Section 300.530(d), consistent with
section 615(k)(1)(D) of the Act, clarifies
that a child with a disability who is
removed from his or her current
placement for disciplinary reasons,
irrespective of whether the behavior is
determined to be a manifestation of the
child’s disability, must be allowed to
participate in the general education
curriculum, although in another setting,
and to progress toward meeting his or
her IEP goals. As the term ‘‘general
education curriculum’’ is used
throughout the Act and in these
regulations, the clear implication is that
there is an education curriculum that is
applicable to all children and that this
curriculum is based on the State’s
academic content standards.
Children with disabilities who are
suspended or expelled from their
current placement in public schools
must continue to be taught by highly
qualified teachers, consistent with the
requirements in §§ 300.156 and 300.18.
Private school teachers are not subject to
the highly qualified teacher
requirements under this part.
Changes: None.
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Comment: One commenter suggested
clarifying in § 300.101 that FAPE must
be available to children with disabilities
in the least restrictive environment.
Discussion: We do not believe further
clarification is needed in § 300.101, as
the matter is adequately covered
elsewhere in the regulations. Section
300.101 clarifies that, in order to be
eligible to receive funds under Part B of
the Act, States must, among other
conditions, ensure that FAPE is made
available to all children with specified
disabilities in mandated age ranges. The
term FAPE is defined in § 300.17 and
section 602(9)(D) of the Act as
including, among other elements,
special education and related services,
provided at no cost to parents, in
conformity with an individualized
education program (IEP). Sections
300.114 through 300.118, consistent
with section 612(a)(5) of the Act,
implement the Act’s strong preference
for educating children with disabilities
in regular classes with appropriate aids
and supports. Specifically, § 300.114
provides that States must have in effect
policies and procedures ensuring that,
to the maximum extent appropriate,
children with disabilities, including
children in public or private institutions
or other care facilities, are educated
with children who are nondisabled, and
that special classes, separate schooling,
or other removal of children with
disabilities from the regular educational
environment occurs only if the nature or
severity of the disability is such that
education in regular classes with the use
of supplementary aids and services
cannot be achieved satisfactorily.
Changes: None.
Comment: A few commenters
recommended including language in
§ 300.101(a) specifying that children
with disabilities expelled or suspended
from the general education classroom
must be provided FAPE in the least
restrictive environment.
Discussion: The Department believes
it would not be appropriate to include
the requested language in this section
because services in these circumstances
are provided under somewhat different
criteria than is normally the case.
Section 300.530 clarifies the procedures
school personnel must follow when
removing a child with a disability who
violates a code of student conduct from
their current placement (e.g.,
suspension and expulsion). This
includes how decisions are made
regarding the educational services the
child receives and the location in which
they will be provided. School officials
need some reasonable amount of
flexibility in providing services to
children with disabilities who have
violated school conduct rules, and
should not necessarily have to provide
exactly the same services, in the same
settings, to these children. Therefore, we
decline to regulate further in this regard.
Changes: None.
Comment: Some commenters
expressed concern that children with
disabilities have to fail or be retained in
a grade or course in order to be
considered eligible for special education
and related services.
Discussion: Section 300.101(c)
provides that a child is eligible to
receive special education and related
services even though the child is
advancing from grade to grade. Further,
it is implicit from paragraph (c) of this
section that a child should not have to
fail a course or be retained in a grade in
order to be considered for special
education and related services. A public
agency must provide a child with a
disability special education and related
services to enable him or her to progress
in the general curriculum, thus making
clear that a child is not ineligible to
receive special education and related
services just because the child is, with
the support of those individually
designed services, progressing in the
general curriculum from grade-to-grade
or failing a course or grade. The group
determining the eligibility of a child for
special education and related services
must make an individual determination
as to whether, notwithstanding the
child’s progress in a course or grade, he
or she needs or continues to need
special education and related services.
However, to provide additional clarity
we will revise paragraph (c)(1) of this
section to explicitly state that children
do not have to fail or be retained in a
course or grade in order to be
considered eligible for special education
and related services.
Changes: Section 300.101(c)(1) has
been revised to provide that children do
not have to fail or be retained in a
course or grade in order to be
considered eligible for special education
and related services.
Limitation—Exception to FAPE for
Certain Ages (§ 300.102)
Comment: One commenter requested
that the regulations clarify that children
with disabilities who do not receive a
regular high school diploma continue to
be eligible for special education and
related services. One commenter
expressed concern that the provision in
§ 300.102(a)(3)(ii) regarding children
with disabilities who have not been
awarded a regular high school diploma
could result in the delay of transition
services in the context of the child’s
secondary school experience and
postsecondary goals.
Discussion: We believe that
§ 300.102(a)(3) is sufficiently clear that
public agencies need not make FAPE
available to children with disabilities
who have graduated with a regular high
school diploma and that no change is
needed to the regulations. Children with
disabilities who have not graduated
with a regular high school diploma still
have an entitlement to FAPE until the
child reaches the age at which eligibility
ceases under the age requirements
within the State. However, we have
reviewed the regulations and believe
that it is important for these regulations
to define ‘‘regular diploma’’ consistent
with the ESEA regulations in 34 CFR
§ 200.19(a)(1)(i). Therefore, we will add
language to clarify that a regular high
school diploma does not include an
alternative degree that is not fully
aligned with the State’s academic
standards, such as a certificate or
general educational development (GED)
credential.
We do not believe § 300.102 could be
interpreted to permit public agencies to
delay implementation of transition
services, as stated by one commenter
because transition services must be
provided based on a child’s age, not the
number of years the child has remaining
in the child’s high school career.
Section 300.320(b), consistent with
section 614(d)(1)(A)(i)(VIII) of the Act,
requires each child’s IEP to include,
beginning not later than the first IEP to
be in effect when the child turns 16, or
younger if determined appropriate by
the IEP Team, appropriate measurable
postsecondary goals and the transition
services needed to assist the child in
reaching those goals.
Changes: A new paragraph (iv) has
been added in § 300.102(a)(3) stating
that a regular high school diploma does
not include an alternative degree that is
not fully aligned with the State’s
academic standards, such as a certificate
or GED.
Comment: One commenter requested
clarification as to how States should
include children with disabilities who
require special education services
through age 21 in calculating, for
adequate yearly progress (AYP)
purposes, the percentage of children
who graduate with a regular high school
diploma in the standard number of
years. The commenter expressed
concern that States, in order to comply
with their high school graduation rate
academic outcome requirements under
the ESEA, will change the grade status
from 12th grade to 11th grade for those
children with disabilities who will
typically age out of the public education
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system under the Act. The commenter
further stated that this will affect the
exception to FAPE provisions in
§ 300.102 for children with disabilities
who require special education services
through age 21.
Discussion: The calculation of
graduation rates under the ESEA for
AYP purposes (34 CFR 200.19(a)(1)(i))
does not alter the exception to FAPE
provisions in § 300.102(a)(3) for
children with disabilities who graduate
from high school with a regular high
school diploma, but not in the standard
number of years. The public agency
must make FAPE available until age 21
or the age limit established by State law,
even though the child would not be
included as graduating for AYP
purposes under the ESEA. In practice,
though, there is no conflict between the
Act and the ESEA, as the Department
interprets the ESEA title I regulations to
permit States to propose a method for
accurately accounting for students who
legitimately take longer than the
standard number of years to graduate.
Changes: None.
Residential Placement: (§ 300.104)
Comment: A few commenters
requested that the regulations clarify
that parents cannot be held liable for
any costs if their child with a disability
is placed in a residential setting by a
public agency in order to provide FAPE
to the child.
Discussion: Section 300.104,
consistent with section 612(a)(1) and
(a)(10)(B) of the Act, is a longstanding
provision that applies to placements
that are made by public agencies in
public and private institutions for
educational purposes and clarifies that
parents are not required to bear the costs
of a public or private residential
placement if such placement is
determined necessary to provide FAPE.
If a public agency determines in an
individual situation that a child with a
disability cannot receive FAPE from the
programs that the public agency
conducts and, therefore, placement in a
public or private residential program is
necessary to provide special education
and related services to the child, the
program, including non-medical care
and room and board, must be at no cost
to the parents of the child.
In situations where a child’s
educational needs are inseparable from
the child’s emotional needs and an
individual determination is made that
the child requires the therapeutic and
habilitation services of a residential
program in order to ‘‘benefit from
special education,’’ these therapeutic
and habilitation services may be
‘‘related services’’ under the Act. In
such a case, the SEA is responsible for
ensuring that the entire cost of that
child’s placement, including the
therapeutic care as well as room and
board, is without cost to the parents.
However, the SEA is not responsible for
providing medical care. Thus, visits to
a doctor for treatment of medical
conditions are not covered services
under Part B of the Act and parents may
be responsible for the cost of the
medical care.
Changes: None.
Assistive Technology (§ 300.105)
Comment: One commenter
recommended removing § 300.105 and
including the requirements in this
section in the definition of assistive
technology device in § 300.5 and
assistive technology service in § 300.6.
Discussion: Section 300.5 and § 300.6
define the terms assistive technology
device and assistive technology service,
respectively. Section 300.105 is not part
of the definition of these terms, but
rather is necessary to specify the
circumstances under which public
agencies are responsible for making
available assistive technology devices
and assistive technology services to
children with disabilities.
Changes: None.
Comment: A few commenters
requested clarifying in § 300.105(b)
whether hearing aids are included in the
definition of an assistive technology
device.
Discussion: An assistive technology
device, as defined in § 300.5, means any
item, piece of equipment, or product
system that is used to increase,
maintain, or improve the functional
capabilities of a child with a disability.
The decision of whether a hearing aid
is an assistive technology device is a
determination that is made on an
individual basis by the child’s IEP
Team. However, even if the IEP Team
determines that a hearing aid is an
assistive technology device, within the
meaning of § 300.5, for a particular
child, the public agency is responsible
for the provision of the assistive
technology device as part of FAPE, only
if, as specified in § 300.105, the device
is required as part of the child’s special
education defined in § 300.39, related
services defined in § 300.34, or
supplementary aids and services
defined in § 300.42.
As a general matter, public agencies
are not responsible for providing
personal devices, such as eyeglasses or
hearing aids that a child with a
disability requires, regardless of
whether the child is attending school.
However, if it is not a surgically
implanted device and a child’s IEP
Team determines that the child requires
a personal device (e.g., eyeglasses) in
order to receive FAPE, the public
agency must ensure that the device is
provided at no cost to the child’s
parents.
Changes: None.
Comment: One commenter
recommended adding language to
§ 300.105(b) to include, in addition to
hearing aids, other hearing
enhancement devices, such as a
cochlear implant.
Discussion: Section 300.105(b), as
proposed, requires a public agency to
ensure that hearing aids worn in school
by children with hearing impairments,
including deafness, are functioning
properly. This is a longstanding
requirement and was included pursuant
to a House Committee Report on the
1978 appropriations bill (H. Rpt. No.
95–381, p. 67 (1977)) directing the
Department to ensure that children with
hearing impairments are receiving
adequate professional assessment,
follow-up, and services. The
Department believes that, given the
increase in the number of children with
disabilities with surgically implanted
devices (e.g., cochlear implants, vagus
nerve stimulators, electronic muscle
stimulators), and rapid advances in new
technologies to help children with
disabilities, it is important that these
regulations clearly address any
obligation public agencies have to
provide follow-up and services to
ensure that such devices are functioning
properly.
Section 602(1) of the Act clarifies that
the definition of assistive technology
device does not include a medical
device that is surgically implanted or
the replacement of such device. Section
602(26) of the Act also stipulates that
only medical services that are for
diagnostic and evaluative purposes and
required to assist a child with a
disability to benefit from special
education are considered a related
service. We believe Congress was clear
in its intent in S. Rpt. 108–185, p. 8,
which states:
[T]he definitions of ‘‘assistive technology
device’’ and ‘‘related services’’ do not
include a medical device that is surgically
implanted, or the post-surgical maintenance,
programming, or replacement of such device,
or an external device connected with the use
of a surgically implanted medical device
(other than the costs of performing routine
maintenance and monitoring of such external
device at the same time the child is receiving
other services under the act).
The Department believes, however,
that public agencies have an obligation
to change a battery or routinely check an
external component of a surgically
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implanted medical device to make sure
it is turned on and operating. However,
mapping a cochlear implant (or paying
the costs associated with mapping) is
not routine checking as described above
and should not be the responsibility of
a public agency. We will add language
to the regulations to clarify a public
agency’s responsibility regarding the
routine checking of external
components of surgically implanted
medical devices.
Changes: A new § 300.113 has been
added with the heading, ‘‘Routine
checking of hearing aids and external
components of surgically implanted
medical devices.’’ Section 300.105(b),
regarding the proper functioning of
hearing aids, has been removed and
redesignated as new § 300.113(a). We
have added a new paragraph (b) in new
§ 300.113 clarifying that, for a child
with a surgically implanted medical
device who is receiving special
education and related services under
this part, a public agency is responsible
for routine checking of external
components of surgically implanted
medical devices, but is not responsible
for the post-surgical maintenance,
programming, or replacement of a
medical device that has been surgically
implanted (or of an external component
of a surgically implanted medical
device).
The provisions in § 300.105 have been
changed to conform with the other
changes to this section and the phrase
‘‘proper functioning of hearing aids’’ has
been removed from the heading.
Extended School Year Services
(§ 300.106)
Comment: Several commenters
recommended removing § 300.106
because the requirement to provide
extended school year (ESY) services to
children with disabilities is not required
in the Act.
Discussion: The requirement to
provide ESY services to children with
disabilities who require such services in
order to receive FAPE reflects a
longstanding interpretation of the Act
by the courts and the Department. The
right of an individual child with a
disability to receive ESY services is
based on that child’s entitlement to
FAPE under section 612(a)(1) of the Act.
Some children with disabilities may not
receive FAPE unless they receive
necessary services during times when
other children, both disabled and
nondisabled, normally would not be
served. We believe it is important to
retain the provisions in § 300.106
because it is necessary that public
agencies understand their obligation to
ensure that children with disabilities
who require ESY services in order to
receive FAPE have the necessary
services available to them, and that
individualized determinations about
each disabled child’s need for ESY
services are made through the IEP
process.
Changes: None.
Comment: One commenter stated that
the ESY requirements in § 300.106
should not be included as part of the
State eligibility requirements and would
be more appropriately included in the
definition of FAPE in § 300.17.
Discussion: The definition of FAPE in
§ 300.17 is taken directly from section
602(9) of the Act. We believe the ESY
requirements are appropriately included
under the FAPE requirements as a part
of a State’s eligibility for assistance
under Part B of the Act because the right
of an individual child with a disability
to ESY services is based on a child’s
entitlement to FAPE. As a part of the
State’s eligibility for assistance under
Part B of the Act, the State must make
FAPE available to all children with
disabilities residing in the State in
mandated age ranges.
Changes: None.
Comment: One commenter
recommended removing the word
‘‘only’’ in § 300.106(a)(2) because it is
unduly limiting.
Discussion: The inclusion of the word
‘‘only’’ is intended to be limiting. ESY
services must be provided ‘‘only’’ if a
child’s IEP Team determines, on an
individual basis, in accordance with
§§ 300.320 through 300.324, that the
services are necessary for the provision
of FAPE to the child. We do not think
this language is overly restrictive;
instead, we think it is necessary for
providing appropriate parameters to the
responsibility of the IEP Team.
Changes: None.
Comment: A few commenters
suggested revising § 300.106(a)(3)(i) to
specifically state that, in addition to
particular categories of disabilities,
public agencies may not limit ESY
services to particular age ranges. Other
commenters proposed adding
‘‘preschooler with a disability’’ to the
definition of ESY services in
§ 300.106(b)(1).
Discussion: The revisions
recommended by the commenters are
not necessary. Section 300.106(a)
clarifies that each public agency must
ensure that ESY services are available
for children with disabilities if those
services are necessary for the children to
receive FAPE. Section 300.101(a) clearly
states that FAPE must be available to all
children aged 3 through 21, inclusive,
residing in the State, except for children
ages 3, 4, 5, 18, 19, 20, or 21 to the
extent that its application to those
children would be inconsistent with
State law or practice, or the order of any
court, regarding the provision of public
education to children of those ages. We
do not believe any further clarification
is necessary.
Changes: None.
Comment: One commenter requested
that language be added to
§ 300.106(b)(1)(i) to clarify that
providing ESY services to a child with
a disability beyond the normal school
year includes, but is not limited to,
before and after regular school hours, on
weekends, and during regular school
vacations.
Discussion: Typically, ESY services
are provided during the summer
months. However, there is nothing in
§ 300.106 that would limit a public
agency from providing ESY services to
a child with a disability during times
other than the summer, such as before
and after regular school hours or during
school vacations, if the IEP Team
determines that the child requires ESY
services during those time periods in
order to receive FAPE. The regulations
give the IEP Team the flexibility to
determine when ESY services are
appropriate, depending on the
circumstances of the individual child.
Changes: None.
Comment: One commenter suggested
adding language to § 300.106 clarifying
that ‘‘recoupment and retention’’ should
not be used as the sole criteria for
determining the child’s eligibility for
ESY services.
Discussion: We do not believe the
commenter’s suggested change should
be made. The concepts of ‘‘recoupment’’
and ‘‘likelihood of regression or
retention’’ have formed the basis for
many standards that States use in
making ESY eligibility determinations
and are derived from well-established
judicial precedents. (See, for example,
Johnson v. Bixby Independent School
District 4, 921 F.2d 1022 (10th Cir.
1990); Crawford v. Pittman, 708 F.2d
1028 (5th Cir. 1983); GARC v. McDaniel,
716 F.2d 1565 (11th Cir. 1983)). States
may use recoupment and retention as
their sole criteria but they are not
limited to these standards and have
considerable flexibility in determining
eligibility for ESY services and
establishing State standards for making
ESY determinations. However, whatever
standard a State uses must be consistent
with the individually-oriented
requirements of the Act and may not
limit eligibility for ESY services to
children with a particular disability
category or be applied in a manner that
denies children with disabilities who
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require ESY services in order to receive
FAPE access to necessary ESY services.
Changes: None.
Nonacademic Services (§ 300.107)
Comment: One commenter
recommended adding more specific
language in § 300.107 regarding services
and accommodations available for
nonacademic activities to ensure that
children with disabilities are fully
included in nonacademic activities.
Discussion: We agree with the
commenter. Section 300.107(a), as
proposed, requires public agencies to
take steps to provide nonacademic and
extracurricular services and activities in
a manner necessary to afford children
with disabilities an equal opportunity to
participate in those services and
activities. In addition,
§ 300.320(a)(4)(ii), consistent with
section 614(d)(1)(i)(IV)(bb) of the Act,
clarifies that an IEP must include a
statement of the special education and
related services and supplementary aids
and services to be provided to the child
to participate in extracurricular and
other nonacademic activities. We will
add language in § 300.107(a) to clarify
that the steps taken by public agencies
to provide access to nonacademic and
extracurricular services and activities
include the provision of supplementary
aids and services determined
appropriate and necessary by the child’s
IEP Team.
Changes: Additional language has
been added in § 300.107(a) to clarify
that the steps taken by public agencies
to provide access to nonacademic and
extracurricular services and activities
include the provision of supplementary
aids and services determined
appropriate and necessary by the child’s
IEP Team.
Comment: One commenter expressed
concern about including ‘‘nonacademic
services’’ in § 300.107, because it is not
in the Act. The commenter stated that
services such as athletics, recreational
activities and clubs, counseling,
transportation and health services
should not be included in the
regulations because they may be costly
and are usually available on a limited
basis. One commenter stated that it is
confusing to include related services in
the examples of nonacademic services
and recommended that they be
removed.
Discussion: The list of nonacademic
and extracurricular services and
activities in § 300.107(b) is not
exhaustive. The list provides public
agencies with examples of services and
activities that may afford children with
disabilities an equal opportunity for
participation in the services offered to
other children of the public agency. We
disagree that the list of activities causes
confusion with related services, as we
think that the public can easily
recognize the difference between
academic counseling services, for
example, that are offered to all children,
and the type of counseling services that
might be included in a child’s IEP as a
related service. For these reasons, we
believe it is appropriate to maintain the
list of nonacademic and extracurricular
services and activities in § 300.107,
including those services that are also
related services in § 300.34.
Changes: None.
Physical Education (§ 300.108)
Comment: A few commenters stated
that, in some States, physical education
is not required for every nondisabled
child every year and this creates
situations in which children with
disabilities are in segregated physical
education classes. The commenters
recommended that the regulations
clarify the requirements for public
agencies to make physical education
available to children with disabilities
when physical education is not
available to children without
disabilities.
Discussion: Section 300.108 describes
two considerations that a public agency
must take into account to meet the
physical education requirements in this
section. First, physical education must
be made available equally to children
with disabilities and children without
disabilities. If physical education is not
available to all children (i.e., children
with and without disabilities), the
public agency is not required to make
physical education available for
children with disabilities (e.g., a district
may provide physical education to all
children through grade 10, but not to
any children in their junior and senior
years). Second, if physical education is
specially designed to meet the unique
needs of a child with a disability and is
set out in that child’s IEP, those services
must be provided whether or not they
are provided to other children in the
agency.
This is the Department’s longstanding
interpretation of the requirements in
§ 300.108 and is based on legislative
history that the intent of Congress was
to ensure equal rights for children with
disabilities. The regulation as
promulgated in 1977 was based on an
understanding that physical education
was available to all children without
disabilities and, therefore, must be made
available to all children with
disabilities. As stated in H. Rpt. No. 94–
332, p. 9, (1975):
Special education as set forth in the
Committee bill includes instruction in
physical education, which is provided as a
matter of course to all non-handicapped
children enrolled in public elementary and
secondary schools. The Committee is
concerned that although these services are
available to and required of all children in
our school systems, they are often viewed as
a luxury for handicapped children.
We agree that § 300.108(a) could be
interpreted to mean that physical
education must be made available to all
children with disabilities, regardless of
whether physical education is provided
to children without disabilities. We
will, therefore, revise paragraph (a) to
clarify that the public agency has no
obligation to provide physical education
for children with disabilities if it does
not provide physical education to
nondisabled children attending their
schools.
Changes: Section 300.108(a) has been
revised as described in the preceding
paragraph.
Full Education Opportunity Goal
(FEOG) (§ 300.109)
Comment: One commenter requested
that the regulations clarify how a State
communicates and monitors the
progress of the State’s FEOG.
Discussion: We do not believe it is
appropriate to regulate how a State
communicates and monitors its progress
toward the State’s FEOG. We believe the
State should have the flexibility needed
to implement the provisions of this
section and the State is in the best
position to make this determination.
Changes: None.
Program Options (§ 300.110)
Comment: A few commenters
recommended revising § 300.110 to
require States to ensure that each public
agency have in effect policies,
procedures, and programs to provide
children with disabilities the variety of
educational programs and services
available to nondisabled children. The
commenters stated that § 300.110 does
not provide any guidance to educators.
A few commenters stated that
‘‘vocational education is an outdated
term’’ and proposed replacing it with
‘‘career-technical and adult education’’
or ‘‘career and technical education.’’
Discussion: We do not believe it is
necessary to change § 300.110. Under
this provision, States must ensure that
public agencies take steps to ensure that
children with disabilities have access to
the same program options that are
available to nondisabled children in the
area served by the agency, whatever
those options are, and we are not aware
of any implementation problems with
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this requirement. We believe that it is
important that educators understand
that children with disabilities must have
access to the same range of programs
and services that a public agency
provides to nondisabled children and
that the regulation conveys this point.
We also do not believe it is necessary to
replace the term ‘‘vocational education’’
with the language recommended by the
commenter. The term is broad in its
meaning and generally accepted and
understood in the field and, therefore,
would encompass such areas as ‘‘career-
technical’’ and ‘‘technical education.’’
Changes: None.
Comment: Several commenters
requested that the regulations explicitly
state that a child with a disability who
has not yet received a regular high
school diploma or ‘‘aged out’’ of special
education may participate in dual
enrollment programs and receive
services in a postsecondary or
community-based setting if the IEP
Team decides it is appropriate.
Discussion: Section 300.110,
consistent with section 612(a)(2) of the
Act, requires States to ensure that public
agencies take steps to ensure that
children with disabilities have access to
the same program options that are
available to nondisabled children in the
area served by the agency. This would
apply to dual enrollment programs in
post-secondary or community-based
settings. Therefore, a State would be
responsible for ensuring that a public
agency that offered dual enrollment
programs in post-secondary or
community-based settings to a
nondisabled student would have that
option available to a student with
disabilities whose IEP Team determined
that such a program would best meet the
student’s needs. However, we do not
believe that the Act requires public
agencies to provide dual enrollment
programs in post-secondary or
community-based settings for students
with disabilities, if such programs are
not available to nondisabled secondary
school students. Therefore, we are not
modifying the regulations.
Changes: None.
Child Find (§ 300.111)
Comment: Several commenters
expressed confusion about the child
find requirements in § 300.111 and the
parental consent requirements in
§ 300.300, and requested clarification on
whether child find applies to private
school children and whether LEAs may
use the consent override procedures for
children with disabilities enrolled in
private schools. Two commenters
requested that § 300.111(a)(1)(i) specify
that child find does not apply to private
school children whose parents refuse
consent.
Discussion: This issue is addressed in
the Analysis of Comments and Changes
section for subpart D in response to
comments on § 300.300.
Changes: None.
Comment: One commenter
recommended retaining current
§ 300.125(b) to ensure that the child find
requirements are retained for parentally-
placed private school children.
Discussion: Current § 300.125(b) was
removed from these regulations because,
under the Act, States are no longer
required to have State policies and
procedures on file with the Secretary.
Furthermore, the Department believes
the requirements in §§ 300.111 and
300.131 adequately ensure that
parentally-placed private school
children are considered in the child find
process.
Changes: None.
Comment: One commenter requested
a definition of the term ‘‘private
school,’’ as used in § 300.111.
Discussion: The term ‘‘private school’’
as used in § 300.111 means a private
elementary school or secondary school,
including a religious school. The terms
elementary school and secondary school
are defined in subpart A of these
regulations. The term private is defined
in 34 CFR Part 77, which applies to this
program, and we see no need to include
those definitions here.
Changes: None.
Comment: One commenter requested
that the child find requirements in
§ 300.111(c)(2) include homeless
children.
Discussion: Homeless children are
already included in the child find
requirements. Section 300.111(a)(1)(i)
clarifies that the State must have
policies and procedures to ensure that
children with disabilities who are
homeless and who are in need of special
education and related services, are
identified, located, and evaluated. No
further clarification is needed.
Changes: None.
Comment: A few commenters
recommended including in § 300.111
the requirements in current § 300.125(c),
regarding child find for children from
birth through age two when the SEA
and lead agency for the Part C program
are different. The commenters stated
that this will ensure that children with
disabilities from birth through age two
are eligible to participate in child find
activities when the Part C lead agency
is not the SEA.
Discussion: The Department does not
believe it is necessary to retain the
language in current § 300.125(c). The
child find requirements in § 300.111
have traditionally been interpreted to
mean identifying and evaluating
children beginning at birth. While child
find under Part C of the Act overlaps, in
part, with child find under Part B of the
Act, the coordination of child find
activities under Part B and Part C is an
implementation matter that is best left
to each State. Nothing in the Act or
these regulations prohibits a Part C lead
agency’s participation, with the
agreement of the SEA, in the actual
implementation of child find activities
for infants and toddlers with
disabilities.
Changes: None.
Comment: One commenter
recommended removing § 300.111(c)
because child find for children with
developmental delays, older children
progressing from grade to grade, and
highly mobile children is not
specifically required by the Act.
Discussion: The changes requested by
the commenter cannot be made because
they are inconsistent with the Act.
Section 300.111(a)(1)(i), consistent with
section 612(a)(3)(A) of the Act,
explicitly requires that all children with
disabilities residing in the State are
identified, located, and evaluated. This
includes children suspected of having
developmental delays, as defined in
section 602(3)(B) of the Act. We
recognize that it is difficult to locate,
identify, and evaluate highly mobile and
migrant children with disabilities.
However, we strongly believe it is
important to stress in these regulations
that the States’ child find
responsibilities in § 300.111 apply
equally to such children. We also
believe it is important to clarify that a
child suspected of having a disability
but who has not failed, is making
academic progress, and is passing from
grade to grade must be considered in the
child find process as any other child
suspected of having a disability. As
noted earlier in the discussion regarding
§ 300.101, paragraph (c)(1) of § 300.111
has been revised to clarify that children
do not have to fail or be retained in a
course or grade in order to be
considered for special education and
related services.
Changes: None.
Comment: One commenter requested
that § 300.111 explicitly require that
children in residential facilities be
included in the public agency’s child
find process.
Discussion: We believe § 300.111(a),
consistent with section 612(a)(3)(A) of
the Act, clarifies that the State must
ensure that all children with disabilities
residing in the State are identified,
located, and evaluated. This would
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include children in residential facilities.
No further clarification is necessary.
Changes: None.
Individualized Education Programs
(IEP) (§ 300.112)
Comment: One commenter objected to
including the reference to
§ 300.300(b)(3)(ii) in § 300.112, stating
that it is not necessary to ensure
compliance with the requirement for an
IEP or IFSP to be developed, reviewed,
and revised for each child with a
disability.
Discussion: Section 300.300(b)(3)(ii)
states that if a parent refuses to consent
to the initial provision of special
education and related services, or the
parent fails to respond to a request to
provide consent for the initial provision
of special education and related
services, the public agency is not
required to convene an IEP meeting or
develop an IEP for the child. It is
necessary to include this reference in
§ 300.112 to clarify the circumstances
under which a public agency is not
required to develop an IEP for an
eligible child with a disability.
Changes: None.
Routine Checking of Hearing Aids and
External Components of Surgically
Implanted Medical Devices (§ 300.113)
Comment: None.
Discussion: New § 300.113 is
addressed in the Analysis of Comments
and Changes section for subpart A in
response to comments on § 300.34(b).
Changes: We have added new
§ 300.113 to cover the routine checking
of hearing aids and external components
of surgically implanted medical devices.
The requirement for the routine
checking of hearing aids has been
removed from proposed § 300.105 and
included in new § 300.113(a). The
requirement for routine checking of an
external component of a surgically
implanted medical device has been
added as new § 300.113(b). The
requirements for assistive technology
devices and services remain in
§ 300.105 and the heading has been
changed to reflect this change. We have
also included a reference to new
§ 300.113(b) in new § 300.34(b)(2).
Least Restrictive Environment (LRE)
LRE Requirements (§ 300.114)
Comment: One commenter
recommended including language in the
regulations that respects and safeguards
parental involvement and protects the
rights of children with disabilities to be
educated in the least restrictive
environment (LRE).
Discussion: We believe that the LRE
requirements in §§ 300.114 through
300.120 address the rights of children
with disabilities to be educated in the
LRE, as well as safeguard parental
rights. Section 300.114, consistent with
section 612(a)(5) of the Act, requires
each public agency to ensure that, to the
maximum extent appropriate, children
with disabilities are educated with
children who are not disabled. Further,
§ 300.116 ensures that a child’s parent is
included in the group of persons making
the decision about the child’s
placement.
Changes: None.
Comment: A number of comments
were received regarding
§ 300.114(a)(2)(ii), which requires each
public agency to ensure that the removal
of children with disabilities from the
regular educational environment occurs
only when the nature or severity of the
disability is such that the education in
regular classes with the use of
supplementary aids and services cannot
be achieved satisfactorily. Many
commenters recommended replacing
‘‘regular educational environment’’ with
‘‘regular classroom’’ because ‘‘regular
classroom’’ is less likely to be
misinterpreted to mean any kind of
contact with children without
disabilities. A few commenters
expressed concern that using the phrase
‘‘regular educational environment’’
weakens the LRE protections. Another
commenter recommended the
regulations clarify that the ‘‘regular
educational environment’’ means the
participation of children with
disabilities with their nondisabled peers
in regular classrooms and other
educational settings including
nonacademic settings.
Discussion: Section 300.114(a)(2)(ii)
follows the specific language in section
612(a)(5)(A) of the Act and reflects
previous regulatory language. This
requirement is longstanding. We do not
believe the language should be revised,
as recommended by the commenters,
because ‘‘regular educational
environment’’ encompasses regular
classrooms and other settings in schools
such as lunchrooms and playgrounds in
which children without disabilities
participate.
Changes: None.
Comment: One commenter requested
revising § 300.114(a)(2) to require a
public agency to document and justify
placements of children with disabilities
in environments outside the general
education classroom.
Discussion: The additional language
requested by the commenter is not
necessary and would impose
unwarranted paperwork burdens on
schools. Section 300.320(a)(5),
consistent with section
614(d)(1)(A)(i)(V) of the Act, already
requires a child’s IEP to include an
explanation of the extent, if any, to
which the child will not participate
with nondisabled children in the regular
class. As noted previously, parents are
a part of the group making placement
decisions. We believe these provisions
provide sufficient safeguards on the
placement process.
Changes: None.
Comment: One commenter stated that
the LRE requirements are often
misinterpreted to be a mandate to
include all children who are deaf or
hard of hearing in their local schools.
The commenter stated that the
placement decision for a child who is
deaf or hard of hearing should be based
on the child’s communication needs
and must be the environment that
presents the fewest language and
communication barriers to the child’s
cognitive, social, and emotional
development. Some commenters
cautioned that inclusive settings might
be inappropriate for a child who is deaf
and who requires communication
support and stated that the LRE should
be the place where a child can be
educated successfully. A few
commenters requested the regulations
clarify that all placement options must
remain available for children who are
deaf.
One commenter recommended
strengthening the requirement for a
continuum of alternative placements
and stated that a full range of placement
options is necessary to meet the needs
of all children with visual impairments.
Another commenter urged the
Department to ensure that children with
low-incidence disabilities (including
children who are deaf, hard of hearing,
or deaf-blind) have access to appropriate
educational programming and services
at all times, including center-based
schools, which may be the most
appropriate setting for children with
low-incidence disabilities.
Discussion: The LRE requirements in
§§ 300.114 through 300.117 express a
strong preference, not a mandate, for
educating children with disabilities in
regular classes alongside their peers
without disabilities. Section
300.114(a)(2), consistent with section
612(a)(5)(A) of the Act, requires that, to
the maximum extent appropriate,
children with disabilities are educated
with children who are not disabled, and
that special classes, separate schooling,
or other removal of children with
disabilities from the regular educational
environment occurs only when the
nature or severity of the disability is
such that education in regular classes
with the use of supplementary aids and
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services cannot be achieved
satisfactorily.
With respect to the recommendation
that the placement for children who are
deaf or hard of hearing be based on the
child’s communication needs,
§ 300.324(a)(2)(iv), consistent with
section 614(d)(3)(B)(iv) of the Act,
clarifies that the IEP Team, in
developing the IEP for a child who is
deaf or hard of hearing, must consider
the child’s language and communication
needs, opportunities for direct
communication with peers and
professional personnel in the child’s
language and communication mode, and
the child’s academic level and full range
of needs, including opportunities for
direct instruction in the child’s language
and communication mode.
With respect to strengthening the
continuum of alternative placement
requirements, nothing in the LRE
requirements would prevent an IEP
Team from making a determination that
placement in the local school is not
appropriate for a particular child.
Section 300.115 already requires each
public agency to ensure that a
continuum of alternative placements is
available to meet the needs of children
with disabilities for special education
and related services. We believe this
adequately addresses the commenter’s
concern.
The process for determining the
educational placement for children with
low-incidence disabilities (including
children who are deaf, hard of hearing,
or deaf-blind) is the same process used
for determining the educational
placement for all children with
disabilities. That is, each child’s
educational placement must be
determined on an individual case-by-
case basis depending on each child’s
unique educational needs and
circumstances, rather than by the child’s
category of disability, and must be based
on the child’s IEP. We believe the LRE
provisions are sufficient to ensure that
public agencies provide low-incidence
children with disabilities access to
appropriate educational programming
and services in the educational setting
appropriate to meet the needs of the
child in the LRE.
Changes: None.
Comment: One commenter requested
that the regulations clarify that children
with disabilities who are suspended or
expelled from school are entitled to be
educated with children who are not
disabled. The commenter stated that
this clarification is necessary to reduce
the use of home instruction as a
placement option for these children.
Discussion: The Act does not require
that children with disabilities
suspended or expelled for disciplinary
reasons continue to be educated with
children who are not disabled during
the period of their removal. We believe
it is important to ensure that children
with disabilities who are suspended or
expelled from school receive
appropriate services, while preserving
the flexibility of school personnel to
remove a child from school, when
necessary, and to determine how best to
address the child’s needs during periods
of removal and where services are to be
provided to the child during such
periods of removals, including, if
appropriate, home instruction. Sections
300.530 through 300.536 address the
options available to school authorities
in disciplining children with disabilities
and set forth procedures that must be
followed when taking disciplinary
actions and in making decisions
regarding the educational services that a
child will receive and the location in
which services will be provided. We
believe including the language
recommended by the commenter would
adversely restrict the options available
to school personnel for disciplining
children with disabilities and
inadvertently tie the hands of school
personnel in responding quickly and
effectively to serious child behaviors
and in creating safe classrooms for all
children.
Changes: None.
Additional Requirement—State Funding
Mechanism (§ 300.114(b))
Comment: One commenter stated that
§ 300.114(b) does not adequately
address the requirements for funding
mechanisms relative to the LRE
requirements and requested that note 89
of the Conf. Rpt. be included in the
regulations.
Discussion: Section 300.114(b)
incorporates the language from section
612(a)(5)(B) of the Act and prohibits
States from maintaining funding
mechanisms that violate the LRE
provisions. We do not believe it is
necessary to provide additional
clarification in the regulations. While
we agree with the commenter that note
89 of the Conf. Rpt. makes clear
Congress’ intent that State funding
mechanisms support the LRE
requirements and do not provide an
incentive or disincentive for certain
placement decisions, we believe the
requirements in § 300.114(b) accurately
capture the essence of the Conf. Rpt.
and including additional language in
this paragraph is not needed.
Changes: None.
Comment: One commenter urged the
Department to impose financial
sanctions on States that continue to base
their funding on certain placement
decisions. A few commenters suggested
changing the requirement in
§ 300.114(b)(2) for States to provide an
assurance that the State will revise its
funding mechanism ‘‘as soon as
feasible’’ to ‘‘no later than the start of
the 2006–2007 school year.’’
Discussion: Section 300.114(b)(2)
incorporates the language in section
612(a)(5)(B)(ii) of the Act, and requires
that if a State does not have policies and
procedures to ensure that the State’s
funding mechanism does not violate the
LRE requirements, the State must
provide the Secretary an assurance that
the State will revise its funding
mechanism as soon as feasible. We do
not believe it is necessary to include in
these regulations a specific timeline for
a State to revise its funding mechanism,
if required to do so pursuant to
300.114(b)(2). We believe the statutory
language ‘‘as soon as feasible,’’ while
providing flexibility as to how each
State meets the requirement, is
sufficient to ensure States’ compliance
with this requirement.
Further, we believe the enforcement
options in § 300.604 give the Secretary
sufficient means to address a State’s
noncompliance with the requirements
in § 300.114(b)(2). Section 300.604
describes the enforcement options
available to the Secretary if the
Secretary determines that a State needs
assistance or intervention implementing
the requirements of Part B of the Act, or
that there is a substantial failure to
comply with any condition of an SEA’s
or LEA’s eligibility under Part B of the
Act. Enforcement options available to
the Secretary include, among others,
recovery of funds or withholding, in
whole or in part, any further payments
to the State under Part B of the Act.
Changes: None.
Continuum of Alternative Placements
(§ 300.115)
Comment: One commenter
recommended revising § 300.115 so that
only the specific allowable alternative
settings listed in the definition of
special education in new § 300.39
(proposed § 300.38) (i.e., classroom,
home, hospitals, institutions) are
permitted.
Discussion: Section 300.115 requires
each public agency to ensure that a
continuum of alternative placements
(including instruction in regular classes,
special classes, special schools, home
instruction, and instruction in hospitals
and institutions) is available to meet the
needs of children with disabilities for
special education and related services.
The list of placement options in this
section only expands the settings
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mentioned in new § 300.39 (proposed
§ 300.38) by recognizing the various
types of classrooms and settings for
classrooms in which special education
is provided. This continuum of
alternative placements is intended to
ensure that a child with a disability is
served in a setting where the child can
be educated successfully in the LRE.
Changes: None.
Comment: One commenter suggested
adding language to the regulations to
clarify that difficulty recruiting and
hiring qualified special education
teachers does not relieve an LEA of its
obligation to ensure a continuum of
alternative placements and to offer a full
range of services to meet the needs of
children with disabilities.
Discussion: We do not believe it is
necessary to include the language
suggested by the commenter, because
§ 300.116 is sufficiently clear that
placement decisions must be based on
the individual needs of each child with
a disability. Public agencies, therefore,
must not make placement decisions
based on a public agency’s needs or
available resources, including budgetary
considerations and the ability of the
public agency to hire and recruit
qualified staff.
Changes: None.
Comment: A few commenters
recommended revising § 300.115(a) to
clarify that the continuum of alternative
placements must be available to eligible
preschool children with disabilities.
Discussion: It is not necessary to
revise § 300.115(a) in the manner
suggested by the commenters. Section
300.116 clearly states that the
requirements for determining the
educational placement of a child with a
disability include preschool children
with disabilities and that such decisions
must be made in conformity with the
LRE provisions in §§ 300.114 through
300.118. This includes ensuring that a
continuum of services is available to
meet the needs of children with
disabilities for special education and
related services.
Changes: None.
Placements (§ 300.116)
Comment: One commenter
recommended the regulations clarify
that the regular class must always be
considered the first placement option.
Discussion: We do not believe it is
necessary to include the clarification
recommended by the commenter.
Section 300.116 clarifies that placement
decisions must be made in conformity
with the LRE provisions, and
§ 300.114(a)(2) already requires that
special classes, separate schooling or
other removal of children with
disabilities from the regular education
environment only occurs if the nature or
severity of the disability is such that
education in regular classes with the use
of supplementary aids and services
cannot be achieved satisfactorily.
Changes: None.
Comment: A few commenters
recommended revising § 300.116 to
require that children with disabilities
have access to, and make progress in,
the general curriculum, and that
children receive the special education
and related services included in their
IEPs.
Discussion: The issues raised by the
commenters are already addressed
elsewhere in the regulations. The IEP
requirements in § 300.320(a), consistent
with section 614(d) of the Act, clarify
that children with disabilities must be
provided special education and related
services and needed supplementary aids
and services to enable them to be
involved in and make progress in the
general curriculum. In addition,
§ 300.323(c)(2) requires that, as soon as
possible following the development of
an IEP, special education and related
services are made available to the child
in accordance with the child’s IEP. We
believe that these regulations adequately
address the commenters’ concerns, and
that no further clarification is necessary.
Changes: None.
Comment: One commenter stated that
the placement requirements in § 300.116
encourage school districts to assign a
child with a disability to a particular
place or setting, rather than providing a
continuum of increasingly
individualized and intensive services.
The commenter suggested requiring that
the continuum of alternative placements
include a progressively more intensive
level of individualized, scientifically
based instruction and related services,
both with increased time and lower
pupil-teacher ratio, in addition to
regular instruction with supplementary
aids and services.
Discussion: The overriding rule in
§ 300.116 is that placement decisions for
all children with disabilities must be
made on an individual basis and ensure
that each child with a disability is
educated in the school the child would
attend if not disabled unless the child’s
IEP requires some other arrangement.
However, the Act does not require that
every child with a disability be placed
in the regular classroom regardless of
individual abilities and needs. This
recognition that regular class placement
may not be appropriate for every child
with a disability is reflected in the
requirement that LEAs make available a
range of placement options, known as a
continuum of alternative placements, to
meet the unique educational needs of
children with disabilities. This
requirement for the continuum
reinforces the importance of the
individualized inquiry, not a ‘‘one size
fits all’’ approach, in determining what
placement is the LRE for each child
with a disability. The options on this
continuum must include the alternative
placements listed in the definition of
special education under § 300.38
(instruction in regular classes, special
classes, special schools, home
instruction, and instruction in hospitals
and institutions). These options must be
available to the extent necessary to
implement the IEP of each child with a
disability. The group determining the
placement must select the placement
option on the continuum in which it
determines that the child’s IEP can be
implemented in the LRE. Any
alternative placement selected for the
child outside of the regular educational
environment must include appropriate
opportunities for the child to interact
with nondisabled peers, to the extent
appropriate to the needs of the children,
consistent with § 300.114(a)(2)(i).
Because placement decisions must be
determined on an individual case-by-
case basis depending on each child’s
unique educational needs and
circumstances and based on the child’s
IEP, we do not believe it is appropriate
to require in the regulations that the
continuum of alternative placements
include a progressively more intensive
level of individualized scientifically
based instruction and related services as
suggested by the commenter.
Changes: None.
Comment: We received a number of
comments regarding the phrase, ‘‘unless
the parent agrees otherwise’’ in
proposed § 300.116(b)(3) and (c). As
proposed, § 300.116(b)(3) requires the
child’s placement to be as close as
possible to the child’s home, ‘‘unless the
parent agrees otherwise;’’ and
§ 300.116(c) requires that, unless the
child’s IEP requires some other
arrangement, the child must be
educated in the school that he or she
would attend if nondisabled, ‘‘unless
the parent agrees otherwise.’’ Many
commenters requested removing the
phrase ‘‘unless the parent agrees
otherwise,’’ because it is not included in
section 612(a)(5) of the Act and is not
necessary to clarify that a parent may
place his or her child in a charter,
magnet, or other specialized school
without violating the LRE requirements.
Other commenters suggested removing
the phrase and clarifying that a decision
by the child’s parent to send the child
to a charter, magnet, or other specialized
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school is not a violation of the LRE
requirements.
Several commenters stated that
including the phrase undermines the
statutory requirement for children with
disabilities to be placed in the LRE
based on their IEPs and allows more
restrictive placements based on parental
choice. Many commenters interpreted
this phrase to mean that placement is a
matter of parental choice even in public
school settings and stated that a child’s
LRE rights should not be overridden by
parental choice. One commenter stated
that the phrase might intimidate parents
into accepting inappropriate
placements.
A few commenters stated that this
phrase is unnecessary because the Act
already requires parents to be involved
in placement decisions, and expressed
concern that including this phrase in
the regulations could lead to confusion
and litigation. One commenter stated
that the phrase suggests that additional
consent is required if the parent chooses
to send the child to a charter, magnet,
or other specialized school.
Discussion: The phrase ‘‘unless the
parent agrees otherwise’’ in proposed
§ 300.116(b)(3) and (c) was added to
clarify that a parent may send the child
to a charter, magnet, or other specialized
school without violating the LRE
mandate. A parent has always had this
option; a parent who chooses this
option for the child does not violate the
LRE mandate as long as the child is
educated with his or her peers without
disabilities to the maximum extent
appropriate. However, we agree that this
phrase is unnecessary, confusing, and
may be misunderstood to mean that
parents have a right to veto the
placement decision made by the group
of individuals in § 300.116(a)(1). We
will, therefore, remove the phrase.
Changes: We have removed the
phrase ‘‘unless the parent agrees
otherwise’’ in § 300.116(b)(3) and (c).
Comment: One commenter disagreed
with the requirement in § 300.116(b)(3)
that placements be as close as possible
to the child’s home, stating that the
requirement is administratively
prohibitive and beyond the scope of the
Act. The commenter stated that it is not
possible for school districts to provide
classes for children with all types and
degrees of disabilities in each school
building. The commenter stated that
‘‘placement’’ should be understood as
the set of services outlined in a child’s
IEP, and recommended that school
districts be permitted to provide these
services in the school building that is
most administratively feasible.
Discussion: We do not believe the
requirement imposes unduly restrictive
administrative requirements. The
Department has consistently maintained
that a child with a disability should be
educated in a school as close to the
child’s home as possible, unless the
services identified in the child’s IEP
require a different location. Even though
the Act does not mandate that a child
with a disability be educated in the
school he or she would normally attend
if not disabled, section 612(a)(5)(A) of
the Act presumes that the first
placement option considered for each
child with a disability is the regular
classroom in the school that the child
would attend if not disabled, with
appropriate supplementary aids and
services to facilitate such placement.
Thus, before a child with a disability
can be placed outside of the regular
educational environment, the full range
of supplementary aids and services that
could be provided to facilitate the
child’s placement in the regular
classroom setting must be considered.
Following that consideration, if a
determination is made that a particular
child with a disability cannot be
educated satisfactorily in the regular
educational environment, even with the
provision of appropriate supplementary
aids and services, that child could be
placed in a setting other than the regular
classroom.
Although the Act does not require
that each school building in an LEA be
able to provide all the special education
and related services for all types and
severities of disabilities, the LEA has an
obligation to make available a full
continuum of alternative placement
options that maximize opportunities for
its children with disabilities to be
educated with nondisabled peers to the
extent appropriate. In all cases,
placement decisions must be
individually determined on the basis of
each child’s abilities and needs and
each child’s IEP, and not solely on
factors such as category of disability,
severity of disability, availability of
special education and related services,
configuration of the service delivery
system, availability of space, or
administrative convenience.
Changes: None.
Comment: One commenter requested
clarifying the difference, if any, between
‘‘placement’’ and ‘‘location.’’ One
commenter recommended requiring the
child’s IEP to include a detailed
explanation of why a child’s
educational needs cannot be met in the
location requested by the parent when
the school district opposes the parent’s
request for services to be provided to the
child in the school that the child would
attend if the child did not have a
disability.
Discussion: Historically, we have
referred to ‘‘placement’’ as points along
the continuum of placement options
available for a child with a disability,
and ‘‘location’’ as the physical
surrounding, such as the classroom, in
which a child with a disability receives
special education and related services.
Public agencies are strongly encouraged
to place a child with a disability in the
school and classroom the child would
attend if the child did not have a
disability. However, a public agency
may have two or more equally
appropriate locations that meet the
child’s special education and related
services needs and school
administrators should have the
flexibility to assign the child to a
particular school or classroom, provided
that determination is consistent with the
decision of the group determining
placement. It also should be noted that,
under section 615(b)(3) of the Act, a
parent must be given written prior
notice that meets the requirements of
§ 300.503 a reasonable time before a
public agency implements a proposal or
refusal to initiate or change the
identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child.
Consistent with this notice requirement,
parents of children with disabilities
must be informed that the public agency
is required to have a full continuum of
placement options, as well as about the
placement options that were actually
considered and the reasons why those
options were rejected. While public
agencies have an obligation under the
Act to notify parents regarding
placement decisions, there is nothing in
the Act that requires a detailed
explanation in children’s IEPs of why
their educational needs or educational
placements cannot be met in the
location the parents’ request. We believe
including such a provision would be
overly burdensome for school
administrators and diminish their
flexibility to appropriately assign a
child to a particular school or
classroom, provided that the assignment
is made consistent with the child’s IEP
and the decision of the group
determining placement.
Changes: None.
Comment: One commenter
recommended including in the
regulations the Department’s policy that
a child’s placement in an educational
program that is substantially and
materially similar to the former
placement is not a change in placement.
Discussion: As stated by the
commenter, it is the Department’s
longstanding position that maintaining a
child’s placement in an educational
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program that is substantially and
materially similar to the former
placement is not a change in placement.
We do not believe further clarification is
necessary in the regulations, however,
as the distinction seems to be commonly
accepted and understood.
Changes: None.
Comment: Many commenters
suggested requiring a public agency to
pay all costs associated with providing
FAPE for a child in a private preschool,
including paying for tuition,
transportation and such special
education, related services and
supplementary aids and services as the
child needs, if an inclusive preschool is
the appropriate placement for a child,
and there is no inclusive public
preschool that can provide all the
appropriate services and supports.
Discussion: The LRE requirements in
§§ 300.114 through 300.118 apply to all
children with disabilities, including
preschool children who are entitled to
FAPE. Public agencies that do not
operate programs for preschool children
without disabilities are not required to
initiate those programs solely to satisfy
the LRE requirements of the Act. Public
agencies that do not have an inclusive
public preschool that can provide all the
appropriate services and supports must
explore alternative methods to ensure
that the LRE requirements are met.
Examples of such alternative methods
might include placement options in
private preschool programs or other
community-based settings. Paying for
the placement of qualified preschool
children with disabilities in a private
preschool with children without
disabilities is one, but not the only,
option available to public agencies to
meet the LRE requirements. We believe
the regulations should allow public
agencies to choose an appropriate
option to meet the LRE requirements.
However, if a public agency determines
that placement in a private preschool
program is necessary as a means of
providing special education and related
services to a child with a disability, the
program must be at no cost to the parent
of the child.
Changes: None.
Comment: One commenter suggested
clarifying that if a child’s behavior in
the regular classroom significantly
impairs the learning of the child or
others, that placement would not meet
the child’s needs and would not be
appropriate for that child.
Discussion: Although the Act places a
strong preference in favor of educating
children with disabilities in the regular
classroom with appropriate aids and
supports, a regular classroom placement
is not appropriate for every child with
a disability. Placement decisions are
made on a case-by-case basis and must
be appropriate for the needs of the
child. The courts have generally
concluded that, if a child with a
disability has behavioral problems that
are so disruptive in a regular classroom
that the education of other children is
significantly impaired, the needs of the
child with a disability generally cannot
be met in that environment. However,
before making such a determination,
LEAs must ensure that consideration
has been given to the full range of
supplementary aids and services that
could be provided to the child in the
regular educational environment to
accommodate the unique needs of the
child with a disability. If the group
making the placement decision
determines, that even with the provision
of supplementary aids and services, the
child’s IEP could not be implemented
satisfactorily in the regular educational
environment, that placement would not
be the LRE placement for that child at
that particular time, because her or his
unique educational needs could not be
met in that setting. (See Roncker v.
Walter, 700 F. 2d 1058 (6th Cir. 1983);
Devries v. Fairfax County School Bd.,
882 F. 2d 876, 879 (4th Cir. 1989);
Daniel R.R. v. State Bd. of Educ., 874 F.
2d 1036 (5th Cir. 1989); and A.W. v.
Northwest R–1 School Dist., 813 F.2d
158, 163 (8th Cir. 1987).)
Changes: None.
Nonacademic Settings (§ 300.117)
Comment: One commenter requested
that the regulations clarify that children
with disabilities should receive the
supplementary aids and services
necessary to ensure their participation
in nonacademic and extracurricular
services and activities.
Discussion: Section 300.117,
consistent with section 612(a)(5) of the
Act, requires that children with
disabilities participate in nonacademic
and extracurricular services and
activities with their nondisabled peers
to the maximum extent appropriate to
the needs of the child. The Act places
great emphasis on ensuring that
children with disabilities are educated,
to the maximum extent appropriate,
with children who are nondisabled and
are included in nonacademic and
extracurricular services and activities as
appropriate to the needs of the child.
We believe the public agency has an
obligation to provide a child with a
disability with appropriate aids,
services, and other supports, as
determined by the IEP Team, if
necessary to ensure the child’s
participation in nonacademic and
extracurricular services and activities.
Therefore, we will clarify in § 300.117
that each public agency must ensure
that children with disabilities have the
supplementary aids and services
determined necessary by the child’s IEP
Team for the child to participate in
nonacademic and extracurricular
services and activities to the maximum
extent appropriate to the needs of that
child.
Changes: We have added language to
§ 300.117 to ensure that children with
disabilities receive the supplementary
aids and services needed to participate
in nonacademic and extracurricular
services and activities.
Technical Assistance and Training
Activities (§ 300.119)
Comment: One commenter requested
that the regulations define ‘‘training.’’
Discussion: The Department intends
the term ‘‘training,’’ as used in
§ 300.119, to have its generally accepted
meaning. Training is generally agreed to
be any activity used to enhance one’s
skill or knowledge to acquire, maintain,
and advance knowledge, skills, and
abilities. Given the general
understanding of the term ‘‘training,’’
we do not believe it is necessary to
regulate on this matter.
Changes: None.
Children in Private Schools
Children With Disabilities Enrolled by
Their Parents in Private Schools
General Comments
Comment: Many comments were
received regarding the parentally-placed
private school children with disabilities
requirements in §§ 300.130 through
300.144. Many commenters supported
the changes to the regulations and
believed the regulations simplify the
processes for both private schools and
public schools. Numerous commenters,
however, expressed concern regarding
the implementation of the private
school requirements.
Many of the commenters expressed
concern with the requirement that the
LEAs where private elementary schools
and secondary schools are located are
now responsible for child find,
individual evaluations, and the
provision of services for children with
disabilities enrolled by their parents in
private schools located in the LEA.
These commenters described the private
school provisions in the Act and the
NPRM as burdensome and difficult to
understand.
Discussion: The revisions to the Act
in 2004 significantly changed the
obligation of States and LEAs to
children with disabilities enrolled by
their parents in private elementary
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schools and secondary schools. Section
612(a)(10)(A) of the Act now requires
LEAs in which the private schools are
located, rather than the LEAs in which
the parents of such children reside, to
conduct child find and provide
equitable services to parentally-placed
private school children with disabilities.
The Act provides that, in calculating
the proportionate amount of Federal
funds under Part B of the Act that must
be spent on parentally-placed private
school children with disabilities, the
LEAs where the private schools are
located, after timely and meaningful
consultation with representatives of
private elementary schools and
secondary schools and representatives
of parents of parentally-placed private
school children with disabilities, must
conduct a thorough and complete child
find process to determine the number of
parentally-placed children with
disabilities attending private elementary
schools and secondary schools located
in the LEAs. In addition, the obligation
of the LEA to spend a proportionate
amount of funds to provide services to
children with disabilities enrolled by
their parents in private schools is now
based on the total number of children
with disabilities who are enrolled in
private schools located in the LEA
whether or not the children and their
parents reside in the LEA.
We believe these regulations and the
additional clarification provided in our
responses to comments on §§ 300.130
through 300.144 will help States and
LEAs to better understand their
obligations in serving children with
disabilities placed by their parents in
private elementary schools and
secondary schools. In addition, the
Department has provided additional
guidance on implementing the
parentally-placed private school
requirements on the Department’s Web
site. We also are including in these
regulations Appendix B to Part 300—
Proportionate Share Calculation to
assist LEAs in calculating the
proportionate amount of Part B funds
that they must expend on parentally-
placed private school children with
disabilities attending private elementary
schools and secondary schools located
in the LEA.
Changes: We have added a reference
to Appendix B in § 300.133(b).
Comment: Several commenters
expressed concern that §§ 300.130
through 300.144 include requirements
that go beyond the Act and
recommended that any requirement
beyond what is statutory be removed
from these regulations.
Discussion: In general, the regulations
track the language in section
612(a)(10)(A) of the Act regarding
children enrolled in private schools by
their parents. However, we determined
that including clarification of the
statutory language on parentally-placed
private school children with disabilities
in these regulations would be helpful.
The volume of comments received
concerning this topic confirm the need
to regulate in order to clarify the
statutory language and to help ensure
compliance with the requirements of the
Act.
Changes: None.
Comment: Some commenters
requested that the regulations provide
flexibility to States to provide services
to parentally-placed private school
children with disabilities beyond what
they would be able to do with the
proportionate share required under the
Act. A few of these commenters
requested that those States already
providing an individual entitlement to
special education and related services or
providing a full range of special
education services to parentally-placed
private school children be deemed to
have met the requirements in §§ 300.130
through 300.144 and be permitted to
continue the State’s current practices.
One commenter specifically
recommended allowing States that
provide additional rights or services to
parentally-placed private school
children with disabilities (including
FAPE under section 612 of the Act and
the procedural safeguards under section
615 of the Act), the option of requesting
that the Secretary consider alternate
compliance with these requirements
that would include evidence and
supporting documentation of alternate
procedures under State law to meet all
the requirements in §§ 300.130 through
300.144.
A few commenters requested that the
child find and equitable participation
requirements should not apply in States
with dual enrollment provisions where
children with disabilities who are
parentally-placed in private elementary
schools or secondary schools are also
enrolled in public schools for special
education and have IEPs and retain their
due process rights.
Discussion: The Act in no way
prohibits States or LEAs from spending
additional State or local funds to
provide special education or related
services for parentally-placed private
school children with disabilities in
excess of those required in § 300.133
and section 612(a)(10)(A) of the Act,
consistent with State law or
administrative procedures. The Act,
however, does not provide the Secretary
with the authority to waive, in whole or
in part, the parentally-placed private
school requirements in §§ 300.130
through 300.144 for States or LEAs that
spend State or local funds to provide
special education or related services
beyond those required under Part B of
the Act. The Secretary, therefore, cannot
consider alternative compliance with
the parentally-placed private school
provisions in the Act and these
regulations or consider States and LEAs
that use State and local funds to provide
services to parentally-placed private
school children with disabilities beyond
the required proportionate share of
Federal Part B funds, including
providing FAPE to such children, to
have met the statutory and regulatory
requirements governing parentally-
placed private school children with
disabilities. States and LEAs must meet
the requirements in the Act and these
regulations.
With regard to the comment
requesting that the child find and
equitable participation requirements for
parentally-placed private school
children with disabilities not apply in
States with dual enrollment, there is no
exception in the Act to the child find
and equitable participation
requirements of section 612(a)(10)(A) for
States that permit dual enrollment of a
child at a parent’s discretion. Therefore,
there is no basis to regulate to provide
such an exception. It would be a matter
of State or local discretion to decide
whether to have a dual enrollment
policy and, if established, how it would
be implemented. Whether dual
enrollment alters the rights of
parentally-placed private school
children with disabilities under State
law is a State matter. There is nothing,
however, in Part B of the Act that would
prohibit a State from requiring dual
enrollment as a condition for a
parentally-placed private school child
with a disability to be eligible for
services from a public agency. As long
as States and LEAs meet the
requirements in §§ 300.130 through
300.144, the local policy covering
enrollment is a matter of State and local
discretion.
Changes: None.
Comment: Several commenters
expressed concern regarding the
applicability of the child find and
equitable participation requirements in
§§ 300.130 through 300.144 for children
with disabilities who reside in one State
and are enrolled by their parents in
private elementary schools or secondary
schools located in another State. These
commenters recommended that the
regulations clarify whether the LEA in
the State where the private elementary
school or secondary school is located or
the LEA in the State where the child
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resides is responsible for conducting
child find (including individual
evaluations and reevaluations), and
providing and paying for equitable
services for children who are enrolled
by their parents in private elementary
schools or secondary schools.
Discussion: Section 612(a)(10)(A)(i)(II)
of the Act provides that the LEA where
the private elementary schools and
secondary schools are located, after
timely and meaningful consultation
with private school representatives, is
responsible for conducting the child
find process to determine the number of
parentally-placed children with
disabilities attending private schools
located in the LEA. We believe this
responsibility includes child find for
children who reside in other States but
who attend private elementary schools
and secondary schools located in the
LEA, because section 612(a)(10)(A)(i)(II)
of the Act is clear about which LEA is
responsible for child find and the Act
does not provide an exception for
children who reside in one State and
attend private elementary schools and
secondary schools in other States.
Under section 612(a)(10)(A)(i) of the
Act, the LEA where the private
elementary schools and secondary
schools are located, in consultation with
private school officials and
representatives of parents of parentally-
placed private school children with
disabilities, also is responsible for
determining and paying for the services
to be provided to parentally-placed
private school children with disabilities.
We believe this responsibility extends to
children from other States who are
enrolled in a private school located in
the LEA, because section
612(a)(10)(A)(i) of the Act clarifies that
the LEA where the private schools are
located is responsible for spending a
proportionate amount of its Federal Part
B funds on special education and
related services for children enrolled by
their parents in the private schools
located in the LEA. The Act does not
provide an exception for out-of-State
children with disabilities attending a
private school located in the LEA and,
therefore, out-of-State children with
disabilities must be included in the
group of parentally-placed children
with disabilities whose needs are
considered in determining which
parentally-placed private school
children with disabilities will be served
and the types and amounts of services
to be provided.
Changes: We have added a new
paragraph (f) to § 300.131 clarifying that
each LEA where private, including
religious, elementary schools and
secondary schools are located must, in
carrying out the child find requirements
in this section, include parentally-
placed private school children who
reside in the State other than where the
private schools they attend are located.
Comment: A few commenters
recommended the regulations clarify the
LEA’s obligation under §§ 300.130
through 300.144 regarding child find
and equitable participation for children
from other countries enrolled in private
elementary schools and secondary
schools by their parents.
Discussion: The obligation to consider
children with disabilities for equitable
services extends to all children with
disabilities in the State who are enrolled
by their parents in private schools
within each LEA’s jurisdiction.
Changes: None.
Comment: Several commenters
recommended the regulations clarify the
applicability of the child find and
equitable participation requirements in
§§ 300.130 through 300.144 for children
with disabilities, aged three through
five, enrolled by their parents in private
preschools or day care programs. Many
commenters recommended the
regulations clarify that preschool
children with disabilities should be
counted in determining the
proportionate share of funds available to
serve children enrolled in private
elementary schools by their parents.
Discussion: If a private preschool or
day care program is considered an
elementary school, as defined in
§ 300.13, the child find and equitable
services participation requirements in
§§ 300.130 through 300.144, consistent
with section 612(a)(10) of the Act, apply
to children with disabilities aged three
through five enrolled by their parents in
such programs. Section 300.13,
consistent with section 602(6) of the
Act, defines an elementary school as a
nonprofit institutional day or residential
school, including a public elementary
charter school, which provides
elementary education, as determined
under State law. We believe it is
important to clarify in the regulations
that children aged three through five are
considered parentally-placed private
school children with disabilities
enrolled in private elementary schools
only if they are enrolled in private
schools that meet the definition of
elementary school in § 300.13.
Changes: We have added a new
§ 300.133(a)(2)(ii) to clarify that children
aged three through five are considered
to be parentally-placed private school
children with disabilities enrolled by
their parents in private, including
religious, elementary schools, if they are
enrolled in a private school that meets
the definition of elementary school in
§ 300.13.
Definition of Parentally-Placed Private
School Children With Disabilities
(§ 300.130)
Comment: A few commenters
recommended removing ‘‘or facilities’’
from the definition of parentally-placed
private school children because it is not
defined in the Act or the regulations.
Another commenter recommended
including a definition of ‘‘facilities.’’
Discussion: Under section
612(a)(10)(A) of the Act, the obligation
to conduct child find and provide
equitable services extends to children
who are enrolled by their parents in
private elementary schools and
secondary schools. This obligation also
applies to children who have been
enrolled by their parents in private
facilities if those facilities are
elementary schools or secondary
schools, as defined in subpart A of the
regulations. Because facilities that meet
the definition of elementary school or
secondary school are covered under this
section, we believe it is important to
retain the reference to facilities in these
regulations. We will, however, revise
§ 300.130 to clarify that children with
disabilities who are enrolled by their
parents in facilities that meet the
definition of elementary school in
§ 300.13 or secondary school in new
§ 300.36 (proposed § 300.35) would be
considered parentally-placed private
school children with disabilities.
Changes: Section 300.130 has been
revised to clarify that parentally-placed
private school children with disabilities
means children with disabilities
enrolled by their parents in private,
including religious, schools or facilities
that meet the definition of an
elementary school in § 300.13 or
secondary school in § 300.36.
Child Find for Parentally-Placed Private
School Children With Disabilities
(§ 300.131)
Comment: A few commenters
recommended permitting the LEA
where private schools are located to
request reimbursement from the LEA
where the child resides for the cost of
conducting an individual evaluation, as
may be required under the child find
requirements in § 300.131.
One commenter recommended that
the LEA where private schools are
located be responsible for locating and
identifying children with disabilities
enrolled by their parents in private
schools and the LEA where the children
reside be responsible for conducting
individual evaluations.
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Discussion: Section 300.131,
consistent with section 612(a)(10)(A)(i)
of the Act, requires that the LEA where
private elementary schools and
secondary schools in which the child is
enrolled are located, not the LEA where
the child resides, is responsible for
conducting child find, including an
individual evaluation for a child with a
disability enrolled by the child’s parent
in a private elementary school or
secondary school located in the LEA.
The Act specifies that the LEA where
the private schools are located is
responsible for conducting both the
child find process and the initial
evaluation. Therefore, the LEA where
private schools are located may not seek
reimbursement from the LEA of
residence for the cost of conducting the
evaluation or to request that the LEA of
residence conduct the evaluation.
However, the LEA where the private
elementary school or secondary school
is located has options as to how it meets
its responsibilities. For example, the
LEA may assume the responsibility
itself, contract with another public
agency (including the public agency of
residence), or make other arrangements.
Changes: None.
Comment: One commenter
recommended permitting a parent who
enrolled a child in a private elementary
school or secondary school the option of
not participating in child find required
under § 300.131.
Discussion: New § 300.300(e)(4)
clarifies that parents who enroll their
children in private elementary schools
and secondary schools have the option
of not participating in an LEA’s child
find activities required under § 300.131.
As noted in the Analysis of Comments
and Changes section for subpart D, once
parents opt out of the public schools,
States and school districts do not have
the same interest in requiring parents to
agree to the evaluation of their children
as they do for children enrolled in
public schools, in light of the public
agencies’ obligation to educate public
school children with disabilities. We
further indicate in the discussion of
subpart D that we have added new
§ 300.300(e)(4) (proposed § 300.300(d))
to clarify that if the parent of a child
who is home schooled or placed in a
private school by the child’s parent at
the parent’s own expense does not
provide consent for an initial evaluation
or reevaluation, the public agency may
not use the due process procedures in
section 615 of the Act and the public
agency is not required to consider the
child for equitable services.
Changes: None.
Comment: Several commenters
recommended permitting amounts
expended for child find, including
individual evaluations, to be deducted
from the required amount of funds to be
expended on equitable services for
parentally-placed private school
children with disabilities.
Discussion: The requested changes
would be inconsistent with the Act.
There is a distinction under the Act
between the obligation to conduct child
find activities, including individual
evaluations, for parentally-placed
private school children with disabilities,
and the obligation to use an amount of
funds equal to a proportionate amount
of the Federal Part B grant flowing to
LEAs to provide special education and
related services to parentally-placed
private school children with disabilities.
The obligation to conduct child find for
parentally-placed private school
children, including individual
evaluations, is independent of the
services provision. Further,
§ 300.131(d), consistent with section
612(a)(10)(A)(ii)(IV) of the Act, clarifies
that the costs of child find activities for
parentally-placed private school
children, including individual
evaluations, may not be considered in
determining whether the LEA has spent
an appropriate amount on providing
special education and related services to
parentally-placed private school
children with disabilities.
Changes: None.
Comment: One commenter requested
clarifying whether an LEA may exclude
children suspected of having certain
disabilities, such as those with specific
learning disabilities, in conducting
individual evaluations of suspected
children with disabilities enrolled in
private schools by their parents.
Discussion: The LEA where the
private elementary schools and
secondary schools are located must
identify and evaluate all children
suspected of having disabilities as
defined under section 602(3) of the Act.
LEAs may not exclude children
suspected of having certain disabilities,
such as those with specific learning
disabilities, from their child find
activities. The Department recommends
that LEAs and private elementary
schools and secondary schools consult
on how best to implement the State’s
evaluation criteria and the requirements
under this part for identifying children
with specific learning disabilities
enrolled in private schools by their
parents. This is explained in more detail
in the discussion of comments under
§ 300.307.
Changes: None.
Comment: A few commenters
expressed concern that parents who
place their children in private
elementary schools and secondary
schools outside the district of residence,
and who are determined by the LEA
where the private schools are located,
through its child find process, to be
children with disabilities eligible for
special education and related services,
would have no knowledge of the special
education and related services available
for their children if they choose to
attend a public school in their district
of residence. A few commenters
suggested clarifying the obligation of the
LEA where the private school is located
to provide the district of residence the
results of an evaluation and eligibility
determination of the parentally-placed
private school child.
A few commenters recommended that
the parent of a child with a disability
identified through the child find process
in § 300.131 be provided with
information regarding an appropriate
educational program for the child.
Discussion: The Act is silent on the
obligation of officials of the LEA where
private elementary schools and
secondary schools are located to share
personally identifiable information,
such as individual evaluation
information, with officials of the LEA of
the parent’s residence. We believe that
the LEA where the private schools are
located has an obligation to protect the
privacy of children placed in private
schools by their parents. We believe that
when a parentally-placed private school
child is evaluated and identified as a
child with a disability by the LEA in
which the private school is located,
parental consent should be required
before such personally identifiable
information is released to officials of the
LEA of the parent’s residence.
Therefore, we are adding a new
paragraph (b)(3) to § 300.622 to make
this clear. We explain this revision in
more detail in the discussion of
comments under § 300.622.
We believe the regulations adequately
ensure that parents of children enrolled
in private schools by their parents, who
are identified as children with
disabilities through the child find
process, receive information regarding
an appropriate educational program for
their children. Section 300.138(b)
provides that each parentally-placed
private school child with a disability
who has been designated to receive
equitable services must have a services
plan that describes the specific
education and related services that the
LEA where the private school is located
has determined it will make available to
the child and the services plan must, to
the extent appropriate, meet the IEP
content, development, review and
revision requirements described in
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section 614(d) of the Act, or, when
appropriate, for children aged three
through five, the IFSP requirements
described in section 636(d) of the Act as
to the services that are to be provided.
Furthermore, the LEA where the
private school is located must, pursuant
to § 300.504(a) and section 615(d) of the
Act, provide the parent a copy of the
procedural safeguards notice upon
conducting the initial evaluation.
Changes: We have added a new
paragraph (b)(3) to § 300.622 to require
parental consent for the disclosure of
records of parentally-placed private
school children between LEAs.
Comment: A few commenters stated
that § 300.131 does not address which
LEA has the responsibility for
reevaluations.
Discussion: The LEA where the
private schools are located is
responsible for conducting
reevaluations of children with
disabilities enrolled by their parents in
private elementary schools and
secondary schools located within the
LEA. Reevaluation is a part of the LEA’s
child find responsibility for parentally-
placed private school children under
section 612(a)(10)(A) of the Act.
Changes: None.
Comment: One commenter expressed
concern that the regulations permit a
parent to request an evaluation from the
LEA of residence at the same time the
child is being evaluated by the LEA
where the private elementary school or
secondary school is located, resulting in
two LEAs simultaneously conducting
evaluations of the same child.
Discussion: We recognize that there
could be times when parents request
that their parentally-placed child be
evaluated by different LEAs if the child
is attending a private school that is not
in the LEA in which they reside. For
example, because most States generally
allocate the responsibility for making
FAPE available to the LEA in which the
child’s parents reside, and that could be
a different LEA from the LEA in which
the child’s private school is located,
parents could ask two different LEAs to
evaluate their child for different
purposes at the same time. Although
there is nothing in this part that would
prohibit parents from requesting that
their child be evaluated by the LEA
responsible for FAPE for purposes of
having a program of FAPE made
available to the child at the same time
that the parents have requested that the
LEA where the private school is located
evaluate their child for purposes of
considering the child for equitable
services, we do not encourage this
practice. We note that new
§ 300.622(b)(4) requires parental consent
for the release of information about
parentally-placed private school
children between LEAs; therefore, as a
practical matter, one LEA may not know
that a parent also requested an
evaluation from another LEA. However,
we do not believe that the child’s best
interests would be well-served if the
parents requested evaluations of their
child by the resident school district and
the LEA where the private school is
located, even though these evaluations
are conducted for different purposes. A
practice of subjecting a child to repeated
testing by separate LEAs in close
proximity of time may not be the most
effective or desirable way of ensuring
that the evaluation is a meaningful
measure of whether a child has a
disability or of providing an appropriate
assessment of the child’s educational
needs.
Changes: None.
Comment: Some commenters
requested the regulations clarify which
LEA (the LEA of residence or the LEA
where the private elementary schools or
secondary schools are located) is
responsible for offering FAPE to
children identified through child find
under § 300.131 so that parents can
make an informed decision regarding
their children’s education.
Discussion: If a determination is made
by the LEA where the private school is
located that a child needs special
education and related services, the LEA
where the child resides is responsible
for making FAPE available to the child.
If the parent makes clear his or her
intention to keep the child enrolled in
the private elementary school or
secondary school located in another
LEA, the LEA where the child resides
need not make FAPE available to the
child. We do not believe that a change
to the regulations is necessary, as
§ 300.201 already clarifies that the
district of residence is responsible for
making FAPE available to the child.
Accordingly, the district in which the
private elementary or secondary school
is located is not responsible for making
FAPE available to a child residing in
another district.
Changes: None.
Comment: One commenter requested
clarification of the term ‘‘activities
similar’’ in § 300.131(c). Another
commenter recommended clarifying
that these activities include, but are not
limited to, activities relating to
evaluations and reevaluations. One
commenter requested that children with
disabilities parentally-placed in private
schools be identified and evaluated as
quickly as possible.
Discussion: Section 300.131(c),
consistent with section
612(a)(10)(A)(ii)(III) of the Act, requires
that, in carrying out child find for
parentally-placed private school
children, SEAs and LEAs must
undertake activities similar to those
activities undertaken for their publicly
enrolled or publicly-placed children.
This would generally include, but is not
limited to, such activities as widely
distributing informational brochures,
providing regular public service
announcements, staffing exhibits at
health fairs and other community
activities, and creating direct liaisons
with private schools. Activities for child
find must be completed in a time period
comparable to those activities for public
school children. This means that LEAs
must conduct child find activities,
including individual evaluations, for
parentally-placed private school
children within a reasonable period of
time and without undue delay, and may
not wait until after child find for public
school children is conducted. In
addition, evaluations of all children
suspected of having disabilities under
Part B of the Act, regardless of whether
they are enrolled by their parents in
private elementary schools or secondary
schools, must be conducted in
accordance with the requirements in
§§ 300.300 through 300.311, consistent
with section 614(a) through (c) of the
Act, which describes the procedures for
evaluations and reevaluations for all
children with disabilities. We believe
the phrase ‘‘activities similar’’ is
understood by SEAs and LEAs and,
therefore, it is not necessary to regulate
on the meaning of the phrase.
Changes: None.
Provision of Services for Parentally-
Placed Private School Children With
Disabilities—Basic Requirement
(§ 300.132)
Comment: Several commenters
expressed confusion regarding which
LEA is responsible for paying for the
equitable services provided to a
parentally-placed private elementary
school or secondary school child, the
district of the child’s residence or the
LEA where the private school is located.
Discussion: We believe § 300.133,
consistent with section 612(a)(10)(A) of
the Act, is sufficiently clear that the
LEA where the private elementary
schools and secondary schools are
located is responsible for paying for the
equitable services provided to a
parentally-placed private elementary
school or secondary school child. These
provisions provide that the LEA where
the private elementary and secondary
schools are located must spend a
proportionate amount of its Federal
funds available under Part B of the Act
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for services for children with disabilities
enrolled by their parents in private
elementary schools and secondary
schools located in the LEA. The Act
does not permit an exception to this
requirement. No further clarification is
needed.
Changes: None.
Comment: One commenter
recommended the regulations clarify
which LEA in the State is responsible
for providing equitable services to
parentally-placed private school
children with disabilities who attend a
private school that straddles two LEAs
in the State.
Discussion: The Act does not address
situations where a private school
straddles more than one LEA. However,
the Act does specify that the LEA in
which the private school is located is
responsible for providing special
education to children with disabilities
placed in private schools by their
parents, consistent with the number of
such children and their needs. In
situations where more than one LEA
potentially could assume the
responsibility of providing equitable
services, the SEA, consistent with its
general supervisory responsibility,
determines which LEA in the State is
responsible for ensuring the equitable
participation of children with
disabilities attending that private
school. We do not believe that the
situation is common enough to warrant
a change in the regulations.
Changes: None.
Comment: A few commenters
recommended revising the heading for
§ 300.132(b) to clarify that LEAs, not
SEAs, are responsible for developing
service plans.
Discussion: We agree with the
commenters that the heading for
§ 300.132(b) should be changed to
accurately reflect the requirement and to
avoid confusion.
Changes: We have revised the heading
for § 300.132(b) by removing the
reference to SEA responsibility.
Comment: One commenter requested
requiring in § 300.132(c) that data on
parentally-placed private school
children with disabilities be submitted
to the Department. Another commenter
agreed, stating that the data should be
submitted the same day as the annual
child count.
Discussion: The purpose of the child
count under § 300.132(c) is to determine
the amount of Federal funds that the
LEA must spend on providing special
education and related services to
parentally-placed private school
children with disabilities in the next
fiscal year. We are not requiring States
to submit these data to the Department
as the Department does not have a
programmatic or regulatory need to
collect this information at this time.
Section 300.644 permits the SEA to
include in its annual report of children
served those parentally-placed private
school children who are eligible under
the Act and receive special education or
related services. We believe this is
sufficient to meet the Department’s need
to collect data on this group of children
and we do not wish to place an
unnecessary data collection and
paperwork burden on States.
Changes: None.
Expenditures (§ 300.133)
Comment: One commenter requested
the regulations clarify whether an LEA
must spend its entire proportionate
share for parentally-placed private
school children with disabilities by the
end of a fiscal year or could carry over
any remaining funds into the next fiscal
year.
Discussion: We agree with the
commenter that a provision should be
included in these regulations to clarify
that, if an LEA has not expended for
equitable services all of the
proportionate amount of Federal funds
to be provided for parentally-placed
private school children with disabilities
by the end of the fiscal year for which
Congress appropriated the funds, the
LEA must obligate the remaining funds
for special education and related
services (including direct services) to
parentally-placed private school
children with disabilities during a carry-
over period of one additional year.
Changes: A new paragraph (a)(3) has
been added to § 300.133 to address the
carry over of funds not expended by the
end of the fiscal year.
Comment: None.
Discussion: It has come to our
attention that there is some confusion
among States and LEAs between the
count of the number of children with
disabilities receiving special education
and related services as required under
section 618 of the Act, and the
requirement under section
612(a)(10)(A)(i)(II) of the Act that each
LEA conduct an annual count of the
number of parentally-placed private
school children with disabilities
attending private schools in the LEA.
We will, therefore, revise the heading
(child count) for § 300.133(c) and the
regulatory language in § 300.133(c) to
avoid any confusion regarding the
requirements in paragraph (c).
Changes: Section 300.133(c) has been
revised as described above.
Comment: One commenter
interpreted § 300.133(d) to require that:
(1) LEAs provide services to parentally-
placed private school children with
disabilities with funds provided under
the Act and (2) LEAs no longer have the
option of using local funds equal to, and
in lieu of, the Federal pro-rated share
amount. This commenter recommended
that LEAs continue to be allowed to use
local funds for administrative
convenience.
Discussion: The commenter’s
interpretation is correct. The Act added
the supplement, not supplant
requirement in section
612(a)(10)(A)(i)(IV), which is included
in § 300.133(d). This requirement
provides that State and local funds may
supplement, but in no case supplant the
proportionate amount of the Federal
Part B funds that must be expended
under this provision. Prior to the change
in the Act, if a State was spending more
than the Federal proportional share of
funds from State or local funds, then the
State would not have to spend any
Federal Part B funds. That is no longer
permissible under the Act.
Changes: None.
Comment: A few commenters
requested revising § 300.133 to include
home-schooled children with
disabilities in the same category as
parentally-placed private school
children with disabilities.
Discussion: Whether home-schooled
children with disabilities are considered
parentally-placed private school
children with disabilities is a matter left
to State law. Children with disabilities
in home schools or home day cares must
be treated in the same way as other
parentally-placed private school
children with disabilities for purposes
of Part B of the Act only if the State
recognizes home schools or home day
cares as private elementary schools or
secondary schools.
Changes: None.
Consultation (§ 300.134)
Comment: Some commenters
recommended requiring, in § 300.134(e),
that the LEA include, in its written
explanation to the private school, its
reason whenever: (1) The LEA does not
provide services by a professional
directly employed by that LEA to
parentally-placed private school
children with a disability when
requested to do so by private school
officials; and (2) the LEA does not
provide services through a third party
provider when requested to do so by the
private school officials.
Discussion: Section 300.134(e)
incorporates the language from section
612(a)(10)(A)(iii)(V) of the Act and
requires the LEA to provide private
school officials with a written
explanation of the reasons why the LEA
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chose not to provide services directly or
through contract. We do not believe that
the additional language suggested by the
commenter is necessary because we
view the statutory language as sufficient
to ensure that the LEA meets its
obligation to provide private school
officials a written explanation of any
reason why the LEA chose not to
provide services directly or through a
contract.
Changes: None.
Written Affirmation (§ 300.135)
Comment: Several commenters
recommended requiring LEAs to
forward the written affirmation to the
SEA, because this information is
important for the SEA to exercise
adequate oversight over LEAs with
respect to the participation of private
school officials in the consultation
process.
Discussion: Section 300.135,
regarding written affirmation, tracks the
language in section 612(a)(10)(A)(iv) of
the Act. Including a requirement in the
regulations that the LEA must submit a
copy of signed written affirmations to
the SEA would place reporting burdens
on the LEA that are not required by the
Act and that we do not believe are
warranted in this circumstance. We
expect that in most circumstances
private school officials and LEAs will
have cooperative relationships that will
not need State involvement. If private
school officials believe that there was
not meaningful consultation, they may
raise that issue with the SEA through
the procedures in § 300.136. However,
there is nothing in the Act or these
regulations that would preclude a State
from requiring LEAs to submit a copy of
the written affirmation obtained
pursuant to § 300.135, in meeting its
general supervision responsibilities
under § 300.149 or as a part of its
monitoring of LEAs’ implementation of
Part B of the Act as required in
§ 300.600. Consistent with
§ 300.199(a)(2) and section 608(a)(2) of
the Act, a State that chooses to require
its LEAs to submit copies of written
affirmations to the SEA beyond what is
required in § 300.135 would have to
identify, in writing, to the LEAs located
in the State and to the Secretary, that
such rule, regulation, or policy is a
State-imposed requirement that is not
required by Part B of the Act or these
regulations.
Changes: None.
Compliance (§ 300.136)
Comment: One commenter
recommended revising § 300.136 to
permit an LEA to submit a complaint to
the State if private school officials do
not engage in meaningful consultation
with the LEA.
Discussion: Section 300.136,
consistent with section 612(a)(10)(A)(v)
of the Act, provides that a private school
official has the right to complain to the
SEA that the LEA did not engage in
consultation that was meaningful and
timely, or did not give due
consideration to the views of the private
school official. The provisions in the
Act and the regulations apply to the
responsibilities of the SEA and its LEAs
and not to private schools or entities.
Because the requirements of the Act do
not apply to private schools, we do not
believe requiring SEAs to permit an LEA
to submit a complaint to the SEA
alleging that representatives of the
private schools did not consult in a
meaningful way with the LEA would
serve a meaningful purpose. The
equitable services made available under
Part B of the Act are a benefit to the
parentally-placed private school
children and not services provided to
the private schools.
Changes: None.
Comment: Several commenters
recommended revising § 300.136 to
allow States to determine the most
appropriate procedures for a private
school official to submit a complaint to
the SEA that an LEA did not engage in
consultation that was meaningful and
timely, or did not give due
consideration to the views of the private
school officials. Many of these
commenters stated that requiring such
complaints be filed pursuant to the State
complaint procedures in §§ 300.151
through 300.153 is not required by the
Act and recommended we remove this
requirement.
Discussion: We agree with the
commenters that section
612(a)(10)(A)(v) of the Act does not
stipulate how a private school official
must submit a complaint to the SEA that
the LEA did not engage in consultation
that was meaningful and timely, or did
not give due consideration to the views
of the private school official. We also
agree with the commenters that the SEA
should have flexibility to determine
how such complaints will be filed with
the State. We will, therefore, revise
§ 300.136(a) to remove the requirement
that private school officials must file a
complaint with the SEA under the State
complaint procedures in §§ 300.151
through 300.153. States may, if they so
choose, use their State complaint
procedures under §§ 300.151 through
300.153 as the means for a private
school to file a complaint under
§ 300.136.
Changes: Section 300.136 has been
revised to remove the requirement that
a private school official submit a
complaint to the SEA using the
procedures in §§ 300.151 through
300.153.
Equitable Services Determined
(§ 300.137)
Comment: One commenter
recommended removing § 300.137(a),
stating it is discriminatory and that
parentally-placed private school
children must receive the same amount
of services as children with disabilities
in public schools.
Discussion: Section 300.137(a) reflects
the Department’s longstanding policy,
consistent with section 612(a)(10) of the
Act, and explicitly provides that
children with disabilities enrolled in
private schools by their parents have no
individual entitlement to receive some
or all of the special education and
related services they would receive if
enrolled in the public schools. Under
the Act, LEAs only have an obligation
to provide parentally-placed private
school children with disabilities an
opportunity for equitable participation
in the services funded with Federal Part
B funds that the LEA has determined,
after consultation, to make available to
its population of parentally-placed
private school children with disabilities.
LEAs are not required to spend more
than the proportionate Federal share on
those services.
Changes: None.
Equitable Services Provided (§ 300.138)
Comment: Several commenters
requested clarifying whether the
requirement in § 300.138(a) that services
provided to parentally-placed private
school children with disabilities be
provided by personnel meeting the same
standards (i.e., highly qualified teacher
requirements) as personnel providing
services in the public schools applies to
private school teachers who are
contracted by the LEA to provide
equitable services.
Discussion: As discussed in the
Analysis of Comments and Changes
section, in the response to comments on
§ 300.18, it is the Department’s position
that the highly qualified special
education teacher requirements do not
apply to teachers hired by private
elementary schools and secondary
schools. This includes teachers hired by
private elementary schools and
secondary schools who teach children
with disabilities. Further, it is the
Department’s position that the highly
qualified special education teacher
requirements also do not apply to
private school teachers who provide
equitable services to parentally-placed
private school children with disabilities.
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In addition to the revision we are
making to new § 300.18(h) (proposed
§ 300.18(g)) to make this position clear,
we also will revise § 300.138(a)(1) to
clarify that private elementary school
and secondary school teachers who are
providing equitable services to
parentally-placed private school
children with disabilities do not have to
meet the highly qualified special
education teacher requirements.
Changes: We have revised
§ 300.138(a)(1) as indicated.
Comment: A few commenters
requested clarifying the process for
developing a services plan and
explaining how a services plan differs
from an IEP.
Discussion: We do not believe that
additional explanation in the regulation
is needed. Under § 300.138(b), each
parentally-placed private school child
with a disability who has been
designated by the LEA in which the
private school is located to receive
special education or related services
must have a services plan. The services
plan must describe the specific special
education and related services offered to
a parentally-placed private school child
with a disability designated to receive
services. The services plan also must, to
the extent appropriate, meet the IEP
content, development, review, and
revision requirements described in
section 614(d) of the Act, or, when
appropriate, for children aged three
through five, the IFSP requirements
described in section 636(d) of the Act as
to the services that are to be provided.
The LEA must ensure that a
representative of the private school
attends each meeting to develop the
services plan and if the representative
cannot attend, use other methods to
ensure participation by the private
school, including individual or
conference telephone calls.
Children with disabilities enrolled in
public schools or who are publicly-
placed in private schools are entitled to
FAPE and must receive the full range of
services under Part B of the Act that are
determined by the child’s IEP Team to
be necessary to meet the child’s
individual needs and provide FAPE.
The IEPs for these children generally
will be more comprehensive than the
more limited services plans developed
for parentally-placed private school
children with disabilities designated to
receive services.
Changes: None.
Comment: A few commenters
recommended revising the definition of
services plan to clarify that an IEP could
serve as the services plan; otherwise,
States that provide IEP services to
parentally-placed private school
children with disabilities would be
required to develop a services plan and
an IEP.
Discussion: We do not believe it is
appropriate to clarify in the regulations
that the IEP can serve as the services
plan because, as stated elsewhere in this
preamble, a services plan should only
describe the specific special education
and related services offered to a
parentally-placed private school child
with a disability designated to receive
services. We believe that using an IEP in
lieu of a services plan for these children
may not be appropriate in light of the
fact that an IEP developed pursuant to
section 614(d) of the Act will generally
include much more than just those
services that a parentally-placed private
school child with a disability may
receive, if designated to receive services.
There is nothing, however, in these
regulations that would prevent a State
that provides more services to
parentally-placed private school
children with disabilities than they are
required to do under the Act to use an
IEP in place of a services plan,
consistent with State law.
Changes: None.
Location of Services and Transportation
(§ 300.139)
Comment: A few commenters asked
for clarification as to how the location
where services will be provided to
parentally-placed private school
children with disabilities is determined.
Discussion: Under § 300.134(d), how,
where, and by whom special education
and related services are provided to
parentally-placed private school
children with disabilities are subjects of
the process of consultation among LEA
officials, private school representatives,
and representatives of parents of
parentally-placed private school
children with disabilities. Further,
§ 300.137(b)(2) clarifies that, after this
consultation process, the final decision
with respect to the services provided to
eligible parentally-placed private school
children with disabilities is made by the
LEA.
Changes: None.
Comment: Some commenters
recommended specifying that providing
services on the premises of private
elementary schools and secondary
schools is the preferred means of
serving parentally-placed private school
children with disabilities. A few
commenters recommended revising
§ 300.139(a) to stipulate that services
‘‘should’’ or ‘‘must’’ be provided on the
premises of private schools, unless there
is a compelling rationale for these
services to be provided off-site. In
contrast, several commenters objected to
the statement in the preamble to the
NPRM that services should be provided
on-site unless there is a compelling
rationale to provide services off-site. A
few of these commenters stated that the
Act does not indicate a preference for
one location of services over another
and the Department has no authority to
provide such a strong comment on this
issue.
Discussion: Services offered to
parentally-placed private school
children with disabilities may be
provided on-site at a child’s private
school, including a religious school, to
the extent consistent with law, or at
another location. The Department
believes, in the interests of the child,
LEAs should provide services on site at
the child’s private school so as not to
unduly disrupt the child’s educational
experience, unless there is a compelling
rationale for these services to be
provided off-site. The phrase ‘‘to the
extent consistent with law’’ is in section
612(a)(10)(A)(i)(III) of the Act. We
interpret this language to mean that the
provision of services on the premises of
a private school takes place in a manner
that would not violate the Establishment
Clause of the First Amendment to the
U.S. Constitution and would not be
inconsistent with applicable State
constitutions or law. We, therefore, do
not have the statutory authority to
require that services be provided on-
site.
Changes: None.
Comment: A few commenters
expressed concern that § 300.139(b),
regarding transportation services, goes
beyond the requirements in the Act and
should be removed. A few commenters
stated that transportation is a related
service and should be treated as such
with respect to parentally-placed
children with disabilities in private
schools.
Discussion: We do not agree that
transportation services should be
removed from § 300.139(b). If services
are offered at a site separate from the
child’s private school, transportation
may be necessary to get the child to and
from that other site. Failure to provide
transportation could effectively deny
the child an opportunity to benefit from
the services that the LEA has
determined through consultation to
offer its parentally-placed private school
children with disabilities. In this
situation, although transportation is not
a related service, as defined in § 300.34,
transportation is necessary to enable the
child to participate and to make the
offered services accessible to the child.
LEAs should work in consultation with
representatives of private school
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provided at sites, including on the
premises of the child’s private school,
so that LEAs do not incur significant
transportation costs.
However, for some children with
disabilities, special modifications in
transportation may be necessary to
address the child’s unique needs. If the
group developing the child’s services
plan determines that a parentally-placed
private school child with a disability
chosen to receive services requires
transportation as a related service in
order to receive special education
services, this transportation service
should be included as a related service
in the services plan for the child.
In either case, the LEA may include
the cost of the transportation in
calculating whether it has met the
requirement of § 300.133.
Changes: None.
Due Process Complaints and State
Complaints (§ 300.140)
Comment: Several commenters
expressed concern that the right of
parents of children with disabilities
enrolled by their parents in private
elementary schools and secondary
schools to file a due process complaint
against an LEA is limited to filing a due
process complaint that an LEA has
failed to comply with the child find and
evaluation requirements, and not an
LEA’s failure to provide special
education and related services as
required in the services plan. A few
commenters recommended that the
regulations clarify whether the parent
should file a due process complaint
with the LEA of residence or with the
LEA where the private school is located.
Discussion: Section 615(a) of the Act
specifies that the procedural safeguards
of the Act apply with respect to the
identification, evaluation, educational
placement, or provision of FAPE to
children with disabilities. The special
education and related services provided
to parentally-placed private school
children with disabilities are
independent of the obligation to make
FAPE available to these children.
While there may be legitimate issues
regarding the provision of services to a
particular parentally-placed private
school child with a disability an LEA
has agreed to serve, the due process
provisions in section 615 of the Act and
§§ 300.504 through 300.519 do not
apply to these disputes, because there is
no individual right to these services
under the Act. Disputes that arise about
these services are properly subject to the
State complaint procedures under
§§ 300.151 through 300.153.
Child find, however, is a part of the
basic obligation that public agencies
have to all children with disabilities,
and failure to locate, identify, and
evaluate a parentally-placed private
school child would be subject to due
process. Therefore, the due process
provisions in §§ 300.504 through
300.519 do apply to complaints that the
LEA where the private school is located
failed to meet the consent and
evaluation requirements in §§ 300.300
through 311.
In light of the comments received, we
will clarify in § 300.140 that parents of
parentally-placed private school
children with disabilities may file a due
process complaint with the LEA in
which the private school is located (and
forward a copy to the SEA) regarding an
LEA’s failure to meet the consent and
evaluation requirements in §§ 300.300
through 300.311. We also will clarify
that a complaint can be filed with the
SEA under the State complaint
procedures in §§ 300.151 through
300.153 that the SEA or LEA has failed
to meet the requirements in §§ 300.132
through 300.135 and §§ 300.137 through
300.144. There would be an exception,
however, for complaints filed pursuant
to § 300.136. Complaints under
§ 300.136 must be filed in accordance
with the procedures established by each
State under § 300.136.
Changes: Proposed § 300.140(a)(2) has
been redesignated as new paragraph (b).
A new paragraph (b)(2) has been added
to this section to clarify that any due
process complaint regarding the
evaluation requirements in § 300.131
must be filed with the LEA in which the
private school is located, and a copy
must be forwarded to the SEA. Proposed
§ 300.140(b) has been redesignated as
new paragraph (c), and has been revised
to clarify that a complaint that the SEA
or LEA has failed to meet the
requirements in §§ 300.132 through
300.135 and §§ 300.137 through 300.144
can be filed with the SEA under the
State complaint procedures in
§§ 300.151 through 300.153. Complaints
filed pursuant to § 300.136 must be filed
with the SEA under the procedures
established under § 300.136(b).
Comment: A few commenters
requested clarification as to whether a
parent of a parentally-placed private
school child should request an
independent educational evaluation at
public expense under § 300.502(b) with
the LEA of residence or the LEA where
the private school is located.
Discussion: We do not believe that
this level of detail needs to be included
in the regulation. If a parent of a
parentally-placed child disagrees with
an evaluation obtained by the LEA in
which the private school is located, the
parent may request an independent
educational evaluation at public
expense with that LEA.
Changes: None.
Use of Personnel (§ 300.142)
Comment: Several commenters
requested clarifying language regarding
who must provide equitable services to
parentally-placed private school
children with disabilities.
Discussion: Under section
612(a)(10)(A)(vi)(I) of the Act, equitable
services must be provided by employees
of a public agency or through contract
by the public agency with an individual,
association, agency, organization, or
other entity. Section 300.142(a) provides
that an LEA may use Part B funds to
make public school personnel available
in other than public facilities to the
extent necessary to provide equitable
services for parentally-placed children
with disabilities attending private
schools and if those services are not
otherwise provided by the private
school to children as a benefit provided
to all children attending that school.
Under § 300.142(b), an LEA may use
Part B funds to pay for the services of
an employee of a private school to
provide equitable services if the
employee performs the services outside
of his or her regular hours of duty and
the employee performs the services
under public supervision and control.
We believe that the regulation is
sufficiently clear on this point.
Changes: None.
Property, Equipment, and Supplies
(§ 300.144)
Comment: A few commenters
requested clarification as to whether
private school officials may purchase
equipment and supplies with Part B
funds to provide services to parentally-
placed private school children with
disabilities designated to receive
services.
Discussion: We do not believe the
additional clarification suggested by the
commenters is necessary. Section
300.144, consistent with section
612(a)(10)(A)(vii) of the Act, already
requires that the LEA must control and
administer the funds used to provide
special education and related services to
parentally-placed private school
children with disabilities, and maintain
title to materials, equipment, and
property purchased with those funds.
Thus, the regulations and the Act
prevent private school officials from
purchasing equipment and supplies
with Part B funds.
Changes: None.
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Children With Disabilities in Private
Schools Placed or Referred by Public
Agencies
Applicability of §§ 300.146 Through
300.147 (§ 300.145)
Comment: One commenter stated that
§§ 300.145 through 300.147 are
unnecessary and solely administrative,
because these sections are addressed in
the Act and the proposed regulations
provide no additional information on
the application of the statutory
requirements.
Discussion: We do not agree with the
commenter that the provisions in
§§ 300.146 through 300.147 are
unnecessary and solely administrative.
We believe it is necessary to retain these
requirements in the regulations,
consistent with section 612(a)(10)(B) of
the Act, to ensure that public agencies
are fully aware of their obligation to
ensure that children with disabilities
who are placed in or referred to a
private school or facility by public
agencies are entitled to receive FAPE to
the same extent as they would if they
were placed in a public agency school
or program.
Changes: None.
Responsibility of SEA (§ 300.146)
Comment: Many commenters
disagreed with the exception to the
‘‘highly qualified teacher’’ requirements
in paragraph (b) of this section and
stated that the ‘‘highly qualified
teacher’’ requirements should apply to
private school teachers of children with
disabilities placed or referred by public
agencies. Several commenters stated
that these children are likely to have
more severe disabilities and, therefore,
have a greater need for highly qualified
teachers than children served in public
schools.
Several commenters stated that
exempting teachers in private schools
from the requirement to be ‘‘highly
qualified’’ in situations where children
with disabilities are publicly-placed in
order to receive FAPE is not consistent
with the requirement that the education
provided to children in such settings
meet the standards that apply to
children served by public agencies, or
with the ESEA and the goal in the Act
of helping all children with disabilities
achieve high standards.
A few commenters supported the
exception to ‘‘highly qualified teacher’’
requirements. One commenter stated
that States should make their own
decisions in this area in light of resource
constraints.
One commenter opposed the
expenditure of public school funds for
the education of publicly-placed private
school children by teachers who do not
meet the ‘‘highly qualified’’
requirements.
Discussion: Section 602(10) of the Act
states that ‘‘highly qualified’’ has the
meaning given the term in section 9101
of the ESEA, which clarifies that the
requirements regarding highly qualified
teachers apply to public school teachers
and not teachers teaching as employees
of private elementary schools and
secondary schools. As we stated in the
Analysis of Comments and Changes
section regarding § 300.138 in this
subpart and § 300.18 in subpart A, it is
the Department’s position that the
highly qualified teacher requirements
do not apply to teachers hired by private
elementary schools and secondary
schools. This includes teachers hired by
private elementary schools and
secondary schools who teach children
with disabilities. We agree with the
commenters that, in many instances, a
public agency may choose to place a
child with a severe disability and with
more intensive educational needs in a
private school or facility as a means of
providing FAPE. When the public
agency chooses to place a child with a
significant disability, or any child with
a disability, in a private school as a
means of providing FAPE, the public
agency has an obligation to ensure that
the child receives FAPE to the same
extent the child would if placed in a
public school, irrespective of whether
the private school teachers meet the
highly qualified teacher requirements in
§§ 300.18 and 300.156(c). FAPE
includes not just the special education
and related services that a child with a
disability receives, but also includes an
appropriate preschool, elementary and
secondary school education in the State
involved. The required special
education and related services must be
provided at public expense, at no cost
to the parent, in accordance with an IEP,
and the education provided to the child
must meet the standards that apply to
educational services provided by the
SEA and LEA (except for the highly
qualified teacher requirements in
§§ 300.18 and 300.156(c)). In addition,
the SEA must ensure that the child has
all the rights of a child with a disability
who is served by a public agency.
We do not agree with the premise of
the commenters that not requiring
private school teachers who provide
services to publicly-placed children
with disabilities to meet the highly
qualified teacher requirements means
that the education provided to these
children in the private school setting
does not meet the standards that apply
to children with disabilities served by
the public agency. States have flexibility
in developing standards that meet the
requirements of the Act. The standards
that SEAs apply to private schools that
contract with public agencies to provide
FAPE to children with disabilities, are,
so long as they meet the requirements of
Part B of the Act and its regulations, a
State matter. Federal law does not
encourage or prohibit the imposition of
additional requirements as a condition
of placing these children in the private
school.
With regard to the comment opposing
the use of public school funds for the
education of publicly-placed private
school children by teachers who do not
meet the highly qualified teacher
requirements, a State or public agency
may use whatever State, local, Federal,
and private sources of support that are
available in the State to meet the
requirements of the Act. We believe
restricting the use of public school
funds as requested by the commenter
would not only be inconsistent with the
Act, but also may unnecessarily limit a
public agency’s options for providing
FAPE to its publicly-placed children
with disabilities.
Changes: None.
Comment: A few commenters
recommended requiring States to have
rules, regulations, and contracts
requiring private schools that accept
publicly-placed children with
disabilities to guarantee that children
with disabilities receive FAPE and their
parents retain all of the protections
mandated for public schools, including
the right to pendency placements if the
parents challenge the decisions of the
private school to terminate the
children’s placements. One commenter
recommended that the regulations
clarify that private schools serving
children placed by a public agency are
not exempt from the obligation to
provide FAPE.
Discussion: The Act does not give
States and other public agencies
regulatory authority over private schools
and does not place requirements on
private schools. The Act imposes
requirements on States and public
agencies that refer to or place children
with disabilities in private schools for
the purposes of providing FAPE to those
children because the public agency is
unable to provide FAPE in a public
school or program. The licensing and
regulation of private schools are matters
of State law. The Act requires States and
public agencies, including LEAs, to
ensure that FAPE is made available to
all children with disabilities residing in
the State in mandatory age ranges, and
that the rights and protections of the Act
are extended to eligible children and
their parents. If the State or public
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agency has placed children with
disabilities in private schools for
purposes of providing FAPE to those
children, the State and the public
agency must ensure that these children
receive the required special education
and related services at public expense,
at no cost to the parents, in accordance
with each child’s IEP. It is the
responsibility of the public agency to
determine whether a particular private
school in which the child with a
disability will be placed for purposes of
providing FAPE meets the standards
that apply to the SEA and LEA and that
a child placed by a public agency be
afforded all the rights, including FAPE,
that the child would otherwise have if
served by the public agency directly.
Changes: None.
Comment: One commenter stated that,
in cases where the public agency places
a child in a private school or residential
treatment facility for the purposes of
providing FAPE, the public agency
should be required to determine and
inform the private school or residential
treatment facility about the person or
persons who have the legal authority to
make educational decisions for the
child.
Discussion: The change requested by
the commenter is not needed because
the public agency, not the private
agency, is responsible for providing
FAPE to a child who is placed by the
public agency in a private school.
Consistent with § 300.146 and section
612(a)(10)(B) of the Act, a public agency
that places a child with a disability in
a private school or facility as a means
of carrying out the requirements of Part
B of the Act, must ensure that the child
has all the rights of a child with a
disability who is served by a public
agency, which includes ensuring that
the consent requirements in § 300.300
and sections 614(a)(1)(D) and 614(c) of
the Act are followed. A public agency
must, therefore, secure the needed
consent from the person or persons who
have the legal authority to make such
decisions, unless the public agency has
made other arrangements with the
private school or facility to secure that
consent. We do not believe it is
necessary or appropriate to require the
public agency to inform the private
school or facility of the persons or
persons who have the legal authority to
make educational decisions for the child
because this will depend on the specific
arrangements made by the public
agency with a private school or facility
and, should, therefore, be determined by
the public agency on a case by case
basis.
Changes: None.
Children With Disabilities Enrolled by
Their Parents in Private Schools When
FAPE Is at Issue
Placement of Children by Parents When
FAPE Is at Issue (§ 300.148)
Comment: Several commenters
recommended retaining in these
regulations the requirement in current
§ 300.403(b) that disagreements between
a parent and the LEA regarding the
availability of a FAPE and the question
of financial responsibility, are subject to
the due process procedures in section
615 of the Act.
Discussion: The provision in current
§ 300.403(b) was in the 1983 regulations
and, therefore, should have been
included in the NPRM in light of section
607(b) of the Act. Section 607(b) of the
Act provides that the Secretary cannot
publish final regulations that would
procedurally or substantively lessen the
protections provided to children with
disabilities in the regulations that were
in effect on July 20, 1983. We will revise
§ 300.148 to include the requirement in
current § 300.403(b).
Changes: Section 300.148 has been
revised to include the requirement in
current § 300.403(b) that disagreements
between a parent and a public agency
regarding the availability of a program
appropriate for the child and the
question of financial responsibility are
subject to the due process procedures in
§§ 300.504 through 300.520.
Comment: One commenter requested
revising the regulations to eliminate
financial incentives for parents to refer
children for special education and then
unilaterally placing their child in
private schools without first receiving
special education and related services
from the school district. The commenter
stated that it should be clear that a
unilateral placement in a private school
without first receiving special education
and related services from the LEA does
not require the public agency to provide
reimbursement for private school
tuition.
One commenter stated that proposed
§ 300.148(b) goes beyond the Act and
only applies if the court or hearing
officer finds that the agency had not
made FAPE available to the child in a
timely manner prior to enrollment in
the private school. The commenter
stated that a determination that a
placement is ‘‘appropriate,’’ even if it
does not meet the State standards that
apply to education provided by the SEA
or LEAs, conflicts with the SEA’s or
LEA’s responsibility to ensure FAPE to
children with disabilities.
Discussion: The provision in
§ 300.148(b) that a parental placement
does not need to meet State standards in
order to be ‘‘appropriate’’ under the Act
is retained from current § 300.402(c) to
be consistent with the Supreme Court’s
decisions in School Committee of the
Town of Burlington v. Department of
Education, 471 U.S. 359 (1985)
(Burlington) and Florence County
School District Four v. Carter, 510 U.S.
7 (1993) (Carter). Under the Supreme
Court’s decision in Carter, a court may
order reimbursement for a parent who
unilaterally withdraws his or her child
from a public school that provides an
inappropriate education under the Act
and enrolls the child in a private school
that provides an education that is
otherwise proper under the Act, but
does not meet the State standards that
apply to education provided by the SEA
and LEAs. The Court noted that these
standards apply only to public agencies’
own programs for educating children
with disabilities and to public agency
placements of children with disabilities
in private schools for the purpose of
providing a program of special
education and related services. The
Court reaffirmed its prior holding in
Burlington that tuition reimbursement is
only available if a Federal court
concludes ‘‘both that the public
placement violated IDEA, and that the
private school placement was proper
under the Act.’’ (510 U.S. at 12). We
believe LEAs can avoid reimbursement
awards by offering and providing FAPE
consistent with the Act either in public
schools or in private schools in which
the parent places the child. However, a
decision as to whether an LEA’s offer or
provision of FAPE was proper under the
Act and any decision regarding
reimbursement must be made by a court
or hearing officer. Therefore, we do not
believe it is appropriate to include in
these regulations a provision relieving a
public agency of its obligation to
provide tuition reimbursement for a
unilateral placement in a private school
if the child did not first receive special
education and related services from the
LEA.
This authority is independent of the
court’s or hearing officer’s authority
under section 612 (a)(10)(C)(ii) of the
Act to award reimbursement for private
placements of children who previously
were receiving special education and
related services from a public agency.
Changes: None.
SEA Responsibility for General
Supervision and Implementation of
Procedural Safeguards
SEA Responsibility for General
Supervision (§ 300.149)
Comment: One commenter requested
that the Department clarify in these
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regulations how the requirements for
SEA responsibility in § 300.149 apply
with respect to children attending BIA-
funded schools who are sent to State
prisons, including whether the Office of
Indian Education Programs in the
Department of the Interior can delegate
the responsibility of ensuring that the
requirements of Part B of the Act are
met by the State prison. The commenter
further requested clarification regarding
tribally controlled detention facilities
that incarcerate a student from a
different reservation than the
reservation where the student attended
a BIA-funded school.
Discussion: As a general matter, for
educational purposes, students who
were enrolled in a BIA-funded school
and are subsequently convicted as an
adult and incarcerated in a State run
adult prison are the responsibility of the
State where the adult prison is located.
Section 612(a)(11)(C) of the Act and
§ 300.149(d) allow flexibility to States in
that the Governor, or another individual
pursuant to State law, can designate a
public agency in the State, other than
the SEA, as responsible for ensuring that
FAPE is made available to eligible
students with disabilities who are
convicted under State law and
incarcerated in the State’s adult prisons.
This provision does not apply to the
Secretary of the Interior. Therefore, the
Office of Indian Education Programs
cannot delegate the responsibility of
ensuring that the requirements of Part B
of the Act are met by the State prison.
The Act does not specifically address
who is responsible for education of
students with disabilities in tribally
controlled detention facilities. However,
the Secretary of the Interior is only
responsible for students who are
enrolled in schools operated or funded
by the Department of the Interior.
Changes: None.
Comment: One commenter
recommended adding a heading prior to
§ 300.149 to separate this section from
the regulations governing private
schools.
Discussion: We agree with the
commenter that a heading should be
added to separate the private school
provisions from other State eligibility
requirements.
Changes: We have added a heading
before § 300.149 to separate the private
school provisions from the provisions
relating to the SEA’s responsibility for
general supervision and implementation
of procedural safeguards.
State Complaint Procedures (§§ 300.151
through 300.153)
Comment: We received several
comments questioning the statutory
basis for the State complaint provisions
in §§ 300.151 through 300.153. One
commenter stated that the Act includes
only two statutory references to State
complaints and both references
(sections 612(a)(14)(E) and 615(f)(3)(F)
of the Act) immediately follow statutory
prohibitions on due process remedies.
One commenter stated that Congress
did not require SEAs to create a
complaint system and that section
1232c(a) of the General Education
Provisions Act, 20 U.S.C. 1232c(a)
(GEPA), provides only that the
Department may require a State to
investigate and resolve all complaints
received by the State related to the
administration of an applicable
program. The commenter stated that the
permissive wording of this provision
suggests that the Secretary or the
Department can choose not to require a
complaint investigation and resolution
mechanism, particularly when such
mechanism is unnecessary or, as in the
case of the Act, effectively preempted by
more specific requirements in the Act
governing the applicable program.
Another commenter concluded that
there is no basis for the State complaint
procedures in §§ 300.151 through
300.153 because the Act only allows
complaints to be filed with the State in
two situations: (1) By private school
officials, regarding consultation and
child find for parentally-placed private
school children pursuant to section
612(a)(10)(A)(i) and (10)(A)(iii) of the
Act, and (2) by parents, regarding
personnel qualifications in section
612(a)(14)(E) of the Act. The commenter
stated that in both cases, the Act does
not detail a complaint process.
Discussion: Although Congress did
not specifically detail a State complaint
process in the Act, we believe that the
State complaint process is fully
supported by the Act and necessary for
the proper implementation of the Act
and these regulations. We believe a
strong State complaint system provides
parents and other individuals an
opportunity to resolve disputes early
without having to file a due process
complaint and without having to go to
a due process hearing. The State
complaint procedures are referenced in
the following three separate sections of
the Act: (1) Section 611(e)(2)(B)(i) of the
Act, which requires that States spend a
portion of the amount of Part B funds
that they can use for State-level
activities on complaint investigations;
(2) Section 612(a)(14)(E) of the Act,
which provides that nothing in that
paragraph creates a private right of
action for the failure of an SEA or LEA
staff person to be highly qualified or
prevents a parent from filing a
complaint about staff qualifications with
the SEA, as provided for under this part;
and (3) Section 615(f)(3)(F) of the Act,
which states that ‘‘[n]othing in this
paragraph shall be construed to affect
the right of a parent to file a complaint
with the State educational agency.’’
Paragraph (f)(3) is titled ‘‘Limitations on
Hearing’’ and addresses issues such as
the statute of limitations and that
hearing issues are limited to the issues
that the parent has raised in their due
process notice. The Senate Report
explains that this provision clarifies that
‘‘nothing in section 615 shall be
construed to affect a parent’s right to file
a complaint with the State educational
agency, including complaints of
procedural violations’ (S. Rpt. No. 108–
185, p. 41).
Furthermore, the State complaint
procedures were a part of the initial Part
B regulations in 1977 (45 CFR
121a.602). These regulations were
moved into part 76 of the Education
Department General Administrative
Regulations (EDGAR) in the early 1980s,
and were returned to the Part B
regulations in 1992 (after the
Department decided to move the
regulations out of EDGAR and place
them in program regulations for the
major formula grant programs).
Although the State complaint
procedures have changed in some
respects in the years since 1977, the
basic right of any individual or
organization to file a complaint with the
SEA alleging any violation of program
requirements has remained the same.
For these reasons, we believe the State
complaint procedures should be
retained in the regulations.
Changes: None.
Comment: Several commenters stated
that use of the term ‘‘complaint’’ in
reference to due process complaints and
State complaint procedures is
confusing. One commenter requested
that we use the phrase ‘‘due process
hearing request’’ instead of ‘‘due process
complaint’’ in the regulations to avoid
confusion between the two processes.
Discussion: Section 615 of the Act
uses the term ‘‘complaint’’ to refer to
due process complaints. We have used
the phrase ‘‘due process complaint’’
instead of the statutory term
‘‘complaint’’ throughout these
regulations to provide clarity and
reduce confusion between due process
complaints in section 615 of the Act and
complaints under the State complaint
procedures in §§ 300.151 through
300.153. We believe this distinction is
sufficient to reduce confusion and it is
not necessary to add further clarification
regarding the use of the term
‘‘complaint’’ in these regulations.
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The regulations for State complaints
under §§ 300.151 through 300.153
provide for the resolution of any
complaint, including a complaint filed
by an organization or an individual from
another State alleging that the public
agency violated a requirement of Part B
of the Act or of part 300. The public
agency must resolve a State complaint
within 60 days, unless there is a time
extension as provided in § 300.152(b).
Due process complaints, as noted in
§ 300.507, however, may be filed by a
parent or a public agency, consistent
with §§ 300.507 through 300.508 and
§§ 300.510 through 300.515.
Changes: None.
Adoption of State Complaint Procedures
(§ 300.151)
Comment: Many commenters
recommended that only issues related to
violations of the law should be subject
to the State complaint process. One
commenter stated that the State
complaint procedures should be used
only for systemic violations that reach
beyond the involvement of one child in
a school.
A few commenters requested that the
regulations clarify that the State
complaint procedures can be used for
the denial of appropriate services and
the failure to provide FAPE in
accordance with a child’s IEP. However,
some commenters requested that the
regulations clarify that disputes
involving appropriateness of services
and whether FAPE was provided should
be dealt with in a due process hearing.
One commenter stated that the State
complaint procedures should be used to
investigate whether required procedures
were followed and not to determine if
evaluation data and student-specific
data support the IEP Team’s
determination of what is appropriate for
the child. The commenter went on to
state that the procedures for
administrative hearings permit the
examination and cross-examination of
expert witnesses and establishing the
credibility of the testimonies, which are
the functions of a hearing officer, not
SEA complaint specialists.
Discussion: Some commenters, as
noted above, seek to limit the scope of
the State complaint system. We believe
the broad scope of the State complaint
procedures, as permitted in the
regulations, is critical to each State’s
exercise of its general supervision
responsibilities. The complaint
procedures provide parents,
organizations, and other individuals
with an important means of ensuring
that the educational needs of children
with disabilities are met and provide the
SEA with a powerful tool to identify
and correct noncompliance with Part B
of the Act or of part 300. We believe
placing limits on the scope of the State
complaint system, as suggested by the
commenters, would diminish the SEA’s
ability to ensure its LEAs are in
compliance with Part B of the Act and
its implementing regulations, and may
result in an increase in the number of
due process complaints filed and the
number of due process hearings held.
We do not believe it is necessary to
clarify in the regulations that the State
complaint procedures can be used to
resolve a complaint regarding the denial
of appropriate services or FAPE for a
child, since § 300.153 is sufficiently
clear that an organization or individual
may file a written complaint that a
public agency has violated a
requirement of Part B of the Act or part
300. The State complaint procedures
can be used to resolve any complaint
that meets the requirements of
§ 300.153, including matters concerning
the identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child.
We believe that an SEA, in resolving
a complaint challenging the
appropriateness of a child’s educational
program or services or the provision of
FAPE, should not only determine
whether the public agency has followed
the required procedures to reach that
determination, but also whether the
public agency has reached a decision
that is consistent with the requirements
in Part B of the Act in light of the
individual child’s abilities and needs.
Thus, the SEA may need to review the
evaluation data in the child’s record, or
any additional data provided by the
parties to the complaint, and the
explanation included in the public
agency’s notice to the parent as to why
the agency made the determination
regarding the child’s educational
program or services. If necessary, the
SEA may need to interview appropriate
individuals, to determine whether the
agency followed procedures and applied
standards that are consistent with State
standards, including the requirements of
Part B of the Act, and whether the
determination made by the public
agency is consistent with those
standards and supported by the data.
The SEA may, in its effort to resolve a
complaint, determine that interviews
with appropriate individuals are
necessary for the SEA to obtain the
relevant information needed to make an
independent determination as to
whether the public agency is violating a
requirement of Part B of the Act or of
part 300. However, such interviews
conducted by the SEA, as part of its
effort to resolve a State complaint, are
not intended to be comparable to the
requirement in section 615(h)(2) of the
Act, which provides any party to a due
process hearing the right to present
evidence and confront, cross-examine,
and compel the attendance of witnesses.
In addition, a parent always has the
right to file a due process complaint and
request a due process hearing on any
matter concerning the identification,
evaluation, or educational placement of
his or her child, or the provision of
FAPE and may seek to resolve their
disputes through mediation. It is
important to clarify that when the
parent files both a due process
complaint and a State complaint on the
same issue, the State must set aside any
part of the complaint that is being
addressed in the due process hearing
until the conclusion of the hearing.
However, any issue in the complaint
that is not a part of the due process
hearing must be resolved using the State
complaint procedures in § 300.152,
including using the time limit and
procedures in paragraphs (b) and (d) of
§ 300.152. (See § 300.152(c)(1)). Under
the Act, the decision reached through
the due process proceedings is the final
decision on those matters, unless a party
to the hearing appeals that decision by
requesting State-level review, if
applicable, or by bringing a civil action
in an appropriate State or Federal court.
Changes: None.
Comment: A few commenters
requested amending § 300.151(a)(2) to
specifically include school personnel
and teacher organizations in the list of
entities to whom the SEA must
disseminate the State complaint
procedures. Another commenter
requested that representatives of private
schools or residential treatment
facilities be included on the list of
entities to whom the State must
disseminate complaint procedures.
Discussion: Section 300.151(a)(2)
already requires the State to widely
disseminate the State complaint
procedures in §§ 300.151 through
300.153 to parents and other interested
parties, including parent training and
information centers, protection and
advocacy organizations, independent
living centers, and other appropriate
entities. There is nothing in these
regulations that would prevent a State
from disseminating information about
the State complaint procedures to
school personnel, teacher organizations,
or representatives of private schools or
residential facilities. However, we
believe this decision is best left to the
States. We do not believe that there is
a need to add these entities to the
mandatory distribution as individuals
involved in the education of children
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with disabilities are generally
acquainted with these procedures.
Changes: None.
Remedies for Denial of Appropriate
Services (§ 300.151(b))
Comment: Many commenters
requested retaining current
§ 300.660(b)(1), regarding the awarding
of monetary reimbursement as a remedy
for denial of appropriate services. One
commenter stated that the regulations
should clarify that States continue to
have authority to award monetary
reimbursement, when appropriate. A
few commenters stated that the
regulations should clarify that monetary
reimbursement is not appropriate for a
majority of State complaints. Some
commenters stated that removing
current § 300.660(b)(1) creates
ambiguity and may result in increased
litigation because parents may choose to
use the more costly and time-consuming
due process system if they believe that
monetary relief is not available to them
under the State complaint system. Some
commenters stated that removing
current § 300.660(b)(1) implies that
monetary reimbursement is never
appropriate. A few commenters stated
that removing the monetary
reimbursement provision in current
§ 300.660(b)(1) suggests that the
Department no longer supports the use
of this remedy. A few commenters
requested that the regulations clarify
that compensatory services are an
appropriate remedy when the LEA has
failed to provide appropriate services.
Discussion: The SEA is responsible
for ensuring that all public agencies
within its jurisdiction meet the
requirements of the Act and its
implementing regulations. In light of the
SEA’s general supervisory authority and
responsibility under sections 612(a)(11)
and 616 of the Act, we believe the SEA
should have broad flexibility to
determine the appropriate remedy or
corrective action necessary to resolve a
complaint in which the SEA has found
that the public agency has failed to
provide appropriate services to children
with disabilities, including awarding
monetary reimbursement and
compensatory services. To make this
clear, we will change § 300.151 to
include monetary reimbursement and
compensatory services as examples of
corrective actions that may be
appropriate to address the needs of the
child.
Changes: We have added
‘‘compensatory services or monetary
reimbursement’’ as examples of
corrective actions in § 300.151(b)(1).
Comment: One commenter stated that
the remedies available in § 300.151(b)
are silent about whether the
complainant may be reimbursed for
attorneys’ fees and requested
clarification as to whether
reimbursement is permissible for State
complaints. Another commenter
requested that the language in section
615(i)(3)(B) of the Act, regarding the
awarding of attorneys’ fees for due
process hearings, be included in the
State complaint procedures as a way to
limit repetitive, harassing complaints.
Discussion: The awarding of
attorneys’ fees is not addressed in
§ 300.151(b) because the State complaint
process is not an administrative
proceeding or judicial action, and,
therefore, the awarding of attorneys’ fees
is not available under the Act for State
complaint resolutions. Section
615(i)(3)(B) of the Act clarifies that a
court may award attorneys’ fees to a
prevailing party in any action or
proceeding brought under section 615 of
the Act. We, therefore, may not include
in the regulations the language from
section 615(i)(3)(B) of the Act, as
suggested by the commenters, because
State complaint procedures are not an
action or proceeding brought under
section 615 of the Act.
Changes: None.
Minimum State Complaint Procedures
(§ 300.152)
Time Limit; Minimum Procedures
(§ 300.152(a))
Comment: One commenter suggested
changing § 300.152(a)(1), to include
situations when the SEA is the subject
of a complaint. Another commenter
recommended that the State complaint
procedures include how the SEA should
handle a complaint against the SEA for
its failure to supervise the LEA or
failure to provide direct services when
given notice that the LEA has failed to
do so.
Discussion: We do not believe it is
necessary to specify in the regulations
how the SEA should handle a complaint
filed against the SEA because § 300.151
clarifies that, if an organization or
individual files a complaint, pursuant to
§§ 300.151 through 300.153, that a
public agency has violated a
requirement of Part B of the Act or part
300, the SEA must resolve the
complaint. Pursuant to § 300.33 and
section 612(a)(11) of the Act, the term
public agency includes the SEA. The
SEA must, therefore, resolve any
complaint against the SEA pursuant to
the SEA’s adopted State complaint
procedures. The SEA, however, may
either appoint its own personnel to
resolve the complaint, or may make
arrangements with an outside party to
resolve the complaint. If it chooses to
use an outside party, however, the SEA
remains responsible for complying with
all procedural and remediation steps
required in part 300.
Changes: None.
Comment: One commenter suggested
that the regulations include language
requiring an on-site investigation unless
the SEA determines that it can collect
all evidence and fairly determine
whether a violation has occurred with
the evidence provided by the
complainant and a review of records.
Discussion: We do not believe the
regulations should require the SEA to
conduct an on-site investigation in the
manner suggested by the commenter
because we believe § 300.152(a)(1) is
sufficient to ensure that an independent
on-site investigation is carried out if the
SEA determines that such an
investigation is necessary to resolve a
complaint. The minimum State
complaint procedures in § 300.152 are
intended to be broad in recognition of
the fact that States operate differently
and standards appropriate to one State
may not be appropriate in another State.
Therefore, the standards to be used in
conducting an on-site investigation are
best determined by the State.
Changes: None.
Comment: One commenter stated that
§ 300.152 would allow an unlimited
period of time to resolve complaints and
requested that the regulations limit the
complaint resolution process to 30 days,
similar to the procedures when a due
process hearing is requested. A few
commenters requested that the 60-day
time limit be lengthened to 90 days,
given that many complaints involve
complex issues and multiple interviews
with school administrators.
Discussion: Section 300.152 does not
allow an unlimited period of time to
resolve a complaint. Paragraph (a) of
this section provides that an SEA has a
time limit of 60 days after a complaint
is filed to issue a written decision to the
complainant that addresses each
allegation in the complaint (unless,
under paragraph (b) of this section,
there is an extension for exceptional
circumstances or the parties agree to
extend the timeline because they are
engaged in mediation or in other
alternative means of dispute resolution,
if available in the State). We believe the
right of parents to file a complaint with
the SEA alleging any violation of Part B
of the Act or part 300 to receive a
written decision within 60 days is
reasonable in light of the SEA’s
responsibilities in resolving a complaint
pursuant to its complaint procedures,
and is appropriate to the interest of
resolving allegations promptly. In
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addition, the 60-day time limit for
resolving a State complaint is a
longstanding requirement and States
have developed their State complaint
procedures based on the 60-day time
limit. We believe altering this timeframe
would be unnecessarily disruptive to
States’ developed complaint procedures.
For these reasons, we do not believe it
is appropriate to change the time limit
as recommended by the commenters.
Changes: None.
Comment: One commenter expressed
concern that the regulations are silent as
to how an amended State complaint
should be handled. One commenter
expressed concern about resolving
complaints within the 60-day time limit
when the complainant submits
additional information about the
complaint and amends the complaint.
The commenter requested that in such
cases, the regulations should allow the
60-day time limit to begin from the date
the State receives the amended
complaint.
Discussion: Section 300.152 provides
that the complaint must be resolved 60
days after a complaint is filed and that
the complainant must be given an
opportunity to submit additional
information, either orally or in writing,
about the allegations in the complaint.
Generally, if the additional information
a parent submits is on the same or
related incident, it would be part of the
amended complaint. If the information
submitted by the complainant is on a
different or unrelated incident,
generally, the new information would
be treated as a separate complaint. On
the other hand, if the information
submitted by the complainant were on
the same incident, generally, the new
information would be treated as an
amendment to the original complaint. It
is, ultimately, left to each State to
determine whether the new information
constitutes a new complaint or whether
it is related to a pending complaint. We
believe the decision regarding whether
the additional information is a new
complaint or an amendment to an
existing complaint, is best left to the
State. The State must have the flexibility
to make this determination based on the
circumstances of a particular complaint
and consistent with its State complaint
process and, therefore, we do not
believe it is appropriate to regulate
further on this matter.
There are no provisions in Part B of
the Act or in these regulations that
permit the 60-day time limit to begin
from the date the State receives an
amended complaint, if additional
information submitted by the
complainant results in an amendment to
the complaint. However, § 300.152(b)
permits an extension of the 60-day time
limit if exceptional circumstances exist
or the parent and the public agency
agree to extend the time limit to attempt
to resolve the complaint through
mediation.
Changes: None.
Comment: One commenter requested
clarification regarding the time limit for
a public agency to respond with a
proposal to resolve the complaint.
Discussion: The 60-day time limit to
resolve a complaint does not change if
a public agency decides to respond to
the complaint with a proposal to resolve
the complaint. However, § 300.152(b)(2)
permits the 60-day time limit to be
extended under exceptional
circumstances or if the parent and
public agency agree to engage in
mediation or in other alternative means
of dispute resolution, if available in the
State.
Changes: None.
Comment: One commenter expressed
concern that § 300.152(a) could limit the
SEA’s investigation of a complaint to an
exchange of papers since the SEA is not
required to conduct an on-site
investigation.
Discussion: Section 300.152 provides
that the SEA must review all relevant
information and, if it determines it to be
necessary, carry out an independent on-
site investigation in order to make an
independent determination as to
whether the public agency is violating a
requirement of Part B of the Act or part
300. We believe the SEA is in the best
position, and should have the
flexibility, to determine what
information is necessary to resolve a
complaint, based on the facts and
circumstances of the individual case. It
is true that, in some cases, a review of
documents provided by the parties may
be sufficient for the SEA to resolve a
complaint and that conducting an on-
site investigation or interviews with
staff, for example, may be unnecessary.
The SEA, based on the facts in the case,
must decide whether an on-site
investigation is necessary. We also
believe requiring an on-site
investigation for each State complaint
would be overly burdensome for public
agencies and unnecessary.
Changes: None.
Comment: A few commenters
requested adding language to proposed
§ 300.152(a)(3) to allow an SEA to
provide opportunities for resolving the
complaint through mediation and other
informal mechanisms for dispute
resolution with any party filing a
complaint, not only the parents. Some
commenters requested that the
regulations clarify that mediation is the
appropriate method to resolve State
complaints regarding the denial of
appropriate services.
A few commenters expressed concern
that the phrase ‘‘[w]ith the consent of
the parent’’ in proposed § 300.152(a)(3)
implies that complaints are
disagreements between parents and
public agencies, rather than allegations
of violations of a child’s or a parent’s
rights under the Act.
A few commenters supported the use
of mediation to resolve a complaint, but
requested that alternative means of
dispute resolution be deleted. Other
commenters expressed concern that
providing yet another means of
initiating mediation or other dispute
resolution is unnecessary because these
options are already available to parties
who wish to use them. A few
commenters requested that the
regulations define alternative means of
dispute resolution.
Discussion: Section 300.152(a)(3) was
proposed to encourage meaningful,
informal, resolution of disputes between
the public agency and parents,
organizations, or other individuals by
providing an opportunity for parties to
resolve disputes at the local level
without the need for the SEA to resolve
the matter. We believe that, at a
minimum, the State’s complaint
procedures should allow the public
agency that is the subject of the
complaint the opportunity to respond to
a complaint by proposing a resolution
and provide an opportunity for a parent
who has filed a complaint and the
public agency to resolve a dispute by
voluntarily engaging in mediation.
However, we do not believe that the
SEA should be required to offer other
alternative means of dispute resolution,
and so will remove the reference to
these other alternatives from the
minimum procedures in § 300.152(a)(3).
We believe it is important to retain
the provision in § 300.152(a)(3)(ii)
(proposed § 300.152(a)(3)(B)), with
modification, to reinforce the use of
voluntary mediation as a viable option
for resolving disputes between the
public agency and the parents at the
local level prior to the SEA
investigating, if necessary, and resolving
a dispute. Resolving disputes between
parties at the local level through the use
of mediation, or other alternative means
of dispute resolution, if available in the
State, will be less adversarial and less
time consuming and expensive than a
State complaint investigation, if
necessary, or a due process hearing and,
ultimately, children with disabilities
will be the beneficiaries of a local level
resolution.
Requiring that the public agency
provide an opportunity for the parent
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who has filed a complaint and the
public agency to voluntarily engage in
mediation in an effort to resolve a
dispute is an appropriate minimum
requirement and consistent with the
statutory provision in section 615(e) of
the Act that voluntary mediation be
made available to parties (i.e., parent
and public agency) to disputes
involving any matter under Part B of the
Act, including matters arising prior to
the filing of a due process complaint.
However, the statute does not require
that mediation be available to other
parties, and we believe it would be
burdensome to expand, through
regulation, new § 300.152(a)(3)(ii)
(proposed § 300.152(a)(3)(B)) to require
that States offer mediation to non-
parents. Although we do not believe we
should regulate to require that
mediation be offered to non-parents,
there is nothing in the Act or these
regulations that would preclude an SEA
from permitting the use of mediation, or
other alternative dispute resolution
mechanisms, if available in the State, to
resolve a State complaint filed by an
organization or individual other than a
parent, and we will add language to
§ 300.152(b)(1)(ii) to permit extensions
of the timeline if the parties are
voluntarily engaged in any of these
dispute resolution procedures. In fact,
we encourage SEAs and their public
agencies to consider alternative means
of resolving disputes between the public
agency and organizations or other
individuals, at the local level, consistent
with State law and administrative
procedures. It is up to each State,
however, to determine whether non-
parents can use mediation or other
alternative means of dispute resolution.
Section 615(e) of the Act makes clear
that mediation is a voluntary
mechanism for resolving disputes and
may not be used to delay or deny a
parent’s right to a due process hearing
on the parent’s due process complaint,
or to deny any other rights afforded
under Part B of the Act. In light of the
fact that mediation is a voluntary
process, the parties only need to agree
to engage in mediation and it is not
necessary to obtain parental written
consent to engage in this voluntary
process. We will, therefore, change new
§ 300.152(a)(3)(ii) (proposed
§ 300.152(a)(3)(B)) by removing the
phrase ‘‘[w]ith the consent of the
parent’’ and adding a reference to
§ 300.506.
We do not believe it is necessary to
include in the regulations a definition of
the term ‘‘alternative means of dispute
resolution’’ because the term is
generally understood to refer to other
procedures and processes that States
have found to be effective in resolving
disputes quickly and effectively but
does not include those dispute
resolution processes required under the
Act or these final regulations.
Changes: We have changed new
§ 300.152(a)(3)(ii) (proposed
§ 300.152(a)(3)(B)) by removing ‘‘with
the consent of the parent’’ and ‘‘or other
alternative means of dispute resolution’’
and adding a reference to § 300.506. We
have also amended § 300.152(b)(1)(ii), as
stated above, to clarify that a public
agency’s State complaint procedures
must permit an extension of the 60-day
time limit if a parent (or individual or
organization, if mediation, or other
alternative means of dispute resolution
is available to the individual or
organization under State procedures)
who has filed a complaint and the
public agency voluntarily agree to
extend the time to engage in mediation
or other alternative means of dispute
resolution, if available in the State.
Comment: A few commenters stated
that the agreement to extend the 60-day
time limit (to allow the parties to engage
in mediation, or alternative means of
dispute resolution, or both) should meet
the consent requirements in § 300.9.
One commenter requested an extension
of the 60-day time limit to resolve
complaints when mediation is
underway.
Discussion: We do not agree that
consent, as defined in § 300.9, should be
required to extend the 60-day time limit
because it would add burden and is not
necessary. It is sufficient to require
agreement of the parties. At any time
that either party withdraws from
mediation or other alternative means of
dispute resolution, or withdraws
agreement to the extension of the time
limit, the extension would end. We
believe § 300.152(b) is sufficiently clear
that an extension of the 60-day time
limit is permissible if exceptional
circumstances exist with respect to a
particular complaint, or if the parent
and the public agency agree to extend
the time to engage in mediation. We also
believe it would be permissible to
extend the 60-day time limit if the
public agency and an organization or
other individual agree to engage in an
alternative means of dispute resolution,
if available in the State, and the parties
agree to extend the 60-day time limit.
We will revise § 300.152(b)(1)(ii) to
include this exception.
Changes: We have revised
§ 300.152(b)(1)(ii) to clarify that it
would be permissible to extend the 60-
day time limit if the parties agree to
engage in other alternative means of
dispute resolution, if available in the
State.
Comment: Several commenters
requested that § 300.152(a) be modified
to include language allowing parents, in
addition to the public agency, an
opportunity to submit a proposal to
resolve the complaint.
Discussion: We do not believe it is
necessary to include the language in
§ 300.152(a) as suggested by the
commenter because § 300.153(b)(4)(v)
already requires that the signed written
complaint submitted to the SEA by the
complainant include a proposed
resolution to the problem. A parent who
is a complainant must include a
proposed resolution to the problem to
the extent known and available to the
parent at the time the complaint is filed.
Changes: None.
Complaints Filed Under This Section
and Due Process Hearings Under
§ 300.507 or §§ 300.530 Through
300.532 (§ 300.152(c))
Comment: A few commenters
requested that the regulations include a
provision to allow parents to use the
State complaint process to enforce
agreements reached in mediation and
resolution sessions. One commenter
expressed concern that if an SEA does
not have authority to enforce
agreements arising from mediation and
resolution sessions, the burden will be
on a parent to incur costs necessary to
file a petition with a court to have the
agreement enforced.
Discussion: The Act provides that the
enforcement and implementation of
agreements reached through mediation
and resolution sessions may be obtained
through State and Federal courts.
Section 300.506(b)(7), consistent with
section 615(e)(2)(F)(iii) of the Act, states
that a written, signed mediation
agreement is enforceable in any State
court of competent jurisdiction or in a
district court of the United States.
Similarly, § 300.510(c)(2), consistent
with section 615(f)(1)(B)(iii)(II) of the
Act, states that a written settlement
agreement resulting from a resolution
meeting is enforceable in any State court
of competent jurisdiction or in a district
court of the United States.
However, as noted in the Analysis of
Comments and Changes for subpart E,
we have added new § 300.537 that
allows, but does not require, a State to
have mechanisms or procedures that
permit parties to mediation or
resolution agreements to seek
enforcement of those agreements and
decisions at the SEA level. We believe
this provision is sufficient to allow
States the flexibility to determine what
mechanisms or procedures, if any, may
be appropriate to enforce such
agreements, including utilizing their
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State complaint procedures, if they
choose to do so, so long as the
mechanisms or procedures are not used
to deny or delay a parent’s right to seek
enforcement through State and Federal
courts.
Changes: None.
Comment: Numerous commenters
requested that current § 300.661(c)(3),
regarding the SEA’s responsibility to
resolve complaints alleging a public
agency’s failure to implement due
process decisions, be retained. Many
commenters raised concerns that
removing this language will lead to
more litigation. One commenter stated
that parents would be forced to litigate
due process decisions, which will
prolong the denial of FAPE to children.
Another commenter stated that not
allowing States to enforce a hearing
officer’s decision encourages litigation
because it is the only avenue for relief.
Several commenters stated that parents
are placed at a disadvantage because
they may not have the resources to file
in State or Federal court.
Discussion: The SEA’s obligation to
implement a final hearing decision is
consistent with the SEA’s general
supervisory responsibility, under
sections 612(a)(11) and 616 of the Act,
over all education programs for children
with disabilities in the State, which
includes taking necessary and
appropriate actions to ensure that the
provision of FAPE and all the
requirements in Part B of the Act and
part 300 are carried out. However, we
agree that the requirements from current
§ 300.661(c)(3) should be retained for
clarity.
Changes: We have added the
requirement in current § 300.661(c)(3) as
new § 300.152(c)(3).
Comment: Numerous commenters
requested retaining current
§ 300.661(c)(1), which requires that any
issue in the complaint that is not a part
of a due process complaint be resolved
using the applicable State complaint
timelines and procedures. One
commenter stated that § 300.152(c)(1)
requires the State to set aside an entire
complaint if due process proceedings
commence with respect to any subject
that is raised in the complaint. A few
commenters expressed concern that if
issues in a State complaint, which are
not part of a due process complaint, are
not investigated until the due process
complaint is resolved, children may go
without FAPE for extended periods of
time. These commenters also stated that
parents are likely to file for due process
on every issue of concern, rather than
using the more expeditious and less
expensive State complaint procedures.
Discussion: We agree that language in
current § 300.661(c), requiring that
States set aside any part of a State
complaint that is being addressed in a
due process hearing, until the
conclusion of the hearing and resolve
any issue that is not a part of the due
process hearing, should be retained.
Changes: We have revised
§ 300.152(c)(1) by adding the
requirements in current § 300.661(c)(1)
to the regulations.
Comment: One commenter stated that
the regulations do not address the
disposition of a complaint if a parent
and a public agency come to a
resolution of a complaint through
mediation. One commenter
recommended that the regulations
provide guidance on how an SEA
should handle a complaint that is
withdrawn. Another commenter
requested clarification on what should
occur if an SEA does not approve of the
agreement reached between the parent
and the public agency.
Discussion: We do not believe it is
necessary to regulate on these matters,
as recommended by the commenters.
Section 615(e)(2)(F) of the Act and
§ 300.506(b)(7) clarify that an agreement
reached through mediation is a legally
binding document enforceable in State
and Federal courts. Therefore, an
agreement reached through mediation is
not subject to the SEA’s approval. We
strongly encourage parties to resolve a
complaint at the local level without the
need for the SEA to intervene. If a
complaint is resolved at the local level
or is withdrawn, no further action is
required by the SEA to resolve the
complaint.
Changes: None.
Comment: One commenter suggested
including language in the regulations
that would require parties to provide
evidence under threat of perjury.
Another commenter stated that the State
complaint process should be non-
adversarial and that neither party
should have the right to review the
other’s submissions or to cross-examine
the other party.
Discussion: We do not believe it is
appropriate to include the language
suggested by the commenters because
we believe requiring parties to provide
evidence under the threat of perjury,
permitting parties to review
submissions, and allowing one party to
cross-examine the other party are
contrary to the intent of the State
complaint process. The State complaint
process is intended to be less
adversarial than the more formal filing
of a due process complaint and possibly
going to a due process hearing. To make
the changes requested by the
commenters will serve only to make the
State complaint process more
adversarial and will not be in the best
interest of the child. The State
complaint procedures in §§ 300.151
through 300.153 do not require parties
to provide evidence, nor do they require
that a State allow parties to review the
submissions of the other party or to
cross-examine witnesses.
Changes: None.
Filing a Complaint (§ 300.153)
Comment: One commenter
recommended the regulations include a
limit on the number of times that an
individual may file a State complaint
against a public agency.
Discussion: An SEA is required to
resolve any complaint that meets the
requirements of § 300.153, including
complaints that raise systemic issues,
and individual child complaints. It
would be inconsistent with the Act’s
provisions in section 616 regarding
enforcement and the Act’s provisions in
section 612 regarding general
supervision for an SEA to have a State
complaint procedure that removes or
limits a party’s right to file a complaint
that a public agency has violated a
requirement of Part B of the Act or part
300, including limiting the number of
times a party can file a complaint with
the SEA. Therefore, it is not appropriate
to include in the regulations the
language suggested by the commenter,
nor should the SEA include in its State
complaint procedures any restriction on
the number of times a party can file a
complaint, as long as the complaint
meets the requirements of § 300.153.
Changes: None.
Comment: Many commenters
requested retaining current § 300.662(c),
which permits a complaint to be filed
about a violation that occurred more
than one year prior to the date the
complaint is received if the violation is
continuing or the complainant is
requesting compensatory services for a
violation that occurred more than three
years prior to the date the complaint is
received.
Some commenters requested that the
regulations permit a parent to have as
much time to file a State complaint as
a parent would have to file a due
process complaint (two years, unless
provided otherwise by State law). One
commenter stated that extensions of the
statute of limitations should be granted
when circumstances warrant an
extension.
Another commenter suggested adding
language providing that the timeline
begins when a parent first learns about
the violation. A few commenters stated
that parents need a longer statute of
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limitations for State complaints because
they do not always know about
violations when they occur and may not
fully understand how the violation
affects their child’s education.
Several commenters stated that
Congress did not intend to create a one-
year statute of limitations for State
complaints when it created a two-year
statute of limitations for due process
hearings. Several commenters stated
that there is no evidence that Congress
intended to change the current three-
year statute of limitations on the
parents’ right to file a State complaint
when the violation is ongoing or
compensatory services are being
requested.
Discussion: We believe a one-year
timeline is reasonable and will assist in
smooth implementation of the State
complaint procedures. The references to
longer periods for continuing violations
and for compensatory services claims in
current § 300.662(c) were removed to
ensure expedited resolution for public
agencies and children with disabilities.
Limiting a complaint to a violation that
occurred not more than one year prior
to the date that the complaint is
received will help ensure that problems
are raised and addressed promptly so
that children receive FAPE. We believe
longer time limits are not generally
effective and beneficial to the child
because the issues in a State complaint
become so stale that they are unlikely to
be resolved. However, States may
choose to accept and resolve complaints
regarding alleged violations that
occurred outside the one-year timeline,
just as they are free to add additional
protections in other areas that are not
inconsistent with the requirements of
the Act and its implementing
regulations. For these reasons, we do
not believe it is necessary to retain the
language in current § 300.662(c).
We do not believe it is appropriate to
change the timeline to begin when a
parent first learns about the violation, as
suggested by the commenter, because
such a provision could lead to some
complaints being filed well beyond one
year from the time the violation actually
occurred. This also would make the
issue of the complaint so stale that the
SEA would not be able to reasonably
resolve the complaint and recommend
an appropriate corrective action.
As we stated earlier in the Analysis of
Comments and Changes for this subpart,
Congress did not specifically address or
detail a State complaint process in the
Act; nor did Congress express an
opinion regarding the time limit for
filing a complaint under a State’s
complaint process.
Changes: None.
Comment: Several commenters stated
that § 300.153(c) appears to indicate that
if a State complaint, is also the subject
of a due process complaint, the time
period to file the complaint is two years,
rather than the one-year time limit
applicable for all other State complaints.
Several commenters stated that this
provision should be removed and that a
one-year limitation should apply to all
State complaints, regardless of whether
a request for a due process hearing is
filed on the issue(s) in the complaint.
Discussion: If a State complaint
contains multiple issues of which one or
more is part of a due process hearing,
the one-year statute of limitations would
apply to the issues that are resolved
under the State complaint procedures;
the State due process statute of
limitations would apply to the issues
that are the subject of the due process
hearing. We agree that the language in
§ 300.153 is confusing and will amend
the language to remove the reference to
the due process complaint.
Changes: We have removed the
phrase, ‘‘Except for complaints covered
under § 300.507(a)(2)’’ in § 300.153(c).
Comment: Some commenters
recommended removing the
requirement in § 300.153(d) that
requires the party filing the complaint to
forward a copy of the complaint to the
LEA or public agency serving the child
at the same time the party files the
complaint with the SEA. One
commenter stated that filing a complaint
is onerous enough for parents, without
including an extra step of requiring a
copy of the complaint to be forwarded
to the school. One commenter stated
that this poses an unnecessary
paperwork burden on parents. A few
commenters stated that forwarding a
copy of the complaint to the LEA should
be the responsibility of the SEA, not the
parents.
One commenter expressed concern
that requiring the party filing the
complaint to forward a copy of the
complaint to the LEA or public agency
serving the child will discourage
parents or school personnel whistle
blowers from filing a complaint and
recommended instead, that the
regulations require SEAs to provide the
LEA with a concise statement of fact
upon which the complaint is based and
the provisions of laws and rules that are
at issue. A few commenters requested
including language in § 300.153(d)
giving the SEA discretion to protect the
confidentiality of the complainant. A
few commenters recommended
removing the requirement in
§ 300.153(b)(3) for the written complaint
to include the signature and contact
information for the complainant.
Discussion: The purpose of requiring
the party filing the complaint to forward
a copy of the complaint to the LEA or
public agency serving the child, at the
same time the party files the complaint
with the SEA, is to ensure that the
public agency involved has knowledge
of the issues and an opportunity to
resolve them directly with the
complaining party at the earliest
possible time. The sooner the LEA
knows that a complaint is filed and the
nature of the issue(s), the quicker the
LEA can work directly with the
complainant to resolve the complaint.
We believe the benefit of having the
complainant forward a copy of the
complaint to the LEA or public agency
far outweigh the minimal burden placed
on the complainant because it will lead
to a faster resolution of the complaint at
the local level. For these reasons, we
also do not believe it is more efficient
to have the SEA forward the complaint
to the public agency or provide the
public agency with a statement
summarizing the complaint.
We do not believe that the complaint
procedures should provide for the
confidentiality of the complainant. The
complainant should not remain
unknown to the public agency that is
the subject of the complaint because
that public agency needs to know who
the complainant is and something about
the complaint (consistent with
§ 300.153) before it can be expected to
resolve the issues. We believe it is
reasonable to require a party to file a
signed complaint and provide contact
information to the SEA in order to
ensure the credibility of the complaint
and provide the SEA with the basic
contact information necessary for the
SEA to handle complaints
expeditiously. If the SEA receives a
complaint that is not signed, as required
in § 300.153, the SEA may choose to
dismiss the complaint.
Changes: None.
Comment: One commenter expressed
concern that a parent must have legal
knowledge in order to correctly file a
State complaint.
Discussion: Contrary to the
commenter’s assertion that a parent
must have legal knowledge to file a
complaint, we believe the State
complaint procedures, which are under
the direct control of the SEA, provide
the parent and the school district with
mechanisms that allow them to resolve
differences without having to resort to a
more costly and cumbersome due
process complaint, which, by its nature,
is litigious. We believe if a State
effectively implements its State
complaint procedures, both parents and
public agencies will generally find the
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process efficient and easy to initiate. We
further believe that the requirement in
§ 300.509 that each SEA must develop
model forms to assist parents in filing a
State complaint in accordance with
§§ 300.151 through 300.153, and in
filing a due process complaint in
accordance with §§ 300.507(a) and
300.508(a) through (c), will make the
process of filing such complaints much
easier for parents and others.
Changes: We have made a minor
wording change in § 300.153(b)(4) for
clarity.
Comment: One commenter stated that
the complainant should not have to
propose a resolution to the problem, as
required in § 300.153(b)(4)(v), in order
to have the State investigate a
complaint.
Discussion: Section 300.153(b)(4)(v)
requires the complainant to propose a
resolution to the complaint only to the
extent known and available to the
complainant at the time the complaint
is filed. We believe this proposed
resolution is necessary because it gives
the complainant an opportunity to state
what he or she believes to be the
problem and how the complainant
believes it can be resolved. This is
important because it gives the
complainant an opportunity to tell the
public agency what is wrong and what
it would take to fix the problem from
the complainant’s point of view. It also
will give the LEA an opportunity to
choose either to do as the complainant
requests or propose a solution that it
believes would resolve the issue raised
by the complainant. Thus, if successful,
the parties will avoid an adversarial
relationship and possibly the expense of
a due process hearing.
Changes: None.
Comment: One commenter requested
that § 300.153(d) include language
allowing an LEA to appeal an SEA
finding to an administrative hearing or
the courts. Another commenter
expressed concern that the State
complaint procedures lack an appeals
process for parties that lose under the
State complaint procedures.
Discussion: The regulations neither
prohibit nor require the establishment of
procedures to permit an LEA or other
party to request reconsideration of a
State complaint decision. We have
chosen to be silent in the regulations
about whether a State complaint
decision may be appealed because we
believe States are in the best position to
determine what, if any, appeals process
is necessary to meet each State’s needs,
consistent with State law.
If a State chooses, however, to adopt
a process for appealing a State
complaint decision, such process may
not waive any of the requirements in
§§ 300.151 through 300.153. Section
300.152 requires that the SEA issue a
final decision on each complaint within
60 calendar days after the complaint is
filed, unless the SEA extends the
timeline as provided in § 300.152(b).
This means that, absent an appropriate
extension of the timeline for a particular
complaint, the State must issue a final
decision within 60 calendar days.
However, if after the SEA’s final
decision is issued, a party who has the
right to request a due process hearing
(that is, the parent or LEA) and who
disagrees with the SEA’s decision may
initiate a due process hearing, provided
that the subject of the State complaint
involves an issue about which a due
process hearing can be filed and the
two-year statute of limitations for due
process hearings (or other time limit
imposed by State law) has not expired.
Changes: None.
Method of Ensuring Services (§ 300.154)
Establishing Responsibility for Services
(§ 300.154(a))
Comment: One commenter suggested
posting interagency agreements on SEA
Web sites and in public buildings, and
making them available upon request.
Discussion: There is nothing in the
Act or these regulations that would
prohibit an SEA from posting
interagency agreements on Web sites, in
public buildings, or making them
available upon request. However, we
believe that it would be unnecessarily
burdensome to require SEAs to do so
and any decision regarding posting
interagency agreements is best left to the
States’ discretion.
Changes: None.
Comment: One commenter stated that
interagency agreements are important
because agencies other than SEAs (e.g.,
mental health agencies that place
children in residential facilities) are
responsible for providing special
educational services. The commenter
requested that the regulations specify
that residential facilities be allowed
reimbursement for providing
educational services and that children
in these facilities are entitled to FAPE.
Discussion: We do not believe it is
necessary to further clarify in the
regulations that children with
disabilities who are placed in
residential facilities by public agencies
are entitled to FAPE because § 300.146,
consistent with section 612(a)(10)(B) of
the Act, provides that SEAs must ensure
that children with disabilities receive
FAPE when they are placed in or
referred to private schools or facilities
by public agencies. Whether residential
facilities can receive reimbursement for
educational services will depend on
how States have apportioned financial
responsibility among State agencies and
we do not believe that regulating on this
issue is appropriate or necessary.
Changes: None.
Obligation of Noneducational Public
Agencies (§ 300.154(b))
Comment: One commenter expressed
concern that § 300.154(b) allows LEAs
to discontinue services when there is a
dispute with other agencies and
requested the regulations require LEAs
to bear the ultimate responsibility for
providing services.
Discussion: We do not believe it is
necessary to further clarify that the LEA
is ultimately responsible for providing
services because § 300.154(b)(2)
sufficiently requires that if a public
agency other than an educational agency
fails to provide or pay for the special
education and related services in
§ 300.154(b)(1), the LEA or State agency
responsible for developing the child’s
IEP must provide or pay for these
services to the child in a timely manner.
Disagreements about the interagency
agreements should not stop or delay the
receipt of the services described in the
child’s IEP. Section 300.103(c) also
addresses timely services and clarifies
that, consistent with § 300.323(c), the
State must ensure there is no delay in
implementing a child’s IEP, including
any situation in which the source for
providing or paying for the special
education or related services to a child
is being determined. Section
612(a)(12)(A)(i) of the Act provides that
the financial responsibility of public
agencies (other than an educational
agency), including Medicaid and other
public insurers obligated under Federal
or State law or assigned responsibility
under State policy, must precede
financial responsibility of the LEA.
Changes: None.
Children With Disabilities Who Are
Covered by Public Benefits or Insurance
(§ 300.154(d))
Comment: One commenter expressed
concern regarding the use of a parent’s
public benefits or insurance to pay for
services required under Part B of the Act
because co-payments and other out-of-
pocket expenses would be a hardship to
low-income families. A few commenters
stated that services paid for by public
benefits or insurance would count
against a child’s lifetime cap.
Discussion: The commenters’
concerns are addressed in
§ 300.154(d)(2)(ii) and (d)(2)(iii). Section
300.154(d)(2)(ii) states that a public
agency may not require parents to incur
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an out-of-pocket expense, such as the
payment of a deductible or co-pay
amount, in filing a claim for services,
and may pay from funds reserved under
the Act, the cost that the parent would
otherwise be required to pay. In
addition, § 300.154(d)(2)(iii) states that a
public agency may not use a child’s
benefits under a public benefits or
insurance program if that use would
decrease lifetime coverage or any other
insured benefit; result in the family
paying for services that would otherwise
be covered by the public benefits or
insurance program and that are required
for the child outside of the time the
child is in school; increase premiums or
lead to the discontinuation of benefits or
insurance; or risk loss of eligibility for
home and community-based waivers,
based on aggregate health-related
expenditures.
Changes: None.
Comment: One commenter suggested
changing ‘‘parental consent’’ to
‘‘informed parental consent.’’ One
commenter recommended requiring
public agencies to obtain parental
consent each time the public agency
seeks to access the parent’s public
benefits or insurance. Some commenters
recommended removing the
requirement to obtain parental consent
to use Medicaid benefits to pay for
services required under Part B of the
Act. A few commenters opposed
requiring parental consent, stating the
process is an administrative burden.
Other commenters recommended
waiving the requirement for consent if
the agency has taken reasonable
measures to obtain such consent or the
parent’s consent was given to the State
Medicaid Agency.
Discussion: In order for a public
agency to use the Medicaid or other
public benefits or insurance program in
which a child participates to provide or
pay for services required under the Act,
the public agency must provide the
benefits or insurance program with
information from the child’s education
records (e.g., services provided, length
of the services). Information from a
child’s education records is protected
under the Family Educational Rights
and Privacy Act of 1974, 20 U.S.C.
1232(g) (FERPA), and section 617(c) of
the Act. Under FERPA and section
617(c) of the Act, a child’s education
records cannot be released to a State
Medicaid agency without parental
consent, except for a few specified
exceptions that do not include the
release of education records for
insurance billing purposes. Parental
consent requires, among other things,
that the parent be fully informed in his
or her native language, or other mode of
communication, consistent with § 300.9.
Thus, there is no need to change
‘‘parental consent’’ to ‘‘informed
consent,’’ as recommended by one
commenter. However, we believe it
would avoid confusion for the
references to ‘‘consent’’ in paragraphs
(d) and (e) in § 300.154 to be consistent.
Therefore, we will add a reference to
§ 300.9 in § 300.154(d)(2)(iv)(A) and
delete ‘‘informed’’ from § 300.154(e)(1).
We believe obtaining parental consent
each time the public agency seeks to use
a parent’s public insurance or other
public benefits to provide or pay for a
service is important to protect the
privacy rights of the parent and to
ensure that the parent is fully informed
of a public agency’s access to his or her
public benefits or insurance and the
services paid by the public benefits or
insurance program. Therefore, we will
revise § 300.154(d)(2)(iv) to clarify that
parental consent is required each time
the public agency seeks to use the
parent’s public insurance or other
public benefits. We do not believe that
it would be appropriate to include a
provision permitting waiver of parental
consent in this circumstance, even
where a public agency makes reasonable
efforts to obtain the required parental
consent. However, we agree with the
commenter that a public agency could
satisfy parental consent requirements
under FERPA and section 617(c) of the
Act if the parent provided the required
parental consent to the State Medicaid
agency, and the consent satisfied the
Part B definition of consent in § 300.9.
We also believe that it is important to
let parents know that their refusal to
allow access to their public benefits or
insurance does not relieve the public
agency of its responsibility to ensure
that all required services are provided at
no cost to the parents. We will,
therefore, add a new paragraph (B) to
§ 300.154(d)(2)(iv) to make this clear.
Finally, because we have referenced
the definition of consent in § 300.9
throughout the rest of these regulations,
rather than the consent provisions in
§ 300.622, we have removed the
reference to § 300.622.
Changes: Section 300.154(d)(2)(iv) has
been changed to clarify that consent
must be obtained each time the public
agency seeks to access a parent’s public
benefits or insurance and to clarify that
a parent’s refusal to allow access to the
parent’s public benefits or insurance
does not relieve the public agency of its
responsibility to ensure that all required
services are provided at no cost to the
parent. The reference to § 300.622 has
been removed and we have added
‘‘consistent with § 300.9’’ following
‘‘parental consent’’ in
§ 300.154(d)(2)(iv)(A). For consistency,
we have removed ‘‘informed’’ before
‘‘consent’’ in § 300.154(e)(1).
Comment: One commenter stated that
LEAs and agencies that, by law, must
provide educational services should not
be allowed to use public benefits or
insurance to pay for these programs.
One commenter suggested that the Act
be more closely aligned with the
Medicaid laws. One commenter
requested requiring public benefits or
insurance agencies, when paying for
special education, to meet the standards
of the Act, and not the standards for
medical environments.
Discussion: We disagree with the
comment that LEAs and other public
agencies responsible for providing
special education and related services to
children with disabilities should not be
allowed to use public benefits or
insurance to pay for these services.
Pursuant to section 612(a)(12) of the
Act, if a child is covered by a public
benefits or insurance program and there
is no cost to the family or the child in
using the benefits of that program to
support a service included in a child’s
IEP, the public agency is encouraged to
use the public benefits or insurance to
the extent possible. We believe public
benefits or insurance are important
resources for LEAs and other public
agencies to access, when appropriate, to
assist in meeting their obligation to
make FAPE available to all children
who are eligible to receive services.
Section 300.103 retains the
Department’s longstanding provision
that clarifies that each State may use
whatever State, local, Federal, and
private sources of support are available
in the State to meet the requirements of
part 300. Nothing in part 300 relieves an
insurer or similar third party from an
otherwise valid obligation to provide or
pay for services provided to a child with
a disability.
The Act does not give the Department
the authority to impose the standards of
the Act on public benefits or insurance
agencies, when paying for special
education. If, however, a third party
provider, such as a public benefits or
insurance company, is unable to
provide funding for services outside a
clinical setting or other specific setting,
the public agency cannot use the third
party provider’s inability to provide
such funding as an appropriate
justification for not providing a child
with a disability FAPE in the LRE.
Nothing in part 300 alters the
requirements imposed on a State
Medicaid agency, or any other agency
administering a public benefits or
insurance program by Federal statute,
regulation, or policy under Title XIX or
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Title XXI of the Social Security Act, 42
U.S.C. 1396 through 1396(v) and 42
U.S.C. 1397aa through 1397jj, or any
other public benefits or insurance
program. See section 612(a)(12) and (e)
of the Act.
We believe the regulations are
sufficiently aligned with the Medicaid
program and consistent with the Act
and no further clarification is necessary.
Changes: None.
Comment: One commenter requested
clarifying that a child cannot be denied
Medicaid-supported medical services
merely because he or she receives
educational services funded by
Medicaid.
Discussion: We do not believe further
clarification is necessary because
§ 300.154(d)(2) is sufficiently clear that
the child’s receipt of Medicaid-funded
educational services, consistent with the
Act and these regulations, should not
deny the child receipt of other services
for which he or she may be eligible
under Medicaid or other noneducational
programs. Further, § 300.103(b) provides
that nothing in part 300 relieves an
insurer or third party from an otherwise
valid obligation to pay for services
provided to a child with a disability.
Changes: None.
Comment: One commenter stated that
LEAs and agencies that, by law, must
provide educational services should not
be allowed to use public benefits or
insurance to pay for these programs.
One commenter suggested that the Act
be more closely aligned with the
Medicaid laws. One commenter
requested requiring public benefits or
insurance agencies, when paying for
special education, to meet the standards
of the Act, and not the standards for
medical environments.
Discussion: We disagree with the
comment that LEAs and other public
agencies responsible for providing
special education and related services to
children with disabilities should not be
allowed to use public benefits or
insurance to pay for these services.
Pursuant to section 612(a)(12) of the
Act, if a child is covered by a public
benefits or insurance program and there
is no cost to the family or the child in
using the benefits of that program to
support a service included in a child’s
IEP, the public agency is encouraged to
use the public benefits or insurance to
the extent possible. We believe public
benefits or insurance are important
resources for LEAs and other public
agencies to access, when appropriate, to
assist in meeting their obligation to
make FAPE available to all children
who are eligible to receive services.
Section 300.103 retains the
Department’s longstanding provision
that clarifies that each State may use
whatever State, local, Federal, and
private sources of support are available
in the State to meet the requirements of
part 300. Nothing in part 300 relieves an
insurer or similar third party from an
otherwise valid obligation to provide or
pay for services provided to a child with
a disability.
The Act does not give the Department
the authority to impose the standards of
the Act on public benefits or insurance
agencies, when paying for special
education. If, however, a third party
provider, such as a public benefits or
insurance company, is unable to
provide funding for services outside a
clinical setting or other specific setting,
the public agency cannot use the third
party provider’s inability to provide
such funding as an appropriate
justification for not providing a child
with a disability FAPE in the LRE.
Nothing in part 300 alters the
requirements imposed on a State
Medicaid agency, or any other agency
administering a public benefits or
insurance program by Federal statute,
regulation, or policy under Title XIX or
Title XXI of the Social Security Act, 42
U.S.C. 1396 through 1396(v) and 42
U.S.C. 1397aa through 1397jj, or any
other public benefits or insurance
program. See section 612(a)(12) and (e)
of the Act.
We believe the regulations are
sufficiently aligned with the Medicaid
program and consistent with the Act
and no further clarification is necessary.
Changes: None.
Comment: One commenter requested
clarifying that a child cannot be denied
Medicaid-supported medical services
merely because he or she receives
educational services funded by
Medicaid.
Discussion: We do not believe further
clarification is necessary because
§ 300.154(d)(2) is sufficiently clear that
the child’s receipt of Medicaid-funded
educational services, consistent with the
Act and these regulations, should not
deny the child receipt of other services
for which he or she may be eligible
under Medicaid or other noneducational
programs. Further, § 300.103(b) provides
that nothing in part 300 relieves an
insurer or third party from an otherwise
valid obligation to pay for services
provided to a child with a disability.
Changes: None.
Personnel Qualifications (§ 300.156)
Comment: One commenter requested
that § 300.156 use the term ‘‘standards’’
when referring to personnel
qualifications.
Discussion: We are not changing
§ 300.156 because its language follows
the specific language in section
612(a)(14) of the Act. Current § 300.136
refers to ‘‘personnel standards’’ but was
removed consistent with the changes in
section 612(a)(14) of the Act.
Changes: None.
Comment: Some commenters
requested that the personnel
qualification requirements in § 300.156
apply to personnel who provide travel
instruction and teachers of children
with visual impairments. Other
commenters requested that personnel
who provide therapeutic recreation
services be required to meet the
personnel qualifications. Some
commenters requested that the
personnel qualifications apply to
preschool special education teachers.
Discussion: It is not necessary to list
the specific personnel who provide
services to children with disabilities
under the Act and to whom the
requirements in § 300.156 apply because
the regulations are sufficiently clear that
all needed personnel are covered. This
includes personnel who provide travel
instruction or therapeutic recreation
services; teachers of children with
visual impairments, if such personnel
are necessary to carry out the purposes
of this part; and preschool teachers in
States where preschool teachers are
considered elementary school teachers.
Section 300.156(a), consistent with
section 612(a)(14)(A) of the Act, requires
each SEA to establish and maintain
personnel qualification requirements to
ensure that personnel necessary to carry
out the purposes of Part B of the Act and
part 300 are appropriately and
adequately prepared and trained, and
have the content knowledge and skills
to serve children with disabilities.
Changes: None.
Comment: One commenter stated that
the regulations should define what it
means to be qualified to provide
services to children with disabilities
under the Act. The commenter stated
that the regulations do not include any
requirements for general education
teachers or administrators who are
involved in providing instruction and
services for children in special
education.
Discussion: It is not necessary to
change the regulations to define what it
means to be qualified to provide
services because we believe that, aside
from the ‘‘highly qualified’’
requirements for teachers and special
education teachers in ESEA and the Act,
other personnel qualifications are
appropriately left to the States, in light
of the variability in State circumstances.
Further, § 300.156, consistent with
section 612(a)(14) of the Act, makes it
clear that it is the responsibility of the
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SEA, not the Federal government, to
establish and maintain qualifications for
personnel who provide services to
children with disabilities under the Act.
Changes: None.
Comment: One commenter objected to
the removal of the requirements for a
comprehensive system of personnel
development in current § 300.135. The
commenter also stated that regular
education teachers need to be trained to
work with children with disabilities to
ensure that their inclusion in the regular
classroom is successful.
Discussion: Current § 300.135
required States to have in effect a
system of personnel development to
ensure an adequate supply of qualified
special education, regular education,
and related services personnel. Section
612(a)(14) of the Act removed this
requirement. The removal of current
§ 300.135, however, does not diminish
the responsibility of each State to
establish and maintain qualifications to
ensure that personnel (including regular
education teachers) necessary to carry
out the purposes of the Act are
appropriately and adequately prepared
and trained, consistent with § 300.156.
Changes: None.
Comment: Some commenters
recommended that the regulations
include language from note 97 of the
Conf. Rpt., p. 192, which requires SEAs
to establish rigorous qualifications for
related services providers to ensure that
children with disabilities receive the
appropriate quality and quantity of care.
Several commenters requested that the
regulations require SEAs to consult with
LEAs, other State agencies, the
disability community, and professional
organizations regarding appropriate
qualifications for related services
providers and different service delivery
models (e.g., consultative, supervisory,
and collaborative models).
Discussion: We believe that States
already have sufficient incentive to
ensure that related services providers
provide services of appropriate quality
so that children with disabilities can
achieve to high standards and that
further regulation in this area is not
necessary. Section 300.156(b),
consistent with section 612(a)(14)(B) of
the Act, includes the qualifications for
related services personnel. There is
nothing in the Act that requires SEAs to
consult with LEAs, other State agencies,
or other groups and organizations to
determine the appropriate qualifications
for related services providers and the
use of different service delivery models,
and while we agree that this is good
practice and encourage SEAs to
participate in such consultation, we do
not believe that we should regulate in
this manner. States should have the
flexibility, based on each State’s unique
circumstances, to determine how best to
establish and maintain standards for all
personnel who are providers of special
education and related services.
Changes: None.
Comment: Numerous commenters
objected to § 300.156(b) and the removal
of the requirement in current § 300.136
for State professional requirements to be
based on the highest requirements in the
State. The commenters stated that the
removal of this requirement relaxes the
qualification standards for speech-
language pathologists and other related
services personnel. Several commenters
stated that speech-language
professionals should be required to have
advanced degrees (i.e., master’s level)
because a bachelor’s degree does not
provide adequate preparation. Many
commenters expressed concern that the
requirements in § 300.156(b) will lead to
a decline in the quality of related
services provided to children with
disabilities in public schools. Other
commenters expressed concern that
increasing the standards will exacerbate
the shortage of related services
personnel experienced by large urban
school districts.
Discussion: We are not changing
§ 300.156 because it reflects the specific
language in section 612(a)(14) of the
Act, which was intended to provide
greater flexibility to SEAs to establish
appropriate personnel standards,
including the standards for speech-
language pathologists. As indicated in
note 97 of the Conf. Rpt., p. 192, section
612(a)(14) of the Act removes the
requirement for State professional
requirements to be based on the highest
requirements in the State because of
concerns that the previous law,
regarding the qualifications of related
services providers, established an
unreasonable standard for SEAs to meet,
and as a result, led to a shortage of
related services providers for children
with disabilities. We believe that States
can exercise the flexibility provided in
§ 300.156 and section 612(a)(14) of the
Act while ensuring appropriate services
for children with disabilities without
additional regulation.
Changes: None.
Comment: Many commenters
expressed concern that § 300.156(b)
establishes qualifications for related
services providers in public schools that
are less rigorous than the qualifications
for related services providers who
provide Medicaid services or services in
other public settings, such as hospitals.
The commenters stated that less
rigorous qualifications would result in a
two-tiered system in which related
services providers in public schools will
be less qualified than related services
providers in other public agencies.
Another commenter expressed concern
that the relaxation of standards for
speech-language pathologists would
cause LEAs to lose Medicaid funds that
are used to assist children with
disabilities.
Discussion: Section 300.156,
consistent with section 612(a)(14)(B)(i)
of the Act, clarifies that it is up to each
SEA to establish qualifications for
personnel to carry out the purposes of
the Act. This will require weighing the
various policy concerns unique to each
State. The qualifications of related
services providers required under
Medicaid, or in hospitals and other
public settings, and the fact that
Medicaid will not pay for providers who
do not meet Medicaid provider
qualifications should serve as an
incentive for States that want to bill for
medical services on children’s IEPs to
impose consistent requirements for
qualifications of related services
providers.
Changes: None.
Comment: Some commenters stated
that related services personnel should
be considered to have met the
qualifications in § 300.156(b)(1),
regarding State-recognized certification,
licensing, registration or other
comparable requirements, if such
personnel hold an academic degree
consistent with their profession’s
national certification or State license to
practice; demonstrate satisfactory
progress toward full certification in the
schools as prescribed by the State; and
assume related services personnel
functions for a specified period not to
exceed three years.
A few commenters objected to the
requirement that related services
personnel must not have had
certification or licensure requirements
waived. One commenter stated that
emergency, temporary, or provisional
certificates are necessary for
professionals relocating from different
States or different countries, and
predicted that professionals with
emergency, temporary, or provisional
certification would work for contract
agencies to bypass the requirements.
Discussion: We believe the provisions
in § 300.156(b) that State qualifications
for related services personnel must
include qualifications that are
consistent with any State-approved or
State-recognized certification, licensing,
registration, or other comparable
requirements that apply to the
professional discipline in which those
personnel are providing special
education or related services, are
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sufficient to ensure related services
personnel are qualified to provide
appropriate services to children with
disabilities while maintaining the
States’ flexibility to establish
appropriate personnel standards for
related services personnel. We do not
believe, therefore, that it is necessary to
include additional regulation as
suggested by commenters.
Section 300.156(b)(2)(ii) tracks the
statutory requirement in section
612(a)(14)(B)(ii) of the Act, which
requires that related services personnel
not have certification or licensure
requirements waived on an emergency,
temporary, or provisional basis. We do
not believe this provision unnecessarily
hinders States from hiring professionals
from other States or countries. States, in
examining the credentials of prospective
related services personnel from other
States or countries, may find that their
existing certification or licensure
requirements are ones that these related
services personnel could readily meet.
Because each State has full authority to
define and enforce its own requirements
that personnel must meet in order to
receive full State certification or
licensure, States that employ related
services personnel from other States or
countries may, consistent with State law
and policy, consider establishing a
separate category of certification that
would differ from emergency,
temporary, or provisional certification
in that the State would not be waiving
any training or experiential
requirements.
Changes: None.
Comment: One commenter
recommended using nationally
recognized standards to determine the
qualifications of related services
personnel. Another commenter
recommended requiring SEAs to
consider current professional standards
in establishing appropriate
qualifications for related services
personnel. One commenter requested
adding language to the regulations to
prevent professional organizations from
establishing personnel standards for
related services personnel that override
standards set by the SEA.
Discussion: We do not believe it is
necessary to regulate as suggested by the
commenters because these matters are
better left to States to decide as States
are in the best position to determine
appropriate professional requirements
for their States. There is nothing in the
Act that requires an SEA to determine
qualifications of related services
personnel based on nationally
recognized standards or current
professional standards. Professional
organizations may establish personnel
standards for related services personnel
that differ from the standards
established by a State, but section
612(a)(14) of the Act clarifies that the
State is responsible for establishing and
maintaining personnel qualifications to
ensure that related services personnel
have the knowledge and skills to serve
children with disabilities under the Act.
Changes: None.
Comment: A few commenters
requested that the regulations specify
that an SEA, and not the State, has the
authority to establish certification and
licensure qualifications of related
services personnel.
Discussion: We do not believe it is
necessary to change the regulation
because § 300.156(b), which follows the
language in section 612(a)(14)(B) of the
Act, clarifies that the SEA must
establish qualifications for related
services personnel that are consistent
with State-approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to related services personnel.
Changes: None.
Comment: Some commenters
requested that the regulations require
related services providers who do not
meet existing State standards to be
supervised by qualified personnel.
Discussion: Related services providers
who do not meet the personnel
qualifications established by the SEA
would not be considered qualified to
serve children with disabilities under
the Act even with supervision by
qualified personnel. Section 300.156(d),
consistent with section 612(a)(14)(D) of
the Act, clarifies that each State must
ensure that LEAs take measurable steps
to recruit, hire, train, and retain highly
qualified special education personnel to
provide special education and related
services to children with disabilities
under the Act.
Changes: None.
Comment: Some commenters
recommended that the regulations
require high standards for
paraprofessionals. Several commenters
requested guidance on the appropriate
use of paraprofessionals to ensure that
paraprofessionals and assistants are not
used as a means of circumventing
certification and licensing requirements
for related services providers. A few
commenters requested language
clarifying that the elimination of the
requirement that State professional
requirements be based on the highest
requirements in the State in current
§ 300.136(b) must not be used to justify
the inappropriate use of
paraprofessionals or related services
providers. Another commenter asked
that the regulations require States to
ensure that paraprofessionals are
properly supervised at all times. One
commenter stated that the regulations
should clarify the use of State standards
for speech-language pathology
paraprofessionals.
Discussion: We believe the provisions
in § 300.156, consistent with section
612(a)(14) of the Act, are sufficient to
ensure that paraprofessionals meet high
standards and that including additional
requirements in these regulations is
unnecessary. These provisions require
an SEA to establish and maintain
qualifications to ensure that personnel,
including paraprofessionals, are
appropriately and adequately prepared
and trained, and have the content
knowledge and skills to serve children
with disabilities; and require the
qualifications for paraprofessionals to be
consistent with any State-approved or
State-recognized certification, licensing,
registration, or other comparable
requirements that apply to the
professional discipline in which those
personnel are providing special
education or related services. In
addition, the ESEA requires that
paraprofessionals working in a program
supported by title I of the ESEA,
including special education
paraprofessionals who assist in
instruction in title I-funded programs,
have at least an associate’s degree, have
completed at least two years of college,
or meet a rigorous standard of quality
and demonstrate, through a formal State
or local assessment, knowledge of, and
the ability to assist in instruction in
reading, writing, and mathematics,
reading readiness, writing readiness, or
mathematics readiness, as appropriate.
Paraprofessionals in title I schools do
not need to meet these requirements if
their role does not involve instructional
support, such as special education
paraprofessionals who solely provide
personal care services. For more
information on the ESEA requirements
for paraprofessionals, see 34 CFR 200.58
and section 1119 of the ESEA, and the
Department’s nonregulatory guidance,
Title I Paraprofessionals (March 1,
2004), which can be found on the
Department’s Web site at: http://
www.ed.gov/policy/elsec/guid/
paraguidance.pdf.
With regard to the commenter
requesting that the regulations clarify
the use of State standards for speech-
language paraprofessionals, we do not
believe it is appropriate to include
clarification regarding a specific
discipline in these regulations because
the Act requires States to establish and
maintain qualifications to ensure that
paraprofessionals, including speech-
language paraprofessionals, are
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appropriately and adequately prepared
and trained.
Section 300.156(b)(2)(iii), consistent
with section 612(a)(14)(B)(iii) of the Act,
does specifically allow
paraprofessionals and assistants who are
appropriately trained and supervised, in
accordance with State law, regulation,
or written policy, to assist in providing
special education and related services to
children with disabilities under the Act.
However, this provision should not be
construed to permit or encourage the
use of paraprofessionals as a
replacement for teachers or related
services providers who meet State
qualification standards. To the contrary,
using paraprofessionals and assistants
as teachers or related services providers
would be inconsistent with the State’s
duty to ensure that personnel necessary
to carry out the purposes of Part B of the
Act are appropriately and adequately
prepared and trained. Paraprofessionals
in public schools are not directly
responsible for the provision of special
education and related services to
children with disabilities; rather, these
aides provide special education and
related services to children with
disabilities only under the supervision
of special education and related services
personnel. We believe the provision in
§ 300.156(b)(2)(iii) sufficiently ensures
that paraprofessionals and assistants are
adequately supervised and further
clarification in these regulations is
unnecessary.
The Act makes clear that the use of
paraprofessionals and assistants who are
appropriately trained and supervised
must be contingent on State law,
regulation, and written policy giving
States the option of determining
whether paraprofessionals and
assistants can be used to assist in the
provision of special education and
related services under Part B of the Act,
and, if so, to what extent their use
would be permissible. However, it is
critical that States that use
paraprofessionals and assistants to assist
in providing special education and
related services to children with
disabilities do so in a manner that is
consistent with the rights of children
with disabilities to FAPE under Part B
of the Act. There is no need to provide
additional guidance on how States and
LEAs should use paraprofessionals and
assistants because States have the
flexibility to determine whether to use
them, and, if so, to determine the scope
of their responsibilities.
Changes: None.
Comment: One commenter
recommended different requirements for
paraprofessionals who perform routine
tasks and those who perform specific
activities to assist in the provision of
special education and related services.
Discussion: We do not see the need to
make a change to the regulations as
suggested by the commenter because,
under § 300.156, consistent with section
612(a)(14) of the Act, SEAs have the
responsibility for establishing and
maintaining qualifications to ensure that
personnel necessary to carry out the
purposes of this part are appropriately
and adequately prepared and trained.
Furthermore, SEAs and LEAs have the
flexibility to determine the tasks and
activities to be performed by
paraprofessionals and assistants, as long
as they are consistent with the rights of
children with disabilities to FAPE.
It should be kept in mind, however,
that the ESEA has different
requirements for paraprofessionals,
including special education
paraprofessionals, who assist in
instruction in title I schools versus
paraprofessionals in title I schools who
do not provide instructional support,
such as special education
paraprofessionals who solely provide
personal care services.
Changes: None.
Comment: A number of comments
were received on the qualifications for
special education teachers in
§ 300.156(c) that were similar to the
comments received regarding the
definition of highly qualified special
education teacher in § 300.18.
Discussion: We combined and
responded to these comments with the
comments received in response to the
requirements in § 300.18.
Changes: None.
Comment: Some commenters
requested that the regulations allow
alternative routes to certification for
related services personnel and other
non-teaching personnel, just as such
routes are allowed for highly qualified
teachers.
Discussion: As we stated earlier in
this section, section 612(a)(14)(B) of the
Act, clarifies that the SEA must
establish qualifications for related
services personnel that are consistent
with State-approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to related services personnel.
While the Act does not address
alternative routes to certification
programs for related services personnel
or other non-teaching personnel, there is
nothing in the Act or the regulations
that would preclude a State from
providing for alternate routes for
certification for related services
personnel or other non-teaching
personnel. It is, however, up to a State
to determine whether related services or
non-teaching personnel participating in
alternative routes to certification
programs meet personnel requirements
established by the State, consistent with
the requirements in § 300.156 and
section 612(a)(14) of the Act.
Changes: None.
Comment: Many commenters
recommended that § 300.156 provide
more guidance to ensure that States and
LEAs implement proven strategies for
recruiting and retaining qualified
personnel. A few commenters stated
that this is especially important for
speech-language pathologists because
large caseloads, increased paperwork,
and lack of time for planning and
collaboration have been shown to
contribute to their burn out and
attrition. Several commenters
recommended that strategies to recruit
and retain qualified personnel include
reasonable workloads, improved
working conditions, incentive programs,
salary supplements, loan forgiveness,
tuition assistance, signing bonuses,
streamlined application processes, State
and national advertising venues, school
and university partnerships, release
time for professional development,
certification reciprocity between States,
grants to LEAs for recruitment and
retention programs, alternate
professional preparation models,
caseload size standards, and classroom
size standards.
One commenter requested that the
requirements to recruit, hire, train, and
retain highly qualified personnel in
§ 300.156(d) apply to paraprofessionals
who provide special education and
related services.
Discussion: The list of strategies
recommended by the commenters
includes many strategies that may be
effective in recruiting and retaining
highly qualified personnel; however, we
do not believe it is appropriate to
include these or other strategies in our
regulations because recruitment and
retention strategies vary depending on
the unique needs of each State and LEA.
States and LEAs are in the best position
to determine the most effective
recruitment and retention strategies for
their location.
With regard to the comment regarding
the applicability of § 300.156(d) to
paraprofessionals who provide special
education and related services,
§ 300.156(d), consistent with section
612(a)(14)(C) of the Act, applies to all
personnel who provide special
education and related services under the
Act, including paraprofessionals.
Changes: None.
Comment: A few commenters stated
that the rule of construction in
§ 300.156(e) is inconsistent with the rule
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of construction in the definition of
highly qualified teacher in proposed
§ 300.18(e). Some commenters requested
that the regulations clarify that the rule
of construction in § 300.156(e) is
applicable to both administrative and
judicial actions.
A few commenters requested that the
regulations specify that a parent may
file a State complaint with the State
regarding failure of their child to receive
FAPE because staff is not highly
qualified. However, several commenters
stated that parents should not be
allowed to file a State complaint under
§§ 300.151 through 300.153 regarding
staff qualifications.
Discussion: We agree that the rules of
construction in both proposed
§ 300.156(e) and proposed § 300.18(e)
must be revised so that both rules are
the same. The changes will clarify that
a parent or student may not file a due
process complaint on behalf of a
student, or file a judicial action on
behalf of a class of students for the
failure of a particular SEA or LEA
employee to be highly qualified;
however, a parent may file a complaint
about staff qualifications with the SEA.
In addition to permitting a parent to file
a State complaint with the SEA, an
organization or an individual may also
file a complaint about staff
qualifications with the SEA, consistent
with the State complaint procedures in
§§ 300.151 through 300.153. We believe
that this is appropriate given the
wording of section 612(a)(14)(E) of the
Act ‘‘ * * * or to prevent a parent from
filing a complaint about staff
qualifications with the State educational
agency’’ and incorporated in the
regulations in § 300.156(e) and new
§ 300.18(f) (proposed § 300.18(e)). By
incorporating the wording from the
construction clause in section
612(a)(14)(E) of the Act in the
regulations as previously noted, parents
and other interested parties, may seek
compliance through the State complaint
process.
Changes: We have added ‘‘or a class
of students’’ to § 300.156(e) to clarify
that a judicial action on behalf of a class
of students may not be filed for failure
of a particular SEA or LEA employee to
be highly qualified. We have substituted
the word, ‘‘employee’’ for ‘‘staff person’’
to be more precise and for consistency
with the rule of construction in new
§ 300.18(f) (proposed § 300.18(e)). We
have also reformatted § 300.156(e).
Comment: Some commenters
recommended adding language to the
regulations restricting a parent’s right to
file a complaint regarding an LEA’s
failure to take measurable steps to
recruit, hire, train, and retain highly
qualified personnel.
Discussion: We believe the regulations
do not need clarification. Section
§ 300.151(a) is sufficiently clear that an
organization or individual may file a
State complaint under §§ 300.151
through 300.153 alleging a violation of
a requirement of Part B of the Act or of
this part. This includes the requirement
that an LEA take measurable steps to
recruit, hire, train, and retain highly
qualified personnel consistent with
section 612(a)(14)(D) of the Act.
Changes: None.
Comment: Some commenters
requested that the regulations clarify
that, unless the State has statutory
control over district staffing, parents
cannot obtain compensatory damages or
services or a private school placement
based on the lack of highly qualified
personnel.
Discussion: We do not agree that the
exception requested by the commenter
should be added to the regulations
because new § 300.18(f) (proposed
§ 300.18(e)), and § 300.156(e) are
sufficiently clear that nothing in part
300 shall be construed to create a right
of action on behalf of an individual
child for the failure of a particular SEA
or LEA staff person to be highly
qualified.
Changes: None.
Comment: One commenter
recommended that the qualifications of
all personnel should be made a matter
of public record.
Discussion: To do as the commenter
recommends would add burden for
local school personnel and it is not
required under the Act. In contrast, title
I of the ESEA required that LEAs
receiving title I funds provide parents,
at their request, the qualifications of
their children’s classroom teachers.
There is nothing in the Act or these
regulations, however, which would
prevent an SEA or LEA from adopting
such a policy should it wish to do so.
In the absence of a congressional
requirement in the Act, such policies
are matters best left to State law.
Section 1111(h)(6) of the ESEA
requires LEAs to inform parents about
the professional qualifications of their
children’s classroom teachers. The
ESEA requires that at the beginning of
each school year, an LEA that accepts
title I, part A funding must notify
parents of students in title I schools that
they can request information regarding
their children’s classroom teachers,
including, at a minimum: (1) Whether
the teacher has met the State
requirements for licensure and
certification for the grade levels and
subject-matters in which the teacher
provides instruction; (2) whether the
teacher is teaching under emergency or
other provisional status through which
State qualification or licensing criteria
have been waived; (3) the college major
and any other graduate certification or
degree held by the teacher, and the field
of discipline of the certification or
degree; and (4) whether the child is
provided services by paraprofessionals,
and if so, their qualifications. In
addition, each title I school must
provide each parent timely notice that
the parent’s child has been assigned, or
has been taught for four or more
consecutive weeks by, a teacher who is
not highly qualified. These
requirements apply only to special
education teachers who teach core
academic subjects in Title I schools.
Changes: None.
Performance Goals and Indicators
(§ 300.157)
Comment: Several commenters
recommended that the regulations retain
current § 300.137(a)(2), which requires
that States have goals for the
performance of children with
disabilities in the State that are
consistent, to the maximum extent
appropriate, with other goals and
standards for all children established by
the State. The commenters specifically
objected to the removal of the word
‘‘maximum’’ before ‘‘extent
appropriate;’’ and the removal of the
word ‘‘all’’ before ‘‘children’’ in
§ 300.157(a)(4).
Discussion: Section 612(a)(15)(A)(iv)
of the Act specifically removed the
words in current § 300.137(a)(2) that the
comment references. Therefore, we
believe that it would be contrary to the
intent of the statutory drafters to restore
these words to the regulatory provision.
Changes: None.
Comment: A few commenters
requested that the regulations in
§ 300.156(b) require States to involve
parent centers in establishing the
performance goals and indicators and
measurable annual objectives for
children with disabilities.
Discussion: We encourage broad
stakeholder involvement in the
development of performance goals,
indicators, and annual objectives for
children with disabilities, including the
involvement of parent centers. We see
no need to single out a particular group,
however. The regulations in § 300.165(a)
already require specific public
participation in the adoption of policies
and procedures needed to demonstrate
eligibility under Part B, including this
requirement.
Changes: None.
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Participation in Assessments (Proposed
§ 300.160)
Comment: None.
Discussion: Participation in
assessments is the subject of a notice of
proposed rulemaking published in the
Federal Register on December 15, 2005
(70 FR 74624) to amend the regulations
governing programs under title I of the
ESEA and Part B of the Act, regarding
additional flexibility for States to
measure the achievement of children
with disabilities based on modified
achievement standards.
Changes: Therefore, we are removing
proposed § 300.160 and designating the
section as ‘‘Reserved.’’
Supplementation of State, Local, and
Other Federal Funds (§ 300.162)
Comment: One commenter disagreed
with the removal of current § 300.155,
which requires that States have policies
and procedures on file with the
Secretary to ensure that funds paid to
the State under Part B of the Act are
spent in accordance with the provisions
of Part B.
Discussion: Current § 300.155 was
removed from these regulations
consistent with section 612(a)(17) of the
Act. The removal of this requirement is
also consistent with section 612(a) of
the Act, which requires a State to
submit a plan that provides assurances
to the Secretary that the State has in
effect policies and procedures to ensure
that the State meets the requirements of
the Act rather than submitting the actual
policies and procedures to the
Department. To alleviate burden,
Congress removed the statutory
provisions which required that States
have policies and procedures on file
with the Secretary to ensure that funds
paid to the State under Part B of the Act
are spent in accordance with the
provisions of Part B. OSEP continues to
have responsibility to ensure that States
are properly implementing the Act.
Given the statutory change that
Congress made to remove the prior
requirement, we believe it would be
inappropriate to include it in these
regulations.
Changes: None.
Maintenance of State Financial Support
(§ 300.163)
Comment: One commenter requested
that § 300.163(c)(1), regarding waivers
for maintenance of State financial
support for exceptional or
uncontrollable circumstances, provide
examples of what would be considered
a precipitous and unforeseen decline in
the State’s financial resources.
Discussion: We decline to limit the
Secretary’s discretion in these matters in
the abstract. The Secretary makes the
determinations regarding these waivers
on a case-by-case basis and given the
facts and circumstances at the time such
a request is made.
Changes: None.
Public Participation (§ 300.165)
Comment: Several commenters
objected to the removal of current
§§ 300.280 through 300.284, regarding
public participation, and recommended
that all provisions, including those
related to public hearings, comment
periods, and review of public comments
be restored.
Discussion: We do not believe it is
necessary to retain in the regulations the
requirements in current §§ 300.280
through 300.284 because the provisions
in § 300.165 and GEPA, in 20 U.S.C.
1232d(b)(7), provide sufficient
opportunities for public participation.
We also believe retaining the
requirements in §§ 300.280 through
300.284 would place unnecessary
regulatory burden on States. Section
300.165(a) incorporates the language in
section 612(a)(19) of the Act, regarding
public participation in the adoption of
policies and procedures to implement
Part B of the Act, and requires States to
ensure that there are public hearings,
adequate notice of hearings, and an
opportunity for comment available to
the general public. Furthermore,
paragraph (b) of this section requires
States to comply with the public
participation requirements of GEPA, in
20 U.S.C. 1232d(b)(7), before submitting
a State plan under this part. In
accordance with the GEPA requirement,
the State must assure that it will provide
reasonable opportunities for
participation by local agencies,
representatives of the class of
individuals affected by programs under
this part and other interested
institutions, organizations, and
individuals in the planning for the
operation of programs under this part.
GEPA also requires that the State
publish each proposed State plan under
this part, in a manner that will ensure
circulation throughout the State, at least
60 days prior to the date on which the
State plan is submitted to the Secretary
or on which the State plan becomes
effective, whichever occurs earlier, with
an opportunity for public comments on
such plan to be accepted for at least 30
days. In addition, the State must comply
with any State-specific public
participation requirements in adopting
policies and procedures related to Part
B of the Act.
Changes: None.
Comment: One commenter requested
that the regulations define the meaning
of ‘‘adequate notice’’ as it is used in
§ 300.165(a) to ensure that there is
adequate notice of public hearings prior
to adopting any policies and procedures
needed to comply with Part B of the
Act.
Discussion: We do not think it is
appropriate or necessary to include in
the regulations a definition of ‘‘adequate
notice’’ because what constitutes
‘‘adequate notice’’ will vary depending
on the unique circumstances in each
State and we believe States should have
the flexibility of determining and
applying a workable and reasonable
standard that meets their circumstances
to ensure public participation at public
hearings. We believe it would be
reasonable for the State to assume that
it provided adequate notice if, at its
public hearings, there were sufficient
representatives of the general public,
including individuals with disabilities
and parents of children with
disabilities, in attendance.
Changes: None.
Comment: One commenter requested
that the regulations require States to
provide notices of public hearings in
multiple languages and alternative
formats.
Discussion: It is unnecessary to
include regulations requiring States to
provide notice of public hearings in
multiple languages and alternative
formats. Public agencies are required by
other Federal statutes to take
appropriate actions to ensure that the
public has access, in alternative formats
and languages other than English, to
public hearings. The other Federal
statutory provisions that apply in this
regard are section 504 of the
Rehabilitation Act of 1973 and its
implementing regulations in 34 CFR
part 104 (prohibiting discrimination on
the basis of disability by recipients of
Federal financial assistance), title II of
the Americans With Disabilities Act and
its implementing regulations in 28 CFR
part 35 (prohibiting discrimination on
the basis of disability by public entities,
regardless of receipt of Federal funds),
and title VI of the Civil Rights Act of
1964 and its implementing regulations
in 34 CFR part 100 (prohibiting
discrimination on the basis of race,
color, or national origin by recipients of
Federal financial assistance).
Changes: None.
Comment: One commenter requested
that the regulations require States to
work with the parent centers to identify
appropriate locations and times for
public hearings.
Discussion: There is nothing in the
Act or these regulations that would
prohibit a State from working with the
parent centers to identify appropriate
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locations and times for public hearings,
but we see no need to require States to
do so. We believe that this matter
should be left to State discretion.
Changes: None.
Rule of Construction (§ 300.166)
Comment: One commenter requested
clarification regarding the use of Federal
funds to offset decreases in State
formula allocations to LEAs that use
attendance, enrollment, or inflation as
elements of the State funding formula
for special education.
Discussion: Section 300.166 was
added to incorporate language in section
612(a)(20) of the Act. It specifies that
States with laws that require a specific
level of funding to their LEAs cannot
use Federal Part B funds for this
purpose.
Changes: None.
State Advisory Panel
State Advisory Panel (§ 300.167)
Comment: One commenter stated that
§§ 300.167 through 300.169 are
unnecessary and do not add any
requirements beyond those in section
612(a)(21) of the Act. The commenter
recommended removing these
requirements and stated that they can be
adequately implemented through
guidance provided by the Department
and not through regulation.
Discussion: The requirements of the
State advisory panel in §§ 300.167
through 300.169 reflect the specific
language in section 612(a)(21) of the
Act. We believe it is necessary to
include these statutory requirements in
the regulations to provide parents,
public agencies, and others with
information on the requirements
applicable to State advisory panels.
Changes: None.
Comment: Several commenters
recommended retaining the procedures
to govern State advisory panels in
current § 300.653 and strengthening the
requirements of notice and opportunity
for public comment at State advisory
panel meetings by mandating
publication of meeting dates, agendas,
and minutes on Web sites. A few
commenters stated that eliminating the
notice requirements and the opportunity
to participate in meetings in current
§ 300.653(d) and (e) will result in fewer
low income, hearing-impaired, and
foreign-language speaking parents
attending State advisory panel meetings.
One commenter expressed concern that
the removal of current § 300.653 will
result in less panel visibility, less public
participation, and that State advisory
panels will become ‘‘rubber-stamps’’ for
positions taken by State officials. One
commenter stated that the removal of
the requirements in current § 300.653
weakens the protection of children with
disabilities, and, therefore, violates
section 607(b) of the Act.
Discussion: The requirements in
current § 300.653 were removed to
provide greater State flexibility in the
operation of advisory panels. We do not
believe the removal of current § 300.653
will mean that the States will not ensure
that State advisory panel meetings are
announced in advance and open to the
public because States generally have
adequate sunshine laws that ensure
public access to governmental agency
meetings. We do not believe it is
necessary to require that information
regarding State advisory panel meetings
be posted on State Web sites because
sunshine laws generally contain
provisions regarding meeting notices,
agendas, and the availability of minutes
of public meetings. However, it is
important that individuals consult the
laws governing their State and locality
on the issue of open meetings and
public access.
Section 607(b)(2) of the Act provides
that the Secretary may not implement,
or publish in final form, any regulation
pursuant to the Act that procedurally or
substantively lessens the protections
provided to children with disabilities as
embodied in regulations in effect on
July 20, 1983. We do not believe
removing from these regulations the
requirements in current § 300.653
procedurally or substantively lessens
the protections provided to children
with disabilities pursuant to section
607(b)(2) of the Act because we do not
view public notice of advisory
committee meetings to be a protection
provided to children with disabilities.
Changes: None.
Membership (§ 300.168)
Comment: We received numerous,
specific requests to revise § 300.168 to
add to the list of individuals who can
serve as members of the State advisory
panels. Some commenters
recommended requiring State advisory
panels to include representatives from
the Parent Training and Information
Centers and Community Parent
Resource Centers funded by the
Department under sections 671 and 672
of the Act because their representation
would ensure a diverse group of people
experienced with children with
different disabilities on the panels. One
commenter expressed concern that,
without representation from these
groups, panel members would make
recommendations based solely on their
individual circumstances and
backgrounds. A few commenters
requested including school
psychologists and other student support
staff on State advisory panels. One
commenter suggested including a
representative of a residential treatment
facility as a member on State advisory
panels because children in these
facilities are a growing population and
have specialized needs. A few
commenters requested adding
representatives from centers for
independent living because these
individuals are experienced in
advocating for people with disabilities.
One commenter suggested including
State coordinators for education of
homeless children and youth. A few
commenters suggested including
disabled high school and postsecondary
students on the list because the
intended beneficiaries of the Act are
often denied a voice. A few commenters
proposed requiring each State advisory
panel to be racially, culturally,
linguistically, and socio-economically
representative of the State. One
commenter expressed concern that the
new regulations could lead States to
abruptly replace current panel members
causing discontinuity and decreasing
expertise, and recommended phasing in
the new requirements and allowing
panel members to complete their terms
of office.
Discussion: The membership of State
advisory panels is described in section
612(a)(21)(B) and (C) of the Act and the
Department does not agree that there is
a need to require additional
representatives or to change the panel
composition. However, nothing in the
Act or these regulations would prevent
the appointment of additional
representatives, if a State elected to add
these individuals. With respect to the
request to include State coordinators for
education of homeless children on the
panels, State and local officials who
carry out activities under the McKinney-
Vento Homeless Assistance Act are
already included in the list of
individuals identified to serve on the
State advisory panels in § 300.168(a)(5).
Section 612(a)(21)(B) of the Act, as
reflected in § 300.168, requires the State
advisory panel to be representative of
the State population and be composed
of individuals involved in, or concerned
with, the education of children with
disabilities. Also, the Act and these
regulations require a majority of the
panel members to be individuals with
disabilities or parents of children with
disabilities (ages birth through 26). We
also do not believe there is a need to
phase in the new requirements, as those
members that do not need to change
should provide sufficient continuity of
panel functions.
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Changes: None.
Duties (§ 300.169)
Comment: A few commenters
recommended requiring States to submit
any rules or regulations related to
children with disabilities to the State
advisory panel for consideration before
the rules are finalized. One commenter
requested requiring panel members to
take positions on State proposed rules
and regulations regarding the education
of children with disabilities and offer
their views to the appropriate State
agencies.
Discussion: Section 612(a)(21)(D) of
the Act clearly specifies the duties of
the State advisory panel and these
duties are accurately reflected in
§ 300.169. Paragraph (b) of this section
clarifies that the advisory panel must
comment publicly on any State
proposed rules or regulations regarding
the education of children with
disabilities. We believe § 300.169(b) is
sufficient to ensure that the advisory
panel has the opportunity to consider
any State rules or regulations before
they are final and, accordingly, further
regulatory language is unnecessary.
Further, we believe it is inappropriate to
require that panel members ‘‘take
positions’’ on proposed rules and
regulations because to do so would be
overly controlling of the advisory panel
and may impact the panel’s ability to
effectively meet its statutory
responsibility of providing public
comment on State proposed rules and
regulations.
Changes: None.
Comment: Many commenters
suggested retaining current § 300.652(b),
which requires State advisory panels to
provide advice for educating students
with disabilities in adult correctional
facilities. A few of these commenters
noted that students in adult correctional
facilities are members of one of the most
vulnerable populations.
Discussion: Given the breadth of the
State advisory panel’s statutory
responsibilities we removed from the
regulations all nonstatutory mandates
on the State advisory panel, including
the provision in current § 300.652(b),
regarding advising on the education of
eligible students with disabilities who
have been convicted as adults and have
been incarcerated in adult prisons. We
believe placing such nonstatutory
mandates on the State advisory panel
may hinder the advisory panel’s ability
to effectively provide policy guidance
with respect to special education and
related services for children with
disabilities in the State. There is
nothing, however, that would prevent a
State from assigning other
responsibilities to its State advisory
panel, as long as those other duties do
not prevent the advisory panel from
carrying out its responsibilities under
the Act.
Changes: None.
Access to Instructional Materials
(§ 300.172)
Comment: One commenter
recommended including the National
Instructional Materials Accessibility
Standard (NIMAS) in these regulations.
Discussion: We agree with the
commenter. The final NIMAS was
published in the Federal Register on
July 19, 2006 (71 FR 41084) and will be
included as Appendix C to Part 300—
National Instructional Materials
Accessibility Standard of these
regulations. We will add language in
§ 300.172(a) to refer to this location and
to reference the publication date of the
NIMAS in the Federal Register.
Changes: The final NIMAS has been
added as appendix C to part 300. We
have added language in § 300.172(a) to
refer to the location of the NIMAS in
these regulations and the publication
date of the NIMAS in the Federal
Register.
Comment: Several commenters
expressed concern that the language
requiring States to adopt the NIMAS ‘‘in
a timely manner’’ is ambiguous and
could lead to delays in providing
instructional materials to children with
disabilities, inconsistencies across
States, and increased litigation. Several
commenters requested that the
regulations specify a timeline for States
to adopt the NIMAS. Some commenters
recommended requiring all States to
adopt the NIMAS by December 3, 2006.
However, one commenter stated that
States should not be given a deadline to
adopt the NIMAS.
A number of commenters requested
that the regulations define the meaning
of ‘‘adopt’’ in § 300.172(a) and specify
what States must do to adopt the
NIMAS. Several commenters
recommended defining ‘‘adopt’’ to mean
that the State, through regulatory or
legislative procedures, designates
NIMAS as the only required source
format for publishers to convert print
instructional materials into specialized
formats for children with disabilities.
One commenter urged the Department
to define ‘‘adopt’’ to mean that a State
must accept a NIMAS file as satisfying
the publisher’s legal obligation to
provide accessible instructional
materials. Other commenters
recommended that the regulations
clearly state that adoption of the NIMAS
means that SEAs and LEAs must accept
and use electronic copies of
instructional materials in the NIMAS
format that are provided by the
publishers.
Discussion: Section 300.172(a),
consistent with section 612(a)(23)(A) of
the Act, requires States to adopt the
NIMAS in a timely manner after the
publication of the NIMAS in the Federal
Register for the purpose of providing
instructional materials to blind or other
persons with print disabilities. As noted
in the discussion to the previous
comment, the NIMAS is included as
Appendix C to Part 300—National
Instructional Materials Accessibility
Standard and was published in the
Federal Register on July 19, 2006 (71 FR
41084). The Department believes that
States should make every effort to adopt
the NIMAS in a timely manner
following the publication of the NIMAS
in the Federal Register, recognizing that
the timelines and requirements for
adopting new rules, policies, or
procedures vary from State to State.
States choosing to coordinate with the
NIMAC must, consistent with section
612(a)(23)(C) of the Act and § 300.172(c)
of these regulations, not later than
December 3, 2006, as part of any print
instructional materials adoption
process, procurement contract, or other
practice or instrument used for purchase
of print instructional materials, enter
into a written contract with the
publisher of the print instructional
materials to: (1) Require the publisher to
prepare and, on or before delivery of the
print instructional materials, provide
the NIMAC with electronic files
containing the content of the print
instructional materials using the
NIMAS; or (2) purchase instructional
materials from the publisher that are
produced in, or may be rendered in,
specialized formats. Clearly, we would
expect that these States would have
adopted the NIMAS by December 3,
2006. We decline to require a specific
adoption date for all States, however,
given the lack of specificity in the Act.
We also decline to include a definition
of ‘‘adopt’’ in these regulations because
requirements for adopting new rules
and policies may vary from State to
State. The Department’s view is that it
is inherent in the adoption requirement
that, at a minimum, upon ‘‘adoption’’ of
the NIMAS, a State must accept and use
electronic copies of instructional
materials in the NIMAS format for the
purpose of providing instructional
materials to blind or other persons with
print disabilities. Under § 300.172(a),
adopting the NIMAS is a State
responsibility and does not impose any
legal obligations on publishers of
instructional materials.
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Changes: We have made technical
changes in § 300.172(c). For clarity, we
have replaced the phrase ‘‘not later
than’’ with ‘‘as of.’’ We have removed
the phrase ‘‘two years after the date of
enactment of the Individuals with
Disabilities Education Improvement Act
of 2004’’ because it is unnecessary.
Comment: One commenter
recommended requiring States to
comply with the requirements for public
hearings and public comment in section
612(a)(19) of the Act before adopting
policies and procedures to implement
the requirements in § 300.172 related to
access to instructional materials. The
commenter stated that all interested
members of the public, including
parents of children with disabilities, are
entitled to participate in designing the
plan for implementing these policies
and procedures.
Discussion: Section 300.165(a),
consistent with section 612(a)(19) of the
Act, requires States to hold public
hearings and receive public comment
before implementing any policies and
procedures needed to comply with Part
B of the Act. These public hearing and
public comment requirements apply to
the policies and procedures needed to
implement the requirements in
§ 300.172.
Changes: None.
Comment: One commenter requested
clarification on whether the NIMAS is
limited to print materials on the
medium of paper or also includes the
iconic representation of letters and
words.
Discussion: The NIMAS is the
standard established by the Secretary to
be used in the preparation of electronic
files of print instructional materials so
they can be more easily converted to
accessible formats, such as Braille. In
addition to print materials, the NIMAS
provides standards for textbooks and
related core materials where icons
replace text. Materials with icons will
be available if they are in printed
textbooks and related printed core
materials that are written and published
primarily for use in elementary school
and secondary school instruction and
are required by an SEA or LEA for use
by children in the classroom, consistent
with section 674(e)(3)(C) of the Act.
Changes: None.
Comment: A few commenters
recommended clarifying that providing
materials in accessible formats includes
changes in the depth, breadth, and
complexity of materials. Some
commenters stated that § 300.172
should include language regarding
universal design of instructional
materials.
Discussion: Section 300.172 is
consistent with section 612(a)(23) of the
Act and focuses specifically on
providing access to print instructional
materials using the NIMAS. The NIMAS
is designed to improve the quality and
consistency of print instructional
materials converted into accessible
formats for persons who are blind and
persons with print disabilities, not to
alter the content (e.g., the depth,
breadth, or complexity) of the print
instructional materials. While the
NIMAS is designed to make print
instructional materials more readily and
easily accessible to persons who are
blind and persons with print
disabilities, it is not intended to provide
materials that are universally designed.
Therefore, while the Department
acknowledges the importance of
universal design, it would be
inappropriate to reference universal
design in this section.
The NIMAS Development Center has
been charged with examining the need
for future changes in the NIMAS. This
Center, funded by the Department, is
looking at a variety of issues, including
the extent to which universal design
features should be incorporated into
future iterations of the NIMAS.
Information about the NIMAS
Development Center can be found at:
http://nimas.cast.org/.
Changes: None.
Comment: One commenter
recommended that books on tape be
made available in the same manner as
print materials.
Discussion: The conversion of text to
speech for digital talking books is one of
the accessible formats that can be
generated from a NIMAS file. The
NIMAS makes it possible for such
talking books to be generated more
efficiently so that children who need
them will receive them more quickly
than in the past. Such audio formats
will be made available for printed
textbooks and related printed core
materials that are written and published
primarily for use in elementary school
and secondary school instruction and
are required by an SEA or LEA for use
by children in the classroom, consistent
with section 674(e)(3)(C) of the Act. The
NIMAS does not pertain to books on
tape that are produced in sound studios.
Changes: None.
Comment: Many commenters
requested that the regulations specify
that providing instructional materials to
children with disabilities in a timely
manner means providing these materials
at the same time they are provided to
children without disabilities. One
commenter recommended defining ‘‘in a
timely manner’’ as the start of the school
year or, for children who transfer
schools after the start of the school year,
within 30 days of the start of the school
year, regardless of whether a State
chooses to coordinate with the NIMAC.
Discussion: The Department agrees
that States should make every effort to
provide children with disabilities
accessible instructional materials at the
same time as other children receive
their instructional materials. The
Department’s position is consistent with
S. Rpt. No. 108–185, p. 19, which states,
‘‘The committee feels strongly that
instructional materials should be
provided to blind and print disabled
students at the same time their fellow
students without print disabilities are
receiving the same materials.’’ This
position also is consistent with H. Rpt.
No. 108–77, pp. 97–98.
However, the Department recognizes
that this may not be possible in all
circumstances, for example, when a
child with a disability transfers to a new
school in the middle of a school year.
Additionally, there could be
circumstances beyond the control of the
public agency that could prevent
children with disabilities who need
instructional materials in accessible
formats from receiving them at the same
time as instructional materials are
provided to other children, such as if
the public agency’s contractor is unable
to produce the instructional materials in
an accessible format because of some
unforeseen circumstance. In situations
such as these, it is understandable that
the accessible format materials may not
be immediately available. Therefore, we
will add a provision to the regulations
to specify that in order to meet their
obligation to provide accessible format
instructional materials in a timely way,
public agencies must take all reasonable
steps to make those instructional
materials available at the same time as
instructional materials are provided to
other children. Reasonable steps, for
example, would include requiring
publishers or other contractors to
provide instructional materials in
accessible formats by the beginning of
the school year for children whom the
public agency has reason to believe will
be attending its schools. Reasonable
steps also might include having a means
of acquiring instructional materials in
accessible formats as quickly as possible
for children who might transfer into the
public agency in the middle of the year.
Reasonable steps would not include
withholding instructional materials
from other children until instructional
materials in accessible formats are
available. To clarify that the obligation
to make instructional materials available
in a timely manner applies even to
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States that coordinate with the NIMAC,
we are adding a new provision to that
effect. We also are clarifying that the
definitions in § 300.172(e) apply to each
State and LEA, whether or not the State
or LEA chooses to coordinate with the
NIMAC.
Changes: We have amended
paragraph (b) in § 300.172 by adding a
new paragraph (b)(4) requiring the SEA
to ensure that all public agencies take
all reasonable steps to provide
instructional materials in accessible
formats to children with disabilities
who need those instructional materials
at the same time as other children
receive instructional materials. We have
reorganized paragraph (c) and added a
new paragraph (c)(2) requiring States
that coordinate with the NIMAC to
provide accessible materials in a timely
manner. We have also amended
paragraph (e) by adding a new
paragraph (e)(2) to clarify that the
definitions in § 300.172(e)(1) apply to
each SEA and LEA whether or not the
SEA or LEA chooses to coordinate with
the NIMAC. We have made technical
changes to § 300.172(e) and renumbered
§ 300.172(e) to be consistent with this
change.
Comment: Many commenters
expressed concern that the regulations
fail to ensure timely access to
instructional materials for children with
other types of disabilities besides print
disabilities. One commenter
recommended clarifying that children
do not have to be blind or have print
disabilities to fit into the description of
children who need accessible materials.
However, another commenter stated that
§ 300.172(b)(3), which require SEAs to
be responsible for providing accessible
materials for children for whom
assistance is not available from the
NIMAC, should be removed because the
Act does not include these
requirements.
A few commenters requested adding a
regulation to clarify that the
requirements in § 300.172 do not apply
if an SEA is not responsible for
purchasing textbooks. The commenters
stated that if an SEA cannot purchase
textbooks, it has no legal relationship
with textbook publishers and cannot
comply with the requirements in
§ 300.172.
Discussion: Timely access to
appropriate and accessible instructional
materials is an inherent component of a
public agency’s obligation under the Act
to ensure that FAPE is available for
children with disabilities and that
children with disabilities participate in
the general curriculum as specified in
their IEPs. Section 300.172(b)(3)
provides that nothing relieves an SEA of
its responsibility to ensure that children
with disabilities who need instructional
materials in accessible formats, but who
do not fall within the category of
children who are eligible to receive
materials produced from NIMAS files
obtained through the NIMAC, receive
those instructional materials in a timely
manner. Therefore, we do not believe
that any further clarification is
necessary. Even SEAs that are not
directly responsible for purchasing
textbooks have this responsibility. In
short, we believe these regulations are
necessary to fully implement the Act.
Changes: None.
Comment: One commenter stated that
all children with disabilities should
receive assistance from the NIMAC.
Discussion: We disagree with the
commenter. Section 674(e) of the Act
limits the authority of the NIMAC to
provide assistance to SEAs and LEAs in
acquiring instructional materials for
children who are blind, have visual
disabilities, or are unable to read or use
standard print materials because of
physical limitations, and children who
have reading disabilities that result from
organic dysfunction, as provided for in
36 CFR 701.6. Clearly, SEAs and LEAs
that choose to use the services of the
NIMAC will be able to assist blind
persons or other persons with print
disabilities who need accessible
instructional materials through this
mechanism. However, SEAs and LEAs
still have an obligation to provide
accessible instructional materials in a
timely manner to other children with
disabilities who also may need
accessible materials even though their
SEA or LEA may not receive assistance
from the NIMAC, as provided in
§§ 300.172(b)(3) and 300.210(b).
Changes: None.
Rights and Responsibilities of SEAs
(§ 300.172(b))
Comment: Many commenters
expressed concern about allowing States
to choose not to coordinate with the
NIMAC. A few commenters stated that
coordination with the NIMAC should be
mandatory for all States. One
commenter recommended that the
Department strongly encourage States to
coordinate with the NIMAC, because it
may be difficult for States to provide the
assurances required in § 300.172(b)(2) if
they choose not to coordinate with the
NIMAC. A few commenters
recommended that States that cannot
demonstrate a past history of providing
instructional materials to children with
disabilities in a timely manner should
be required to coordinate with the
NIMAC.
Discussion: It would be inconsistent
with section 612(a)(23)(B) of the Act to
make coordination with the NIMAC
mandatory for all States or to require
certain States to coordinate with the
NIMAC (e.g., States that do not have a
history of providing instructional
materials to children with disabilities in
a timely manner), as suggested by the
commenters. Section 612(a)(23)(B) of
the Act provides that nothing in the Act
shall be construed to require any SEA to
coordinate with the NIMAC.
Changes: None.
Comment: Several commenters
requested that the regulations clearly
define the process for a State to choose
not to coordinate with the NIMAC. A
few commenters requested additional
details on what assurances States must
provide if they choose not to coordinate
with the NIMAC. Other commenters
requested that State assurances provide
the public with information to evaluate
the capacity of the State to provide
materials to children who are blind or
have print disabilities. Some
commenters stated that the assurances
provided by States that choose not to
coordinate with the NIMAC should be
done annually and in writing.
Several commenters requested that
the regulations provide a means for the
public to obtain information about
which States choose not to coordinate
with the NIMAC. A few commenters
requested that the Department publish
the assurances made by SEAs that
choose not to coordinate with the
NIMAC. Some commenters stated that
SEAs that choose to coordinate with the
NIMAC should be required to provide
information to the Department on the
LEAs in the State that elect not to
coordinate with the NIMAC.
Discussion: Section 300.172(b)(2),
consistent with section 612(a)(23)(B) of
the Act, requires SEAs that choose not
to coordinate with the NIMAC to
provide an assurance to the Secretary
that the agency will provide
instructional materials to blind persons
and other persons with print disabilities
in a timely manner. As part of a State’s
application for Part B funds, § 300.100
and section 612(a) of the Act require
States to provide assurances to the
Secretary that the State has in effect
policies and procedures to ensure that
the State meets the conditions of
eligibility. (The Part B Annual State
Application for 2006, OMB No. 1820–
0030, can be found at: http://
www.ed.gov/fund/grant/apply/osep/
2006apps.html.)
Therefore, the Department will
compile a list of the States that choose
to coordinate with the NIMAC and those
that do not, and will make this list
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available on OSEP’s monitoring Web
site at: http://www.ed.gov/policy/
speced/guid/idea/monitor/index.html.
Section 612(a)(23)(B) of the Act does
not mandate that States coordinate with
the NIMAC or place conditions on
which States can choose to coordinate
with the NIMAC. Therefore, it is
unnecessary to require a State’s
assurance to include information on its
capacity to provide instructional
materials to children who are blind or
have print disabilities, as commenters
recommended.
We do not believe it is appropriate to
regulate to require States to provide
information to the Department on the
LEAs in the State that elect not to
coordinate with the NIMAC. Under
§ 300.149 and section 612(a)(11) of the
Act, States are responsible for ensuring
that LEAs in the State meet the
requirements of the Act, including
providing instructional materials to
blind persons or other persons with
print disabilities in a timely manner. As
stated in § 300.210 and section
613(a)(6)(B) of the Act, if an LEA
chooses not to coordinate with the
NIMAC, the LEA must provide an
assurance to the SEA that the LEA will
provide instructional materials to blind
persons or other persons with print
disabilities in a timely manner.
Changes: None.
Comment: Some commenters
proposed that the regulations require
States that choose not to coordinate
with the NIMAC to annually report to
the public on when children with
disabilities receive their materials, how
print materials are provided in a timely
manner, and the steps the State has
taken to ensure that materials will be
provided at the same time as materials
are provided to children without
disabilities. One commenter stated that,
if a State chooses not to coordinate with
the NIMAC, the State should be
required to submit data to the
Department on the number of children
with print disabilities served by the
State and when those children received
the accessible version of print
instructional materials compared with
when other children received their
materials. Other commenters
recommended that States choosing not
to coordinate with the NIMAC should
be required to develop and publish their
policies and procedures that govern
how they maintain and distribute
NIMAS files.
Discussion: It would be unfair to
impose additional data collection and
reporting requirements, such as those
requested by the commenters, only on
those States that choose not to
coordinate with the NIMAC. All States,
regardless of whether they choose to
coordinate with the NIMAC, must
ensure that children with disabilities
who need instructional materials in
accessible formats receive instructional
materials in a timely manner, consistent
with § 300.172(b)(3).
Furthermore, even States that choose
to coordinate with the NIMAC will need
to take steps to ensure that the
instructional materials for children
eligible to receive print instructional
materials derived from NIMAS files are
received in a timely manner. As
provided in section 674(e)(3)(A) of the
Act, the NIMAC is a distribution center
for NIMAS files obtained from
publishers, SEAs, and LEAs. Section
612(a)(23) of the Act requires SEAs that
choose to coordinate with the NIMAC to
enter into written contracts with
publishers to require the publishers to
provide electronic files using the
NIMAS to the NIMAC on, or before,
delivery of the print instructional
materials to the SEA.
The NIMAC is not responsible for
converting NIMAS files to the accessible
formats needed by the children eligible
to receive print instructional materials
derived from NIMAS files. All States
will need to arrange to have the NIMAS
files converted to student-ready versions
of instructional materials in the
accessible formats needed by these
children.
Changes: None.
Comment: One commenter requested
that the Department provide
information and training to States and
LEAs on the NIMAC so that they can
make an informed choice regarding
whether to coordinate with the NIMAC.
Another commenter recommended that
the Department provide written
guidance for States and LEAs regarding
the NIMAS and the NIMAC.
Discussion: The Department
recognizes the need to provide
information to SEAs and LEAs regarding
the NIMAS and the NIMAC and will
provide technical assistance through the
NIMAS Technical Assistance Center
after the Department has approved the
NIMAC procedures.
Changes: None.
Preparation and Delivery of Files
(§ 300.172(c))
Comment: One commenter
recommended that the regulations
require instructional materials provided
to children with disabilities to be
complete and accurate. Another
commenter requested requiring
publishers to provide copies of the
original books to the NIMAC along with
the electronic files, because a copy of
the original book is necessary for
alignment of page numbers and
descriptions of pictures.
Discussion: We understand and
appreciate the importance of having a
copy of the original material to ensure
accuracy of the files. However, the
NIMAC is not responsible for ensuring
the accuracy of materials, aligning page
numbers, or describing pictures. Rather,
the NIMAC is a distribution center for
NIMAS files obtained from publishers,
SEAs, and LEAs. Consistent with
section 674(e)(3)(A) of the Act, the
duties of the NIMAC are to receive and
maintain a catalog of print instructional
materials prepared in the NIMAS format
and made available to the NIMAC by the
textbook publishing industry, SEAs, and
LEAs. Accessible, student-ready
versions of instructional materials are
created from NIMAS source files by
national third-party conversion
organizations; regional or State
conversion sources; desktop
applications created by software
developers; or curriculum publishers
that produce accessible alternate format
versions for direct sale to SEAs and
LEAs. The Act does not authorize the
Department to impose obligations on
such entities to provide accurate
materials. States and LEAs that contract
with such entities, however, may wish
to require the accuracy of such
materials, including the alignment of
page numbers and descriptions of
pictures, as part of their agreements.
Changes: None.
Comment: One commenter suggested
that the regulations permit an SEA to
receive assistance from the NIMAC,
even if the SEA is not formally
coordinating with the NIMAC.
Discussion: The Act does not require
the NIMAC to provide assistance to
SEAs if the SEA has chosen not to
coordinate with the NIMAC. However,
there is nothing in the Act that would
prevent the NIMAC from doing so. As
stated in section 674(e)(2)(B) of the Act,
the NIMAC must provide access to print
instructional materials, including
textbooks, in accessible media, free of
charge, to blind or other persons with
print disabilities in elementary and
secondary schools, in accordance with
such terms and procedures as the
NIMAC may prescribe. Providing this
access could include assisting an SEA,
even if the SEA has chosen not to
coordinate with the NIMAC.
Changes: None.
Comment: One commenter
recommended that the regulations
include an accountability mechanism so
that parents and schools know whether
the State or LEA is responsible for the
timely delivery of instructional
materials.
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Discussion: Whether instructional
materials are purchased by the State or
LEA is a State matter. The Act does not
authorize the Department to impose
obligations on States or LEAs with
respect to the process for timely
delivery of instructional materials.
Changes: None.
Comment: One commenter
emphasized the need to track the
progress and monitor the advancement
of accessible materials on a national and
regional level. Another commenter
stated that there is a need to establish
SEA and LEA baseline data regarding
the timeliness, quality, and quantity of
alternate formats in schools. One
commenter stated that States should be
required to publicize information
regarding whether the State is meeting
its responsibilities to provide accessible
materials to persons who are blind or
other persons with print disabilities in
a timely manner.
Discussion: We believe that it would
be overly burdensome to require States
to collect and report data on the
timeliness, quality, and quantity of
alternate formats provided to children
with disabilities in order to track the
availability of accessible materials for
children with disabilities on a regional
or national level. Under the State
complaint procedures, States are
responsible for resolving complaints
alleging violations of requirements
under the Act, including this one.
Changes: None.
Comment: One commenter requested
information on the scope of the
NIMAC’s responsibilities.
Discussion: The duties of the NIMAC
are specified in section 674(e)(2) of the
Act and include: (a) receiving and
maintaining a catalog of print
instructional materials prepared in the
NIMAS format; (b) providing access to
print instructional materials in
accessible media, free of charge to blind
or other persons with print disabilities
in elementary schools and secondary
schools; and (c) developing, adopting,
and publishing procedures to protect
against copyright infringement, with
respect to print instructional materials
provided under sections 612(a)(23) and
613(a)(6) of the Act.
Section 674(c) of the Act provides that
NIMAC’s duties apply to print
instructional materials published after
July 19, 2006, the date on which the
final rule establishing the NIMAS is
published in the Federal Register (71
FR 41084). The Department interprets
‘‘publish’’ to have the plain meaning of
the word, which is to issue for sale or
distribution to the public. The NIMAC’s
duties, therefore, apply to print
instructional materials made available
to the public for sale after the NIMAS
is published in the Federal Register.
However, this does not relieve SEAs and
LEAs of their responsibility to provide
accessible instructional materials in a
timely manner, regardless of when the
instructional materials were
‘‘published.’’
Changes: None.
Comment: A few commenters
expressed concern that the regulations
do not specify the structure and
operation of the NIMAC. One
commenter requested that the
Department provide more information
about the operation of the NIMAC.
Another commenter recommended that
the NIMAC’s management board
include representatives of authorized
entities. One commenter requested
information on the legal protections that
the Department will provide to the
NIMAC. Another commenter requested
specific information on the process and
timing of the funding of the NIMAC.
One commenter recommended a
timeline with a series of activities (e.g.,
establishment of a cooperative
agreement, cost projections) to ensure
that the NIMAC is operational. Another
commenter recommended that the
Department develop a process to ensure
that the files included in the NIMAC are
NIMAS compliant, complete, and of the
highest quality. One commenter
expressed concern about how NIMAS
files will be bundled and delivered to
the NIMAC.
Discussion: We do not believe that
regulations on the structure, operation,
or budget of the NIMAC are necessary.
Section 674(e) of the Act establishes the
NIMAC through the American Printing
House for the Blind (APH) and allows
the NIMAC to prescribe terms and
procedures to perform its duties under
the Act. The Department’s Office of
Special Education Programs (OSEP) will
oversee the administration of the
NIMAC through a cooperative
agreement with the APH and will work
with the NIMAC to establish its
structure, operating procedures, and
budget. The NIMAC procedures will be
available on the NIMAC Web site at:
http://www.nimac.us.
Changes: None.
Comment: One commenter stated that
the duties of the NIMAC to receive and
maintain electronic files of instructional
materials provided by publishers should
not be misconstrued as imposing a duty
on the NIMAC itself to use the NIMAS
files to reproduce the instructional
materials in accessible formats for
children with print disabilities.
Discussion: The Act clarifies that the
NIMAC is not responsible for producing
instructional materials in accessible
formats. As stated in section 674(e)(2) of
the Act, the NIMAC receives and
maintains a catalog of print
instructional materials prepared in the
NIMAS, and made available to the
NIMAC by the textbook publishing
industry, SEAs, and LEAs.
Changes: None.
Comment: One commenter expressed
concern about clear guidance regarding
electronic rights. Another commenter
recommended that the regulations
require the NIMAC to develop a user
agreement that any entity seeking access
to a NIMAS file must sign. The
commenters stated that the agreement
should detail the entities that are
eligible under Federal copyright law
and the Act to access the NIMAS files,
the alternate formats that may be
produced, and any other restrictions on
the dissemination and use of NIMAS
files.
One commenter stated that the
regulations should require that the
authorized entities have full, complete,
and immediate access to deposited files
and clarify that the authorized entities
are responsible for reproducing the
instructional materials in an accessible
format and therefore, the files housed by
the NIMAC should be free of charge.
Another commenter stated that the
Department should ensure that NIMAS
books are available to all authorized
entities and the appropriate State
organizations within five days after the
books are deposited in the NIMAC.
Discussion: We do not believe it is
appropriate or necessary to regulate on
the authorized entities eligible to have
access to the NIMAS files. Under
section 674(e)(2)(C) of the Act, the
NIMAC is required to develop, adopt,
and publish procedures to protect
against copyright infringement, with
respect to the print instructional
materials produced using the NIMAS
and provided by SEAs and LEAs to
blind persons or other persons with
print disabilities. Such procedures will
address, for example, information
regarding the authorized entities that are
eligible to have access to NIMAS files,
responsibilities of such authorized
entities, and how and when access will
be provided. The NIMAC procedures
will be available on the NIMAC Web
site at: http://www.nimac.us.
Changes: None.
Comment: One commenter suggested
several changes in the process to make
Braille copies of instructional materials
including constructing directions for
choosing answers in universal terms,
such as ‘‘write the correct response,’’
rather than ‘‘circle’’ or ‘‘underline;’’
describing, in writing, visuals that
cannot be easily interpreted; using hard
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paper for Braille and raised drawings,
rather than thermoform; using hard-
bound bindings for text, rather than
plastic spiral binders; using audio
formats as supplemental materials; and
using simple graphics with easy access
to map keys on the same page.
Discussion: Procedures for Braille
transcribers and for conversion entities
are the responsibility of SEAs and LEAs
and, as such, are beyond the scope of
these regulations.
Changes: None.
Comment: One commenter
recommended that software companies
routinely create desktop publishing
programs that contain text to speech
capabilities.
Discussion: It is beyond the
Department’s authority to impose
requirements on software companies.
Changes: None.
Comment: One commenter
recommended that a NIMAS style guide
be developed that is textbook specific.
Discussion: The NIMAS Technical
Assistance Center will develop a best
practices Web page with exemplars and
a style guide. This technical assistance
resource will be available at: http://
nimas.cast.org.
Changes: None.
Assistive Technology (§ 300.172(d))
Comment: A few commenters
requested that the regulations clarify
that the ‘‘assistive technology
programs,’’ referred to in § 300.172(d),
are the programs established in each
State pursuant to the Assistive
Technology Act of 1998, as amended.
Discussion: Section 300.172(d) and
section 612(a)(23)(D) of the Act provide
that in carrying out the requirements in
§ 300.172, the SEA, to the maximum
extent possible, must work
collaboratively with the State agency
responsible for assistive technology
programs. Section 612(a)(23)(D) of the
Act does not refer to any particular
assistive technology program. Therefore,
we interpret broadly the phrase ‘‘State
agency responsible for assistive
technology programs’’ to mean the
agency determined by the State to be
responsible for assistive technology
programs, which may include programs
established under section 4 of the
Assistive Technology Act of 1998, as
amended.
Changes: None.
Definitions (§ 300.172(e))
Comment: Several commenters
requested that § 300.172(e) include the
full definition of terms, rather than the
citations to the definitions in the laws.
A number of commenters requested that
the regulations include a definition of
‘‘persons with print disabilities.’’
Discussion: We have published the
NIMAS as Appendix C to Part 300—
National Instructional Materials
Accessibility Standard of these
regulations, which will include the
definition of NIMAS from section
674(e)(3)(B) of the Act.
The definition of the NIMAC in new
§ 300.172(e)(1)(ii) (proposed
§ 300.172(e)(2)) and section
612(a)(23)(E)(i) of the Act refers to the
center established pursuant to section
674(e) of the Act. Paragraph (e)(1) in
section 674 of the Act establishes the
center at the APH and paragraph (e)(2)
outlines the duties of the NIMAC. We
do not believe it is necessary to include
this information in the regulations in
order to implement the requirements of
the Act, but will include it here for the
convenience of the readers.
National Instructional Materials
Access Center or NIMAC means the
center established pursuant to section
674(e) of the Act. Section 674(e) of the
Act provides, in part, that—
(1) In general. The Secretary shall
establish and support, through the
American Printing House for the Blind,
a center to be known as the ‘‘National
Instructional Materials Access Center’’
not later than one year after the date of
enactment of the Individuals with
Disabilities Education Improvement Act
of 2004.
(2) Duties. The duties of the NIMAC
are the following:
(A) To receive and maintain a catalog
of print instructional materials prepared
in the NIMAS, as established by the
Secretary, made available to such center
by the textbook publishing industry,
State educational agencies, and local
educational agencies.
(B) To provide access to print
instructional materials, including
textbooks, in accessible media, free of
charge, to blind or other persons with
print disabilities in elementary schools
and secondary schools, in accordance
with such terms and procedures as the
NIMAC may prescribe.
(C) To develop, adopt and publish
procedures to protect against copyright
infringement, with respect to the print
instructional materials provided under
sections 612(a)(23) and 613(a)(6).
The definitions of blind persons or
other persons with print disabilities and
specialized format both refer to statutes
other than the Act. For the reasons set
forth earlier in this notice, we are
referencing the definitions of terms in
§ 300.172(e), rather than adding them to
these regulations. However, we will
include them here for the convenience
of the readers.
The Library of Congress regulations
(36 CFR 701.6(b)(1)) related to the Act
to Provide Books for the Adult Blind
(approved March 3, 1931, 2 U.S.C. 135a)
provide that blind persons or other
persons with print disabilities include:
(i) Blind persons whose visual acuity,
as determined by competent authority,
is 20/200 or less in the better eye with
correcting glasses, or whose widest
diameter if visual field subtends an
angular distance no greater than 20
degrees.
(ii) Persons whose visual disability,
with correction and regardless of optical
measurement, is certified by competent
authority as preventing the reading of
standard printed material.
(iii) Persons certified by competent
authority as unable to read or unable to
use standard printed material as a result
of physical limitations.
(iv) Persons certified by competent
authority as having a reading disability
resulting from organic dysfunction and
of sufficient severity to prevent their
reading printed material in a normal
manner.
Competent authority is defined in 36
CFR 701.6(b)(2) as follows:
(i) In cases of blindness, visual
disability, or physical limitations
‘‘competent authority’’ is defined to
include doctors of medicine, doctors of
osteopathy, ophthalmologists,
optometrists, registered nurses,
therapists, professional staff of
hospitals, institutions, and public or
welfare agencies (e.g., social workers,
case workers, counselors, rehabilitation
teachers, and superintendents).
(ii) In the case of a reading disability
from organic dysfunction, competent
authority is defined as doctors of
medicine who may consult with
colleagues in associated disciplines.
Specialized formats has the meaning
given the term in section 121(d)(4) of
title 17, United States Code:
(A) Braille, audio, or digital text
which is exclusively for use by blind or
other persons with disabilities.
(B) With respect to print instructional
materials, includes large print formats
when such materials are distributed
exclusively for use by blind or other
persons with disabilities.
Changes: As noted earlier, we have
amended paragraph (e) of § 300.172 by
adding a new paragraph (e)(2) to clarify
that the definitions in § 300.172(e)(1)
apply to each SEA and LEA whether or
not the SEA or LEA chooses to
coordinate with the NIMAC. We have
made technical changes to § 300.172(e)
and renumbered § 300.172(e) to be
consistent with this change.
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Prohibition on Mandatory Medication
(§ 300.174)
Comment: A few commenters
expressed concern that the regulations
do not provide sufficient guidance on
what school personnel can
communicate to parents regarding
medication. The commenters stated that
in the absence of additional guidance,
the regulations have the unintended
effect of preventing school personnel
from speaking openly with parents
regarding classroom behavior, options
for addressing behavior problems, and
the impact of a child’s medication on
classroom behavior. Further, the
commenters requested that the
regulations do more to encourage school
personnel to recommend evaluations for
children with behavior problems and
communicate openly with parents about
the effectiveness of treatment, and
protect school personnel. Other
commenters recommended requiring
school personnel to inform parents if
they suspect that a child’s behavior may
be related to a disability.
Discussion: We believe that § 300.174
provides sufficient guidance on what
school personnel can and cannot
communicate to parents regarding a
child’s medication. Paragraph (a)
clarifies that school personnel cannot
require parents to obtain a prescription
for medication for a child as a condition
of attending school, receiving an
evaluation to determine if a child is
eligible for special education services,
or receiving special education and
related services under the Act.
Paragraph (b) clearly permits classroom
personnel to speak with parents or
guardians regarding a child’s academic
and functional performance, behavior in
the classroom or school, or the need for
an evaluation to determine the need for
special education or related services.
We do not believe that further
regulations are needed to encourage
school personnel to recommend
evaluations for children with behavior
problems or to require school personnel
to inform parents if they suspect a
child’s behavior may be related to a
disability. The child find requirements
in § 300.111 clarify that States must
have in effect policies and procedures to
ensure that all children with disabilities
residing in a State and who are in need
of special education and related
services, are identified, located, and
evaluated.
Changes: None.
States’ Sovereign Immunity (New
§ 300.177)
Comment: None.
Discussion: In developing the
proposed regulations, we incorporated
those provisions of subpart A that apply
to States. We inadvertently omitted the
provisions in section 604 of the Act,
regarding States’ sovereign immunity.
We have added these to the regulations
in new § 300.177. In paragraph (a), we
have clarified that the statutory
language means that a State must waive
immunity in order to receive Part B
funds. This is the longstanding
interpretation of the Department and is
consistent with Federal Circuit Courts’
decisions interpreting this statutory
language. (See, e.g., Pace v. Bogalusa
City Sch. Bd., 403 F.3d 272 (5th Cir.
2005); M.A. ex rel. E.S. v. State-
Operated Sch. Dist., 344 F.3d 335 (3rd
Cir. 2003); Little Rock Sch. Dist. v.
Mauney, 183 F.3d 816 (8th Cir. 1999);
Marie O. v. Edgar, 131 F.3d 610 (7th Cir.
1997).)
Changes: We have added the
provisions in section 604 of the Act,
regarding States’ sovereign immunity, to
new § 300.177.
Department Procedures (§§ 300.178
Through 300.186)
Comment: One commenter stated that
the requirements in §§ 300.179 through
300.183, regarding the notice and
hearing procedures before the Secretary
determines a State is not eligible to
receive a grant under Part B of the Act,
are unnecessary and go beyond what is
required in section 612(d) of the Act.
The commenter recommended removing
§§ 300.179 through 300.183 and
including additional language in
§ 300.178 clarifying that the Secretary
has the authority to develop specific
administrative procedures to determine
if States meet statutory requirements for
eligibility under Part B of the Act and
that such procedures must include
notification of eligibility or non-
eligibility, an opportunity for a hearing,
and an opportunity for appeal of the
hearing decision.
Discussion: The Department does not
agree with the commenter that the
notification and hearing procedures
included in §§ 300.179 through 300.183
are unnecessary and go beyond what is
required in section 612(d) of the Act.
Section 612(d)(2) of the Act states that
the Secretary shall not make a final
determination that a State is not eligible
to receive a grant under this part until
after providing the State with reasonable
notice and an opportunity for a hearing.
When the Secretary proposes to deny a
State’s eligibility to receive a grant
under Part B of the Act, withhold funds,
or take other enforcement action, it is
important to all parties that the process
through which those issues will be
decided is clearly described, so that
time, money, and effort are not spent
resolving procedural questions instead
of the underlying issues. For these
reasons, we believe it is important to
retain §§ 300.179 through 300.183 in the
regulations.
Changes: None.
Judicial Review (§ 300.184)
Comment: One commenter requested
that we clarify in the regulations the
status of a State’s operation of a program
or eligibility to receive a grant under
Part B of the Act while a final judicial
decision is pending with respect to the
State’s eligibility under section 612 of
the Act.
Discussion: Under section 612(a) of
the Act, States must meet certain
conditions in order to be eligible for a
grant under the Part B program. Under
section 612(d) of the Act, if the
Secretary, after notice and an
opportunity for a hearing, makes a final
determination that a State is not eligible
for a grant, the Secretary may not award
funds to the State. The procedures in
§§ 300.179 through 300.183 detail the
process through which the Secretary
notifies a State of a proposed
ineligibility determination, the hearing
available to the State to dispute this
proposal, and the process through
which the Secretary makes a final
determination. The Secretary’s final
determination may be appealed through
the judicial review procedure described
in section 616(e)(8) of the Act and
§ 300.184. We decline to address this
issue more specifically in the
regulations, however, as we think the
regulations already adequately convey
the idea that only States that the
Secretary determines to be eligible can
receive a grant.
Changes: None.
By-Pass for Children in Private Schools
(§§ 300.190 through 300.198)
Comment: One commenter stated that
§§ 300.190 through 300.198 are
unnecessary because the Act gives
sufficient authority for the Secretary to
implement a by-pass for children with
disabilities enrolled in private
elementary schools and secondary
schools.
Discussion: Section 300.190 retains
the authority for a by-pass in current
§ 300.480 and includes additional
authority for a by-pass, consistent with
section 612(f)(1) of the Act, in cases
where the Secretary determines that an
SEA, LEA, or public agency has
substantially failed, or is unwilling, to
provide for equitable participation of
parentally-placed private school
children with disabilities. When the
Secretary authorizes a by-pass it is
important that all parties understand the
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process by which the Secretary
determines the funds that will be
deducted from the State’s allocation
under Part B of the Act to provide
services, as well as the actions that are
required before the Secretary takes any
final action to implement a by-pass.
When such processes and procedures
are clearly described, time, money, and
effort are not spent resolving procedural
questions. The requirements in
§§ 300.190 through 300.198 provide this
information and we believe are
necessary to clarify and ensure effective
implementation of the by-pass
provisions in the Act. We are making
one change to § 300.191(d) to clarify that
the Secretary deducts amounts the
Secretary determines necessary to
implement a by-pass from the State’s
allocations under sections 611 and 619
of the Act.
Changes: In § 300.191(d) we have
substituted a reference to sections 611
and 619 of the Act for a reference to Part
B of the Act.
Show Cause Hearing (§ 300.194)
Comment: One commenter opposed
allowing a lawyer for the SEA or LEA
to present oral and written evidence and
arguments at a show cause hearing
because parents are often intimidated by
having to face a lawyer.
Discussion: Section 300.194(a)(3)
provides an opportunity for an SEA,
LEA, or other public agency, and
representatives of private elementary
schools and secondary schools to be
represented by legal counsel and to
submit oral or written evidence or
arguments at a hearing to show cause
why a by-pass should not be
implemented. Parents are not parties to
this hearing and generally would not
appear before the show cause hearing
officer, and would, therefore, not be
intimidated by a participating lawyer.
We believe that it is only fair that the
party to the hearing (SEA, LEA, or other
public agency, and representatives of
private schools) be provided the option
to be represented by legal counsel
because legal counsel will generally
represent the Department, as a party to
the hearing.
Changes: None.
State Administration (§ 300.199)
Comment: One commenter indicated
that § 300.199 is improperly placed in
the regulations under the general
heading ‘‘By-pass for Children in Private
Schools.’’
Discussion: We agree with the
commenter that § 300.199 does not
belong under the general heading ‘‘By-
Pass for Children in Private Schools.’’
Changes: A new undesignated center
heading entitled ‘‘State Administration’’
will be added immediately preceding
§ 300.199 to separate that section from
the regulations related to
implementation of the by-pass
provisions of the Act.
Comment: One commenter
recommended including in § 300.199 a
requirement that States may not
eliminate from their rules, regulations,
and policies any provisions required by
Part B of the Act and its implementing
regulations.
Discussion: Section 300.199
incorporates the requirement in section
608 of the Act that any rulemaking
related to the Act conducted by the
State conform to the purposes of the
Act. Consistent with section 608 of the
Act, § 300.199 makes clear that each
State that receives funds under Part B of
the Act must ensure that any State rules,
regulations, and policies relating to 34
CFR part 300 conform to the provisions
of 34 CFR part 300. We do not believe
it is necessary to add a provision in
§ 300.199 prohibiting States from
eliminating from their rules, regulations,
and policies any provisions required by
Part B of the Act and its implementing
regulations, as requested by the
commenter. If a State were to do so, the
State’s rules, regulations, and policies
would not conform to the provisions in
34 CFR part 300. Under this provision,
a State, and not the Secretary,
determines whether a particular rule,
regulation, or policy conforms to the
purposes of the Act.
Changes: None.
Comment: Some commenters
expressed concern that the mandate to
minimize State rules and regulations
might discourage States from
developing beneficial programs, and,
therefore, should not pertain to policies
that promote best practices, increased
parental involvement, educating
children in the least restrictive
environment, and improving access to
the general curriculum. One commenter
recommended including a statement in
the regulations that a State would not be
penalized for exceeding the minimum
requirements of the Act. A few
commenters stated that the services
provided by the Act were intended to be
a ‘‘floor,’’ rather than a ‘‘ceiling’’ and
recommended a pilot program to
encourage States to adopt rules that best
serve the needs of children with
disabilities.
Discussion: We do not agree that the
regulations discourage States from
developing beneficial programs or
establishing rules that best serve the
needs of children with disabilities. In
fact, § 300.199(b), consistent with
section 608(b) of the Act, requires State
rules, regulations, and policies under
the Act to support and facilitate LEA
and school-level system improvement
designed to enable children with
disabilities to meet challenging State
student academic achievement
standards.
Section 300.199(a), consistent with
section 608(a) of the Act, is intended to
minimize the number of rules,
regulations, and policies to which LEAs
and schools are subject under the Act,
and to identify in writing any rule,
regulation, or policy that is State-
imposed and not required under the Act
and its implementing regulations. The
Department’s position is consistent with
S. Rpt. No. 108–185, p. 10, which states
‘‘Through section 608(a), the committee
is in no way attempting to reduce State
input or State practice in this area, but
intends to make clear what is a Federal
obligation and what is a State or local
educational agency requirement for the
Act.’’ We believe it is important for
parents, teachers, school administrators,
State lawmakers, and others to
understand what is required under the
Act, and, therefore, do not believe that
§ 300.199 should be changed.
Changes: None.
Subpart C—Local Educational Agency
Eligibility
Consistency With State Policies
(§ 300.201)
Comment: Some commenters
recommended requiring LEAs to seek
input from parents of children with
disabilities in the development of LEA
policies, procedures, and programs.
Discussion: Section 300.201,
consistent with section 613(a)(1) of the
Act, requires each LEA to have in effect
policies, procedures, and programs that
are consistent with State policies and
procedures. It is up to each State and its
LEAs to determine the manner in which
LEAs develop their policies, procedures,
and programs, consistent with State law
and procedures. The Act does not
authorize the Department to impose
additional obligations on States or LEAs
with respect to the development of LEA
policies, procedures, and programs.
Changes: None.
Maintenance of effort (§§ 300.202
through 300.205)
Comment: A few commenters stated
that the maintenance of effort
requirements are complicated and
unnecessary and should be eliminated
or simplified.
Discussion: Sections 300.202 through
300.205, regarding maintenance of effort
and the LEA’s use of funds received
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under Part B of the Act, reflect the
specific statutory requirements in
section 613(a)(2) of the Act, as well as
necessary information regarding the
implementation of these requirements.
Much of the additional information in
§§ 300.202 through 300.205 was
included in various sections throughout
the current regulations. We continue to
believe that this information is
necessary for the proper implementation
of the Act. Section 300.204(e), which
has been newly added to the
regulations, includes the assumption of
costs by the high cost fund as an
additional condition under which an
LEA may reduce its level of
expenditures. We believe this provision
is necessary because LEAs should not be
required to maintain a level of fiscal
effort based on costs that are assumed
by the SEA’s high cost fund.
In short, we have tried to present the
regulations relating to LEA maintenance
of effort in a clear manner, while being
consistent with the language of the Act
(which we do not have the authority to
change) and including only as much
additional information as is necessary to
ensure proper implementation of the
Act.
Changes: None.
Comment: One commenter stated that
LEAs should be permitted to use a
reasonable amount of their Part B funds
to meet the Act’s requirements relating
to student assessment, outcomes,
complaints, compliance monitoring,
mediation, and due process hearings.
Discussion: With one exception,
nothing in the Act or these regulations
would prevent an LEA from using its
Part B allotment for the activities noted
by the commenter, so long as the
expenditures meet the other applicable
requirements under the Act and
regulations.
LEAs may not use their Part B funds
to support the mediation process
described in § 300.506. Consistent with
section 615(e)(2)(D) of the Act,
§ 300.506(b)(4) requires the State (not
the LEA) to bear the cost of that
mediation process. Although LEAs may
not use their Part B funds to support the
mediation process required under
§ 300.506(b)(4), they may use their Part
B funds to support alternative mediation
processes that they offer. Some LEAs
(and States) offer alternative mediation
processes, in addition to the mediation
process required under section 615 of
the Act. These alternative mediation
processes generally were established
prior to the Federal mandate for
mediation and some LEAs (and States)
continue to offer parents the option of
using these alternative mediation
processes to resolve disputes. Therefore,
if an LEA has an alternative mediation
process, it may use its Part B funds for
this process, so long as parents are
provided access to the required
mediation process under section 615 of
the Act and are not required to use an
alternative mediation process in order to
engage in the mediation process
provided under section 615 of the Act.
Changes: None.
Comment: Several commenters
requested clarifying that ‘‘per capita’’ in
§ 300.203(b) means the amount per
child with a disability in an LEA.
Discussion: We do not believe it is
necessary to include a definition of ‘‘per
capita’’ in § 300.203(b) because we
believe that, in the context of the
regulations, it is clear that we are using
this term to refer to the amount per
child with a disability served by the
LEA.
Changes: None.
Exception to Maintenance of Effort
(§ 300.204)
Comment: One commenter
recommended expanding the exceptions
to the maintenance of effort
requirements in § 300.204(a) to include
negotiated reductions in staff salaries or
benefits so that LEAs are not penalized
for being proactive in reducing costs.
Another commenter recommended
revising § 300.204 to allow LEAs to
apply for a waiver of the maintenance
of effort requirements in cases of fiscal
emergencies.
Discussion: Section 300.204(a)
through (d) reflects the language in
section 613(a)(2)(B) of the Act and
clarifies the conditions under which
LEAs may reduce the level of
expenditures below the level of
expenditures for the preceding year.
Nothing in the Act permits an exception
for negotiated reductions in staff salaries
or benefits or financial emergencies.
Accordingly, to expand the exceptions
to the maintenance of effort
requirements, as recommended by the
commenters, would be beyond the
authority of the Department.
Changes: None.
Comment: Some commenters
requested clarification as to whether the
exceptions to the maintenance of effort
requirements apply to an LEA that uses
funds from its SEA’s high cost fund
under § 300.704(c) during the preceding
year.
Discussion: We do not believe further
clarification is necessary because
§ 300.204(e) clearly states that the
assumption of costs by a State-operated
high cost fund under § 300.704(c) would
be a permissible reason for reducing
local maintenance of effort. This
provision was included in the proposed
regulations in recognition that the new
statutory authority in section 611(e)(3)
of the Act that permits States to
establish a fund to pay for some high
costs associated with certain children
with disabilities could logically and
appropriately result in lower
expenditures for some LEAs.
Changes: None.
Adjustments to Local Fiscal Efforts in
Certain Fiscal Years (§ 300.205)
Comment: A few commenters stated
that the link between early intervening
services and reductions in maintenance
of effort in § 300.205(d) is not in the Act.
Some commenters expressed concern
that this requirement forces an LEA to
choose between providing early
intervening services and directing local
funds toward nondisabled children. One
commenter stated that linking the use of
funds for early intervening services to
reduction in maintenance of effort in
§ 300.205 is not logical and was not the
intent of Congress.
Discussion: The link between
reductions in local maintenance of effort
(reflected in § 300.205(d)) and the
amount of Part B funds that LEAs may
use to provide early intervening services
(reflected in § 300.226) is established in
the Act. Section 300.205(d) tracks the
statutory language in section
613(a)(2)(C)(iv) of the Act and
§ 300.226(a) tracks the statutory
language in section 613(f)(1) of the Act.
Section 300.205(d) states that the
amount of funds expended by an LEA
for early intervening services under
§ 300.226 counts toward the maximum
amount of expenditures that an LEA
may reduce in its local maintenance of
effort. Section 300.226(a) clearly states
that the amount of Part B funds an LEA
may use to provide early intervening
services may not exceed 15 percent of
the funds the LEA receives under Part
B of the Act less any amount reduced
by the LEA under § 300.205.
As noted in the NPRM, the
Department believes it is important to
caution LEAs that seek to reduce their
local maintenance of effort in
accordance with § 300.205(d) and use
some of their Part B funds for early
intervening services under § 300.226
because the local maintenance of effort
reduction provision and the authority to
use Part B funds for early intervening
services are interconnected. The
decision that an LEA makes about the
amount of funds that it uses for one
purpose affects the amount that it may
use for the other. Appendix D to Part
300—Maintenance of Effort and Early
Intervening Services includes examples
that illustrate how §§ 300.205(d) and
300.226(a) affect one another.
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Changes: We have added a reference
to Appendix D in § 300.226(a).
Schoolwide Programs Under Title I of
the ESEA (§ 300.206)
Comment: A few commenters
recommended specifying in § 300.206(b)
that LEAs can use only funds provided
under section 611 of the Act (and not
section 619 of the Act) to carry out a
schoolwide program under section 1114
of the ESEA. The commenters stated
that this change is necessary so that the
per capita amount of Federal Part B
funds used to carry out a schoolwide
program is not artificially inflated by
including preschool grant funds that are
used to serve children ages three
through five who are not placed in a
title I school.
Discussion: Section 613(a)(2)(D) of the
Act specifically provides that an LEA
may use any funds it receives under Part
B of the Act to carry out schoolwide
programs under title I of the ESEA. Part
B funds include any funds an LEA
receives under sections 611 and 619 of
the Act.
Changes: None.
Personnel Development (§ 300.207)
Comment: A few commenters
suggested requiring LEAs to train their
personnel through research-based
practices in order to ensure that
personnel are appropriately and
adequately prepared to implement Part
B of the Act.
Discussion: We believe the regulations
already address the commenters’
concern and reflect the Department’s
position that high-quality professional
development, including the use of
scientifically based instructional
practices, is important to ensure that
personnel have the skills and
knowledge necessary to improve the
academic achievement and functional
performance of children with
disabilities. Section 300.207, consistent
with section 613(a)(3) of the Act,
requires each LEA to ensure that all
personnel necessary to carry out Part B
of the Act are appropriately prepared,
subject to the requirements in § 300.156
and section 2122 of the ESEA.
Section 300.156(a), consistent with
section 612(a)(14) of the Act, clearly
states that each State must establish and
maintain qualifications to ensure that
personnel are appropriately and
adequately prepared and trained, and
have the content knowledge and skills
to serve children with disabilities.
Further, section 2122(b)(1)(B) of the
ESEA requires an LEA’s application to
the State for title II funds (Preparing,
training, and recruiting high quality
teachers and principals) to address how
the LEA’s activities will be based on a
review of scientifically based research.
Changes: None.
Purchase of Instructional Materials
(§ 300.210)
Comment: One commenter
recommended requiring LEAs to hold
public hearings that meet the
requirements in section 612(a)(19) of the
Act before adopting its policies and
procedures to purchase instructional
materials. The commenter stated that all
interested members of the public,
including parents of children with
disabilities, are entitled to participate in
designing the plan to meet the
requirements in § 300.210.
Discussion: The Act does not require
LEAs to hold public hearings before
implementing new policies and
procedures. This is a matter for each
State to determine, based on its rules
governing public hearings and public
comment. Therefore, we do not believe
it is appropriate for these regulations to
require LEAs to hold public hearings
and receive public comment on the
LEA’s purchase of instructional
materials, as requested by the
commenter.
Changes: None.
Comment: One commenter stated that
the requirements in § 300.210(b)(3) are
unnecessary and should be removed
because the Act does not require LEAs
to provide accessible materials for
children with disabilities for whom
assistance is not available from the
NIMAC.
Discussion: We believe that
§ 300.210(b)(3) is necessary because
timely access to appropriate and
accessible instructional materials is an
inherent component of an LEA’s
obligation under the Act to ensure that
FAPE is available for all children with
disabilities and that children with
disabilities participate in the general
curriculum as specified in their IEPs.
Because the NIMAC is not required to
serve all children with disabilities who
need accessible materials, we believe it
is important that the regulations make
clear that LEAs are still responsible for
ensuring that children with disabilities
who need instructional materials in
accessible formats, but who do not fall
within the definition of children who
are eligible to receive materials
produced from NIMAS files obtained
through the NIMAC, receive them in a
timely manner. We, therefore, decline to
delete § 300.210(b)(3).
Changes: None.
Comment: A significant number of
commenters expressed concern about
allowing LEAs to choose not to
coordinate with the NIMAC. A few
commenters stated that coordination
with the NIMAC should be mandatory
for all LEAs. Other commenters
recommended that LEAs that cannot
demonstrate a history of providing
instructional materials to children with
disabilities in a timely manner should
be required to coordinate with the
NIMAC.
Discussion: It would be inconsistent
with section 613(a)(6)(B) of the Act to
make coordination with the NIMAC
mandatory for all LEAs or to require
certain LEAs to coordinate with the
NIMAC (e.g., LEAs that do not have a
history of providing instructional
materials to children with disabilities in
a timely manner). Section 613(a)(6)(B) of
the Act provides that nothing in the Act
shall be construed to require any LEA to
coordinate with the NIMAC.
Changes: None.
Comment: Several commenters
requested that the regulations clearly
define the process LEAs must go
through if they choose not to coordinate
with the NIMAC. A few commenters
requested additional details on what
assurances LEAs must provide if they
choose not to coordinate with the
NIMAC. A few commenters requested
that LEA assurances provide the public
with information to evaluate the
capacity of the LEA to provide materials
to children who are blind or have print
disabilities. Some commenters stated
that the assurances provided by LEAs
that choose not to coordinate with the
NIMAC should be done annually and in
writing.
Several commenters requested that
the regulations provide a means for the
public to obtain information about
which LEAs choose not to coordinate
with the NIMAC. A few commenters
recommended requiring LEAs to report
to the Department whether they choose
to coordinate with the NIMAC. Some
commenters requested that the
Department publish the assurances
made in accordance with § 300.210(b)
by LEAs that choose not to coordinate
with the NIMAC.
Discussion: The process by which
LEAs choose not to coordinate with the
NIMAC and the assurances that LEAs
must provide if they choose not to
coordinate with the NIMAC are
determined by each State. Section
300.210(b)(2), consistent with section
613(a)(6)(B) of the Act, states that, if an
LEA chooses not to coordinate with the
NIMAC, the LEA must provide an
assurance to the SEA that the LEA will
provide instructional materials to blind
persons or other persons with print
disabilities in a timely manner.
Therefore, it would be unnecessary and
burdensome to require LEAs to provide
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assurances to the Department or to
require LEAs to report to the
Department whether they choose to
coordinate with the NIMAC. Each State
has its own mechanisms and processes
for obtaining assurances from its LEAs,
and we believe it would be
inappropriate for these regulations to
define the process by which LEAs
inform the SEA that they choose not to
coordinate with the NIMAC or to
specify the content of the assurances
that LEAs must provide to the SEA if
they choose not to coordinate with the
NIMAC. Similarly, it is up to each State
to determine whether and how the State
will provide information to the public
about LEAs in the State that choose not
to coordinate with the NIMAC.
Changes: None.
Comment: Some commenters
proposed that the regulations require
LEAs that choose not to coordinate with
the NIMAC to annually report to the
public on when children with
disabilities receive their materials, how
print materials are provided in a timely
manner, and the steps the LEA has
taken to ensure that materials are
provided at the same time as materials
are provided to children without
disabilities. Other commenters
recommended requiring LEAs that
choose not to coordinate with the
NIMAC to develop and publish their
policies and procedures that govern
how they maintain and distribute
NIMAS files.
Discussion: We believe that imposing
additional data collection and reporting
requirements, such as those requested
by the commenters, on LEAs that choose
not to coordinate with the NIMAC is a
matter that is best left to the States.
States are responsible for ensuring that
accessible instructional materials are
provided in a timely manner to all
children with disabilities who need
them, and are, therefore, in the best
position to know what controls, if any,
are needed in their State to ensure that
LEAS comply with the requirements in
§ 300.210(b)(3). All LEAs, regardless of
whether they choose to coordinate with
the NIMAC, must ensure that children
with disabilities who need instructional
materials in accessible formats receive
them in a timely manner, consistent
with § 300.210(b)(3).
Changes: None.
Comment: A few commenters
requested that the Department provide
information to LEAs on the NIMAC and
the NIMAS so that LEAs can make an
informed choice regarding whether to
coordinate with the NIMAC.
Discussion: The Department
recognizes the need to provide
information to LEAs regarding the
NIMAC and the NIMAS. The
Department has already provided
numerous informational sessions on the
NIMAC and NIMAS and more are
planned following the publication of the
regulations and approval of the NIMAC
procedures. Information about the
NIMAC Technical Assistance Center is
available at the following Web site:
http://www.aph.org/nimac/index.html.
Information on the NIMAS can be
obtained at: http://nimas.cast.org.
Changes: None.
Early Intervening Services (§ 300.226)
Comment: One commenter
recommended clarifying that early
intervening services should not be used
to delay the evaluation of children
suspected of having a disability.
Discussion: We believe that
§ 300.226(c), which states that nothing
in § 300.226 will be construed to delay
appropriate evaluation of a child
suspected of having a disability, makes
clear that early intervening services may
not delay an appropriate evaluation of a
child suspected of having a disability.
Changes: None.
Comment: One commenter expressed
concern that the requirements for early
intervening services do not adequately
protect the child’s right to FAPE and
recommended that the requirements
include provisions regarding notice,
consent, and withdrawal of consent, as
well as guidelines for referrals for
evaluation.
Discussion: Children receiving early
intervening services do not have the
same rights and protections as children
identified as eligible for services under
sections 614 and 615 of the Act. Section
300.226(c), consistent with section
613(f)(3) of the Act, is clear that early
intervening services neither limit nor
create a right to FAPE.
Changes: None.
Comment: Some commenters
recommended that the regulations
specify how long a child may receive
early intervening services before an
initial evaluation for special education
services under § 300.301 is conducted.
Discussion: We do not believe it is
appropriate or necessary to specify how
long a child can receive early
intervening services before an initial
evaluation is conducted. If a child
receiving early intervening services is
suspected of having a disability, the
LEA must conduct a full and individual
evaluation in accordance with
§§ 300.301, 300.304 and 300.305 to
determine if the child is a child with a
disability and needs special education
and related services.
Changes: None.
Comment: A few commenters
suggested clarifying that Part B funds for
early intervening services should not be
used for any child previously identified
as being a child with a disability.
Discussion: A child previously
identified as being a child with a
disability who currently does not need
special education or related services
would not be prevented from receiving
early intervening services. For example,
a child who received special education
services in kindergarten and had
services discontinued in grade 1
(because the public agency and the
parent agreed that the child was no
longer a child with a disability), could
receive early intervening services in
grade 2 if the child was found to be in
need of additional academic and
behavioral supports to succeed in the
general education environment. We
believe that language should be added
to § 300.226 to clarify that early
intervening services are for children
who are not currently identified as
needing special education or related
services.
Changes: We have modified
§ 300.226(a) to clarify that early
intervening services are available to
children who currently are not
identified as needing special education
or related services.
Comment: One commenter
recommended specifying that unless
LEAs have significant over-
identification and over-representation of
minority students in special education,
LEAs may not use Federal Part B funds
for early intervening services unless
they can demonstrate that all eligible
children are receiving FAPE. Another
commenter suggested prohibiting the
use of Part B funds for early intervening
services if an LEA is not providing
FAPE to all eligible children.
Discussion: The Act does not restrict
the use of funds for early intervening
services only to LEAs that can
demonstrate that all eligible children
with disabilities are receiving FAPE.
Section 613(f)(1) of the Act generally
permits LEAs to use funds for early
intervening services for children in
kindergarten through grade 12 (with a
particular emphasis on children in
kindergarten through grade 3) who have
not been identified as needing special
education or related services, but who
need additional academic and
behavioral support to succeed in a
general education environment. No
other restrictions on this authority, such
as a requirement that the LEA first
demonstrate that it is providing FAPE to
all eligible children, are specified or
appropriate. The authority to use some
Part B funds for early intervening
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services has the potential to benefit
special education, as well as the
education of other children, by reducing
academic and behavioral problems in
the regular educational environment
and reducing the number of referrals to
special education that could have been
avoided by relatively simple regular
education interventions. Therefore, we
believe the use of Part B funds for early
intervening services should be
encouraged, rather than restricted.
In one instance, however, the Act
requires the use of funds for early
intervening services. Under section
618(d)(2)(B) of the Act, LEAs that are
identified as having significant
disproportionality based on race and
ethnicity with respect to the
identification of children with
disabilities, the placement of children
with disabilities in particular
educational settings, and the incidence,
duration, and type of disciplinary
actions taken against children with
disabilities, including suspensions and
expulsions, are required to reserve the
maximum amount of funds under
section 613(f)(1) of the Act to provide
early intervening services to children in
the LEA, particularly to children in
those groups that were significantly
over-identified. This requirement is in
recognition of the fact that significant
disproportionality in special education
may be the result of inappropriate
regular education responses to academic
or behavioral issues.
Changes: None.
Comment: One commenter
recommended permitting LEAs to spend
funds for early intervening services on
literacy instruction programs that target
at-risk limited English proficient
students.
Discussion: There is nothing in the
Act that would preclude LEAs from
using Part B funds for early intervening
services, including literacy instruction,
that target at-risk limited English
proficient students who have not been
identified as needing special education
or related services, but who need
additional academic and behavioral
support to succeed in a general
education environment.
Changes: None.
Comment: One commenter requested
clarification as to whether ESAs or other
public institutions or agencies, in
addition to LEAs, have the authority to
provide early intervening services.
Discussion: We do not believe any
clarification is necessary because
§ 300.226, consistent with section 613(f)
of the Act, states that LEAs may use Part
B funds to develop and implement
coordinated early intervening services.
As defined in § 300.28(b), local
educational agency or LEA includes
ESAs and any other public institution or
agency having administrative control
and direction of a public elementary
school or secondary school, including a
public nonprofit charter school that is
established as an LEA under State law.
Changes: None.
Comment: Some commenters
suggested modifying the regulations to
permit children age 3 through 21 to
receive early intervening services. The
commenters stated that this change
would allow schools to provide early
academic and behavioral supports to
preschool children.
Discussion: Early intervening services
may not be used for preschool children.
Section 300.226(a) tracks the statutory
language in section 613(f)(1) of the Act,
which states that early intervening
services are for children in kindergarten
through grade 12, with a particular
emphasis on children in kindergarten
through grade 3.
Changes: None.
Comment: One commenter
recommended clarifying in the
regulations that early intervening
services are not equivalent to early
intervention services.
Discussion: We do not believe any
changes are necessary to the regulations
to clarify the difference between early
intervening services provided under
Part B of the Act and early intervention
services provided under Part C of the
Act. Following is a description of the
two types of services:
Early intervening services provided
under section 613(f) of the Act are
services for children in kindergarten
through grade 12 (with a particular
emphasis on children in kindergarten
through grade 3) who have not been
identified as needing special education
and related services, but who need
additional academic and behavioral
support to succeed in a general
education environment.
Early intervention services, on the
other hand, are services for children
birth through age two that are designed
to meet the developmental needs of
infants and toddlers with disabilities
under section 632 in Part C of the Act.
Section 632(5)(A) of the Act defines
infant or toddler with a disability as a
child under the age of three years who
(a) is experiencing developmental
delays in one or more of the areas of
cognitive development, physical
development, communication
development, social or emotional
development, and adaptive
development, or (b) has a diagnosed
physical or mental condition that has a
high probability of resulting in
developmental delay. In addition, some
States also provide early intervention
services to infants and toddlers who are
at risk of having a developmental delay.
The Part C regulations will address, in
detail, the early intervention services
provided under section 632 of the Act.
Changes: None.
Comment: One commenter asked
whether the reference to scientifically
based academic and behavioral
interventions in § 300.226(b) means that
such interventions must be aligned with
recommended practices and peer-
reviewed research.
Discussion: Section 300.226(b)
follows the specific language in section
613(f)(2) of the Act and requires that in
implementing coordinated, early
intervening services, an LEA may
provide, among other services,
professional development for teachers
and other personnel to enable such
personnel to deliver scientifically based
academic and behavioral interventions.
The use of the term scientifically based
in § 300.226(b) is intended to be
consistent with the definition of the
term scientifically based research in
section 9101(37) of the ESEA. Because
this definition of scientifically based
research is important to the
implementation of Part B of the Act, a
reference to section 9101(37) of the
ESEA has been added in new § 300.35,
and the full definition of the term has
been included in the discussion of new
§ 300.35. Under the definition,
scientifically based research must be
accepted by a peer-reviewed journal or
approved by a panel of independent
experts through a comparably rigorous,
objective, and scientific review. We
expect that the professional
development activities authorized under
§ 300.226(b)(1) will be derived from
scientifically based research. The statute
and regulations do not refer to
‘‘recommended practices,’’ which is a
term of art that, generally, refers to
practices that the field has adopted as
‘‘best practices,’’ and which may or may
not be based on evidence from
scientifically based research.
Changes: None.
Comment: Several commenters
requested including related services
personnel, including speech
pathologists and school psychologists,
in the development and delivery of
educational and behavioral evaluations,
services, and supports for teachers and
other school staff to enable them to
deliver coordinated, early intervening
services.
Discussion: State and local officials
are in the best position to make
decisions regarding the provision of
early intervening services, including the
specific personnel to provide the
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services and the instructional materials
and approaches to be used. Nothing in
the Act or regulations prevents States
and LEAs from including related
services personnel in the development
and delivery of educational and
behavioral evaluations, services, and
supports for teachers and other school
staff to enable them to deliver
coordinated, early intervening services.
Changes: None.
Comment: Several commenters
recommended revising the regulations
to allow public agencies to use Part B
funds for early intervening services to
purchase supplemental instructional
materials to support the activities in
§ 300.226(b).
Discussion: We agree that
supplemental instructional materials
may be used, where appropriate, to
support early intervening activities. The
Conf. Rpt. in note 269 provides that
[E]arly intervening services should make
use of supplemental instructional materials,
where appropriate, to support student
learning. Children targeted for early
intervening services under IDEA are the very
students who are most likely to need
additional reinforcement to the core
curriculum used in the regular classroom.
These are in fact the additional instructional
materials that have been developed to
supplement and therefore strengthen the
efficacy of comprehensive core curriculum.
We believe the terms ‘‘services’’ and
‘‘supports’’ in § 300.226(b)(2) are broad
enough to include the use of
supplemental instructional materials.
Accordingly, we believe that it is
unnecessary to add further clarification
regarding the use of supplemental
instructional materials in § 300.226. Of
course, use of funds for this purpose is
subject to other requirements that apply
to any use of funds, such as the
limitation on purchase of equipment in
section 605 of the Act and applicable
requirements in 34 CFR Parts 76 and 80.
Changes: None.
Comment: Several commenters
requested requiring LEAs to provide
parents with written notice regarding
their child’s participation in early
intervening services, the goals for such
services, and an opportunity to refuse
services. Some commenters requested
requiring LEAs to inform parents of
their child’s progress in early
intervening services at reasonable
intervals.
Discussion: Section 300.226,
consistent with section 613(f) of the Act,
gives LEAs flexibility to develop and
implement coordinated, early
intervening services for children who
are not currently receiving special
education services, but who require
additional academic and behavioral
support to succeed in a regular
education environment. Early
intervening services will benefit both
the regular and special education
programs by reducing academic and
behavioral problems in the regular
education program and the number of
inappropriate referrals for special
education and related services. It would
be overly restrictive and beyond the
Department’s authority to modify the
regulations to include the additional
requirements suggested by the
commenters.
Changes: None.
Comment: One commenter stated that
data should be collected regarding the
effectiveness of early intervening
services. Several commenters requested
requiring LEAs to report to the SEA, and
make available to the public, the
number of children receiving early
intervening services, the length of time
the children received the services, the
impact of the services, and the amount
of Federal Part B funds used for early
intervening services.
Discussion: Section 300.226(d),
consistent with section 613(f)(4) of the
Act, requires LEAs that develop and
maintain coordinated, early intervening
services to annually report to their SEA
on the number of children receiving
early intervening services and the
number of those children who
eventually are identified as children
with disabilities and receive special
education and related services during
the preceding two year period (i.e., the
two years after the child has received
early intervening services). We believe
that these data are sufficient to provide
LEAs and SEAs with the information
needed to determine the impact of early
intervening services on children and to
determine if these services reduce the
number of referrals for special education
and related services. Requiring LEAs to
collect and report data on the
implementation of early intervening
services beyond what is specifically
required in section 613(f)(4) of the Act
is unnecessary and would place
additional paperwork burdens on LEAs
and SEAs.
Changes: None.
Comment: Some commenters
requested that the meaning of the terms
‘‘subsequently’’ and ‘‘preceding two
year period’’ in § 300.226(d)(2) be
clarified.
Discussion: Section 300.226(d)(2),
consistent with section 613(f)(4)(B) of
the Act, requires LEAs to report on the
number of children who are provided
early intervening services who
subsequently receive special education
and related services under Part B of the
Act during the preceding two years to
determine if the provision of these
services reduces the number of overall
referrals for special education and
related services. The Department
intends for LEAs to report on children
who began receiving special education
services no more than two years after
they received early intervening services.
For the preceding two year period, the
LEA would report on the number of
children who received both early
intervening services and special
education services during those two
years.
Changes: None.
Direct Services by the SEA (§ 300.227)
Comment: Some commenters
requested that the regulations specify
that SEAs providing direct services
must make placement decisions based
on the child’s individual needs and
must comply with all requirements for
providing FAPE in the LRE.
Discussion: We do not believe any
changes to the regulations are necessary
because § 300.227(b), consistent with
section 613(g)(2) of the Act, clearly
states that SEAs providing direct special
education and related services must do
so in accordance with Part B of the Act.
Accordingly, the special education and
related services provided under
§ 300.227 would be subject to the
placement requirements in § 300.116
and the LRE requirements in § 300.114
and section 612(a)(5) of the Act.
Changes: None.
Disciplinary Information (§ 300.229)
Comment: One commenter
recommended clarifying that not all
student disciplinary records can be
transmitted by public agencies.
Discussion: We believe that § 300.229
is clear that not all student disciplinary
records can be transmitted by public
agencies. Section 300.229(a) provides
that public agencies can transmit
disciplinary information on children
with disabilities only to the extent that
the disciplinary information is included
in, and transmitted with, the student
records of nondisabled children. Section
300.229(b) specifies the disciplinary
information that may be transmitted,
which includes a description of any
behavior engaged in by the child that
required disciplinary action, a
description of the disciplinary action
taken, and any other information that is
relevant to the safety of the child and
other individuals involved with the
child.
Changes: None.
Comment: Some commenters
requested that the required transmission
of student records include both the
child’s current IEP and any statement of
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current or previous disciplinary action
related to weapons, drugs, or serious
bodily injury that has been taken against
the child.
Discussion: It is important to clarify
that the Act does not require the
transmission of student disciplinary
information when the child transfers
from one school to another. Rather,
section 613(i) of the Act allows each
State to decide whether to require its
public agencies to include disciplinary
statements in student records and
transmit such statements with student
records when a child transfers from one
school to another. The State’s policy on
transmitting disciplinary information
must apply to both students with
disabilities and students without
disabilities.
Section 300.229(b) provides that if a
State requires its public agencies to
include disciplinary statements in
student records, these disciplinary
statements may include a description of
any behavior engaged in by the child
that required disciplinary action, a
description of the disciplinary action
taken, and any other information that is
relevant to the safety of the child and
other individuals involved with the
child; disciplinary actions taken against
a child related to weapons, drugs, or
serious bodily injury also could be
included in these descriptions. If a State
adopts such a policy, § 300.229(c)
requires that the transmission of any of
the child’s student records include the
child’s current IEP and any statement of
current or previous disciplinary action
that has been taken against the child.
Therefore, with regard to the
commenters’ request that the
transmission of student records include
any statement of current or previous
disciplinary action related to weapons,
drugs, or serious bodily injury that has
been taken against the child, this
information would be transmitted only
to the extent that disciplinary
statements are included in, and
transmitted with, the student records of
nondisabled children.
Changes: None.
Comment: One commenter
recommended requiring that the
transmission of a student’s records
include functional behavioral
assessments and behavior intervention
plans.
Discussion: Any existing functional
behavioral assessments and behavioral
intervention plans would be part of the
materials that must be transmitted
under § 300.323(g). In addition, if a
State requires student records to include
disciplinary information and the child
transfers from one school to another,
§ 300.229(c) requires that the
transmission of any of the child’s
student records include the child’s
current IEP. Functional behavioral
assessments and behavior intervention
plans are not required components of
the IEP under § 300.320. However, if a
State considers functional behavioral
assessments and behavior intervention
plans to be part of a student’s IEP, this
information would be required to be
transmitted when the child transfers
from one school to another, consistent
with § 300.229(c).
Changes: None.
Subpart D—Evaluations, Eligibility
Determinations, Individualized
Education Programs, and Educational
Placements
Parental Consent
Parental Consent (§ 300.300)
Comment: A few commenters noted
that the terms, ‘‘consent,’’ ‘‘informed
consent,’’ ‘‘agree,’’ and ‘‘agree in
writing’’ are used throughout the
regulations and stated that differences
between the terms should be clarified.
One commenter recommended that the
regulations include the term ‘‘informed’’
every time the term ‘‘parental consent’’
is used.
Discussion: The use of these terms
throughout the regulations is consistent
with their use in the Act. The definition
of consent in § 300.9 includes the
requirement that a parent be fully
informed of all information relevant to
the activity for which consent is sought.
The definition also requires that a
parent agree in writing to carrying out
the activity for which the parent’s
consent is sought. Therefore, whenever
the term ‘‘consent’’ is used in these
regulations, it means that the consent is
both ‘‘informed’’ and ‘‘written.’’
Similarly, the terms ‘‘consent,’’
‘‘informed consent,’’ ‘‘parental
consent,’’ and ‘‘written informed
consent,’’ as used in these regulations,
all are intended to have the same
meaning.
The meaning of the terms ‘‘agree’’ or
‘‘agreement’’ is not the same as
‘‘consent.’’ ‘‘Agree’’ or ‘‘agreement’’
refer to an understanding between the
parent and the LEA about a particular
question or issue. There is no
requirement that an agreement be in
writing unless specifically stated in the
Act and regulations.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify what the required safeguards are
if parents elect to receive notices
electronically or provide electronic or
digital signatures for consents, such as
consent for an initial evaluation.
Discussion: Section 300.505,
consistent with section 615(n) of the
Act, permits parents to elect to receive
prior written notices, procedural
safeguards notices, and due process
complaint notices by an electronic mail
communication, if the public agency
makes that option available. The Act
does not specify documentation
requirements if the public agency makes
the electronic notice delivery option
available to parents, and we believe that
this is a matter that is best left to States
and LEAs that choose to use the
electronic communication option.
In addition, States that wish to utilize
electronic or digital signatures for
consent may do so if they choose.
Consent under § 300.9(b) requires a
parent to understand and agree in
writing to the carrying out of the activity
for which the parent’s consent is sought.
Therefore, States that permit the use of
electronic or digital signatures for
parental consent would need to take the
necessary steps to ensure that there are
appropriate safeguards to protect the
integrity of the process.
Changes: None.
Parental Consent for Initial Evaluation
(§ 300.300(a))
Comment: One commenter
recommended that the regulations
require a public agency to conduct the
following activities to obtain parental
consent for an initial evaluation:
identify the child’s parents and their
address and phone number; contact
social service providers for children
who are wards of the State; provide
parents with copies of the Act; and
inform parents of the consequences of
withholding consent.
Discussion: The regulations already
provide sufficient safeguards regarding
consent, and we believe that the
changes requested would be unduly
burdensome. As a matter of practice,
public agencies begin the process of
obtaining parental consent by
identifying the parent and contacting
the parent by phone or through written
correspondence, or speaking to the
parent in parent-teacher conferences.
We do not believe it is necessary to
regulate to require public agencies to
contact social service agencies to obtain
consent for children who are wards of
the State because it may not always be
necessary or appropriate, for example,
when a child who is a ward of the State
has a foster parent who can act as a
parent, consistent with § 300.30(a)(2).
Additionally, section 614(a)(1)(D)(iii)(I)
of the Act provides that the public
agency must make reasonable efforts to
obtain informed parental consent for
children who are wards of the State and
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not residing with the parent. Public
agencies are in the best position to
determine, on a case-by-case basis,
when it is necessary to contact social
service providers to assist in obtaining
parental consent for children who are
wards of the State.
We also do not believe that additional
regulations are necessary to require
public agencies to inform parents of the
consequences of withholding consent
for an initial evaluation or to provide
parents with copies of the Act. Section
300.503, consistent with section
615(c)(1) of the Act, already requires
that prior written notice be provided to
parents before an initial evaluation,
which will explain, among other things,
why the agency is proposing to conduct
the evaluation; a description of each
evaluation procedure, assessment,
record, or report the agency used as a
basis for proposing to conduct the
evaluation; and sources for the parent to
contact to obtain assistance in
understanding the provisions under the
Act. Additionally, § 300.504(a)(1),
consistent with section 615(d)(1)(A)(i) of
the Act, requires the public agency to
provide a copy of the procedural
safeguards to parents upon initial
referral for an evaluation, which
provides information about parents’
rights under the Act. Although we do
not believe the recommended
requirements should be added to the
regulations, we will add the cross-
references to the consent requirements
in § 300.9, and the requirements for
prior written notice and the procedural
safeguards notice in §§ 300.503 and
300.504, respectively, to § 300.300(a).
Changes: We have added cross-
references to §§ 300.9, 300.503, and
300.504 in § 300.300(a).
Comment: One commenter
recommended revising
§ 300.300(a)(1)(ii) and using the
statutory language in section
614(a)(1)(D)(i) of the Act to require that
parental consent for evaluation may not
be construed as consent for placement
for receipt of special education and
related services.
Discussion: We believe it is
appropriate to use the phrase, ‘‘initial
provision of services’’ in
§ 300.300(a)(1)(ii), rather than the
statutory phrase ‘‘consent for placement
for receipt of special education and
related services,’’ in section
614(a)(1)(D)(i) of the Act to clarify that
consent does not need to be sought
every time a particular service is
provided to the child. In addition, the
distinction between consent for an
initial evaluation and consent for initial
services is more clearly conveyed in
§ 300.300(a)(1)(ii) than in the statutory
language, and is consistent with the
Department’s longstanding position that
‘‘placement’’ refers to the provision of
special education services, rather than a
specific place, such as a specific
classroom or specific school. We,
therefore, decline to change the
regulation, as requested by the
commenter.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify whether the reference to
‘‘parent’’ in § 300.300(a)(2) means
‘‘biological or adoptive parent’’ or
anyone who meets the definition of
parent in § 300.30.
Discussion: Section 300.300(a)(2)
applies to circumstances in which the
child is a ward of the State and is not
residing with the child’s parents, and
requires the public agency to make
reasonable efforts to obtain parental
consent from the parent for an initial
evaluation. The reference to ‘‘parent,’’ in
this context, refers to anyone who meets
the definition of parent in § 300.30,
consistent with section 614(a)(1)(D)(iii)
of the Act.
Changes: None.
Comment: One commenter requested
clarification on the interplay between
new § 300.300(a)(2) (proposed
§ 300.300(a)(2)(ii)), regarding
circumstances when the public agency
is not required to obtain informed
parental consent for an initial
evaluation of a child who is a ward of
the State, and the requirements in
§ 300.519(c), which require that a
surrogate parent be appointed for a
child who is a ward of the State.
Discussion: New § 300.300(a)(2)
(proposed § 300.300(a)(2)(ii)), consistent
with section 614(a)(1)(D)(iii)(II) of the
Act, creates an exception to the parental
consent requirements for initial
evaluations for a child who is a ward of
the State who is not residing with the
child’s parent if the public agency has
made reasonable efforts to obtain the
parent’s consent, but is unable to
discover the whereabouts of the parent,
the rights of the parent of the child have
been terminated under State law, or the
rights of the parent to make educational
decisions have been subrogated by a
judge under State law and consent for
the initial evaluation has been given by
an individual appointed by the judge to
represent the child. New § 300.300(a)(2)
(proposed § 300.300(a)(2)(ii)) permits
the public agency to proceed with the
child’s initial evaluation without first
obtaining the requisite parental consent
only in the circumstances detailed in
§ 300.300(a)(2). Therefore, when one or
more of the circumstances in
§ 300.300(a)(2) are met and a surrogate
has not yet been appointed, the public
agency need not postpone the child’s
evaluation to await the appointment of
a surrogate. This is appropriate because
in situations involving requests for
initial evaluations, in most cases a
surrogate parent has not yet been
appointed and delaying an initial
evaluation until after a surrogate is
appointed and has given consent may
not be in the best interests of the child.
In contrast, in most situations involving
consent for reevaluation, a surrogate
parent should already have been
appointed under § 300.519 if no parent
can be identified, the public agency has
been unable to locate a parent, the child
is a ward of the State or the child is an
unaccompanied homeless youth.
Therefore, we do not think it is
appropriate to apply the provisions in
§ 300.300(a)(2) to reevaluation
situations.
Nothing in this section is intended to
relieve a public agency of its obligation
to ensure that the rights of a child who
is a ward of the State are protected
through the appointment of a surrogate
parent in accordance with the
procedures in § 300.519(b) through (h).
Once a surrogate parent is appointed in
accordance with the procedures in
§ 300.519(b) through (h), that person
assumes the responsibilities of a parent
under the Act, and the public agency
must seek consent from that individual.
Moreover, if a child has a foster
parent who can act as a parent, as
defined in § 300.30(a)(2), or a person
such as a grandparent or step-parent
who is legally responsible for the child’s
welfare, and that person’s whereabouts
are known or the person can be located
after reasonable efforts by the public
agency, parental consent would be
required for the initial evaluation.
We believe that the phrase ‘‘except as
provided in paragraph (a)(2) of this
section (regarding consent for wards of
the State)’’ in proposed § 300.300(a)(1)(i)
may incorrectly convey that a public
agency is not required to make
reasonable efforts to obtain informed
consent from the parent of a child who
is a ward of the State, or from a
surrogate parent, foster parent, or other
person meeting the definition of a
parent in § 300.30(a). Therefore, we will
remove the phrase. To clarify that the
provisions in § 300.300(a)(2) apply only
to initial evaluations, and not
reevaluations, we will modify both
§§ 300.300(a)(2) and (c)(1).
Changes: We have removed the
phrase ‘‘except as provided in paragraph
(a)(2) of this section (regarding consent
for wards of the State)’’ in
§ 300.300(a)(1)(i), for clarity. We have
also added introductory language to
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§ 300.300(a)(2) to specify that it applies
only to initial evaluations, and we have
changed the cross-reference in
§ 300.300(c)(1) to refer to
§ 300.300(a)(1).
Comment: One commenter
recommended that the regulations
specify the minimum steps that public
agencies must take to obtain consent for
initial evaluations from parents of
children who are wards of the State.
Another commenter recommended that
the regulations define ‘‘reasonable
efforts,’’ as used in new
§ 300.300(a)(1)(iii) (proposed
§ 300.300(a)(2)(i)). One commenter
recommended requiring LEAs to
maintain documentation of their efforts
to obtain parental consent for initial
evaluations, including attempts to
obtain consent by telephone calls, visits
to the parent’s home, and
correspondence in the parent’s native
language. Several commenters requested
that the requirements in current
§ 300.345(d) be included in new
§ 300.300(a)(2)(i) (proposed
§ 300.300(a)(2)(ii)(A)). Current
§ 300.345(d) requires a public agency to
document the specific steps it has taken
to arrange a mutually convenient time
and place for an IEP Team meeting (e.g.,
detailed records of telephone calls, any
correspondence sent to the parents,
visits made to the parent’s home or
place of employment) and it is cross-
referenced in current § 300.505(c)(2) to
identify documentation of the
reasonable measures that an LEA took to
obtain consent for a reevaluation.
Discussion: We believe it is important
to emphasize that a public agency must
make reasonable efforts to obtain
informed consent from the parent for an
initial evaluation to determine whether
the child is a child with a disability.
This includes the parent of a child who
is a ward of the State. Therefore, we will
add a new paragraph (a)(1)(iii) to
§ 300.300 to make clear that a public
agency must make reasonable efforts to
obtain informed parental consent
whenever a public agency seeks to
conduct an initial evaluation of a child
to determine whether the child is a
child with a disability. This requirement
applies to all children including
children who are wards of the State.
With the addition of this new
paragraph, the requirement for public
agencies to make reasonable efforts to
obtain informed consent from the parent
for an initial evaluation for children
who are wards of the State in
§ 300.300(a)(2)(i) is no longer necessary
and will be removed.
We also agree with the commenters
that a public agency should document
and make the same reasonable efforts to
obtain consent for an initial evaluation
from a parent, including a parent of a
child who is a ward of the State, that are
required when a public agency attempts
to arrange a mutually convenient time
and place for an IEP Team meeting (e.g.,
detailed records of telephone calls, any
correspondence sent to the parents,
visits made to the parent’s home or
place of employment), and will add a
new paragraph (d)(5) to make this clear.
We recognize that the statute uses both
‘‘reasonable measures’’ and ‘‘reasonable
efforts’’ when referring to a public
agency’s responsibility to obtain
parental consent for an evaluation,
initial services, and a reevaluation. We
believe these two phrases, when used in
this context, have the same meaning
and, therefore, have used ‘‘reasonable
efforts’’ throughout the regulations
related to parental consent for
consistency.
Changes: We have added a new
paragraph (a)(1)(iii) to § 300.300 to
require a public agency to make
reasonable efforts to obtain informed
parental consent for an initial
evaluation. We will remove
§ 300.300(a)(2)(i) because it is redundant
with the new paragraph. Section
300.300(a)(2) has been reformatted
consistent with the removal of
paragraph (a)(2)(i). We also have added
a new paragraph (d)(5) to § 300.300 to
require a public agency to document its
attempts to obtain parental consent
using the procedures in § 300.322(d).
Comment: A few commenters asked
whether a public agency must obtain
consent for an initial evaluation from
the biological or adoptive parent of the
child when there is another person who
meets the definition of parent in
§ 300.30. Another commenter
recommended the regulations clarify
whether a public agency must seek
informed consent for an initial
evaluation from a biological or adoptive
parent when a surrogate parent has
already been appointed.
Discussion: Section 300.30(b)(1)
provides that, when more than one
party is qualified to act as a parent, the
biological or adoptive parent, when
attempting to act as the parent under the
Act, must be presumed to be the parent,
unless the biological or adoptive parent
does not have legal authority to make
educational decisions for the child.
If a surrogate parent already has been
appointed because the public agency,
after reasonable efforts, could not locate
a parent, the public agency would not
have to again attempt to contact other
individuals meeting the definition of
parent in § 300.30 to seek consent.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify whether the qualifications of a
judge-appointed surrogate parent in
§ 300.519(c) would apply to new
§ 300.300(a)(2)(iii) (proposed
§ 300.300(a)(2)(ii)(C)), regarding consent
for an initial evaluation for a child who
is a ward of the State.
Discussion: Section
614(a)(1)(D)(iii)(II)(cc) of the Act, which
is the basis for new § 300.300(a)(2)(iii)
(proposed § 300.300(a)(2)(ii)(C)),
provides that the public agency is not
required to obtain informed consent
from the parent for an initial evaluation
of a child who is a ward of the State and
is not living with the child’s parent if
the rights of the parent to make
educational decisions have been
subrogated by a judge in accordance
with State law and consent for an initial
evaluation has been given by an
individual appointed by the judge to
represent the child. This is a special
situation, limited only to children who
are wards of the State not living with a
parent and limited only to the situation
of seeking consent for an initial
evaluation. A person appointed under
this provision is not a surrogate parent
as that term is used in these regulations.
The requirements of § 300.519(c) do not
apply to persons authorized to provide
consent for initial evaluations under
this provision.
It is noteworthy that the provision in
new § 300.300(a)(2)(iii) (proposed
§ 300.300(a)(2)(ii)(C)) is only a limited
exception to the requirement to obtain
informed parental consent for an initial
evaluation. Most children will not have
a surrogate parent already appointed at
this stage of their involvement with
services under the Act. However, if a
child has a surrogate parent appointed
under § 300.519(c), and the rights of that
person to make educational decisions
for the child have not been subrogated
by a judge under State law, the public
agency would have to seek informed
parental consent from that person.
Changes: None.
Comment: One commenter
recommended revising § 300.300(a)(3) to
prohibit a public agency from pursuing
an initial evaluation without parental
consent. Another commenter
recommended requiring a public agency
to use the due process procedures to
conduct an initial evaluation if the
parent does not provide consent and the
public agency believes that the child
would not otherwise receive needed
services. A few commenters stated that
§ 300.300(a)(3) is inconsistent with
statutory language and opposed
language stating that the public agency
may, but is not required to, pursue the
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initial evaluation of a child whose
parents have refused to consent or failed
to respond to a request for consent.
Discussion: Section 300.300(a)(3) is
consistent with section 614(a)(1)(D)(ii)
of the Act, which states that a public
agency may pursue the initial
evaluation of a child using the
procedural safeguards if a parent does
not provide consent or fails to respond
to a request to provide consent for an
initial evaluation. Consistent with the
Department’s position that public
agencies should use their consent
override procedures only in rare
circumstances, § 300.300(a)(3) clarifies
that a public agency is not required to
pursue an initial evaluation of a child
suspected of having a disability if the
parent does not provide consent for the
initial evaluation. State and local
educational agency authorities are in the
best position to determine whether, in a
particular case, an initial evaluation
should be pursued.
Changes: None.
Comment: A few commenters
recommended clarifying the parental
consent requirements for an initial
evaluation. Many commenters
recommended that LEAs maintain
documentation that the parent has been
fully informed and understands the
nature and scope of the evaluation. One
commenter recommended that the
regulations require that informed
parental consent for an initial
evaluation be documented in writing.
Discussion: Section 300.300(a)(1)(i),
consistent with section 614(a)(1)(D)(i)(I)
of the Act, is clear that the public
agency proposing to conduct an initial
evaluation to determine if a child
qualifies as a child with a disability
under § 300.8 must obtain consent from
the parent of the child before
conducting the evaluation. Consent, as
defined in § 300.9, means that the
parent has been fully informed in his or
her native language, or other mode of
communication, and understands and
agrees in writing to the initial
evaluation. The methods by which a
public agency seeks to obtain parental
consent for an initial evaluation (beyond
the requirement that the public agency
use the parent’s native language or
mode of communication) and how a
public agency documents its efforts to
obtain the parent’s written consent are
appropriately left to the discretion of
SEAs and LEAs.
Changes: None.
Comment: A few commenters
recommended that the regulations
include language clarifying that a public
agency is not in violation of the FAPE
requirements if the public agency does
not pursue an initial evaluation when
the parent refuses to consent or fails to
respond to a request for consent. One
commenter recommended adding
language to the regulations to clarify
that if a parent refuses to consent to an
initial evaluation, the child would not
be considered to be a child with a
disability.
Discussion: While we agree that a
public agency would not be in violation
of the FAPE requirements for failing to
pursue an initial evaluation through due
process, we do not believe that a change
to the regulations is necessary. The
FAPE requirements in §§ 300.101
through 300.112, consistent with section
612(a) of the Act, apply only to a child
with a disability, as defined in § 300.8
and section 602(3) of the Act. A child
would not be considered a child with a
disability under the Act if the child has
not been evaluated in accordance with
§§ 300.301 through 300.311 and
determined to have one of the
disabilities in § 300.8(a), and because of
that disability, needs special education
and related services.
Further, § 300.534(c)(1), consistent
with section 615(k)(5)(C) of the Act,
provides that a public agency would not
be deemed to have knowledge that a
child is a child with a disability, for
disciplinary purposes, if a parent has
not allowed the child to be evaluated or
refuses services under the Act.
Changes: None.
Comment: A few commenters
recommended that the regulations
clarify that the public agency is not in
violation of the child find requirements
if the public agency does not pursue an
initial evaluation when the parent
refuses to consent or fails to respond to
a request for consent.
Discussion: We agree that States and
LEAs should not be considered to be in
violation of their obligation to locate,
identify, and evaluate children
suspected of being children with
disabilities under § 300.111 and section
612(a)(3) of the Act if they decline to
pursue an evaluation (or reevaluation)
to which a parent has refused or failed
to consent. We will add language to the
regulations to make this clear.
Changes: We have added language to
§ 300.300(a)(3) and (c)(1) to clarify that
a State or public agency does not violate
the requirements of § 300.111 and
§§ 300.301 through 300.311 if it declines
to pursue an evaluation or reevaluation
to which a parent has refused or failed
to consent.
Comment: A few commenters
recommended that the regulations
define ‘‘fails to respond’’ as used in
§ 300.300(a)(3).
Discussion: Section 300.300(a)(3),
consistent with section 614(a)(1)(D)(ii)(I)
of the Act, states that if a parent of a
child enrolled in public school, or
seeking to be enrolled in public school,
does not provide consent for an initial
evaluation, or the parent ‘‘fails to
respond’’ to a request to provide
consent, the public agency may, but is
not required to, pursue the initial
evaluation of the child by utilizing the
procedural safeguards, if appropriate,
except to the extent inconsistent with
State law relating to such parental
consent. The meaning of ‘‘fails to
respond,’’ in this context, is generally
understood to mean that, in spite of a
public agency’s efforts to obtain consent
for an initial evaluation, the parent has
not indicated whether the parent
consents or refuses consent to the
evaluation. We believe the meaning is
clear in the regulations and, therefore,
decline to define the phrase in these
regulations.
Changes: None.
Comment: One commenter
recommended that the regulations
include language to require a public
agency to provide the following
information (in the parent’s native
language) to a parent who refuses
consent or fails to respond to a request
for consent for an initial evaluation: The
reasons why the public agency believes
the child may be eligible for special
education; confirmation that the
requested evaluation and any
subsequent special education services
will be provided at no cost and
scheduled in cooperation with parents
with transportation provided; The
nature of the evaluations and
credentials of evaluators; the types of
special education services that the child
could receive if eligible; and the risks of
delaying an evaluation.
Discussion: The prior written notice
requirements in § 300.503, consistent
with section 615(c)(1) of the Act,
address many of the concerns raised by
the commenter. Consistent with
§ 300.503(b) and (c), prior notice must
be given to the parents when a public
agency proposes to evaluate a child and
would explain why the public agency
believes the child needs an evaluation
to determine whether the child is a
child with a disability under the Act;
describe each evaluation procedure,
assessment, record, or report the agency
used as a basis for proposing that the
child needs an evaluation; explain that
the parents have protection under the
Act’s procedural safeguards; provide
sources for parents to contact to obtain
assistance in understanding the
provisions of the Act; and describe other
factors that are relevant to the agency’s
proposal to conduct the evaluation of
the child.
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In addition to the prior written notice,
§ 300.504(a)(1), consistent with section
615(d)(1)(A)(i) of the Act, requires that
a copy of the procedural safeguards
notice be given to parents upon an
initial referral or parental request for an
evaluation. Consistent with § 300.503(c)
and § 300.504(d), the prior written
notice and the procedural safeguards
notice, respectively, must be written in
language understandable to the general
public and be provided in the native
language of the parent or other mode of
communication used by the parent,
unless it is clearly not feasible to do so.
As a matter of practice, public
agencies provide parents with general
information about the special education
and related services that are available to
eligible children with disabilities and
inform the parent that the public
agency’s evaluation is provided at no
cost. We believe that this information,
along with the information provided in
the prior written notice and procedural
safeguards notice, will help a parent
determine whether there are any risks of
delaying an evaluation. Therefore, we
do not believe additional regulations are
necessary.
With regard to information regarding
an evaluator’s credentials, we do not
believe it is necessary to require public
agencies to provide this information to
parents because § 300.304(c)(1)(v) and
section 614(b)(3)(A)(iv) of the Act
require the public agency to ensure that
the evaluation is conducted by trained
and knowledgeable personnel.
If transportation to an evaluation
outside the school environment is
necessary, the public agency would
have to provide it, as a part of its
obligation to ensure that all eligible
children are located, identified, and
evaluated. However, we do not believe
that the parents need to be notified of
this fact because, in most cases, children
can be evaluated at school during the
school day and there is no requirement
that a parent be present during the
evaluation. Thus, requiring that all
parents be notified about transportation
to evaluations would be unnecessarily
burdensome.
Changes: None.
Parental Consent for Services
(§ 300.300(b))
Comment: A few commenters
requested that the Department address
situations in which a child is receiving
special education services and a parent
wants to withdraw consent or refuse
services because the parent believes the
child no longer needs special education
services. A few commenters stated that
public agencies should not be allowed
to use the procedural safeguards to
continue to provide special education
and related services to a child whose
parents withdraw consent for the
continued provision of special
education and related services.
Discussion: We are considering the
question of whether parents who
previously consented to the initiation of
special education services should have
the right to subsequently remove their
child from special education services.
We anticipate publishing a notice of
proposed rulemaking in the near future
seeking public comment on this issue.
Changes: None.
Comment: One commenter
recommended changing the regulations
to allow the public agency to provide
services in anticipation of receiving
parental consent when the public
agency initiates a due process hearing to
obtain parental consent for initial
services.
Discussion: To implement the change
requested by the commenter would be
inconsistent with the Act. Section
614(a)(1)(D)(i)(II) of the Act requires a
public agency to obtain informed
parental consent before providing initial
special education and related services to
a child. In addition, a public agency
may not initiate a due process hearing
to provide special education and related
services to a child when a parent refuses
to consent to initial services, consistent
with section 614(a)(1)(D)(ii)(II) of the
Act. A child whose parent has refused
consent for initial services would not be
provided special education and related
services and would continue to receive
general education services.
Changes: None.
Comment: A few commenters
requested that the regulations clarify the
meaning of ‘‘initial provision of
services’’ as used in § 300.300(b).
Discussion: We believe § 300.300(b) is
clear that the ‘‘initial provision of
services’’ means the first time a parent
is offered special education and related
services after the child has been
evaluated in accordance with the
procedures in §§ 300.301 through
300.311, and has been determined to be
a child with a disability, as defined in
§ 300.8.
Changes: None.
Comment: One commenter requested
that the regulations permit mediation
when a parent of a child refuses to
consent to the provision of special
education and related services. A few
commenters recommended revising the
regulations to require a public agency to
use the due process procedures, or other
alternative dispute resolution
procedures, if a parent refuses to
consent to initial services.
Discussion: Section 300.300(b)(2),
consistent with section
614(a)(1)(D)(ii)(II) of the Act, is clear
that if a parent fails to respond or
refuses to consent to initial services, the
public agency may not use the
mediation procedures in § 300.506 or
the due process procedures in
§§ 300.507 through 300.516 in order to
obtain agreement or a ruling that the
services may be provided to a child.
Changes: None.
Comment: One commenter stated that
additional documentation is necessary if
a parent does not provide consent for
initial services and suggested adding
language to the regulations to require
public agencies to document the steps
they have taken to obtain parental
consent for initial services and to
maintain them in the child’s permanent
file. Another commenter recommended
requiring that the parent’s refusal to
consent for initial services occur during
a properly convened IEP Team meeting.
The commenter also suggested requiring
that the documentation of a parent’s
refusal to provide consent include
evidence that all options waived by the
parent have been explained, that the
parent has refused services, and the
reasons for the parent’s refusal.
Discussion: We believe that a public
agency must make reasonable efforts to
obtain informed consent from the parent
for the initial provision of special
education and related services to the
child and will make this clear in
§ 300.300(b). We noted in our
discussion regarding the reasonable
efforts that a public agency must make
to obtain parental consent for an initial
evaluation to determine whether the
child is a child with a disability, that we
added a new paragraph (d)(5) to
§ 300.300 that provides that to meet the
reasonable efforts requirement, a public
agency must document its attempts to
obtain consent using the procedures in
§ 300.322(d). We believe a public agency
should make these same reasonable
efforts to obtain parental consent for
initial services, and will include this in
new § 300.300(d)(5).
We do not believe it is necessary or
appropriate to require a public agency to
maintain additional documentation,
beyond that required in new
§ 300.300(d)(5), of a parent’s refusal to
provide consent for initial services or to
prescribe where this documentation
must be obtained or maintained. Public
agencies understand the importance of
properly documenting a parent’s refusal
to consent to the initial provision of
special education and related services
and are in the best position to determine
any additional documentation that is
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necessary and where to obtain and
maintain such documentation.
Changes: We have added a new
paragraph (b)(2) to § 300.300 to clarify
that the public agency must make
reasonable efforts to obtain informed
consent from the parent for the initial
provision of special education and
related services to the child. Subsequent
paragraphs have been renumbered
accordingly. We also have included a
reference to new § 300.300(b)(2) in new
§ 300.300(d)(5) that requires a public
agency to document its attempts to
obtain consent using the procedures in
§ 300.322(d).
Comment: One commenter
recommended adding language to
clarify that if a parent does not consent
to initial services, the child would be
considered a part of the general
education enrollment and subject to the
same disciplinary provisions as
nondisabled children.
Discussion: The language requested
by the commenter is not necessary
because section 615(k)(5)(C) of the Act
already provides for situations in which
a parent refuses consent for initial
services and the child subsequently
engages in behavior that violates a code
of student conduct. Section
300.534(c)(1), consistent with section
615(k)(5)(C) of the Act, provides that a
public agency would not be deemed to
have knowledge that a child is a child
with a disability if the parent of the
child has not allowed an evaluation of
the child pursuant to §§ 300.301
through 300.311, or has refused services
under this part. Therefore, such a child
would not be able to assert any of the
protections provided to children with
disabilities under the Act, and would be
subject to the same disciplinary
procedures as any other child.
Changes: None.
Comment: A few commenters
recommended requiring a public agency
to refer parents who do not provide
consent for initial services to the State’s
PTI center so that the parents can be
advised of the benefits of special
education and their rights and
responsibilities under the Act.
Discussion: We do not believe it
would be appropriate to require a public
agency to refer parents to a particular
agency or program. Such matters are
best left to States and LEAs to decide
and should not be included in the
regulations.
Changes: None.
Comment: One commenter
recommended that the regulations
require a public agency to report a
parent for suspected child abuse or
neglect to the appropriate agency if the
public agency believes that the parent’s
failure or refusal to consent to initial
services meets the definition of child
abuse or neglect under the State’s
mandatory reporting law.
Discussion: It is not necessary to
include the requirement recommended
by the commenter in these regulations,
as the issue would already be addressed
by State law, if under State law a
parent’s failure to consent to initial
services under the Act was considered
child abuse or neglect.
Changes: None.
Comment: Numerous commenters
expressed concern about new
§ 300.300(b)(4)(ii) (proposed
§ 300.300(b)(3)(ii)), which provides that
if a parent fails to consent for initial
services or refuses to respond to a
request for consent, the public agency is
not required to convene an IEP Team
meeting or develop an IEP for the child.
A few commenters stated that this
should be permitted only when a parent
refuses services, but not when a parent
fails to respond to a request for consent
for initial services. A few commenters
stated that the regulations should be
revised to clarify that this applies only
to subsequent IEP Team meetings, not
the initial IEP Team meeting. One
commenter recommended revising the
regulations to require an IEP Team
meeting to be held and an IEP
developed to provide a basis for
informed consent.
Discussion: New 300.300(b)(4)(ii)
(proposed § 300.300(b)(3)(ii)) follows
the specific language in section
614(a)(1)(D)(ii)(III)(bb) of the Act and
reflects the new provision in the Act
that relieves public agencies of any
potential liability for failure to convene
an IEP Team meeting or develop an IEP
for a child whose parents have refused
consent or failed to respond to a request
for consent to the initial provision of
special education and related services. It
does not, however, prevent a public
agency from convening an IEP Team
meeting and developing an IEP for a
child as a means of informing the parent
about the services that would be
provided with the parent’s consent.
Changes: None.
Comment: A few commenters
questioned how a parent could be
adequately informed of the services the
parent is refusing if the public agency is
not required to develop an IEP when the
parent refuses to consent to the initial
provision of special education and
related services.
Discussion: We understand the
commenters’ concern that a parent of a
child with a disability who refuses to
consent to the provision of special
education and related services may not
fully understand the extent of the
special education and related services
their child would receive without the
development of an IEP for their child.
However, we do not view the consent
provisions of the Act as creating the
right of parents to consent to each
specific special education and related
service that their child receives. Instead,
we believe that parents have the right to
consent to the initial provision of
special education and related services.
‘‘Fully informed,’’ in this context,
means that a parent has been given an
explanation of what special education
and related services are and the types of
services that might be found to be
needed for their child, rather than the
exact program of services that would be
included in an IEP.
Changes: None.
Comment: One commenter stated that
the regulations should include sanctions
for parents who repeatedly fail to
respond to requests for consent from
public agencies, such as paying the
costs incurred by agencies attempting to
obtain consent.
Discussion: The Act does not
authorize sanctions against parents who
fail to respond to requests for consent.
Changes: None.
Parental Consent for Reevaluations
(§ 300.300(c))
Comment: Several commenters
recommended allowing public agencies
to use the due process procedures to
override a parent’s refusal to consent to
a reevaluation.
Discussion: Override of parental
refusal to consent to a reevaluation is
already addressed in the regulations.
Section 300.300(c) states that each
public agency must obtain informed
parental consent in accordance with
§ 300.300(a)(1) prior to conducting any
reevaluation of a child with a disability.
Section 300.300(a)(3) allows a public
agency to override parental refusal to
consent to an initial evaluation by
utilizing the mediation procedures
under § 300.506 or the due process
procedures under §§ 300.507 through
300.516. The cross-reference in
§ 300.300(c)(1)(i) to the provision in
§ 300.300(a)(1) provides the basis for
allowing a public agency to override the
parent’s refusal of consent to a
reevaluation. However, we believe it is
important to state this more directly and
will, therefore, add language to
§ 300.300(c)(1) to clarify that if a parent
refuses to consent to a reevaluation, the
public agency may, but is not required
to, pursue the reevaluation by using the
procedural safeguards in subpart E of
this part.
Changes: We have restructured
§ 300.300(c)(1) and added a new
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§ 300.300(c)(1)(ii) to clarify that a public
agency may, but is not required to,
pursue a reevaluation using the
procedural safeguards.
Comment: One commenter requested
that the regulations clarify a public
agency’s responsibilities for a
reevaluation if the agency has taken
reasonable measures to obtain consent
and the parent has failed to respond.
Discussion: We do not believe that
further clarification in the regulations is
necessary. Section 300.300(c)(2),
consistent with section 614(c)(3) of the
Act, is clear that a public agency may
conduct a reevaluation of a child with
a disability, if the public agency can
demonstrate that it has made reasonable
efforts to obtain such consent and the
child’s parent has failed to respond to
a request for consent.
Changes: None.
Comment: One commenter
recommended that the regulations
require a public agency to obtain
parental consent for any tests needed for
a reevaluation that were not used for the
initial evaluation or previous
reevaluations.
Discussion: We do not agree that a
change should be made. Section
614(c)(3) of the Act, which is
incorporated in § 300.300(c), already
requires a public agency to obtain
parental consent before conducting any
tests needed for a reevaluation,
regardless of whether the tests differ
from tests used in previous evaluations
of the child.
Changes: None.
Comment: Many commenters
recommended retaining current
§ 300.505(c)(2), which requires a public
agency to document the specific
reasonable measures it has taken to
obtain parental consent for a
reevaluation, including detailed records
of telephone calls made or attempted
and the results of those calls; copies of
any correspondence sent to the parents
and any responses received; and
detailed records of visits made to the
parents’ home or place of employment
and the results of those visits. One
commenter suggested that if the
requirements in current § 300.505(c)(2)
were not retained, the regulations
should define reasonable measures as at
least three good-faith attempts to contact
a parent. Many commenters stated that
current § 300.505(c)(2) must be retained
because it is protected by section 607(b)
of the Act, which provides that the
Secretary may not publish final
regulations that would procedurally or
substantively lessen the protections
provided to children with disabilities in
the regulations that were in effect on
July 20, 1983.
Discussion: We agree that the
requirements in current § 300.505(c)(2)
should be retained. We noted in our
discussions regarding the reasonable
efforts that a public agency must make
to obtain parental consent for an initial
evaluation and the initial provision of
services, that we added a new paragraph
(d)(5) to § 300.300 that provides that to
meet the reasonable efforts requirement,
a public agency must document its
attempts to obtain consent using the
procedures in § 300.322(d). These are
the same procedures in current
§ 300.505(c)(2). Therefore, we will
include a reference to § 300.300(c)(2)(i)
in new § 300.300(d)(5).
Changes: We included a reference to
§ 300.300(c)(2)(i) in new § 300.300(d)(5).
Other Consent Requirements
(§ 300.300(d))
Comment: Many commenters
recommended that the regulations
include language clarifying that a public
agency is not authorized to override the
lack of parental consent for an initial
evaluation for children who are home
schooled or placed in a private school
by the parents at their own expense.
One commenter recommended
removing the phrase ‘‘public school or
seeking to enroll in public school’’ in
§ 300.300(a)(3) to permit a public agency
to override lack of parental consent for
children who are home schooled or
placed in a private school by parents at
their own expense.
Discussion: We agree with the
commenters who recommended that, for
children who are home schooled or
placed in a private school by their
parents at their own expense, consent
override should not be permitted. We
will add a new paragraph (4) to
§ 300.300(d) to make this clear.
There are compelling policy reasons
why the Act’s consent override
procedures should be limited to
children who are enrolled, or who are
seeking to enroll, in public school.
Because the school district has an
ongoing obligation to educate a public
school child it suspects has a disability,
it is reasonable for a school district to
provide the parents with as much
information as possible about their
child’s educational needs in order to
encourage them to agree to the provision
of special education services to meet
those needs, even though the parent is
free, ultimately, to reject those services.
The school district is accountable for
the educational achievement of all of its
children, regardless of whether parents
refuse the provision of educationally
appropriate services. In addition,
children who do not receive appropriate
educational services may develop
behavioral problems that have a
negative impact on the learning
environment for other children.
By contrast, once parents opt out of
the public school system, States and
school districts do not have the same
interest in requiring parents to agree to
the evaluation of their children. In such
cases, it would be overly intrusive for
the school district to insist on an
evaluation over a parent’s objection. The
Act gives school districts no regulatory
authority over private schools.
Moreover, the Act does not require
school districts to provide FAPE to
children who are home schooled or
enrolled in private schools by their
parents.
Public agencies do have an obligation
to actively seek parental consent to
evaluate children attending private
schools (including children who are
home schooled, if a home school is
considered a private school under State
law) who are suspected of being
children with disabilities under the Act,
in order to properly identify the number
of private school children with
disabilities and consider those children
as eligible for equitable services under
§§ 300.132 through 300.144. However,
this obligation does not extend to
overriding refusal of parental consent to
evaluate parentally-placed private
school children.
Section 300.300(a)(3) provides that a
public agency may override parental
consent for an initial evaluation only for
children who are enrolled in public
school or seeking to be enrolled in
public school, so we are not making the
suggested change in § 300.300(a)(3).
Changes: We have added a new
paragraph (4) to § 300.300(d) to clarify
that consent override is not permitted
for children who are home schooled or
placed in private schools by their
parents.
Evaluations and Reevaluations
Initial Evaluations (§ 300.301)
Request for Initial Evaluation
(§ 300.301(b))
Comment: Several commenters
recommended that teachers and related
services providers be included as
individuals who can refer a child for an
initial evaluation. A few commenters
requested clarification as to whether
States can authorize other individuals
who are acting on behalf of a public
agency (e.g., family court, probation
officers, staff from other public
agencies) to refer a child for an initial
evaluation, and whether individuals
responsible for protecting the welfare of
a child who are not acting on behalf of
an SEA or LEA, such as physicians and
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social workers, can refer a child for an
initial evaluation.
Discussion: Section 614 (a)(1)(A) of
the Act provides that an SEA, other
State agency, or LEA shall conduct a full
and individual evaluation of a child
before the provision of special
education and related services. In
§ 300.301(a), we interpret this language
as requiring public agencies, as that
term is defined in § 300.33, to conduct
evaluations, because those are the only
agencies in the State responsible for
providing FAPE to eligible children.
The same language is used in section
614(a)(1)(B) of the Act to describe the
agencies that may initiate a request for
an initial evaluation to determine if a
child is a child with a disability. We
similarly interpret this language to be
referring to the entities that are public
agencies under § 300.33. Therefore,
§ 300.301(b) states that either a parent or
a public agency may initiate a request
for an initial evaluation. The language
does not include employees of SEAs or
LEAs (e.g., teachers and related services
providers), unless they are acting for the
SEA or LEA, or of other State agencies
(e.g., probation officers, social workers,
or staff from State agencies that are not
public agencies as defined in § 300.33).
The requirements in § 300.301(b)
pertain to the initiation of an evaluation
under §§ 300.301 through 300.305 and
should not be confused with the State’s
child find responsibilities in § 300.111
and section 612(a)(3) of the Act. The
child find requirements permit referrals
from any source that suspects a child
may be eligible for special education
and related services. Child find
activities typically involve some sort of
screening process to determine whether
the child should be referred for a full
evaluation to determine eligibility for
special education and related services.
Therefore, persons such as employees of
the SEA, LEA, or other public agencies
responsible for the education of the
child may identify children who might
need to be referred for an evaluation.
However, it is the parent of a child and
the public agency that have the
responsibility to initiate the evaluation
procedures in §§ 300.301 through
300.311 and section 614 of the Act.
Changes: None.
Comment: Several commenters stated
that the regulations should clarify that
the 60-day timeframe in § 300.301(c) to
complete an evaluation does not begin
if a parent requests an initial evaluation,
the LEA denies the request, and the
parent challenges the LEA’s decision in
a due process hearing.
Discussion: We believe the regulations
already address the commenters’
concern. Section 300.301(b) provides
that a parent may initiate a request for
an initial evaluation to determine if the
child is a child with a disability. If the
public agency agrees to conduct the
evaluation, § 300.304(a) requires the
public agency to provide notice to the
parents, in accordance with § 300.503,
that describes any evaluation
procedures that the agency proposes to
conduct. The public agency must obtain
informed consent for the evaluation,
consistent with §§ 300.9 and 300.300,
prior to conducting the evaluation. The
60-day timeframe begins when the
public agency receives the consent for
evaluation.
If, however, the public agency does
not suspect that the child has a
disability and denies the request for an
initial evaluation, the public agency
must provide written notice to the
parents, consistent with § 300.503(b)
and section 615(c)(1) of the Act, which
explains, among other things, why the
public agency refuses to conduct an
initial evaluation and the information
that was used as the basis to make that
decision. The parent may challenge
such a refusal by requesting a due
process hearing, but the timeline for
conducting the evaluation does not
begin prior to parental consent for
evaluation. A parent would not be able
to give consent under this part without
knowing what specific evaluation
procedures the public agency is
proposing to conduct.
Changes: None.
Comment: A few commenters
recommended that the regulations
clarify whether a public agency has the
right to deny a parent’s request for an
initial evaluation.
Discussion: The regulations are
sufficiently clear on this point. Section
300.503(a), consistent with section
615(b)(3) of the Act, provides that a
public agency may refuse to initiate or
change the identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child, if the
public agency provides written notice.
This includes situations in which a
public agency wishes to deny a parent’s
request for an initial evaluation. The
written notice must meet the
requirements in § 300.503(b). Thus, for
situations in which a public agency
wishes to deny a parent’s request for an
initial evaluation, the written notice
would provide, among other things, an
explanation of why the public agency
refuses to conduct an initial evaluation
and the information that was used to
make that decision. A parent may
challenge the public agency’s refusal to
conduct an initial evaluation by
requesting a due process hearing.
Changes: None.
Procedures for Initial Evaluation
(§ 300.301(c))
Comment: Numerous commenters
requested that the regulations clarify
when the 60-day timeframe for a public
agency to conduct an initial evaluation
begins. One commenter requested that
the 60-day timeframe include
completing both the evaluation and
eligibility determination.
Several commenters recommended
reducing the timeframe for evaluations
from 60 days to 30 days. Some
commenters recommended that the 60-
day timeframe be 60 school days. A few
commenters stated that the timeframe
for evaluation should be longer if
additional time is required for specific
assessments, such as behavioral
assessments or other assessments based
on scientific practices.
Discussion: It would be inconsistent
with the Act to reduce the timeframe
from 60 days to 30 days, require the 60-
day timeframe to be 60 school days,
extend the timeframe for particular
types of assessments, or require that the
60-day timeframe cover both the
evaluation and determination of
eligibility. Section 614(a)(1)(C)(i)(I) of
the Act requires an initial evaluation to
be conducted within 60 days of
receiving parental consent for the
evaluation or, if the State establishes a
timeframe within which the evaluation
must be conducted, within that
timeframe. The regulations in
§ 300.301(c) reflect this requirement.
Changes: None.
Comment: A few commenters asked
whether a State could establish a
timeframe of more than 60 days to
complete an initial evaluation. A
significant number of commenters
recommended that if a State establishes
its own timeframe within which an
evaluation must be conducted, that the
timeframe be less, but not more, than 60
days. Several commenters
recommended that if a State has its own
timeframe for evaluation, the timeframe
should be reasonable and ‘‘reasonable’’
should be defined. Some commenters
recommended that if a State’s timeframe
is greater than 60 days, the Department
should provide guidance to the State
and to parents in that State. One
commenter recommended that if a State
establishes its own timeframe, the State
must offer parents an adequate
opportunity to assert their procedural
rights.
Discussion: Section 300.301(c),
consistent with section 614(a)(1)(C)(i)(I)
of the Act, requires an initial evaluation
to be completed within 60 days of
receiving parental consent for
evaluation or, if the State establishes a
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timeframe within which the evaluation
must be conducted, within such
timeframe. The Department declines to
require that a State-established
timeframe be less than 60 days or to
place additional requirements on States
with timeframes of greater than 60 days
because the Act gives States the
authority to establish different
timeframes and imposes no restrictions
on State exercise of that authority. We
believe this is evidence of an intent to
permit States to make reasoned
determinations of the appropriate
period of time in which evaluations
should be conducted based on
particular State circumstances.
Changes: None.
Comment: Numerous commenters
requested clarification regarding the
timeframe to complete an initial
evaluation and convene the IEP Team.
A few commenters stated that the
timeframe from referral to IEP
development could be as long as 120
calendar days (30 days from referral to
consent; 60 days from consent to the
eligibility determination; and 30 days
from the eligibility determination to
development of the IEP), and
recommended that this timeframe be 60
days.
One commenter recommended that
public agencies provide consent forms
to parents promptly after a referral for
evaluation has been made so that the
child’s evaluation is not delayed. A few
commenters asked how promptly an
LEA must seek parental consent
following a referral for evaluation, and
whether an LEA can wait until
September to obtain consent if a referral
is made in June or July.
Discussion: We cannot change the
timeframe for an initial evaluation
specified in section 614(a)(1)(C) of the
Act. Section 614(a)(1)(C) of the Act
requires that an initial evaluation be
conducted within 60 days of receiving
parental consent for the evaluation, or
within the timeframe established by the
State. Section 300.323(c) is a
longstanding requirement that a meeting
be held to develop the child’s IEP
within 30 days of determining that a
child needs special education and
related services. We decline, however,
to specify the timeframe from referral
for evaluation to parental consent, or the
timeframe from the completion of an
evaluation to the determination of
eligibility, as we are not in a position to
determine the maximum number of
days that should apply to these periods
in all circumstances.
However, it has been the
Department’s longstanding policy that
evaluations be conducted within a
reasonable period of time following the
agency’s receipt of parental consent, if
the public agency agrees that an initial
evaluation is needed to determine
whether a child is a child with a
disability. Likewise, the Department
believes that eligibility decisions should
be made within a reasonable period of
time following the completion of an
evaluation.
The child find requirements in
§ 300.111 and section 612(a)(3)(A) of the
Act require that all children with
disabilities in the State who are in need
of special education and related services
be identified, located, and evaluated.
Therefore, it would generally not be
acceptable for an LEA to wait several
months to conduct an evaluation or to
seek parental consent for an initial
evaluation if the public agency suspects
the child to be a child with a disability.
If it is determined through the
monitoring efforts of the Department or
a State that there is a pattern or practice
within a particular State or LEA of not
conducting evaluations and making
eligibility determinations in a timely
manner, this could raise questions as to
whether the State or LEA is in
compliance with the Act.
With regard to the total timeframe
from referral to IEP development, this
will vary based on a number of factors,
including the timing of parental consent
following referral for an evaluation and
whether a State establishes its own
timeframe to conduct an initial
evaluation. Given such factors, we do
not believe it is feasible to further
regulate on this timeframe.
Changes: None.
Comment: Numerous commenters
recommended that an initial evaluation
be conducted in an expedited timeframe
for children who are homeless or in the
custody of a child welfare agency. The
commenters stated that public agencies
should take into consideration the date
on which the child was first referred for
evaluation by any public agency.
Discussion: Congress recognized the
unique problems homeless children face
and included several new provisions in
the Act to ensure that homeless children
and youth with disabilities have access
to the same services and supports as all
other children with disabilities. The
Department recognizes that the high
mobility rates of some homeless
children with disabilities (as well as
other children, including some children
who are in the custody of a State child
welfare agency) pose unique challenges
when a child is referred for an
evaluation, but moves to another district
or State before an evaluation can be
initiated or completed. In such cases,
the Department believes it is important
that the evaluations be completed as
expeditiously as possible, taking into
consideration the date on which the
child was first referred for evaluation in
any LEA. However, the high mobility
rate of these children and their potential
range of evaluation needs means that
any specific expedited timeframe could
be both too long to ensure that all
children are evaluated before they
move, and too short to be reasonable in
all circumstances. There is nothing,
however, in Part B of the Act or these
regulations that would prohibit a State
from establishing its own policies to
address the needs of homeless children,
including adopting a timeframe for
initial evaluations that is less than 60
days.
Changes: None.
Exception (§ 300.301(d))
Comment: Numerous commenters
requested clarification regarding
whether the 60-day timeframe for initial
evaluations could be extended by
mutual agreement between the parent
and the public agency. A few
commenters asked whether the 60-day
timeframe could be extended for reasons
other than the exceptions listed in
§ 300.301(d), and whether a State could
include other exceptions in its State
policies and procedures.
Discussion: Congress was clear in
limiting the exceptions to the 60-day
timeframe to the situations in section
614(a)(1)(C)(ii) of the Act. Therefore, we
do not believe it is appropriate to
include in the regulations other
exceptions, such as permitting a parent
and a public agency to mutually agree
to extend the 60-day timeframe or to
include exceptions to the timeframe,
that would be in addition to those in the
Act and listed in § 300.301(d). However,
the Act gives States considerable
discretion with a State-adopted
timeframe. A State could adopt a
timeframe of 60 days or some other
number of days, with additional
exceptions.
Changes: None.
Comment: A number of comments
were received requesting clarification
on the provision in § 300.301(d)(1),
which allows an extension of the 60-day
or State-established timeframe to
complete an initial evaluation if the
parent of a child repeatedly fails or
refuses to produce the child for an
evaluation. A few commenters asked
whether the exception applies when a
child is not available because of
absences on the days the evaluation is
scheduled. Several commenters stated
that ‘‘produce’’ does not necessarily
mean the child’s physical presence in
school. Other commenters requested
that the regulations define ‘‘repeatedly
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fails’’ and ‘‘refuses to produce’’ so that
LEAs do not have to engage in
exhaustive efforts to obtain access to the
child to complete the evaluation.
One commenter recommended that
the regulations clarify that an LEA must
document that it has made several
attempts to address the parent’s
concerns and clarify any confusion the
parent may have about the evaluation,
as well as address issues that make it
difficult for the parent to bring the child
to a scheduled evaluation, such as lack
of transportation and childcare.
Discussion: Section 300.301(d)
follows the specific language in section
614(a)(1)(C)(ii)(II) of the Act. We do not
believe it is appropriate or reasonable to
define ‘‘repeatedly fails’’ or ‘‘refuses to
produce’’ because the meaning of these
phrases will vary depending on the
specific circumstances in each case. For
example, situations in which a child is
absent on the days the evaluation is
scheduled because the child is ill would
be treated differently than if a parent
repeatedly fails to keep scheduled
appointments. Similarly, situations in
which a parent fails to keep scheduled
appointments when a public agency
repeatedly schedules the evaluation to
accommodate the parent’s schedule
would be treated differently than
situations in which a public agency
makes no attempt to accommodate a
parent’s schedule.
We do not believe it is necessary to
clarify that an LEA must document that
it has made several attempts to address
a parent’s concerns and issues about the
evaluation. As a matter of practice,
LEAs attempt to address parent’s
concerns and issues prior to scheduling
an evaluation because repeated
cancellations of appointments or
repeated failures to produce the child
for an evaluation are costly in terms of
staff time and effort.
Changes: None.
Comment: Numerous commenters
recommended that there be an
exception to the 60-day timeframe when
a child transfers to a new school before
an evaluation is completed.
Discussion: The exception referred to
by the commenters is already in the
regulations. Section 300.301(d)(2),
consistent with section 614(a)(1)(C)(ii)(I)
of the Act, states that the 60-day or
State-established timeframe does not
apply when a child transfers to a new
school before an evaluation is
completed, if the new public agency is
making sufficient progress to ensure
prompt completion of the evaluation,
and the parent and new public agency
agree to a specific time when the
evaluation will be completed. While the
exception to the 60-day timeframe, as
stated in section 614(a)(1)(C)(ii)(I) of the
Act and paragraph (d)(2) of this section,
only applies when a child transfers to a
school located in another public agency,
we do not believe the language in
paragraph (d)(2), as proposed in the
NPRM, is necessarily clear on this
matter. We, therefore, have added
language in paragraph (d)(2) to provide
additional clarity. We believe it is
important that it is understood that the
60-day or State-established timeframe
does not apply when a child transfers
from one school to another school in the
same public agency. When a child
transfers from one school to another
school in the same public agency, we
expect that an initial evaluation will be
conducted within 60 days of receiving
parental consent for the evaluation, or
within the State-established timeframe.
Changes: We have added language to
§ 300.301(d)(2) to clarify that the
exception to the 60-day or State-
established timeframe only applies
when a child transfers to a new school
located in another public agency.
Comment: Several comments were
received on the provision in new
§ 300.301(e) (proposed
§ 300.301(d)(2)(ii)) that allows an
exception to the 60-day or State-
established timeframe, only if the new
public agency is making sufficient
progress to ensure a prompt completion
of the evaluation and the parent and
new public agency agree to a specific
time when the evaluation will be
completed. One commenter stated that
schools would be unable to meet the 60-
day timeframe for children who transfer
from another public agency if the new
public agency has not been notified of
the evaluation timeframe. Another
commenter recommended that
exceptions to the 60-day timeframe
should not be permitted because the
term ‘‘sufficient progress’’ is not
defined. A few commenters requested
that the regulations define ‘‘sufficient
progress.’’
One commenter stated that there
might be legitimate reasons for not
completing an evaluation within the 60-
day timeframe, such as differences in
the assessment instruments used in the
previous and new public agency, and
requested that the regulations provide
guidance on how a public agency
should determine if appropriate
progress is being made.
One commenter recommended that if
there is no date certain when an
evaluation must be completed when a
child transfers public agencies, the new
public agency should conduct an
evaluation within 60 days of the
enrollment date of the child; make
reasonable efforts to obtain evaluation
information from the previous public
agency; and consider any available
evaluation information from the
previous public agency.
One commenter recommended
requiring the new public agency to
contact the previous public agency
within five days to request a report of
any actions taken to transfer the child’s
records, copies of completed
evaluations, a copy of the child’s file,
and an estimate as to when the
information will be sent. The
commenter stated that public agencies
should be required to keep records of
such attempts to inform parents of all
actions through written communication.
The commenter stated that if the
information is not received within 15
days, the new public agency should be
required to begin a new evaluation and
complete it within the 60-day or State-
established timeframe.
Discussion: The exceptions to the 60-
day or State-established timeframe must
be permitted because they are statutory.
Section 614(a)(1)(C)(ii)(I) of the Act,
which is incorporated in
§ 300.300(d)(2), provides that the 60-day
or State-established timeframe does not
apply if a child enrolls in a school
served by the public agency after the
relevant timeframe has begun, and prior
to a determination by the child’s
previous public agency as to whether
the child is a child with a disability.
The exception applies only if the
subsequent public agency is making
sufficient progress to ensure prompt
completion of the evaluation, and the
parent and subsequent public agency
agree to a specific time when the
evaluation will be completed.
We do not believe it is necessary to
define the phrase ‘‘sufficient progress’’
because the meaning will vary
depending on the specific
circumstances in each case. As one
commenter noted, there may be
legitimate reasons for not completing
the evaluation within the 60-day
timeframe, such as differences in
assessment instruments used in the
previous and new public agencies, and
the length of time between a child
leaving one school and enrolling in the
next school. Therefore, we believe that
whether a new public agency is making
sufficient progress to ensure prompt
completion of an evaluation is best left
to the discretion of State and local
officials and parents to determine.
It would be over-regulating to specify
the number of days within which a new
public agency must request a child’s
records from the previous public agency
or to require the new public agency to
document its attempts to obtain the
records and keep parents informed of all
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actions through written communication.
We note, however, that § 300.304(c)(5),
consistent with section 614(b)(3)(D) of
the Act, requires each public agency to
ensure that the evaluations of children
with disabilities who transfer from one
school district to another school district
in the same school year are coordinated
with the children’s prior and
subsequent schools, as necessary, and as
expeditiously as possible, to ensure
prompt completion of full evaluations.
Additionally, new § 300.323(g)
(proposed § 300.323(e)(2)), consistent
with section 614(d)(2)(C)(ii) of the Act,
requires the new school in which the
child enrolls to take reasonable steps to
promptly obtain the child’s records
(including the IEP and supporting
documents and any other records
relating to the provision of special
education or related services to the
child) from the previous public agency
in which the child was enrolled. The
previous public agency in which the
child was enrolled must also take
reasonable steps to promptly respond to
the request from the new public agency.
We believe that these requirements will
help to ensure that a child’s records are
promptly received by the new public
agency.
The Act does not require the
evaluation of a child who is transferring
to a new school to be completed within
60 days of the enrollment date of the
child, as recommended by one
commenter, and we do not believe that
such a requirement should be included
in the regulations. The completion of
evaluations for children who transfer to
another school are subject to multiple
factors and we decline to regulate on a
specific timeframe that would apply in
all circumstances.
Changes: None.
Comment: One commenter
recommended sanctions against a new
public agency that fails to make an effort
to complete an evaluation of a child
who transfers to another school that was
begun by a previous public agency. The
commenter stated that the previous
public agency should also be sanctioned
for failure to cooperate with a new
public agency or for otherwise impeding
the ability of the new public agency to
complete the evaluation promptly.
Discussion: As part of its general
supervisory responsibilities in § 300.149
and section 612(a)(11) of the Act, each
SEA is responsible for ensuring that the
requirements of Part B of the Act are
followed, including the requirements for
children who transfer from one public
agency to another public agency within
the school year. Whether sanctions
against a particular LEA are appropriate
should be determined by the SEA in the
first instance, as they are in the best
position to determine what sanctions,
technical assistance, or combination of
the two are likely to lead to future
compliance. For that reason, we decline
to regulate with more specificity in this
area.
Changes: None.
Screening for Instructional Purposes Is
Not Evaluation (§ 300.302)
Comment: One commenter requested
clarification on the difference between
screening and evaluation and
recommended that the regulations
include specific examples of what
constitutes screening, including testing
instruments that are appropriate to be
used for screening to determine
appropriate instructional strategies.
Many commenters recommended
permitting States to determine the
screening process for identifying
appropriate instructional strategies.
One commenter stated that
‘‘screening’’ is too loosely defined and
may be confused with State regulations
that require screening for a child’s
entrance into school. The commenter
recommended that the regulations
address issues such as the need for
parental consent prior to screening and
a timeframe for screening subsequent to
a request.
Discussion: An ‘‘evaluation,’’ as used
in the Act, refers to an individual
assessment to determine eligibility for
special education and related services,
consistent with the evaluation
procedures in §§ 300.301 through
300.311. ‘‘Screening,’’ as used in
§ 300.302 and section 614(a)(1)(E) of the
Act, refers to a process that a teacher or
specialist uses to determine appropriate
instructional strategies. Screening is
typically a relatively simple and quick
process that can be used with groups of
children. Because such screening is not
considered an evaluation under
§§ 300.301 through 300.311 to
determine eligibility for special
education services, parental consent is
not required.
Section 300.302 does not address
screening for a child’s entrance into
school under a State’s rules. Screening
required under a State’s rules for a
child’s entrance into school is the
responsibility of the State and is not
within the purview of the Act. We
believe that the provisions in §§ 300.301
through 300.311, regarding evaluations,
and § 300.302, regarding screening for
instructional purposes, are clear, and
therefore, we do not believe it is
necessary to add language to the
regulations.
We decline to provide specific
examples of testing instruments to
determine appropriate instructional
strategies because this will vary based
on the age of the child and the subject
matter, and is best left to State and local
officials to determine. Likewise, the
process for screening, including the
timeframe to complete the screening
process, is a decision that is best left to
State and local officials to determine,
based on the instructional needs of the
children.
Changes: None.
Comment: One commenter asked
whether the provisions in § 300.302,
regarding screening, apply to a child
with a disability, as well as a child who
has not been identified as a child with
a disability. One commenter noted that
§ 300.302 refers to screening of a child
by a teacher or a specialist and asked
who would be considered a specialist.
Another commenter requested
clarification regarding the term
‘‘instructional strategies for curriculum
implementation,’’ as used in § 300.302.
Discussion: Section 300.302,
consistent with section 614(a)(1)(E) of
the Act, states that the screening of a
child by a teacher or specialist to
determine appropriate instructional
strategies is not considered an
evaluation for purposes of determining
eligibility for special education and
related services. This applies to a child
with a disability, as well as a child who
has not been identified as a child with
a disability. Such screening, therefore,
could occur without obtaining informed
parental consent for screening.
We believe the determination of who
is considered a ‘‘specialist’’ should be
left to the discretion of the public
agency and should not be specified in
the regulations. The term, ‘‘instructional
strategies for curriculum
implementation’’ is generally used to
refer to strategies a teacher may use to
more effectively teach children.
Changes: None.
Comment: One commenter
recommended clarification regarding
whether States can develop and
implement policies that permit
screening of children to determine if
evaluations are necessary.
Discussion: There is nothing in the
Act that requires a State to, or prohibits
a State from, developing and
implementing policies that permit
screening children to determine if
evaluations are necessary. However,
screening may not be used to delay an
evaluation for special education and
related services. If a child is referred for
an evaluation to determine eligibility for
special education and related services,
the public agency must implement the
requirements in §§ 300.301 through
300.311 and adhere to the 60-day or the
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State-established timeframe to complete
the evaluation.
Changes: None.
Reevaluations (§ 300.303)
Comment: A few commenters
recommended clarifying that a parent is
not required to provide a reason for
requesting a reevaluation. Several
commenters recommended that the
regulations require a public agency to
provide prior written notice if a parent
requests a reevaluation within a year
and the public agency refuses the
request.
Discussion: Section 300.303(b),
consistent with section 614(a)(2)(A)(ii)
of the Act, states that a reevaluation may
occur if the child’s parent or teacher
requests a reevaluation. There is no
requirement that a reason for the
reevaluation be given and we agree that
a reevaluation cannot be conditioned on
the parent providing a reason for
requesting a reevaluation.
Section 300.303(b), consistent with
section 614(a)(2)(B) of the Act, provides
that a reevaluation may occur not more
than once a year and must occur at least
once every three years, unless the parent
and the public agency agree otherwise.
If a parent requests more than one
reevaluation in a year and the public
agency does not believe a reevaluation
is needed, we believe the regulations are
clear that the public agency must
provide the parents with written notice
of the agency’s refusal to conduct a
reevaluation, consistent with § 300.503
and section 615(c)(1) of the Act. We do
not believe additional regulations are
necessary to address this specific
instance of a public agency’s refusal to
initiate a reevaluation and the written
notice requirements in § 300.503.
Changes: None.
Comment: A few commenters
requested clarification regarding
whether an evaluation that assesses
skills that were not previously assessed
in the same related services area would
be considered an evaluation or
reevaluation. One commenter, asked, for
example, if a speech-language
evaluation was conducted to assess a
child’s speech impairment one year,
would an evaluation the following year
to assess the child’s language abilities be
considered an evaluation or
reevaluation?
Discussion: An initial evaluation of a
child is the first complete assessment of
a child to determine if the child has a
disability under the Act, and the nature
and extent of special education and
related services required. Once a child
has been fully evaluated, a decision has
been rendered that a child is eligible for
services under the Act, and the required
services have been determined, any
subsequent evaluation of a child would
constitute a reevaluation. In the
example provided by the commenter,
the second evaluation would be
considered a reevaluation.
Changes: None.
Comment: One commenter
recommended that reevaluations be
required at least once every three years
because a child’s mental and physical
profile changes in three years, and thus,
so would the child’s educational needs.
Another commenter recommended
requiring LEAs to inform parents that
information from the most recent
evaluation, which could be three or
more years old if the parent agrees that
a reevaluation is unnecessary, will be
used in the development of a child’s
IEP.
A few commenters recommended an
accountability process for LEAs that do
not conduct reevaluations at least every
three years. The commenters
recommended requiring LEAs to report
to the State the number of children with
disabilities who qualified for, but were
not given a three-year reevaluation;
provide prior written notice to parents
if the LEA determines that a three-year
reevaluation is not necessary, including
the justification for such determination;
and inform the parent in writing in the
parent’s language that a three-year
reevaluation will be conducted if the
parent disagrees with the LEA’s
determination.
One commenter recommended
requiring an LEA that does not conduct
a reevaluation at least once every three
years to justify the reasons in writing,
especially if there is evidence that the
child is not meeting the State’s
academic achievement standards.
Discussion: Section 300.303(b)(2),
consistent with section 614(a)(2)(B)(ii)
of the Act, requires a reevaluation to
occur at least once every three years,
unless the parent and the public agency
agree that a reevaluation is unnecessary.
It would be overly burdensome to
require an LEA to report to the State the
number of children with disabilities
who qualified for, but were not given a
three-year reevaluation. Similarly, it
would be overly burdensome to require
LEAs to inform parents that information
from the most recent evaluation will be
used to develop a child’s IEP or to
justify to the parent in writing the LEA’s
reasons for not conducting a
reevaluation every three years if the
parent and the agency have already
agreed that a reevaluation is
unnecessary.
If a parent requests a reevaluation and
the public agency disagrees that a
reevaluation is needed, the public
agency must provide prior written
notice to the parent, consistent with
§ 300.503, that explains, among other
things, why the agency refuses to
conduct the reevaluation and the
parent’s right to contest the agency’s
decision through mediation or a due
process hearing.
In situations where a public agency
believes a reevaluation is necessary, but
the parent disagrees and refuses consent
for a reevaluation, new
§ 300.300(c)(1)(ii) is clear that the public
agency may, but is not required to,
pursue the reevaluation by using the
consent override procedures described
in § 300.300(a)(3).
Changes: None.
Comment: One commenter
recommended the following
requirements for the reevaluation of a
child with the most significant cognitive
disabilities who is assessed based on
alternate achievement standards: (a)
Prohibiting the public agency from
automatically determining that a three-
year reevaluation is not needed; (b)
requiring the public agency to consider
whether the child has been correctly
identified to be assessed against
alternate achievement standards; and (c)
requiring a review of evaluation data to
determine whether the child is, to the
extent possible, being educated in the
general curriculum and assessed with
instruments aligned with that
curriculum.
Discussion: We do not believe
changes to the regulations are necessary
to address the commenter’s concerns.
The Act does not include any special
requirements for the reevaluation of a
child with the most significant cognitive
disabilities who is assessed against
alternate achievement standards. It
would be inconsistent with the
individualized evaluation and
reevaluation procedures in section
614(b) and (c) of the Act for a public
agency to automatically determine that
reevaluations are unnecessary for a
specific group of children. In
determining whether a reevaluation is
needed, the parent and the public
agency must consider the child’s
educational needs, which may include
whether the child is participating in the
general education curriculum and being
assessed appropriately.
Changes: None.
Comment: One commenter
recommended clarifying that parents
have the right to prevent the over-testing
of their child and that the requirements
for reevaluations do not diminish the
rights of parents to make decisions
regarding the reevaluation. Several
commenters recommended that the
regulations require States to establish
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additional procedural safeguards to
ensure that parents who agree that a
reevaluation is unnecessary are aware of
the implications of their decision.
Discussion: There is nothing in the
Act to suggest that the requirements for
reevaluations in § 300.303 diminish the
rights of parents. As stated in § 300.303,
consistent with section 614(a)(2) of the
Act, a parent can request a reevaluation
at any time, and can agree with the
public agency to conduct a reevaluation
more frequently than once a year.
Likewise, a parent and a public agency
can agree that a reevaluation is not
necessary. We believe that in reaching
an agreement that a reevaluation is
unnecessary, as provided for in
§ 300.303(b), the parent and public
agency will discuss the advantages and
disadvantages of conducting a
reevaluation, as well as what effect a
reevaluation might have on the child’s
educational program. Therefore, we do
not agree with the commenter that
additional procedural safeguards are
necessary to ensure that parents who
agree that a reevaluation is unnecessary
are aware of the implications of their
decision.
Changes: None.
Comment: Many commenters
requested that the opportunity to waive
a reevaluation occur only after the IEP
Team has reviewed extant data to
determine whether additional data are
needed to determine the child’s
eligibility and the educational needs of
the child.
Discussion: The review of existing
data is part of the reevaluation process.
Section 300.305(a), consistent with
section 614(c)(1) of the Act, is clear that,
as part of any reevaluation, the IEP
Team and other qualified professionals,
as appropriate, must review existing
evaluation data, and on the basis of that
review, and input from the child’s
parents, identify what additional data, if
any, are needed to determine whether
the child continues to have a disability,
and the educational needs of the child.
Therefore, the opportunity for a parent
and the public agency to agree that a
reevaluation is unnecessary occurs
before a reevaluation begins. It would be
inconsistent with the Act to implement
the commenters’ recommendation.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify that waiving a three-year
reevaluation must not be adopted as
routine agency policy or practice and
should only be used in exceptional
circumstances. Another commenter
recommended that the regulations
require the LEA to offer parents a
reevaluation at least annually when a
parent agrees that a three-year
reevaluation is not needed. Another
commenter recommended that the
regulations clarify that a reevaluation
may be warranted more than once a year
if the child’s condition changes or new
information becomes available that has
an impact on the child’s educational
situation.
Discussion: It is not necessary to add
language clarifying that waiving three-
year reevaluations must not be a routine
agency policy or practice because the
regulations are clear that this is a
decision that is made individually for
each child by the parent of the child and
the public agency. Section
300.303(b)(2), consistent with section
614(a)(2)(B)(ii) of the Act, states that a
reevaluation must occur at least once
every three years, unless the parent and
the public agency agree that a
reevaluation is unnecessary. When a
parent and a public agency agree that a
three-year reevaluation is unnecessary,
there is no requirement that the public
agency offer the parent a reevaluation
each year. We do not believe that it is
necessary to have such a requirement
because if parents who have waived a
three year reevaluation later decide to
request an evaluation, they can do so.
Also, public agencies have a continuing
responsibility to request parental
consent for a reevaluation if they
determine that the child’s educational
or related services needs warrant a
reevaluation.
We do not believe additional
regulations are needed to clarify that a
reevaluation can occur more than once
a year. Section 300.303(b)(1), consistent
with section 614(a)(2)(B)(i) of the Act,
already provides that a reevaluation can
occur more than once a year if the
parent and the public agency agree that
a reevaluation is needed.
Changes: None.
Comment: One commenter asked
whether the agreement between the
parent and the public agency that a
reevaluation is unnecessary is the same
as parental consent in § 300.9.
Discussion: An agreement between a
parent and a public agency is not the
same as parental consent in § 300.9.
Rather, an agreement refers to an
understanding between a parent and the
public agency and does not need to
meet the requirements for parental
consent in § 300.9.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify that when a parent obtains an
independent educational evaluation
(IEE) and provides new information to
the public agency, a reevaluation could
be conducted more than once a year so
that the public agency can verify the
results of the IEE.
Discussion: The changes
recommended by the commenter are
unnecessary. Section 300.303(b)(1),
consistent with section 614(a)(2)(B)(i) of
the Act, is clear that a reevaluation can
be conducted more than once a year if
the parent and the public agency agree
that it is necessary. Therefore, in the
situation presented by the commenter, if
the results of an IEE provide new
information that the public agency and
the parent agree warrant a reevaluation,
the parent and the public agency could
agree to conduct a reevaluation.
Changes: None.
Comment: One commenter asked
whether an IEE is considered a
reevaluation and whether an IEE is
prohibited within less than a year of the
public agency’s most recent evaluation.
Discussion: An IEE would be
considered as a potential source of
additional information that the public
agency and parent could consider in
determining whether the educational or
related services needs of the child
warrant a reevaluation, but it would not
be considered a reevaluation. There is
no restriction on when a parent can
request an IEE.
Changes: None.
Evaluation Procedures (§ 300.304)
Notice (§ 300.304(a))
Comment: Numerous commenters
recommended that the regulations
clarify that the requirement for prior
written notice to parents in § 300.304(a)
is satisfied if the public agency notifies
the parent of the type(s) of assessment(s)
that will be conducted. One commenter
stated that the prior written notice
requirements for evaluations should be
satisfied if the public agency notifies the
parent of the type(s) of assessment(s)
that will be conducted, the method(s) of
assessment, and the persons who will
conduct the assessment(s).
Discussion: It would be inconsistent
with the Act for a public agency to limit
the contents of the prior written notice
in the manner requested by the
commenters. In addition to describing
the evaluation procedures the agency
proposes to use, as required in
§ 300.303(a), section 615(c)(1) of the Act
requires the prior written notice to
include an explanation of why the
agency proposes to evaluate the child; a
description of each evaluation
procedure, assessment, record, or report
the agency used as a basis for requesting
the evaluation; a statement that the
parents have protection under the
procedural safeguards of the Act, and if
this notice is not an initial referral for
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evaluation, the means by which a copy
of the procedural safeguards can be
obtained; sources for the parents to
contact to obtain assistance in
understanding the provisions of the Act;
a description of other options that were
considered and why these reasons were
rejected; and a description of other
factors that are relevant to the agency’s
proposal to request consent for an
evaluation.
Changes: None.
Comment: A few commenters stated
that the notice to parents regarding the
evaluation procedures the agency
proposes to use must be provided in the
native language of the parents, and
recommended that this requirement be
clarified in § 300.304.
Discussion: Information regarding the
evaluation procedures the agency
proposes to use, as required in
§ 300.303(a), is included in the prior
written notice required in
§ 300.503(c)(1)(ii). Section
300.503(c)(1)(ii) requires, that the prior
written notice to parents be provided in
the native language of the parent or
other mode of communication used by
the parent, unless it is clearly not
feasible to do so. We see no need to
repeat these requirements in § 300.304
and believe that doing so could cause
confusion about the status of other
applicable requirements that would not
be repeated in this section.
Changes: None.
Conduct of Evaluation (§ 300.304(b))
Comment: One commenter asked
whether the ‘‘procedure’’ referred to in
§ 300.304(b)(2) is the same as the
‘‘measure or assessment’’ referred to in
section 614(b)(2)(B) of the Act. Another
commenter recommended changing
§ 300.304(b)(2) to follow the statutory
language.
Discussion: Section 300.304(b)(2), as
proposed, states that the public agency
may not use any single ‘‘procedure’’ as
the sole criterion for determining
whether a child is a child with a
disability and for determining an
appropriate educational program for the
child. Section 614(b)(2)(B) of the Act
states that in conducting an evaluation,
the LEA must not use any single
‘‘measure or assessment’’ as the sole
criterion for determining whether a
child is a child with a disability or
determining an appropriate educational
program for the child. We agree that the
statutory language should be used in
§ 300.304(b)(2) because use of the term
‘‘procedure,’’ rather than ‘‘measurement
or assessment,’’ could be confusing.
Changes: We have changed
‘‘procedure’’ to ‘‘measurement or
assessment’’ in § 300.304(b)(2),
consistent with the statutory language.
Comment: One commenter
recommended adding the word
‘‘always’’ to § 300.304(b) to state that the
public agency must ‘‘always’’ conduct
an evaluation in accordance with the
requirements in § 300.304(b)(1) through
(b)(3).
Discussion: Adding the word
‘‘always’’ to § 300.304(b) would not
change the requirements for conducting
an evaluation consistent with
§ 300.304(b). The regulation already
requires a public agency to conduct the
evaluation in accordance with
§ 300.304(b)(1) through (b)(3) and there
are no exceptions to that requirement.
Therefore, we decline to change
§ 300.304(b) in the manner
recommended by the commenter.
Changes: None.
Comment: One commenter
recommended that the regulations
define ‘‘technically sound instruments’’
and ‘‘relative contribution’’ in
§ 300.304(b)(3). Another commenter
recommended that the instruments used
in reevaluations to determine whether
the child continues to have a disability
should be based on scientific research
methods.
Discussion: Section 300.304(b)(3)
follows the specific language in section
614(b)(2)(C) of the Act and requires that
the evaluation of a child use technically
sound instruments that may assess the
relative contribution of cognitive and
behavioral factors, in addition to
physical and developmental factors.
‘‘Technically sound instruments’’
generally refers to assessments that have
been shown through research to be valid
and reliable. Therefore, it would be
redundant to add language requiring
that instruments used in reevaluations
be based on scientific research methods,
as recommended by one commenter.
The phrase ‘‘relative contribution,’’ as
used in § 300.304(b)(3), generally means
that assessment instruments that allow
the examiner to determine the extent to
which a child’s behavior is a result of
cognitive, behavioral, physical, or
developmental factors may be used in
evaluating a child in accordance with
§ 300.304. Because the meaning of
‘‘relative contribution’’ is context
specific, we do not believe it should be
defined in these regulations.
Changes: None.
Other Evaluation Procedures
(§ 300.304(c))
Comment: One commenter
recommended clarifying that differences
in language and socialization practices
must be considered when determining
eligibility for special education and
related services, including biases related
to the assessment.
Discussion: We do not believe that the
clarification requested by the
commenter is necessary. The Act and
these regulations recognize that some
assessments may be biased and
discriminatory for children with
differences in language and
socialization practices. Section
614(b)(3)(A)(i) of the Act requires that
assessments and other evaluation
materials used to assess a child under
the Act are selected and administered so
as not to be discriminatory on a racial
or cultural basis. Additionally, in
interpreting evaluation data for the
purpose of determining eligibility of a
child for special education and related
services, § 300.306(c) requires each
public agency to draw upon information
from a variety of sources, including
aptitude and achievement tests, parent
input, teacher recommendations, as well
as information regarding a child’s
physical condition, social or cultural
background, and adaptive behavior. We
believe that these provisions provide
adequate protection for the concerns
raised by the commenter.
Changes: None.
Comment: One commenter requested
that the regulations clarify that a public
agency should not use the ‘‘not clearly
feasible’’ exception in § 300.304(c)(1)(ii)
to improperly limit a child’s right to be
evaluated in the child’s native language
or other mode of communication.
Discussion: Section 300.304(c)(1)(ii),
consistent with section 614(b)(3)(A)(ii)
of the Act, requires that assessments and
other evaluation materials used to assess
a child be provided and administered in
the child’s native language or other
mode of communication and in the form
most likely to yield accurate
information on what the child knows
and can do, unless it is clearly not
feasible to so provide or administer. We
agree that this provision should not be
improperly used to limit evaluations in
a child’s native language, but we do not
believe that a change to the regulations
is necessary or that it would prevent
inappropriate application of the existing
rule.
Changes: None.
Comment: One commenter
recommended including ‘‘behavior’’ in
the list of areas to be evaluated in
§ 300.304(c)(4). Another commenter
recommended requiring a functional
behavioral assessment to be part of a
child’s evaluation whenever any
member of the IEP Team requests it or
raises concerns about the child’s
behavior. One commenter asked why
physical assessments were not included
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in the list of assessments that should be
conducted.
Discussion: Section 300.304(c)(4)
requires the public agency to ensure that
the child is assessed in all areas related
to the suspected disability. This could
include, if appropriate, health, vision,
hearing, social and emotional status,
general intelligence, academic
performance, communicative status, and
motor abilities. This is not an
exhaustive list of areas that must be
assessed. Decisions regarding the areas
to be assessed are determined by the
suspected needs of the child. If a child’s
behavior or physical status is of
concern, evaluations addressing these
areas must be conducted. No further
clarification is necessary.
Changes: None.
Comment: Many commenters
recommended that the evaluation report
include a description of the extent to
which an assessment varied from
standard conditions because there are
few assessments that produce valid and
reliable information for English
language learners suspected of having a
disability. Several commenters stated
that it is standard practice for
professionals administering assessments
to include information in their reports
when assessments are conducted using
nonstandard conditions. One
commenter recommended that the
regulations require all evaluation
reports to clearly indicate the language
or other mode of communication used
in assessing a child and a determination
of whether using such language or other
mode of communication yielded
accurate information.
Discussion: As stated by several
commenters, it is standard test
administration practice to include in the
evaluation report the extent to which an
assessment varied from standard
conditions, including the language or
other mode of communication that was
used in assessing a child. It is, therefore,
unnecessary to include this requirement
in the regulations.
Changes: None.
Comment: Many commenters
recommended that the regulations
require public agencies to provide
parents with evidence that the
assessments to be used are reliable and
valid for their particular use, as well as
assurances that the assessments will be
administered in the child’s primary
language or mode of communication.
The commenters also recommended that
public agencies be required to provide
parents with information regarding the
assumptions being made about the tests
and the inferences that can be drawn
from the test results.
Discussion: Section 300.304(a),
consistent with section 614(b)(1) of the
Act, requires the public agency to
provide notice to the parents of a child
with a disability, in accordance with
§ 300.503, that describes the evaluation
procedures the agency proposes to
conduct. To require public agencies to
provide all parents with the specific
information recommended by the
commenters would be burdensome for
public agencies, and could be
overwhelming for some parents, and
therefore, we decline to add such a
requirement to the regulations. While
we understand that some parents will
want the detailed information
mentioned by the commenter, parents
can always request such additional
information before providing informed
written consent for the evaluation or
reevaluation.
Changes: None.
Comment: A few commenters
recommended that the regulations
require comprehensive psychological
and educational evaluations to rule out
alternate causes of functional
impairments in academic achievement.
Discussion: We believe the regulations
already address the commenters’
concerns and we do not believe any
further clarification is necessary.
Section 300.304(c)(6) requires that
evaluations are sufficiently
comprehensive to identify all of the
child’s special education and related
services needs, whether or not
commonly linked to the disability
category in which the child has been
identified. In addition, § 300.306(b),
consistent with section 614(b)(5) of the
Act, states that a child must not be
determined to be a child with a
disability if the determinant factor for
that determination is lack of appropriate
instruction in reading or math, or
limited English proficiency.
Changes: None.
Comment: Several commenters
recommended that the requirements in
new § 300.301(d)(2) and (e) (proposed
§ 300.301(d)(2)(i) and (ii)), regarding
children who transfer to another public
agency before an initial evaluation is
completed, should be cross-referenced
in § 300.304(c)(5).
Discussion: We agree that a cross-
reference in § 300.304(c)(5) is
appropriate.
Changes: We have added ‘‘consistent
with § 300.301(d)(2) and (e),’’ following
‘‘possible’’ in § 300.304(c)(5).
Comment: None.
Discussion: In reviewing
§ 300.304(c)(5), we determined that
§ 300.304(c)(5) should be amended to
refer to children with disabilities who
transfer to another public agency ‘‘in the
same school year’’ rather than ‘‘in the
same academic year’’ because that is the
term most commonly understood by
parents and school officials.
Changes: We have changed ‘‘academic
year’’ to ‘‘school year’’ in
§ 300.304(c)(5).
Comment: One commenter
recommended adding language
regarding scientifically based special
education and related services to
§ 300.304(c)(6).
Discussion: Section 300.304(c)(6)
requires that the evaluation of a child
with a disability be sufficiently
comprehensive to identify all the child’s
special education and related services
needs, whether or not commonly linked
to the disability category in which the
child has been classified. We believe
that the focus on providing scientifically
based special education and related
services is clear in the Act and these
regulations and do not believe it is
necessary to refer to ‘‘scientifically
based’’ services each time we refer to
special education and related services.
Therefore, we decline to add this
language in § 300.304(c)(6), as requested
by the commenter.
Changes: None.
Additional Requirements for
Evaluations and Reevaluations
(§ 300.305)
Review of Existing Evaluation Data
(§ 300.305(a))
Comment: One commenter stated that
a comma should be added after ‘‘current
classroom-based’’ in § 300.305(a)(1)(ii)
to clarify that a review of existing
evaluation data for a child must include,
as appropriate, data from three types of
assessments: Current classroom-based,
local, or State assessments.
Discussion: We agree with the
commenter and will revise the language
consistent with the commenter’s
suggestion and consistent with section
614(c)(1)(A)(ii) of the Act. The changes
will clarify that a review of existing
evaluation data on a child must include,
as appropriate, current classroom-based,
local, or State assessment data.
Changes: We have inserted a comma
following ‘‘classroom based’’ and
‘‘local’’ in § 300.305(a)(1)(ii), consistent
with the statutory language.
Comment: One commenter asked
whether a public agency must conduct
a reevaluation when a reevaluation is
requested to determine the child’s
educational and functional needs, but
the child’s eligibility for special
education and related services is not in
question.
Discussion: Section 300.305(a)(2),
consistent with section 614(c)(1)(B) of
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the Act, states that one of the purposes
of a reevaluation is to determine the
educational needs of the child,
including whether any additions or
modifications to the special education
and related services are needed to
enable the child to meet the child’s IEP
goals and to participate in the general
education curriculum. Thus, if a
reevaluation is requested to determine
the child’s educational needs when the
child’s continued eligibility is not in
question, the public agency must either
conduct the reevaluation or provide
notice to the parents as to why the
public agency believes a reevaluation is
unnecessary.
Changes: None.
Requirements if Additional Data Are
Not Needed (§ 300.305(d))
Comment: One commenter requested
that the regulations define or remove the
phrase ‘‘qualified professionals, as
appropriate’’ in § 300.305(d)(1).
Discussion: Section 300.305(d)(1)
follows the specific language in section
614(c)(1) of the Act and refers to the
decision made by the IEP Team and
‘‘other qualified professionals, as
appropriate’’ regarding whether
additional data are needed to determine
whether a child continues to be a child
with a disability and the child’s
educational needs. The phrase,
‘‘qualified professionals, as appropriate’’
is used to provide flexibility for public
agencies to include other professionals
who may not be a part of the child’s IEP
Team in the group that determines if
additional data are needed to make an
eligibility determination and determine
the child’s educational needs. We
believe that public agencies should have
flexibility in determining how to define
‘‘qualified professionals’’ and we do not
believe a definition should be included
in the regulations.
Changes: None.
Evaluations Before Change in Eligibility
(Proposed Evaluations Before Change in
Placement) (§ 300.305(e))
Comment: One commenter stated that
the heading for § 300.305(e),
‘‘Evaluations before change in
placement’’ should be changed because
the regulations that follow do not deal
with changes in placement. Another
commenter requested clarification
regarding the meaning of the term
‘‘placement.’’ The commenter stated
that § 300.305(e) uses the term to mean
that special education services are no
longer required, but that this is not the
meaning when used in the context of
alternative educational placements. The
commenter also asked whether moving
a child from a self-contained classroom
to a resource room is a change of
placement.
Discussion: We agree that the heading
for § 300.305(e) should be changed to
more accurately reflect the requirements
in this subsection. We will, therefore,
change the heading to ‘‘Evaluations
before change in eligibility,’’ which is
consistent with the heading in section
614(c)(5) of the Act.
With regard to the commenter’s
question about whether moving a child
from a self-contained classroom to a
resource room would be a change of
placement, we believe that it would be,
as it would change the child’s level of
interaction with his or her nondisabled
peers. However, as noted previously, the
term ‘‘change of placement’’ should not
have been used in connection this
regulation.
In the example provided by the
commenter, generally, if a child is
moved from a self-contained classroom
to a resource room, it is likely that the
child’s current IEP cannot be
implemented in the resource room,
because the educational program in the
resource room is likely to be
substantially and materially different
than the educational program in the
self-contained classroom or the
educational program in the resource
room would change the level of
interaction with nondisabled peers.
Therefore, this situation would likely be
a change of placement under the Act.
Changes: We have removed the
heading ‘‘Evaluations before change in
placement’’ in § 300.305(e) and replaced
it with ‘‘Evaluations before change in
eligibility’’ for clarity and consistency
with the heading in section 614(c)(5) of
the Act.
Comment: Many commenters
recommended that evaluations for other
institutions (e.g., vocational
rehabilitation agencies, colleges and
universities) should be required before a
child graduates from secondary school
with a regular diploma or exceeds the
age limit for FAPE. However, a number
of commenters disagreed and stated that
public agencies should not be required
to conduct evaluations that will be used
to meet the entrance or eligibility
requirements of another institution or
agency. One commenter requested
clarification regarding whether schools
must provide updated evaluations for
college testing and admissions purposes
and recommended including language
in the regulations that explicitly states
that public agencies are not required to
conduct tests that are needed for
admission to postsecondary programs.
Another commenter recommended that
the regulations clarify that LEAs have
responsibility for providing the
postsecondary services that are included
in the summary of the child’s academic
achievement and functional
performance.
One commenter requested requiring a
reevaluation before a child exits the
school system. Another commenter
recommended clarifying that a
comprehensive evaluation is not
required for children aging out of
special education.
A number of commenters provided
recommendations on the information
that should be included in the summary
of a child’s academic and functional
performance required in § 300.305(e)(3).
Commenters suggested that the
summary report should include
information about the child’s disability;
the effect of the disability on the child’s
academic and functional performance
(sufficient to establish eligibility under
the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act, if
appropriate); any needed modifications
or adaptations essential to the child’s
success; the child’s most recent
evaluations by professionals, including
the child’s academic achievement and
functional performance levels; assistive
technology and other supports used by
the child; and any modifications and
supports that would facilitate the child’s
successful transition to postsecondary
education or employment.
Discussion: We do not believe that the
regulations should require public
agencies to conduct evaluations for
children to meet the entrance or
eligibility requirements of another
institution or agency because to do so
would impose a significant cost on
public agencies that is not required by
the Act. While the requirements for
secondary transition are intended to
help parents and schools assist children
with disabilities transition beyond high
school, section 614(c)(5) in the Act does
not require a public agency to assess a
child with a disability to determine the
child’s eligibility to be considered a
child with a disability in another
agency, such as a vocational
rehabilitation program, or a college or
other postsecondary setting. The Act
also does not require LEAs to provide
the postsecondary services that may be
included in the summary of the child’s
academic achievement and functional
performance. We believe it would
impose costs on public agencies not
contemplated by the Act to include such
requirements in the regulations.
It would be inconsistent with the Act
to require public agencies to conduct
evaluations for children who are exiting
the school system because they exceed
the age for eligibility under State law.
Section 300.305(e)(2), consistent with
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section 614(c)(5)(B)(i) of the Act, is clear
that an evaluation in accordance with
§§ 300.304 through 300.311 is not
required before the termination of a
child’s eligibility under the Act due to
graduation from secondary school with
a regular diploma or due to exceeding
the age eligibility for FAPE under State
law.
Section 300.305(e)(3), consistent with
section 614(c)(5)(B)(ii) of the Act, states
that the summary required when a child
graduates with a regular diploma or
exceeds the age eligibility under State
law must include information about the
child’s academic achievement and
functional performance, as well as
recommendations on how to assist the
child in meeting the child’s
postsecondary goals. The Act does not
otherwise specify the information that
must be included in the summary and
we do not believe that the regulations
should include a list of required
information. Rather, we believe that
State and local officials should have the
flexibility to determine the appropriate
content in a child’s summary, based on
the child’s individual needs and
postsecondary goals.
Changes: None.
Comment: One commenter stated that
public agencies should not be required
to conduct an evaluation of a child who
graduates with a regular diploma
because a regular diploma means that
the child has met the same requirements
and achieved the same or similar level
of competency as the child’s
nondisabled classmates. The commenter
also requested that the regulations
define a regular diploma to mean that
the child has reached a comparable
level of achievement as the child’s
nondisabled classmates.
Discussion: Section 300.305(e)(2)
specifically states that a public agency
does not need to evaluate a child with
a disability who graduates with a
regular diploma. In addition, as noted in
the Analysis of Comments and Changes
section for subpart B, we have clarified
in § 300.101(a)(3)(iv) that a regular
diploma does not include alternate
degrees, such as a general educational
development (GED) credential. We do
not believe that any further clarification
with respect to the definition of ‘‘regular
diploma’’ is necessary.
Changes: None.
Determination of Eligibility (§ 300.306)
Comment: One commenter
recommended that the regulations
require public agencies to provide
parents with copies of all evaluations at
no cost. However, another commenter
stated that evaluations are often lengthy
and requested clarification as to
whether public agencies must provide
copies of evaluations to parents at no
cost.
Discussion: Section 300.306(a)(2),
consistent with section 614(b)(4)(B) of
the Act, requires that a copy of the
evaluation report and the
documentation of determination of
eligibility be given to the parent. We
have added language to § 300.306(a)(2)
to clarify that the public agency must
provide these copies at no cost to the
parent.
With regard to providing parents with
copies of all evaluations, § 300.501(a),
consistent with section 615(b)(1) of the
Act, affords parents an opportunity to
inspect and review all education records
with respect to the identification,
evaluation, and educational placement
of the child, and the provision of a
FAPE to the child. Specific procedures
for access to records are contained in
the confidentiality provisions in
§§ 300.610 through 300.627.
Section 300.613 requires a public
agency to permit a parent to inspect and
review any education records relating to
their child that are collected,
maintained, or used by the agency
under the Act. The right to inspect and
review records includes the right to a
response from the agency to reasonable
requests for explanations and
interpretations of the records; the right
to request that the agency provide
copies of the records containing the
information if failure to provide those
copies would effectively prevent the
parent from exercising the right to
inspect and review the records; and the
right to have a representative of the
parent inspect and review the records.
To the extent that the commenters may
have been concerned about free copies
of evaluation documents that would not
be provided under the above
regulations, we decline to regulate
further, as we believe that the cited
provisions adequately balance the
interests of the parents for free copies
and the public agencies in controlling
costs.
Changes: We have added language to
§ 300.306(a)(2) to clarify that the
evaluation report and the
documentation of determination of
eligibility must be provided at no cost
to the parent.
Comment: One commenter
recommended that parents receive
evaluation reports prior to an IEP Team
meeting because the reports may have
information that parents need to
participate in making decisions about
the IEP. The commenter stated that, if
parents receive reports at meetings,
rather than before the meetings, they
cannot be active participants. Another
commenter stated that parents should be
provided with copies of documents
related to the determination of
eligibility at least five days prior to the
eligibility determination meeting.
Discussion: The Act does not establish
a timeline for providing a copy of the
evaluation report or the documentation
of determination of eligibility to the
parents and we do not believe that a
specific timeline should be included in
the regulations because this is a matter
that is best left to State and local
discretion. It is, however, important to
ensure that parents have the information
they need to participate meaningfully in
IEP Team meetings, which may include
reviewing their child’s records. Section
300.613(a) requires a public agency to
comply with a parent request to inspect
and review existing education records,
including an evaluation report, without
unnecessary delay and before any
meeting regarding an IEP, and in no case
more than 45 days after the request has
been made. This includes the right to a
response from the public agency to
reasonable requests for explanations and
interpretations of records, consistent
with § 300.613(b)(1).
While it would be appropriate for
parents to review documents related to
the determination of eligibility prior to
the eligibility determination, there is no
requirement that eligibility be
determined at an IEP Team meeting and
it would not be appropriate for a public
agency to provide documentation of the
determination of eligibility prior to
discussing a child’s eligibility for
special education and related services
with the parent. Section 300.306(a)(1)
and section 614(b)(4)(A) of the Act
require that a group of qualified
professionals and the parent determine
whether the child is a child with a
disability. Therefore, providing
documentation of the eligibility
determination to a parent prior to a
discussion with the parent regarding the
child’s eligibility would indicate that
the public agency made its
determination without including the
parent and possibly, qualified
professionals, in the decision.
Changes: None.
Special Rule for Eligibility
Determination (§ 300.306(b))
Comment: A number of commenters
recommended other factors that should
be ruled out before a child is
determined to be a child with a
disability. Many commenters stated that
a child should not be determined to be
a child with a disability if the
determinant factor is lack of instruction
in English language development or lack
of access to State content standards. A
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few commenters expressed concern
regarding subjective judgments about
the definition of ‘‘appropriate
instruction.’’ One commenter stated that
determining the quality of reading
instruction that children received in the
past might be difficult, if not
impossible, especially when children
are referred for an evaluation after they
enter middle school or are highly
mobile.
Discussion: We agree that a child
should not be determined to be a child
with a disability if the determinant
factor is lack of access to State content
standards, and we believe this is
implicit in section 614(b)(5) of the Act,
which states that a child must not be
determined to be a child with a
disability if the determinant factor is
lack of appropriate instruction in
reading (including the essential
components of reading instruction, as
defined in the ESEA) or lack of
instruction in math.
During the Department’s internal
review of these regulations, we noted
that, while § 300.306(b)(1)(i) refers to
lack of ‘‘appropriate’’ instruction in
reading, there is no similar qualifier for
math. We believe it is equally important
that a child not be determined to be a
child with a disability if the
determinant factor is the lack of
‘‘appropriate’’ instruction in math.
Therefore, we will revise
§ 300.306(b)(1)(ii) to make this clear.
We are unclear what the commenter
means by lack of instruction in English
language development. However, if a
child’s low achievement is a result of
limited English proficiency or lack of
access to instruction in reading, the
child must not be determined to be a
child with a disability, consistent with
section 614(b)(5) of the Act.
Whether a child has received
‘‘appropriate instruction’’ is
appropriately left to State and local
officials to determine. While
information regarding the quality of
instruction a child received in the past
may be helpful in determining whether
a child is eligible for special education
services, it is not essential. Schools,
however, must ensure that the
determinant factor in deciding that a
child is a child with a disability is not
a lack of appropriate instruction in
reading and math.
Changes: We have added
‘‘appropriate’’ in § 300.306(b)(1)(ii) to
refer to a ‘‘lack of appropriate
instruction in math.’’
Comment: Some commenters
requested that we include in the
regulations the essential components of
reading instruction defined in the ESEA.
Discussion: For reasons set forth
elsewhere in this preamble, we are not
adding definitions to these regulations
from statutes other than the Act.
However, the definition of the essential
components of reading instruction from
section 1208(3) of the ESEA is included
here for reference.
Essential Components of Reading
Instruction—The term ‘‘essential
components of reading instruction’’
means explicit and systematic
instruction in—
(A) Phonemic awareness;
(B) Phonics;
(C) Vocabulary development;
(D) Reading fluency, including oral
reading skills; and
(E) Reading comprehension strategies.
Changes: None.
Procedures for Determining Eligibility
and Educational Need (Proposed
Procedures for Determining Eligibility
and Placement) (§ 300.306(c))
Comment: None.
Discussion: During the review of these
regulations, we noted that section
614(b)(4) of the Act refers to procedures
for determining eligibility and
‘‘educational need,’’ rather than
procedures for determining eligibility
and ‘‘placement,’’ as in the heading for
proposed § 300.306(c). Therefore, we
will change the heading in § 300.306(c)
to be consistent with section 614(b)(4) of
the Act.
Changes: We have replaced
‘‘placement’’ with ‘‘educational need’’
in the heading to § 300.306(c),
consistent with section 614(b)(4) of the
Act.
Additional Procedures for Identifying
Children With Specific Learning
Disabilities
Specific Learning Disabilities
(§ 300.307)
Comment: Numerous commenters
supported proposed § 300.307(a)(1),
which allowed States to prohibit LEAs
from using a severe discrepancy
between IQ and achievement
(discrepancy models) to determine
eligibility under the specific learning
disability (SLD) category. However,
many commenters supported the use of
discrepancy models and requested that
the regulations allow discrepancy
models to continue to be used.
Numerous commenters stated that
§ 300.307(a)(1) exceeds statutory
authority and that LEAs should be
permitted to use discrepancy models.
Many commenters cited Conf. Rpt. 108–
779 and stated that Congress did not
intend to prohibit LEAs from using
discrepancy models.
Discussion: The Department agrees
that proposed § 300.307(a)(1) should be
removed. We believe this will improve
the clarity of the regulations and make
it easier for parents and professionals to
understand. With respect to permitting
LEAs to use discrepancy models, even
with the removal of § 300.307(a)(1),
States are responsible for developing
criteria to determine whether a child is
a child with a disability, as defined in
§ 300.8 and section 602(3) of the Act,
including whether a particular child
meets the criteria for having an SLD.
Under section 614(b)(6) of the Act,
States are free to prohibit the use of a
discrepancy model. States, including
States that did not use a discrepancy
model prior to the Act, are not required
to develop criteria that permit the use of
a discrepancy model.
Changes: We have removed
§ 300.307(a)(1) and redesignated the
subsequent provisions in § 300.307.
Comment: Many commenters stated
that response to intervention (RTI)
should be considered one component of
the evaluation process and not the sole
component. Another commenter stated
that neither a discrepancy model nor an
RTI model alone can correctly identify
children with SLD and that other data
are needed, such as informal and formal
assessments, histories, and observations.
One commenter stated that all relevant
and available evaluation data, such as
the nature and type of evaluation,
evaluator qualifications, and outcome
data should be considered. One
commenter recommended that RTI be
tied to the general evaluation
procedures. Another commenter
recommended referencing the
evaluation procedures in § 300.309 to
clarify that RTI must be used as one
component of the evaluation process to
determine eligibility for special
education and related services. Several
commenters stated that relying solely on
an RTI model would result in larger
numbers of children being identified
with an SLD.
Discussion: Consistent with
§ 300.304(b) and section 614(b)(2) of the
Act, the evaluation of a child suspected
of having a disability, including an SLD,
must include a variety of assessment
tools and strategies and cannot rely on
any single procedure as the sole
criterion for determining eligibility for
special education and related services.
This requirement applies to all children
suspected of having a disability,
including those suspected of having an
SLD.
To simplify new § 300.307(a)(2)
(proposed § 300.307(a)(3)) and remove
unnecessary repetition, we will: (a)
Remove the phrase ‘‘as part of the
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1 Tilly III, W. D. (2002). School psychology as a
problem solving enterprise. In A. Thomas & J.
Grimes (Eds.), Best Practices in School Psychology
IV. Washington D.C.: National Association of
School Psychologists; VanDerHeyden, A.M, Witt,
J.C, & Gilbertson, D. (in press). Effect of a problem
solving intervention on the accurate identification
of children. Journal of School Psychology; Marston,
D., Muyskens, P., Lau, M., & Canter, A. (2003).
Problem-solving model for decision making with
high incidence disabilities: The Minneapolis
experience. Learning Disabilities Research and
Practice, 18, 187–200; Gresham, F., VanDerHeyden,
A.M, & Witt, J.C. (in press). Response to
intervention in the identification of learning
disabilities: Empirical support and future
challenges. School Psychology Review; National
Association of State Directors of Special Education
(2005). Response to intervention: policy
considerations and implementations. Alexandria
VA: Author.
evaluation procedures described in
§ 300.304;’’ and (b) replace ‘‘process that
determines if the child responds to
scientific, research-based intervention’’
with ‘‘process based on the child’s
response to scientific, research-based
intervention.’’ Section 300.311(a)(7) will
also be revised, consistent with this
language.
Changes: We have revised new
§ 300.307(a)(2) (proposed
§ 300.307(a)(3)) and § 300.311(a)(7) for
clarity.
Comment: Several commenters
recommended changing new
§ 300.307(a)(2) (proposed
§ 300.307(a)(3)) to require that State
criteria ‘‘may’’ rather than ‘‘must’’
permit a process that determines if a
child responds to research-based
intervention in order to be consistent
with section 614(b)(6)(B) of the Act.
Discussion: Making the requested
change to new § 300.307(a)(2) (proposed
§ 300.307(a)(3)) would be inconsistent
with the Act. Section 614(b)(6)(B) of the
Act gives LEAs the option of using a
process that determines if a child
responds to research-based
interventions.
Changes: None.
Comment: Several commenters
recommended that the regulations
include a statement that discrepancy
models have been discredited and that
there is no evidence that they can be
applied in a valid and reliable manner.
Several commenters recommended that
the Department urge States, at least
through guidance, to eliminate
provisions under State laws that permit
the use of discrepancy models.
Discussion: We do not believe it is
appropriate to add language in the
regulations discouraging the use of
discrepancy models to identify children
with SLD. We removed current
§ 300.541(a)(2), which required States to
use a discrepancy model to determine
whether a child has an SLD, because
section 614(b)(6) of the Act now
specifies that an LEA shall not be
required to consider a severe
discrepancy in determining whether a
child has an SLD. New § 300.307(a)(2)
(proposed § 300.307(a)(3)) requires
States to permit the use of a process that
examines whether the child responds to
scientific, research-based interventions
as part of the information reviewed to
determine whether a child has an SLD.
The regulations reflect the Department’s
position on the identification of
children with SLD and our support for
models that focus on assessments that
are related to instruction and promote
intervention for identified children.
Changes: None.
Comment: One commenter
recommended that any guidance the
Department issues on RTI models
should emphasize that RTI represents a
shift in how children are identified for
special education services and not just
an additional task that special education
teachers must do.
Discussion: Consensus reports and
empirical syntheses indicate a need for
major changes in the approach to
identifying children with SLD. Models
that incorporate RTI represent a shift in
special education toward goals of better
achievement and improved behavioral
outcomes for children with SLD because
the children who are identified under
such models are most likely to require
special education and related services.
We will consider addressing this issue
in future guidance.
Changes: None.
Comment: Many commenters stated
that the elimination of discrepancy
models would result in an inability to
identify children with SLD who are
gifted. One commenter stated that a
scatter of scores should be used to
identify children with SLD who are
gifted.
Discussion: Discrepancy models are
not essential for identifying children
with SLD who are gifted. However, the
regulations clearly allow discrepancies
in achievement domains, typical of
children with SLD who are gifted, to be
used to identify children with SLD.
Changes: None.
Comment: Many commenters opposed
the use of RTI models to determine
whether a child has an SLD, stating that
there is a lack of scientific evidence
demonstrating that RTI models correctly
identify children with SLD. One
commenter stated that RTI is a
subjective method of determining
whether treatment is effective and is not
a treatment itself. A few commenters
requested additional research
demonstrating the efficacy of the wide-
scale use of RTI models. Some
commenters stated that research on the
use of RTI models has been conducted
only in the area of reading in the
primary grades and pointed to the lack
of scientific data on achievement gains
or long-term success. One commenter
stated that there is no evidence that RTI
is effective for non-native speakers of
English and minority populations.
Another commenter stated that RTI
would fail to identify young children
with SLD. One commenter stated that
when a child fails to respond to an
intervention, it is unclear why the child
failed (e.g., inappropriate intervention,
ineffective teaching, unreasonable
expectations). One commenter stated
that longitudinal data are needed to
determine if children who succeed in an
RTI process later become eligible under
the category of SLD based on reading
fluency and comprehension difficulties,
or difficulties in other academic areas,
such as mathematics problem-solving or
written expression.
Discussion: The Act requires that
LEAs be permitted to use a process that
determines if a child responds to
research-based interventions. Further,
there is an evidence base to support the
use of RTI models to identify children
with SLD on a wide scale, including
young children and children from
minority backgrounds. These include
several large-scale implementations in
Iowa (the Heartland model; Tilly, 2002);
the Minneapolis public schools
(Marston, 2003); applications of the
Screening to Enhance Equitable
Placement (STEEP) model in
Mississippi, Louisiana, and Arizona
(VanDerHeyden, Witt, & Gilbertson, in
press); and other examples (NASDE,
2005).1 While it is true that much of the
research on RTI models has been
conducted in the area of reading, 80 to
90 percent of children with SLD
experience reading problems. The
implementation of RTI in practice,
however, has included other domains.
RTI is only one component of the
process to identify children in need of
special education and related services.
Determining why a child has not
responded to research-based
interventions requires a comprehensive
evaluation.
Changes: None.
Comment: One commenter expressed
concern about how LEAs will conduct
evaluations for children suspected of
having an SLD who attend private
schools because requiring an RTI
process could become entangled with
the private school’s instructional
practices. The commenter
recommended clarifying that child find
does not require an LEA to use RTI to
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identify children with SLD who are
attending private schools.
Discussion: An RTI process does not
replace the need for a comprehensive
evaluation. A public agency must use a
variety of data gathering tools and
strategies even if an RTI process is used.
The results of an RTI process may be
one component of the information
reviewed as part of the evaluation
procedures required under §§ 300.304
and 300.305. As required in
§ 300.304(b), consistent with section
614(b)(2) of the Act, an evaluation must
include a variety of assessment tools
and strategies and cannot rely on any
single procedure as the sole criterion for
determining eligibility for special
education and related services.
It is up to each State to develop
criteria to determine whether a child
has a disability, including whether a
particular child has an SLD. In
developing their criteria, States may
wish to consider how the criteria will be
implemented with a child for whom
systematic data on the child’s response
to appropriate instruction is not
available. However, many private
schools collect assessment data that
would permit a determination of how
well a child responds to appropriate
instruction. The group making the
eligibility determination for a private
school child for whom data on the
child’s response to appropriate
instruction are not available may need
to rely on other information to make
their determination, or identify what
additional data are needed to determine
whether the child is a child with a
disability. However, under § 300.306(b),
a public agency may not identify any
public or private school child as a child
with a disability if the determinant
factor is lack of appropriate instruction
in reading or math.
Changes: None.
Comment: One commenter stated that
adoption of new procedures for
evaluating children suspected of having
an SLD should not penalize or
declassify children who under prior
procedures were found to have an SLD.
The commenter recommended using the
requirements in § 300.305, rather than
data from a child’s response to a
scientific, research-based intervention
process, to consider whether a child
continues to have an SLD.
Discussion: An RTI process does not
replace the need for a comprehensive
evaluation, and a child’s eligibility for
special education services cannot be
changed solely on the basis of data from
an RTI process. Consistent with
§ 300.303 and section 614(a)(2) of the
Act, a child with a disability must be
reevaluated if the public agency
determines that the educational or
related services needs of the child
warrant a reevaluation or if the child’s
parent or teacher requests a
reevaluation. A reevaluation must occur
no more than once a year, unless the
parent and the public agency agree
otherwise, and at least once every three
years, unless the parent and the public
agency agree that a reevaluation is
unnecessary, to determine whether the
child continues to have a disability and
to determine the educational needs of
the child. Reevaluations must be
conducted in accordance with
§§ 300.304 through 300.311. In addition,
as noted in § 300.305(e)(1), except for
children at the end of their secondary
school career, a reevaluation must be
done before determining that a child is
no longer a child with a disability. In
conducting a reevaluation, as noted in
§ 300.305, consistent with section 614(c)
of the Act, the IEP Team and other
qualified professionals must review
existing evaluation data on the child
including evaluations provided by the
parents of the child; current classroom-
based, local, or State assessments and
classroom-based observations; and
observations by teachers and related
services providers.
The results of an RTI process may be
one component of the information
reviewed as part of the reevaluation
process. It is up to each State to develop
criteria to determine whether a child
continues to have a disability, including
whether a particular child has an SLD.
States that change their eligibility
criteria for SLD may want to carefully
consider the reevaluation of children
found eligible for special education
services using prior procedures. States
should consider the effect of exiting a
child from special education who has
received special education and related
services for many years and how the
removal of such supports will affect the
child’s educational progress,
particularly for a child who is in the
final year(s) of high school. Obviously,
the group should consider whether the
child’s instruction and overall special
education program have been
appropriate as part of this process. If the
special education instruction has been
appropriate and the child has not been
able to exit special education, this
would be strong evidence that the
child’s eligibility needs to be
maintained.
Changes: None.
Alternative Research-Based Procedures
(New § 300.307(a)(3)) (Proposed
§ 300.307(a)(4))
Comment: Many commenters
expressed support for allowing the use
of alternative research-based procedures
to determine whether a child has an
SLD. However, a few commenters stated
that the use of alternative research-
based procedures should be removed
because there is no indication that these
procedures will assist in identifying a
child with an SLD and because the Act
does not use this term.
Discussion: New § 300.307(a)(3)
(proposed § 300.307(a)(4)) recognizes
that there are alternative models to
identify children with SLD that are
based on sound scientific research and
gives States flexibility to use these
models. For example, a State could
choose to identify children based on
absolute low achievement and
consideration of exclusionary factors as
one criterion for eligibility. Other
alternatives might combine features of
different models for identification. We
believe the evaluation procedures in
section 614(b)(2) and (b)(3) of the Act
give the Department the flexibility to
allow States to use alternative, research-
based procedures for determining
whether a child has an SLD and is
eligible for special education and
related services.
Changes: None.
Comment: One commenter stated that
alternative research-based procedures
are not based on scientific research and
should therefore be removed.
Discussion: The Department does not
support the use of identification
procedures that are not based on
scientific research. Models or
procedures that claim to assist in
identifying a child with an SLD, but
which are not based on sound scientific
research, are not appropriate and should
not be adopted by LEAs or States.
Changes: None.
Comment: A few commenters stated
that the meaning of alternative research-
based procedures is unclear and should
be defined. One commenter stated that
there would be inappropriate
interventions and procedures without
further clarification as to the meaning of
alternative research-based procedures.
Discussion: As noted in the Analysis
of Comments and Changes section for
subpart A, we have added the definition
of scientifically based research from
section 9101(37) of the ESEA to the
definitions section of these regulations.
This definition is the most appropriate
definition to include in these
regulations, given the importance
Congress placed on aligning the Act
with the ESEA. The Department does
not intend to dictate how extensive the
research must be or who, within an LEA
or State, should determine that the
research is of high quality. We believe
that this is a matter best left to State and
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local officials because determining the
presence of an appropriate instructional
process is part of the State-adopted
criteria. This addition should provide
the clarity requested by the commenters.
Changes: We have added a definition
of scientifically based research to
§ 300.35, giving the term the definition
in section 9101(37) of the ESEA.
Consistency With State Criteria
(§ 300.307(b))
Comment: Several commenters
expressed concern about allowing States
to decide on the approach to
determining whether a child has an
SLD, and requested the Department
develop criteria to be used across the
nation. However, numerous commenters
supported the development of State
criteria and requiring public agencies to
use the State criteria to determine
whether a child has an SLD. Many
commenters stated that this requirement
is necessary to prevent inconsistent
eligibility requirements among LEAs in
a State. Other commenters stated that
the requirement exceeds statutory
authority and that LEAs should be
allowed to make decisions about the
criteria and methods to identify
children with SLD.
Discussion: The Department believes
that eligibility criteria must be
consistent across a State to avoid
confusion among parents and school
district personnel. The Department also
believes that requiring LEAs to use State
criteria for identifying children with
disabilities is consistent with the State’s
responsibility under section 612(a)(3) of
the Act to locate, identify, and evaluate
all eligible children with disabilities in
the State. We believe this provides the
Department with the authority to
require a public agency to use State
criteria in determining whether a child
has an SLD, consistent with §§ 300.307
through 300.311.
Changes: None.
Comment: A few commenters
requested requiring States to adopt and
implement only one model to determine
whether a child has an SLD. However,
several commenters requested that
States and LEAs have the flexibility to
use more than one model. One
commenter noted that States need
flexibility to determine eligibility
criteria until there is greater
understanding of the effectiveness of
evidence-based protocols in identifying
children with SLD.
Discussion: There is nothing in the
Act that would require a State to use
one model of identification to identify a
child with an SLD. We do not believe
the regulations should include such a
requirement, because section 614(b)(6)
of the Act indicates that some flexibility
in the selection of models of
identification by LEAs can be
appropriate, if permitted by the State.
Changes: None.
Comment: One commenter
recommended that the Department
require States to develop a plan to
implement Statewide eligibility criteria
that includes dissemination of research-
based models, collecting data on the use
of such models, providing professional
development on the State’s criteria, and
implementing appropriate services and
instruction.
Discussion: We agree that it could be
helpful for States to develop a plan to
implement any new SLD criteria, as
recommended by the commenter.
However, we do not believe States
should be required to adopt such a plan,
as this is a matter that is best left to
individual States to decide.
Changes: None.
Group Members (§ 300.308)
Comment: Several commenters
requested an explanation of the use of
‘‘group members’’ rather than ‘‘team
members’’ to describe the group that
determines whether a child suspected of
having an SLD is a child with a
disability. One commenter stated that
the eligibility determination is an IEP
Team function and, therefore, using the
term ‘‘group members’’ is inappropriate.
One commenter stated that § 300.308 is
confusing because the group seems to be
the same as the IEP Team.
Discussion: The change from ‘‘team
members’’ to ‘‘group members’’ was
made in the 1999 regulations to
distinguish this group from the IEP
Team, because the team of qualified
professionals and the parent in
§ 300.306(a)(1) that makes the eligibility
determination does not necessarily have
the same members as an IEP Team. In
some States, this group of professionals
may have the same individuals as the
IEP Team, but in other States, this is not
the case. We inadvertently referred to
‘‘team members’’ in 300.309(a)(2)(ii)
and, therefore, will change this to
‘‘group.’’
Changes: We have changed ‘‘team
members’’ to ‘‘group’’ in
§ 300.309(a)(2)(ii) to be consistent with
§ 300.306(a)(1).
Comment: Several commenters stated
that the requirements for the
qualifications of the group members in
proposed § 300.308(a) are unnecessary
and should be removed because they are
not included in the Act, are overly
prescriptive, and add another set of
procedural requirements. On the other
hand, a number of commenters
recommended additional or different
qualifications that should be required of
the group members in § 300.308. Several
commenters recommended that the
group members be qualified to conduct
assessments in the area of ‘‘cognition’’
rather than ‘‘intellectual development’’
to ensure that specific cognitive abilities
are assessed, rather than global
intellectual abilities.
Several commenters recommended
that proposed § 300.308(a)(2), requiring
group members to apply ‘‘critical
analysis’’ to the data, be changed to
require group members to apply
‘‘clinical’’ analysis to the data. One
commenter stated that clinical analysis
should be defined and suggested a
definition that includes professional
judgment informed by empirical
research, training, and experience, and
guided by interpretation of patterns in
evaluation findings from a number of
sources (e.g., test scores; interviews;
work samples; observational data; and
information from parents, school
personnel, and other related services
providers).
A few commenters recommended
requiring evaluations to be completed
by certified speech-language
pathologists and school psychologists to
ensure that qualified professionals
conduct the assessments. One
commenter recommended that the
examples of the areas for diagnostic
assessments be preceded by ‘‘such as’’
to avoid a misinterpretation that a
speech-language pathologist, for
example, is mandated to participate in
every SLD determination.
Several commenters agreed with the
professional competencies for the group
members described in § 300.308(a).
However, one commenter stated that
‘‘collectively qualified’’ is too broad a
term and should be more narrowly
defined. Another commenter stated that
there is no way to ensure that the group
members possess the necessary
expertise unless there is a mechanism to
determine whether the group members
have the specified competencies in
proposed § 300.308(a).
One commenter stated that, although
professionals from more than one
discipline may be qualified to
administer certain assessments, they do
not bring the same expertise to the
process. One commenter asked if a
special education teacher, a regular
education teacher, and parent were all
that would be necessary if they
collectively met the competency
requirements.
Several commenters stated that the
list of professionals in proposed
§ 300.308(b) for the eligibility group
should be removed and decisions about
group members left to schools and
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2 Donovan, M.S., & Cross, C.T. (2002). Minority
students in special and gifted education.
Washington, DC: National Academy Press; Bradley,
L., Danielson, & Hallahan, D.P. (Eds.). Identification
of learning disabilities: Research to practice.
Mahway, NJ: Erlbaum; Hoskyn, M., & Swanson, H.L
(2000). Cognitive processing of low achievers and
children with reading disabilities: A selective meta-
analytic review of the published literature. The
School Psychology Review, 29, 102–119; Steubing,
K.K., Fletcher, J.M., LeDoux, J.M., Lyon, G.R.,
Shaywitz, S.E., & Shoywitz B.A. (2002). Validity of
IQ-discrepancy, classifications of reading
disabilities: A meta-analysis. American Educational
Research Journal, 39, 469–518.
districts. Other commenters stated that
the requirements for the eligibility
group should be the same as those for
the group that determines the eligibility
of children suspected of all other
disabilities.
Many commenters recommended that
additional or different professionals
should be included in the group.
Numerous commenters recommended
including speech-language pathologists
in the group because of their expertise
in reading and conducting individual
diagnostic assessments in the areas of
speech and language.
A few commenters stated that a
school psychologist should be a
required member of the group, rather
than listed as ‘‘if appropriate.’’ One of
these commenters stated that, even if
school psychologists are no longer
required to administer assessments to
determine whether there is a
discrepancy between the child’s
achievement and ability, school
psychologists conduct assessments
related to cognitive functioning,
behavior, and other issues that may
affect a child’s learning.
Numerous commenters recommended
requiring the special education teacher
who is part of the eligibility group to
have expertise in the area of SLD.
However, one commenter stated that it
is unnecessary for a special education
teacher to be part of the group because
the teacher would not have any
instructional experience with the yet-to-
be identified child and nothing in the
Act requires special education teachers
to possess any diagnostic expertise in
the area of SLD.
One commenter recommended that
the group include a teacher with
experience in teaching children who are
failing or at-risk for failing, in addition
to a general education and special
education teacher. Several commenters
recommended adding a reading
specialist as a required member. A few
commenters recommended including a
social worker as a required member,
stating that it is important that one of
the members examine the child’s home
and community environment to rule out
environmental and economic factors as
a primary source of the child’s learning
difficulties. Another commenter
recommended adding a guidance
counselor as a required member. One
commenter recommended including a
school nurse and stated that a school
nurse can contribute information about
educationally relevant medical findings.
One commenter stated that a reading
teacher and an educational therapist
should always be included in the group.
A few commenters were not familiar
with the role of an educational therapist
and requested a definition or
elimination of the term from the list of
‘‘other professionals.’’ One commenter
stated that two of the three professionals
listed as ‘‘other professionals’’ (school
psychologist, reading teacher,
educational therapist) are not
credentialed and questioned why they
were included in the group.
Discussion: The Department has
considered the diversity of comments
received and, given the lack of
consensus about which individuals
should be included in the group that
makes eligibility determinations for
children suspected of having an SLD,
believes that the requirements in current
§ 300.540 should be retained. Current
§ 300.540 states that the eligibility group
for children suspected of having SLD
must include the child’s parents and a
team of qualified professionals, which
must include the child’s regular teacher
(or if the child does not have a regular
teacher, a regular classroom teacher
qualified to teach a child of his or her
age) or for a child of less than school
age, an individual qualified by the SEA
to teach a child of his or her age; and
at least one person qualified to conduct
individual diagnostic examinations of
children, such as a school psychologist,
speech-language pathologist or remedial
reading teacher. We believe this allows
decisions about the specific
qualifications of the members to be
made at the local level, so that the
composition of the group may vary
depending on the nature of the child’s
suspected disability, the expertise of
local staff, and other relevant factors.
For example, for a child suspected of
having an SLD in the area of reading, it
might be important to include a reading
specialist as part of the eligibility group.
However, for a child suspected of
having an SLD in the area of listening
comprehension, it might be appropriate
for the group to include a speech-
language pathologist with expertise in
auditory processing disorders. Current
§ 300.540 provides flexibility for schools
and districts, and ensures that the group
includes individuals with the
knowledge and skills necessary to
interpret the evaluation data and make
an informed determination as to
whether the child is a child with an
SLD, and the educational needs of the
child.
Changes: Section 300.308 has been
changed to include the requirements
from current § 300.540.
Determining the Existence of a Specific
Learning Disability (§ 300.309)
Comment: One commenter stated that
there is no authority in the Act for the
SLD eligibility requirements outlined in
§ 300.309.
Discussion: We agree that the
statutory language is broad and does not
include the specific requirements to
determine whether a child suspected of
having an SLD is a child with a
disability. The purpose of these
regulations, however, is to provide
details to assist States in the appropriate
implementation of the Act. We believe
the requirements in § 300.309 are
necessary to ensure that States have the
details necessary to implement the Act.
Changes: None.
Comment: One commenter stated that
RTI was Congress’ preference for
determining eligibility under SLD, and
therefore, the criteria for RTI should be
the first paragraph of § 300.309
(Determining the existence of a specific
learning disability).
Discussion: The Department believes
that the criteria in § 300.309 are
presented in a logical order and are
consistent with the Act.
Changes: None.
Comment: One commenter stated that
a discrepancy between intellectual
ability and achievement can
differentiate between children with
disabilities and children with general
low achievement, and noted that the
problems with discrepancy models have
been in implementation, rather than in
the concept itself for identifying
children with SLD.
Discussion: There is a substantial
research base summarized in several
recent consensus reports (Donovan &
Cross, 2002; Bradley et al., 2003) and
meta-analyses (Hoskyn & Swanson,
2000; Steubing et al., 2002) that does not
support the hypothesis that a
discrepancy model by itself can
differentiate children with disabilities
and children with general low
achievement.2 Therefore, we disagree
with the comment because such a
differentiation is not possible with any
single criterion, including RTI.
Changes: None.
Comment: One commenter requested
retaining the language in current
§ 300.541, regarding the use of
discrepancy models.
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3 Bradley, R., Danielson, L., & Hallahan, D.P.
(Eds.). (2002). Identification of learning disabilities:
Research to practice. Mahwah, NJ: Erlbaum.
4 Bijou, S.W. (1942). The psychometric pattern
approach as an aid to clinical assessment—a
review. American Journal of Mental Deficiency, 46,
354–362.
5 Kavale, K. (2002). Discrepancy models in the
identification of learning disabilities. In R. Bradley,
L. Danielson, & D.P. Hallahan (Eds.). Identification
of learning disabilities: Research to practice (pp.
370–371). Mahwah, NJ: Erlbaum.
6 Cronbach, L.J. (1957). The two disciplines of
scientific psychology. American Psychologist, 12,
671–684.
7 Fletcher, J.M., Denton, C., & Francis, D.J. (2005).
Validity of alternative approaches for the
identification of LD: Operationalizing unexpected
underachievement. Journal of Learning Disabilities,
38, 545–552; Reschly, D.J., & Tilly, W.D. (1999).
Reform trends and system design alternatives. In
D.J. Reschly, W.D. Tilly, III, and J.P. Grimes (Eds.).
Special education in transition: Functional
assessment and noncategorical programming.
Longmont, CO: Sopris West.
Discussion: Section 614(b)(6) of the
Act prohibits States from requiring a
discrepancy approach to identify
children with SLD. Current § 300.541
requires a discrepancy determination
and is, therefore, inconsistent with the
Act.
Changes: None.
Comment: One commenter requested
that the eligibility group be allowed to
consider the results from standardized,
individualized testing (not just
criterion-based testing or functional
assessments) in the eligibility
determination.
Discussion: Nothing in the Act or
these regulations would preclude the
eligibility group from considering
results from standardized tests when
making eligibility determinations.
Changes: None.
Comment: Many commenters
recommended adding the concept of
psychological processing disorders to
the eligibility criteria in § 300.309.
Several commenters noted that the
criteria in § 300.309 do not fully address
the definition of SLD in § 300.8(c)(10),
which includes a processing disorder in
one or more of the basic psychological
processes. Several commenters stated
that, without requiring documentation
of a basic psychological processing
disorder, the number of children
identified with SLD will significantly
increase and the use of assessment tools
that have the potential to significantly
guide instruction will decrease. Several
commenters stated that failure to
consider individual differences in
cognitive processing skills reverses
more than 20 years of progress in
cognitive psychology and
developmental neuroscience. One
commenter stated that identifying a
basic psychological processing disorder
would help ensure that children
identified with an SLD are not simply
victims of poor instruction. One
commenter stated that the shift away
from requiring diagnostic assessments
in the area of cognition would make it
conceptually impossible to document
that a child has a disorder in one or
more of the basic psychological
processes, as required in the definition
of SLD in § 300.8(c)(10).
Discussion: The Department does not
believe that an assessment of
psychological or cognitive processing
should be required in determining
whether a child has an SLD. There is no
current evidence that such assessments
are necessary or sufficient for
identifying SLD. Further, in many cases,
these assessments have not been used to
make appropriate intervention
decisions. However, § 300.309(a)(2)(ii)
permits, but does not require,
consideration of a pattern of strengths or
weaknesses, or both, relative to
intellectual development, if the
evaluation group considers that
information relevant to an identification
of SLD. In many cases, though,
assessments of cognitive processes
simply add to the testing burden and do
not contribute to interventions. As
summarized in the research consensus
from the OSEP Learning Disability
Summit (Bradley, Danielson, and
Hallahan, 2002), ‘‘Although processing
deficits have been linked to some SLD
(e.g., phonological processing and
reading), direct links with other
processes have not been established.
Currently, available methods for
measuring many processing difficulties
are inadequate. Therefore,
systematically measuring processing
difficulties and their link to treatment is
not yet feasible * * *. Processing
deficits should be eliminated from the
criteria for classification * * *.’’ (p.
797).3 Concerns about the absence of
evidence for relations of cognitive
discrepancy and SLD for identification
go back to Bijou (1942; 4 see Kavale,
2002) 5. Cronbach (1957) 6 characterized
the search for aptitude by treatment
interactions as a ‘‘hall of mirrors,’’ a
situation that has not improved over the
past few years as different approaches to
assessment of cognitive processes have
emerged (Fletcher et al., 2005; Reschly
& Tilly, 1999) 7.
Changes: None.
Comment: Several commenters
requested that the regulations include a
definition of ‘‘intellectual
development.’’
Discussion: We do not believe it is
necessary to define ‘‘intellectual
development’’ in these regulations.
Intellectual development is included in
§ 300.309(a)(2)(ii) as one of three
standards of comparison, along with age
and State-approved grade-level
standards. The reference to ‘‘intellectual
development’’ in this provision means
that the child exhibits a pattern on
strengths and weaknesses in
performance relative to a standard of
intellectual development such as
commonly measured by IQ tests. Use of
the term is consistent with the
discretion provided in the Act in
allowing the continued use of
discrepancy models.
Changes: None.
Comment: Several commenters stated
that intra-individual differences,
particularly in cognitive functions, are
essential to identifying a child with an
SLD and should be included in the
eligibility criteria in § 300.309.
Discussion: As indicated above, an
assessment of intra-individual
differences in cognitive functions does
not contribute to identification and
intervention decisions for children
suspected of having an SLD. The
regulations, however, allow for the
assessment of intra-individual
differences in achievement as part of an
identification model for SLD. The
regulations also allow for the
assessment of discrepancies in
intellectual development and
achievement.
Changes: None.
Comment: One commenter requested
guidance on how to determine whether
a child was provided with learning
experiences appropriate for the child’s
age, as required in § 300.309(a)(1).
Discussion: While such guidance
might be helpful, we believe SEAs and
LEAs are in the best position to provide
guidance on age-appropriate learning
experiences.
Changes: None.
Comment: Several commenters
expressed support for the requirements
in § 300.309(a)(1) and stated that the
first element of determining eligibility
for an SLD is a finding that the child
does not achieve commensurate with
the child’s age in one or more of the
eight areas when provided with learning
experiences appropriate to the child’s
age. However, several commenters
requested requiring that eligibility
determinations for an SLD include
evidence that the child’s achievement
level is not commensurate with the
child’s age and ability (emphasis
added). One commenter indicated that
knowledge of a child’s ability level is
important to ensure that a determination
is not based on deficits in areas not
related to cognitive processing (e.g., lack
of opportunity to learn, social or
emotional disturbances), and to prevent
misdiagnosis of children with mental
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8 Burns, M., Appleton, J., Stehouwer, J. (2005).
Meta-analytic review of responsiveness-to-
intervention research: Examining field-based and
research-implemented models. Journal of
Psychoeducational Assessment, 23, 381–394.
retardation and SLD. One commenter
stated that § 300.309(a)(1) would allow
any child who failed to achieve
commensurate with his or her age to be
considered to have an SLD, and this will
increase the number of children referred
for special education and related
services.
Several commenters expressed
concern that the eligibility
determination for SLD is based on
whether the child achieves
commensurate with his or her age
because current practice uses normative
data that are based on grade level. These
commenters recommended clarifying
that grade level or classmate
performance should also be considered.
Discussion: The first element in
identifying a child with SLD should be
a child’s mastery of grade-level content
appropriate for the child’s age or in
relation to State-approved grade-level
standards, not abilities. This emphasis
is consistent with the focus in the ESEA
on the attainment of State-approved
grade-level standards for all children.
State-approved standards are not
expressed as ‘‘norms’’ but represent
benchmarks for all children at each
grade level. The performance of
classmates and peers is not an
appropriate standard if most children in
a class or school are not meeting State-
approved standards. Furthermore, using
grade-based normative data to make this
determination is generally not
appropriate for children who have not
been permitted to progress to the next
academic grade or are otherwise older
than their peers. Such a practice may
give the illusion of average rates of
learning when the child’s rate of
learning has been below average,
resulting in retention. A focus on
expectations relative to abilities or
classmates simply dilutes expectations
for children with disabilities.
We will modify § 300.309(a)(1) to
clarify that, as a first element in
determining whether a child has an
SLD, the group must determine that the
child does not demonstrate achievement
that is adequate for the child’s age or the
attainment of State-approved grade-level
standards, when provided with learning
experiences and instruction appropriate
for the child’s age or State-approved
grade-level standards in one or more of
the areas listed in § 300.309(a)(1). The
reference to ‘‘State-approved grade-level
standards’’ is intended to emphasize the
alignment of the Act and the ESEA, as
well as to cover children who have been
retained in a grade, since age level
expectations may not be appropriate for
these children. The reference to
‘‘instruction’’ will be added to
emphasize that children may not be
identified as having SLD if there is no
documentation of appropriate
instruction, consistent with the Act and
the ESEA. Consistent with this change,
we will add a reference to ‘‘State-
approved grade-level standards’’ in
§§ 300.309(a)(2)(i) and (ii). We will also
combine proposed § 300.311(a)(5) and
(6) into § 300.311(a)(5) to ensure
consistency with the requirements in
§ 300.309(a).
Changes: We have modified
§ 300.309(a)(1) and §§ 300.309(a)(2)(i)
and (ii), and combined proposed
§ 300.311(a)(5) and (6) into
§ 300.311(a)(5) to ensure consistency
with the requirements in § 300.309(a).
Comment: Several commenters
expressed support for including reading
fluency in the list of areas to be
considered when determining whether a
child has an SLD. However, several
commenters recommended removing
reading fluency from the list in
§ 300.309(a)(1), stating that a weakness
in reading fluency, in isolation, does not
indicate a reading disability.
Discussion: No assessment, in
isolation, is sufficient to indicate that a
child has an SLD. Including reading
fluency in the list of areas to be
considered when determining whether a
child has an SLD makes it more likely
that a child who is gifted and has an
SLD would be identified. Fluency
assessments are very brief and highly
relevant to instruction. We, therefore, do
not believe that reading fluency should
be removed from § 300.309(a)(1).
Changes: None.
Comment: Many commenters stated
that eligibility criteria based on RTI
models will result in dramatic increases
in referrals, special education
placements, and legal problems. One
commenter stated that the eligibility
criteria in § 300.309 do not provide
sufficient checks and balances to ensure
that only those children who truly
require special education are identified
as having SLD. A few commenters
stated that using an RTI model would
result in incorrectly identifying
underachieving children as having SLD.
Discussion: We do not believe that
eligibility criteria based on RTI models
will result in dramatic increases in
referrals and special education
placements. Well-implemented RTI
models and models that identify
problems early and promote
intervention have reduced, not
increased, the number of children
identified as eligible for special
education services and have helped
raise achievement levels for all children
in a school.8 We believe that the
regulations do provide sufficient checks
to ensure that only children who need
special education and related services
are identified as having SLD.
Changes: None.
Comment: Several commenters stated
that the language in § 300.309(a)(2)(ii) is
very confusing and should be rewritten.
Many commenters stated that the word
‘‘or’’ instead of ‘‘and’’ should be used
between § 300.309(a)(2)(i) and
§ 300.309(a)(2)(ii), because otherwise a
child could be identified with an SLD
because he or she failed to meet passing
criteria on a State assessment, and
failure to make sufficient progress on a
State-approved assessment alone is not
grounds for a determination that a child
has an SLD. Several commenters stated
that the phrase, ‘‘pattern of strengths
and weaknesses in performance,
achievement, or both’’ is a typographical
error because it is repeated twice.
Discussion: We do not agree that
‘‘and’’ should be used instead of ‘‘or’’
between § 300.309(a)(2)(i) and (ii),
because this would subject the child to
two different identification models. We
agree that failing a State assessment
alone is not sufficient to determine
whether a child has an SLD. However,
failing a State assessment may be one
factor in an evaluation considered by
the eligibility group. As required in
§ 300.304(b)(1), consistent with section
614(b)(2)(A) of the Act, the evaluation
must use a variety of assessment tools
and strategies to gather relevant
information about the child. Further,
§ 300.304(b)(2), consistent with section
614(b)(2)(B) of the Act, is clear that
determining eligibility for special
education and related services cannot be
based on any single measure or
assessment as the sole criterion for
determining whether a child is a child
with a disability.
We agree that § 300.309(a)(2)(ii) could
be stated more clearly and will rewrite
it to state that the eligibility group can
determine that a child has an SLD if the
child meets the criteria in
§ 300.309(a)(1) and exhibits a pattern of
strengths and weaknesses in
performance, achievement, or both,
relative to age and State-approved
grade-level standards, or intellectual
development, that is determined by the
group to be relevant to the identification
of an SLD.
Changes: We have changed
§ 300.309(a)(2)(ii) for clarity.
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Comment: Several commenters
requested a definition of ‘‘State-
approved results.’’ One commenter
stated that the language was extremely
confusing and that ‘‘State-approved
results’’ could be interpreted to mean
approved results that are equivalent to
proficiency on State assessments under
the ESEA, and this could lead to
eligibility determinations for a very
large group of older children with poor
reading performance for whom it would
be nearly impossible to make sufficient
progress to become proficient readers.
This commenter recommended
changing the language to refer to a
child’s failure to achieve a rate of
learning to make sufficient progress
based on ‘‘State-defined criteria.’’
Another commenter recommended
substituting ‘‘State achievement
standards’’ for ‘‘State approved results.’’
Discussion: The intention is to refer to
State assessments approved under the
ESEA. We have changed ‘‘State-
approved results’’ to ‘‘State-approved
grade-level standards.’’ We believe this
change adequately addresses the
commenters concerns.
Changes: We have removed ‘‘State-
approved results’’ and inserted in its
place ‘‘State-approved grade-level
standards’’ in § 300.309 and § 300.311.
Comment: One commenter stated that
including ‘‘State-approved results’’ in
§ 300.309(a)(2)(i) means that there is no
Federal definition of SLD.
Discussion: States must develop
criteria for determining whether a child
has an SLD that are consistent with the
Federal requirements in §§ 300.307
through 300.311 and the definition of
SLD in § 300.8(c)(10).
Changes: None.
Comment: A few commenters stated
that using the criteria in § 300.309(a)(2),
a child could meet State standards and
still be identified as a child with an
SLD.
Discussion: We agree with the
commenters. Accelerated growth
toward, and mastery of, State-approved
grade-level standards are goals of
special education. Furthermore, as
stated in § 300.101, the fact that a child
is advancing from grade to grade does
not make a child with a disability
ineligible for special education and
related services. However, consistent
with § 300.8, the group making the
eligibility determination must conclude
both that the child has an SLD and, that,
because of that disability, the child
needs special education and related
services.
Changes: None.
Comment: Many commenters
requested more detail and specific
guidelines on RTI models, such as
information on who initiates the RTI
process and who should be involved in
the process; how one ensures there is a
strong leader for the RTI process; the
skills needed to implement RTI models;
the role of the general education
teacher; how to determine that a child
is not responsive to instruction,
particularly a child with cultural and
linguistic differences; the number of
different types of interventions to be
tried; the responsibility for monitoring
progress; the measurement of treatment
integrity; and ways to document
progress. One commenter stated that it
is imperative that the regulations allow
the flexibility necessary to
accommodate the array of RTI models
already in use.
Several commenters requested that
the Department define and set a
standard for responsiveness that calls
for demonstrated progress and
improvement in the rate of learning, to
indicate that a child can function in the
classroom. Several commenters stated
that there would be a dramatic increase
in the number of children identified
with an SLD without a clearly defined
system in place.
Discussion: There are many RTI
models and the regulations are written
to accommodate the many different
models that are currently in use. The
Department does not mandate or
endorse any particular model. Rather,
the regulations provide States with the
flexibility to adopt criteria that best
meet local needs. Language that is more
specific or prescriptive would not be
appropriate. For example, while we
recognize that rate of learning is often a
key variable in assessing a child’s
response to intervention, it would not
be appropriate for the regulations to set
a standard for responsiveness or
improvement in the rate of learning. As
we discussed earlier in this section, we
do not believe these regulations will
result in significant increases in the
number of children identified with SLD.
Changes: None.
Comment: One commenter stated that,
without additional clarity, eligibility
criteria will vary substantially among
States and that States will have
definitions that are suited to their
individual preferences, rather than a
universal sense of what constitutes
eligibility under SLD based on the
research and national standards of
professional practice.
Discussion: State eligibility criteria
must meet the requirements in
§§ 300.307 through 300.111 and LEAs
must use these State-adopted criteria.
We believe that, although these
provisions allow States some flexibility
in how children with SLD are
identified, the requirements in these
provisions will ensure that SLD criteria
do not vary substantially across States.
Changes: None.
Comment: One commenter stated that,
without more clarity in the
requirements for RTI models, there
would be an increase in the number of
eligibility disputes between parents and
school districts.
Discussion: We do not believe more
clarity in the requirements for RTI
models is necessary. States can avoid
disputes over eligibility determinations
by developing clear criteria, consistent
with the regulatory parameters, and
providing staff with the necessary
guidance and support to implement the
criteria.
Changes: None.
Comment: One commenter urged the
Department to encourage States to
convene a group of education,
disability, and parent stakeholders to
discuss and design a model approach to
early identification of children with
SLD.
Discussion: The Department agrees
that it is important to identify children
with SLD early and to provide the
necessary instruction and supports to
avoid referrals to special education. The
extent to which States involve other
interested parties (e.g., disability groups,
parent groups) in the design or
development of such a system is a
decision that should be made by each
State.
Changes: None.
Comment: A few commenters stated
that professional development
requirements to implement RTI models
should be incorporated into the
regulations so RTI models are not
haphazardly implemented. One
commenter stated that before RTI can be
used systematically as part of the
special education identification process,
school districts must have
administrative support at all levels,
ongoing professional development for
all staff, and coordination with
institutions of higher education. Several
commenters recommended encouraging
States to develop efficient, collaborative
evaluation systems. One commenter
recommended requiring regular
education teachers to address the needs
of children with different learning
styles, identify early and appropriate
interventions for children with
behavioral challenges, and understand
and use data and assessments to
improve classroom practices and
learning.
Discussion: We agree that
administrative support, professional
development, and coordination with
teacher training programs would be
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helpful in the effective implementation
of RTI models. We also agree that
efficient and collaborative evaluation
systems should be developed, and that
all teachers, including regular education
teachers, should be trained to address
the needs of children with different
learning styles, identify early and
appropriate interventions for children
with behavioral challenges, and
understand and use data and
assessments to improve classroom
practices and learning. However,
professional development requirements
are a State responsibility, consistent
with § 300.156 and section 612(a)(14) of
the Act, and it would be inappropriate
for the Department to include specific
professional development requirements
in these regulations.
Changes: None.
Comment: One commenter stated that
if a State prohibits the use of a
discrepancy model, there would not be
sufficient time or funds necessary to
effectively train staff. Several
commenters asked that there be a
transition period so that personnel can
be adequately trained in RTI or other
forms of assessment and observation.
Discussion: It is not necessary for
these regulations to require a transition
period for implementing RTI models,
particularly because there are many
schools and districts currently
implementing RTI models. Under the
requirements in section 614(b)(6) of the
Act, which took effect July 1, 2005,
States should have developed
mechanisms to permit LEAs to use RTI
models. States may need to make
adjustments based on these final
regulations. Nothing in these regulations
requires an LEA to drop current
practices in favor of a new model with
no transition. Obviously, a plan would
need to be developed when changing to
an RTI model, including strategies for
implementation and professional
development.
Changes: None.
Comment: Many commenters stated
that the use of RTI models would be
costly, requiring massive staff training
and resources. Many commenters
recommended ways in which the
Department could support States in
improving identification and
interventions for children with SLD.
Commenters’ recommendations
included the following: long-term,
Statewide pilot studies on assessments
and interventions for children with
SLD; methods to increase the use of RTI;
guidance on establishing appropriate
timelines for instructional interventions;
and information on new scientifically
based approaches to identifying
children with SLD.
Discussion: The Department
recognizes the need for technical
assistance and training to implement
RTI models and is directing technical
assistance funds under Part D of the Act,
administered by the Department’s Office
of Special Education Programs (OSEP),
toward this effort. OSEP plans to
develop and disseminate an RTI
resource kit and devote additional
resources to technical assistance
providers to assist States in
implementing RTI models. OSEP will
also continue to identify and develop
model RTI implementation sites and
evaluate SLD identification models in
math and reading. In addition, the
Comprehensive Center on Instruction,
jointly funded by OSEP and the Office
of Elementary and Secondary Education
(OESE), will provide technical
assistance to States on RTI
implementation.
Changes: None.
Comment: Many commenters
supported examining the pattern of
strengths and weaknesses in
determining whether a child is
considered to have an SLD. A number
of commenters stated that it is important
that groups use a process to determine
whether a child responds to scientific,
research-based interventions, as well as
consider relevant, empirically validated
patterns of strengths and weaknesses in
achievement, performance, or both,
relative to intellectual development.
One commenter stated that ‘‘pattern of
strengths and weaknesses in
performance’’ in § 300.309(a)(2)(ii) is
insufficiently defined and without a
clearer definition of ‘‘pattern,’’ schools
will continue the wait-to-fail model.
One commenter recommended
clarifying the meaning of ‘‘weakness,’’
stating that weakness does not mean
failure, and that there may be specific
actions that could address weaknesses
in performance that would result in
failure if left alone.
Discussion: Patterns of strengths and
weaknesses commonly refer to the
examination of profiles across different
tests used historically in the
identification of children with SLD. We
believe that the meaning of ‘‘pattern of
strengths and weaknesses’’ is clear and
does not need to be clarified in these
regulations.
Changes: None.
Comment: Some commenters stated
that using a pattern of strengths and
weaknesses in a child’s performance to
identify a child with an SLD could be
misinterpreted to identify children,
other than children with disabilities,
who are underperforming due to
cultural factors, environmental or
economic disadvantage, or low effort.
Discussion: Section 300.309(a)(3) is
clear that children should not be
identified with SLD if the
underachievement is primarily the
result of a visual, hearing, or motor
disability; mental retardation; emotional
disturbance; cultural factors; or
environmental or economic
disadvantage. The eligibility group
makes the determination after the
evaluation of the child is completed.
Therefore, we believe that there is
minimal risk that a child who is
underachieving due to these factors will
be identified as having an SLD.
Changes: None.
Comment: Some commenters
recommended using ‘‘cognitive ability’’
in place of ‘‘intellectual development’’
because ‘‘intellectual development’’
could be narrowly interpreted to mean
performance on an IQ test. One
commenter stated that the term
‘‘cognitive ability’’ is preferable because
it reflects the fundamental concepts
underlying SLD and can be assessed
with a variety of appropriate assessment
tools. A few commenters stated that the
reference to identifying a child’s pattern
of strengths and weaknesses that are not
related to intellectual development
should be removed because a cognitive
assessment is critical and should always
be used to make a determination under
the category of SLD.
Discussion: We believe the term
‘‘intellectual development’’ is the
appropriate reference in this provision.
Section 300.309(a)(2)(ii) permits the
assessment of patterns of strengths and
weakness in performance, including
performance on assessments of
cognitive ability. As stated previously,
‘‘intellectual development’’ is included
as one of three methods of comparison,
along with age and State-approved
grade-level standards. The term
‘‘cognitive’’ is not the appropriate
reference to performance because
cognitive variation is not a reliable
marker of SLD, and is not related to
intervention.
Changes: None.
Comment: One commenter reviewed
the list of factors in § 300.309(a)(3) that
must be ruled out as primary reasons for
a child’s performance and asked
whether children with other health
impairments (OHI), traumatic brain
injury (TBI), or speech impairments
would overlap with the SLD definition.
Several commenters noted that many
children with hearing, visual, or motor
disabilities; mental retardation; or
emotional disturbances (ED) also have
concomitant learning disabilities that go
unidentified, and that these children
end up with lower academic and
functional achievement levels than they
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should because an important
contributing factor to their learning
problems has not been addressed.
Several commenters recommended
adding language to the regulations
stating that a child with a disability
other than an SLD may also be
identified with an SLD.
Discussion: Children with one of the
disabilities in § 300.8 should be
identified as a child with a disability
using the category that is most
appropriate for the child. Some children
may be identified under other disability
categories, such as OHI, TBI, ED, or
speech impairment, and may also have
low achievement and even meet SLD
criteria. Services must meet the child’s
needs and cannot be determined by the
child’s eligibility category. We believe it
is unnecessary to add language
regarding SLD as a concomitant
disability.
Changes: None.
Comment: One commenter asked
what kind of assessment identifies
culture as a primary cause of academic
performance deficits and recommended
removing the requirement in
§ 300.309(a)(3)(iv) unless there are
objective methods to determine whether
a child’s low performance is a result of
cultural factors.
Discussion: The identification of the
effect of cultural factors on a child’s
performance is a judgment made by the
eligibility group based on multiple
sources of information, including the
home environment, language
proficiency, and other contextual factors
gathered in the evaluation. The
Department believes that the
identification of children with SLD will
improve with models based on
systematic assessments of a child’s
response to appropriate instruction, the
results of which are one part of the
information reviewed during the
evaluation process to determine
eligibility for special education and
related services. States and public
agencies must follow the evaluation
procedures in §§ 300.304 and 300.305
and section 614(b) of the Act, including
using assessments and other evaluation
materials that do not discriminate on a
racial or cultural basis, consistent with
§ 300.304(c)(1)(i) and section
614(b)(3)(A)(i) of the Act.
Changes: None.
Comment: Many commenters
recommended that limited English
proficiency be among the factors that
the eligibility group must rule out as a
primary factor affecting a child’s
performance.
Discussion: Section 300.306(b)(1)(iii),
consistent with section 614(b)(5)(C) of
the Act, is clear that a child must not
be identified as a child with a disability
if the determinant factor for that
determination is limited English
proficiency. However, we agree that it is
important to re-emphasize this
requirement in § 300.309 and will add
this to the list of factors that the
eligibility group must rule out as a
primary factor affecting a child’s
performance.
Changes: We have added a new
paragraph (vi) to § 300.309(a)(3) to
include ‘‘limited English proficiency’’ in
the list of factors that must be ruled out
as a primary factor affecting a child’s
performance before determining that a
child is eligible for special education
services under the category of SLD.
Comment: Numerous commenters
supported the requirement in
§ 300.309(b)(1) for data demonstrating
that a child suspected of having an SLD
has been provided with high-quality,
research-based instruction in regular
education settings delivered by
qualified personnel. Several
commenters stated that this requirement
should apply to all children and asked
why this requirement is confined to
only children suspected of having SLD.
One commenter stated that if schools
would use proven best practices, there
would be fewer children in need of
special education in the later grades.
However, one commenter stated that it
is incorrect to assume that any child
who is not responding to interventions
must have an SLD when there are a
myriad of reasons why children may not
be responding to instruction. One
commenter recommended adding ‘‘to
the extent practicable’’ to acknowledge
that scientific research-based
interventions are not available in many
areas, particularly in mathematics. One
commenter recommended decreasing
the emphasis on research-based
instruction.
Discussion: Sections 300.306(b)(1)(i)
and (ii), consistent with section
614(b)(5)(A) and (B) of the Act,
specifically state that children should
not be identified for special education if
the achievement problem is due to lack
of appropriate instruction in reading or
mathematics. This issue is especially
relevant to SLD because lack of
appropriate instruction in these areas
most commonly leads to identifying a
child as having an SLD. All children
should be provided with appropriate
instruction provided by qualified
personnel. This is an important tenet of
the Act and the ESEA. Both the Act and
the ESEA focus on doing what works as
evidenced by scientific research and
providing children with appropriate
instruction delivered by qualified
teachers.
Changes: None.
Comment: We received a number of
comments concerning the requirement
for high-quality, research-based
instruction provided by qualified
personnel. One commenter stated that it
would be difficult for rural school
districts to meet this requirement
because of staffing requirements in the
regular education setting. Several
commenters stated that the requirement
for high-quality, research-based
instruction exceeds statutory authority
and should be removed, because it
provides a basis for challenging any
determination under the category of
SLD. One commenter asked for
clarification regarding the legal basis for
providing high-quality, research-based
instruction if the child is not
determined eligible for special
education. Another commenter stated
that attorneys will read § 300.309(b) as
providing a legal entitlement to ESEA,
research-based instruction and data-
based documentation for every child
considered for eligibility under the
category of SLD, and that when this
standard is not met, will bring the
matter to a due process hearing and
request compensatory education.
Numerous commenters requested a
definition of high-quality, research-
based instruction. One commenter
asked who validates that the research
meets the highest quality. Another
commenter asked that the regulations
specify how much research a program
must undergo before it is deemed to be
research-based. One commenter stated
that the Department must address how
States determine whether a child has
been provided with a high-quality,
research-based instructional program;
whether appropriate classroom
interventions were delivered; and
whether an intervention has been
successful. One commenter stated that
the absence of additional clarification
would result in great disparity in States’
policies and lead to inappropriate
interventions and procedures. One
commenter recommended that there be
evidence that the instruction is effective
for the child’s age and cultural
background.
A few commenters recommended that
children who are not progressing
because they have not received
research-based instruction by a qualified
teacher should immediately receive
intensive, high-quality, research-based
instruction by qualified personnel. One
commenter expressed concern that
§ 300.309(b) restricts referrals to only
those children who have received high-
quality, research-based instruction from
qualified teachers. One commenter
stated that a child’s eligibility to receive
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special education services under the
category of SLD appears to be
contingent on the LEA’s commitment to
providing effective regular education
services by qualified staff, and, as such,
a child with an SLD is held hostage by
a system that is not working. One
commenter asked whether the eligibility
group can make a determination that a
child has an SLD in the absence of a
child’s response to high-quality
research-based instruction.
Several commenters stated that the
lack of research-based instruction by a
qualified teacher should not limit a
child’s eligibility for services. Another
commenter recommended clarifying
that a child should not be found
ineligible under the category of SLD
because the child either did not respond
to a scientific, research-based
intervention during a truncated
evaluation, or because the child was not
provided an opportunity to respond to
such an intervention.
Discussion: Watering down a focus on
appropriate instruction for any children,
including children with disabilities or
children living in rural areas would be
counter to both the Act and the ESEA.
However, we agree that the requirement
for high quality, research-based
instruction exceeds statutory authority.
The Act indicates that children should
not be eligible for special education if
the low achievement is due to lack of
appropriate instruction in reading or
math. Therefore, we will change the
regulations to require that the eligibility
group consider evidence that the child
was provided appropriate instruction
and clarify that this means evidence that
lack of appropriate instruction was the
source of underachievement.
The eligibility group should not
identify a child as eligible for special
education services if the child’s low
achievement is the result of lack of
appropriate instruction in reading or
math. Eligibility is contingent on the
ability of the LEA to provide
appropriate instruction. Determining the
basis of low achievement when a child
has been given appropriate instruction
is the responsibility of the eligibility
group.
Whether a child has received
‘‘appropriate instruction’’ is
appropriately left to State and local
officials to determine. Schools should
have current, data-based evidence to
indicate whether a child responds to
appropriate instruction before
determining that a child is a child with
a disability. Children should not be
identified as having a disability before
concluding that their performance
deficits are not the result of a lack of
appropriate instruction. Parents of
children with disabilities have due
process rights that allow them to file a
complaint on any matter that relates to
the identification, evaluation, and
educational placement of their child
with a disability, and the provision of
FAPE to their child.
Changes: We have revised the
introductory material in § 300.309(b) to
emphasize that the purpose of the
review is to rule out a lack of
appropriate instruction in reading or
math as the reason for a child’s
underachievement. We have also
revised § 300.309(b)(1) to refer to
appropriate instruction rather than high-
quality, research-based instruction, and
removed the cross reference to the
ESEA.
Comment: One commenter stated that
many reading programs claim to be
research-based, but lack credible
evidence of the program’s effectiveness.
Discussion: Programs that claim to be
research-based, but which are not based
on sound scientific research, should not
be considered research-based
instruction by a State or LEA.
Changes: None.
Comment: One commenter asked
what criteria should be used to
determine that the child was provided
with appropriate high quality, research-
based instruction, especially when the
child has been home schooled or
attends a private school. One
commenter asked about children
referred for evaluation from charter
schools and expressed concern that
these children would not be eligible
under the category of SLD because they
did not have instruction delivered by
qualified personnel.
Discussion: As part of the evaluation,
the eligibility group must consider
whether the child received appropriate
instruction from qualified personnel.
For children who attend private schools
or charter schools or who are home-
schooled, it may be necessary to obtain
information from parents and teachers
about the curricula used and the child’s
progress with various teaching
strategies. The eligibility group also may
need to use information from current
classroom-based assessments or
classroom observations. On the basis of
the available information, the eligibility
group may identify other information
that is needed to determine whether the
child’s low achievement is due to a
disability, and not primarily the result
of lack of appropriate instruction. The
requirements for special education
eligibility or the expectations for the
quality of teachers or instructional
programs are not affected, and do not
differ, by the location or venue of a
child’s instruction.
Changes: None.
Comment: Many commenters
requested a definition of ‘‘qualified
personnel.’’ One commenter stated that
teachers should be trained to deliver the
program of instruction and simply
saying they should be highly qualified
is not sufficient. One commenter
recommended removing the phrase
‘‘qualified personnel’’ in § 300.309(b)(1),
because it is likely to be interpreted to
mean that instruction must be delivered
by highly qualified teachers, as defined
in the ESEA.
Discussion: Section 300.156 and
section 614(a)(14) of the Act are clear
that each State is responsible for
establishing and maintaining personnel
qualifications to ensure that personnel
are appropriately and adequately
prepared and trained, including that
those personnel have the content
knowledge and skills to serve children
with disabilities. Consistent with
§ 300.18 and section 602(10) of the Act,
a public school teacher, including a
special education teacher, who teaches
core academic subjects must meet the
highly qualified teacher standards under
the Act. The term that is used in
§ 300.309(b)(1), ‘‘qualified personnel,’’
does not, and should not be interpreted
to, require that private school teachers
be ‘‘highly qualified’’ to deliver the
instruction discussed in § 300.309(b)(1).
Changes: None.
Comment: One commenter asked
whether the regulations require an LEA
to provide high-quality, research-based
instruction in the regular education
setting prior to, or as part of, the referral
process before the group can determine
whether a child has an SLD. One
commenter recommended that research-
based interventions occur prior to a
referral to special education. Several
commenters stated that an evaluation to
assess all areas of suspected disability
should follow an assessment of a child’s
response to instruction.
Discussion: What is important is that
the group making the eligibility decision
has the information that it needs to rule
out that the child’s underachievement is
a result of a lack of appropriate
instruction. That could include
evidence that the child was provided
appropriate instruction either before, or
as a part of, the referral process.
Evidence of appropriate instruction,
including instruction delivered in an
RTI model, is not a substitute for a
complete assessment of all of the areas
of suspected need. As discussed earlier
in this section, we have revised
§ 300.309(b) to make this clear.
Changes: As discussed previously, we
have revised § 300.309(b).
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Comment: One commenter
recommended that data be maintained
on the number of children identified
with SLD.
Discussion: Data are maintained on
the number of children identified with
SLD. Section 618 of the Act requires
States to report annually to the
Department the number and percentage
of children with disabilities by
disability category, in addition to race,
ethnicity, limited English proficiency
status, and gender.
Changes: None.
Comment: Many commenters
recommended reinforcing the role of
parents in determining whether a child
has an SLD by adding language to
§ 300.309(b) stating that the child’s
parents and the group of qualified
professionals must consider whether the
child is a child with a disability.
Discussion: Section 300.306(a)(1),
consistent with section 614(b)(4)(A) of
the Act, is clear that the parent of the
child is included in eligibility
determinations. Section 300.309(a)
cross-references the group in § 300.306,
which includes the parent. We believe
this adequately addresses the role of the
parent and that no changes are
necessary.
Changes: None.
Comment: One commenter requested
a definition of ‘‘data-based
documentation.’’
Discussion: Data-based
documentation refers to an objective
and systematic process of documenting
a child’s progress. This type of
assessment is a feature of strong
instruction in reading and math and is
consistent with § 300.306(b)(1)(i) and
(ii) and section 614(b)(5)(A) and (B) of
the Act, that children cannot be
identified for special education if an
achievement problem is due to lack of
appropriate instruction in reading or
math.
Changes: None.
Comment: Numerous commenters
supported requiring data-based
documentation of repeated assessments
of achievement at reasonable intervals
to be provided to parents during the
time the child is receiving instruction.
One commenter emphasized the
importance of documenting that the
interventions used are data based and
implemented with fidelity. One
commenter stated that data-based
documentation should be provided to
all parents of children with disabilities,
not just children suspected of having
SLD. However, several commenters
stated that requiring data-based
documentation of repeated assessments
is an additional bureaucratic
requirement that is overly prescriptive
and costly, and will require additional
paperwork.
Discussion: We believe that one of the
most important aspects of good teaching
is the ability to determine when a child
is learning and then to tailor instruction
to meet the child’s individual needs.
Effective teachers use data to make
informed decisions about the
effectiveness of a particular
instructional strategy or program. A
critical hallmark of appropriate
instruction is that data documenting a
child’s progress are systematically
collected and analyzed and that parents
are kept informed of the child’s
progress. Assessments of a child’s
progress are not bureaucratic, but an
essential component of good
instruction.
Changes: None.
Comment: Several commenters
requested definitions for ‘‘repeated
assessments’’ and ‘‘reasonable
intervals.’’
Discussion: Instructional models vary
in terms of the frequency and number of
repeated assessments that are required
to determine a child’s progress. It would
be inappropriate for the Department to
stipulate requirements in Federal
regulations that would make it difficult
for districts and States to implement
instructional models they determine
appropriate to their specific
jurisdictions.
Changes: None.
Comment: One commenter
recommended removing the
requirement for data-based
documentation of repeated assessments
of achievement at reasonable intervals
because it would make it impossible to
determine eligibility if a child is new to
a school district and district personnel
do not have a child’s records with such
information.
Discussion: We do not believe
removing the requirement is the
appropriate solution to the commenter’s
problem. States will need to adopt
criteria for determining how to provide
such data for children new to a district.
Children should not be identified as
having SLD if there is no evidence of
appropriate instruction.
Changes: None.
Comment: One commenter expressed
concern that § 300.309(b)(2), requiring
parents to be informed of their child’s
repeated failure to perform well on
assessments, could be interpreted to
refer to the assessments under the ESEA
and that this would mean that a child
must perform poorly over a period of
several school years to be considered for
eligibility under the category of SLD.
Discussion: While the results of a
child’s performance on assessments
under the ESEA may be included as
data documenting a child’s progress,
relying exclusively on data from
Statewide assessments under the ESEA
would likely not meet the requirement
for repeated assessments at ‘‘reasonable
intervals,’’ as required by these
regulations. It is possible that a State
could develop other assessments tied to
the State approved test that would meet
these requirements.
Changes: None.
Comment: Numerous commenters
asked how long an intervention should
continue before determining a child has
not made adequate progress and a
referral for an evaluation to determine
eligibility for special education is made.
Several commenters recommended that
if a child is not making progress within
45 days, an evaluation should take
place. Other commenters recommended
a time limit of 90 days. One commenter
recommended the regulations include a
range of active intervention days, not
just a waiting period, within which the
IEP Team expects to notice a change,
and recommended between 45–75
school days. One commenter suggested
6–10 weeks as an appropriate period of
time.
A few commenters recommended
requiring States to establish reasonable
time limits for decision making. Several
commenters recommended requiring the
IEP Team and the parents to agree on an
appropriate period of time.
Several commenters stated that unless
a timeline is specified in the
regulations, there would be different
standards occurring throughout the
country. A few commenters expressed
concern that if time limits were not
clarified, school districts and parents
would interpret the timelines
differently, which would result in
contentious situations and litigation.
One commenter stated that a parent
could sue for compensatory services if,
after requesting an evaluation, the LEA
requires an assessment of how the child
responds to high quality research-based
instruction.
Several commenters stated that the
lack of a specific timeline means that an
evaluation could be indefinitely delayed
and children denied services. Several
commenters recommended adding
language to the regulations to ensure
that RTI models could not be used to
delay an evaluation of a child suspected
of having a disability, access to special
education and related services, or
protections under the Act.
In addition to requesting a definition
of an ‘‘appropriate period of time,’’ a
few commenters requested a definition
of ‘‘adequate progress’’ and
recommended adding language to
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require States to define ‘‘adequate
progress.’’ One commenter stated that a
child’s rate of learning needs to be
examined carefully. One commenter
offered a definition of a
‘‘developmentally appropriate rate’’ as
the time or the number of repetitions
required to have at least 85 percent of
children at the same age or grade level
acquire and retain the particular skill or
academic levels, as established by
research or by experience with the
delivery of that curriculum or program.
Discussion: Instructional models vary
in terms of the length of time required
for the intervention to have the intended
effect on a child’s progress. It would not
be appropriate for the Department to
establish timelines or the other
requirements proposed by the
commenters in Federal regulations,
because doing so would make it difficult
for LEAs to implement models specific
to their local school districts. These
decisions are best left to State and local
professionals who have knowledge of
the instructional methods used in their
schools.
The Department believes that good
instruction depends on repeated
assessments of a child’s progress. This
allows teachers to make informed
decisions about the need to change their
instruction to meet the needs of the
child, and also provides parents with
information about their child’s progress
so that they can support instruction and
learning at home. Parents should be
informed if there are concerns about
their child’s progress and should be
aware of the strategies being used to
improve and monitor their child’s
progress.
We understand the commenters’
requests for more specific details on
timelines and measures of adequate
progress. However, as noted above,
these decisions are best left to
professionals who have knowledge
about the instructional models and
strategies used in their States and
districts.
We also understand the commenters’
concerns that the requirements in
§ 300.309(b) may result in untimely
evaluations or services and that parents
must be fully informed about the
school’s concerns about their child’s
progress and interventions provided by
the school. Therefore, we will combine
proposed § 300.309(c) and (d), and
revise the new § 300.309(c) to ensure
that the public agency promptly
requests parental consent to evaluate a
child suspected of having an SLD who
has not made adequate progress when
provided with appropriate instruction,
which could include instruction in an
RTI model, and whenever a child is
referred for an evaluation. We will also
add a new § 300.311(a)(7)(ii) to ensure
that the parents of a child suspected of
having an SLD who has participated in
a process that evaluates the child’s
response to scientific, research-based
intervention, are notified about the
State’s policies regarding collection of
child performance data and the general
education services that will be
provided; strategies to increase their
child’s rate of learning; and their right
to request an evaluation at any time. If
parents request an evaluation and
provide consent, the timeframe for
evaluation begins and the information
required in § 300.309(b) must be
collected (if it does not already exist)
before the end of that period.
Changes: We have combined
proposed § 300.309(c) and (d), and
revised the new paragraph (c) in
§ 300.309 to require the public agency to
promptly request parental consent to
evaluate a child suspected of having an
SLD who has not made adequate
progress when provided appropriate
instruction, and whenever a child is
referred for an evaluation. We also have
added a new § 300.311(a)(7)(ii) to
require that the eligibility report include
evidence that when a child has
participated in an RTI process, the
parents were informed of State policies
regarding child performance data that
would be collected and the general
education services that would be
provided; strategies to support the
child’s rate of learning; and a parent’s
right to request an evaluation at any
time.
Comment: Many commenters
recommended clarifying when parental
consent for evaluation should be
obtained and when the 60-day timeline
to complete an evaluation begins.
Several commenters recommended
ensuring that the 60-day timeline for
evaluation applies regardless of the
evaluation model used. One commenter
asked how scientific research-based
interventions could be completed
within a 60-day evaluation timeline.
One commenter stated that 60 days may
not be enough time to appropriately
determine whether a child responds to
instruction, particularly for children
who have not had exposure to such
interventions (e.g., children entering the
public school system for the first time).
One commenter asked if the intent of
the regulations is to allow a
determination that a child has an SLD
to take place outside the timeline for an
initial evaluation, and stated that
without clarification of the intersection
between an RTI process (that may, by
definition, require additional time
beyond that which is permitted for an
evaluation) and the required period of
time for an initial assessment, the
regulations would cause confusion and
result in improper evaluations and
eligibility determinations.
Several commenters recommended
that the regulations address the need for
an extension of the timeline and allow
States to set an alternative timeline
without a written agreement. Several
commenters requested adding a
provision for an extended timeline, with
parental consent, in exceptional
circumstances. Several commenters
stated that the language regarding an
extension of timelines is confusing.
Discussion: Section 300.309(c), as
revised, clarifies that if a child has not
made adequate progress after an
appropriate period of time, a referral for
an evaluation must be made. As
required in § 300.301(c), the initial
evaluation must be conducted within 60
days of receiving consent for an
evaluation (or if the State establishes a
timeframe within which the evaluation
must be completed, within that
timeframe). Models based on RTI
typically evaluate the child’s response
to instruction prior to the onset of the
60-day period, and generally do not
require as long a time to complete an
evaluation because of the amount of
data already collected on the child’s
achievement, including observation
data. RTI models provide the data the
group must consider on the child’s
progress when provided with
appropriate instruction by qualified
professionals as part of the evaluation.
Section 300.309(b)(1) requires that the
eligibility group consider data on the
child’s progress when provided with
appropriate instruction by qualified
professionals as part of this evaluation.
These data, along with other relevant
information, will assist the eligibility
group in determining whether the
child’s low achievement is attributable
to a lack of appropriate instruction. As
required in § 300.306(b)(1)(i) and (ii),
consistent with section 614(b)(5)(A) and
(B) of the Act, a child cannot be
identified as a child with a disability if
the determinant factor for that
determination is lack of appropriate
instruction in reading or math.
Based on their review of the existing
data, and input from the child’s parents,
the eligibility group must decide, on a
case-by-case basis, depending on the
needs of the child and the information
available regarding the child, what
additional data, if any, are needed to
determine whether the child is a child
with a disability, and the educational
needs of the child. If the eligibility
group determines that additional data
are needed and that these data cannot be
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obtained within the 60-day timeframe
(or the timeframe established by the
State), new § 300.309(c) (proposed
§ 300.309(d)) allows the extension of the
timeframe with mutual written
agreement of the child’s parent and the
eligibility group.
Changes: None.
Comment: One commenter asked how
the 60-day timeframe would be followed
if the time extends over school breaks.
Discussion: The 60-day timeframe
refers to 60 calendar days and would
include school breaks.
Changes: None.
Comment: Several commenters stated
that the regulations appear to set up a
separate process and procedure for the
evaluation and identification of children
with SLD, and then impose the
timeframe and procedures that apply to
the evaluation of all other disability
categories. One commenter stated that
the timeframe for evaluating children
with SLD is less stringent than for other
disability categories and is, therefore,
discriminatory.
Discussion: Although there are
additional criteria and procedures for
evaluating and identifying children
suspected of having SLD, the group
must also comply with the procedures
and timelines that apply to all
evaluations, including evaluations for
SLD. Evaluation of children suspected
of having SLD must follow the same
procedures and timeframes required in
§§ 300.301 through 300.306, in addition
to those in §§ 300.307 through 300.311.
Changes: None.
Comment: One commenter stated that
‘‘appropriate period of time’’ should be
replaced with ‘‘reasonable period of
time’’ because courts are accustomed to
deciding what constitutes a reasonable
timeframe in various evaluation
contexts.
Discussion: It is not necessary to
change ‘‘appropriate period of time’’ to
‘‘reasonable period of time,’’ because the
terms here have similar meanings and
are commonly understood to be
synonymous.
Changes: None.
Comment: One commenter requested
that the regulations clarify who should
refer a child for an evaluation to
determine eligibility for special
education services.
Discussion: Under § 300.301(b), and
consistent with the requirements in
§ 300.300 and section 614(a)(1)(D) of the
Act, either a parent of a child or a public
agency may initiate a request for an
evaluation at any time to determine if
the child is a child with a disability. We
do not believe that further clarification
is necessary.
Changes: None.
Comment: One commenter stated that
a school district should retain its
discretion not to evaluate a child subject
to the parent’s right to contest the
decision through due process
procedures.
Discussion: The commenter’s concern
is already addressed in § 300.111, which
provides that an LEA must identify,
locate, and evaluate children who are in
need of special education and related
services. If an LEA refuses to evaluate a
child, the LEA must provide prior
written notice, consistent with § 300.503
and section 615(b)(3) of the Act. The
parent can challenge this decision
through a due process hearing.
Changes: None.
Observation (§ 300.310)
Comment: Many commenters
recommended removing the observation
requirements in § 300.310, stating that
they are costly and overly prescriptive
and have no statutory basis. One
commenter stated that the requirements
for determining eligibility under the
category of SLD are so specific that the
observation requirements are
unnecessary.
Discussion: The observation
requirements for children suspected of
having SLD have been in the regulations
since before 1983. Important
information can be obtained about a
child through observation in the
classroom, or for a child less than
school age, in an environment
appropriate for a child of that age.
Objective observations are essential to
assessing a child’s performance and
should be a part of routine classroom
instruction and are not costly or overly
prescriptive. We believe the observation
requirements are an important matter to
regulate clearly. We will, therefore,
change § 300.310(a) through § 300.310(c)
to clearly state that the public agency
must ensure appropriate observation
and documentation of the child’s
academic performance and behavior in
the areas of difficulty to determine
whether a child has an SLD.
Changes: We have changed
§ 300.310(a) through § 300.310(c) to
clearly state the observation
requirements in determining whether a
child has an SLD.
Comment: Several commenters
supported requiring a member of the
group to be trained in observation.
Many commenters requested
clarification regarding what it means to
be trained in observation. One
commenter stated that there are no
established training protocols or
uniform professional standards for
conducting an observation.
Discussion: We agree that the
requirement for an individual to be
trained in observation is unclear and
should be removed. States are
responsible for determining specific
personnel qualification requirements,
and, for the reasons stated under
§ 300.308, States and LEAs should
determine appropriate group
membership.
Changes: We have removed the
phrase ‘‘trained in observation’’ from
§ 300.310(a).
Comment: Several commenters stated
that the public agency should determine
the most appropriate individual to
conduct the observation. One
commenter recommended specifying a
reading specialist to conduct the
observation when the child’s learning
problems involve reading. Another
commenter stated that the observer
should not be limited to a member of
the eligibility group. One commenter
stated that it is not necessary to obtain
parental consent for the observation.
Discussion: The person conducting
the observation should be a member of
the eligibility group because
information from the observation will be
used in making the eligibility
determination. If information is
available from an observation conducted
as part of routine classroom instruction
that is important for the eligibility group
to consider, the eligibility group should
include the person who conducted that
routine classroom. This will eliminate
redundant observations and save time
and resources. Parental consent is not
required for observations conducted as
part of routine classroom instruction
and monitoring of the child’s
performance before the child is referred
for an evaluation.
If an observation has not been
conducted, or additional observation
data are needed, the decision as to
which person should conduct the
observation is best left to members of
the eligibility group, based on the type
of information that is needed to make
the eligibility determination and
identify the child’s needs. Parental
consent is required for observations
conducted after the child is suspected of
having a disability and is referred for an
evaluation. We will revise § 300.310 to
clarify the different ways in which
observation data may be obtained and to
clarify that parental consent is required
for observations conducted after the
child is suspected of having a disability
and is referred for an evaluation.
Changes: We have revised § 300.310
to specify in paragraph (a) that the
public agency must ensure that the
child is observed in the child’s learning
environment. A new § 300.310(b) has
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been added to require the eligibility
group to use the information obtained
from the routine classroom observation
or conduct a new observation and to
require parental consent for
observations conducted after the child is
suspected of having a disability and is
referred for an evaluation. Proposed
§ 300.310(b) has been redesignated as
new § 300.310(c).
Comment: One commenter requested
clarification regarding the definition of
an ‘‘appropriate’’ environment in which
to conduct the observation of a child
who is less than school age, as well as
guidance in determining what such an
environment would be for children who
are out of school.
Discussion: The eligibility group is in
the best position to determine the
environment appropriate for a child
who is less than school age or out of
school.
Changes: None.
Comment: One commenter requested
clear guidance about the working
relationship between the special
education teacher and the general
education teacher in conducting an
observation.
Discussion: We decline to provide
specific guidance on the working
relationship between the special
education teacher and the general
education teacher in conducting an
observation because this relationship
will necessarily vary depending on how
classrooms are structured and teacher
responsibilities assigned. Such
decisions are best made at the local
level. Generally, we would expect that
the child’s general education teacher
would have data from routine classroom
instruction and would work with the
other members of the eligibility group to
determine what additional data, if any,
are needed to determine whether a child
has an SLD. A special education teacher
who is experienced in working with
children with SLD, for example, might
have suggestions on ways to structure a
particular observation session to obtain
any additional information that is
needed, and may be able to assist the
general education teacher in gathering
the data.
Changes: None.
Comment: One commenter
recommended requiring an observation
for any child suspected of having a
disability, not just those suspected of
having an SLD.
Discussion: Observation data will
generally be a part of the existing data
reviewed for any child suspected of
having a disability. Section
300.305(a)(1) requires the eligibility
group for any child suspected of having
a disability to review existing evaluation
data, including classroom-based
observations and observations by
teachers and related services providers.
We do not believe that requiring an
observation of children suspected of
other disabilities is necessary, however,
as identification of those other
disabilities is not always as dependent
on classroom performance and behavior
as is identification of children with
SLD.
Changes: None.
Specific Documentation for the
Eligibility Determination (Proposed
Written Report) (§ 300.311)
Comment: Several commenters
supported the requirements for the
written report, stating that they provide
a useful framework for practitioners.
However, several commenters stated
that the requirements for the written
report should be removed because they
go beyond the requirements of the Act
and impose additional procedural and
paperwork burdens for school
personnel. Several commenters stated
that the report is much more detailed
than the evaluation and eligibility report
for children with other disabilities, and
stated that this could discourage schools
from evaluating children suspected of
having SLD.
Discussion: Section 614(b)(4)(B) of the
Act requires the public agency to
provide a copy of the evaluation report
and the documentation of determination
of eligibility to the parents for all
children evaluated under the Act.
Section 300.311 specifies the content for
the evaluation report for children
suspected of having SLD. States and
LEAs have more discretion over the
specific content of an evaluation report
for children suspected of having a
disability under the other disability
categories. Therefore, whether the SLD
evaluation report is more detailed or
burdensome than other evaluation
reports would depend on State and local
requirements. We believe that the
elements of the report specified in
§ 300.311 provide important checks to
prevent misidentification and ensure
that children who actually have SLD are
identified.
Changes: None.
Comment: Several commenters
recommended that the written report
include statements regarding the
existence of a psychological processing
disorder and the basis for making the
determination; whether the child
achieved commensurate with the child’s
age and ability; whether the child
achieved commensurate with the child’s
age and intellectual development;
whether the child achieved
commensurate with the child’s peers;
and whether there are strengths and
weaknesses in performance or cognitive
abilities in one or more of the areas in
§ 300.309(a) that require special
education and related services.
Discussion: We decline to change the
content of the written report in the
manner recommended by the
commenters because the statements that
commenters recommended be included
in the written report are inconsistent
with the eligibility requirements for
children with SLD in § 300.309.
Changes: None.
Comment: One commenter
recommended including an assurance
that the eligibility determination was
made in accordance with
§ 300.306(c)(1), regarding procedures for
determining eligibility and placement,
and § 300.8(c)(10), regarding the
definition of specific learning disability.
Discussion: Section 300.311(b)
requires each member of the eligibility
group to certify in writing whether the
report reflects the particular member’s
conclusion about whether the child has
an SLD, and if it does not reflect his or
her conclusion, submit a separate
statement presenting his or her
conclusions. There is no need for any
additional assurances.
Changes: None.
Comment: One commenter stated that
including ‘‘evaluation report’’ in the
description of the written report is
confusing because it is unclear whether
the evaluation report is something
additional to the written report.
Discussion: The information required
in the written report in § 300.311 is a
part of the documentation of eligibility
required in § 300.306(a)(2). Section
300.306(b) and (c) lists the requirements
for eligibility determinations for all
children suspected of having a
disability, including children suspected
of having SLD. Section 300.311 provides
specific elements that must be
addressed in the report for children
suspected of having SLD. Two separate
reports are not necessary as long as the
information in § 300.311 is included in
the documentation of the eligibility
determination in § 300.306(a)(2). We
agree that this should be clarified.
Therefore, we will change the heading
for § 300.311 from ‘‘Written report’’ to
‘‘Specific documentation for the
eligibility determination’’ and will
modify the language in § 300.311(a)
accordingly.
Changes: We have changed the
heading for § 300.311 and modified
§ 300.311(a) to clarify that the
requirements in § 300.311 are in
addition to the requirements for the
documentation of the eligibility
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determination required in
§ 300.306(a)(2).
Comment: Several commenters
requested that the written report include
the determination of the group
concerning the effects of cultural
factors, limited English proficiency, and
environmental or economic
disadvantage to be consistent with all
the elements in § 300.309(a)(3).
Discussion: We agree that it is
important to emphasize the importance
of considering such factors in
determining eligibility under SLD and
will add these factors in § 300.311(a).
Changes: We have added a new
paragraph (6) to § 300.311(a) to require
the written report to include a statement
on the effects of cultural factors, limited
English proficiency, environmental, or
economic disadvantage.
Comment: Several commenters
requested clarification of what happens
if a group member disagrees with the
report and agreement is never reached.
Other commenters asked whether
services are delayed pending a group
consensus; whether the submission of a
separate statement is synonymous with
a veto for eligibility; whether it matters
which group member submits a separate
report; and whether each group member
has equal standing.
Discussion: The eligibility group
should work toward consensus, but
under § 300.306, the public agency has
the ultimate responsibility to determine
whether the child is a child with a
disability. Parents and school personnel
are encouraged to work together in
making the eligibility determination. If
the parent disagrees with the public
agency’s determination, under
§ 300.503, the public agency must
provide the parent with prior written
notice and the parent’s right to seek
resolution of any disagreement through
an impartial due process hearing,
consistent with the requirements in
§ 300.503 and section 615(b)(3) of the
Act.
Every effort should be made to resolve
differences between parents and school
staff through voluntary mediation or
some other informal dispute resolution
process. However, as stated in
§ 300.506(b)(1)(ii) and section
615(e)(2)(A)(ii) of the Act, mediation or
other informal procedures may not be
used to deny or delay a parent’s right to
a due process hearing, or to deny any
other rights afforded under Part B of the
Act.
Changes: None.
Individualized Education Programs
Definition of Individualized Education
Program (§ 300.320)
General (§ 300.320(a))
We received numerous comments
requesting that we require the IEP to
include additional content that is not in
the Act. Under section 614(d)(1)(A)(ii)(I)
of the Act, the Department cannot
interpret section 614 of the Act to
require public agencies to include
additional information in a child’s IEP
that is not explicitly required under the
Act. Therefore, we generally have not
included these comments in our
analysis and discussion of § 300.320.
Comment: One commenter requested
that § 300.320 refer to a ‘‘student with
a disability’’ instead of a ‘‘child with a
disability.’’
Discussion: The words ‘‘child’’ and
‘‘student’’ are used interchangeably
throughout the Act. The regulations
follow the statutory language whenever
possible. In § 300.320, we used the term
‘‘child with a disability,’’ consistent
with section 614(d) of the Act.
Changes: None.
Comment: Many commenters
recommended that the regulations
include a definition of ‘‘functional’’ as
it is used, for example, in ‘‘functional
performance’’ in § 300.320(a)(1) and
‘‘functional goals’’ in § 300.320(a)(2).
Some commenters suggested defining
‘‘functional’’ as the acquisition of
essential and critical skills needed for
children with disabilities to learn
specific daily living, personal, social,
and employment skills, or the skills
needed to increase performance and
independence at work, in school, in the
home, in the community, for leisure
time, and for postsecondary and other
life long learning opportunities. One
commenter recommended that the
regulations include examples of
functional skills and how functional
skills should be measured.
Discussion: It is not necessary to
include a definition of ‘‘functional’’ in
these regulations because we believe it
is a term that is generally understood to
refer to skills or activities that are not
considered academic or related to a
child’s academic achievement. Instead,
‘‘functional’’ is often used in the context
of routine activities of everyday living.
We do not believe it is necessary to
include examples of functional skills in
the regulations because the range of
functional skills is as varied as the
individual needs of children with
disabilities. We also decline to include
examples of how functional skills are
measured because this is a decision that
is best left to public agencies, based on
the needs of their children. However, it
should be noted that the evaluation
procedures used to measure a child’s
functional skills must meet the same
standards as all other evaluation
procedures, consistent with
§ 300.304(c)(1).
Changes: None.
Comment: One commenter
recommended revising § 300.320(a) to
state that ‘‘an IEP includes’’ rather than
‘‘an IEP must include’’ in order to reflect
the specific language in section 614(d)
of the Act. The commenter stated that
use of the word ‘‘must’’ limits the
contents of an IEP to the items listed in
§ 300.320(a).
Discussion: The word ‘‘must’’ is used
in § 300.320(a) to clarify that an IEP is
required to include the items listed in
§ 300.320(a). We believe it is important
to retain this language in § 300.320(a).
Under section 614(d)(1)(A)(ii)(I) of the
Act, section 614 of the Act cannot be
interpreted to require content in the IEP
beyond that which is specified in the
Act.
Changes: None.
Comment: One commenter requested
clarifying the meaning of ‘‘appropriate’’
as used, for example, in
§ 300.320(a)(1)(ii) to refer to a child’s
participation in ‘‘appropriate’’ activities.
Discussion: The word ‘‘appropriate’’
in these regulations does not have a
different meaning from its common
usage. Generally, the word
‘‘appropriate’’ is used to mean
‘‘suitable’’ or ‘‘fitting’’ for a particular
person, condition, occasion, or place.
Changes: None.
Comment: Some commenters
recommended requiring the IEP to
include a statement of the relevant
social and cultural background of a
child and how those factors affect the
appropriate participation, performance,
and placement of the child in special
education.
Discussion: Section 614(d)(1)(A)(ii)(I)
of the Act precludes the Department
from interpreting section 614 of the Act
to require public agencies to include
information in a child’s IEP other than
what is explicitly required in the Act.
Therefore, we cannot require the IEP to
include the statement requested by the
commenters. However, a child’s social
or cultural background is one of many
factors that a public agency must
consider in interpreting evaluation data
to determine if a child is a child with
a disability under § 300.8 and the
educational needs of the child,
consistent with § 300.306(c)(1)(i).
Changes: None.
Comment: One commenter stated that
adapted physical education should be
part of a child’s IEP. Another
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commenter recommended that travel
training be required in the IEP.
Discussion: The definition of special
education in new § 300.39 (proposed
§ 300.38) includes adapted physical
education and travel training. We do not
believe adapted physical education and
travel training should be mandated as
part of an IEP because, as with all
special education and related services,
each child’s IEP Team determines the
special education and related services
that are needed to meet each child’s
unique needs in order for the child to
receive FAPE. In addition, section
614(d)(1)(A)(ii)(I) of the Act prohibits
the Department from interpreting
section 614 of the Act to require public
agencies to include information in a
child’s IEP that is not explicitly required
under the Act.
Changes: None.
Comment: One commenter
recommended that IEPs include the
array of new tools used with
nondisabled children, so that children
with disabilities have access to the
materials they need to progress in the
general education curriculum.
Discussion: There is nothing in the
Act that requires new tools or the same
tools and materials used by nondisabled
children to be used with children with
disabilities or be specified in children’s
IEPs. Therefore, we cannot make the
requested change because section
614(d)(1)(A)(ii)(I) of the Act prohibits
the Department from interpreting
section 614 of the Act to require public
agencies to include information in a
child’s IEP that is not explicitly required
under the Act. Each child’s IEP Team
determines the special education and
related services, as well as
supplementary aids, services, and
supports that are needed to meet the
child’s needs in order to provide FAPE
consistent with § 300.320(a)(4) and
section 614(d)(1)(A)(i)(IV) of the Act.
Changes: None.
Present Levels of Academic
Achievement and Functional
Performance (§ 300.320(a)(1))
Comment: A few commenters stated
that § 300.320(a)(1) requires an IEP to
include a statement of the child’s
present levels of academic achievement,
and recommended that the regulations
define ‘‘academic achievement.’’
Discussion: ‘‘Academic achievement’’
generally refers to a child’s performance
in academic areas (e.g., reading or
language arts, math, science, and
history). We believe the definition could
vary depending on a child’s
circumstance or situation, and therefore,
we do not believe a definition of
‘‘academic achievement’’ should be
included in these regulations.
Changes: None.
Comment: Some commenters
recommended that the regulations
clarify that not every child requires a
functional performance statement or
functional annual goals. Some
commenters stated that requiring
functional assessments for all children
places an unnecessary burden on an
LEA, does not add value for every child,
and creates a potential for increased
litigation. One commenter
recommended that § 300.320(a)(1),
regarding the child’s present levels of
performance, and § 300.320(a)(2),
regarding measurable annual goals,
clarify that functional performance and
functional goals should be included in
a child’s IEP only if determined
appropriate by the child’s IEP Team.
Discussion: We cannot make the
changes requested by the commenters.
Section 614(d)(1)(A)(i)(I) of the Act
requires an IEP to include a statement
of the child’s present levels of academic
achievement and functional
performance.
Changes: None.
Comment: One commenter requested
that the regulations require a child’s
present levels of performance to be
aligned with the child’s annual goals.
Another commenter stated that the
content of the IEP should be aligned
with the State’s core curriculum content
standards and the knowledge and skills
needed for children with disabilities to
become independent, productive, and
contributing members of their
communities and the larger society.
Discussion: The IEP Team’s
determination of how the child’s
disability affects the child’s
involvement and progress in the general
education curriculum is a primary
consideration in the development of the
child’s annual IEP goals. Section
300.320(a)(1)(i), consistent with section
614(d)(1)(A)(i)(I)(aa) of the Act, requires
the statement of a child’s present levels
of performance in the IEP to include
how the child’s disability affects the
child’s involvement and progress in the
general education curriculum. This
directly corresponds with the provision
in § 300.320(a)(2)(i)(A) and section
614(d)(1)(A)(i)(II)(aa) of the Act, which
requires the IEP to include measurable
annual goals designed to meet the
child’s needs that result from the child’s
disability to enable the child to be
involved in and make progress in the
general education curriculum. We do
not believe further clarification is
needed regarding the alignment of a
child’s present levels of performance
with the child’s annual goals.
With regard to the alignment of the
IEP with the State’s content standards,
§ 300.320(a)(1)(i) clarifies that the
general education curriculum means the
same curriculum as all other children.
Therefore, an IEP that focuses on
ensuring that the child is involved in
the general education curriculum will
necessarily be aligned with the State’s
content standards. Congress
acknowledged, in section 601(c)(5)(A) of
the Act, that ensuring access to the
general education curriculum in the
regular classroom, to the maximum
extent possible, is also effective in
preparing children with disabilities to
lead productive and independent adult
lives. We do not believe further
clarification is necessary to address the
commenters’ concerns.
Changes: None.
Measurable Annual Goals
(§ 300.320(a)(2))
Comment: One commenter requested
clarification as to whether IEP goals
must be specific to a particular
discipline (e.g., physical therapy goals,
occupational therapy goals). One
commenter recommended that goals be
explicitly defined and objectively
measured. Another commenter
recommended requiring IEP goals to
have specific outcomes and measures on
an identified assessment tool. One
commenter recommended clarifying
that an IEP Team is permitted, under
certain circumstances, to write goals
that are intended to be achieved in less
than one year.
Discussion: Section 300.320(a)(2)(i),
consistent with section
614(d)(1)(A)(i)(II) of the Act, requires
the IEP to include measurable annual
goals. Further, § 300.320(a)(3)(i),
consistent with section
614(d)(1)(A)(i)(III) of the Act, requires
the IEP to include a statement of how
the child’s progress toward meeting the
annual goals will be measured. The Act
does not require goals to be written for
each specific discipline or to have
outcomes and measures on a specific
assessment tool. Furthermore, to the
extent that the commenters are
requesting that we mandate that IEPs
include specific content not in section
614(d)(1)(A)(i) of the Act, under section
614(d)(1)(A)(ii)(I), we cannot interpret
section 614 to require that additional
content. IEPs may include more than the
minimum content, if the IEP Team
determines the additional content is
appropriate.
Changes: None.
Comment: Some commenters
recommended requiring related services
in every child’s IEP. The commenters
stated that related services are necessary
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to enhance the overall health and well-
being of the child to prevent secondary
conditions; ensure that the child
progresses towards independent
functioning and community integration;
increase the child’s ability to function
and learn in his or her educational
environment; develop social interaction
skills to enhance a child’s ability to
communicate, build relationships, and
reinforce other positive behavior skills;
and further advance the child’s ability
to complete his or her own educational
requirements and goals.
Discussion: To require related services
for every child with a disability would
be inconsistent with the concept of
individualization that has been part of
the Act since its inception in 1975.
Related services are only required to the
extent that such services are necessary
to enable the child to benefit from
special education. Related services, as
with any other service in an IEP, are
determined on an individual basis by
the child’s IEP Team.
Changes: None.
Comment: Many commenters opposed
the removal of benchmarks and short-
term objectives as required components
of the IEP and recommended that States
and LEAs be permitted to require
benchmarks and short-term objectives
for all children with disabilities. Many
commenters recommended that the
regulations allow the IEP Team to
determine whether to include short-
term objectives in a child’s IEP to
measure progress in functional areas
that are not measurable through other
means.
Discussion: Benchmarks and short-
term objectives were specifically
removed from section 614(d)(1)(A)(i)(II)
of the Act. However, because
benchmarks and short-term objectives
were originally intended to assist
parents in monitoring their child’s
progress toward meeting the child’s
annual goals, we believe a State could,
if it chose to do so, determine the extent
to which short-term objectives and
benchmarks would be used. However,
consistent with § 300.199(a)(2) and
sections 608(a)(2) and 614(d)(1)(A)(ii)(I)
of the Act, a State that chooses to
require benchmarks or short-term
objectives in IEPs in that State would
have to identify in writing to the LEAs
located in the State and to the Secretary
that such rule, regulation, or policy is a
State-imposed requirement, which is
not required by Part B of the Act or the
Federal regulations.
Changes: None.
Comment: A few commenters
supported the requirement in
§ 300.320(a)(2)(ii) for benchmarks or
short-term objectives to be developed
for children who take alternate
assessments aligned to alternate
achievement standards. However, a few
commenters stated that limiting short-
term objectives to children who take
alternate assessments is not acceptable
because the one percent limit on the
percentage of children who may take
alternate assessments is arbitrary.
Discussion: The requirement to
develop short-term objectives or
benchmarks covers all children with
disabilities who are assessed using
alternate assessments aligned to
alternate achievement standards,
consistent with section
614(d)(1)(A)(i)(I)(cc) of the Act. The one
percent cap referred to by the
commenter is not a limit on the number
of children who may take an alternate
assessment based on alternate
achievement standards. Rather, it is a
limit on the number of proficient and
advanced scores that may be included
in calculating adequate yearly progress
(AYP) under the ESEA, consistent with
34 CFR § 200.13(c)(1)(ii). As noted
previously, the requirement to include
benchmarks or short-term objectives for
all children with disabilities was
specifically removed from section
614(d)(1)(A)(i)(II) of the Act.
Changes: None.
Comment: One commenter stated that
the IEP should not include benchmarks
for alternate achievement standards
because this would be teaching to the
test and would lower expectations for
children.
Discussion: Section 300.320(a)(2)(ii)
requires benchmarks or short-term
objectives only for children with
disabilities who take alternate
assessments aligned to alternate
achievement standards. By ‘‘teaching to
the test,’’ we assume that the commenter
believes that a benchmark or short-term
objective must be written for each
alternate achievement standard. There is
no such requirement in the Act or these
regulations.
Changes: None.
Comment: One commenter requested
clarification on how schools should
determine which children in
kindergarten through grade two must
have short-term objectives or
benchmarks in their IEPs. Another
commenter requested clarification on
how the requirements for benchmarks or
short-term objectives apply to
preschoolers.
Discussion: Section 300.320(a)(2)(ii),
consistent with section
614(d)(1)(A)(i)(I)(cc) of the Act, requires
an IEP to include benchmarks or short-
term objectives for children with
disabilities who take an alternate
assessment aligned to alternate
achievement standards. This would
apply to preschool children and
children with disabilities in
kindergarten through grade two only if
these children are assessed in a State or
districtwide assessment program and
the State has opted to develop an
alternate assessment based on alternate
achievement standards. Under title I of
the ESEA, States are only required to
assess children in grades 3 through 8
and once in high school, so it is unlikely
that even States that choose to develop
alternate achievement standards will
include this age population in a
Statewide assessment program or
develop an alternate achievement
standard for these children.
Changes: None.
Comment: One commenter
recommended that the regulations
require IEP Team members, including
the parents, to be involved in
developing short-term objectives.
Discussion: Sections 300.320 through
300.324 and section 614(d) of the Act
are clear that the IEP Team, which
includes the parent, is responsible for
developing benchmarks or short-term
objectives for children who take
alternate assessments aligned to
alternate achievement standards.
Changes: None.
Comment: One commenter
recommended clarifying that goals and
objectives must be aligned with the
State’s alternate assessment.
Discussion: Section 612(a)(16)(C)(ii) of
the Act requires alternate assessments to
be aligned with the State’s challenging
academic content standards and
academic achievement standards, and if
the State has adopted alternate
academic achievement standards
permitted under 34 CFR § 200.1(d), to
measure the achievement of children
with disabilities against those standards.
Section 614(d)(1)(A)(i)(II) of the Act
requires the IEP to include a statement
of measurable annual goals, including
academic and functional goals, designed
to meet the child’s needs that result
from the child’s disability to enable the
child to be involved in and make
progress in the general education
curriculum. However, there is nothing
in the Act that requires a child’s IEP
goals to be aligned with the State’s
alternate assessment based on alternate
achievement standards. Additionally,
for some children, goals may be needed
for activities that are not closely related
to a State’s academic content and
academic achievement standards.
Changes: None.
Comment: A few commenters stated
that the regulations should be more
specific about what must be included in
an IEP goal if benchmarks or short-term
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objectives are not required in every
child’s IEP.
Discussion: The regulations are clear
on the requirements for IEP goals.
Section 300.320(a)(2)(i), consistent with
section 614(d)(1)(A)(i)(II) of the Act,
requires that annual IEP goals be
measurable and designed to meet the
child’s needs that result from the child’s
disability to enable the child to be
involved in and make progress in the
general education curriculum, and to
meet each of the child’s other
educational needs that result from the
child’s disability. We believe that these
requirements will ensure that progress
toward achieving a child’s annual goals
can be objectively monitored and
measured. We do not believe that
additional specificity is needed.
Changes: None.
Comment: One commenter suggested
requiring SEAs to ensure that LEAs
receive professional development in
writing measurable goals and effective
methods of measuring progress toward
achieving those goals.
Discussion: We do not believe that the
requested requirement should be
included in the regulations. State and
local officials are in the best position to
determine the training and professional
development needs of their personnel.
Changes: None.
Comment: One commenter
recommended retaining current
§ 300.350, regarding the responsibilities
of the public agency to provide special
education and related services to a child
with a disability in accordance with the
child’s IEP and to make a good-faith
effort to assist the child to achieve the
goals and objectives or benchmarks in
the IEP.
Discussion: The requirement in
current § 300.350(a)(1), regarding a
public agency’s responsibility to
provide special education and related
services to a child with a disability in
accordance with the child’s IEP, is
unnecessary, because entitlement to
FAPE under the Act includes the
provision of special education and
related services in accordance with an
IEP. Paragraphs (a)(2) and (b) in current
§ 300.350, regarding accountability for a
child achieving his or her goals, are
unnecessary because other Federal laws,
such as title I of the ESEA, already
provide sufficient motivation for agency
effort to assist children with disabilities
in making academic progress. Current
§ 300.350(c), regarding the rights of
parents to invoke due process
procedures if a parent feels that efforts
are not being made to achieve the IEP
goals, is unnecessary because it merely
provides explanatory information
regarding the due process procedures
for parents and children that are
available in §§ 300.500 through 520.
Changes: None.
Periodic Progress Reports
(§ 300.320(a)(3)(ii))
Comment: A few commenters
supported the language in
§ 300.320(a)(3)(ii), which requires the
IEP to include a description of when
periodic reports on the child’s progress
toward meeting the annual goals will be
provided. However, many commenters
recommended retaining current
§ 300.347(a)(7), which requires parents
of a child with a disability to be
informed about their child’s progress at
least as often as parents of nondisabled
children and for the report to include
information on the extent to which the
child’s progress is sufficient to enable
the child to achieve the goals by the end
of the year.
One commenter recommended
requiring progress reports to be
provided with enough time to allow
changes in the IEP if the goals will not
be met by the end of the year. A few
commenters recommended requiring the
reports to explain, in reasonable detail
and with specific progress measures, the
extent to which the child is making
progress on each of the annual goals in
the child’s IEP. Another commenter
recommended requiring LEAs to report
progress in measurable terms. The
commenter stated that many LEAs
convert a measurable objective or goal
into subjective and vague language,
such as ‘‘adequate progress,’’ which
does not provide objective
measurements of achievement. Another
commenter recommended requiring
progress reports to be specifically linked
to the measurable outcomes of a child’s
annual goals.
Numerous commenters requested that
progress reports be provided with
school report cards. However, one
commenter stated that not all school
districts have quarterly report cards,
and, therefore, the regulations should
require progress reports to be issued at
the same time as other report cards in
the district.
Discussion: Section 300.320(a)(3)(ii)
follows the language in section
614(d)(1)(A)(i)(III) of the Act and
requires the IEP to include a description
of when periodic reports on the child’s
progress toward meeting the annual
goals will be provided. The Act does not
require report cards or quarterly report
cards. Report cards and quarterly report
cards are used as examples in
§ 300.320(a)(3)(ii) of when periodic
reports on the child’s progress toward
meeting the annual goals might be
provided. The specific times that
progress reports are provided to parents
and the specific manner and format in
which a child’s progress toward meeting
the annual goals is reported is best left
to State and local officials to determine.
In addition, under section
614(d)(1)(A)(ii)(I) of the Act we cannot
interpret section 614 of the Act to
require additional information in a
child’s IEP that is not specifically
required by the Act.
Changes: None.
Statement of Special Education and
Related Services (§ 300.320(a)(4))
Comment: One commenter
recommended requiring the regular
education teacher to offer modifications
for every assignment given to a child
with a disability.
Discussion: It would be inconsistent
with the Act to implement the
commenter’s recommendation.
Consistent with § 300.320(a)(4) and
section 614(d)(1)(A)(i)(IV) of the Act, the
child’s IEP Team determines the special
education and related services, and
supplementary aids, services, and other
supports that are needed for the child to
advance appropriately toward meeting
the child’s annual goals.
Changes: None.
Comment: A significant number of
commenters recommended the
regulations include a definition of
‘‘peer-reviewed research,’’ as used in
§ 300.320(a)(4). One commenter
recommended that the definition of
peer-reviewed research be consistent
with the work of the National Research
Council.
Discussion: ‘‘Peer-reviewed research’’
generally refers to research that is
reviewed by qualified and independent
reviewers to ensure that the quality of
the information meets the standards of
the field before the research is
published. However, there is no single
definition of ‘‘peer reviewed research’’
because the review process varies
depending on the type of information to
be reviewed. We believe it is beyond the
scope of these regulations to include a
specific definition of ‘‘peer-reviewed
research’’ and the various processes
used for peer reviews.
Changes: None.
Comment: Some commenters
recommended revising § 300.320(a)(4) to
require special education and related
services, and supplementary aids and
services, to be based on ‘‘evidenced-
based practices’’ rather than ‘‘peer-
reviewed research.’’ A few commenters
recommended revising § 300.320(a)(4) to
require special education and related
services, and supplementary aids and
services to be based on peer-reviewed
research, evidenced-based practices,
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and emerging best practices. Many
commenters recommended clarifying
the meaning and intent of the phrase ‘‘to
the extent practicable.’’ One commenter
recommended requiring all IEP Team
meetings to include a focused
discussion on research-based methods
and to provide parents with prior
written notice when the IEP Team
refuses to provide documentation of
research-based methods.
Discussion: Section 300.320(a)(4)
incorporates the language in section
614(d)(1)(A)(i)(IV) of the Act, which
requires that special education and
related services and supplementary aids
and services be based on peer-reviewed
research to the extent practicable. The
Act does not refer to ‘‘evidenced-based
practices’’ or ‘‘emerging best practices,’’
which are generally terms of art that
may or may not be based on peer-
reviewed research. Therefore, we
decline to change § 300.320(a)(4) in the
manner suggested by the commenters.
The phrase ‘‘to the extent practicable,’’
as used in this context, generally means
that services and supports should be
based on peer-reviewed research to the
extent that it is possible, given the
availability of peer-reviewed research.
We do not believe further clarification is
necessary.
We decline to require all IEP Team
meetings to include a focused
discussion on research-based methods
or require public agencies to provide
prior written notice when an IEP Team
refuses to provide documentation of
research-based methods, as we believe
such requirements are unnecessary and
would be overly burdensome.
Changes: None.
Comment: One commenter
recommended clear guidance on the
responsibilities of States, school
districts, and school personnel to
provide special education and related
services, and supplementary aids and
services that are based on peer-reviewed
research. One commenter requested
clarification that the requirement for
special education and related services,
and supplementary aids and services to
be based on peer-reviewed research
does not mean that the service with the
greatest body of research is the service
necessarily required for FAPE. Another
commenter requested that the
regulations clarify that the failure of a
public agency to provide special
education and related services, and
supplementary aids and services based
on peer-reviewed research, does not
result in a denial of FAPE, and that the
burden of proof is on the moving party
when the denial of FAPE is at issue.
Discussion: Section 612(d)(1)(A)(i)(IV)
of the Act requires special education
and related services, and supplementary
aids and services, to be based on peer-
reviewed research to the extent
practicable. States, school districts, and
school personnel must, therefore, select
and use methods that research has
shown to be effective, to the extent that
methods based on peer-reviewed
research are available. This does not
mean that the service with the greatest
body of research is the service
necessarily required for a child to
receive FAPE. Likewise, there is nothing
in the Act to suggest that the failure of
a public agency to provide services
based on peer-reviewed research would
automatically result in a denial of FAPE.
The final decision about the special
education and related services, and
supplementary aids and services that
are to be provided to a child must be
made by the child’s IEP Team based on
the child’s individual needs.
With regard to the comment regarding
the burden of proof when the denial of
FAPE is at issue, we have addressed this
issue in the Analysis of Comments and
Changes section for subpart E.
Changes: None.
Comment: Several commenters
recommended including a construction
clause in the regulations to clarify that
no child should be denied special
education and related services, or
supplementary aids and services, based
on a lack of available peer-reviewed
research on a particular service to be
provided.
Discussion: We do not believe that the
recommended construction clause is
necessary. Special education and related
services, and supplementary aids and
services based on peer-reviewed
research are only required ‘‘to the extent
practicable.’’ If no such research exists,
the service may still be provided, if the
IEP Team determines that such services
are appropriate. A child with a
disability is entitled to the services that
are in his or her IEP whether or not they
are based on peer-reviewed research.
The IEP Team, which includes the
child’s parent, determines the special
education and related services, and
supplementary aids and services that
are needed by the child to receive FAPE.
Changes: None.
Comment: A few commenters
recommended that the regulations
clarify that the reference to ‘‘peer-
reviewed research’’ does not require an
IEP to include instructional
methodologies. However, a few
commenters recommended that the
regulations require all elements of a
program provided to a child, including
program methodology, to be specified in
the child’s IEP.
Discussion: There is nothing in the
Act that requires an IEP to include
specific instructional methodologies.
Therefore, consistent with section
614(d)(1)(A)(ii)(I) of the Act, we cannot
interpret section 614 of the Act to
require that all elements of a program
provided to a child be included in an
IEP. The Department’s longstanding
position on including instructional
methodologies in a child’s IEP is that it
is an IEP Team’s decision. Therefore, if
an IEP Team determines that specific
instructional methods are necessary for
the child to receive FAPE, the
instructional methods may be addressed
in the IEP.
Changes: None.
Comment: A few commenters
requested that the regulations require
programs provided to a child with a
disability to be research-based with
demonstrated effectiveness in
addressing the particular needs of a
child.
Discussion: While the Act clearly
places an emphasis on practices that are
based on scientific research, there is
nothing in the Act that requires all
programs provided to children with
disabilities to be research-based with
demonstrated effectiveness in
addressing the particular needs of a
child where not practicable. We do not
believe the recommended change
should be made because, ultimately, it
is the child’s IEP Team that determines
the special education and related
services that are needed by the child in
order for the child to receive FAPE.
Changes: None.
Comment: A few commenters
recommended that § 300.320(a)(4)
specifically refer to assistive technology
devices as supplementary aids that must
be provided to the child.
Discussion: It is not necessary to refer
to assistive technology devices in
§ 300.320(a)(4). Section 300.324(a)(2)(v),
consistent with section 614(d)(3)(B)(v)
of the Act, already requires the IEP
Team to consider whether the child
needs assistive technology devices and
services.
Changes: None.
Participation With Nondisabled
Children (§ 300.320(a)(5))
Comment: Many commenters
recommended that § 300.320(a)(5),
regarding the participation of children
with disabilities with nondisabled
children, follow the language in section
614(d)(1)(A)(i)(V) of the Act and use the
term ‘‘regular class’’ instead of ‘‘regular
educational environment.’’ One
commenter stated that parents, school
staff, and the community consider the
‘‘regular class’’ to be the place where a
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child’s nondisabled peers go to school,
while ‘‘regular educational
environment’’ is interpreted to be
anywhere in the school, such as down
the hallway, in a separate wing of the
school, or across the lunch room. One
commenter stated that the term ‘‘regular
education environment’’ could be
interpreted to mean only special classes
such as art, music, and gym. A few
commenters recommended defining
‘‘regular education environment’’ to
mean the participation of children with
disabilities with their nondisabled peers
in the regular classroom and other
educational settings, including
nonacademic settings.
Discussion: We agree that use of the
term ‘‘regular educational environment’’
may be misinterpreted. Therefore, we
will revise § 300.320(a)(5) to require the
IEP to include an explanation of the
extent, if any, to which the child will
not participate with nondisabled
children in the regular class.
Changes: We have changed
§ 300.320(a)(5) to refer to the ‘‘regular
class’’ instead of the ‘‘regular education
environment.’’
Comment: One commenter
recommended adding language to
§ 300.320(a)(5) for preschool children
with disabilities and stated that ‘‘regular
education environment’’ should be
replaced with ‘‘settings with typically
developing peers.’’
Discussion: Section 300.320(a)(5)
follows the language in section
614(d)(1)(A)(i)(V) of the Act and applies
to all children with disabilities covered
by Part B of the Act, which includes
preschool children under section 619 of
the Act. We do not believe it is
necessary to change the regulations in
the manner suggested by the commenter
because the ‘‘regular class’’ includes a
preschool setting with typically
developing peers.
Changes: None.
Statewide and Districtwide Assessments
(§ 300.320(a)(6))
Comment: A few commenters
recommended requiring parents to be
informed in writing of the consequences
of their child taking an alternate
assessment, including any effect on the
child’s eligibility for graduation with a
regular high school diploma. The
commenters stated that providing this
information to parents is particularly
important in States that require passing
a State exam in order to obtain a regular
high school diploma.
Discussion: Section 612(a)(16) of the
Act requires that the State (or, in the
case of a districtwide assessment, the
LEA) develop and implement guidelines
for the participation of children with
disabilities in alternate assessments,
including alternate assessments aligned
to alternate achievement standards
permitted under 34 CFR 200.1(d).
Section 200.6(a)(2)(iii)(A)(2) of the
ESEA title I regulations requires States
to inform parents that their child’s
achievement will be measured against
alternate achievement standards.
We acknowledge that these
requirements do not specifically require
a public agency to inform parents of any
potential consequences of a child
participating in an alternate assessment.
The commenters’ recommendation will
be considered along with other
comments we have received in response
to the NPRM proposing changes to
§ 300.160, which was published in the
Federal Register on December 15, 2005
(70 FR 74624). As noted elsewhere in
this preamble, the final regulations for
§ 300.160, regarding participation in
assessments, will be published in a
separate final rule.
Changes: None.
Comment: One commenter
recommended defining ‘‘appropriate
accommodations’’ and ‘‘individual
appropriate accommodations’’ as
accommodations that are needed to
meet the child’s unique needs that
maintain and preserve test validity,
reliability, and technical testing
standards.
Discussion: Section
614(d)(1)(A)(i)(VI)(aa) of the Act
requires that the IEP include a statement
of any individual appropriate
accommodations that are necessary to
measure the academic and functional
performance of the child on State and
districtwide assessments. The
requirements in proposed § 300.160,
published in the Federal Register on
December 15, 2005, provide additional
information about accommodations and
the participation of children with
disabilities in State and districtwide
assessments. As noted elsewhere in this
preamble, the final § 300.160 will be
published in a separate final rule. We
will consider the commenter’s
recommendation along with other
comments received in response to the
NPRM proposing changes to § 300.160.
Changes: None.
Comment: One commenter
recommended changing the word
‘‘must’’ in § 300.320(a)(6)(ii) to state that
if an IEP Team determines that the child
will take an alternate assessment, the
IEP ‘‘will’’ include a statement of why
the child cannot participate in the
regular assessment. The commenter
stated that ‘‘will’’ is less coercive and
more in line with the consensus
decision-making model of IEP Team
meetings.
Discussion: Generally, we have used
the word ‘‘must’’ for regulations that
describe what a public agency must do
and the word ‘‘will’’ when referring to
what the IEP Team has determined a
child will do. While we understand the
commenter’s concern, we believe it is
unnecessary to change
§ 300.320(a)(6)(ii).
Changes: None.
Comment: One commenter
recommended that § 300.320(a)(6)
clarify that a child with the most
significant cognitive disabilities, who
has been determined by the IEP Team to
be unable to make progress toward the
regular achievement standards even
with the best instruction, will be taught
and assessed based on alternate
achievement standards.
Discussion: It would be inappropriate
to require a child with the most
significant cognitive disabilities to be
taught and assessed based on alternate
achievement standards. Consistent with
section 614(d)(1)(A)(i)(VI)(bb) of the
Act, the child’s IEP Team is responsible
for determining the particular
assessment that is appropriate for a
child. Under § 200.1(d) of the ESEA title
I regulations, a State is permitted, but
not required, to adopt alternate
achievement standards and develop an
alternate assessment based on those
standards for children with the most
significant cognitive disabilities. There
is no requirement under the Act or the
ESEA that a State develop an alternate
assessment based on alternate
achievement standards.
Changes: None.
Comment: One commenter stated that
§ 300.320(a)(6) should include
information about alternate assessments
because there will be children who will
not be successful with generic
accommodations.
Discussion: Section 612(a)(16)(C) of
the Act provides information regarding
alternate assessments and the
requirements for alternate assessments
under the Act. As noted elsewhere in
this preamble, the final regulations for
§ 300.160, which will incorporate the
requirements in section 612(a)(16) of the
Act and provide further clarification
regarding the participation of children
with disabilities in assessments, will be
published in a separate document. We
will consider the commenter’s
recommendation along with other
comments received in response to the
NPRM proposing changes to § 300.160.
Changes: None.
Comment: One commenter suggested
revising § 300.320(a)(6)(i), which
requires the IEP to include a statement
of any individual appropriate
accommodations that are necessary to
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‘‘measure’’ the academic and functional
performance of the child on State and
districtwide assessments. The
commenter recommended revising the
statement to require the IEP to include
a statement of any individual
appropriate accommodations that are
necessary to allow the child to
‘‘participate’’ in assessments.
Discussion: To change the regulation
in the manner suggested by the
commenter would be inconsistent with
the Act. Section 300.320(a)(6)(i) reflects
the language in section
614(d)(1)(A)(i)(VI)(aa) of the Act and
requires accommodations that are
necessary to measure a child’s
performance. Accommodations that
allow a child to ‘‘participate’’ in
assessments could include
accommodations that invalidate the
child’s test score, thereby resulting in an
assessment that does not ‘‘measure’’ a
child’s performance.
Changes: None.
Initiation, Frequency, Location, and
Duration of Services (§ 300.320(a)(7))
Comment: One commenter
recommended clarifying that the term
‘‘duration’’ in § 300.320(a)(7), regarding
services and modifications in the IEP,
refers to the length of a particular
service session and not the entire IEP.
Discussion: The meaning of the term
‘‘duration’’ will vary, depending on
such things as the needs of the child,
the service being provided, the
particular format used in an IEP, and
how the child’s day and IEP are
structured. What is required is that the
IEP include information about the
amount of services that will be provided
to the child, so that the level of the
agency’s commitment of resources will
be clear to parents and other IEP Team
members. The amount of time to be
committed to each of the various
services to be provided must be
appropriate to the specific service, and
clearly stated in the IEP in a manner
that can be understood by all involved
in the development and implementation
of the IEP.
Changes: None.
Comment: One commenter requested
that the regulations require the IEP to
include information about the person(s)
providing the services, rather than just
a listing of the services.
Discussion: The Act does not require
the IEP to include information about the
specific person(s) providing the
services. Section 614(d)(1)(A)(ii)(I) of
the Act precludes the Department from
interpreting section 614 of the Act to
require public agencies to include
information in the IEP beyond what is
specifically required by the Act.
Changes: None.
Transition Services (§ 300.320(b))
Comment: Many commenters
disagreed with changing the age at
which transition services must be
provided to a child with a disability
from 14 years to 16 years. One
commenter recommended that
transition services begin at age 13.
Another commenter recommended that
transition services begin before high
school, because if there is a choice of
high schools, transition goals may be a
determining factor in the selection
process. A few commenters requested
that the regulations clarify that States
may continue to begin transition
services with the first IEP after the child
turns age 14. Some commenters
recommended that transition begin two
to four full school years before the child
is expected to graduate because some
children may exit school at age 17.
Numerous commenters recommended
that the regulations clarify that States
have discretion to require transition
services to begin before age 16 for all
children in the State. However, a few
commenters recommended removing
the phrase ‘‘or younger if determined
appropriate by the IEP Team’’ in
§ 300.320(b) because the language is not
in the Act and promotes additional
special education services.
A few commenters recommended that
the regulations require transition
planning to begin earlier than age 16 if
necessary for the child to receive FAPE.
Other commenters recommended
clarifying that, in order for transition
services to begin by age 16, transition
assessments and other pre-planning
needs that would facilitate movement to
post-school life must be completed prior
to the child’s 16th birthday. One
commenter recommended requiring
transition planning to begin no later
than the child’s freshman year in high
school and that this planning include
selecting assessment instruments and
completing assessments that will lead to
the development of transition goals and
objectives in the child’s IEP.
Discussion: Section
614(d)(1)(A)(i)(VIII) of the Act requires
that transition services begin no later
than the first IEP to be in effect when
the child turns 16. Because IEP Team
decisions must always be
individualized, we have included the
phrase ‘‘or younger if determined
appropriate by the IEP Team’’ in
§ 300.320(b).
The Act does not require transition
planning or transition assessments, as
recommended by some commenters.
Therefore, consistent with section
614(d)(1)(A)(ii)(I) of the Act, we cannot
interpret section 614 of the Act to
require that IEPs include this
information because it is beyond what is
specifically required in the Act.
The Department believes that a State
could require transition services, if it
chose to do so, to begin before age 16
for all children in the State. However,
consistent with § 300.199(a)(2) and
section 608(a)(2) of the Act, a State that
chooses to require transition services
before age 16 for all children would
have to identify in writing to its LEAs
and to the Secretary that such rule,
regulation, or policy is a State-imposed
requirement that is not required by Part
B of the Act and Federal regulations.
Changes: None.
Comment: A few commenters
recommended that § 300.320(b) clarify
that the child is a participating IEP
Team member and that the IEP Team is
required to consider the child’s
preferences in developing transition
goals and services.
Discussion: The clarification
requested is not needed because
§ 300.321(b)(1) already requires the
public agency to invite a child with a
disability to attend the child’s IEP Team
meeting, if a purpose of the meeting is
to consider the child’s postsecondary
goals and the transition services needed
to assist the child to reach those goals.
In addition, § 300.321(b)(2) requires the
public agency to take steps to ensure
that the child’s preferences and interests
are considered, if the child does not
attend the IEP Team meeting. We
believe that this is sufficient
clarification that, for the purposes
mentioned by the commenter, the child
is a participating IEP Team member.
Changes: None.
Comment: A few commenters
requested that the regulations clarify
whether ‘‘transition assessments’’ are
formal evaluations or competency
assessments. One commenter stated that
transition assessments should be
different for a college-bound child with
a disability than for a child with severe
disabilities whose future is a group
home.
Discussion: We do not believe the
requested clarification is necessary
because the specific transition
assessments used to determine
appropriate measurable postsecondary
goals will depend on the individual
needs of the child, and are, therefore,
best left to States and districts to
determine on an individual basis.
Changes: None.
Comment: One commenter requested
clarification of the term ‘‘postsecondary
goals.’’ Another commenter
recommended defining ‘‘postsecondary
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goals’’ in the definition section of these
regulations.
Discussion: We do not believe it is
necessary to include a definition of
‘‘postsecondary goals’’ in the
regulations. The term is generally
understood to refer to those goals that a
child hopes to achieve after leaving
secondary school (i.e., high school).
Changes: None.
Comment: One commenter requested
clarification regarding whether
§ 300.320(b)(1) requires measurable
postsecondary goals in each of the areas
of training, education, employment,
and, independent living skills.
Discussion: Beginning not later than
the first IEP to be in effect when the
child turns 16 years of age, section
614(d)(1)(A)(i)(VIII)(aa) of the Act
requires a child’s IEP to include
measurable postsecondary goals in the
areas of training, education, and
employment, and, where appropriate,
independent living skills. Therefore, the
only area in which postsecondary goals
are not required in the IEP is in the area
of independent living skills. Goals in
the area of independent living are
required only if appropriate. It is up to
the child’s IEP Team to determine
whether IEP goals related to the
development of independent living
skills are appropriate and necessary for
the child to receive FAPE.
Changes: None.
Comment: Some commenters
recommended that the regulations retain
the requirement in current
§ 300.347(b)(1) that requires IEPs to
include a statement of the transition
service needs of the child under
applicable components of the child’s
IEP that focus on the child’s courses of
study (such as participation in
advanced-placement courses or a
vocational education program).
Discussion: The requirement referred
to by the commenter is already in the
regulations. Section 300.320(b)(2)
includes a reference to ‘‘courses of
study’’ as part of transition services,
consistent with section
614(d)(1)(A)(i)(VIII)(bb) of the Act. The
examples in current § 300.347(b)(2) (i.e.,
advanced placement course or a
vocational education program) are not
included in § 300.320(b)(2) because we
do not believe they are necessary to
understand and implement the
requirement.
Changes: None.
Comment: Several commenters
recommended that the regulations
explicitly require transition services to
include vocational and career training
through work-study and documentation
of accommodations needed in the
workplace.
Discussion: The Act does not require
IEPs to include vocational and career
training or documentation of workplace
accommodations. Consistent with
section 614(d)(1)(A)(ii)(I) of the Act, we
cannot interpret section 614 of the Act
to require IEPs to include information
beyond what is specifically required in
the Act. It is up to each child’s IEP Team
to determine the transition services that
are needed to meet the unique transition
needs of the child.
Changes: None.
Comment: A few commenters
recommended that the regulations
clarify that schools can use funds
provided under Part B of the Act to
support children in transitional
programs on college campuses and in
community-based settings.
Discussion: We do not believe that the
clarification requested by the
commenters is necessary to add to the
regulations because, as with all special
education and related services, it is up
to each child’s IEP Team to determine
the special education and related
services that are needed to meet each
child’s unique needs in order for the
child to receive FAPE. Therefore, if a
child’s IEP Team determines that a
child’s needs can best be met through
participation in transitional programs
on college campuses or in community-
based settings, and includes such
services on the child’s IEP, funds
provided under Part B of the Act may
be used for this purpose.
Changes: None.
Comment: One commenter
recommended more accountability for
transition services.
Discussion: The Act contains
significant changes to the monitoring
and enforcement requirements under
Part B of the Act. Section 300.600,
consistent with section 616(a) of the
Act, requires the primary focus of
monitoring to be on improving
educational results and functional
outcomes for children with disabilities.
The provisions in section 616(a) and
(b)(2)(C)(ii) of the Act set forth the
responsibility of States to monitor the
implementation of the Act, enforce the
Act, and annually report on
performance of the State and each LEA.
Section 300.600(c), consistent with
section 616(a)(3) of the Act, requires
States to measure performance in
monitoring priority areas using
quantifiable indicators and such
qualitative indicators as are needed to
adequately measure performance.
Section 300.601 reflects statutory
language in section 616(b) of the Act
and requires States to have a
performance plan that evaluates their
efforts to implement the requirement
and purposes of the Act. Transition
services are specifically being addressed
in State performance plans. We believe
that these changes to the monitoring and
enforcement requirements will ensure
that States and LEAs are held
accountable for the transition services
they provide.
Changes: None.
Comment: One commenter requested
that the regulations be revised to
include an affirmative statement that
transition services can be used to drive
the IEP for the child.
Discussion: It would be inappropriate
to include such a requirement in these
regulations because, while section
614(d)(1)(A)(i)(VIII) of the Act includes
transition services in a child’s IEP, there
is no suggestion that it be the only
component or the component that
governs a child’s IEP.
Changes: None.
Transfer of Rights at Age of Majority
(§ 300.320(c))
Comment: One commenter
recommended that the regulations
specify how the child is to be informed
of the transfer of rights. The commenter
also recommended that the regulations
require public agencies to explain to the
child the rights that will transfer to the
child on reaching the age of majority.
Discussion: The specific manner in
which a child is informed about his or
her rights is best left to States, districts,
and IEP Teams to decide, based on their
knowledge of the child and any unique
local or State requirements. Section
300.320(c), consistent with section
614(d)(1)(A)(i)(VIII)(cc) of the Act,
already requires the IEP to include a
statement that the child has been
informed of the child’s rights under Part
B of the Act, if any, that will transfer to
the child on reaching the age of
majority. We do not believe further
clarification is necessary.
Changes: None.
Comment: One commenter stated that
§ 300.320(c) is redundant with
§ 300.520.
Discussion: Sections 300.320 and
300.520 are related, but not redundant.
Section 300.320(c) requires the IEP to
include a statement that the child has
been informed of the child’s rights
under Part B of the Act that will transfer
to the child on reaching the age of
majority. Section 300.520 provides
additional information about the
transfer of rights as part of the
procedural safeguards for parents and
children under the Act.
Changes: None.
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Construction (§ 300.320(d))
Comment: One commenter stated that
§ 300.320(d)(2) constrains States and
LEAs from adding elements to the IEP
and misses the opportunity to make
sense of the one percent and two
percent rules under the ESEA. One
commenter recommended that the
regulations explicitly state that nothing
limits a State from adding its own
mandatory components of the IEP,
especially given the purpose and intent
to align the Act with the ESEA.
Discussion: There is nothing in the
Act that limits States and LEAs from
adding elements to the IEP, so long as
the elements are not inconsistent with
the Act or these regulations, and States
do not interpret the Act to require these
additional elements. Section 300.320(d),
consistent with section
614(d)(1)(A)(ii)(I) of the Act, does not
prohibit States or LEAs from requiring
IEPs to include information beyond that
which is explicitly required in section
614 of the Act. However, if a State
requires IEPs to include information
beyond that which is explicitly required
in section 614 of the Act, the State must
identify in writing to its LEAs and the
Secretary that it is a State-imposed
requirement and not one based on the
Act or these regulations, consistent with
§ 300.199(a)(2) and section 608(a)(2) of
the Act.
Changes: None.
IEP Team (§ 300.321)
Comment: One commenter
recommended that the regulations
clarify whether regular education
teachers are required at every IEP Team
meeting.
Discussion: Consistent with
§ 300.321(a)(2) and section
614(d)(1)(B)(ii) of the Act, a regular
education teacher is a required member
of an IEP Team if the child is, or may
be, participating in the regular
education environment. In such cases,
the regular education teacher would be
expected to attend each IEP Team
meeting, unless the regular education
teacher has been excused from attending
a meeting, pursuant to § 300.321(e) and
section 614(d)(1)(C) of the Act. We do
not believe further clarification is
necessary.
Changes: None.
Comment: Many comments were
received recommending that the IEP
Team include additional members
beyond those required by § 300.321(a).
Several commenters stated that
occupational therapists should be part
of the IEP Team because of their unique
training in assisting children to learn in
changing environments. A few
commenters recommended that a
recreation therapist or specialist be
included on the IEP Team. Other
commenters stated that a practitioner
skilled in assistive technology should be
included. Several commenters
recommended that the IEP Team
include individuals with knowledge or
special expertise regarding the related
services needs of a child.
Some commenters stated that
individuals from the child welfare
system should be included as members
of the IEP Team and should be invited
to attend IEP Team meetings when the
purpose of the meeting is to consider
transition services for a child who is a
ward of the State or in the custody of
the child welfare agency. The
commenters recommended that the IEP
Team should specifically include any of
the following individuals: The child’s
attorney or guardian ad litem, court
appointed special advocate, caseworker,
foster parent, caretaker, or judge.
Discussion: It would be inappropriate
to require that individuals with specific
professional knowledge or qualifications
attend all IEP Team meetings. These
decisions should be made on a case-by-
case basis in light of the needs of a
particular child. Section 300.321(a)(6),
consistent with section 614(d)(1)(B)(vi)
of the Act, already allows other
individuals who have knowledge or
special expertise regarding the child,
including related services personnel, as
appropriate, to be included as members
of a child’s IEP Team at the discretion
of the parent or the agency. Therefore,
we decline to make the changes
recommended by the commenters.
However, it should be noted that if a
public agency wishes to invite officials
from another agency, such as officials of
the child welfare agency that are not
representing the child, the public
agency must obtain parental consent for
the individual to participate in the IEP
Team meeting because confidential
information about the child from the
child’s education records would be
shared at the meeting.
Changes: None.
Comment: A few commenters
recommended that the IEP Team
include a representative of the private
school or facility when an IEP is
developed for a child in a private
school.
Discussion: We believe the
commenters’ concerns are already
addressed in the regulations. Section
300.325(a) requires that, before a public
agency places a child with a disability
in, or refers a child to, a private school
or facility, the agency must initiate and
conduct a meeting to develop an IEP for
the child and must ensure that a
representative of the private school or
facility attends the meeting.
Changes: None.
Comment: A few commenters stated
that the IEP Team should include other
persons whose presence on the IEP
Team would be beneficial to the child,
regardless of their academic
qualifications. Other commenters
recommended that the IEP Team
include credentialed and licensed
personnel, even though it is important
to recognize that people who are not
credentialed have important roles to
play.
Discussion: We believe the
commenters’ concerns are already
addressed. Section 614(d)(1)(B)(vi) of
the Act states that other individuals
who have knowledge or special
expertise regarding the child may be
included as members of a child’s IEP
Team at the discretion of the parent or
the agency. Consistent with
§ 300.321(c), the party (parents or public
agency) who invites the individual to be
a member of the IEP Team determines
the knowledge or special expertise of
such individual.
Changes: None.
Comment: Several commenters
recommended that the IEP Team
include an IEP manager who would
communicate with IEP members not in
attendance, ensure that the IEP
requirements are met, and assume
responsibility for implementing the IEP.
Discussion: The Act does not require
an IEP Team manager as a part of the
IEP Team. While having one individual
manage the provision of services under
the IEP might be a good practice in
particular circumstances, we decline to
require IEP Team managers for all IEPs
because, in many cases, it would be
unnecessary. In addition, to ensure that
all IEP Team members are aware of their
responsibilities regarding the
implementation of a child’s IEP,
§ 300.323(d) requires that the child’s IEP
be accessible to each regular education
teacher, special education teacher,
related services provider, and any other
service provider who is responsible for
its implementation.
Changes: None.
Comment: A few commenters
recommended that the special education
teacher on a child’s IEP Team should be
required to have expertise in the area of
the child’s disability. The commenters
stated that this is especially important
for children with dyslexia and children
with other learning disabilities.
A few commenters recommended that
the child’s future teacher be required to
attend an end-of-the-year IEP Team
meeting.
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Discussion: Section 612(d)(1)(B)(iii) of
the Act requires that not less than one
special education teacher of the child
(or where appropriate, not less than one
special education provider of the child)
be included on the IEP Team. Decisions
as to which particular teacher(s) or
special education provider(s) are
members of the IEP Team and whether
IEP Team meetings are held at the end
of the school year or some other time,
are best left to State and local officials
to determine, based on the needs of the
child.
Changes: None.
Comment: A few commenters
recommended defining ‘‘regular
education environment’’ in
§ 300.321(a)(2) to mean the regular
classroom and the non-academic
environment. A few commenters
requested that the regulations require
children to be in the regular classroom
and in nonacademic activities with their
nondisabled peers.
Discussion: It is not necessary to
define ‘‘regular education environment’’
or to repeat that children with
disabilities should be included in the
regular classroom and in nonacademic
activities with their nondisabled peers.
The LRE requirements in §§ 300.114
through 300.120, consistent with section
612(a)(5) of the Act, are clear that each
public agency must ensure that, to the
maximum extent appropriate, children
with disabilities are educated with
children who are nondisabled. Section
300.117, consistent with section
612(a)(5) of the Act, is clear that this
includes nonacademic and
extracurricular services and activities.
Changes: None.
Comment: A few commenters stated
that a special education provider should
be allowed to substitute for a special
education teacher only when the child
does not have a special education
teacher because the role of a special
education teacher is different from the
role of a special education provider.
Discussion: The recommended change
is not appropriate. Section 300.321(a)(2)
incorporates the language in section
614(d)(1)(B)(iii) of the Act and requires
the IEP Team to include not less than
one special education teacher, or where
appropriate, not less than one special
education provider. The special
education provider may substitute when
there is no special education teacher.
However, the Act leaves open the
possibility that there may be other
appropriate circumstances when a
special education provider could
substitute for a special education
teacher. These are decisions best left to
State and local officials.
Changes: None.
Comment: A few commenters
recommended that the regulations
define ‘‘special education teacher’’ and
‘‘special education provider,’’ as used in
§ 300.321(a)(3).
Discussion: Section 300.321(a)(3),
consistent with section 614(d)(1)(B)(iii)
of the Act, requires that the IEP Team
include not less than one special
education teacher, or where appropriate,
not less than one special education
provider of the child. This is not a new
requirement. The same requirement is
in current § 300.344(a)(3). As noted in
Attachment I of the March 12, 1999 final
regulations, the special education
teacher or provider who is a member of
the child’s IEP Team should be the
person who is, or will be, responsible
for implementing the IEP. For example,
if the child’s disability is a speech
impairment, the special education
teacher or special education provider
could be the speech language
pathologist. We do not believe that
further clarification is needed.
Changes: None.
Comment: Many commenters
recommended that the regulations
require the IEP Team to include a
representative of the public agency who
has the authority to commit resources.
One commenter stated that the failure of
this individual to attend an IEP Team
meeting lengthens the decision-making
process, delays services, and removes
parents from equal participation in an
IEP Team meeting.
Discussion: Section 300.321(a)(4)
incorporates the language in section
614(d)(1)(B)(iv) of the Act and requires
the IEP Team to include a representative
of the public agency who is qualified to
provide or supervise the provision of
specially designed instruction to meet
the unique needs of children with
disabilities; is knowledgeable about the
general education curriculum; and is
knowledgeable about the availability of
LEA resources.
A public agency may determine
which specific staff member will serve
as the agency representative in a
particular IEP Team meeting, so long as
the individual meets these
requirements. It is important, however,
that the agency representative have the
authority to commit agency resources
and be able to ensure that whatever
services are described in the IEP will
actually be provided. However, we do
not need to regulate in the manner
suggested, as the public agency will be
bound by the IEP that is developed at an
IEP Team meeting.
Changes: None.
Comment: One commenter
recommended that the IEP Team
include an individual who is qualified
to conduct individual diagnostic
assessments.
Discussion: Section 300.321(a)(5)
follows the language in section
614(d)(1)(B)(v) of the Act and requires
the IEP Team to include an individual
who can interpret the instructional
implications of evaluation results. An
individual who is qualified to conduct
a particular assessment does not
necessarily have the skills or knowledge
to assist the IEP Team in determining
the special education, related services,
and other supports that are necessary in
order for the child to receive FAPE.
Therefore, we do not believe that it is
necessary to require that the IEP Team
also include an individual who can
conduct diagnostic assessments.
Changes: None.
Comment: A few commenters
expressed concern that IEP Team
meetings are being used by parent
advocates to train parents of other
children, and by attorneys to train their
associates about the school’s IEP
process. In order to prevent this, these
commenters stated that the regulations
should identify the specific knowledge
and expertise that an individual must
have to be included on an IEP Team.
One commenter expressed concern
about confidentiality rights; the lack of
credentials for advocates; and the lack
of authority for a parent or school
district to prevent advocates from
participating in an IEP Team meeting.
Discussion: Section 614(d)(1)(B)(vi) of
the Act allows other individuals who
have knowledge or special expertise
regarding the child to be included on a
child’s IEP Team. Section 300.321(c)
provides that the determination of the
knowledge or special expertise of these
individuals must be made by the party
(parents or public agency) who invited
the individual to be a member of the IEP
Team. We continue to believe that this
determination is best left to parents and
the public agency. We also believe that
it would be inappropriate to regulate on
the specific knowledge and expertise
that an individual must have to be
included on an IEP Team because it
would be burdensome for both parents
and public agencies.
Additionally, nothing in the Act
prevents parents from consenting to
have an observer who is not a member
of the IEP Team present at the meeting,
as the parent can consent to the sharing
of confidential information about the
child. With that exception, it should be
emphasized that a person who does not
have knowledge and special expertise
regarding the child and who is not
requested to be present at the IEP Team
meeting by the parent or public agency
would not be permitted to be a member
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of the IEP Team or be permitted to
attend the IEP Team meeting as an
observer.
Changes: None.
Comment: A few commenters
recommended changing § 300.321(a)(7)
to clarify that a parent has the right to
bring their child to any or all IEP Team
meetings at any age.
Discussion: We do not believe that the
additional clarification requested by the
commenters is necessary. Section
614(d)(1)(B)(vii) of the Act clearly states
that the IEP Team includes the child
with a disability, whenever appropriate.
Generally, a child with a disability
should attend the IEP Team meeting if
the parent decides that it is appropriate
for the child to do so. If possible, the
agency and parent should discuss the
appropriateness of the child’s
participation before a decision is made,
in order to help the parent determine
whether or not the child’s attendance
would be helpful in developing the IEP
or directly beneficial to the child, or
both.
Until the child reaches the age of
majority under State law, unless the
rights of the parent to act for the child
are extinguished or otherwise limited,
only the parent has the authority to
make educational decisions for the child
under Part B of the Act, including
whether the child should attend an IEP
Team meeting.
Changes: None.
Transition Services Participants
(§ 300.321(b))
Comment: A few commenters
recommended requiring the public
agency to invite the child with a
disability to attend the child’s IEP Team
meeting no later than age 16 or at least
two years prior to the child’s expected
graduation, whichever comes first.
Discussion: The commenters’
concerns are addressed in § 300.321(b),
which requires the public agency to
invite a child with a disability to attend
the child’s IEP Team meeting if a
purpose of the meeting will be the
consideration of the postsecondary goals
for the child and the transition services
needed to assist the child in reaching
the child’s postsecondary goals.
Furthermore, a child’s IEP must include
transition services beginning not later
than the first IEP to be in effect when
the child turns 16, or younger, if
determined appropriate by the IEP
Team, consistent with § 300.320(b).
Changes: None.
Comment: One commenter requested
that the regulations clarify that parents
and children are not required to use the
transition services offered by agencies
that the school invites to the IEP Team
meeting.
Discussion: There is nothing in the
Act or these regulations that requires a
parent or child to participate in
transition services that are offered by
agencies that the public agency has
invited to participate in an IEP Team
meeting. However, if the IEP Team
determines that such services are
necessary to meet the needs of the child,
and the services are included on the
child’s IEP, and the parent (or a child
who has reached the age of majority)
disagrees with the services, the parent
(or the child who has reached the age of
majority) can request mediation, file a
due process complaint, or file a State
complaint to resolve the issue. We do
not believe further clarification in the
regulations is necessary.
Changes: None.
Comment: A few commenters
recommended requiring the public
agency to include all the notice
requirements in § 300.322(b) with the
invitation to a child to attend his or her
IEP Team meeting. The commenters
stated that children need to be fully
informed about the details and purpose
of the meeting in order for them to
adequately prepare and, therefore,
should have the same information that
is provided to other members of the IEP
Team.
Discussion: We decline to make the
suggested change. We believe it would
be overly burdensome to require a
public agency to include all the notice
requirements in § 300.322(b) with an
invitation to a child to attend his or her
IEP Team meeting, particularly because
the information is provided to the
child’s parents who can easily share this
information with the child. However,
when a child with a disability reaches
the age of majority under State law, the
public agency must provide any notice
required by the Act to both the child
and the parents, consistent with
§ 300.520 and section 615(m)(1)(A) of
the Act.
Changes: None.
Comment: One commenter requested
clarification regarding the public
agency’s responsibility to invite a child
who has not reached the age of majority
to the child’s IEP Team meeting when
a parent does not want the child to
attend.
Discussion: Section 300.321(b)(1)
requires the public agency to invite a
child with a disability to attend the
child’s IEP Team meeting if a purpose
of the meeting will be the consideration
of the postsecondary goals for the child
and the transition services needed to
assist the child in reaching those goals,
regardless of whether the child has
reached the age of majority. However,
until the child reaches the age of
majority under State law, unless the
rights of the parent to act for the child
are extinguished or otherwise limited,
only the parent has the authority to
make educational decisions for the child
under Part B of the Act, including
whether the child should attend an IEP
Team meeting.
Changes: None.
Comment: A few commenters
expressed concern that § 300.321(b)
does not require children to have
sufficient input as a member of the IEP
Team and recommended requiring the
IEP Team to more strongly consider the
child’s preferences and needs.
Discussion: Section 300.321(a)(7)
includes the child as a member of the
IEP Team, when appropriate, and
§ 300.321(b)(1) requires the public
agency to invite the child to the child’s
IEP Team meeting when the purpose of
the meeting will be the consideration of
the postsecondary goals for the child
and the transition services needed to
assist the child in reaching those goals.
Further, if the child does not attend the
IEP Team meeting, § 300.321(b)(2)
requires the public agency to take other
steps to ensure that the child’s
preferences and interests are
considered. We believe this is sufficient
to ensure that the child’s preferences
and needs are considered and do not
believe that any changes to § 300.321(b)
are necessary.
Changes: None.
Comment: One commenter stated that
the requirements in § 300.321(b),
regarding transition services
participants, are not in the Act, are too
rigid, and should be modified to provide
more flexibility for individual children.
Discussion: We believe that, although
not specified in the Act, the
requirements in § 300.321(b) are
necessary to assist children with
disabilities to successfully transition
from high school to employment,
training, and postsecondary education
opportunities. We believe it is critical
for children with disabilities to be
involved in determining their transition
goals, as well as the services that will be
used to reach those goals. Section
300.321(b), therefore, requires the
public agency to invite the child to
attend IEP Team meetings in which
transition goals and services will be
discussed. If the child does not attend
the IEP Team meeting, § 300.321(b)(2)
requires the public agency to take other
steps to ensure that the child’s
preferences and interests are
considered.
We also believe that, when it is likely
that a child will be involved with other
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agencies that provide or pay for
transition services or postsecondary
services, it is appropriate (provided that
the parent, or a child who has reached
the age of majority, consents) for
representatives from such agencies to be
invited to the child’s IEP Team meeting.
The involvement and collaboration with
other public agencies (e.g., vocational
rehabilitation agencies, the Social
Security Administration) can be helpful
in planning for transition and in
providing resources that will help
children when they leave high school.
We believe that children with
disabilities will benefit when transition
services under the Act are coordinated
with vocational rehabilitation services,
as well as other supports and programs
that serve all children moving from
school to adult life. Therefore, we
decline to change the requirements in
§ 300.321(b).
Changes: None.
Comment: One commenter stated that
§ 300.321(b)(1), which requires the
public agency to invite the child to an
IEP Team meeting when transition is to
be considered, duplicates
§ 300.321(a)(7), which requires a child
with a disability to be invited to his or
her IEP Team meeting, whenever
possible.
Discussion: These two provisions are
not redundant. Section 300.321(a)(7)
requires the public agency to include
the child with a disability, when
appropriate (not ‘‘whenever possible,’’
as stated by the commenter), in the
child’s IEP Team meeting, and, thus,
provides discretion for the parent and
the public agency to determine when it
is appropriate to include the child in the
IEP Team meeting. Section 300.321(b),
on the other hand, requires a public
agency to invite a child to attend an IEP
Team meeting when the purpose of the
meeting will be to consider the
postsecondary goals for the child and
the transition services needed to assist
the child to reach those goals. The
Department believes it is important for
a child with a disability to participate in
determining the child’s postsecondary
goals and for the IEP Team to consider
the child’s preferences and interests in
determining those goals.
Changes: None.
Comment: Many commenters
recommended removing the
requirement in § 300.321(b)(3) for
parental consent (or consent of a child
who has reached the age of majority)
before inviting personnel from
participating agencies to attend an IEP
Team meeting because it is burdensome,
may reduce the number of agencies
participating in the IEP Team meeting,
and may limit the options for transition
services for the child. The commenters
stated that this consent is unnecessary
under FERPA, and inconsistent with
§ 300.321(a)(6), which allows the parent
or the agency to include other
individuals in the IEP Team who have
knowledge or special expertise
regarding the child.
Discussion: Section 300.321(b)(3) was
included in the regulations specifically
to address issues related to the
confidentiality of information. Under
section 617(c) of the Act the Department
must ensure the protection of the
confidentiality of any personally
identifiable data, information, and
records collected or maintained by the
Secretary and by SEAs and LEAs
pursuant to Part B of the Act,
irrespective of the requirements under
FERPA. We continue to believe that a
public agency should be required to
obtain parental consent (or the consent
of a child who has reached the age of
majority) before inviting representatives
from other participating agencies to
attend an IEP Team meeting, consistent
with § 300.321(b)(3).
We do not believe that the
requirements in § 300.321(b)(3) are
inconsistent with § 300.321(a)(6).
Section 300.321(a)(6) permits other
individuals who have knowledge or
special expertise regarding the child to
attend the child’s IEP Team meeting at
the discretion of the parent or the public
agency. It is clear that in § 300.321(b)(3),
the individuals invited to the IEP Team
meeting are representatives from other
agencies who do not necessarily have
special knowledge or expertise
regarding the child. In these situations,
we believe that consent should be
required because representatives of
these agencies are invited to participate
in a child’s IEP Team meeting only
because they may be providing or
paying for transition services. We do not
believe that representatives of these
agencies should have access to all the
child’s records unless the parent (or the
child who has reached the age of
majority) gives consent for such a
disclosure. Therefore, we believe it is
important to include the requirement for
consent in § 300.321(b)(3).
Changes: None.
Comment: Some commenters
recommended removing the phrase, ‘‘to
the extent appropriate’’ in
§ 300.321(b)(3) and requiring public
agencies to invite a representative of any
participating agency that is likely to be
responsible for providing or paying for
transition services to the IEP Team
meeting.
Discussion: We disagree with the
recommended change because the
decision as to whether to invite a
particular agency to participate in a
child’s IEP Team meeting is a decision
that should be left to the public agency
and the parent (or the child with a
disability who has reached the age of
majority).
Changes: None.
Comment: Numerous commenters
recommended retaining current
§ 300.344(b)(3)(ii), which requires the
public agency to take steps to ensure the
participation of invited agencies in the
planning of any transition services
when the agencies do not send a
representative to the IEP Team meeting.
These commenters stated that the
participation of other agencies is vital to
ensuring that the child receives the
necessary services. One commenter
requested that the regulations clarify
that, aside from inviting other agencies
to attend a child’s IEP Team meeting,
public agencies have no obligation to
obtain the participation of agencies
likely to provide transition services.
Discussion: The Act has never given
public agencies the authority to compel
other agencies to participate in the
planning of transition services for a
child with a disability, including when
the requirements in § 300.344(b)(3)(ii)
were in effect. Without the authority to
compel other agencies to participate in
the planning of transition services,
public agencies have not been able to
meet the requirement in current
§ 300.344(b)(3)(ii) to ‘‘ensure’’ the
participation of other agencies in
transition planning. Therefore, while we
believe that public agencies should take
steps to obtain the participation of other
agencies in the planning of transition
services for a child, we believe it is
unhelpful to retain current
§ 300.344(b)(3)(ii).
Changes: None.
Comment: A few commenters
recommended that the regulations
require the public agency to put parents
in touch with agencies providing
transition services.
Discussion: We do not believe it is
necessary to regulate to require public
agencies to put parents in touch with
agencies providing transition services.
As a matter of practice, public agencies
regularly provide information to
children and parents about transition
services during the course of planning
and developing transition goals and
determining the services that are
necessary to meet the child’s transition
goals.
Changes: None.
Comment: One commenter asked
whether a parent could exclude an
individual from the IEP Team.
Discussion: A parent can refuse to
provide consent only for the public
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agency to invite other agencies that are
likely to be responsible for providing or
paying for transition services. A parent
may not exclude any of the required
members of the IEP Team.
Changes: None.
IEP Team Attendance (§ 300.321(e))
Comment: We received many
comments from individuals expressing
concern about allowing IEP Team
members to be excused from attending
an IEP Team meeting. A few
commenters recommended that the
regulations require all IEP Team
members to attend all IEP Team
meetings without exception. One
commenter stated that excusing
members from attending IEP Team
meetings interrupts the flow of the
meeting and takes away time from
discussing the child’s needs. Another
commenter expressed concern that the
integrity of the IEP Team meeting
process depends on a discussion to
determine the services that are
necessary to meet the child’s unique
needs, and that the richness of this
discussion may be diminished if IEP
Team members are allowed to be
excused too frequently and the IEP
Team must rely on written input.
Several commenters recommended
that the regulations acknowledge that,
in most circumstances, interactive
discussion in IEP Team meetings is
preferable to written input. Many
commenters requested that the
multidisciplinary scope of the IEP Team
meeting be maintained. One commenter
stated that written input from an
excused IEP Team member is not
sufficient and will be burdensome for
both the writer and the readers.
Discussion: Section 614(d)(1)(C) of the
Act allows a parent of a child with a
disability and the LEA to agree that the
attendance of an IEP Team member at
an IEP Team meeting, in whole or in
part, is not necessary under certain
conditions. Allowing IEP Team
members to be excused from attending
an IEP Team meeting is intended to
provide additional flexibility to parents
in scheduling IEP Team meetings and to
avoid delays in holding an IEP Team
meeting when an IEP Team member
cannot attend due to a scheduling
conflict.
Changes: None.
Comment: Many commenters stated
that the excusal provisions in § 300.321
should be optional for States and that
States should be allowed to require that
all IEP Team members attend each IEP
Team meeting. Several commenters
recommended allowing States to
determine the circumstances or
conditions under which attendance at
the IEP Team meeting is not required. A
few commenters recommended
clarifying whether a State must have
policies and procedures to excuse IEP
Team members.
Discussion: Under section
614(d)(1)(C) of the Act, a State must
allow a parent and an LEA to agree to
excuse a member of the IEP Team.
Section 300.321(e) reflects this
requirement and we do not have the
authority to make this optional for
States. We also do not have the
authority to allow a State to restrict, or
otherwise determine, when an IEP Team
member can be excused from attending
a meeting, or to prohibit the excusal of
an IEP Team member when the LEA and
parent agree to the excusal. Whether a
State must have policies and procedures
to excuse IEP Team members from
attending an IEP Team meeting will
depend on whether such policies and
procedures are required by a State to
implement this statutory requirement.
However, every State must allow a
parent and an LEA to agree to excuse an
IEP Team member from attending an IEP
Team meeting.
Changes: None.
Comment: Several commenters
recommended that the regulations
clarify whether the excusal agreement
must meet the standard for informed
consent. Some commenters stated that
Congress intended excusal agreements
to mean informed written consent.
Other commenters stated that parents,
not the public agency, can provide
consent and therefore, only parents
should be allowed to provide consent
for excusing IEP Team members from
IEP Team meetings. A few commenters
recommended simplifying § 300.321(e)
by eliminating the different procedures
for different types of excusals.
Discussion: Whether a parent must
provide consent to excuse a member of
the IEP Team from attending an IEP
Team meeting depends on whether the
member’s area of the curriculum or
related services is being modified or
discussed at the IEP Team meeting. We
cannot eliminate the different
procedures for different types of
excusals because section 614(d)(1)(C) of
the Act clearly differentiates between
circumstances in which parental
consent is required and when an
agreement is required to excuse an IEP
member from attending an IEP Team
meeting.
If the member’s area is not being
modified or discussed, § 300.321(e)(1),
consistent with section 614(d)(1)(C) of
the Act, provides that the member may
be excused from the meeting if the
parent and LEA agree in writing that the
member’s attendance is not necessary.
An agreement is not the same as
consent, but instead refers to an
understanding between the parent and
the LEA. Section 614(d)(1)(C) of the Act
specifically requires that the agreement
between a parent and an LEA to excuse
a member’s attendance at an IEP Team
meeting must be in writing. If, however,
the member’s area is being modified or
discussed, § 300.321(e)(2), consistent
with section 614(d)(1)(C)(ii) of the Act,
requires the LEA and the parent to
provide written informed consent.
Changes: None.
Comment: One commenter asked
whether parents must be provided any
information when asked to excuse IEP
Team members. A few commenters
recommended that the request for an
excusal include the reason for the
request to excuse a member of the IEP
Team, that it be written in the chosen
language of the parent, and
accompanied by written evaluations and
recommendations of the excused IEP
Team member.
A few commenters recommended that
no IEP Team member should be excused
from attending an IEP Team meeting
until the parent is informed about the
purpose of the meeting for which the
public agency proposes to excuse the
IEP Team member; the IEP Team
member’s name and position; the
reason(s) the public agency wants to
excuse the IEP Team member; the
parent’s right to have the IEP Team
member present; and the parent’s right
to discuss with the IEP Team member
any issues in advance of the meeting so
the parent is adequately informed. The
commenters stated that this notice
should be included in any statement of
parent’s rights that is distributed.
Numerous commenters recommended
that the regulations include specific
language to clarify that, before agreeing
to excuse an IEP Team member, serious
consideration must be given to
determining if written input will be
sufficient to thoroughly examine what
services are needed and whether
changes to the current IEP are necessary.
A few commenters recommended that
parents be informed of the roles and
responsibilities of the excused member
prior to giving consent for the excusal.
Some commenters stated that parents
must understand that they have the
right to disagree and not excuse a
member of the IEP Team who the
parents believe may be essential to
developing or revising an IEP. One
commenter recommended that the
written agreement be required to
include information that the parent was
informed of the parent’s right to have all
IEP Team members present.
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One commenter recommended
permitting States to establish additional
procedural safeguards that guarantee
that parents who consent to excuse an
IEP member from a meeting do so freely
and are aware of the implications of
their decisions. Some commenters
expressed concern that a parent could
be pressured to agree to excuse an IEP
Team member for what, in reality, are
economic or staffing reasons. One
commenter stated that parents should
have the right to consent to excusal only
after conferring with the individual to
be excused. Some commenters
recommended that parents be informed
that they have a legal right to require an
IEP Team member to participate in the
meeting.
A few commenters expressed concern
that the permission to excuse IEP Team
members from attending IEP Team
meetings will be abused, particularly
with language-minority parents who are
often misinformed or misled by school
districts. Some commenters stated that
parents do not understand the roles of
the various members and could easily
be pressured into excusing vital
members of the IEP Team.
A few commenters recommended that
the regulations include requirements to
guard against excessive excusals. Some
commenters stated that an LEA that
routinely prevents general or special
education teachers, or related services
providers, from attending IEP Team
meetings using the excusal provisions
should be subject to monitoring and
review.
Discussion: When an IEP Team
member’s area is not being modified or
discussed, § 300.321(e)(1), consistent
with section 614(d)(1)(C) of the Act,
provides that the member may be
excused from the meeting if the parent
and LEA agree in writing that the
member’s attendance is not necessary.
We believe it is important to give public
agencies and parents wide latitude
about the content of the agreement and,
therefore, decline to regulate on the
specific information that an LEA must
provide in a written agreement to
excuse an IEP Team member from
attending the IEP Team meeting when
the member’s area of the curriculum or
related services is not being modified or
discussed.
When an IEP Team member’s area is
being modified or discussed,
§ 300.321(e)(2), consistent with section
614(d)(1)(C)(ii) of the Act, requires the
LEA and the parent to provide written
informed consent. Consistent with
§ 300.9, consent means that the parent
has been fully informed in his or her
native language, or other mode of
communication, and understands that
the granting of consent is voluntary and
may be revoked at any time. The LEA
must, therefore, provide the parent with
appropriate and sufficient information
to ensure that the parent fully
understands that the parent is
consenting to excuse an IEP Team
member from attending an IEP Team
meeting in which the member’s area of
the curriculum or related services is
being changed or discussed and that if
the parent does not consent the IEP
Team meeting must be held with that
IEP Team member in attendance.
We believe that these requirements
are sufficient to ensure that the parent
is fully informed before providing
consent to excuse an IEP Team member
from attending an IEP Team meeting in
which the member’s area of the
curriculum will be modified or
discussed, and do not believe that it is
necessary to include in the regulations
the more specific information that
commenters recommended be provided
to parents.
We also do not believe it is necessary
to add a regulation permitting States to
establish additional procedural
safeguards for parents who consent to
excuse an IEP Team member, as
recommended by one commenter,
because we believe the safeguard of
requiring consent will be sufficient to
prevent parents from feeling pressured
to excuse an IEP Team member.
Furthermore, parents who want to
confer with an excused team member
may ask to do so before agreeing or
consenting to excusing the member from
attending the IEP Team meeting, but it
would be inappropriate to add a
regulation that limited parent rights by
requiring a conference before the parent
could agree or consent to the excusal of
an IEP Team member.
With regard to the recommendation
that the notice state that the parent has
a legal right to require an IEP Team
member to participate in an IEP Team
meeting, it is important to emphasize
that it is the public agency that
determines the specific personnel to fill
the roles for the public agency’s
required participants at the IEP Team
meeting. A parent does not have a legal
right to require other members of the
IEP Team to attend an IEP Team
meeting. Therefore, if a parent invites
other public agency personnel who are
not designated by the LEA to be on the
IEP Team, they are not required to
attend.
An LEA may not routinely or
unilaterally excuse IEP Team members
from attending IEP Team meetings as
parent agreement or consent is required
in each instance. We encourage LEAs to
carefully consider, based on the
individual needs of the child and the
issues that need to be addressed at the
IEP Team meeting whether it makes
sense to offer to hold the IEP Team
meeting without a particular IEP Team
member in attendance or whether it
would be better to reschedule the
meeting so that person could attend and
participate in the discussion. However,
we do not believe that additional
regulations on this subject are
warranted.
An LEA that routinely excuses IEP
Team members from attending IEP
Team meetings would not be in
compliance with the requirements of the
Act, and, therefore, would be subject to
the State’s monitoring and enforcement
provisions.
Changes: None.
Comment: A few commenters
requested clarification on whether
excusals from IEP Team meetings apply
to only regular education teachers,
special education teachers, and related
services providers, or to all individuals
whose curriculum areas may be
discussed at an IEP Team meeting. One
commenter recommended clarifying
that all IEP Team members, as defined
in § 300.321, must be represented at the
IEP Team meeting unless excused by the
parents and the LEA.
One commenter stated that
§ 300.321(e) can be read to require that
each individual invited to the IEP Team
meeting by the parent or the public
agency (who has knowledge or special
expertise) must attend the meeting
unless the parent and the agency agree
in writing that they need not attend. The
commenter recommended that the
regulations clarify that the attendance of
the other individuals invited to attend
the IEP Team meeting by the parent and
public agency is discretionary and that
no waiver is needed to hold the IEP
Team meeting without them. The
commenter recommended revising
§ 300.321(e)(1) to refer to ‘‘mandatory’’
members of the IEP Team. Another
commenter expressed concern that it is
not possible to pre-determine the areas
of the curriculum that may be addressed
at an IEP Team meeting, and
recommended that excusals be
permitted only for the IEP Team
members identified by the public
agency in § 300.321(a).
One commenter recommended that
the regulations allow teachers with
classroom responsibilities to attend an
IEP Team meeting for 15 to 20 minutes
and leave the meeting when necessary.
Some commenters requested
clarification regarding situations in
which there is more than one regular
education teacher at an IEP Team
meeting and whether one or both
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teachers must have a written excusal to
leave before the end of an IEP Team
meeting.
One commenter stated that it is
unclear whether consent must be
obtained if a speech pathologist or
occupational therapist cannot attend a
meeting because speech pathologists
and occupational therapists are not
required members of an IEP Team.
Discussion: We believe that the
excusals from IEP Team meetings apply
to the members of the IEP Team in
paragraphs (a)(2) through (5) in
§ 300.321, that is, to the regular
education teacher of the child (if the
child is, or may be participating in the
regular education environment); not less
than one special education teacher of
the child (or where appropriate, not less
than one special education provider of
the child); a representative of the public
agency who meets the requirements in
§ 300.321(a)(4); and an individual who
can interpret the instructional
implications of evaluation results. We
do not believe it is necessary to require
consent or a written agreement between
the parent and the public agency to
excuse individuals who are invited to
attend IEP Team meetings at the
discretion of the parent or the public
agency because such individuals are not
required members of an IEP Team. We
will add new language to § 300.321(e) to
clarify the IEP Team members for whom
the requirements regarding excusals
apply.
With regard to situations in which
there is more than one regular education
teacher, the IEP Team need not include
more than one regular education
teacher. The regular education teacher
who serves as a member of a child’s IEP
Team should be a teacher who is, or
may be, responsible for implementing a
portion of the IEP so that the teacher can
participate in discussions about how
best to instruct the child. If the child has
more than one regular education teacher
responsible for carrying out a portion of
the IEP, the LEA may designate which
teacher or teachers will serve as the IEP
member(s), taking into account the best
interest of the child. An LEA could also
agree that each teacher attend only the
part of the meeting that involves
modification to, or discussion of, the
teacher’s area of the curriculum.
Section 300.321(a)(3) requires the IEP
Team to include not less than one
special education teacher or where
appropriate, not less than one special
education provider of the child. As
explained earlier, a special education
provider is a person who is, or will be,
responsible for implementing the IEP.
Therefore, if a speech pathologist,
occupational therapist, or other special
education provider, other than the
child’s special education teacher is on
the IEP Team, written consent from the
parent would be required for the speech
pathologist, occupational therapist, or
other special education provider to be
excused from attending an IEP Team
meeting, in whole or in part, when the
IEP Team meeting involves a
modification to, or discussion of, the
IEP Team member’s related service or
area of the curriculum.
Changes: We have added language in
§ 300.321(e)(1) to refer to paragraphs
(a)(2) through (a)(5), and a reference to
paragraph (e)(1) in § 300.321(e)(2) to
clarify the IEP Team members for whom
a parent and public agency must
consent or agree in writing to excuse
from an IEP Team meeting.
Comment: A few commenters stated
that excusal of the regular education
teacher is already built into the
requirements and questioned the
circumstances under which a State
might exceed these requirements.
Discussion: Section 300.321(a)(2) does
not require a regular education teacher
to be part of the IEP Team for a child
who is not participating in the regular
education environment or is not
anticipated to participate in the regular
education environment. The excusals
from IEP Team meetings in § 300.321(e)
apply to a regular education teacher
who is part of the IEP Team by virtue
of the fact that the child with a
disability is participating, or may be
participating, in the regular education
environment.
Changes: None.
Comment: Some commmenters
recommended setting a limit as to how
often teachers can be excused from IEP
Team meetings. A few commenters
recommended prohibiting the excusal of
IEP Team members for initial IEP Team
meetings. One commenter
recommended allowing an IEP Team
meeting to occur only if there is one
person who cannot attend the meeting.
Many commenters opposed the
excusal of teachers, therapists, speech
providers, and other experts who work
with a child on an ongoing basis. A few
commenters stated that regular
education teachers should not be
excused from IEP Team meetings
because they have the content expertise
that is critical to the IEP process. One
commenter stated that the excusal of an
LEA representative should not be
allowed.
A few commenters requested
guidance to make it more difficult for
IEP Team members to be excused from
IEP Team meetings. Some commenters
stated that excusing IEP Team members
should only be done in limited
circumstances and only when
absolutely necessary.
Some commenters recommended that
the regulations provide an opportunity
for the parents to challenge a public
agency’s attempt to exclude staff
members who believe their attendance
is necessary at an IEP Team meeting. A
few commenters suggested that the
regulations prohibit excusal of
personnel based on the cost of providing
coverage in the classroom for a teacher
to attend the IEP Team meeting,
disagreements over appropriate services
among staff, or scheduling problems.
One commenter recommended that the
regulations clearly state that teachers
cannot be barred from attending an IEP
Team meeting.
Discussion: We decline to make the
changes requested by the commenters
because it would be inconsistent with
section 614(d)(1)(C) of the Act to set a
limit on the number of times an IEP
Team member could be excused;
prohibit excusals for initial IEP Team
meetings; restrict the number of
excusals per meeting; prohibit certain
IEP Team members from being excused
from attending an IEP Team meeting; or
otherwise restrict or limit parents and
LEAs from agreeing to excuse IEP Team
members from attending an IEP Team
meeting. Likewise, it would be
inconsistent with section 614(d)(1)(C) of
the Act for an LEA to unilaterally
excuse an IEP Team member from
attending an IEP Team meeting.
The public agency determines the
specific personnel to fill the roles for the
public agency’s required participants at
the IEP Team meeting. Whether other
teachers or service providers who are
not the public agency’s required
participants at the IEP Team meeting
can attend an IEP Team meeting is best
addressed by State and local officials.
Changes: None.
Comment: A few commenters asked
whether the regular teacher, the special
education teacher, principal, or the LEA
makes the decision with the parent to
excuse an IEP member. Some
commenters recommended that the
regulations require the excused IEP
Team member to agree to be excused
from an IEP Team meeting. Other
commenters stated that a teacher should
be included as one of the parties that
decide whether a teacher should be
excused from attending the IEP Team
meeting.
Numerous commenters recommended
that, before an IEP Team member is
excused from attending an IEP Team
meeting, sufficient notice must be given
so that other IEP Team members can
consider the request. Some commenters
requested that the regulations clarify
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whether the entire IEP Team must meet
and then agree on whether a member’s
attendance at the IEP Team meeting is
needed.
Discussion: It would not be
appropriate to make the changes
recommended by the commenters.
There is no requirement that the
excused IEP Team member agree to be
excused from the IEP Team meeting,
that a teacher be included as one of the
parties that decides whether a teacher
should be excused from attending the
IEP Team meeting, or that other IEP
Team members agree to excuse a
member’s attendance. It is up to each
public agency to determine the
individual in the LEA with the authority
to make the agreement (or provide
consent) with the parent to excuse an
IEP Team member from attending an IEP
Team meeting. The designated
individual must have the authority to
bind the LEA to the agreement with the
parent or provide consent on behalf of
the LEA.
Changes: None.
Comment: A few commenters
recommended that the regulations
specifically state that parents retain the
right to change their mind to excuse an
IEP Team member and have full IEP
Team member participation, if it
becomes apparent during the IEP Team
meeting that the absence of an excused
IEP Team member inhibits the
development of the IEP. One commenter
expressed concern that parents will be
informed of excusals at the beginning of
a meeting or be given a note, report, or
letter from the absent IEP Team
member.
Discussion: The IEP Team is expected
to act in the best interest of the child.
As with any IEP Team meeting, if
additional information is needed to
finalize an appropriate IEP, there is
nothing in the Act that prevents an IEP
Team from reconvening after the needed
information is obtained, as long as the
IEP is developed in a timely manner,
consistent with the requirements of the
Act and these regulations. The parent
can request an additional IEP Team
meeting at any time and does not have
to agree to excuse an IEP Team member.
Likewise, if a parent learns at the IEP
Team meeting that a required
participant will not be at the meeting,
the parent can agree to continue with
the meeting and request an additional
meeting if more information is needed,
or request that the meeting be
rescheduled.
Changes: None.
Comment: Several commenters
recommended that the regulations
specify the amount of time prior to an
IEP Team meeting by which notice must
be received by the parent about the
LEA’s desire to excuse an IEP Team
member from attending an IEP Team
meeting. A few commenters
recommended that an LEA’s request for
excusal of an IEP Team member be
provided to the parent 10 business days
prior to the date of the IEP Team
meeting and other commenters
recommended five business days before
an IEP Team meeting.
One commenter recommended that
the regulations specify when the
parent’s written consent to excuse IEP
Team members from the meeting must
be received by the agency. Many
commenters recommended that the
regulations include language requiring
that any agreement to excuse an IEP
Team member from attending the IEP
Team meeting be done in advance of the
meeting. Some commenters stated that
requiring an agreement in advance of an
IEP Team meeting would allow the
parent to review the IEP Team member’s
written input prior to the IEP Team
meeting and ensure that parental
consent is informed. A few commenters
recommended that the Act prohibit a
written agreement from being signed
before the meeting occurs.
Discussion: The Act does not specify
how far in advance of an IEP Team
meeting a parent must be notified of an
agency’s request to excuse a member
from attending an IEP Team meeting or
when the parent and LEA must sign a
written agreement or provide consent to
excuse an IEP Team member. Ideally,
public agencies would provide parents
with as much notice as possible to
request that an IEP Team member be
excused from attending an IEP Team
meeting, and have agreements or
consents signed at a reasonable time
prior to the IEP Team meeting.
However, this might not always be
possible, for example, when a member
has an emergency or an unavoidable
scheduling conflict. To require public
agencies to request an excusal or obtain
a signed agreement or consent to excuse
a member a specific number of days
prior to an IEP Team meeting would
effectively prevent IEP Team members
from being excused from IEP Team
meetings in many situations and, thus,
be counter to the intent of providing
additional flexibility to parents in
scheduling IEP Team meetings.
Furthermore, if an LEA requests an
excusal at the last minute or a parent
needs additional time or information to
consider the request, the parent always
has the right not to agree or consent to
the excusal of the IEP Team member.
We, therefore, decline to regulate on
these matters.
Changes: None.
Comment: One commenter requested
that the regulations clarify the
timeframe in which the written input
must be provided to the parent and the
IEP Team. Another commenter
expressed concern that without
knowing whether the information
submitted is sufficient to answer any of
the parent’s questions, the parent could
not agree, in any informed way, to
excuse an IEP Team member from
attending the IEP Team meeting.
Several commenters recommended
that written input be provided to
parents a reasonable amount of time
prior to the meeting and not at the
beginning of the meeting. One
commenter recommended requiring that
parents receive written evaluations and
recommendations from the excused
member at least 10 business days before
the IEP Team meeting. Another
commenter recommended that written
input be provided at least 10 school
days in advance of the meeting; another
commenter suggested no later than
seven days before the meeting; a few
commenters recommended at least five
days in advance of the meeting; and
some commenters recommended at least
three business days before the meeting.
A few commenters recommended
requiring public agencies to send
parents the written input of excused IEP
Team members as soon as they receive
it so that parents have sufficient time to
consider the input. One commenter
recommended that the regulations
require the written input to be provided
to IEP Team members and parents at the
same time.
Discussion: Section 614(d)(1)(C)(ii)(II)
of the Act requires that input into the
development of the IEP by the IEP Team
member excused from the meeting be
provided prior to the IEP Team meeting
that involves a modification to, or
discussion of the member’s area of the
curriculum or related services. The Act
does not specify how far in advance of
the IEP Team meeting that the written
input must be provided to the parent
and IEP Team members. For the reasons
stated earlier, we do not believe it is
appropriate to impose a specific
timeframe for matters relating to the
excusal of IEP Team members. Parents
can always reschedule an IEP Team
meeting or request that an IEP Team
meeting be reconvened if additional
time is needed to consider the written
information.
Changes: None.
Comment: A few commenters
recommended language clarifying that
IEP Team members who submit input
prior to an IEP Team meeting may still
attend the meeting. Other commenters
requested that the regulations specify
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that failure to provide prior written
input, due to inadequate notice or
unreasonable workloads, does not
prohibit the excused member from
attending the meeting in person.
Discussion: The Act does not address
circumstances in which an IEP Team
member is excused from an IEP Team
meeting, but desires to attend the
meeting. We believe such circumstances
are best addressed by local officials and
are not appropriate to include in these
regulations.
Changes: None.
Comment: A few commenters
recommended that the format of the
written input required in § 300.321(e) be
flexible and not unduly burdensome.
One commenter stated that no new form
should be created for the written input.
A few commenters recommended that
the regulations clarify that the written
input must be sufficient to allow the IEP
Team to thoroughly examine the
services needed and decide whether
changes to the current IEP are needed.
Other commenters recommended that
the written input provide information
about a child’s level of academic
achievement and functional
performance; recommendations for
services, supports, and accommodations
to improve academic and functional
performance; revisions to the current
annual goals; and other appropriate
guidance.
Other commenters recommended that
the written input include the IEP Team
member’s opinions regarding the child’s
eligibility and services needed; the basis
for the opinions, including any
evaluations or other documents that
formed the basis for the IEP Team
member’s opinion; and whether the
evaluations were conducted by the IEP
Team member or another person. These
commenters also recommended that the
regulations require the excused IEP
Team member to include a telephone
number where the IEP Team member
can be reached prior to the meeting if
the parent wants to contact the member,
and a telephone number where the
member can be reached during the
meeting in case immediate input during
the meeting is required.
A few commenters recommended
prohibiting public agencies from giving
the child the written input at school to
take home to his or her parents. One
commenter recommended that the
written input be provided with the
meeting notice required in § 300.322.
Another commenter recommended that
the regulations allow the written input
to be provided to parents and other IEP
Team members by electronic mail or
other less formal methods.
Discussion: The Act does not specify
the format or content to be included in
the written input provided by an
excused member of the IEP Team.
Neither does the Act specify the
method(s) by which a public agency
provides parents and the IEP Team with
the excused IEP Team member’s written
input. We believe that such decisions
are best left to local officials to
determine based on the circumstances
and needs of the individual child,
parent, and other members of the IEP
Team, and therefore decline to regulate
in this area.
Changes: None.
Comment: One commenter
recommended requiring any IEP Team
member who is excused from an IEP
Team meeting to be trained in the
updated IEP within one calendar week
of the IEP Team meeting. A few
commenters recommended that the
excused IEP Team members be provided
a copy of the new or amended IEP after
the meeting. One commenter
recommended that one person be
designated to be responsible for sharing
the information from the meeting with
the excused IEP Team member and for
communicating between the parent and
the excused IEP Team member after the
meeting.
Discussion: Section 300.323(d)
already requires each public agency to
ensure that the child’s IEP is accessible
to each regular education teacher,
special education teacher, related
services provider and other service
provider who is responsible for its
implementation, regardless of whether
the IEP Team member was present or
excused from an IEP Team meeting.
How and when the information is
shared with the IEP Team member who
was excused from the IEP Team meeting
is best left to State and local officials to
determine.
Changes: None.
Comment: A few commenters
recommended that the regulations
require the LEA to inform a parent when
the absent IEP Team member will
address the parent’s questions and
concerns. Another commenter
recommended that the regulations
require the LEA to inform the parent of
procedures for obtaining the requested
information.
Discussion: We do not believe it is
appropriate to regulate on these matters.
The manner in which the parent’s
questions and concerns are addressed,
and how the information is shared with
the parent, are best left for State and
local officials to determine.
Changes: None.
Comment: One commenter requested
clarification on how the provisions in
§ 300.321(e), which allow IEP Team
members to be excused from IEP Team
meetings, relate to revising an IEP
without convening an IEP Team
meeting.
Discussion: The two provisions
referred to by the commenter are
independent provisions. Section
300.321(e), consistent with section
614(d)(1)(C) of the Act, describes the
circumstances under which an IEP
Team member may be excused from an
IEP Team meeting. Section
300.324(a)(4), consistent with section
614(d)(3)(D) of the Act, permits the
parent and the public agency to agree
not to convene an IEP Team meeting to
make changes to a child’s IEP after the
annual IEP Team meeting has been held.
Changes: None.
Initial IEP Team Meeting for Child
Under Part C (§ 300.321(f))
Comment: Several commenters
recommended that the regulations
require the public agency to inform
parents of their right to request that the
public agency invite their child’s Part C
service coordinator to the initial IEP
Team meeting. One commenter
recommended that the regulations
require parents to be informed of this
option in writing.
Discussion: Section 300.321(f),
consistent with section 614(d)(1)(D) of
the Act, requires the public agency, at
the request of the parent, to send an
invitation to the Part C service
coordinator or other representatives of
the Part C system to attend the child’s
initial IEP Team meeting. We believe it
would be useful to add a cross-reference
to § 300.321(f) in § 300.322 to emphasize
this requirement.
Changes: We have added a cross-
reference to § 300.321(f) in § 300.322.
Parent Participation (§ 300.322)
Public Agency Responsibility—General
(§ 300.322(a))
Comment: A few commenters
recommended that the notice of the IEP
Team meeting include a statement that
the time and place of the meeting are
negotiable and must be mutually agreed
on by the parent and public agency.
Other commenters recommended that
the regulations emphasize the need for
flexibility in scheduling meetings so
that districts make every effort to secure
parent participation in meetings.
Many commenters requested that the
regulations specify how far in advance
a public agency must notify parents of
an IEP Team meeting. One commenter
recommended requiring that parents be
notified a minimum of five school days
before the date of the meeting.
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Discussion: We do not agree with the
changes recommended by the
commenters. Section 300.322(a) already
requires each public agency to take
steps to ensure that one or both parents
are present at each meeting, including
notifying parents of the meeting early
enough to ensure that they have an
opportunity to attend, and scheduling
the meeting at a mutually agreed on
time and place. We believe that these
requirements are sufficient to ensure
that parents are provided the
opportunity to participate in meetings.
We also believe that State and local
officials are in the best position to
determine how far in advance parents
must be notified of a meeting, as this
will vary based on a number of factors,
including, for example, the distance
parents typically have to travel to the
meeting location and the availability of
childcare.
Changes: None.
Information Provided to Parents
(§ 300.322(b))
Comment: Several comments were
received requesting that additional
information be provided to parents
when the public agency notifies parents
about an IEP Team meeting. One
commenter recommended informing
parents that they can request an IEP
Team meeting at any time. Other
commenters recommended that the
notice include any agency requests to
excuse an IEP Team member from
attending the meeting, and any written
input from an IEP Team member who is
excused from the meeting. Another
commenter recommended that parents
receive all evaluation reports before an
IEP Team meeting. A few commenters
recommended that parents receive a
draft IEP so that they have time to
examine the child’s present levels of
performance; prepare measurable goals;
and consider appropriate programs,
services, and placements.
Discussion: The purpose of the notice
requirement in § 300.322 is to inform
parents about the IEP Team meeting and
provide them with relevant information
(e.g., the purpose, time, and place of the
meeting, and who will be in
attendance). This is not the same as the
procedural safeguards notice that
informs parents of their rights under the
Act.
If, at the time the IEP Team meeting
notice is sent, a public agency is aware
of the need to request that an IEP Team
member be excused from the IEP Team
meeting, the public agency could
include this request with the meeting
notice. We do not believe that it is
appropriate to require that the request to
excuse an IEP Team member from an
IEP Team meeting be included in the
meeting notice, because the public
agency may not be aware of the need to
request an excusal of a member at the
time the IEP Team meeting notice is
sent. For similar reasons, it is not
appropriate to require that the IEP Team
meeting notice include any written
input from an IEP Team member who
may be excused from the IEP Team
meeting.
As noted in § 300.306(a)(2), the public
agency must provide a copy of an
evaluation report and the
documentation of determination of
eligibility at no cost to the parent.
Whether parents receive all evaluation
reports before an IEP Team meeting,
however, is a decision that is best left
to State and local officials to determine.
With respect to a draft IEP, we
encourage public agency staff to come to
an IEP Team meeting prepared to
discuss evaluation findings and
preliminary recommendations.
Likewise, parents have the right to bring
questions, concerns, and preliminary
recommendations to the IEP Team
meeting as part of a full discussion of
the child’s needs and the services to be
provided to meet those needs. We do
not encourage public agencies to
prepare a draft IEP prior to the IEP Team
meeting, particularly if doing so would
inhibit a full discussion of the child’s
needs. However, if a public agency
develops a draft IEP prior to the IEP
Team meeting, the agency should make
it clear to the parents at the outset of the
meeting that the services proposed by
the agency are preliminary
recommendations for review and
discussion with the parents. The public
agency also should provide the parents
with a copy of its draft proposals, if the
agency has developed them, prior to the
IEP Team meeting so as to give the
parents an opportunity to review the
recommendations of the public agency
prior to the IEP Team meeting, and be
better able to engage in a full discussion
of the proposals for the IEP. It is not
permissible for an agency to have the
final IEP completed before an IEP Team
meeting begins.
Changes: None.
Other Methods To Ensure Parent
Participation (§ 300.322(c))
Comment: One commenter
recommended that the regulations
permit parents to provide input through
a written report in order to document
that the parents provided input into
their child’s education.
Discussion: Parents are free to provide
input into their child’s IEP through a
written report if they so choose.
Therefore, we do not believe that a
change is needed.
Changes: None.
Conducting an IEP Team Meeting
Without a Parent in Attendance
(§ 300.322(d))
Comment: Many commenters
recommended that § 300.322(d) retain
paragraphs (d)(1) through (d)(3) in
current § 300.345, which provide
examples of the types of records a
public agency may keep to document its
attempts to arrange a mutually agreed
upon time and place for an IEP Team
meeting. These examples include
detailed records of telephone calls made
or attempted and the results of those
calls; copies of correspondence sent to
the parents and any responses received;
and detailed records of visits made to
the parent’s home or place of
employment and the results of those
visits. A few commenters stated that
removing these provisions violates
section 607(b) of the Act.
Discussion: We agree that these
provisions are important to encourage
parent participation in the IEP process,
which is an important safeguard for
ensuring FAPE under the Act. We will,
therefore, add the requirements in
current § 300.345(d)(1) through (d)(3) to
§ 300.322(d).
Changes: We have added the
requirements in current § 300.345(d)(1)
through (d)(3) to § 300.322(d).
Comment: One commenter stated that
parents who do not participate in IEP
Team meetings when the school has
made good-faith efforts to include them
should be sanctioned.
Discussion: There is nothing in the
Act that would permit sanctioning a
parent who does not participate in an
IEP Team meeting, nor do we believe
that it would be appropriate or helpful
to do so. Sanctioning a parent is
unlikely to engender the type of active
participation at IEP Team meetings that
would be desirable or helpful in
developing, reviewing, or revising a
child’s IEP.
Changes: None.
Comment: One commenter
recommended that the regulations make
explicit that the LEA can move forward
and hold an IEP Team meeting without
the parent, if notice has been provided
consistent with § 300.322(a)(1) and
(b)(1), and the parent does not
participate. The commenter
recommended that this requirement be
consistent with the parent participation
requirements for placement meetings in
§ 300.501(c)(3) and (c)(4).
Discussion: Section 300.322(d)
explicitly allows a meeting to be
conducted without a parent if the public
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agency is unable to convince the parent
to attend. The requirements for parent
participation in IEP Team meetings in
§ 300.322, and placement meetings in
§ 300.501 are consistent. Section
300.322(d) states that an IEP Team
meeting may be conducted without a
parent in attendance if the public
agency is unable to convince a parent to
attend the IEP Team meeting. Similarly,
§ 300.501(c)(4) provides that a group,
without the involvement of the parent,
may make a placement decision if the
public agency is unable to obtain the
parent’s participation in the decision. In
both cases, the public agency must keep
a record of its attempts to obtain the
parent’s involvement.
Changes: None.
Comment: One commenter expressed
concern that allowing school districts to
hold IEP Team meetings without
parents could increase the over-
representation of African American
children placed in special education.
Discussion: Section 300.322(a)
requires a public agency to take steps to
ensure that one or both parents are
afforded the opportunity to participate
in an IEP Team meeting, including
notifying parents of the meeting early
enough to ensure that they will have an
opportunity to attend, and scheduling
the meeting at a mutually agreed on
time and place. Section 300.322(c)
requires the public agency to use other
methods to ensure parent participation
if neither parent can attend an IEP Team
meeting, including individual or
conference telephone calls. Only when
a public agency is unable to convince a
parent to participate in an IEP Team
meeting may the meeting be conducted
without a parent. We disagree with the
implication in the comment that parents
of one race are less likely to participate
in IEP Team meetings.
Changes: None.
Comment: Many commenters
recommended retaining current
§ 300.345(e), which requires the public
agency to take whatever action is
necessary to ensure that the parent
understands the proceedings at an IEP
Team meeting, including arranging for
an interpreter for parents with deafness
or whose native language is other than
English. Some commenters stated that
current § 300.345(e) is protected by
section 607(b) of the Act and, therefore,
cannot be removed.
Many commenters acknowledged that
there are other Federal laws that require
public agencies to take appropriate
measures to ensure that parents
understand the proceedings at an IEP
Team meeting, but stated that not all
stakeholders are aware of the
applicability of those other protections
in IEP Team meetings. Several
commenters expressed concern with the
removal of current § 300.345(e) stating
that other Federal laws are not
enforceable at special education due
process hearings.
Discussion: We agree that current
§ 300.345(e) is an important safeguard of
parent participation for parents with
deafness or whose native language is
other than English. We will, therefore,
add the requirements in current
§ 300.345(e) to the regulations.
Changes: We have added the
requirements in current § 300.345(e) as
new § 300.322(e), and redesignated the
subsequent paragraph as § 300.322(f).
Parent Copy of Child’s IEP (New
§ 300.322(f)) (Proposed § 300.322(e))
Comment: One commenter
recommended that the regulations
clarify that the public agency must
provide the parent a copy of any
amended IEPs, in addition to the
original IEP.
Discussion: Section 300.324(a)(6),
consistent with section 614(d)(3)(F) of
the Act, requires the public agency to,
upon request of the parent, provide the
parent with a revised copy of the IEP
with the amendments incorporated. We
do not believe any further clarification
is necessary.
Changes: None.
When IEPs Must Be in Effect (§ 300.323)
Comment: Some commenters
recommended retaining current
§ 300.342(b)(1)(i) to ensure that an IEP is
in effect before special education
services are provided to a child.
Discussion: We do not believe it is
necessary to retain current
§ 300.342(b)(1)(i) because we believe
this requirement is implicit in
§ 300.323(a), which requires each public
agency to have an IEP in effect for each
child with a disability in the public
agency’s jurisdiction at the beginning of
each school year.
Changes: None.
IEP or IFSP for Children Aged Three
Through Five (§ 300.323(b))
Comment: One commenter
recommended revising the regulations
to clarify when an IEP must be in place
for a child transitioning from an early
intervention program under Part C of
the Act to a preschool special education
program under Part B of the Act whose
third birthday occurs after the start of
the school year.
Discussion: The commenter’s concern
is already addressed in the regulations.
Section 300.101(b), consistent with
section 612(a)(1)(A) of the Act, requires
an IEP to be in effect no later than the
child’s third birthday. However,
§ 300.323(b)(1), consistent with section
614(d)(2)(B) of the Act, provides that a
State, at its discretion, may provide
special education and related services to
two-year-old children with disabilities
who will turn three during the school
year. In such cases, the State must
ensure that an IEP is developed and in
effect at the start of the school year in
which the child turns three.
Changes: None.
Comment: One commenter stated that
an IFSP that was incorrectly developed
by the early intervention agency should
not be the school district’s
responsibility to correct.
Discussion: The development of an
IFSP for children from birth through age
two is the responsibility of the
designated lead agency responsible for
early intervention programs under
section 635(a)(10) in Part C of the Act.
When a child turns age three, section
612(a)(9) of the Act requires each State
to ensure that an IEP has been
developed and implemented. However,
if a child turns age three and an LEA
and a parent agree to use an IFSP in lieu
of an IEP, as allowed under section
614(d)(2)(B) of the Act, the LEA is
responsible for ensuring that the
requirements in § 300.323(b) are met.
Therefore, if an IFSP was incorrectly
developed by the early intervention
agency and the public agency and the
parent agree to use the IFSP in lieu of
an IEP, the LEA is responsible for
modifying the IFSP so that it meets the
requirements in § 300.323(b).
Section 300.323(b), consistent with
section 614(d)(2)(B) of the Act, allows
an IFSP to serve as an IEP for a child
with a disability aged three through five
(or at the discretion of the SEA, a two-
year old child with a disability, who
will turn age three during the school
year), under the following conditions:
(a) using the IFSP as the IEP is
consistent with State policy and agreed
to by the agency and the child’s parents;
(b) the child’s parents are provided with
a detailed explanation of the differences
between an IFSP and an IEP; (c) written
informed consent is obtained from the
parent if the parent chooses an IFSP; (d)
the IFSP contains the IFSP content,
including the natural environments
statement; (e) the IFSP includes an
educational component that promotes
school readiness and incorporates pre-
literacy, language, and numeracy skills
for children with IFSPs who are at least
three years of age; and (f) the IFSP is
developed in accordance with the IEP
procedures under Part B of the Act.
Changes: None.
Comment: One commenter
recommended that the regulations
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require the IEP Team to explain the
changes in services and settings in the
initial IEP Team meeting for a child
transitioning from an early intervention
program under Part C of the Act to a
preschool program under Part B of the
Act.
Discussion: We do not believe it is
necessary to change the regulations in
the manner recommended by the
commenter. Section 300.124, consistent
with section 612(a)(9) of the Act,
already requires States to have in effect
policies and procedures to ensure that
children transitioning from an early
intervention program under Part C of
the Act to a preschool program under
Part B of the Act experience a smooth
and effective transition to those
preschool programs. In addition, each
LEA is required to participate in
transition planning conferences with the
lead agency responsible for providing
early intervention services and to have
an IEP (or an IFSP, if consistent with
§ 300.323(b) and section 636(d) of the
Act) for the child developed and
implemented by the child’s third
birthday. We believe that in the course
of the transition planning conferences
and developing the child’s IEP, there
would be many opportunities for
discussions regarding the services
provided under Parts B and C of the Act.
Changes: None.
Comment: One commenter stated that
there is no statutory basis to require
detailed explanations of the differences
between an IEP and an IFSP or for
written informed parental consent when
an IFSP is used in lieu of an IEP.
Discussion: We believe it is important
to retain these requirements in
§ 300.323(b)(2) because of the
importance of the IEP as the statutory
vehicle for ensuring FAPE to a child
with a disability. Although the Act does
not specifically require a public agency
to provide detailed explanations to the
parent of the differences between an IEP
and an IFSP, we believe parents need
this information to make an informed
choice regarding whether to continue to
use an IFSP in lieu of an IEP. Parents,
for example, should understand that it
is through the IEP that the child is
entitled to the special education and
related services that the child’s IEP
Team determines are necessary to
enable the child to be involved in and
make progress in the general education
curriculum and to receive FAPE. If a
parent decides to use an IFSP in lieu of
an IEP, the parent must understand that
the child will not necessarily receive the
same services and supports that are
afforded under an IEP. For a parent to
waive the right to an IEP, informed
parental consent is necessary.
Changes: None.
Comment: Some commenters
recommended that the regulations
explicitly state that the IFSP does not
have to include all the elements of an
IEP when the IFSP is used in lieu of an
IEP.
Discussion: Section 300.323(b)(1)
provides that, in order for the IFSP to
be used as the IEP, the IFSP must
contain the IFSP content (including the
natural environments statement) in
section 636(d) of the Act and be
developed in accordance with the IEP
procedures under Part B of the Act. For
children who are at least three years of
age, the IFSP must also include an
educational component that promotes
school readiness and incorporates pre-
literacy, language, and numeracy skills.
There is no requirement for the IFSP to
include all the required elements in an
IEP. We think this point is clear in the
regulations and that no further
clarification is necessary.
Changes: None.
Comment: Some commenters
recommended changing
§ 300.323(b)(2)(i) to require parental
consent before a preschool-aged child
receives an IFSP in States that have a
policy under section 635(c) of the Act.
Some commenters recommended that
the regulations clarify whether States
have flexibility to continue early
intervention services until the end of
the school year in which a child turns
three.
Discussion: Section 300.323(b)
outlines the specific requirements that
apply when an IFSP is used in lieu of
an IEP for children aged three through
five, as a means of providing FAPE for
the child under Part B of the Act. This
is not the same as the policy in section
635(c) of the Act, which gives States the
flexibility to provide early intervention
services under Part C of the Act to three
year old children with disabilities until
they enter into, or are eligible under
State law to enter into, kindergarten.
Under § 300.323(b), when an IFSP is
used in lieu of an IEP, the child
continues to receive FAPE. This would
not be the case under section 635(c) of
the Act. Under section 635(c) of the Act,
parents of children with disabilities
who are eligible for preschool services
under section 619 of the Act and
previously received early intervention
services under Part C of the Act, may
choose to continue early intervention
services until the child enters, or is
eligible under State law to enter,
kindergarten. The option to continue
early intervention services is available
only in States where the lead agency
under Part C of the Act and the SEA
have developed and implemented a
State policy to provide this option. This
option will be detailed in the Part C
regulations, and not the Part B
regulations, as it permits a continuation
of eligibility and coverage under Part C
of the Act, rather than FAPE under Part
B of the Act.
Parental consent is required under
§ 300.323(b), when the IFSP is used in
lieu of an IEP, and under section 635(c)
of the Act, when a parent opts to
continue early intervention services.
Changes: None.
Initial IEPs; Provision of Services
(§ 300.323(c))
Comment: One commenter
recommended removing the
requirement for an IEP Team meeting to
be conducted within 30 days of
determining that the child needs special
education and related services. Another
commenter recommended extending the
time to 60 days. A few commenters
recommended that the regulations
require the meeting to be held no later
than 15 days after the eligibility
determination.
Discussion: The requirement to
conduct a meeting to develop a child’s
IEP within 30 days of the determination
that a child needs special education and
related services is longstanding, and has
been included in the regulations since
they were first issued in final form in
1977. Experience has shown that many
public agencies choose to conduct the
meeting to develop the child’s IEP well
before the 30-day timeline. Reducing the
timeline to 15-days, as some
commenters suggest, would be
impractical, because there are situations
when both public agencies and parents
need additional time to ensure that
appropriate individuals can be present
at the meeting. Experience has
demonstrated that the 30-day timeline
for conducting a meeting to develop an
IEP is a reasonable time to provide both
public agencies and parents the
opportunity to ensure that required
participants can be present at the IEP
Team meeting. Therefore, we decline to
alter this longstanding regulatory
provision.
Changes: None.
Accessibility of Child’s IEP to Teachers
and Others (§ 300.323(d))
Comment: Many commenters
recommended retaining current
§ 300.342(b)(3)(i) and (b)(3)(ii), which
require teachers and providers to be
informed of their specific
responsibilities for implementing an
IEP, and the specific accommodations,
modifications, and supports that must
be provided to the child in accordance
with the child’s IEP. Several
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commenters stated that a child’s IEP
should be readily accessible and all
those involved in a child’s education
should be required to read and
understand it.
Discussion: Section 300.323(d)
requires that the child’s IEP be
accessible to each regular education
teacher, special education teacher,
related services provider, and any other
service provider who is responsible for
its implementation. The purpose of this
requirement is to ensure that teachers
and providers understand their specific
responsibilities for implementing an
IEP, including any accommodations or
supports that may be needed. We agree
with the commenters’ recommendation
and believe retaining current
§ 300.342(b)(3)(i) and (b)(3)(ii) is
necessary to ensure proper
implementation of the child’s IEP and
the provision of FAPE to the child.
However, the mechanism that the public
agency uses to inform each teacher or
provider of his or her responsibilities is
best left to the discretion of the public
agency.
Changes: We have restructured
§ 300.323(d) and added a new paragraph
(d)(2) to include the requirements in
current § 300.342(b)(3)(i) and (b)(3)(ii).
IEPs for Children Who Transfer Public
Agencies in the Same State
(§ 300.323(e), IEPs for Children Who
Transfer From Another State
§ 300.323(f), and Transmittal of Records
§ 300.323(g)) (Proposed Program for
Children Who Transfer Public Agencies
(§ 300.323(e))
Comment: None.
Discussion: Several technical changes
are needed in proposed § 300.323(e) for
clarity and improved readability. We
believe that readability will be
improved by reorganizing this provision
into three separate paragraphs—
paragraph (e), which will address
transfers within the same State,
paragraph (f), which will address
transfers from another State, and
paragraph (g), which will address the
transmittal of records.
In addition, clarity will be improved
by changing certain terms to align with
terms that are more commonly used in
this part. For example, while the Act
uses the term ‘‘Program’’ in the title of
this requirement (referring to an
‘‘individualized education program’’),
we believe it would be clearer to use
‘‘IEP’’ throughout this provision. In
addition, as noted in the discussion of
§ 300.304(c)(5), we believe that it is
important to include language stating
that the requirements in § 300.323 are
applicable to children with disabilities
who have an IEP in effect in a previous
public agency and who transfer to a new
school within the same ‘‘school year,’’
rather than the same ‘‘academic year,’’
because ‘‘school year’’ is the term most
commonly understood by parents and
school officials. Further, it is important
that the regulations clearly and
consistently differentiate between the
responsibilities of the ‘‘new’’ public
agency and the ‘‘previous’’ public
agency.
Changes: We have restructured
proposed § 300.323(e) into three
separate paragraphs, and each paragraph
has been re-named to comport with the
three concepts in the statutory
requirement. Proposed § 300.323(e)(1)(i)
has been changed to new § 300.323(e),
‘‘IEPs for children who transfer public
agencies in the same State.’’ Proposed
§ 300.323(e)(1)(ii) has been changed to
new § 300.323(f), ‘‘IEPs for children who
transfer from another State.’’ Proposed
§ 300.323(e)(2) has been changed to new
§ 300.323(g), ‘‘Transmittal of records.’’
We have substituted ‘‘IEP’’ for
‘‘program’’ in new § 300.323(e)
(proposed § 300.323(e)(1)(i)), and have
made the following changes to new
§ 300.323(e) (proposed
§ 300.323(e)(1)(i)) and new § 300.323(f)
(proposed § 300.323(e)(1)(ii)): (1) added
language to clarify that the requirements
apply to a child with a disability who
has an IEP in effect in a previous public
agency and transfers to a new school
within the same school year; (2)
replaced the term ‘‘is consistent with
Federal and State law’’ with ‘‘meets the
applicable requirements in §§ 300.320
through 300.324;’’ and (3) clarified
when a requirement applies to the
‘‘new’’ public agency to which the child
transfers versus the ‘‘previous’’ public
agency.
Comment: Several commenters
requested that the regulations clarify the
meaning of ‘‘comparable services.’’
Discussion: We do not believe it is
necessary to define ‘‘comparable
services’’ in these regulations because
the Department interprets ‘‘comparable’’
to have the plain meaning of the word,
which is ‘‘similar’’ or ‘‘equivalent.’’
Therefore, when used with respect to a
child who transfers to a new public
agency from a previous public agency in
the same State (or from another State),
‘‘comparable’’ services means services
that are ‘‘similar’’ or ‘‘equivalent’’ to
those that were described in the child’s
IEP from the previous public agency, as
determined by the child’s newly-
designated IEP Team in the new public
agency.
Changes: None.
IEPs for Children Who Transfer From
Another State (New § 300.323(f))
(Proposed § 300.323(e)(1)(ii))
Comment: One commenter requested
clarification regarding the
responsibilities of LEAs who receive a
child transferring from out of State.
Discussion: When a child transfers
from another State, new § 300.323(f)
(proposed § 300.323(e)(1)(ii)), consistent
with section 614(d)(2)(C)(i)(II) of the
Act, requires the LEA, in consultation
with the parents, to provide the child
with FAPE, including services
comparable to those in the IEP from the
previous public agency, until such time
as the new public agency conducts an
evaluation (if determined to be
necessary) and adopts a new IEP.
Changes: None.
Comment: Several commenters
requested that the regulations clarify
what happens when a child transfers to
a State with eligibility criteria that are
different from the previous public
agency’s criteria.
Discussion: Under § 300.323(f)(1), if
the new public agency determines that
an evaluation of the child is necessary
to determine whether the child is a
child with a disability under the new
public agency’s criteria, the new public
agency must conduct the evaluation.
Until the evaluation is conducted,
§ 300.323(f) requires the new public
agency, in consultation with the parent,
to provide the child with FAPE,
including services comparable to those
described in the IEP from the previous
public agency. The specific manner in
which this is accomplished is best left
to State and local officials and the
parents to determine. We do not believe
that any further clarification is
necessary.
Changes: None.
Comment: One commenter requested
clarification about whether parental
consent must be obtained for the new
public agency to evaluate a child with
an IEP who transfers from another State.
Another commenter requested that the
regulations clarify that an evaluation of
a child who transfers from another State
is considered a reevaluation.
One commenter requested that the
regulations address circumstances in
which comparable services are
considered unreasonable in the State
receiving the child. Some commenters
stated that the stay-put provision should
be imposed by the new State if the
parent disagrees with the new public
agency about the comparability of
services.
Discussion: New § 300.323(f)
(proposed § 300.323(e)(1)(ii)), consistent
with section 614(d)(2)(C)(i)(II) of the
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Act, states that, in the case of a child
with a disability who enrolls in a new
school in another State, the public
agency, in consultation with the
parents, must provide FAPE to the
child, until such time as the public
agency conducts an evaluation pursuant
to §§ 300.304 through 300.306, if
determined necessary by the public
agency, and develops a new IEP, if
appropriate, that is consistent with
Federal and State law. The evaluation
conducted by the new public agency
would be to determine if the child is a
child with a disability and to determine
the educational needs of the child.
Therefore, the evaluation would not be
a reevaluation, but would be an initial
evaluation by the new public agency,
which would require parental consent.
If there is a dispute between the parent
and the public agency regarding what
constitutes comparable services, the
dispute could be resolved through the
mediation procedures in § 300.506 or, as
appropriate, the due process hearing
procedures in §§ 300.507 through
300.517. We believe these options
adequately address circumstances in
which comparable services are
considered unreasonable.
With regard to the comment that the
stay-put provisions should be imposed
by the new State if the parent disagrees
with the new public agency about the
comparability of services, stay-put
would not apply, because the evaluation
is considered an initial evaluation and
not a reevaluation.
Changes: None.
Comment: A few commenters
requested clarification regarding the
responsibilities of the new public
agency for a child with a disability who
moves during the summer.
Discussion: Section 614(d)(2)(a) is
clear that at the beginning of each
school year, each LEA, SEA, or other
State agency, as the case may be, must
have an IEP in effect for each child with
a disability in the agency’s jurisdiction.
Therefore, public agencies need to have
a means for determining whether
children who move into the State during
the summer are children with
disabilities and for ensuring that an IEP
is in effect at the beginning of the school
year.
Changes: None.
Comment: Some commenters
requested clarification regarding what a
new public agency should do when a
child’s IEP is developed (or revised) by
the child’s previous public agency at the
end of a school year (or during the
summer), for implementation during the
next school year, and the child moves
to the new public agency before the next
school year begins (e.g., during the
summer).
Discussion: This is a matter to be
decided by each individual new public
agency. However, if a child’s IEP from
the previous public agency was
developed (or reviewed and revised) at
or after the end of a school year for
implementation during the next school
year, the new public agency could
decide to adopt and implement that IEP,
unless the new public agency
determines that an evaluation is needed.
Otherwise, the newly designated IEP
Team for the child in the new public
agency could develop, adopt, and
implement a new IEP for the child that
meets the applicable requirements in
§§ 300.320 through 300.324.
Changes: None.
Transmittal of Records (New
§ 300.323(g)) (Proposed § 300.323(e)(2))
Comment: Several commenters
recommended that the regulations
require the previous public agency to
transmit a child’s records to the new
public agency within 15 business days
after receiving the request. Other
commenters recommended that the
regulations require a specific timeframe
for the school to obtain and review the
previous educational placement and
services of the transfer child.
Discussion: New § 300.323(g)
(proposed § 300.323(e)(2)) follows the
language in section 614(d)(2)(C)(ii) of
the Act, and requires the new public
agency to take reasonable steps to
promptly obtain the child’s records from
the previous public agency in which the
child was enrolled. New § 300.323(g)
(proposed § 300.323(e)(2)) also requires
the previous public agency to take
reasonable steps to promptly respond to
the request from the new public agency.
There is nothing in the Act that would
prevent a State from requiring its public
agencies to obtain a child’s records or
respond to requests for a child’s records
within a specific timeframe. This is an
issue appropriately left to States to
determine.
Changes: None.
Development of IEP
Development, Review, and Revision of
IEP (§ 300.324)
Comment: A few commenters
recommended requiring all IEP
members to sign the IEP.
Discussion: There is nothing in the
Act that requires IEP members to sign
the IEP and we believe it would be
overly burdensome to impose such a
requirement.
Changes: None.
Comment: A few commenters
requested that the regulations require
the IEP Team to consider the social and
cultural background of the child in the
development, review, or revision of the
child’s IEP.
Discussion: Under § 300.306(c)(1)(i), a
child’s social or cultural background is
one of many factors that a public agency
must consider in interpreting evaluation
data to determine if a child is a child
with a disability under § 300.8 and the
educational needs of the child. We do
not believe it is necessary to repeat this
requirement in § 300.324.
Changes: None.
Comment: A few commenters
recommended retaining current
§ 300.343(a), regarding the public
agency’s responsibility to initiate and
conduct meetings to develop, review,
and revise a child’s IEP.
Discussion: It is not necessary to
retain § 300.343(a) because the
requirements for the public agency to
initiate and conduct meetings to
develop, review, and revise a child’s IEP
are covered in § 300.112 and § 300.201.
Section 300.112, consistent with section
614(a)(4) of the Act, requires the State
to ensure that an IEP (or an IFSP that
meets the requirements of section 636(d)
of the Act) is developed, reviewed, and
revised for each child with a disability.
Section 300.201, consistent with section
613(a)(1) of the Act, requires LEAs to
have in effect policies, procedures, and
programs that are consistent with the
State policies and procedures
established under §§ 300.101 through
300.163, and §§ 300.165 through
300.174, which include the
requirements related to developing,
reviewing, and revising an IEP for each
child with a disability.
Changes: None.
Comment: A few commenters
recommended retaining current
§ 300.346(a)(1)(iii), regarding the IEP
Team’s consideration of the results of
the child’s performance on any general
State or districtwide assessment
programs in developing the child’s IEP.
The commenter stated that it is
important to retain this requirement
because such testing informs the IEP
Team of the child’s success in the
general education curriculum.
Discussion: The Department agrees
that State and districtwide assessments
provide important information
concerning the child’s academic
performance and success in the general
education curriculum. However, current
§ 300.346(a)(1)(iii) was removed,
consistent with section 614(d)(3)(A)(iv)
of the Act. Because the language from
current § 300.346(a)(1)(iii) was
specifically excluded from the Act, we
do not believe it is appropriate to retain
it in the regulations. We do not believe
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that an explicit regulation is needed,
however, because § 300.324(a)(1)(iv)
requires the IEP Team, in developing
each child’s IEP, to consider the
academic, developmental, and
functional needs of the child. A child’s
performance on State or districtwide
assessments logically would be
included in the IEP Team’s
consideration of the child’s academic
needs. In addition, as a part of an initial
evaluation or reevaluation, § 300.305(a)
requires the IEP Team to review existing
evaluation data, including data from
current classroom based, local, and
State assessments.
Changes: None.
Consideration of Special Factors
(§ 300.324(a)(2))
Comment: Many commenters
recommended changing
§ 300.324(a)(2)(i) to require that the
positive behavioral interventions and
supports for a child whose behavior
impedes the child’s learning or that of
others be based on a functional
behavioral assessment.
Discussion: Section 300.324(a)(2)(i)
follows the specific language in section
614(d)(3)(B)(i) of the Act and focuses on
interventions and strategies, not
assessments, to address the needs of a
child whose behavior impedes the
child’s learning or that of others.
Therefore, while conducting a
functional behavioral assessment
typically precedes developing positive
behavioral intervention strategies, we do
not believe it is appropriate to include
this language in § 300.324(a)(2)(i).
Changes: None.
Comment: A few commenters
recommended that § 300.324(a)(2)(i)
refer specifically to children with
internalizing and externalizing
behaviors.
Discussion: We do not believe it is
necessary to make the recommended
change because § 300.324(a)(2)(i) is
written broadly enough to include
children with internalizing and
externalizing behaviors.
Changes: None.
Comment: Many commenters
expressed concern that the
consideration of special factors in
§ 300.324(a)(2)(i) is not sufficient to
address the behavioral needs of children
with disabilities in the IEP process and
recommended strengthening the
regulations by encouraging school
districts to utilize research-based
positive behavioral supports and
systematic and individual research-
based interventions. One commenter
recommended training teachers
regarding the use of positive behavioral
interventions and supports.
Discussion: We do not believe that the
changes recommended by the
commenters need to be made to
§ 300.324(a)(2)(i). Whether a child needs
positive behavioral interventions and
supports is an individual determination
that is made by each child’s IEP Team.
Section 300.321(a)(2)(i) requires the IEP
Team, in the case of a child whose
behavior impedes the child’s learning or
that of others, to consider the use of
positive behavioral supports, and other
strategies to address that behavior. We
believe that this requirement
emphasizes and encourages school
personnel to use positive behavioral
interventions and supports.
In addition, the regulations reflect the
Department’s position that high-quality
professional development, including the
use of scientifically based instructional
practices, is important to ensure that
personnel have the skills and
knowledge necessary to improve the
academic achievement and functional
performance of children with
disabilities. Section 300.207, consistent
with section 613(a)(3) of the Act,
requires each LEA to ensure that all
personnel necessary to carry out Part B
of the Act are appropriately and
adequately prepared, subject to the
requirements in § 300.156 and section
2122 of the ESEA.
Section 300.156(a), consistent with
section 612(a)(14) of the Act, clearly
states that each State must establish and
maintain qualifications to ensure that
personnel are appropriately and
adequately prepared and trained, and
have the content knowledge and skills
to serve children with disabilities.
Further, section 2122(b)(1)(B) of the
ESEA requires an LEA’s application to
the State for title II funds (Preparing,
training, and recruiting high quality
teachers and principals) to address how
the LEA’s activities will be based on a
review of scientifically based research.
In addition, the implementation of
early intervening services in § 300.226
specifically focuses on professional
development for teachers and other
school staff to enable such personnel to
deliver scientifically based academic
and behavioral interventions, and
providing educational and behavioral
evaluations, services, and supports. We
expect that the professional
development activities and the services
authorized under § 300.226(b)(1) will be
derived from scientifically based
research.
Finally, because the definition of
scientifically based research is
important to the implementation of Part
B of the Act, a reference to section
9101(37) of the ESEA has been added in
new § 300.35, and the full definition of
the term has been included in the
discussion to the new § 300.35. Under
the definition, scientifically based
research must be accepted by a peer-
reviewed journal or approved by a panel
of independent experts through a
comparably rigorous, objective, and
scientific review. In short, we believe
that the Act and the regulations place a
strong emphasis on research based
supports and interventions, including
positive behavioral interventions and
supports.
Changes: None.
Comment: One commenter
recommended requiring positive
behavioral interventions and supports
for all children identified as having an
emotional disturbance.
Discussion: Section 300.324(a)(2)(i),
consistent with section 614(d)(3)(B)(i) of
the Act, requires the IEP Team to
consider the use of positive behavioral
interventions and supports, and other
strategies to address the behavior of a
child whose behavior impedes the
child’s learning or that of others. We do
not believe there should be a
requirement that the IEP Team consider
such interventions, supports, and
strategies for a particular group of
children, or for all children with a
particular disability, because such
decisions should be made on an
individual basis by the child’s IEP
Team.
Changes: None.
Comment: A few commenters
expressed concern that the regulations
regarding special factors for the IEP
Team to consider in developing IEPs
imply that particular methods,
strategies, and techniques should be
used.
Discussion: The requirements in
§ 300.324 are not intended to imply that
a particular method, strategy, or
technique should be used to develop a
child’s IEP. For example, while
§ 300.324(a)(2)(i) requires the IEP Team
to consider the use of positive
behavioral interventions and supports,
and other strategies, it does not specify
the particular interventions, supports, or
strategies that must be used.
Changes: None.
Comment: Some commenters
recommended that the special factors
for a child who is blind or visually
impaired include a requirement for a
clinical low vision evaluation to
determine whether the child has the
potential to utilize optical devices for
near and distance information before
providing instruction in Braille and the
use of Braille.
Discussion: Section 614(d)(3)(B)(iii) of
the Act requires instruction in Braille to
be provided unless the IEP Team
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determines that instruction in Braille or
in the use of Braille is not appropriate
for the child. However, the Act does not
require a clinical low vision evaluation,
and we do not believe it would be
appropriate to include such a
requirement in the regulations. Whether
a clinical low vision evaluation is
conducted is a decision that should be
made by the child’s IEP Team.
Changes: None.
Comment: Some commenters
recommended that the regulations
include language requiring that
instruction in Braille be considered at
all stages of IEP development, review,
and revision. These commenters also
stated that consideration should be
given to providing services and supports
to improve a child’s skills in the areas
of socialization, independent living,
orientation and mobility, and the use of
assistive technology devices.
Discussion: The issues raised by the
commenters are already covered in the
regulations. Section 300.324(a)(2)(iii),
consistent with section 614(d)(3)(B)(iii)
of the Act, requires the IEP Team, in the
case of a child who is blind or visually
impaired, to provide for instruction in
Braille and the use of Braille, unless the
IEP Team determines (after an
evaluation of the child’s reading and
writing skills, needs, and appropriate
reading and writing media) that
instruction in Braille or the use of
Braille is not appropriate. As noted
earlier, a new paragraph (b)(2) has been
added to § 300.324 to require the IEP
Team to consider the special factors in
§ 300.324(a)(2) when the IEP is reviewed
and revised. This includes considering
instruction in Braille and the use of
Braille for a child who is blind or
visually impaired.
In addition, § 300.324(a)(1)(iv)
requires the IEP Team to consider, for
all children with disabilities, the
academic, developmental, and
functional needs of the child, which
could include, as appropriate, the
child’s need to develop skills in the
areas of socialization, independent
living, and orientation and mobility.
Consideration of a child’s needs for
assistive technology devices and
services is required by
§ 300.324(a)(2)(v).
Changes: None.
Comment: Several commenters
recommended that the regulations
require IEP Teams, for a child who is
deaf, to consider the child’s
communication abilities, ensure that the
child can access language and
communicate with peers and adults,
and ensure that the child has an
educational placement that will meet
the child’s communication needs. The
commenters also recommended that the
IEP Team be required to consider the
qualifications of the staff delivering the
child’s educational program.
Discussion: The commenters’
concerns are already addressed in the
regulations. Section 300.324(a)(2)(iv),
consistent with section 614(d)(3)(B)(iv)
of the Act, requires the IEP Team to
consider the communication needs of
the child, and in the case of a child who
is deaf or hard of hearing, consider the
child’s language and communication
needs, opportunities for direct
communications with peers and
professional personnel in the child’s
language and communication mode,
academic level, and full range of needs,
including opportunities for direct
instruction in the child’s language and
communication mode.
With respect to the commenters’
recommendation regarding qualified
staff to deliver the child’s educational
program, § 300.156, consistent with
section 612(a)(14) of the Act, requires
the SEA to establish and maintain
qualifications to ensure that personnel
necessary to carry out the purposes of
the Act are appropriately and
adequately prepared and trained to
serve children with disabilities.
Changes: None.
Comment: Some commenters
suggested that § 300.324(a)(2)(iv)
explain that: (a) a primary language
assessment and assessment of
communication abilities may be
required to determine the child’s most
effective language; (b) program and
placement decisions must be based on
such assessments; (c) a child must be in
an educational placement where the
child may communicate with peers and
adults; and (d) a deaf child’s
educational placement must include a
sufficient number of peers and adults
who can communicate fluently in the
child’s primary language.
Discussion: It is not necessary to
include in the regulations the additional
language recommended by the
commenters. Section 300.324(a)(1)(iii),
consistent with section 614(d)(3)(A)(iii)
of the Act, requires the IEP Team to
consider, among other things, the results
of the initial or most recent evaluation
of the child, which for a child who is
deaf, may include an assessment of a
child’s communication abilities.
Further, § 300.324(a)(2)(iv), consistent
with section 614(d)(3)(B)(iv) of the Act,
requires the IEP Team to consider
opportunities for direct communications
with peers and professional personnel
in the child’s language and
communication mode, academic level,
and full range of needs, including
opportunities for direct instruction in
the child’s language and communication
mode. We believe this adequately
addresses the commenters’ concerns.
Changes: None.
Comment: One commenter requested
that emotional issues be considered an
additional special factor that can
impede learning. The commenter stated
that emotional issues can be addressed
through individual interventions
focused on the child’s needs and
systemic interventions to improve the
overall school climate.
Discussion: Section 614(d)(3)(B) of the
Act does not include emotional issues
as a special factor to be considered by
the IEP Team. We decline to add it to
the regulations because there are already
many opportunities for the IEP Team to
consider the affect of emotional issues
on a child’s learning. For example,
§ 300.324(a)(1), consistent with section
614(d)(3)(A) of the Act, requires the IEP
Team to consider the strengths of the
child; the concerns of the parents for
enhancing the education of their child;
the results of the initial evaluation or
most recent evaluation of the child; and
the academic, developmental, and
functional needs of the child, all of
which could be affected by emotional
issues and would, therefore, need to be
considered by the IEP Team.
Changes: None.
Comment: A few commenters
requested that children with medical
conditions that are degenerative be
added to the list of special factors
considered by the IEP Team. The
commenters stated that the IEP Team
should consider the need for children
with degenerative conditions to
maintain their present levels of
functioning by including related
therapeutic services prior to the loss of
their abilities, such as occupational and
physical therapy, and other services to
address the child’s needs in the areas of
self-help, mobility, and communication.
Discussion: Section 614(d)(3)(B) of the
Act does not include consideration of
children with degenerative conditions
as a special factor. We decline to add it
to the regulations because we believe
that the regulations already address the
commenters’ concerns. As with any
child with a disability, the child’s IEP
Team, which includes the parent,
determines the special education and
related services that are needed in order
for the child to receive FAPE. For
children with degenerative diseases,
this may include related services such
as physical and occupational therapy (or
other services to address the child’s
needs in the areas of self-help, mobility,
and communication) to help maintain
the child’s present levels of functioning
for as long as possible in order for the
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child to benefit from special education.
In addition, as part of an evaluation or
reevaluation, § 300.305 requires the IEP
Team and other qualified professionals,
as appropriate, to review existing
evaluation data on the child to
determine the child’s needs, which may
include evaluations and information
from parents, as well as medical
professionals who know the child and
the child’s specific medical condition.
S. Rpt. No. 108–185, p. 33, and H.
Rpt. No. 108–77, p. 112, recognized the
special situations of children with
medical conditions that are degenerative
(i.e., diseases that result in negative
progression and cannot be fully
corrected or fully stabilized). For
children with degenerative diseases
who are eligible for services under the
Act, both reports state that special
education and related services can be
provided to help maintain the child’s
present levels of functioning for as long
as possible in order for the child to fully
benefit from special education services.
The reports also state, ‘‘The IEP Team
can include related services designed to
provide therapeutic services prior to
loss of original abilities to extend
current skills and throughout the child’s
enrollment in school. These services
may include occupational and physical
therapy, self-help, mobility, and
communication, as appropriate.’’
Changes: None.
Comment: Some commenters stated
that the IEP Team’s review of the special
factors in § 300.324(a)(2) is duplicative
and should be eliminated.
Discussion: The requirements in
§ 300.324(a)(2) are directly from section
614(d)(3)(B) of the Act and cannot be
removed.
Changes: None.
Comment: Many commenters
recommended that the regulations retain
current § 300.346(b) and require the IEP
Team to consider the special factors in
§ 300.324(a)(2) when the IEP is reviewed
and revised. The commenters stated that
these special factors may affect a child’s
instructional needs and ability to obtain
FAPE beyond the period when an IEP is
initially developed.
Discussion: The Department agrees
that the IEP Team should consider the
special factors in § 300.324(a)(2) when
an IEP is reviewed and revised. We will,
therefore, add this requirement to the
regulations.
Changes: A new paragraph (b)(2) has
been added to § 300.324 to require the
IEP Team to consider the special factors
in § 300.324(a)(2) when the IEP is
reviewed and revised. Proposed
§ 300.324(b)(2) has been redesignated
accordingly.
Comment: One commenter requested
changing § 300.324(a)(2)(v), regarding
the IEP Team’s consideration of a
child’s need for assistive technology
devices and services, to require assistive
technology devices and services that are
needed for a child to be included in the
child’s IEP.
Discussion: Section 300.320(a)(4)
requires the IEP to include a statement
of the special education and related
services and supplementary aids and
services to be provided to the child, or
on behalf of the child. This would
include any assistive technology devices
and services determined by the IEP
Team to be needed by the child in order
for the child to receive FAPE. Therefore,
it is unnecessary to repeat this in
§ 300.324(a)(2)(v).
Changes: None.
Agreement (§ 300.324(a)(4))
Comment: Many commenters
expressed concern that permitting
changes to a child’s IEP without an IEP
Team meeting will be detrimental to the
child’s overall education. Several
commenters requested that
§ 300.324(a)(4) clarify whether such
changes to the IEP can only be made
between the annual IEP Team meetings
to review the IEP and not in place of an
annual IEP Team meeting. These
commenters also requested clarification
regarding the types of revisions that
could be made without an IEP Team
meeting. A few commenters
recommended limiting the
circumstances under which an IEP may
be revised without convening an IEP
Team meeting. One commenter
requested that the regulations include
safeguards to ensure that key elements
of a child’s IEP are not altered without
a discussion of the changes with the
parent.
Discussion: Section 300.324(a)(4),
consistent with section 614(d)(3)(D) of
the Act, allows a parent and a public
agency to agree not to convene an IEP
Team meeting to make changes to the
child’s IEP, and instead, to develop a
written document to amend or modify
the child’s current IEP. The Act does not
place any restrictions on the types of
changes that may be made, so long as
the parent and the public agency agree.
Accordingly, we do not believe it would
be appropriate to include restrictions on
such changes in the regulations.
We do not believe that an amendment
to an IEP can take the place of an annual
IEP Team meeting. It is unnecessary to
regulate on this issue because section
614(d)(4)(A)(i) of the Act clearly
requires the IEP Team to review the
child’s IEP annually to determine
whether the annual goals for the child
are being achieved. We believe that the
procedural safeguards in §§ 300.500
through 520 are sufficient to ensure that
a child’s IEP is not changed without
prior notice by a public agency and an
opportunity to discuss any changes with
the public agency.
Changes: None.
Comment: Several commenters asked
whether the agreement to make changes
to a child’s IEP without an IEP Team
meeting must be in writing. Many
commenters recommended requiring
informed written consent to amend an
IEP without an IEP Team meeting.
Discussion: Section 614(d)(3)(D) of the
Act does not require the agreement
between the parent and the public
agency to be in writing. In addition, the
parent is not required to provide
consent, as defined in § 300.9, to amend
the IEP without an IEP Team meeting.
However, it would be prudent for the
public agency to document the terms of
the agreement in writing, in the event
that questions arise at a later time. Of
course, changes to the child’s IEP would
have to be in writing.
Changes: None.
Comment: One commenter requested
that the regulations include safeguards
to ensure that key elements of a child’s
prior IEP program are not altered
without discussion of the change with
parents, and that parents are provided
with information that will allow them to
fully consider the alternatives.
Discussion: Section 300.324(a)(4),
consistent with section 614(d)(3)(D) of
the Act, permits the public agency and
the parent to agree to amend the child’s
IEP without an IEP Team meeting. If the
parent needs further information about
the proposed change or believes that a
discussion with the IEP Team is
necessary before deciding to change the
IEP, the parent does not have to agree
to the public agency’s request to amend
the IEP without an IEP Team meeting.
Changes: None.
Comment: A few commenters
recommended that when an IEP is
changed without an IEP Team meeting,
all personnel with responsibility for
implementing the revised IEP should be
informed of the changes with respect to
their particular responsibilities and
have access to the revised IEP. Some
commenters recommended that once the
parent has approved the IEP changes,
the IEP Team members should be
notified and trained on the amended IEP
within one calendar week of the
changes.
Discussion: We agree that when the
parent and the public agency agree to
change the IEP without an IEP Team
meeting, it is important that the
personnel responsible for implementing
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the revised IEP be notified and informed
of the changes with respect to their
particular responsibilities. We will add
language to address this in
§ 300.324(a)(4). We do not believe that
it is necessary to regulate on the
timeframe within which a public agency
must make the IEP accessible to the
service providers responsible for
implementing the changes, or otherwise
notify them of the changes, as this will
vary depending on the circumstances
(e.g., whether the changes are minor or
major changes) and is, therefore, best
left to State and local public agency
officials to determine.
Changes: We have restructured
§ 300.324(a)(4) and added a new
paragraph (a)(4)(ii) to require a public
agency to ensure that the child’s IEP
Team is informed of changes made to a
child’s IEP when changes to the IEP are
made without an IEP Team meeting.
Comment: One commenter asked
whether States must allow parents and
school districts to agree to change the
IEP without an IEP Team meeting.
Discussion: The provisions in section
614(d)(3)(D) of the Act are intended to
benefit parents by providing the
flexibility to amend an IEP without
convening an IEP Team meeting.
Therefore, a State must allow changes to
an IEP without an IEP Team meeting
when a parent and public agency agree
not to convene an IEP Team meeting,
and instead develop a written document
to amend or modify a child’s current
IEP, consistent with § 300.324(a)(4) and
section 614(d)(3)(D) of the Act.
Changes: None.
Amendments (§ 300.324(a)(6))
Comment: Many commenters
requested revising § 300.324(a)(6) to
require public agencies to provide a
copy of a revised IEP to the parent
without requiring the parent to request
the copy when amendments are made to
the IEP. The commenters stated that this
safeguard is needed to ensure that
negotiated amendments are actually
instituted. Some commenters
recommended that, at a minimum, the
parent should be provided with notice
that they have the right to receive a copy
of the revised IEP.
Discussion: The requirement for a
public agency to provide a parent with
a revised copy of the IEP upon the
request of a parent is in section
614(d)(3)(F) of the Act. There is nothing
in the Act that would prevent a school
from providing a copy of a revised IEP
to a parent whenever amendments are
made. However, under the Act, the
school is not required to provide the
parent a copy of the revised IEP absent
the parent’s request for a copy. It would
be inconsistent with the Act to include
such a requirement in the regulations.
Changes: None.
Comment: Some commenters
recommended that changes to the IEP
should not take effect until a notice has
been sent to the parent explaining the
changes and written consent from the
parent has been obtained. One
commenter recommended that the
regulations require a core group of the
IEP Team to meet and address any
changes to the IEP.
Discussion: To implement the
commenters’ recommendations would
be inconsistent with the Act. Section
614(d)(3)(F) of the Act cross-references
section 614(d)(3)(D) of the Act, which
provides that changes to the IEP may be
made either by the entire IEP Team,
which includes the parent, at an IEP
Team meeting, or amended without an
IEP Team meeting when the parent and
public agency agree. The phrase ‘‘at an
IEP Team meeting’’ following ‘‘by the
entire IEP Team’’ was inadvertently
omitted in § 300.324(a)(6). We will,
therefore, add the phrase to clarify that
changes to an IEP may be made by the
entire IEP Team at an IEP Team
meeting, or amended without an IEP
Team meeting when the parent and
public agency agree.
Changes: We have added the phrase
‘‘at an IEP Team meeting’’ following ‘‘by
the entire IEP Team.’’
Failure To Meet Transition Objectives
(§ 300.324(c))
Comment: One commenter
recommended that § 300.324(c)
emphasize collaboration between public
agencies providing education and
transportation in order to resolve
problems concerning a child’s
transportation IEP objectives related to
transition.
Discussion: Section 300.321(b)(3)
requires the IEP Team to invite a
representative of any agency that is
likely to be responsible for providing or
paying for transition services, when
appropriate, and with the consent of the
parent (or a child who has reached the
age of majority). In addition,
§ 300.154(a), consistent with section
612(a)(12) of the Act, requires each State
to ensure that an interagency agreement
or other mechanism for interagency
coordination is in effect between each
non-educational public agency and the
SEA, in order to ensure that services
needed to ensure FAPE are provided.
Section 300.154(b) and section
612(a)(12)(B)(i) of the Act specifically
refer to interagency agreements or other
mechanisms for interagency
coordination with agencies assigned
responsibility under State policy to
provide special education or related
services relating to transition. This
would include a public agency that is
responsible for transportation under
State policy. We believe this is
sufficient to address the commenter’s
concern.
Changes: None.
Comment: A few commenters
requested that § 300.324(c)(1) clarify
that public agencies are under a legal
obligation to provide services related to
the transition objectives in a child’s IEP.
Discussion: It is not necessary to
include additional language in
§ 300.324(c)(1). Section 300.101,
consistent with section 612(a)(1)(A) of
the Act, requires each SEA to ensure
that the special education and related
services that are necessary for the child
to receive FAPE are provided in
conformity with the child’s IEP. If an
agency, other than the public agency,
fails to provide the transition services
described in the IEP, the public agency
must reconvene the IEP Team to
develop alternative strategies to meet
the transition objectives for the child set
out in the child’s IEP, consistent with
section 614(d)(6) of the Act and
§ 300.324(c)(1).
Changes: None.
Children With Disabilities in Adult
Prisons (§ 300.324(d))
Comment: A few commenters stated
that guidance is needed regarding what
requirements apply when serving
incarcerated children with disabilities.
One commenter recommended requiring
that children with disabilities
incarcerated in local jails continue with
their established school schedules and
IEP services, which States may provide
directly or through an LEA.
Discussion: No change to the
regulations is needed. Section
300.324(d)(1), consistent with section
614(d)(7) of the Act, specifies the
requirements of the Act that do not
apply to children with disabilities who
are convicted as adults under State law
and incarcerated in adult prisons. If a
child with a disability is incarcerated,
but is not convicted as an adult under
State law and is not incarcerated in an
adult prison, the requirements of the
Act apply. Whether the special
education and related services are
provided directly by the State or
through an LEA is a decision that is best
left to States and LEAs to determine.
Changes: None.
Comment: One commenter stated that
SEAs and LEAs should not be allowed
to restrict the types of services provided
to children with disabilities simply
because they are incarcerated.
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Discussion: We disagree with the
commenter. The Act allows services to
be restricted for a child with a disability
who is convicted as an adult under State
law and incarcerated in an adult prison.
Section 614(d)(7)(B) of the Act states
that the IEP Team of a child with a
disability who is convicted as an adult
under State law and incarcerated in an
adult prison may modify the child’s IEP
or placement if the State has
demonstrated a bona fide security or
compelling penological interest that
cannot otherwise be accommodated.
Further, the LRE requirements in
§ 300.114 and the requirements related
to transition services in § 300.320 do not
apply.
Changes: None.
Private School Placements by Public
Agencies (§ 300.325)
Comment: One commenter stated that
§ 300.325, regarding private school
placements by public agencies, is not in
the Act and should be removed.
Discussion: We disagree with the
commenter. Section 612(a)(10)(B) of the
Act provides that children with
disabilities who are placed in private
schools and facilities are provided
special education and related services,
in accordance with an IEP, and have all
the rights the children would have if
served by a public agency. In order to
comply with this statutory requirement,
§ 300.325 explains the responsibilities
of the public agency that places a child
with a disability in a private school or
facility with respect to developing,
reviewing, and revising the child’s IEP.
Changes: None.
Comment: A few commenters
requested clarifying § 300.325(b)(1),
which allows the private school or
facility to initiate and conduct IEP Team
meetings to review and revise the
child’s IEP at the discretion of the
public agency. The commenters stated
that this should be changed to ‘‘only
with the consent of the public agency.’’
Discussion: We do not believe the
suggested change is necessary. Section
300.325(c) is clear that for publicly-
placed children with disabilities, even if
a private school or facility implements
a child’s IEP, responsibility for
compliance with Part B of the Act
remains with the public agency and the
SEA. Therefore, it is up to the public
agency to determine whether the private
school or facility can initiate and
conduct an IEP Team meeting to review
and revise a child’s IEP.
Changes: None.
Educational Placements (§ 300.327)
Comment: A few commenters stated
that the terms ‘‘educational placement’’
and ‘‘placement’’ are used throughout
the regulations and recommended that
only one of the terms be used to avoid
confusion. A few commenters suggested
that the term ‘‘educational placement’’
be defined to include location, supports,
and services provided.
Discussion: The terms ‘‘educational
placement’’ and ‘‘placement’’ are used
throughout the Act, and we have
followed the language of the Act
whenever possible. We do not believe it
is necessary to define ‘‘educational
placement.’’ Section 300.116, consistent
with section 612(a)(5) of the Act, states
that the determination of the
educational placement of a child with a
disability must be based on a child’s
IEP. The Department’s longstanding
position is that placement refers to the
provision of special education and
related services rather than a specific
place, such as a specific classroom or
specific school.
Changes: None.
Alternative Means of Meeting
Participation (§ 300.328)
Comment: One commenter requested
that electronic mail be used as an
alternative means of communication for
administrative matters if the parents and
the public agency agree.
Discussion: There is nothing in the
Act or these regulations that prohibits
the use of electronic mail to carry out
administrative matters under section
615 of the Act, so long as the parent of
the child with a disability and the
public agency agree.
Changes: None.
Comment: A few commenters
recommended that the regulations
clarify that video conferences may be
used to allow general education teachers
to participate in IEP Team meetings.
Discussion: The regulations already
address the use of video conferences.
Section 300.328, consistent with section
614(f) of the Act, allows the use of video
conferences and other alternative means
of meeting participation if the parent of
the child with a disability and the
public agency agree.
Changes: None.
Comment: One commenter
recommended that the regulations
specify that the cost of using alternative
means of meeting participation shall be
borne by the LEA and not the parent.
Discussion: If a public agency uses an
alternative means of meeting
participation that results in additional
costs, the public agency is responsible
for paying the additional costs. We do
not believe it is necessary to include
this additional language in the
regulations. Section 300.101, consistent
with section 612(a)(1)(A) of the Act,
requires that the public education
provided to children with disabilities
must be free and appropriate. The
benefits of including parents in the IEP
process by providing alternative means
by which parents can participate is an
important part of ensuring that a child
receives FAPE and far outweighs any
additional costs for the alternative
means of participation that a public
agency may incur.
Changes: None.
Comment: A few commenters
recommended requiring the parent’s
agreement to use alternative means of
meeting participation to conform to the
consent requirements in § 300.9.
Discussion: Section 614(f) of the Act
allows the parent and a public agency
to agree to use alternative means of
meeting participation. Consent, as
defined in § 300.9 is not required by the
Act. Therefore, we do not believe it
should be required by regulation.
Changes: None.
Comment: One commenter
recommended that there be additional
requirements when using alternative
means of meeting participation. The
commenter stated that parents should be
informed of their right to refuse a
telephone conference and should be
required to provide consent at least
seven days prior to the meeting.
Another commenter recommended
clarifying that alternative means of
meeting should only be used when
necessary.
Discussion: Section 614(f) of the Act
allows a parent and a public agency to
agree to use alternative means of
meeting participation. The Act does not
specify any additional requirements or
restrictions. We view this provision as
providing flexibility for parents and
public agencies in arranging convenient
meetings and believe that additional
requirements would be inconsistent
with that purpose.
Changes: None.
Comment: One commenter
recommended that the regulations
require LEAs to provide the parent with
an IEP in a timely manner (within five
business days) when alternative means
of meeting participation are used for an
IEP Team meeting. The commenter
stated this was necessary so that the
parent can verify the contents of the IEP.
Discussion: New 300.322(f) (proposed
§ 300.322(e)) requires the public agency
to give the parent a copy of the child’s
IEP at no cost to the parent. We believe
the specific timeframe in which the
public agency provides a copy of the IEP
to the parent is best left to the public
agency to determine.
Changes: None.
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Comment: One commenter stated that
the requirements for alternative means
of meeting participation in § 300.328
should be placed in the regulations
following § 300.321, because the
requirements add flexibility to the
special education process.
Discussion: The requirements in
§ 300.328, regarding alternative means
of meeting participation, apply to IEP
Team meetings as well as placement
meetings, and carrying out
administrative matters under section
615 of the Act. Therefore, it would not
be appropriate to move § 300.328 to the
location in the regulations suggested by
the commenter.
Changes: None.
Subpart E—Procedural Safeguards
Due Process Procedures for Parents and
Children
Opportunity To Examine Records;
Parent Participation in Meetings
(§ 300.501)
Comment: One commenter
recommended adding language in
§ 300.501(a) stating that parents have
the right to obtain a free copy of all
education records.
Discussion: Section 300.501(a),
consistent with section 615(b)(1) of the
Act, affords parents an opportunity to
inspect and review all education records
with respect to the identification,
evaluation, and educational placement
of the child, and the provision of FAPE
to the child. Specific procedures for
access to records are contained in the
confidentiality provisions in §§ 300.613
through 300.621. A participating
agency, consistent with § 300.613(b)(2),
however, must provide copies of a
child’s education records to a parent, if
failure to do so would effectively
prevent a parent from exercising the
right to inspect and review the records,
such as if a parent lives outside of
commuting distance of the agency. This
provision is consistent with the access
rights afforded under FERPA in 34 CFR
99.10(d)(1).
We decline to make the change
requested by the commenter because
such a change would impose a
significant new burden on public
agencies that is not necessary. Public
agencies, however, are free to provide
copies whenever requested by the
parent, if they choose to do so. We have,
however, made a change to this section
to correct the cross-references to the
procedures for inspection and review of
records.
Changes: We have corrected the cross-
references to the procedures for
inspection and review of records to
§§ 300.613 through 300.621.
Comment: One commenter
recommended adding a provision to
§ 300.501 that would give parents the
opportunity to prepare their own reports
and provide information that would
become part of the child’s education
record.
Discussion: The Act and these
regulations encourage parental input
and involvement in all aspects of a
child’s educational program, and
provide many opportunities for parents
to provide information that becomes
part of the child’s education record. For
example, § 300.304(a)(1), consistent
with section 614(b)(2)(A) of the Act,
requires any evaluation to include
information provided by the parent;
§ 300.305(a)(2), consistent with section
614(c)(1)(B) of the Act, requires the
review of existing data for evaluations
and reevaluations to include input from
the child’s parents; § 300.306(a)(1),
consistent with section 614(b)(4) of the
Act, requires the parent to be part of the
group that determines whether the child
is a child with a disability and the
educational needs of the child; and
§ 300.321(a)(1), consistent with section
614(d)(1)(B)(i) of the Act, requires the
IEP Team that is responsible for
developing, reviewing and revising the
child’s IEP to include the parent. In
addition, § 300.322(a) specifies the steps
a public agency must take to ensure that
one or both parents are present at the
IEP Team meeting and afforded the
opportunity to participate in the
meeting. Therefore, we do not believe
that it is necessary to regulate on this
issue. However, if a parent provides a
report for the child’s education record
and the public agency chooses to
maintain a copy of the written report,
that report becomes part of the child’s
education record and is subject to the
confidentiality of information
requirements in §§ 300.610 through
300.627, and FERPA and its
implementing regulations in 34 CFR
part 99.
Changes: None.
Comment: Many commenters
suggested adding language in
§ 300.501(b)(2) requiring the public
agency to take whatever action is
necessary to ensure that parents
understand the proceedings at any of
the meetings described in this section.
The commenters stated that this
requirement is not unnecessarily
duplicative and removing it gives the
impression that interpreters are no
longer required. Several commenters
recommended that if school staff
determines that a parent has difficulty
understanding the procedural
safeguards, the public agency must
explain the parent’s rights at any time
that a change in services is
contemplated.
Discussion: It is not necessary to add
language to § 300.501(b)(2) to require a
public agency to take whatever action is
necessary to ensure that parents
understand the proceedings at any of
the meetings described in this section.
Public agencies are required by other
Federal statutes to take appropriate
actions to ensure that parents who
themselves have disabilities and limited
English proficient parents understand
proceedings at any of the meetings
described in this section. The other
Federal statutory provisions that apply
in this regard are Section 504 of the
Rehabilitation Act of 1973 and its
implementing regulations in 34 CFR
part 104 (prohibiting discrimination on
the basis of disability by recipients of
Federal financial assistance), title II of
the Americans With Disabilities Act and
its implementing regulations in 28 CFR
part 35 (prohibiting discrimination on
the basis of disability by public entities,
regardless of receipt of Federal funds),
and title VI of the Civil Rights Act of
1964 and its implementing regulations
in 34 CFR part 100 (prohibiting
discrimination on the basis of race,
color, or national origin by recipients of
Federal financial assistance).
As noted in the Analysis of Comments
and Changes section to subpart D, we
have retained the requirements in
current § 300.345(e), which require the
public agency to take whatever action is
necessary to ensure that the parent
understands the proceedings at an IEP
Team meeting, including arranging for
an interpreter for parents with deafness
or whose native language is other than
English. This requirement is in new
§ 300.322(e). We have also included a
cross reference to new § 300.322(e) in
§ 300.501(c)(2) to clarify that.
It is not necessary to include
regulations to require a public agency to
explain the procedural safeguards to
parents any time that a change in
services is contemplated. Section
300.503 already requires prior written
notice to be given to the parents of a
child with a disability a reasonable time
before the public agency proposes (or
refuses) to initiate or change the
identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child. As
required in § 300.503(b)(4), the prior
written notice must include a statement
that the parents have protections under
the procedural safeguards of this part.
Consistent with §§ 300.503(c) and
300.504(d), the prior written notice and
the procedural safeguards notice,
respectively, must be written in
language understandable to the general
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public and provided in the native
language or other mode of
communication of the parent, unless it
is clearly not feasible to do so. If the
native language or other mode of
communication of the parent is not a
written language, the public agency
must take steps to ensure that the notice
is translated orally or by other means to
the parent in his or her native language
or other mode of communication and
that the parent understands the content
of the notice.
Changes: None.
Comment: Several commenters stated
that § 300.501(b)(3) implies that
teaching methodologies and lesson
plans must be included in the IEP,
which exceeds the requirements of the
Act. The commenters recommended
removing ‘‘if those issues are not
addressed in the child’s IEP’’ from
§ 300.501(b)(3).
Discussion: We agree that the phrase
referred to by the commenters is
confusing and open to misinterpretation
and are removing it from
§ 300.501(b)(3).
Changes: We have removed the
phrase ‘‘if those issues are not addressed
in the child’s IEP’’ from § 300.501(b)(3)
for clarity.
Comment: Many commenters
recommended requiring a public agency
to make several attempts to involve
parents in placement decisions and
requested that § 300.501 be changed to
require a public agency to maintain: (1)
Detailed records of telephone calls made
or attempted and the results of those
calls; (2) copies of correspondence sent
to parents and any responses received;
and (3) detailed records of visits made
to a parent’s home or place of
employment and the results of those
visits.
Discussion: We do not believe the
additional language requested by the
commenters is necessary. Section
300.501(c)(4) requires a public agency to
maintain a record of its attempts to
contact parents prior to making a
placement decision without parent
participation. We believe this
requirement is sufficient to ensure that
a public agency holding a placement
meeting with neither parent in
attendance takes the necessary steps to
contact parents and maintain
appropriate documentation of its
attempts to ensure parent participation.
As a matter of practice, public agencies
use a variety of methods to contact
parents depending on the ways they
find to be most efficient and effective for
a particular situation. Public agencies
take seriously their obligation to include
parents in placement decisions and are
in the best position to determine the
records they need to demonstrate that
they have taken appropriate steps to
include parents in placement decisions
before holding a placement meeting
without a parent in attendance.
Changes: None.
Comment: A few commenters
recommended that placement meetings
not be held, or decisions made, without
a representative of the child. The
commenters recommended appointing a
surrogate parent when the biological or
adoptive parent refuses to attend, or is
unable to participate, in the placement
meeting.
Discussion: There is no statutory
authority to permit the appointment of
a surrogate parent when a parent is
either unable or unwilling to attend a
meeting in which a decision is made
relating to a child’s educational
placement. In section 615(b)(2) of the
Act, a public agency does not have the
authority to appoint a surrogate parent
where a child’s parent is available or
can be identified and located after
reasonable efforts, but refuses, or is
unable, to attend a meeting or otherwise
represent the child.
Changes: None.
Independent Educational Evaluation
(§ 300.502)
Comment: One commenter suggested
adding language to § 300.502 requiring
evaluators who conduct independent
educational evaluations (IEEs) to be
licensed by the State.
Discussion: We are not changing the
regulations in the manner requested by
the commenter because the regulations
already require that the standards be the
same for all evaluators, as long as the
agency’s criteria for evaluators do not
prohibit a parent from obtaining an IEE.
An IEE is defined in § 300.502(a)(3)(i) as
an evaluation conducted by a qualified
examiner who is not employed by the
public agency responsible for the
education of the child in question.
Section 300.502(e) provides that in
order for an IEE to be at public expense,
the criteria under which the evaluation
is obtained, including the location of the
evaluation and the qualifications of the
examiner, must be the same as the
criteria that the public agency uses
when it initiates an evaluation, to the
extent those criteria are consistent with
the parent’s right to an IEE. Except for
these criteria, § 300.502(e)(2) provides
that a public agency may not impose
conditions or timelines related to
obtaining an IEE at public expense.
Consistent with applicable agency
criteria, it would be appropriate for a
public agency to require an IEE
examiner to hold, or be eligible to hold,
a particular license when a public
agency requires the same licensure for
personnel who conduct the same types
of evaluations for the agency. In
contrast, it would be inconsistent with
a parent’s right to an IEE for a public
agency to require all evaluators to be
licensed, if only individuals employed
by a public agency may obtain a license.
Changes: None.
Comment: One commenter requested
clarification regarding parental rights to
an IEE when a public agency is using a
response to intervention process to
determine whether a child has SLD.
Discussion: If a parent disagrees with
the results of a completed evaluation
that includes a review of the results of
a child’s response to intervention
process, the parent has a right to an IEE
at public expense, subject to the
conditions in § 300.502(b)(2) through
(b)(4). The parent, however, would not
have the right to obtain an IEE at public
expense before the public agency
completes its evaluation simply because
the parent disagrees with the public
agency’s decision to use data from a
child’s response to intervention as part
of its evaluation to determine if the
child is a child with a disability and the
educational needs of the child.
Changes: None.
Comment: One commenter requested
clarification regarding a public agency’s
right to limit the amount it pays for an
IEE and asked whether a public agency
can place limits on the frequency of an
IEE (e.g., a single IEE in an evaluation
cycle or in a child’s school career).
Discussion: It is the Department’s
longstanding position that public
agencies should not be required to bear
the cost of unreasonably expensive IEEs.
This position is reflected in the
regulatory provisions. Section
300.502(a)(2) provides that if a parent
requests an IEE at public expense, the
public agency must provide the parent
with information about where an IEE
may be obtained and the agency criteria
applicable for IEEs. In order for an
evaluation to be at public expense,
§ 300.502(e)(1) requires that the criteria
under which an IEE is obtained,
including the location of the IEE and the
qualifications of the examiner, be the
same as the criteria that the public
agency uses when it initiates an
evaluation, to the extent that those
criteria are consistent with a parent’s
right to an IEE. In addition,
§ 300.502(e)(2) states that, except for the
criteria described above, a public agency
may not impose conditions or timelines
related to obtaining an IEE at public
expense.
Although it is appropriate for a public
agency to establish reasonable cost
containment criteria applicable to
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personnel used by the agency, as well as
to personnel used by parents, a public
agency would need to provide a parent
the opportunity to demonstrate that
unique circumstances justify selection
of an evaluator whose fees fall outside
the agency’s cost containment criteria.
Section 300.502(b)(2) provides that if
the parent requests an IEE at public
expense, the public agency either must
ensure that the IEE is provided at public
expense or file a due process complaint
notice to request a hearing to
demonstrate that the agency’s
evaluation is appropriate.
We do not, however, believe that the
parent should be limited to one IEE at
public expense in a child’s school
career. In the school career of a child,
there could be more than one point
when there is a legitimate disagreement
between a parent and the public agency
over evaluations of the child.
Nevertheless, we do believe that it is
important to clarify that a parent is not
entitled to more than one IEE at public
expense when the parent disagrees with
a specific evaluation or reevaluation
conducted or obtained by the public
agency. Therefore, we are adding a new
paragraph (b)(5) in § 300.502 to clarify
that a parent is entitled to only one IEE
each time the public agency conducts an
evaluation with which the parent
disagrees. This regulatory provision is
consistent with a parent’s statutory right
to an IEE at public expense, while
recognizing that public agencies should
not be required to bear the cost of more
than one IEE when a parent disagrees
with an evaluation conducted or
obtained by the public agency.
Changes: We have added a new
paragraph (b)(5) in § 300.502 to clarify
that a parent is entitled to only one IEE
at public expense each time the public
agency conducts an evaluation with
which the parent disagrees.
Comment: Some commenters
suggested adding language allowing an
evaluator conducting an IEE the
opportunity to review existing data,
receive input from the child’s parents,
determine what additional data are
needed to determine the scope of the
evaluation, and select the instruments
appropriate to evaluate the child. The
commenters also stated that the public
agency should not restrict the scope of
the evaluation.
Discussion: We do not believe it is
necessary to add language to the
regulations regarding the review of
existing data, input from the child’s
parents, the scope of the evaluation, or
the instruments used to evaluate the
child, because an IEE must meet the
agency criteria that the public agency
uses when it initiates an evaluation,
consistent with § 300.502(e).
Section 300.305(a) provides that, as
part of an initial evaluation (if
appropriate) and as part of any
reevaluation under this part, the IEP
Team and other qualified professionals,
as appropriate, must review existing
evaluation data on the child, including
input from the child’s parents. Since the
review of existing evaluation data and
input from the child’s parents are part
of the public agency’s evaluation, they
would also be appropriate elements in
an IEE.
Similarly, § 300.304(b)(1) provides
that an evaluation conducted by a
public agency must use a variety of
assessment tools and strategies to gather
relevant functional, developmental, and
academic information about the child,
including information provided by the
parent, that may assist in determining
whether the child is a child with a
disability under § 300.8, and the content
of the child’s IEP, including information
related to enabling the child to be
involved in and progress in the general
education curriculum (or for a preschool
child to participate in appropriate
activities). These requirements also
apply to an IEE conducted by an
independent evaluator, since these
requirements will be a part of the
agency’s criteria.
Generally, the purpose of an
evaluation under the Act is to determine
whether the child is a child with a
disability, and in the case of a
reevaluation, whether the child
continues to have a disability, and the
educational needs of the child. It would
be inconsistent with the Act for a public
agency to limit the scope of an IEE in
a way that would prevent an
independent evaluator from fulfilling
these purposes.
Changes: None.
Comment: Some commenters
recommended adding language to the
regulations requiring a parent to provide
consent for release of education records
when a hearing officer orders an LEA to
provide an IEE at public expense.
Discussion: Consistent with
§ 300.622(b), parental consent is not
required for a public agency to release
education records to a hearing officer
because a hearing officer is an official of
a participating agency, as defined in
§ 300.611(c). However, when a hearing
officer orders an IEE, parental consent
would be required under § 300.622(a)
for a public agency to release education
records to the independent evaluator
who will conduct the IEE, since in these
situations, the independent evaluator is
not an official of a participating agency.
If a parent refuses to consent to the
release of education records to an
independent evaluator, a hearing officer
could decide to dismiss the complaint.
Therefore, we are not changing the
regulations in the manner suggested by
the commenter.
Changes: None.
Comment: A few commenters
requested clarification regarding what
an LEA must do to satisfy the
requirement in § 300.502(c)(1) that a
public agency consider the results of an
evaluation obtained by a parent at
private expense. The commenters stated
that public agencies often ignore the
results of an IEE and recommended
requiring public agencies to explain
why an IEE was rejected.
Discussion: Section 300.502(c)(1)
imposes an affirmative obligation on a
public agency to consider the results of
a parent-initiated evaluation at private
expense in any decision regarding the
provision of FAPE to the child, if that
evaluation meets agency criteria. The
requirement, however, does not mean
that the public agency is compelled to
consider the parent-initiated evaluation
at private expense in its decision
regarding the provision of FAPE, if it
does not meet agency criteria. If the
agency believes that the parent-initiated
evaluation does not meet agency
criteria, it would be appropriate for the
agency to explain to the parent why it
believes that the parent-initiated
evaluation does not meet agency
criteria.
Changes: None.
Comment: Several commenters
indicated that permitting any party to
use the results from a privately-funded
IEE as evidence at a due process hearing
may discourage parents from initiating
and paying for evaluations of their
child.
Discussion: If a parent obtains an
evaluation at private expense, there is
nothing in the Act or these regulations
that requires a parent to share that
evaluation with the public agency. A
privately-funded evaluation that is not
shared with a public agency would not
be considered an IEE under this
regulation. If, however, the parent
chooses to share the evaluation with the
public agency, that evaluation may be
presented by any party as evidence in a
due process hearing, in accordance with
§ 300.502(c)(2). Similarly, if a public
agency reimburses a parent for an IEE,
and the parent disagrees with the results
of the IEE, there is nothing in the Act
or these regulations that would prevent
a public agency from introducing that
evaluation in a due process hearing over
the parent’s objection. We disagree with
the commenters to the extent that they
believe that parents should have an
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expectation of privacy regarding an
evaluation that is publicly-funded or for
which they seek public funding. We
believe it is necessary to change
§ 300.502(c)(2) to ensure that public
agencies have the opportunity to
introduce the results of publicly-funded
IEEs at due process hearings.
Changes: We have added language in
§ 300.502(c) to permit any party to
present the results of a publicly-funded
IEE. We have also clarified that if a
parent shares a privately-funded IEE
with the public agency, the privately-
funded IEE may be used as evidence in
a due process hearing.
Comment: One commenter
recommended that the regulations
prohibit the testimony of experts who
did not evaluate the child before the due
process hearing, unless the other party
has an equal opportunity to evaluate the
child at public expense, both parties
consent to such testimony, or the
hearing officer or judge orders the
evaluation.
Discussion: It would be inappropriate
to regulate in the manner recommended
by the commenter. Such determinations
are made on a case-by-case basis in light
of the specific facts of each case at the
discretion of the hearing officer. We
believe that the hearing officer, as the
designated trier of fact under the Act, is
in the best position to determine
whether expert testimony should be
admitted and what weight, if any,
should be accorded that expert
testimony. We would expect that these
decisions will be governed by
commonly applied State evidentiary
standards, such as whether the
testimony is relevant, reliable, and
based on sufficient facts and data.
Changes: None.
Prior Notice by the Public Agency;
Content of Notice (§ 300.503)
Comment: One commenter stated that
the prior written notice be given to
parents as soon as possible, but no later
than 15 days before the public agency
proposes to initiate or refuse a change.
Another commenter recommended
requiring IEP Teams to carefully
consider all the data and options before
making a decision to change a child’s
placement or refuse the parent’s request
for services.
Discussion: Section 300.503(a)
incorporates section 615(b)(3) of the Act
and requires a public agency to provide
parents with written notice that meets
the requirements in § 300.503(b) a
reasonable time before the public
agency proposes or refuses to initiate or
change the identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child. We
do not believe that it is necessary to
substitute a specific timeline to clarify
what is meant by the requirement that
the notice be provided within a
reasonable period of time, because we
are not aware of significant problems in
the timing of prior written notices. In
addition, prior written notice is
provided in a wide variety of
circumstances for which any one
timeline would be too rigid and, in
many cases, might prove unworkable.
We do not believe that it is necessary
to add a requirement that IEP Teams
carefully consider all the data and
options before making a decision to
change a child’s placement or refuse the
parent’s request for services. Section
300.306(c) already requires the group of
professionals and the parent of the child
to carefully consider information from a
variety of sources before determining a
child’s eligibility and placement.
Furthermore, the requirements for
developing, reviewing, and revising a
child’s IEP in § 300.324, ensure that IEP
Teams carefully consider all available
information in developing an IEP,
including information from the child’s
parents.
Changes: None.
Comment: One commenter suggested
permitting the prior written notice to be
the IEP itself, rather than requiring a
separate document.
Discussion: There is nothing in the
Act or these regulations that would
prohibit a public agency from using the
IEP as part of the prior written notice so
long as the document(s) the parent
receives meet all the requirements in
§ 300.503.
Changes: None.
Comment: One commenter asked how
a parent would know that the public
agency is refusing to initiate or change
the identification, evaluation, or
placement of a child without an IEP
Team meeting. Another commenter
stated that prior written notice should
be provided in advance of an IEP Team
meeting, not at the IEP Team meeting,
so that parents could prepare for the
meeting. The commenter suggested
adding language to the regulations
requiring that the notice be given a
reasonable time before an IEP Team
meeting.
Discussion: The commenter confuses
the Act’s prior written notice
requirements with the requirements
governing IEP Team meetings. Section
300.503(a), consistent with section
615(b)(3) of the Act, requires prior
written notice whenever a public agency
proposes to initiate or change (or refuses
to initiate or change) the identification,
evaluation, or educational placement of
a child, or the provision of FAPE to a
child. A public agency meets the
requirements in § 300.503 so long as the
prior written notice is provided a
reasonable time before the public
agency implements the proposal (or
refusal) described in the notice. A
public agency is not required to convene
an IEP Team meeting before it proposes
a change in the identification,
evaluation, or educational placement of
the child, or the provision of FAPE to
the child. The proposal, however,
triggers the obligation to convene an IEP
Team meeting. Providing prior written
notice in advance of meetings could
suggest, in some circumstances, that the
public agency’s proposal was
improperly arrived at before the meeting
and without parent input. Therefore, we
are not changing § 300.503 to require the
prior written notice to be provided prior
to an IEP Team meeting.
Changes: None.
Comment: A few commenters
recommended retaining current
§ 300.503(a)(2), which provides that if
the prior written notice relates to an
action that also requires parental
consent, the agency may give notice at
the same time it requests parental
consent.
Discussion: It is not necessary to
explain in the regulations that prior
written notice can be provided at the
same time as parental consent is
requested, because parental consent
cannot be obtained without the requisite
prior written notice. The removal of this
regulatory provision, however, is not
intended to prohibit a public agency
from giving prior written notice at the
same time that parental consent is
sought, should the agency choose to do
so.
Changes: None.
Comment: One commenter asked that
the public agency be required to provide
a description of all the proposals made
by anyone on the IEP Team and the
reasons why one proposal was chosen
over another.
Discussion: Section 300.503(b)(1) and
(b)(2) require the prior written notice to
include a description of the action
proposed or refused by the agency and
an explanation of why the agency
proposes or refuses to take the action.
We do not believe that the change
suggested by the commenter is needed
because § 300.503(b)(6) and (b)(7)
already require that the prior written
notice include a description of the other
options that the IEP Team considered,
the reasons why those options were
rejected, and a description of other
factors that are relevant to the agency’s
proposal or refusal.
Changes: None.
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Comment: One commenter suggested
requiring the SEA to provide a list of
resources for parents to obtain
assistance in understanding the
requirements of the Act, including
providing easy access to the information
on the State’s Web site.
Discussion: Section 300.503(b)(5),
consistent with section 615(c)(1)(D) of
the Act, already requires the prior
written notice to include sources for
parents to contact to obtain assistance in
understanding the provisions of this
part. The Department believes that
parents should have easy access to
information regarding resources to
understand the provisions of the Act.
For many parents, this may include
accessing such information on the
State’s Web site. Each State is in the best
position to determine whether including
this information on its Web site would
be helpful for parents. Therefore, we
decline to add this requirement to the
regulations.
Changes: None.
Comment: One commenter
recommended removing § 300.503(c)(2),
regarding the public agency’s
responsibilities when the parent’s native
language or other mode of
communication is not a written
language. The commenter
recommended, instead, requiring a
public agency to use procedures that
involve little or no cost. One commenter
stated that § 300.503(c)(2) should be
removed because all but paragraph
(c)(2)(ii), regarding ensuring that the
parent understands the content of the
prior written notice, exceed statutory
requirements.
Discussion: For parents whose mode
of communication is not a written
language, § 300.503(c)(2) requires the
public agency to ensure that the notice
is translated orally or by other means to
the parent and that the parent
understands the content of the notice.
We decline to remove § 300.503(c)
because we believe that these rights, as
well as the other rights enumerated in
§ 300.503(c), are essential to ensure that
public agencies provide all parents the
requisite prior written notice in a
meaningful and understandable manner.
Changes: None.
Procedural Safeguards Notice
(§ 300.504)
Comment: Many comments were
received regarding when the procedural
safeguards notice must be provided to
parents. One commenter stated that
these requirements add paperwork and
procedural burdens. Several
commenters expressed concern that
parents will have knowledge of their
procedural safeguards only when they
file a State complaint or request a due
process hearing. Some commenters
recommended deleting the requirement
in § 300.504(a)(2) for the public agency
to give parents the procedural
safeguards notice upon receipt of the
first State complaint or due process
hearing in the school year. Other
commenters suggested amending
§ 300.504(a)(2) to require that the
procedural safeguards notice be
provided to parents upon receipt of the
first due process complaint in that
school year. Some commenters asked
whether parents would receive a copy of
the procedural safeguards notice only
upon the first filing of a State complaint
or a due process complaint, but not
twice, if a parent submits a complaint
and also a request for a due process
hearing in the same school year.
One commenter was concerned that
the parents of a child with a disability
who transfers into a new school will not
be notified of their procedural rights in
a timely manner.
Discussion: Section 300.504(a) reflects
the new statutory language in section
615(d)(1) of the Act, regarding the
timing of the procedural safeguards
notice. Section 300.504(a)(1) and (4),
consistent with section 615(d)(1)(A) of
the Act, states that a copy of the
procedural safeguards must be given to
parents one time a year, except that a
copy must also be given to parents upon
initial referral or parent request for
evaluation; upon receipt of the first
State complaint and due process
complaint in that school year; and upon
request by a parent. There is no longer
a requirement that the procedural
safeguards notice be given to parents
upon notification of each IEP Team
meeting, as in current § 300.504(a).
We disagree that § 300.504(a)(2)
should be removed. The Department
intends for parents to receive a copy of
the procedural safeguards notice upon
receipt of the first State complaint under
§§ 300.151 through 300.153 and upon
receipt of the first due process
complaint under § 300.507 in a school
year because we believe that parents
particularly need a clear understanding
of their rights when they embark on
these processes and might not have
available copies of the procedural
safeguards notice provided earlier in the
year, or the notice they previously
received may be outdated. We are
changing § 300.504(a)(2) to make this
clear. We also are changing § 300.504(a)
to specify that the statutory phrase ‘‘one
time a year’’ refers to ‘‘one time a school
year.’’
Regarding the concern that a parent
whose child transfers to a new school
district might not receive appropriate
notice of the Act’s procedural
safeguards, we do not believe that
additional clarification is necessary. We
believe that these regulatory provisions
are sufficient to ensure that the parent
of a child who changes school districts
receives the requisite notice in a timely
manner. When the child with a
disability transfers to a new school
district, that school district would have
an obligation to ensure that the child’s
parents are provided notice at least once
in that school year and at the other
times specified in § 300.504(a).
We believe that the requirements in
§ 300.504(a) are necessary to ensure that
parents have information about the due
process procedures when they are most
likely to need them and do not view
these requirements as unduly
burdensome.
Changes: Section 300.504(a)(2) has
been changed to require public agencies
to provide parents with a copy of the
procedural safeguards notice upon
receipt of the first State complaint under
§§ 300.151 through 300.153 in a school
year and upon receipt of the first due
process complaint under § 300.507 in a
school year. We have also changed
paragraph (a) in § 300.504 to clarify that
the statutory phrase ‘‘one time a year’’
refers to a ‘‘school’’ year.
Comment: Several commenters
recommended that the procedural
safeguards notice be given to parents
when a decision has been made to take
disciplinary action. Another commenter
recommended that the procedural
safeguards notice be given at the time a
manifestation determination is
reviewed.
Discussion: Section 615(k)(1)(H) of the
Act requires public agencies to provide
parents with a copy of the procedural
safeguards notice not later than the date
on which the decision to take
disciplinary action is made. Therefore,
we are adding this requirement in
§ 300.504(a). We will not add a
requirement for public agencies to
provide parents with a copy of the
procedural safeguards notice following
the manifestation determination
conducted under § 300.530(e), because
it would be unnecessarily duplicative to
require a procedural safeguards notice
to be provided both prior to and after a
decision to take disciplinary action has
been made.
Changes: A new paragraph (3) has
been added in § 300.504(a) to require
the procedural safeguards notice to be
provided to parents in accordance with
the discipline procedures in
§ 300.530(h). The subsequent paragraph
has been renumbered, consistent with
this change.
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Comment: Some commenters
requested that public agencies inform
parents when the procedural safeguards
notice has been revised, so that parents
can request the updated version.
Discussion: Section 300.504(c),
consistent with section 615(d) of the
Act, lists the required contents of the
procedural safeguards notice. If these
requirements change because of changes
made to the Act, public agencies would
be required to change their procedural
safeguards notice accordingly. Such
changes, along with any additional
changes to a State’s rules, would be
subject to the public participation
requirements in § 300.165 and section
612(a)(19) of the Act.
Changes: None.
Comment: One commenter
recommended requiring that the
procedural safeguards notice include a
parent’s right to request the credentials
of any teacher who supports the child
in the educational environment, as well
as documentation regarding the type of
supervision provided for any teacher
who is supervised by a highly qualified
teacher.
Discussion: The content of the
procedural safeguards notice is based on
the items listed in section 615(d)(2) of
the Act, which do not include providing
information about teachers’ credentials
and personnel qualifications in a
procedural safeguards notice, as
requested by the commenter. Nor is
there any requirement elsewhere in the
Act for public agencies to provide
information about teachers’ credentials
and personnel qualifications.
Section 1111(h)(6) of the ESEA,
however, requires LEAs to inform
parents about the quality of a school’s
teachers in title I schools. Under the
ESEA, an LEA that accepts title I, part
A funding must notify parents of
students in title I schools that they can
request information regarding their
child’s teacher, including, at a
minimum: (1) whether the teacher has
met State requirements for licensure and
certification for the grade level(s) and
subject-matter(s) in which the teacher
provides instruction; (2) whether the
teacher is teaching under emergency or
other provisional status through which
State qualification or licensing criteria
has been waived; (3) the college major
and any other graduate certifications or
degrees held by the teacher, and the
field of discipline of the certifications or
degrees; and (4) whether the child is
provided services by paraprofessionals,
and if so, their qualifications. In
addition, each title I school must
provide each parent timely notice that
the parent’s child has been assigned, or
has been taught for four or more
consecutive weeks, by a teacher who is
not highly qualified. These
requirements also apply to special
education teachers who teach core
academic subjects in title I schools.
Changes: None.
Comment: Numerous commenters
expressed concern with allowing LEAs
to post the procedural safeguards notice
on the school’s Web site. Several
commenters asked whether directing a
parent to the Web site constitutes
distribution of the notice under the Act.
One commenter suggested adding
specific language to the regulations
stating that posting the notice on the
school Web site does not replace other
Part B requirements regarding
distribution of the notice.
Discussion: Section 300.504(b),
incorporates section 615(d)(1)(B) of the
Act, and permits, but does not require,
a public agency to post a current copy
of the procedural safeguards notice on
its Web site, if one exists. The public
agency would not meet its obligation in
§ 300.504(a) by simply directing a
parent to the Web site. Rather, a public
agency must still offer parents a printed
copy of the procedural safeguards
notice. If, however, a parent declines the
offered printed copy of the notice and
indicates a clear preference to obtain the
notice electronically on their own from
the agency’s Web site, it would be
reasonable for the public agency to
document that it offered a printed copy
of the notice that the parent declined.
Posting the procedural safeguards notice
on a public agency’s Web site is clearly
optional and for the convenience of the
public and does not replace the
distribution requirements in the Act. We
do not believe it is necessary to add a
regulation to clarify this.
Changes: None.
Comment: None.
Discussion: As noted in the Analysis
of Comments and Changes section for
subpart B, § 300.152(c)(1) has been
amended to require that States set aside
any part of a State complaint filed under
§§ 300.151 through 300.153 that is being
addressed in a due process hearing until
the conclusion of the hearing, and
resolve any issue that is not a part of the
due process hearing decision within the
60-day timeline for State complaints
(unless the timeline is extended,
consistent with § 300.152(b)). This
change was made to address those
limited occasions when a parent files
both a State complaint and a due
process hearing on the same or similar
issues. While the Department does not
encourage the dual filing of complaints,
we are aware that this occasionally
occurs and it is important for the
regulations to be clear as to how such
situations should be handled. In light of
this change, we are amending the
requirement in § 300.504(c)(5),
regarding the contents of the procedural
safeguards notice, to inform parents of
the opportunity to present and resolve
complaints through the due process
complaint and the State complaint
procedures.
Changes: We have removed the ‘‘or’’
in § 300.504(c)(5) and replaced it with
‘‘and’’ to require that the procedural
safeguards notice include a full
explanation of the opportunity to
present and resolve complaints through
the due process complaint and the State
complaint procedures.
Comment: None.
Discussion: We are aware of the fact
that over the years there has been much
confusion about exactly what must be
included in the procedural safeguards
notice. To help clear up this confusion,
the Department is publishing a model
procedural safeguards notice on its Web
site today in accordance with section
617(e) of the Act. In addition to making
this model procedural safeguards notice
available on the Department’s Web site,
we also are amending the cross-
references in § 300.504(c) to identify the
specific regulatory provisions that
include procedural safeguards for which
an explanation must be provided in the
procedural safeguards notice.
Changes: We have revised the cross-
references to specific regulatory sections
in the introductory paragraph of
§ 300.504(c), consistent with the content
listed in § 300.504(c)(1) through (13).
Comment: A few commenters asked
that the regulations require a State to
develop its procedural safeguards notice
with the State’s PTIs and CPRCs to
ensure that it is appropriate for parents.
One commenter recommended
including contact information for PTIs
and CPRCs in the notice.
Discussion: Section 300.165 and
section 612(a)(19) of the Act require
each State to ensure that there are
public hearings, adequate notice of the
hearings, and an opportunity for
comment available to the general public,
including individuals with disabilities
and parents of children with
disabilities, prior to adopting any
policies and procedures to comply with
Part B of the Act. There is nothing in the
Act or these regulations that would
prevent a public agency from consulting
representatives of PTIs, CPRCs, or other
advocacy organizations for assistance in
developing the procedural safeguards
notice so that it is appropriate for
parents and the general public.
It would be unnecessarily prescriptive
to require States to consult with
representatives from particular
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organizations in developing their
procedural safeguards notice or to
require that a State’s procedural
safeguards notice include contact
information for particular organizations.
We believe that such decisions are best
left to States.
Changes: None.
Comment: Several commenters
suggested requiring the procedural
safeguards notice to explain how a
resolution meeting works and the
responsibilities of parents who
participate in a resolution meeting.
Some commenters recommended
requiring public agencies to inform
parents in writing about the differences
between mediation and resolution
meetings including the differences in
confidentiality rules; whether attorneys’
fees may be reimbursed; the effect of
resolution and mediation sessions on
due process hearing timelines; and the
requirements governing the execution of
resolution and mediation agreements.
Discussion: Section 300.504(c)(6),
consistent with section 615(d)(2)(E)(iii)
of the Act, requires the procedural
safeguards notice to include a full
explanation regarding the availability of
mediation to resolve complaints. In
addition, § 300.504(c)(5) requires the
procedural safeguards notice to provide
a full explanation of the opportunity for
parents to present and resolve
complaints through the due process
complaint and State complaint
procedures, including the time period in
which to file a complaint, the
opportunity for the agency to resolve the
complaint, and the differences between
the due process complaint and the State
complaint procedures, including the
jurisdiction of each procedure, what
issues may be raised, filing and
decisional timelines, and relevant
procedures. Because resolution
meetings are part of the due process
procedures, consistent with § 300.510
and section 615(f)(1)(B) of the Act, the
explanation of due process procedures
would necessarily include information
about how the resolution meeting works
and the responsibilities of the parties in
the resolution meeting.
We do not believe it is necessary to
require the procedural safeguards notice
to explain the differences between
mediation and resolution meetings
because the differences will be apparent
from the clear explanations of the
respective procedures that are already
required in the notice. However, there is
nothing in the Act or these regulations
that would prohibit a State from
describing the differences between
mediation and resolution meetings in its
procedural safeguards notice, if it chose
to do so.
Changes: None.
Comment: Several commenters
requested clarification regarding the
differences between the State complaint
and due process complaint procedures
that are required to be included in the
procedural safeguards notice. Some
commenters requested clarification
regarding the meaning of the phrases
‘‘jurisdiction of each procedure’’ and
‘‘what issues may be raised’’ in State
complaints versus due process
complaints.
Discussion: It is important for public
agencies to include an explanation of
the State complaint procedures in
§§ 300.151 through 300.153 and the due
process complaint procedures in
§ 300.507 in the procedural safeguards
notice to assist parents in understanding
the differences between these
procedures. The reference to
‘‘jurisdictional issues’’ addresses the
scope of the State complaint and due
process complaint procedures. An
organization or individual may file a
State complaint under §§ 300.151
through 300.153 alleging that a public
agency has violated a requirement of the
Act for a violation that occurred not
more than one year prior to the date on
which the complaint is received, unless
one of the exceptions in § 300.153(c) is
applicable. The Department’s
longstanding position is that a State
must resolve any complaint, and may
not remove from the jurisdiction of its
State complaint procedures complaints
regarding the identification, evaluation,
or educational placement of the child,
or the provision of FAPE to the child
simply because those issues also could
be the subject of a due process
complaint. We view the State complaint
procedures as a very important tool in
a State’s exercise of its general
supervision responsibilities, consistent
with sections 612(a)(11) and 616(a) of
the Act, to monitor LEA implementation
of the requirements in Part B of the Act.
These responsibilities extend to both
systemic and child-specific issues.
A parent or a public agency may file
a due process complaint under
§ 300.507 on any matter relating to the
identification, evaluation, or
educational placement of the child, or
the provision of FAPE to such child for
an alleged violation that occurred not
more than two years (or, within the
timeframe established by the State)
before the date the parent or public
agency knew or should have known
about the alleged action that forms the
basis of the complaint.
Changes: None.
Electronic Mail (§ 300.505)
Comment: One commenter requested
that the regulations clarify that a parent
who elects to receive notices by
electronic mail must do so in writing.
Discussion: Section 300.505, which
incorporates section 615(n) of the Act,
permits public agencies to make the
electronic mail option available for
notices required in section 615 of the
Act, including the prior written notice,
procedural safeguards notice, and due
process complaint notice. It would be an
unnecessary paperwork burden to
require a parent who elects to receive
notices by electronic mail to do so in
writing, particularly when there are
other methods available to document
such a request, for example, by the LEA
making a notation of the parent’s verbal
request. We believe public agencies
should have the flexibility to determine
whether and how to document that a
parent elects to receive these notices by
electronic mail.
Changes: None.
Mediation (§ 300.506)
Comment: Several commenters stated
that the S. Rpt. No. 108–185 expressed
Congressional intent for a hearing
officer to have the same plenary power
over a due process hearing as a Federal
or State judge. The commenters,
therefore, recommended permitting a
hearing officer to require mediation.
Discussion: Section 300.506(a)
incorporates section 615(e)(1) of the Act
and requires public agencies to establish
and implement procedures to allow
parties to resolve disputes involving any
matter under Part B of the Act,
including matters arising prior to the
filing of a due process complaint, to
resolve disputes through a mediation
process. Section 615(e)(2)(A)(i) of the
Act requires the public agency to
ensure, among other things, that the
mediation process is voluntary on the
part of the parties. In light of these
explicit statutory requirements, we do
not believe that a hearing officer can
order that the parties to a due process
complaint engage in mediation.
Changes: None.
Comment: One commenter suggested
that the regulations include language to
ensure that the mediation process is not
used to deny or delay a parent’s right to
have a State complaint investigated.
Discussion: We do not believe that
additional language is necessary to
address the commenter’s concern.
Section 300.506(a) requires each public
agency to ensure that procedures are
established and implemented to allow
parties to resolve disputes involving any
matter under Part B of the Act,
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including matters arising prior to the
filing of a due process complaint, to
resolve disputes through mediation. We
believe that parties could use mediation
prior to, or after, filing a State
complaint.
Section 300.506(b)(1)(ii), consistent
with section 615(e)(2)(A)(ii) of the Act,
is clear that mediation cannot be used
to deny or delay a parent’s right to a
hearing on the parent’s due process
complaint, or to deny other rights
afforded under Part B of the Act. ‘‘Other
rights under Part B of the Act’’ include
a parent’s right to file a State complaint
and to have that complaint resolved
within applicable timelines. If the
parties involved voluntarily wish to
engage in mediation once the complaint
is filed, and the mediation is not
successful in resolving the dispute, the
entity responsible for resolving the
complaint at the State level must ensure
that the complaint is resolved within
the applicable timelines in § 300.152.
Mediation is not an exceptional
circumstance that would justify
extension of the 60-day timeline for
issuing the final decision in a State
complaint, unless the parties agree
otherwise. However, as provided in
§ 300.152(b)(1)(ii), the parent and the
public agency involved can agree to
extend the time limit to engage in
mediation to resolve the complaint.
Changes: None.
Comment: One commenter
recommended allowing parties in a
dispute to engage in mediation and have
the mediator facilitate the IEP Team
meeting to incorporate the terms of the
mediation agreement into the child’s
IEP.
Discussion: Although not required by
the Act, there is nothing in the Act that
would prohibit the parties in a dispute
to agree during mediation to have the
mediator facilitate an IEP Team meeting
and to incorporate the terms of the
mediation agreement into the child’s
IEP.
Changes: None.
Comment: Some commenters
suggested defining ‘‘effective mediation
techniques’’ as techniques recognized
by any State or national accreditation or
professional mediation association. The
commenters also recommended
requiring a formal training and
certification process for mediators,
which is created and paid for by the
SEA.
Discussion: We decline to define
‘‘effective mediation techniques’’ in the
manner suggested by the commenters.
States have used a number of successful
techniques over the years to resolve
disputes between parents and public
agencies, and we do not want to restrict
a State’s discretion by providing a
particular definition. Whether formal
training and certification for mediators
is required is a decision best left to each
State, depending on State policy.
Changes: None.
Comment: A few commenters
recommended requiring mediators to be
unbiased and knowledgeable in laws,
regulations, and best practices related to
children with disabilities. Some
commenters recommended requiring the
list of mediators to include information
on the mediator’s qualifications. Other
commenters recommended that the list
of mediators and their qualifications be
provided to parents and the public.
Discussion: We do not believe
additional regulations regarding the
qualifications of mediators are
necessary. Section 300.506(b)(3),
consistent with section 615(e)(2)(C) of
the Act, requires States to maintain a list
of individuals who are qualified
mediators and knowledgeable in the
laws and regulations relating to the
provision of special education and
related services. In addition,
§ 300.506(c)(1)(ii) requires impartial
mediators who do not have a personal
or professional interest that would
conflict with the person’s objectivity.
Parents do not select the mediator to
mediate a particular case. Rather,
§ 300.506(b)(3)(ii) requires that the
process for selecting mediators be
impartial. Therefore, we do not believe
that public agencies should be required
to provide the list of mediators and their
qualifications to parents and the public.
However, there is nothing in the Act
that would prohibit a State from making
this information available to parents and
the public, if it chooses to do so.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify whether the public agency is
required to offer parents who choose not
to use the mediation process an
opportunity to meet with a disinterested
party.
Discussion: We believe the regulations
are clear. Section 300.506(b)(2),
consistent with section 615(e)(2)(B) of
the Act, states that a public agency may
establish procedures to offer parents and
schools that choose not to use
mediation, an opportunity to meet with
a disinterested party who would explain
the benefits of, and encourage the use
of, mediation. Therefore, States may
establish such procedures, but are not
required to do so. No further
clarification is necessary.
Changes: None.
Comment: One commenter objected to
the requirement in § 300.506(b)(3)(ii)
that States select mediators on a
random, rotational, or other impartial
basis, and requested retaining current
§ 300.506(b)(2)(ii), which permits the
parties to agree on a mediator when the
mediator is not selected on a random
basis.
Discussion: Section 300.506(b)(3)(ii)
replaces current § 300.506(b)(2)(ii) and
requires the State to select mediators on
a random, rotational, or other impartial
basis. These provisions are sufficient to
ensure that the selection of the mediator
is not biased, while providing SEAs
additional flexibility in selecting
mediators. Selecting mediators on an
impartial basis would include
permitting the parties involved in a
dispute to agree on a mediator.
Changes: None.
Comment: One commenter requested
a definition of ‘‘timely manner’’ in
§ 300.506(b)(5), regarding the
scheduling of mediation sessions.
Discussion: Section 300.506(b)(5)
incorporates section 615(e)(2)(E) of the
Act and requires that the scheduling of
each session in the mediation process be
completed in a timely manner. It is not
necessary to define ‘‘timely manner’’
because this requirement must be read
consistent with the State’s responsibility
to ensure that the mediation process
does not operate to deny or delay a
parent’s right to a hearing on a due
process complaint, or to deny other
rights afforded under Part B of the Act.
Changes: None.
Comment: Many commenters stated
that mediation discussions should
remain confidential and not be used in
any subsequent due process hearings or
proceedings. The commenters
recommended that the phrase ‘‘arising
from that dispute’’ in § 300.506(b)(6)(i)
and § 300.506(b)(8) be removed. The
commenters viewed these provisions as
permitting confidentiality to apply only
to the current issue in dispute, and not
in other subsequent actions. Some
commenters expressed concern that
mediation could be used as ‘‘discovery’’
for some future dispute between parties,
or for a simultaneous dispute between
the same public agency and some other
children, or disputes involving the same
lawyers but different parties.
Discussion: We agree with the
commenters that the phrase ‘‘arising
from that dispute’’ should be removed
in § 300.506(b)(6)(i) or § 300.506(b)(8).
We believe that it is important to
preserve the integrity of the mediation
process to ensure that mediation
discussions remain confidential and not
be used in subsequent due process
hearings or civil proceedings. To ensure
that we do not interfere with the
evidentiary privilege laws of States that
might not participate in the Part B
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program (a possibility, but not a current
actuality), we are adding new language
that limits the confidentiality provision
to apply to due process hearings and
proceedings in any Federal court and
any State court of a State participating
in Part B of the Act.
Changes: We have removed the
phrase ‘‘arising from that dispute’’ from
§ 300.506(b)(6)(i). We also have removed
the phrase ‘‘proceedings arising from
that dispute’’ and replaced it with
‘‘proceeding of any Federal court or
State court of a State receiving
assistance under this part’’ from
§ 300.506(b)(8).
Comment: None.
Discussion: Following the publication
of the NPRM, the Department
reconsidered the subject of
confidentiality pledges prior to the
commencement of mediation. Section
300.506(b)(9) was included in the
NPRM in light of note 208 of Conf. Rpt.
No. 108–779, p. 216, which indicates
the Conference committee’s intention
that parties could be required to sign
confidentiality pledges prior to the
commencement of mediation, without
regard to whether the mediation
ultimately resolves the dispute.
However, § 300.506(b)(8), already
requires that discussions that occur
during the mediation process be
confidential and not be used as
evidence in any subsequent due process
hearing or civil proceeding. Therefore,
we are removing § 300.506(b)(9).
Removing § 300.506(b)(9), however, is
not intended to prevent States from
allowing parties to sign a confidentiality
pledge to ensure that discussions during
the mediation process remain
confidential, irrespective of whether the
mediation results in a resolution.
Changes: Paragraph (b)(9) in § 300.506
has been removed.
Comment: A few commenters
expressed concern regarding the
requirement in § 300.506(c)(1)(ii) that
mediators must not have a personal or
professional interest that conflicts with
‘‘the person’s objectivity.’’ The
commenters stated that disputes will
arise and compromise the integrity of
the proceedings without a mechanism to
determine whether a conflict exists.
Discussion: Section 300.506(c)(1)(ii)
incorporates section 615(e) of the Act,
and provides that mediators must not
have a personal or professional interest
that would conflict with the person’s
objectivity. SEAs have an interest in
ensuring that their mediators are seen as
impartial persons so that the parties to
disputes will be willing to use
mediation to resolve those disputes. We
do not believe that further regulation is
needed, as the SEAs’ interest in
ensuring that mediators are seen as
impartial should be sufficient to provide
for mechanisms to resolve conflicts to
the extent needed in that State.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify that a mediator cannot be
employed simultaneously as a hearing
officer.
Discussion: Case-by-case
determinations would need to be made
as to whether there is a conflict of
interest in the situation that the
commenter describes. For example, we
believe that a conflict would arise if a
mediator was subsequently assigned as
a hearing officer for the same matter. We
believe that the requirements in
§ 300.506(c)(1)(ii), applicable to
mediators, and the corresponding
requirements in § 300.511(c)(1)(i)(B),
applicable to hearing officers, which
prohibit a mediator and a hearing officer
from having a personal or professional
interest that would conflict with the
person’s objectivity at the mediation or
the hearing, are sufficient to ensure that
mediators and hearing officers are fair
and unbiased.
Changes: None.
Filing a Due Process Complaint
(§ 300.507)
Comment: Some commenters
recommended changing the section
heading in § 300.507 from ‘‘Filing a due
process complaint’’ to ‘‘Requesting a
due process hearing’’ to avoid confusion
with the State complaint process. A few
commenters requested that the
regulations clarify that a request for due
process hearing may be made regarding
any matter pertaining to the
identification, evaluation, educational
placement, or provision of FAPE for a
child.
Discussion: We do not believe that
changing the heading to this section is
necessary or that further clarification is
needed regarding the matters about
which a due process complaint can be
filed. Section 300.507(a) and section
615(b)(6)(A) of the Act are clear that a
parent or public agency may file a due
process complaint on any matter
relating to the identification, evaluation,
or educational placement of the child,
or the provision of FAPE to the child.
A party must file a due process
complaint in accordance with
§§ 300.507 through 300.508 prior to the
opportunity for a due process hearing
under this part. If the LEA does not
resolve the complaint to the satisfaction
of the parents during the resolution
process, the disputed issues that were
raised in the due process complaint
would be the subject of a due process
hearing.
Changes: None.
Comment: Several commenters
objected to the removal of current
§ 300.507(a)(2), which requires the
public agency to inform the parent
about the availability of mediation when
a hearing is initiated. The commenters
stated that the notice about the
availability of mediation should be
expanded, not eliminated.
Discussion: Section 615(e)(1) of the
Act expands the availability of
mediation by requiring public agencies
to offer mediation to resolve disputes
about any matter under this part.
Current § 300.507(a)(2) was replaced by
§ 300.506(a), which incorporates section
615(e)(1) of the Act, and requires
mediation to be available to resolve
disputes involving any matter under
this part, including matters arising prior
to the filing of a due process complaint.
Section 300.506(a), therefore, expands
the availability of mediation beyond
that required in current § 300.507(a)(2).
Therefore, there is no need to add the
provision requested by the commenter.
Changes: None.
Comment: A few commenters stated
that the requirement in § 300.507(a)
places the burden on the parent to file
a due process complaint.
Discussion: Section 300.507(a),
consistent with section 615(b)(6) of the
Act, permits either a parent or a public
agency to file a due process complaint.
Section 615(b)(7) of the Act is clear that
a parent or a public agency must file a
due process complaint notice before a
due process hearing may commence.
Changes: None.
Comment: Many commenters
supported the time limit for submitting
a due process complaint. Some
commenters stated that the regulations
should clarify that, while States may
adopt an explicit statute of limitations
that is shorter than two years, they may
not adopt a time period that is longer
than two years. Other commenters
recommended that the regulations
clarify that if a State has an explicit time
limit for requesting a due process
hearing the State time limit must be
reasonable. A few commenters
recommended requiring States to
conduct public hearings and provide an
opportunity for public comment before
the State establishes a reasonable time
limit for filing a due process complaint.
Still other commenters stated that the
regulations should include a statement
that common-law directives regarding
statutes of limitations should not
override the Act or State regulatory time
limits.
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Some commenters expressed concern
that reducing the statute of limitations
from three years to two years makes it
impossible to protect the rights of
children. The commenters stated that
parents and school districts will be
discouraged from participating in
alternative dispute resolution options
because of the short timeframe for filing
a due process complaint.
Discussion: Section 300.507(a)(2) and
section 615(b)(6)(B) of the Act are clear
that a due process complaint must
allege a violation that occurred not more
than two years before the date the
parent or public agency knew, or should
have known, about the alleged action
that forms the basis of the due process
complaint, or if the State has an explicit
time limit for filing a due process
complaint, in the time allowed by that
State law.
There is nothing in the Act that would
preclude a State from having a time
limit for filing a complaint that is
shorter or longer than two years. We
believe that the Act leaves this decision
to the States. A State choosing to adopt
a time limit for requesting a hearing,
other than the two year time limit in the
Act, must comply with the public
participation requirements in § 300.165
and section 612(a)(19) of the Act, which
require that prior to the adoption of any
policies and procedures needed to
comply with Part B of the Act
(including any amendments to such
policies and procedures), the State must
ensure that there are public hearings,
adequate notice of the hearings, and an
opportunity for public comment.
However, if a State already has an
explicit time limit in statute or
regulation, and has met the
requirements in § 300.165 and section
612(a)(19) of the Act in establishing that
requirement, new public hearings and
public comment periods are not
required.
It is not necessary to clarify that
common-law directives regarding
statutes of limitations should not
override the Act or State regulatory
timelines, as the commenters
recommended, because the Act and
these regulations prescribe specific
limitation periods which supersede
common law directives in this regard.
Changes: None.
Comment: One commenter suggested
that the regulations allow extensions of
the statute of limitations when a
violation is continuing or the parent is
requesting compensatory services for a
violation that occurred not more than
three years prior to the date the due
process complaint is received.
Discussion: Section 615(f)(3)(D) of the
Act provides explicit exceptions to the
timeline for requesting a due process
hearing. Section 300.511(f) incorporates
these provisions. These exceptions do
not include when a violation is
continuing or where a parent is
requesting compensatory services for a
violation that occurred not more than
three years from the date that the due
process complaint was filed. Therefore,
we do not believe that the regulations
should be changed.
Changes: None.
Comment: One commenter suggested
removing § 300.507(b), which requires a
public agency to inform parents of any
free or low-cost legal and other relevant
services in the area. The commenter
stated that schools should voluntarily
provide this information to parents. One
commenter requested clarification
regarding the meaning of ‘‘other relevant
services’’ about which the public agency
must inform parents. Another
commenter requested that public
agencies post information about free or
low-cost legal services on their Web
sites.
Discussion: The provisions in
§ 300.507(b) are protected by section
607(b) of the Act and require the public
agency to inform parents about the
availability of free or low-cost legal and
other relevant services, if the parent
requests such information or the parent
or the agency requests a due process
hearing. Generally, ‘‘other relevant
services’’ refers to other sources that
parents could consult for information,
such as parent centers.
The Department believes that parents
should have easy access to information
about any free or low-cost legal and
other relevant services in the area.
Making the information available on the
State’s Web site may be a good way of
providing parents easily accessible
information, but it may not be effective
in all cases. Each State is in the best
position to determine whether including
this information on its Web site would
be helpful for parents. Therefore, we
decline to add this as a requirement in
these regulations, as recommended by
the commenter.
Changes: None.
Comment: None.
Discussion: Upon internal review, we
determined that it would be clearer for
§ 300.507(b)(2) to state that the parents
or the agency files a due process
complaint, rather than request a hearing
under § 300.507.
Changes: We have amended the
language of § 300.507(b)(2) to refer to
filing a due process complaint rather
than requesting a hearing.
Due Process Complaint (§ 300.508)
Comment: A few commenters
expressed concern regarding the use of
similar terminology for due process
complaints and State complaints. Some
commenters stated that the State
complaint procedures may mistakenly
be considered a pre-requisite to
commencing a due process hearing. A
few commenters requested changing the
heading in § 300.508 from ‘‘Due process
complaint’’ to ‘‘Requesting a due
process hearing’’ to avoid unnecessary
confusion.
Discussion: Section 615(b)(7)(B) of the
Act states that a party may not have a
hearing on a due process complaint or
engage in a resolution meeting until the
party, or the attorney representing the
party, files a due process complaint that
meets the requirements in § 300.508(b).
There is no requirement that a party file
a State complaint prior to filing a due
process hearing, and we believe that the
regulation is sufficiently clear about this
point. Renaming this section
‘‘Requesting a due process hearing’’
could incorrectly suggest that there is no
requirement to file a due process
complaint prior to a due process
hearing. Therefore, we decline to change
the name of the heading, as requested by
the commenters.
Changes: None.
Comment: A few commenters
requested clarification regarding when a
determination about the sufficiency of a
due process complaint must be made
and who makes the determination. One
commenter stated that any party who
alleges that a notice is insufficient
should be required to state in writing
the basis for that belief, including the
information that is missing or
inadequate.
Many commenters recommended
removing the phrase ‘‘or engage in a
resolution meeting’’ in § 300.508(c). The
commenters expressed concern that
requiring parties to engage in a
resolution meeting before a due process
hearing will delay the due process
hearing, particularly when the parties
must wait for a hearing officer to
determine the sufficiency of a due
process complaint before holding a
resolution meeting. One commenter
requested that the regulations state that
the public agency may not deny or delay
a parent’s right to a due process hearing.
A few commenters recommended that
the regulations clarify that a resolution
meeting cannot be held until the
complaint is deemed sufficient.
Some commenters questioned the
appropriateness of requiring a
substantive response to a due process
complaint during a resolution meeting
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before the complaint is determined to be
sufficient. Other commenters asked
whether the 10-day timeline for the
party receiving the complaint to
respond to the due process complaint
resets when a party deems a due process
complaint to be insufficient or when a
hearing officer rules that the complaint
is insufficient.
One commenter asked whether two
resolution meetings are required when
the sufficiency of the complaint is
challenged, and whether the 30-day
resolution period is reset by an
insufficient complaint. The same
commenter asked whether the
resolution meeting should be scheduled
within 50 days of receiving the parent’s
original due process complaint, if
insufficiency has been determined or is
pending.
Discussion: Section 300.510(a),
consistent with section 615(f)(1)(B) of
the Act, requires the LEA, within 15
days of receiving notice of the parent’s
due process complaint, and prior to the
initiation of a hearing, to convene a
meeting with the parent and the
relevant members of the IEP Team to
discuss the parent’s due process
complaint so that the LEA has an
opportunity to resolve the dispute.
Section 300.508(d)(1), consistent with
section 615(c)(2)(A) and (D) of the Act,
provides that the due process complaint
must be deemed sufficient unless the
party receiving the due process
complaint notifies the hearing officer
and the other party in writing, within 15
days of receipt of the due process
complaint, that the due process
complaint does not meet the
requirements in § 300.508(b). If the
party receiving the due process
complaint notice believes the complaint
is insufficient, the hearing officer
determines the sufficiency of the
complaint. There is no requirement that
the party who alleges that a notice is
insufficient state in writing the basis for
the belief.
Section 300.508(d)(2), consistent with
section 615(c)(2)(D) of the Act, states
that the hearing officer must make a
determination within five days of
receiving notice that the party believes
the complaint is insufficient and
immediately notify the parties in
writing of that determination.
If the hearing officer determines that
the notice is not sufficient, the hearing
officer’s decision will identify how the
notice is insufficient, so that the filing
party can amend the notice, if
appropriate. We are not further
regulating on how the sufficiency claim
is raised, however, as we believe that
this matter is more appropriately
addressed by each State, in light of their
other hearing procedures.
Section 615(b)(7)(B) of the Act,
provides that a party may not have a
hearing on a due process complaint
until the party or the party’s attorney
files a due process complaint that meets
the content standards in section
615(b)(7)(A) of the Act, which are
reflected in § 300.508(b). If the
complaint is determined to be
insufficient and is not amended, the
complaint could be dismissed.
We agree with S. Rpt. No. 108–185, p.
38, which states that the resolution
meeting should not be postponed when
the LEA believes that a parent’s
complaint is insufficient. While the
period to file a sufficiency claim is the
same as the period for holding the
resolution meeting, parties receiving
due process complaint notices should
raise their sufficiency claims as early as
possible, so that the resolution period
will provide a meaningful opportunity
for the parties to resolve the dispute.
In order to resolve ambiguity on the
relationship of a sufficiency claim to the
resolution meeting, we are revising
§ 300.508(c) to remove the reference,
which is not statutory, to the resolution
meeting. There is no need to hold more
than one resolution meeting, impose
additional procedural rules, or
otherwise adjust the resolution timeline.
We do not believe it is necessary to
add language to the regulations stating
that a public agency may not deny or
delay a parent’s right to a due process
hearing. We believe that the timelines
and requirements for filing a due
process complaint, and the timelines for
hearing officer decisions regarding the
sufficiency of a complaint will
safeguard against due process hearings
being unfairly or unnecessarily delayed.
Changes: We have removed the words
‘‘or engage in a resolution meeting’’ in
§ 300.508(c) for clarity.
Comment: One commenter stated that
the timeline for filing a due process
hearing should begin when the due
process complaint is deemed sufficient.
However, some commenters stated that
the timeline should begin when a party
files a due process complaint notice.
Several commenters stated that a
hearing officer should be allowed to
determine whether an amended
complaint relates to the original
complaint for purposes of determining
the time limit for filing a due process
complaint.
Discussion: We do not believe that a
separate filing of a due process
complaint notice and due process
complaint, with separate timelines, is
required by the Act, as those
distinctions would be unnecessarily
burdensome and cumbersome. Section
615(b)(7)(A)(i) of the Act describes the
due process complaint notice as being
filed ‘‘in the complaint,’’ and we have
organized our regulation consistent with
this provision.
Section 300.507(a)(2), consistent with
section 615(b)(6)(B) of the Act, states
that a due process complaint must
allege a violation that occurred not more
than two years (or the time allowed by
State law), before the date the parent or
public agency knew, or should have
known, about the alleged action that
forms the basis of the due process
complaint. Section 615(f)(3)(D) of the
Act provides exceptions to the timeline
if a parent was prevented from filing a
due process complaint, which are
reflected in § 300.511(f). It is up to
hearing officers to determine whether a
specific complaint is within the
allowable timeline, including whether
an amended complaint relates to a
previous complaint.
Changes: None.
Comment: Many commenters stated
that the process for amending a due
process complaint is complex and
unnecessarily complicated, and will
force parents to seek the services of an
attorney and make the relationship
between parties more adversarial. One
commenter recommended allowing a
hearing request to be amended up to
five days before the parties meet to set
a hearing schedule, rather than five days
before the hearing.
Discussion: We do not agree that the
process for amending a due process
complaint is complex and unnecessarily
complicated. Section 300.508(d)(3) and
section 615(c)(2)(E) of the Act allow the
party filing the due process complaint
an opportunity to amend the complaint
to ensure that the complaint accurately
sets out their differences with the other
party. The complaint can be amended
only if the parties mutually agree in
writing to the amendment and are given
the opportunity for a resolution
meeting, or the hearing officer grants
permission to amend the complaint at
any time not later than five days before
the due process hearing begins. This
process ensures that the parties
involved understand and agree on the
nature of the complaint before the
hearing begins. We, therefore, decline to
change these regulations, and see no
reason to change the timeline for
amending a complaint in the manner
suggested by the commenter.
Section 300.508(d)(4) and section
615(c)(2)(E)(ii) of the Act provide that
when a due process complaint is
amended, the timelines for the
resolution meeting and the time period
for resolving the complaint begin again
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with the filing of the amended due
process complaint.
Changes: None.
Comment: Some commenters stated
that parents who are filing a due process
complaint without the assistance of an
attorney should have more flexibility
when the sufficiency of the complaint is
determined. The commenters stated that
parents should be able to receive
assistance from their State’s due process
office to complete the due process
complaint so that it meets the standard
for sufficiency.
Discussion: To assist parents in filing
a due process complaint, § 300.509 and
section 615(b)(8) of the Act require each
State to develop a model due process
complaint form. While there is no
requirement that States assist parents in
completing the due process complaint
form, resolution of a complaint is more
likely when both parties to the
complaint have a clear understanding of
the nature of the complaint. Therefore,
the Department encourages States, to the
extent possible, to assist a parent in
completing the due process complaint
so that it meets the standards for
sufficiency. However, consistent with
section 615(c)(2)(D) of the Act, the final
decision regarding the sufficiency of a
due process complaint is left to the
discretion of the hearing officer.
Changes: None.
Comment: One commenter stated that
parents who file a due process
complaint without the assistance of an
attorney should be allowed to amend
their complaint without having to start
the process all over again, as long as
their statement provides the information
LEAs need to proceed toward
resolution. A few commenters stated
that a formal amendment should not be
required for minor insufficiencies, such
as leaving out the child’s address or
name of the child’s school, especially if
the LEA already has this information.
Many commenters recommended that
a hearing officer be allowed to permit a
party to amend the due process
complaint, unless doing so would
prejudice the opposing party. The
commenters stated that, at a minimum,
the regulations should state that hearing
officers must follow the standard that
permits them to freely grant
amendments, regardless of timelines,
when justice so requires.
Discussion: Section 300.508(d)(3),
consistent with section 615(c)(2)(E) of
the Act, provides that a party may only
amend its complaint in two
circumstances: (1) if the other party
consents in writing to the amendment
and is given the opportunity to resolve
the complaint in a resolution meeting
convened under § 300.510, or (2) if the
hearing officer grants permission for the
amendment, but only at a time not later
than five days before the hearing begins.
Therefore, we do not believe further
clarification is necessary. With regard to
parents who file a due process
complaint without the assistance of an
attorney or for minor deficiencies or
omissions in complaints, we would
expect that hearing officers would
exercise appropriate discretion in
considering requests for amendments.
Changes: None.
Comment: One commenter suggested
adding language to the regulations
stating that an LEA may request and, as
a matter of right, be granted one 10-day
extension to respond to a parent’s due
process complaint.
Discussion: Section 615(c)(2)(B)(ii) of
the Act provides that the receiving party
must provide the party that filed the
complaint a response to the complaint
within 10 days of receiving the
complaint. The Act makes no provision
for extending this time period, and we
do not believe it would be appropriate
to amend the regulations in this manner.
Allowing an LEA additional time to
respond to a parent’s due process
complaint could be used to unduly
delay the due process hearing, to the
detriment of the interests of the child.
Changes: None.
Comment: A few commenters
expressed concern that the regulations
appear to require parents to be
represented by an attorney in due
process proceedings and requested that
the regulations permit a party in a due
process hearing to be represented by a
non-attorney advocate. The commenters
stated that this would allow more
uniform access to assistance across all
socio-economic groups and decrease the
formality of hearings.
Discussion: We are considering the
issue of non-attorney representation of
parties in a due process hearing under
the Act, in light of State rules
concerning the unauthorized practice of
law. We anticipate publishing a notice
of proposed rulemaking in the near
future seeking public comment on this
issue.
Changes: None.
Comment: One commenter requested
clarification regarding whether there is
legal significance or consequence to a
responding party who fails to file the
required response to a due process
complaint or to an LEA that fails to send
both the prior written notice and the
due process complaint notice.
Discussion: The Act does not establish
consequences for parents who are the
receiving parties to complaints if they
fail to respond to a due process
complaint notice. However, either
party’s failure to respond to, or to file,
the requisite notices could increase the
likelihood that the resolution meeting
will not be successful in resolving the
dispute and that a more costly and time-
consuming due process hearing will
occur.
Changes: None.
Comment: One commenter
recommended that the regulations
specifically state that a party has a right
to seek immediate intervention from a
hearing officer to resolve pre-hearing
issues and disputes.
Discussion: Section 300.508,
consistent with section 615(b) and (c) of
the Act, sets out the requirements and
timelines for filing a due process
complaint. We do not believe the further
clarification requested by the
commenter is necessary because the due
process complaint procedures are
intended to resolve pre-hearing issues
and disputes and allow parties to seek
immediate resolution by a hearing
officer, when necessary, regarding the
sufficiency of a due process complaint
and amendments to a complaint.
Changes: None.
Comment: One commenter requested
that the regulations require a hearing
officer to dismiss a complaint when the
hearing officer determines that all issues
and allegations are insufficient to go
forward.
Discussion: We do not believe that
Federal regulations on this matter are
required, as we believe that States and
individual hearing officers are in a
better position to decide on the utility
of, or need for, dismissals.
Changes: None.
Model Forms (§ 300.509)
Comment: None.
Discussion: In reviewing this section,
we realized that the language in
paragraph (a) might incorrectly be read
to suggest that parties other than parents
and public agencies could file due
process complaints.
Changes: We have amended the
language of § 300.509(a) to clarify that
only parents and public agencies can
file due process complaints, while
parents, public agencies, and other
parties can file State complaints.
Comment: One commenter suggested
including a statement in § 300.509
clarifying that parents can use a model
form, create their own form, or use a
form created by their attorney, as long
as it meets the requirements of the Act.
Discussion: We agree that the use of
the model forms should not be required
by an SEA or LEA, and that parents (or
other parties filing a State complaint)
may use some other form of notice, so
long as their notice meets the content
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requirements of the Act. We are
clarifying this in § 300.509.
Changes: We have restructured
§ 300.509 and clarified that SEAs or
LEAs cannot require the use of the
model forms. We have added a new
paragraph (b) to § 300.509 to provide
that parents and other parties may use
another form, so long as the form that
is used meets the content requirements
in § 300.508(b) for filing a due process
complaint, or the requirements in
§ 300.153(b) for filing a State complaint.
Comment: A few commenters
requested language requiring the State
to work with the State PTI and CPRC to
develop the model forms so that they
are written in a manner that parents can
understand.
Discussion: It would be over-
regulating to require a State to work
with a particular group or groups to
develop their model forms. We believe
that such decisions are best made by
each State and, therefore, decline to
require a State to work with the State
PTI and CPRC to develop the model
forms. However, States must comply
with the public participation
requirements in § 300.165 and section
612(a)(19) of the Act prior to adopting
a model form. To meet the public
participation requirements, the State
must ensure that there are public
hearings and an opportunity for
comment available to the general public,
including individuals with disabilities
and parents of children with
disabilities.
Changes: None.
Comment: A few commenters
recommended that the regulations
clarify that a hearing officer may not
determine that a due process complaint
is insufficient in any State that has not
developed the model forms required in
§ 300.509.
Discussion: It would be inappropriate
to prohibit a hearing officer from finding
that a complaint is insufficient if the
receiving party properly challenges the
sufficiency of the complaint in
accordance with § 300.508(d)(1) because
the State has failed to develop the
model forms in accordance with
§ 300.509 and section 615(b)(8) of the
Act. Development of the model forms is
a State responsibility and parties to a
due process hearing should not be
penalized because a State fails to meet
the requirements in section 615(b)(8) of
the Act. The Department is authorized
to impose sanctions on a State, in
accordance with section 616(d), (e), and
(g) of the Act, if it fails to develop the
model forms required in § 300.509.
Changes: None.
Comment: One commenter
recommended that model forms should
be developed to assist education
agencies in filing a due process
complaint.
Discussion: We disagree with the
commenter. We believe that the due
process complaint requirements in
§ 300.508 provide sufficient information
for education agencies that wish to file
a due process complaint.
Changes: None.
Resolution Process (§ 300.510)
Resolution Meeting (§ 300.510(a))
Comment: One commenter expressed
concern that the resolution process
under the due process complaint
procedures could limit the State
complaint procedures as a means of
resolving disputes.
Discussion: The due process
complaint procedures and the State
complaint procedures are separate and
distinct. The State complaint
procedures remain a viable alternative
to the due process procedures for
parents to resolve disputes with public
agencies in a less formal and more cost-
effective manner.
Changes: None.
Comment: Several commenters
recommended that the regulations
require an LEA to notify the parent,
within five days of receiving a due
process complaint, whether the LEA
intends to convene a resolution meeting
or waive the session. The commenters
recommended that the notice include a
signature line for a parent to indicate an
agreement to waive the resolution
meeting.
Discussion: Section 615(f)(1)(B) of the
Act requires an LEA to convene a
resolution meeting with the parent and
the relevant member(s) of the IEP Team
within 15 days of receiving notice of the
parent’s due process complaint. The
purpose of the meeting is for the parent
to discuss the due process complaint
and the facts that form the basis of the
due process complaint so that the LEA
has an opportunity to resolve the
dispute. We do not believe it is
necessary to require an LEA to notify
the parent within five days of receiving
a due process complaint about the
LEA’s intention to convene or waive the
resolution process. An LEA that wishes
to engage in a resolution meeting will
need to contact the parent to arrange the
meeting soon after the due process
complaint is received in order to ensure
that the resolution meeting is held
within 15 days.
Section 300.510(a)(3) provides that
the resolution meeting does not need to
be held if the parent and the LEA agree
in writing to waive the meeting, or if the
parent and LEA agree to use the
mediation process to resolve the
complaint. The manner in which the
LEA and parent come to an agreement
to waive the resolution meeting is left to
the discretion of States and LEAs. We
do not believe that there is a need to
regulate further in this area.
Changes: None.
Comment: Some commenters asked
whether the requirements for resolution
meetings apply when an LEA initiates a
due process hearing. A few commenters
recommended that the requirements for
resolution meetings should not apply
when an LEA initiates a due process
hearing.
Discussion: Section 615(f)(1)(B)(i) of
the Act requires an LEA to convene a
resolution meeting when a parent files
a due process complaint. Consistent
with section 615(f)(1)(B)(i)(IV) of the
Act, the resolution meeting provides an
opportunity for the parents of the child
to discuss their complaint, and the facts
that form the basis of the complaint, so
that the LEA has an opportunity to
resolve the complaint. There is no
provision requiring a resolution meeting
when an LEA is the complaining party.
The Department’s experience has shown
that LEAs rarely initiate due process
proceedings.
Changes: None.
Comment: Some commenters
recommended that the regulations
clarify that, in addition to their attorney,
parents may bring other participants to
the resolution meeting, such as an
advocate or family friend. Other
commenters recommended that neither
party should be permitted to bring an
attorney to the resolution meeting. Some
commenters recommended requiring
parents to notify the LEA at least one
day before the resolution meeting
whether their attorney will be
participating in the resolution meeting.
Other commenters, however, stated that
parents should not be required to notify
the LEA in advance of the meeting
whether the parent plans to bring
anyone to the meeting.
Discussion: Section 615(f)(1)(B)(i) of
the Act states that an LEA must convene
a resolution meeting with the parents
and the relevant members of the IEP
Team who have specific knowledge of
the facts identified in the due process
complaint that includes a representative
of the public agency who has decision-
making authority on behalf of that
agency, and may not include the LEA’s
attorney unless the parent is
accompanied by an attorney.
Section 300.510(a)(4) states that the
parent and the LEA determine the
relevant members of the IEP Team to
attend the resolution meeting. We do
not believe it is necessary to clarify that
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a parent may bring other participants,
such as an advocate or family friend, to
the resolution meeting because section
614(d)(1)(B)(vi) of the Act and
§ 300.321(a)(6) are clear that the IEP
Team may include, at the discretion of
the parent or the agency, other
individuals who have knowledge or
special expertise regarding the child.
Therefore, such individuals could
attend the resolution meeting if the LEA
or parent determined that such
individuals are relevant members of the
IEP Team.
We do not believe it is necessary to
regulate on whether a parent must
provide advance notice to the LEA that
the parent intends to bring an attorney
to the resolution meeting because we
expect that it would not be in the
interest of the parent to withhold such
information prior to a resolution
meeting so as to appear at the resolution
meeting with an attorney without
advance notice to the public agency. In
such cases, the public agency could
refuse to hold the resolution meeting
until it could arrange the attendance of
its attorney (within the 15-day period).
The parent would incur additional
expenses from having to bring their
attorney to two resolution meetings.
Changes: None.
Comment: Some commenters
requested clarification regarding
whether the parent and the LEA must
agree to the parties who will attend the
resolution meeting, or whether the
parent and the LEA can decide
independently who will attend the
meeting. The commenters
recommended that any disputes
regarding who should attend the
resolution meeting should be resolved
in a timely manner and the meeting
should proceed with all the disputed
participants when there is no agreement
within the 15-day period. Some
commenters stated that allowing parents
to determine which members of the IEP
Team should attend the resolution
meeting exceeds statutory authority.
Discussion: Section 615(f)(1)(B)(i) of
the Act requires the LEA to convene a
resolution meeting with the parent and
the relevant member(s) of the IEP Team
who have specific knowledge of the
facts identified in the complaint.
Section 300.510(a)(4) requires the parent
and the LEA to determine the relevant
members of the IEP Team who will
attend the meeting. We urge LEAs and
parents to act cooperatively in
determining who will attend the
resolution meeting, as a resolution
meeting is unlikely to result in any
resolution of the dispute if the parties
cannot even agree on who should
attend. The parties should keep in mind
that the resolution process offers a
valuable chance to resolve disputes
before expending what can be
considerable time and money in due
process hearings. We decline to regulate
further on how to resolve disputes about
who should attend these meetings in the
absence of information about specific
problems in the process.
Changes: None.
Comment: Some commenters
recommended that the regulations
provide information on how a
resolution meeting should proceed.
Several commenters expressed concern
that the regulations offer no guidance on
the protocol or structure of resolution
meetings, and do not specify whether an
impartial mediator or facilitator should
conduct the meeting.
Discussion: Section 615(f)(1)(B)(i)(IV)
of the Act states that the purpose of a
resolution meeting is for parents to
discuss their due process complaint and
the facts that form the basis of the due
process complaint so that the LEA has
an opportunity to resolve the dispute.
We do not believe that it is necessary or
appropriate to regulate on the specific
structure or protocol for resolution
meetings as doing so could interfere
with the LEA and the parent in their
efforts to resolve the complaint in the
resolution meeting.
Changes: None.
Comment: A few commenters
recommended that the regulations
address the need for families to receive
training in dispute resolution.
Discussion: There is nothing in the
Act that would prevent a public agency
from offering training in dispute
resolution or referring parents to
organizations that provide training in
dispute resolution. Such matters are
best left to local and State officials to
determine, based on the training needs
of parents and families. Therefore, we
decline to regulate on this matter.
Changes: None.
Comment: One commenter
recommended allowing parents to
participate in resolution meetings
through alternative means (e.g.,
teleconferences) and alternative
procedures (e.g., participation by a
child’s court-appointed advocate) when
parents are unavailable (e.g., military
service, hospitalization).
Discussion: We understand that
circumstances beyond a parent’s control
(e.g., military service, hospitalization)
may prevent a parent from attending a
resolution meeting in person. If the LEA
notifies the parent of its intent to
schedule a resolution meeting within 15
days of receiving notice of the parent’s
due process complaint, and the parent
informs the LEA in advance of the
meeting that circumstances prevent the
parent from attending the meeting in
person, it would be appropriate for an
LEA to offer to use alternative means to
ensure parent participation, such as
those described in § 300.328, including
videoconferences or conference
telephone calls, subject to the parent’s
agreement.
There is no authority in the Act for an
LEA to permit a court-appointed
advocate to attend the resolution
meeting in place of a parent, unless the
public agency has appointed that
individual as a surrogate parent in
accordance with § 300.519, or the
agency determines that the person is a
person acting in the place of the
biological or adoptive parent of the
child in accordance with § 300.30(a)(4).
Changes: None.
Resolution Period (§ 300.510(b))
Comment: One commenter noted that
§ 300.510(b)(1) states that if an LEA has
not resolved a due process complaint
within 30 days of the receipt of the
complaint, the due process hearing
‘‘must’’ occur, which is inconsistent
with section 615(f)(1)(B)(ii) of the Act,
which states that the due process
hearing ‘‘may’’ occur. However, another
commenter recommended retaining the
language in § 300.510(b), in lieu of the
permissive statutory language.
Discussion: We believe that
§ 300.510(b)(1) should be changed to be
consistent with section 615(f)(1)(B)(ii) of
the Act. A requirement that a due
process hearing must occur when the
resolution period is not successful in
resolving the underlying dispute could
prove unduly restrictive for the parties,
particularly in situations where the
parties agree to an extension of the
resolution period or reach a settlement
after the resolution period has expired.
Therefore, we are changing
§ 300.510(b)(1) to state that a due
process hearing ‘‘may’’ occur if the
parties have not resolved the dispute
that formed the basis for the due process
complaint by the end of the resolution
period.
Changes: Section 300.510(b)(1) has
been changed by removing the word
‘‘must’’ and replacing it with ‘‘may’’
prior to the word ‘‘occur’’ to reflect the
language in section 615(f)(1)(B)(ii) of the
Act.
Comment: Some commenters
recommended requiring LEAs to waive
the resolution period when a parent can
show that, prior to the filing of the
complaint, the LEA had specific
knowledge of the facts later identified in
the complaint and had a reasonable time
to resolve the issue, or did not notify the
parent within five days of the resolution
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meeting or inform the parent of their
options.
Discussion: Section 615(f)(1)(B)(i) of
the Act provides two occasions when a
resolution meeting need not occur: (1)
when the parent and LEA agree in
writing to waive the meeting; and (2)
when the parent and LEA agree to use
the mediation process in § 300.506.
There are no provisions that allow a
parent or an LEA to unilaterally waive
the resolution meeting. In the
circumstances mentioned by the
commenter, the resolution meeting still
is a required vehicle for the parent and
the LEA to attempt to resolve their
differences prior to initiating a due
process hearing.
Changes: None.
Comment: We received numerous
comments expressing concern about the
resolution process and requesting
changes to the regulations to ensure that
the resolution process is used effectively
to resolve disputes and not to delay or
deny the right to a due process hearing.
Some commenters requested that
§ 300.510(b)(3) be removed because it
allows a public agency to delay the due
process hearing by scheduling
resolution meetings at times or places
that are inconvenient for the parent.
Many commenters recommended that if
an LEA fails to convene a resolution
meeting within the required 15 days,
bring the required personnel to a
resolution meeting, or participate in a
resolution meeting in good faith, the 45-
day timeline for a hearing decision
should begin on the date that the due
process complaint notice was filed.
Several commenters requested
clarification on what is considered
‘‘participation’’ or ‘‘good faith’’
participation in a resolution meeting
and who decides if participation has
occurred. A number of commenters
recommended that the regulations
permit a hearing officer to determine
whether a parent or LEA has
participated in the resolution meeting
and whether the due process hearing
can proceed. Another commenter
requested clarification on when the 45-
day timeline for a due process hearing
begins when a hearing officer
determines that a parent has
participated.
Several commenters asked how long a
due process complaint remains open if
the parent does not participate during
the 30-day resolution period. A number
of commenters requested clarification as
to whether and how an LEA can dismiss
a due process complaint when a parent
refuses to participate in a resolution
meeting. One commenter recommended
that the regulations clarify the
consequences of indefinitely delaying a
due process hearing.
Discussion: We do not agree that
§ 300.510(b)(3) should be removed. This
provision is based on H. Rpt. No. 108–
77, p. 114, that provides:
[If] the parent and the LEA mutually agree
that the meeting does not need to occur, the
resolution meeting does not need to take
place. However, unless such an agreement is
reached, the failure of the party bringing the
complaints to participate in the meeting will
delay the timeline for convening a due
process hearing until the meeting is held.
We fully expect that only in very rare
situations will an LEA fail to meet its
obligation to convene a resolution
meeting within 15 days of receiving
notice of the parent’s due process
complaint, delay the due process
hearing by scheduling meetings at times
or places that are inconvenient for the
parent, or otherwise not participate in
good faith in the resolution process.
However, in instances of
noncompliance, we believe parents
should be able to request a hearing
officer to allow the due process hearing
to proceed.
In situations where an LEA convenes
a meeting with the parent and the
relevant member or members of the IEP
Team who have specific knowledge of
the facts identified in the due process
complaint, and the parent fails to
participate in the resolution meeting,
the LEA would need to continue to
make diligent efforts throughout the
remainder of the 30-day resolution
period to convince the parent to
participate in the resolution meeting. If,
however, at the end of the 30-day
resolution period, the LEA is still
unable to convince the parent to
participate in the resolution meeting, we
believe that an LEA should be able to
seek intervention by a hearing officer to
dismiss the complaint.
Therefore, we are adding language to
the regulations to allow the parents to
seek a hearing officer’s intervention in
cases where an LEA fails to convene a
resolution meeting within 15 days of
receiving notice of a parent’s due
process complaint or fails to participate
in the resolution meeting. We also are
adding language to allow an LEA, at the
conclusion of the 30-day resolution
period, to request a hearing officer to
dismiss a complaint when the LEA is
unable to obtain the participation of a
parent in a resolution meeting despite
making reasonable efforts to do so
during the 30-day resolution period.
Changes: We have added a new
paragraph (b)(4) in § 300.510 to allow an
LEA, at the conclusion of the 30-day
resolution period to seek the
intervention of a hearing officer to
dismiss the parent’s complaint, if the
LEA is unable to obtain the
participation of the parent in the
resolution meeting, after reasonable
efforts have been made.
We have also added a new paragraph
(b)(5) to allow a parent to seek the
intervention of a hearing officer to begin
the due process hearing, if the LEA fails
to hold the resolution meeting within 15
days of receiving notice of a parent’s
due process complaint or fails to
participate in the resolution meeting.
Comment: Some commenters stated
that the 45-day timeline for a due
process hearing should begin when both
parties agree that the complaint will not
be resolved in a resolution meeting or
mediation session. Other commenters
suggested that when a resolution
meeting or mediation session is held
and it is clear before the end of the 30-
day resolution period that the LEA and
the parent cannot resolve the dispute,
the 45-day timeline should be allowed
to begin prior to the end of the 30-day
resolution period. A few commenters
requested further clarification regarding
how the timeline is counted once the
parent participates in a resolution
meeting. A few commenters
recommended that the 45-day timeline
for the hearing commence once both
parties agree that the issue will not be
resolved without a due process hearing.
One commenter recommended that the
regulations require the waiver to be in
writing so that hearing officers have a
specific point in time to know when
they should be counting the 45 days.
Discussion: We agree that the due
process hearing should be allowed to
proceed if the LEA and parent agree in
writing to waive the resolution meeting.
We also believe that the due process
hearing should be allowed to proceed
when an LEA and the parent agree to
waive the remainder of the 30-day
resolution period when it becomes
apparent that the LEA and the parent
will be unable to reach agreement
through resolution or mediation. There
may also be situations in which both
parties agree to continue the mediation
session beyond the 30-day resolution
period. Therefore, we are adding
language to the regulations to clarify
these exceptions to the 30-day
resolution period.
The new language specifies that the
45-day timeline for the due process
hearing starts the day after one of the
following events: (a) both parties agree
in writing to waive the resolution
meeting; (b) after either the mediation or
resolution meeting starts, but before the
end of the 30-day resolution period,
both parties agree in writing that no
agreement is possible; and (c) if both
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parties agree in writing to continue the
mediation at the end of the 30-day
resolution period, but later the parent or
public agency withdraws from the
mediation process.
Changes: We have added a new
paragraph (c) in § 300.510 that specifies
adjustments to the 30-day resolution
period. Subsequent paragraphs have
been renumbered accordingly.
Comment: Some commenters
recommended that the regulations
require public agencies to document
their attempts to ensure parent
participation in resolution meetings,
and to do so in the same manner that
they are required to document their
attempts to involve parents in IEP Team
meetings.
Discussion: We agree with the
commenters and will add language to
§ 300.510(b)(4) to make this clear.
Changes: We have added language in
§ 300.510(b)(4) to require an LEA to use
the same procedures it uses in
§ 300.322(d) to document its efforts to
obtain the participation of a parent in a
resolution meeting. We also have
amended § 300.510(b)(4) to refer to ‘‘due
process complaints,’’ for clarity.
Written Settlement Agreement (New
§ 300.510(d)) (Proposed § 300.510(c))
Comment: One commenter asked
whether decisions agreed to in
resolution meetings supersede previous
IEP decisions and whether the IEP Team
must reconvene to sanction the
decisions made in a resolution meeting.
One commenter recommended that if
the resolution agreement includes IEP-
related matters, the agreement must
state that the LEA will convene an IEP
Team meeting within a specific number
of days to revise the IEP accordingly or
develop an IEP addendum, as
appropriate.
Discussion: Unless the agreement
specifically requires that the IEP Team
reconvene, there is nothing in the Act or
these regulations that requires the IEP
Team to reconvene following a
resolution agreement that includes IEP-
related matters. We do not believe that
it is necessary or appropriate to
anticipate the elements of a particular
settlement agreement, which may
supersede an existing IEP. The contents
of settlement agreements are left to the
parties who execute a settlement
agreement.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify whether the SEA, a hearing
officer, or an administrative law judge
has the authority to enforce a written
resolution agreement. A few
commenters recommended permitting a
parent to seek assistance from the SEA
to compel a school district to abide by
a resolution agreement. The commenters
stated that many families cannot afford
legal representation and, in jurisdictions
in which parents cannot represent
themselves at the Federal district court
level, this would, in essence, leave such
parents without meaningful redress,
except through the State court system.
One commenter recommended that
the regulations specify that a resolution
agreement is enforceable in court
without exhausting administrative
remedies. The commenter stated that
unless this is clearly stated, parents may
be forced to proceed through a two-tier
due process system, rather than proceed
directly to court, which would be
counter to the purpose of a resolution
agreement.
Several commenters suggested adding
language in § 300.506(b)(7) clarifying
that a written, signed mediation
agreement can be enforced through a
State’s administrative complaint
process, as well as in State and Federal
court. The commenters stated that such
a provision would be consistent with
Congressional intent to reduce litigation
and permit parties to resolve
disagreements in a more positive, less
costly manner. The commenters also
suggested permitting State- or circuit-
based variation in enforcement
mechanisms.
Discussion: Section 615(f)(1)(B)(iii) of
the Act provides that if an agreement is
reached in a resolution meeting, the
parties must execute a legally binding
agreement that is signed by both the
parent and a representative of the
agency who has the authority to bind
the agency, and is enforceable in any
State court of competent jurisdiction or
in a district court of the United States.
These same requirements apply to
agreements reached through mediation
sessions, pursuant to section
615(e)(2)(F)(iii) of the Act. The Act is
clear that exhaustion of administrative
remedies is not required since the Act
provides that the agreement is
enforceable in a State court of
competent jurisdiction or in a district
court of the United States.
If a party to a resolution agreement or
a mediation agreement believes that the
agreement has been breached, we
believe that, in addition to enforcement
in a State court of competent
jurisdiction or district court of the
United States, States should be able to
offer the option of using other available
State mechanisms (e.g., State complaint
procedures) to enforce resolution
agreements and mediation agreements,
as long as those other enforcement
mechanisms are voluntary.
Therefore, we are adding a new
regulation on State enforcement
mechanisms to clarify that States have
the option of allowing resolution
agreements and mediation agreements
to be enforced through other
mechanisms, provided that the other
enforcement mechanisms do not operate
to deny or delay the right of any party
to the agreement to seek enforcement in
an appropriate State or Federal court.
Regarding the commenters’ suggestion
of allowing State and circuit variations
in enforcement mechanisms, we do not
believe the Department has the
authority to regulate in this area because
doing so would interfere with matters
reserved for State and Federal courts. In
general, a written resolution or
mediation agreement is a binding
contract between the parties, and
therefore, the validity and enforceability
of that agreement would be reviewed in
light of applicable State and Federal
laws, including State contract laws.
Changes: We have added a new
§ 300.537 on State enforcement
mechanisms to clarify that,
notwithstanding §§ 300.506(b)(7) and
new § 300.510(d)(2) (proposed
§ 300.510(c)(2)), nothing in this part
prevents a State from providing parties
to a written agreement reached as a
result of a mediation or resolution
meeting other mechanisms to enforce
that agreement, provided that such
mechanisms are not mandatory and do
not deny or delay the right of the parties
to seek enforcement of the written
agreement in a State court of competent
jurisdiction or in a district court of the
United States. We have also added a
cross reference to new § 300.537 in new
§ 300.510(d) (proposed § 300.510(c)),
regarding written settlement
agreements.
Agreement Review Period (New
§ 300.510(e)) (Proposed § 300.510(d))
Comment: Many commenters
recommended including language in the
regulations to ensure that parents are
informed orally and in writing that
either party to a resolution agreement
may reconsider and void the resolution
agreement within three business days.
One commenter expressed concern that
some parents lack the education or legal
expertise of school districts, and will
miss this important right unless
informed both orally and in writing. A
few commenters stated that this notice
must be provided to parents in their
native language or primary mode of
communication.
Discussion: Section 300.504(a),
consistent with section 615(d)(1)(A) of
the Act, requires a public agency to
provide parents with a copy of the
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procedural safeguards notice at least one
time in a school year and under the
exceptional circumstances specified in
§ 300.504(a), which includes the first
occurrence of the filing of a due process
complaint in a school year. The
procedural safeguards notice, which
must be written in language
understandable to the general public
and in the native language of the parent,
unless clearly not feasible to do so, must
include a full explanation of the Act’s
procedural safeguards. If the native
language or other mode of
communication of the parent is not a
written language, § 300.503(c)(2)
requires the public agency to take steps
to ensure that the notice is translated
orally or by other means for the parent
in his or her native language or other
mode of communication and that the
parent understands the content of the
notice. Under § 300.504(c)(5)(ii), the
notice must inform parents about the
opportunity to present and resolve a due
process complaint in accordance with
the resolution process required in
§ 300.510 and section 615(f)(1)(B) of the
Act, including a party’s right to void the
resolution agreement within three
business days of execution. We believe
it would be overly burdensome to
require public agencies to provide the
procedural safeguards notice both orally
and in writing to an individual parent,
and, therefore, decline to change the
regulation.
Changes: None.
Comment: Several commenters
recommended that the regulations
clarify whether discussions during the
resolution meeting remain confidential.
Discussion: We decline to regulate on
this matter because the Act is silent
regarding the confidentiality of
resolution discussions. However, there
is nothing in the Act or these
regulations that would prohibit the
parties from entering into a
confidentiality agreement as part of
their resolution agreement. A State
could not, however, require that the
participants in a resolution meeting
keep the discussions confidential or
make a confidentiality agreement a
condition of a parent’s participation in
the resolution meeting.
Changes: None.
Comment: One commenter
recommended that the regulations
require each SEA to develop a model
settlement agreement form with
appropriate release language, a
withdrawal form to be filed with the
hearing officer, and a confidentiality
agreement.
Discussion: The terms of settlement
agreements will necessarily vary based
on numerous factors, including the
nature of the dispute and the specific
resolution agreed to by the parties
involved. Therefore, we do not believe
it is practical or useful to require SEAs
to develop a model settlement
agreement form.
Changes: None.
Comment: A few commenters
recommended that the regulations
define ‘‘days’’ in this section to mean
‘‘business days.’’
Discussion: Under § 300.11(a), day
means calendar day, unless otherwise
indicated as a business day or school
day. All references to day in § 300.510
are calendar days, except for new
§ 300.510(e) (proposed § 300.510(d)),
which specifies that the parties may
void a resolution agreement within
three business days of the agreement’s
execution.
Changes: None.
Impartial Due Process Hearing
(§ 300.511)
Comment: One commenter stated that
section 615(f)(1)(A) of the Act refers to
when a due process complaint is
‘‘received’’ and recommended using this
language in § 300.511(a), which refers to
when a due process complaint is
‘‘filed.’’ The commenter stated that
LEAs are more likely to understand and
relate to when a due process complaint
is ‘‘received’’ versus when a due process
complaint is ‘‘filed.’’
Discussion: We agree with the
commenter and are changing
§ 300.511(a) to be consistent with
section 615(f)(1)(A) of the Act, which
provides that a parent or the LEA must
have the opportunity for an impartial
due process hearing under this part
when a due process complaint is
received under section 615(b)(6) or (k)
of the Act.
Changes: For consistency with
statutory language, we have changed the
first clause in the first sentence of
§ 300.511(a) by removing the words
‘‘filed under § 300.507’’ and adding in
their place the words ‘‘received under
§ 300.507 or § 300.532’’.
Comment: Some commenters
recommended that the regulations
clarify that a party has a right to seek
immediate intervention from a hearing
officer to resolve pre-hearing issues and
disputes. One commenter recommended
that the regulations clarify that hearing
officers are empowered and obligated to
promptly hear and decide all pre-
hearing issues and disputes so that
decisions can be made about whether to
proceed to a hearing, as well as to focus
and streamline the evidentiary hearing
process. The commenter provided the
following examples of pre-hearing
issues that should be resolved prior to
a hearing: the sufficiency of the
complaint; the sufficiency of the
response and notice pursuant to
§ 300.508(e); the sufficiency of the
response pursuant to § 300.508(f);
motions for stay-put; the hearing
schedule; the order of witnesses; the
burden of proof; the burden of going
forward; witness testimony by
telephone or video conference;
production of records; exchange of
evidence; admissibility of evidence; and
issuance and enforcement of subpoenas
and subpoenas duces tecum.
Discussion: Section 615(c)(2)(D) and
(E) of the Act, respectively, address
situations where it is necessary for
hearing officers to make determinations
regarding the sufficiency of a complaint
and amendments to a complaint before
a due process hearing. We do not
believe it is necessary to regulate further
on the other pre-hearing issues and
decisions mentioned by the commenters
because we believe that States should
have considerable latitude in
determining appropriate procedural
rules for due process hearings as long as
they are not inconsistent with the basic
elements of due process hearings and
rights of the parties set out in the Act
and these regulations. The specific
application of those procedures to
particular cases generally should be left
to the discretion of hearing officers who
have the knowledge and ability to
conduct hearings in accordance with
standard legal practice. There is nothing
in the Act or these regulations that
would prohibit a hearing officer from
making determinations on procedural
matters not addressed in the Act so long
as such determinations are made in a
manner that is consistent with a parent’s
or a public agency’s right to a timely
due process hearing.
Changes: None.
Comment: One commenter stated that
the Act does not provide adequate
guidance on the specific set of legal
procedures that must be followed in
conducting a due process hearing and
recommended that the regulations
include guidance regarding the
following: Limiting the use of hearsay
testimony; requiring all testimony to be
subject to cross-examination; the order
of testimony; timelines; and the statute
of limitations. The commenter stated
that while timelines and the statute of
limitations are addressed in the Act,
there are no consequences for failure to
comply.
Discussion: In addition to addressing
timelines, hearing rights, and statutes of
limitations, the Act and these
regulations also address a significant
due process right relating to the
impartiality and qualifications of
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hearing officers. Under Section 615(f)(3)
of the Act and § 300.511(c), a hearing
officer must possess the knowledge and
ability to conduct hearings in
accordance with appropriate, standard
legal practice. Hearing officers consider
failure to comply with timelines and
statutes of limitations on a case-by-case
basis, depending on the specific
circumstances in each case. We believe
that the requirements for hearing
officers are sufficient to ensure that
proper legal procedures are used and
that it is not appropriate to regulate on
every applicable legal procedure that a
hearing officer must follow, because
those are matters of State law.
Changes: None.
Agency Responsible for Conducting the
Due Process Hearing (§ 300.511(b))
Comment: One commenter noted that
§ 300.511(b) refers to the State or a
public agency holding a hearing,
whereas the Act refers to the State or an
LEA holding a hearing. The commenter
requested clarification regarding
whether any agency, other than an LEA,
is permitted to hold a hearing under the
Act.
Discussion: The term ‘‘public agency’’
in these regulations is intended to
address situations where an entity might
satisfy the definition of public agency in
§ 300.33, but would not satisfy the
definition of LEA in § 300.28. As set
forth in § 300.33, a public agency may
be responsible for the education of a
child with a disability. In these
circumstances, the public agency would
hold the due process hearing.
Changes: None.
Impartial Hearing Officer (§ 300.511(c))
Comment: A few commenters
recommended revising
§ 300.511(c)(1)(i)(B) to state that a
hearing officer must not have a personal
or professional conflict of interest.
Discussion: Section 300.511(c)(1)(i)(B)
incorporates the language in section
615(f)(3)(A)(i)(II) of the Act and
provides that a hearing officer must not
be a person having a personal or
professional interest that conflicts with
the person’s objectivity in the hearing.
The meaning of this requirement is clear
and we do not believe it is necessary to
change it to ensure continued
compliance with this longstanding
requirement.
Changes: None.
Comment: One commenter
recommended that the regulations
require the conduct of impartial hearing
officers to be addressed by the State
judicial code of conduct.
Discussion: Under section 615(f)(3) of
the Act and § 300.511(c), a hearing
officer must possess the knowledge and
ability to conduct hearings and to
render and write decisions in
accordance with appropriate, standard
legal practice. We believe that this
provides sufficient guidance. The
application of State judicial code of
conduct standards is a State matter.
Changes: None.
Comment: One commenter noted that
§ 300.511(c)(1)(iii) and (iv) require a
hearing officer to possess the knowledge
and ability to conduct hearings and
render and write decisions in
accordance with appropriate, standard
legal practice, and recommended that
the regulations outline standard legal
practice so that parents without attorney
representation will have this
information.
Discussion: The requirements in
§ 300.511(c)(1)(iii) and (iv) incorporate
the requirements in section
615(f)(3)(A)(iii) and (iv) of the Act.
These requirements are general in
nature and appropriately reflect the fact
that standard legal practice will vary
depending on the State in which the
hearing is held. Accordingly, it would
not be feasible to outline standard legal
practice in these regulations, as
recommended by the commenter.
Changes: None.
Comment: Some commenters
recommended that the regulations
require hearing officers to receive
ongoing, periodic professional
development regarding new regulations
and court decisions so that their
decisions reflect the latest developments
and interpretations. A few commenters
recommended requiring SEAs to
provide training for hearing officers by
trainers who are experienced in
conducting hearings and writing
decisions in accordance with standard
legal practice. A few commenters
recommended that the regulations
require hearing officers to be informed
that they are bound by the decisions of
courts that govern their jurisdiction.
Discussion: It is not necessary to
regulate in the manner recommended by
the commenters because this is a
responsibility of each State. The Act
prescribes minimum qualifications for
hearing officers, which are reflected in
§ 300.511(c). Pursuant to its general
supervisory responsibility, each State
must ensure that individuals selected to
conduct impartial due process hearings
meet the requirements in
§ 300.511(c)(1)(ii) through (iv). States
are in the best position to determine the
required training and the frequency of
the required training, consistent with
State rules and policies.
Changes: None.
Comment: One commenter noted that
the Act does not include the provision
in § 300.511(c)(2), which provides that a
person who otherwise qualifies to
conduct a hearing is not an employee of
the agency solely because he or she is
paid by the agency to serve as a hearing
officer. The commenter, therefore,
recommended removing § 300.511(c)(2).
Discussion: We do not agree that the
provision should be removed. This
provision is longstanding. Although the
Act prohibits an individual who is
employed by a public agency involved
in the education or care of the child to
be a hearing officer, we believe that it
is important to continue to clarify that
a person’s payment for serving as a
hearing officer does not render that
individual a public agency employee
who is excluded from serving as a
hearing officer. In many instances,
public agencies retain hearing officers
under contract. The fact that an
individual is hired by a public agency
solely for the purpose of serving as a
hearing officer does not create an
excluded employee relationship. Public
agencies need to ensure that hearing
officers conduct due process hearings
and it is only reasonable that those
persons are paid for their work as
hearing officers.
Changes: None.
Comment: Some commenters
requested that the regulations require
SEAs to make the list of hearing officers
and their qualifications available to the
public.
Discussion: Public agencies must
maintain a list of persons who serve as
hearing officers and a statement of their
qualifications. However, there is
nothing in the Act that requires a public
agency to make information regarding
the qualifications of hearing officers
available to the public. Parents do not
select the hearing officer to hear their
complaints. Therefore, we do not
believe that it is necessary to require
public agencies to provide information
regarding the qualifications of hearing
officers to the public, and we decline to
regulate in this regard. The commenter’s
recommendation would impose an
additional burden on public agencies
that is not required by the Act.
Changes: None.
Subject Matter of Due Process Hearings
(§ 300.511(d))
Comment: A few commenters
requested that the regulations clarify
that the party requesting the due process
hearing may raise issues that are
included in any amendments to the
complaint. One commenter requested
clarification regarding whether the party
that the complaint is against can raise
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other issues. A few commenters
recommended that the regulations
clarify that hearing officers may raise
and resolve issues concerning
noncompliance even if the party
requesting the hearing does not raise the
issues.
Discussion: Section 300.508(d)(4) and
section 615(c)(2)(E)(ii) of the Act
provide that the applicable timeline for
a hearing shall begin at the time that a
party files an amended complaint, and
makes clear that after the party files an
amended complaint, timelines for the
resolution meeting and the opportunity
to resolve the complaint begin again.
The issues raised in the amended
complaint would be the subjects of the
resolution meeting, and these issues
also would be addressed in a due
process hearing, if the LEA does not
resolve the dispute to the satisfaction of
the parent through the resolution
process.
The Act does not address whether the
non-complaining party may raise other
issues at the hearing that were not
raised in the due process complaint, and
we believe that such matters should be
left to the discretion of hearing officers
in light of the particular facts and
circumstances of a case. The Act also
does not address whether hearing
officers may raise and resolve issues
concerning noncompliance even if the
party requesting the hearing does not
raise the issues. Such decisions are best
left to individual State’s procedures for
conducting due process hearings.
Changes: None.
Comment: One commenter
recommended that the Department
include in the regulations language that
allocates the burden of proof to the
moving party.
Discussion: Although the Act does not
address allocation of the burden of proof
in due process hearings brought under
the Act, the U.S. Supreme Court
recently addressed the issue. In Schaffer
v. Weast, 546 U.S. —, 126 S. Ct. 528
(2005) (Schaffer), the Court first noted
that the term ‘‘burden of proof’’ is
commonly held to encompass both the
burden of persuasion (i.e., which party
loses if the evidence is closely balanced)
and the burden of production (i.e., the
party responsible for going forward at
different points in the proceeding). In
Schaffer, only the burden of persuasion
was at issue. The Court held that the
burden of persuasion in a hearing
challenging the validity of an IEP is
placed on the party on which this
burden usually falls—on the party
seeking relief—whether that is the
parent of the child with a disability or
the school district. Since Supreme Court
precedent is binding legal authority,
further regulation in this area is
unnecessary. In addition, we are not
aware of significant questions regarding
the burden of production that would
require regulation.
Changes: None.
Timeline for Requesting a Hearing
(§ 300.511(e)) and Exceptions to the
Timeline (§ 300.511(f))
Comment: Some commenters stated
that exceptions to the timeline in
§ 300.511(f) should include situations in
which a parent is unable to file a due
process complaint because the parent is
not literate or cannot write in English.
One commenter recommended
considering the parent’s degree of
English fluency and other factors in
determining the parent’s ability to have
knowledge about the alleged action that
is the basis for the due process
complaint.
Discussion: Section 300.511(f),
consistent with section 615(f)(3)(D) of
the Act, provides explicit exceptions to
the statute of limitations for filing a due
process complaint. These exceptions
include situations in which the parent
is prevented from filing a due process
complaint because the LEA withheld
from the parent information that is
required to be provided to parents under
these regulations, such as failing to
provide prior written notice or a
procedural safeguards notice that was
not in the parent’s native language, as
required by §§ 300.503(c) and
300.504(d), respectively. Additionally,
in States using the timeline in
§ 300.511(e) (i.e., ‘‘within two years of
the date the parent or agency knew or
should have known about the alleged
action that forms the basis of the
complaint’’), hearing officers will have
to make determinations, on a case-by-
case basis, of factors affecting whether
the parent ‘‘knew or should have
known’’ about the action that is the
basis of the complaint. Therefore, we
decline to add additional exceptions to
§ 300.511(f).
Changes: None.
Comment: Some commenters
requested that the regulations clarify
whether the statute of limitations in
section 615(b)(6)(B) of the Act is the
same statute of limitations in section
615(f)(3)(C) of the Act. The commenters
stated that the Act and regulations are
confusing because the statute of
limitations is mentioned twice and
implies that the timeline for filing a
complaint and filing a request for a due
process hearing are different.
Discussion: The statute of limitations
in section 615(b)(6)(B) of the Act is the
same as the statute of limitations in
section 615(f)(3)(C) of the Act. Because
we are following the structure of the
Act, we have included this language in
§§ 300.507(a)(2) and 300.511(e).
Changes: None.
Comment: Some commenters
recommended that the regulations
clarify that ‘‘misrepresentations’’ by an
LEA in § 300.511(f)(1) include
misleading, as well as false, statements.
The commenters stated that misleading
statements create the same obstacle for
parents as false statements in terms of
when parents know about an alleged
violation. One commenter
recommended that
‘‘misrepresentations’’ include both
intentional and unintentional
misrepresentations.
Discussion: We do not believe it is
appropriate to define or clarify the
meaning of ‘‘misrepresentations,’’ as
requested by the commenters. Such
matters are within the purview of the
hearing officer. If the complaining party
believes that the timeline in § 300.511(e)
should not apply, the complaining party
would need to ask the hearing officer to
determine whether an untimely due
process complaint can proceed to
hearing based on misrepresentations by
an LEA. The hearing officer would then
determine whether the party’s allegation
constitutes an exception to the
applicable timeline.
Changes: None.
Additional Disclosure of Information
(§ 300.512(b))
Comment: One commenter
recommended that the regulations
permit parties to mutually consent to
waive the five-day timeline and
exchange documents closer to the
hearing date.
Discussion: There is nothing in the
Act or these regulations that would
prevent the parties from agreeing to
disclose relevant information to all
other parties less than five business
days prior to a due process hearing.
Changes: None.
Hearing Decisions (§ 300.513)
Decision of Hearing Officer
(§ 300.513(a))
Comment: Some commenters
requested that the regulations clarify
that LRE is a substantive, not a
procedural, issue and that a hearing
officer can base relief on the failure of
an LEA to provide FAPE in the LRE to
the maximum extent possible. A few
commenters recommended that the
regulations allow a hearing officer to
dismiss a complaint or to rule on
summary judgment if there is no claim
or controversy to be adjudicated. The
commenters stated that hearing officers
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should be allowed to dismiss cases
when the alleged violation does not
focus on a substantive issue.
Discussion: Section 300.513(a)(1) and
section 615(f)(3)(E) of the Act provide
that, in general, a decision made by a
hearing officer must be made on
substantive grounds based on a
determination of whether the child
received FAPE. Furthermore,
§ 300.513(a)(3), consistent with section
615(f)(3)(E)(iii) of the Act, allows a
hearing officer to order an LEA to
comply with procedural requirements
under §§ 300.500 through 300.536.
Although the Act and these
regulations require that hearing officers
base determinations of whether a child
received FAPE on substantive grounds,
hearing officers also may find that a
child did not receive FAPE based on the
specific procedural inadequacies set out
in § 300.513(a)(2), consistent with
section 615(f)(3)(E)(ii) of the Act.
Hearing officers continue to have the
discretion to dismiss complaints and to
make rulings on matters in addition to
those concerning the provision of FAPE,
such as the other matters mentioned in
§ 300.507(a)(1). To clarify this point, we
are revising the heading of § 300.513(a)
to refer to decisions of hearing officers
about FAPE, and are revising
§ 300.513(a)(1). The requirements in
§§ 300.507 through 300.508 governing
the content of the due process
complaint, including requirements for
sufficiency and complaint amendment,
and requirements governing the
resolution process in § 300.510 should
help to ensure that due process
complaints that are the subject of a due
process hearing under this part contain
claims that are appropriate for a hearing
officer’s decision.
Changes: We have reworded
§ 300.513(a)(1) and revised the heading
of § 300.513(a) to refer to decisions
regarding FAPE.
Construction Clause (§ 300.513(b))
Comment: Some commenters
recommended that the construction
clause in § 300.513(b) include that
nothing in §§ 300.507 through 300.513
shall be construed to affect the right of
a parent to file a complaint with the
SEA under §§ 300.151 through 300.153
for a procedural violation that does not
meet the requirements in
§ 300.513(a)(2).
Discussion: We decline to make the
change requested because we think that
these matters are already addressed in
the regulations. Section 300.507(a)
describes the matters on which a party
can request a due process hearing.
Section 300.151(a) provides that an
organization or individual may file a
signed written complaint alleging that a
public agency has violated a
requirement of Part B of the Act, which
would include procedural violations
that would not meet the standard in
§ 300.507(a)(1).
Changes: None.
Finality of Hearing Decision; Appeal;
Impartial Review (§ 300.514)
Comment: One commenter
recommended clarifying that
§ 300.514(b) applies only to States with
a two-tier due process system.
Discussion: We believe that
§ 300.514(b)(1) is clear that a State-level
appeal of a due process decision is
available only in States that have a two-
tiered due process system. This is a
longstanding provision, which is
consistent with section 615(g) of the
Act. We do not believe further
clarification in the text of the
regulations is necessary.
Changes: None.
Timelines and Convenience of Hearings
and Reviews (§ 300.515)
Comment: One commenter
recommended that the regulations
clarify when the various timelines for
resolution meetings and due process
hearings start and stop. One commenter
disagreed with § 300.515(a), stating that
the 45-day timeline should begin when
the public agency receives a request for
a due process hearing.
Discussion: We agree that clarification
is needed regarding the various
timelines for resolution meetings and
due process hearings. As stated earlier
in the Analysis of Comments and
Changes in § 300.510, we have added a
new paragraph (c) in § 300.510 to
specify adjustments to the 30-day
resolution period and when the 45-day
timeline for due process hearings begins
for these exceptions. In order to be
consistent with this change, we are
changing the introductory language in
§ 300.515(a).
Changes: We have changed the
introductory language in § 300.515(a) to
reference the adjustments to the 30-day
timeline in new § 300.510(c).
Comment: A few commenters
recommended that the hearings and
reviews be conducted at a time and
place that are ‘‘mutually convenient’’ to
the parent and child involved, rather
than ‘‘reasonably convenient,’’ as
required in § 300.515(d). Another
commenter recommended that the
hearings and reviews be conducted at a
time and place that is reasonably
convenient to ‘‘all parties involved.’’
Discussion: The Department believes
that every effort should be made to
schedule hearings at times and locations
that are convenient for the parties
involved. However, given the multiple
individuals that may be involved in a
hearing, it is likely that hearings would
be delayed for long periods of time if the
times and locations must be ‘‘mutually
convenient’’ for all parties involved.
Therefore, we decline to change this
regulation.
Changes: None.
Civil Action (§ 300.516)
Comment: Several commenters
recommended that the regulations
clarify that the 90-day timeline for a
party aggrieved by the findings and
decision of a due process hearing to file
a civil action begins either from the date
of a hearing officer’s decision or from
the date of a State review officer’s
decision, if the State has a two-tiered
due process system. One commenter
stated that many cases would be
inappropriately dismissed if this
regulation is not clarified.
Discussion: We agree with the
commenters and are clarifying that the
party bringing the action has 90 days
from the date of the decision of the
hearing officer or the decision of the
State review official to file a civil action,
or, if the State has an explicit time
limitation for bringing civil actions
under Part B of the Act, in the time
allowed by that State law. This change
is needed to ensure that the applicable
time limitation does not penalize parties
in States with two-tier due process
systems that require a party aggrieved
by the due process hearing officer’s
decision to file a State-level appeal prior
to bringing a civil action in State or
Federal court.
Changes: We have added ‘‘or, if
applicable, the decision of the State
review official,’’ in § 300.516(b) to
clarify the timeline for bringing a civil
action in States that have a two-tiered
due process system.
Comment: Some commenters
recommended that the regulations
clarify that the State time limit for
bringing a civil action under Part B of
the Act can only be used if it is longer
than 90 days. One commenter
recommended that the regulations
clarify whether State law may establish
a time limit of less than the 90 days for
filing a civil action.
Discussion: Section 300.516(b) and
section 615(i)(2)(B) of the Act provide
that the party bringing the action shall
have 90 days from the date of the
decision of the hearing officer or the
decision of the State review official to
file a civil action or, if the State has an
explicit time limitation for bringing civil
actions under Part B of the Act, in the
time allowed by that State law. There is
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no requirement that would limit the
State’s authority to set a time limit
longer than or shorter than 90 days and
we believe that the regulations are clear
that a State may set a longer or shorter
time limit under State law.
Changes: None.
Comment: One commenter
recommended that the regulations
require an LEA, at the conclusion of a
due process hearing, to provide a parent
who is not represented by counsel, a
written notice regarding the time limit
for filing a civil action.
Discussion: Parents involved in a due
process hearing would already have
received information about the
availability of a civil action and the
timeline for filing a civil action when
they received the procedural safeguards
notice, in accordance with § 300.504.
We decline to require an additional
notice at the conclusion of a due process
hearing, because this would impose an
additional paperwork burden on public
agencies.
Changes: None.
Attorneys’ Fees (§ 300.517)
Comment: We received a number of
comments seeking clarification of, or
modifications to, the statutory language
governing the award of attorneys’ fees.
Some commenters recommended that
the regulations require the SEA or LEA
to affirmatively prove that the parent’s
intent was improper in order to be
awarded attorneys’ fees under this
provision. A few commenters
recommended modifying the regulations
to expressly require a determination by
a court that the complaint or cause of
action was frivolous, unreasonable, or
without foundation, before an award of
attorneys’ fees can be considered.
One commenter requested that the
regulations clarify that section
615(i)(3)(B)(i) of the Act seeks to codify
the standards set forth in Christiansburg
Garment Co. v. EEOC, 434 U.S. 412
(1978), and that the principles set forth
in this action (that attorneys’ fees may
only be awarded to defendants in
actions where the plaintiffs’ claims are
frivolous, without foundation, or
brought in bad faith) should apply in
favor of school districts and parents,
since either party can bring complaints.
One commenter recommended that
§ 300.517(a)(1)(ii) and (iii) be revised to
refer to an attorney of a parent or a
parent because there are many parents
who are attorneys representing their
children in due process hearings.
Another commenter recommended
including language that the parent must
be the prevailing party on substantive
grounds in order to claim an award of
attorneys’ fees.
Discussion: Section 300.517(a)
incorporates the language in section
615(i)(3)(B) of the Act. Further guidance
on the interpretation of this statutory
language is not appropriate since
judicial interpretations of statutory
provisions will necessarily vary based
upon case-by-case factual
determinations, consistent with the
requirement that the award of
reasonable attorneys’ fees is left to a
court’s discretion.
With regard to the recommendation
that we include language that the parent
must be the prevailing party on
substantive grounds, we decline to
regulate because we believe that the
statutory provisions regarding attorneys’
fees are appropriately described in
§ 300.517. Furthermore, section
615(f)(3)(E) of the Act, reflected in
§ 300.513, recognizes both that hearing
officer determinations that a child did
not receive FAPE, in some
circumstances, may be based on
procedural violations, and that hearing
officers may order LEAs to comply with
procedural requirements. Either of these
circumstances, in appropriate cases,
might result in a parent being
determined to be a prevailing party for
purposes of claiming attorneys’ fees.
We decline to add language to
§ 300.517(a)(1)(ii) to refer to a parent
who is an attorney, because the
reference to ‘‘an attorney of a parent’’
would include anyone serving as an
attorney.
Changes: None.
Comment: One commenter
recommended that § 300.517(a)(1)(iii),
regarding attorneys’ fees, be changed to
include non-attorney advocates who are
acting on behalf of parents and provide
that these individuals be held to the
same standard as attorneys. Another
commenter expressed concern regarding
circuit court rulings that require SEAs to
pay for expert witnesses for parents who
cannot afford them. The commenter
recommended that the regulations
permit SEAs to establish a list of private
experts who are willing to testify at due
process hearings and to use funds
provided under Part B of the Act to pay
such experts when either party uses
them.
Discussion: Section 615(i)(3)(B) of the
Act allows a court to award reasonable
attorneys’ fees as a part of the costs to
a parent who is the prevailing party.
Although the Act also provides parents
with the right to be accompanied and
advised by individuals with special
knowledge or training with respect to
the problems of children with
disabilities at a due process hearing, it
does not provide for awarding attorneys’
fees to these other individuals. Lay
advocates are, by definition, not
attorneys and are not entitled to
compensation as if they were attorneys.
In addition, consistent with the
Supreme Court’s recent decision in
Arlington Central Sch. Dist. Bd. of Educ.
v. Murphy, No. 05–18, U.S., 2006 U.S.
LEXIS 5162 (June 26, 2006), if Congress
wishes to allow recovery of experts’ fees
by prevailing parents, it must include
explicit language authorizing that
recovery, which was not done in the
Act. This would apply whether the
expert was seeking payment for
testifying or advocating.
Changes: None.
Comment: One commenter stated that
attorneys’ fees should be available for
resolution meetings because parents are
required to attend these meetings before
a due process hearing can begin.
Another commenter recommended that
the regulations clarify that the
prohibition on attorneys’ fees for
resolution activities applies to the
resolution meeting, as well as any
resolution agreement. One commenter
requested that the regulations clarify
that attorneys’ fees for resolution
meetings will not be paid until a
compromise is reached, and will be
based on the resolution meeting itself
and not the work that the attorney puts
into preparing for the resolution
meeting.
Discussion: Section 300.517(c)(2)(iii)
of the regulations, consistent with
section 615(i)(3)(D)(iii) of the Act,
specifies that the resolution meeting is
not considered to be a meeting
convened as a result of an
administrative hearing or judicial action
or an administrative hearing or judicial
action for purposes of the attorneys’ fees
provision. Accordingly, such fees may
not be awarded for resolution meetings.
While it is clear that attorneys’ fees
may not be awarded for resolution
meetings, the Act is silent as to whether
attorneys’ fees are available for activities
that occur outside the resolution
meeting conducted pursuant to section
615(f)(1)(B)(i) of the Act and
§ 300.510(a). We decline to regulate on
this issue because we believe these
determinations will be fact-specific and
should be left to the discretion of the
court.
Changes: None.
Comment: A few commenters asked
whether attorneys’ fees can be awarded
for attending an IEP Team meeting that
is convened as a result of a mediation
session conducted prior to the filing of
a due process complaint or for attending
an IEP Team meeting that is convened
as a result of a mediation session
conducted at any time.
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Discussion: Section 615(i)(3)(D)(ii) of
the Act permits States to determine
whether attorneys’ fees may be awarded
for an IEP Team meeting that results
from a mediation session described in
§ 300.506. Section 300.517(c)(2)(ii), as
proposed, inadvertently, limited States
to considering awarding attorneys’ fees
for an IEP Team meeting conducted as
the result of a mediation arising prior to
the filing of a due process request. This
was an error and has been corrected to
allow States the discretion to award
attorneys’ fees for a meeting of the IEP
Team conducted as a result of any
mediation described in § 300.506.
Changes: In order to be consistent
with section 615(i)(3)(D)(ii) of the Act,
we have revised § 300.517(c)(2)(ii) by
placing a period after the reference to
§ 300.506 and removing the rest of the
sentence.
Comment: One commenter
recommended that attorneys’ fees
should also apply to due process
complaints brought by private schools
or agencies, not just families.
Discussion: Section 300.507(a)(1)
permits a parent or a public agency to
file a due process complaint under the
Act. Private schools or agencies are not
permitted to file a due process
complaint under the Act. Under section
615(f)(1)(A) of the Act, only the parents
and public agency are authorized to
request a due process hearing.
Changes: None.
Comment: One commenter requested
that the regulations clarify in
§ 300.517(c)(3) what standard will be
used to determine whether a parent was
substantially justified in rejecting a
settlement offer.
Discussion: It would be inappropriate
to include a standard for determining
whether a parent is substantially
justified in rejecting a settlement offer
because such matters will depend on
the specific facts and circumstances in
each case. The hearing officer, as the
designated trier of fact under the Act, is
in the best position to determine
whether a parent was substantially
justified in rejecting a settlement offer.
We would expect that a hearing officer’s
decision will be governed by commonly
applied State evidentiary standards,
such as whether the testimony is
relevant, reliable, and based on
sufficient facts and data.
Changes: None.
Child’s Status During Proceedings
(§ 300.518)
Comment: A few commenters
requested clarification regarding
whether the current educational
placement is the last agreed-upon
placement. One commenter requested
clarification as to whether the pendent
placement is the regular education class
or a class or program selected by the
child’s IEP Team.
Discussion: We believe that there is
no need for further regulations in this
area. The current educational placement
during the pendency of any
administrative or judicial proceeding
described in § 300.518 and section
615(j) of the Act, refers to the setting in
which the IEP is currently being
implemented. The child’s current
placement is generally not considered to
be location-specific.
Changes: None.
Comment: One commenter
recommended clarifying that an IFSP is
not a child’s pendent placement as the
child transitions from a Part C early
intervention program to a Part B
preschool program.
Discussion: The programs under Parts
B and C of the Act differ in their scope,
eligibility, and the services available.
Services under Part B of the Act are
generally provided in a school setting.
By contrast, services under Part C of the
Act are provided, to the maximum
extent appropriate, in the natural
environment, which is often the infant
or toddler’s home or other community
program designed for typically
developing infants or toddlers. The
Department has long interpreted the
current educational placement language
in the stay-put provisions in section
615(j) of the Act and § 300.518(a) as
referring only to the child’s placement
under Part B of the Act and not to the
early intervention services received by
the child under Part C of the Act. We
believe that a child who previously
received services under Part C of the
Act, but has turned three and is no
longer eligible under Part C of the Act,
and is applying for initial services under
Part B of the Act, does not have a
‘‘current educational placement.’’
We are adding language to clarify that
if the complaint involves an application
for initial services under Part B of the
Act from a child who has turned three
and is no longer eligible under Part C of
the Act, the public agency is not
required to continue providing the early
intervention services on the child’s
IFSP. The provision clarifies that a
public agency must obtain parental
consent prior to the initial provision of
special education and related services,
consistent with § 300.300(b), and if a
child is eligible under Part B of the Act
and the parent provides consent under
§ 300.300(b), the public agency must
provide those special education and
related services that are not in dispute
between the parent and the public
agency.
Changes: We have added a new
paragraph (c) in § 300.518 to clarify the
Department’s longstanding policy that if
a complaint involves an application for
initial services under Part B of the Act
from a child who has turned three and
is no longer eligible under Part C of the
Act, the public agency is not required to
continue providing the early
intervention services on the child’s
IFSP. Proposed § 300.518(c) has been
redesignated as new § 300.518(d).
Comment: One commenter
recommended revising § 300.518 to
clearly state that during the pendency of
any administrative or judicial
proceeding, LEAs are not absolved of
their obligation to fully comply with all
substantive and procedural
requirements in Part B of the Act, with
the exception of requirements that are
impossible to fulfill because of the stay
put order or because of a parent’s
refusal.
Discussion: We do not agree that the
change requested by the commenter is
necessary. Section 615(j) of the Act and
§ 300.518 provide that during the
pendency of any administrative or
judicial proceeding regarding a due
process complaint under § 300.507,
except as provided in § 300.533, unless
the parent and the SEA or LEA agree to
a proposed change in the educational
placement of the child, the child
remains in the current educational
placement. Implicit in maintaining a
child’s current educational placement is
the requirement that the public agency
must ensure that FAPE continues to be
made available to the child.
Changes: None.
Comment: A few commenters
recommended that stay put not apply to
a child if the child’s parent fails to
participate in a resolution meeting.
Another commenter expressed concern
about the applicability of the stay put
provision when resolution meetings are
delayed.
Discussion: The Act now makes the
resolution process a prerequisite to an
impartial due process hearing. Under
section 615(j) of the Act, a child must
be maintained in the current
educational placement while
proceedings under the Act are pending,
and paragraph (a) of § 300.518 clarifies
that unless the parent and the public
agency agree otherwise, the child
involved in the complaint must remain
in his or her current educational
placement during the pendency of any
administrative or judicial proceeding
regarding a due process complaint
under § 300.507. Thus, the Act is clear
that the public agency must maintain
the child’s current educational
placement during the pendency of the
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30-day resolution process, which is
triggered once the parent files a due
process complaint under this part,
regardless of whether the due process
complaint is resolved prior to a due
process hearing. We believe it is
important for this to be clear in the
procedural safeguards notice. Therefore,
we are changing § 300.504(c)(7) to
clarify that the notice must inform
parents about the child’s placement
during the pendency of any due process
complaint.
Since a party must file a due process
complaint as the first step in the hearing
process, we also are making a change in
§ 300.518(a) to refer to a due process
complaint, rather than a request for a
due process hearing. This change is
needed to clarify that a child’s right to
remain in the current educational
placement attaches when a due process
complaint is filed, regardless of whether
the due process complaint results in a
request for a due process hearing.
Changes: We have removed the
reference in § 300.504(c)(7) to due
process ‘‘hearings’’ and added ‘‘any due
process complaint’’ to clarify that the
procedural safeguards notice must
include information regarding the
child’s placement during the pendency
of any due process complaint. We also
have changed § 300.518 by removing the
words ‘‘request for a due process
hearing’’ prior to the reference to
§ 300.507 and adding, in their place, the
words ‘‘due process complaint.’’
Comment: One commenter
recommended including language to
invalidate the stay put agreement if the
original decision is reversed at the
second tier hearing or in a judicial
appeal. One commenter recommended
providing interim financial relief for
parents if an LEA appeals the decision
of a due process hearing officer to
maintain a child with a disability in a
private school setting.
Discussion: We are maintaining the
provisions in proposed § 300.518(c),
(new § 300.518(d)), but with one
modification. The basis for this
regulation is the longstanding judicial
interpretation of the Act’s pendency
provision that when a hearing officer’s
decision is in agreement with the parent
that a change in placement is
appropriate, that decision constitutes an
agreement by the State agency and the
parent for purposes of determining the
child’s current placement during
subsequent appeals. See, e.g., Burlington
School Committee v. Dept. of Educ., 471
U.S. 359, 372 (1985); Susquenita School
District v. Raelee S., 96 F.3d 78, 84 (3rd
Cir. 1996); Clovis Unified Sch. Dist. v.
Cal. Office of Administrative Hearings,
903 F.2d 635, 641 (9th Cir. 1990). To
clarify that new § 300.518(d) (proposed
§ 300.518(c)) does not apply to a first-
tier due process hearing decision in a
State that has two tiers of administrative
review, but only to a State-level hearing
officer’s decision in a one-tier system or
State review official’s decision in a two-
tier system that is in favor of a parent’s
proposed placement, we are removing
the reference to ‘‘local agency’’ in new
§ 300.518(d). This change is made to
align the regulation more closely with
case law.
With regard to the concern about
providing financial relief for prevailing
parents when an LEA appeals the
decision of a due process hearing to
maintain a child with a disability in a
private school setting, we decline to
regulate on this issue because such
decisions are matters best left to State
law, hearing officers, and courts.
Changes: We have removed ‘‘or local
agency’’ in new § 300.518(d) (proposed
§ 300.518(c)) because a decision by a
hearing officer or a State review official
in favor of a parent’s proposed
placement is an agreement between the
parent and the State, not the local
agency.
Comment: One commenter
recommended clarifying that any
agreement by a parent to waive the stay
put protection must comply with the
requirements for consent in § 300.9.
Discussion: Consent is required when
a pending complaint involves an
application for initial admission to
public school. In this case, parental
consent is required for the child to be
placed in the public school until the
completion of all proceedings,
consistent with § 300.518(b) and section
615(j) of the Act. Other waivers of the
stay put protections while an
administrative or judicial proceeding is
pending, need only be by agreement
between the parent and the public
agency.
Changes: None.
Surrogate Parents (§ 300.519)
Comment: A few commenters asked
whether a student in the penal system
has a right to a surrogate parent.
Discussion: Students with disabilities
in State correctional facilities do not
have an automatic right to a surrogate
parent solely by reason of their
confinement at a correctional facility.
Public agencies must make case-by-case
determinations in accordance with the
requirements in § 300.519, regarding
whether a student with a disability in a
State correctional facility needs a
surrogate parent. Whether a student
with a disability confined in a State
correctional facility is considered a
ward of the State, as defined in new
§ 300.45 (proposed § 300.44) whose
rights must be protected through the
appointment of a surrogate parent, is a
matter that must be determined under
State law.
Changes: None.
Comment: One commenter
recommended defining the term
‘‘locate’’ as used in § 300.519.
Discussion: ‘‘Locate,’’ as used in
§ 300.519(a)(2), regarding a public
agency’s efforts to locate a child’s
parent, means that a public agency
makes reasonable efforts to discover the
whereabouts of a parent, as defined in
§ 300.30, before assigning a surrogate
parent. We do not believe that it is
necessary to define ‘‘locate’’ in these
regulations because it has the same
meaning as the common meaning of the
term.
Changes: None.
Duties of Public Agency (§ 300.519(b))
Comment: A number of comments
were received regarding the procedures
for assigning surrogate parents. One
commenter recommended requiring
LEAs to appoint a surrogate parent
unless the juvenile court has already
appointed one. The commenter stated
that this would avoid situations in
which the LEA and juvenile court each
believe that the other is assuming this
responsibility and a surrogate parent is
never appointed.
A few commenters recommended that
the process for assigning surrogate
parents within the 30-day timeframe be
developed in collaboration with judges
and other child advocates. Some
commenters recommended that the
regulations require the involvement of
child welfare agencies, homeless
liaisons, and any other party who has
knowledge about the needs of homeless
children or children in foster care in
determining whether a surrogate parent
is needed.
Discussion: It is not necessary to
amend the regulations in the manner
recommended by the commenters. To
ensure that the rights of children with
disabilities are protected, § 300.519(b)
requires public agencies to have a
method for determining whether a child
needs a surrogate parent and for
assigning a surrogate parent to a child.
Such methods would include
determining whether a court has already
appointed a surrogate parent, as
provided under § 300.519(c). Therefore,
it is unnecessary to add language
requiring LEAs to appoint a surrogate
parent unless the juvenile court has
already appointed one, as requested by
a commenter. Section 300.519(d)(1)
allows a public agency to select a
surrogate parent in any way permitted
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under State law, and § 300.519(h)
requires the SEA to make reasonable
efforts to ensure the assignment of a
surrogate parent not more than 30 days
after a public agency determines that the
child needs a surrogate parent.
We believe that the determination of
whether public agencies collaborate
with other parties, such as child welfare
agencies or homeless liaisons, in
appointing surrogate parents is best left
to State discretion. There is nothing in
the Act that would prohibit a public
agency from collaborating with judges
and child advocates in establishing a
process for assigning surrogate parents,
as recommended by the commenter.
However, in situations where a public
agency involves other parties in
determining whether a surrogate parent
is needed, the public agency must
ensure that the confidentiality of
personally identifiable data,
information, and records collected or
maintained by SEAs and LEAs is
protected in accordance with §§ 300.610
through 300.627, and that the privacy of
education records is protected under
FERPA and its implementing
regulations in 34 CFR part 99.
Changes: None.
Comment: One commenter
recommended retaining current
§ 300.370(b)(2), which specifically
mentions the recruitment and training
of surrogate parents as a State-level
activity for which funds provided under
Part B of the Act may be used. One
commenter requested clarification as to
who should provide training for
surrogate parents. A few commenters
recommended that PTIs in each State be
responsible for training surrogate
parents.
Discussion: It is not necessary to
retain current § 300.370(b)(2) in order to
permit the continued use of funds
provided under Part B of the Act for the
recruitment and training of surrogate
parents. Section 300.704(b) and section
611(e)(2)(C)(i) of the Act provide that
funds reserved for other State-level
activities may be used for support and
direct services, including technical
assistance, personnel preparation, and
professional development and training.
This would include the recruitment and
training of surrogate parents.
Determinations regarding who should
conduct the training for surrogate
parents are best left to the discretion of
State and local officials. There is
nothing in the Act or these regulations
that requires or prohibits surrogate
parent training to be conducted by PTIs.
Changes: None.
Comment: A few commenters
recommended that a child have the
same surrogate parent for each IEP Team
meeting, eligibility meeting, and other
meetings in which a parent’s presence is
requested by the public agency.
Discussion: The Act and these
regulations do not address the length of
time that a surrogate parent must serve.
Nor do we believe that it would be
appropriate to impose a uniform rule in
light of the wide variety of
circumstances that might arise related to
a child’s need for a surrogate parent.
Even so, to minimize disruption for the
child, public agencies should take steps
to ensure that the individual appointed
as a surrogate parent can serve in that
capacity over the period of time that the
child needs a surrogate.
Changes: None.
Wards of the State (§ 300.519(c))
Comment: Many commenters stated
that the requirements for a surrogate
parent for public wards of the State
(when a judge overseeing a case
appoints a surrogate parent) are less
stringent than the requirements for
surrogate parents for other children. The
commenters stated that the
requirements that surrogate parents
have no personal or professional interest
that conflicts with the interest of the
child, and have knowledge and skills
that ensure adequate representation of
the child, as required in
§ 300.519(d)(2)(ii) and (iii), respectively,
should be required for surrogate parents
for children who are wards of the State.
One commenter recommended that
court-appointed surrogate parents
should have to meet Federal
requirements for surrogate parents, not
the requirements promulgated by LEAs.
The commenter stated that courts may
have jurisdiction over cases from more
than one school district and should not
have to apply different standards
depending on which school district is
involved.
Discussion: The criteria for selecting
surrogate parents in § 300.519(d)(2)(ii)
and (iii), which apply to surrogate
parents appointed by a public agency
for children with disabilities under Part
B of the Act, do not apply to the
selection of surrogate parents for
children who are wards of the State
under the laws of the State. Section
615(b)(2)(A)(i) of the Act provides that,
in the case of a child who is a ward of
the State, a surrogate parent may
alternatively be appointed by the judge
overseeing the child’s care, provided
that the surrogate parent is not an
employee of the SEA, the LEA, or any
other agency that is involved in the
education or care of the child. We
decline to impose additional
requirements for surrogate parents for
children who are wards of the State
beyond what is required in the Act, so
as to interfere as little as possible with
State practice in appointing individuals
to act for the child. However, we would
expect that in most situations, the court-
appointed individuals will not have
personal or professional interests that
conflict with the interests of the child
and will have the knowledge and skills
to adequately represent the interests of
the child.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify that if a parent under § 300.30 is
known and the child is a ward of the
State, the public agency must appoint a
surrogate parent only if the public
agency determines that a surrogate
parent is needed to protect the
educational interests of the child. The
commenter stated that the public agency
should not appoint a surrogate parent
without approval of a court of
competent jurisdiction if the parent is
the biological or adoptive parent whose
rights to make educational decisions for
the child have not been terminated,
suspended, or limited.
Discussion: The commenters’ concern
is already addressed in the regulations.
Section 300.30(b)(1) provides that when
there is more than one party attempting
to act as a parent, the biological or
adoptive parent must be presumed to be
the parent, unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child.
Changes: None.
Comment: Some commenters noted
that the regulations do not protect a
child who is a ward of the tribe in the
same manner as a child who is a ward
of the State. The commenters stated that
this means that American Indian
children have less protection than
children of other ethnicities and
recommended that the regulations
clarify that wards of the State include
children who are wards of a tribe of
competent jurisdiction.
Discussion: The definition of State in
new § 300.40 (proposed § 300.39) is
based on section 602(31) of the Act,
which does not include an Indian tribe
or tribal governing body. Therefore, the
Department does not have the authority
to interpret ward of the State to include
children who are wards of a tribe of
competent jurisdiction. However this
does not relieve States or the BIA of
their responsibility to ensure that the
rights of a child who is a ward of a tribe
are protected through the appointment
of a surrogate parent under § 300.519
when no parent can be identified; when
the agency cannot, after reasonable
efforts, locate a parent; or when the
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child is an unaccompanied homeless
youth.
Changes: None.
Criteria for Selection of Surrogates
(§ 300.519(d))
Comment: Many commenters
recommended that the regulations
require public agencies to develop
procedures to terminate the
appointment of a surrogate parent if the
person does not perform the duties of a
surrogate parent. The commenters stated
that such procedures should be
developed in collaboration with the
child welfare agency, as well as any
other party knowledgeable about a
child’s need for surrogate assignments,
including homeless liaisons, court-
appointed special advocates, guardians
ad litem, attorneys, or judges.
Discussion: If a public agency learns
that an individual appointed as a
surrogate parent is not carrying out the
responsibilities of a surrogate parent in
§ 300.519(g), the public agency,
consistent with its obligation to protect
the rights of children with disabilities
under the circumstances set out in
§ 300.519(a), would need to take steps to
terminate the appointment of a
surrogate parent. It is up to each State
to determine whether procedures to
terminate surrogate parents are needed
and whether to collaborate with other
agencies as part of any procedures they
may choose to develop.
Changes: None.
Comment: A few commenters stated
that the regulations should specify that
an LEA cannot replace a surrogate
parent simply because the surrogate
parent disagrees with an LEA.
Discussion: As noted in the response
to the prior comment, public agencies
have a responsibility to ensure that a
surrogate parent is carrying out their
responsibilities, so there are some
circumstances when removal may be
appropriate. A mere disagreement with
the decisions of a surrogate parent about
appropriate services or placements for
the child, however, generally would not
be sufficient to give rise to a removal,
as the role of the surrogate parent is to
represent the interests of the child,
which may not be the same as the
interests of the public agency. We do
not think a regulation is necessary,
however, as we believe that the rights of
the child with a disability are
adequately protected under Section 504
of the Rehabilitation Act (Section 504)
and Title II of the Americans with
Disabilities Act (Title II), which prohibit
retaliation or coercion against any
individual who exercises their rights
under Federal law for the purpose of
assisting children with disabilities by
protecting rights protected under those
statutes. See, 34 CFR 104.61, referencing
34 CFR 100.7(e); 28 CFR 35.134. These
statutes generally prohibit
discrimination against individuals on
the basis of disability by recipients of
Federal financial assistance (Section
504) and prohibit discrimination against
individuals on the basis of disability by
State and local governments (Title II).
Changes: None.
Non-Employee Requirement;
Compensation (§ 300.519(e))
Comment: A few commenters
recommended that the regulations state
that a foster parent is not prohibited
from serving as a surrogate parent for a
child solely because the foster parent is
an employee of the SEA, LEA, or other
agency that is involved in the education
or care of the child.
Discussion: A child with a foster
parent who is considered a parent, as
defined in § 300.30(a), does not need a
surrogate parent unless State law,
regulations, or contractual obligations
with a State or local entity prohibit a
foster parent from acting as a parent,
consistent with § 300.30(a)(2).
Therefore, there is no need to change
the regulations in the manner suggested
by the commenters.
Changes: None.
Unaccompanied Homeless Youth
(§ 300.519(f))
Comment: A few commenters
requested clarification on how long the
appointment should be for a temporary
surrogate for an unaccompanied
homeless youth. A few commenters also
requested clarification on how the
conflict of interest, and knowledge and
skills requirements for surrogate parents
apply to temporary surrogate parents for
unaccompanied homeless youth.
Discussion: Section 300.519(f) allows
LEAs to appoint a temporary surrogate
parent for a child who is an
unaccompanied homeless youth,
without regard to the requirement in
§ 300.519(d)(2)(i) that a surrogate parent
not be an employee of any agency
involved in the education or care of the
child. Thus, a temporary surrogate
parent for an unaccompanied homeless
youth may include State, LEA, or
agency staff that is involved in the
education or care of the child.
The Act does not specify how long a
temporary surrogate parent can
represent the child. Nor do we believe
it is necessary or appropriate to specify
a time limit for a temporary surrogate
parent, as the need for a temporary
surrogate parent will vary depending on
the specific circumstances and unique
problems faced by each unaccompanied
homeless youth.
Section 300.519(f) specifically allows
the appointment of a temporary
surrogate parent without regard to the
non-employee requirements in
§ 300.519(d)(2)(i). There are no similar
exceptions for the requirements in
§ 300.519(d)(2)(ii) and (iii). Therefore,
temporary surrogate parents for
unaccompanied homeless youth must
not have a personal or professional
interest that conflicts with the interest
of the child the surrogate parent
represents, and must have the
knowledge and skills that ensure
adequate representation of the child,
consistent with § 300.519(d)(2)(ii) and
(iii), respectively.
Changes: None.
Surrogate Parent Responsibilities
(§ 300.519(g))
Comment: A few commenters
requested a definition of ‘‘surrogate
parent.’’ Some commenters stated that
§ 300.519(g) provides only general
parameters regarding the
responsibilities of surrogate parents and
does not provide guidance on specific
duties or responsibilities of surrogate
parents. The commenters stated that, at
a minimum, the regulations should
require that States develop duties and
responsibilities for surrogate parents,
such as meeting with the child,
participating in meetings, and reviewing
the child’s education record.
Discussion: We do not believe that it
is necessary to define ‘‘surrogate parent’’
because § 300.519(g), consistent with
section 615(b)(2) of the Act, clarifies
that a surrogate parent is an individual
who represents the child in all matters
related to the identification, evaluation,
and educational placement of the child,
and the provision of FAPE to the child.
This is a longstanding provision and is
intended to describe the areas in which
a surrogate parent may represent the
child.
We believe that the provisions in
§ 300.519 are sufficient to ensure that
public agencies fulfill their obligation to
ensure that the rights of children are
protected in the circumstances in
§ 300.519(a). Therefore, we believe it is
unnecessary, and would be over
regulating, to specify in these
regulations requirements for surrogate
parents to meet and get to know the
child prior to meetings, as
recommended by one commenter.
Likewise, we do not believe that it is
necessary to require public agencies to
develop specific duties and
responsibilities for surrogate parents
because public agencies already must
ensure that a surrogate parent has the
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knowledge and skills that ensure
adequate representation of the child,
consistent with § 300.519(d). However,
if a public agency determined there was
a need to specify the duties and
responsibilities for surrogate parents,
there is nothing in the Act or these
regulations that would prohibit them
from doing so.
Changes: None.
SEA Responsibility (§ 300.519(h))
Comment: Some commenters
recommended requiring LEAs to report
to the SEA when a child needs a
surrogate parent so that the SEA can
fulfill its obligation to ensure that
surrogate parents are assigned within
the 30-day timeframe required in
§ 300.519(h). Some commenters
requested clarification regarding what it
means for the SEA to make ‘‘reasonable
efforts’’ to appoint surrogate parents
within the 30-day timeframe. The
commenters recommended that SEAs
track whether LEAs or courts appoint
surrogate parents in a timely manner
and provide technical assistance to
LEAs and courts that fail to meet the 30-
day timeframe.
Some commenters stated that LEAs
spend too much time determining that
a surrogate parent is needed and
prolong the decision that a surrogate
parent is needed until the LEA is ready
to appoint the surrogate parent. One
commenter stated that children in
residential care facilities often have an
immediate need for a surrogate parent
and waiting 30 days to appoint a
surrogate parent could cause lasting
damage to a child.
Discussion: It would be over-
regulating to specify the specific
‘‘reasonable efforts’’ that a State must
take to ensure that a surrogate parent is
appointed within the 30-day timeframe
required in § 300.519(h), because what
is considered a ‘‘reasonable effort’’ will
vary on a case-by-case basis. We do not
believe we should require LEAs to
report to the State when a child in their
district needs a surrogate parent or to
require SEAs to track how long it takes
LEAs and courts to appoint surrogate
parents because to do so would be
unnecessarily burdensome. States have
the discretion to determine how best to
monitor the timely appointment of
surrogate parents by their LEAs. States
also have discretion to use funds
reserved for other State-level activities
to provide technical assistance to LEAs
and courts that fail to meet the 30-day
timeframe, as requested by the
commenters.
Under their general supervisory
authority, States have responsibility for
ensuring that LEAs appoint surrogate
parents for children who need them,
consistent with the requirements in
§ 300.519 and section 615(b)(2) of the
Act. Therefore, if an LEA consistently
fails to meet the 30-day timeframe or
unnecessarily delays the appointment of
a surrogate parent, the State is
responsible for ensuring that measures
are taken to remedy the situation.
Changes: None.
Transfer of Rights at Age of Majority
(§ 300.520)
Comment: A few commenters
recommended clarifying § 300.520(a)(2)
to mean that all rights transfer to
children who have reached the age of
majority under State law.
Discussion: To change the regulation
in the manner suggested by the
commenters would be inconsistent with
the Act. Section 615(m)(1)(D) of the Act
allows, but does not require, a State to
transfer all rights accorded to parents
under Part B of the Act to children who
are incarcerated in an adult or juvenile,
State or local correctional institution
when a child with a disability reaches
the age of majority under State law.
Changes: None.
Comment: A few commenters stated
that families are often unaware of the
transfer of rights at the age of majority
and recommended requiring schools to
inform parents and students in writing
of the transfer of rights one year prior
to the day the student reaches the age
of majority.
Discussion: The commenters’
concerns are addressed elsewhere in the
regulations. Section 300.320(c),
consistent with section
614(d)(1)(A)(VIII)(cc) of the Act,
requires that, beginning not later than
one year before the child reaches the age
of majority under State law, the IEP
must include a statement that the child
has been informed of the child’s rights
under Part B of the Act, if any, that will
transfer to the child on reaching the age
of majority. Section 300.322(f)
(proposed § 300.322(e)) requires the
public agency to give a copy of the
child’s IEP to the parent, and, therefore,
parents are informed as well.
Changes: None.
Comment: One commenter
recommended that the regulations allow
parents to continue to serve as the
decision-maker and to retain the rights
under the Act even in situations where
the child is not determined to be
incompetent under State law, if the
student and parent agree in writing that
the parent retains such rights. The
commenter stated that a State may not
have a mechanism to determine that the
child does not have the ability to
provide informed consent, as required
in § 300.520(b), and if a State does have
such a mechanism, it may be costly and
time consuming for a parent to go to
court to retain such rights. The
commenter stated that an agreement
between the parent and student should
be a simple process whereby the student
and parent both sign a form stating their
agreement.
Discussion: Section 300.520(b)
recognizes that some States have
mechanisms to determine that a child
with a disability who has reached the
age of majority under State law does not
have the ability to provide informed
consent with respect to his or her
educational program, even though the
child has not been determined
incompetent under State law. In such
States, the State must establish
procedures for appointing the parent
(or, if the parent is not available,
another appropriate individual) to
represent the educational interests of
the child throughout the remainder of
the child’s eligibility under Part B of the
Act. Whether parents may retain the
ability to make educational decisions for
a child who has reached the age of
majority and who can provide informed
consent is a matter of State laws
regarding competency. That is, the child
may be able to grant the parent a power
of attorney or similar grant of authority
to act on the child’s behalf under
applicable State law. We believe that the
rights accorded individuals at the age of
majority, beyond those addressed in the
regulation, are properly matters for
States to control.
To ensure that this provision is clear,
we are making minor changes to the
language. These changes are not
intended to change the meaning of
§ 300.520(b) from the meaning in
current § 300.517(b).
Changes: We have changed
§ 300.520(b) for clarity.
Discipline Procedures (§§ 300.530
through 300.536)
Authority of School Personnel
(§ 300.530)
Case-by-Case Determination
(§ 300.530(a))
Comment: Many commenters
requested clarifying the phrase
‘‘consider any unique circumstances on
a case-by-case basis’’ in § 300.530(a) and
what, if any, unique circumstances
should be considered. A few of these
commenters requested that the
regulations include specific criteria to
be used when making a case-by-case
determination. Other commenters
suggested clarifying that the purpose of
a case-by-case determination is to not
allow school personnel to remove a
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child to an interim alternative
educational setting for violating a code
of student conduct when to do so would
seem unjust under the circumstances.
Some commenters suggested clarifying
that the purpose of a case-by-case
determination is to limit, not expand,
disciplinary actions for a child with a
disability. One commenter expressed
concern that permitting school
personnel to consider any unique
circumstances on a case-by-case basis
when determining a change in
placement may result in schools
applying this provision to cases for
which it was not intended, potentially
resulting in a denial of FAPE. Other
commenters requested clarifying that a
child’s disciplinary history, ability to
understand consequences, and
expression of remorse should be factors
considered when making a case-by-case
determination. A few commenters
requested school personnel document
any supports provided to a child with
a disability prior to the child’s violation
of a code of student behavior when
making a case-by-case determination.
Discussion: We believe that the
regulations do not need to be amended
to clarify ‘‘consider any unique
circumstances on a case-by-case basis’’
because what constitutes ‘‘unique
circumstances’’ is best determined at the
local level by school personnel who
know the individual child and all the
facts and circumstances regarding a
child’s behavior. We believe it would
impede efforts of school personnel
responsible for making a determination
as to whether a change in placement for
disciplinary purposes is appropriate for
a child if the Department attempted to
restrict or limit the interpretation of
‘‘consider any unique circumstances on
a case-by-case-basis.’’ Factors such as a
child’s disciplinary history, ability to
understand consequences, expression of
remorse, and supports provided to a
child with a disability prior to the
violation of a school code could be
unique circumstances considered by
school personnel when determining
whether a disciplinary change in
placement is appropriate for a child
with a disability. We believe providing
school personnel the flexibility to
consider whether a change in placement
is appropriate for a child with a
disability on a case-by-case basis and to
determine what unique circumstances
should be considered regarding a child
who violates a code of conduct, as
provided for under section 615(k)(1)(A)
of the Act, will limit the inappropriate
removal of a child with a disability from
his or her current placement to an
interim alternative educational setting,
another setting, or suspension. We also
decline the commenters’ suggestion to
regulate further about the case-by-case
determination in light of the discretion
granted under the Act to school
personnel in making this determination.
Changes: None.
Comment: Several commenters
expressed concern that § 300.530(a)
could be used to justify ignoring a
manifestation determination when
determining whether a change in
placement is appropriate for a child.
These commenters stated that the
authority of school personnel to
consider any unique circumstances on a
case-by-case basis could be used to
usurp the authority of the group making
the manifestation determination and the
IEP Team. Some commenters
recommended removing the phrase
‘‘consistent with the requirements of
this section’’ in § 300.530(a) because it
is not included in the Act and limits the
individualized disciplinary options that
might arise under this authority.
Discussion: Section 300.530(a),
consistent with section 615(k)(1)(A) of
the Act, clarifies that, on a case-by-case
basis, school personnel may consider
whether a change in placement, that is
otherwise permitted under the
disciplinary procedures, is appropriate
and should occur. It does not
independently authorize school
personnel, on a case-by-case basis, to
institute a change in placement that
would be inconsistent with § 300.530(b)
through (i), including the requirement
in paragraph (e) of this section regarding
manifestation determinations. We are
revising § 300.530(a) to clarify that any
consideration regarding a change in
placement under paragraph (a) of this
section must be consistent with all other
requirements in § 300.530.
Changes: We have revised
§ 300.530(a) to refer to the other
requirements of § 300.530.
Comment: One commenter
recommended changing § 300.530(a) to
include the role of the IEP Team when
determining whether a change in
placement is appropriate for a child
with a disability who violates a code of
student conduct.
Discussion: We believe § 300.530(a),
which follows the language in section
615(k)(1)(A) of the Act, appropriately
gives school personnel the authority to
determine, on a case-by-case basis,
whether a change in placement that is
consistent with the other requirements
of § 300.530, would be appropriate for a
child with a disability who violates a
code of student conduct and, therefore,
we do not believe it is appropriate to
define a role for the IEP Team in this
paragraph. There is nothing, however,
in the Act or these regulations that
would preclude school personnel from
involving parents or the IEP Team in
making this determination.
Changes: None.
Comment: Some commenters
requested clarifying who constitute
‘‘school personnel’’ as used in
§ 300.530(a).
Discussion: We do not believe it is
necessary or appropriate to clarify in
these regulations the ‘‘school
personnel’’ that may consider whether a
change in placement for disciplinary
reasons is appropriate for a child
because such decisions are best made at
the local school or district level and
based on the circumstances of each
disciplinary case.
Changes: None.
Comment: Several commenters
requested that the regulations clarify the
meaning of ‘‘violates a code of student
conduct.’’ The commenters expressed
concern that school personnel could use
any minor infraction to remove a child.
Discussion: Local school personnel
have the necessary authority to protect
the safety and well-being of all children
in their school and, therefore, are in the
best position to determine a code of
student conduct that is uniform and fair
for all children in their school. We,
therefore, do not believe it is necessary
or appropriate to clarify in § 300.530(a)
the meaning of ‘‘violates a code of
student conduct.’’
Changes: None.
General (§ 300.530(b))
Comment: Several commenters
requested removing ‘‘consecutive’’ from
§§ 300.530 and 300.536 because there is
no reference to consecutive school days
in the Act.
Discussion: We are not removing
‘‘consecutive’’ from §§ 300.530 through
300.536, as recommended by the
commenters, because the Department
has long interpreted the Act to permit
children with disabilities who violate a
code of student conduct to be removed
from their current educational
placement for not more than 10
consecutive school days at a time, and
that additional removals of 10
consecutive school days or less in the
same school year would be possible, as
long as any removal does not constitute
a change in placement. We do not
believe the changes to section 615(k) of
the Act justify any change in this
position. Further, the Department’s
position is consistent with S. Rpt. No.
108–185, p. 43, which states that ‘‘a
school may order a change in placement
for a child who violates a code of
student conduct to an appropriate
interim educational setting, another
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setting, or suspension, for 10
consecutive school days or less, to the
same extent that it would apply such a
discipline measure to a child without a
disability.’’
Changes: None.
Comment: One commenter
recommended replacing ‘‘school days’’
with ‘‘calendar days’’ in § 300.530
because using ‘‘school days’’ in the
regulations might create a disincentive
for school personnel to find solutions
and develop an appropriate IEP in a
timely manner.
Discussion: Section 615(k)(1)(B) of the
Act clearly states that school personnel
may remove a child with a disability
who violates a code of student conduct
from their current placement to an
appropriate alternative education
setting, other setting, or suspension, for
not more than 10 ‘‘school days;’’
therefore, it would be inconsistent with
section 615(k)(1)(B) of the Act to change
‘‘school days’’ to ‘‘calendar days’’ as
suggested by the commenter.
Changes: None.
Comment: One commenter requested
that § 300.530 and all sections that
pertain to discipline stipulate that
children with disabilities must not be
disciplined more severely than non-
disabled children and disciplinary
measures applied to them must not be
longer in duration than those applied to
non-disabled students.
Discussion: We do not believe that it
is necessary to change the regulations to
state that children with disabilities must
not be disciplined more severely than
non-disabled children because
§ 300.530(b)(1), consistent with section
615(k)(1)(B) of the Act, is sufficiently
clear that disciplinary measures are to
be applied to children with disabilities
to the extent they are applied to
children without disabilities. Further,
the manifestation determination
provision in paragraph (e) of this
section, and the right of a parent to
request an expedited due process
hearing in § 300.532, regarding the
disciplinary placement or manifestation
determination, are sufficient to ensure
that schools implement disciplinary
policies that provide for a uniform and
fair way of disciplining children with
disabilities in line with the discipline
expectations for non-disabled students.
A primary intent of Congress in revising
section 615(k) of the Act was to provide
for a uniform and fair way of
disciplining all children—both for those
children with disabilities and those
children without disabilities. (S. Rpt.
No. 108–185, p. 43; H. Rpt. No. 108–77,
pp. 116–119).
Changes: None.
Comment: A few commenters
requested clarifying the Department’s
basis for the general authority of school
personnel to remove a child with a
disability for up to 10 consecutive
school days, so as not to preclude
subsequent short-term removals in the
same school year. Many commenters
expressed concern that permitting
subsequent removals of up to 10
consecutive school days in the same
school year could be misapplied and
result in a denial of services. Several
commenters stated that § 300.530 is not
clear as to whether students who are
removed for more than 10 school days
in a school year must continue to
receive services.
Discussion: The Department has long
interpreted the Act to permit schools to
remove a child with a disability who
violates a code of student conduct from
his or her current placement for not
more than 10 consecutive school days,
and that additional removals of 10
consecutive school days or less in the
same school year would be possible, as
long as those removals do not constitute
a change in placement. The
requirements in § 300.530(b) do not
permit using repeated disciplinary
removals of 10 school days or less as a
means of avoiding the change in
placement options in § 300.536. We
believe it is important for purposes of
school safety and order to preserve the
authority that school personnel have to
be able to remove a child for a
discipline infraction for a short period
of time, even though the child already
may have been removed for more than
10 school days in that school year, as
long as the pattern of removals does not
itself constitute a change in placement
of the child.
On the other hand, discipline must
not be used as a means of disconnecting
a child with a disability from education.
Section 300.530(d) clarifies, in general,
that the child must continue to receive
educational services so that the child
can continue to participate in the
general curriculum (although in another
setting), and progress toward meeting
the goals in the child’s IEP.
Changes: None.
Comment: Several commenters
recommended retaining the
Department’s long term policy that an
in-school suspension would not be
considered a part of the days of
suspension as long as the child is
afforded the opportunity to continue to
appropriately progress in the general
curriculum, continue to receive services
specified on the child’s IEP, and
continue to participate with
nondisabled children to the extent they
would have in their current placement.
Other commenters recommended
including in the regulations the
commentary from the March 12, 1999
Federal Register (64 FR 12619)
regarding whether an in-school
suspension or a bus suspension
constitutes a day of removal.
Discussion: It has been the
Department’s long term policy that an
in-school suspension would not be
considered a part of the days of
suspension addressed in § 300.530 as
long as the child is afforded the
opportunity to continue to appropriately
participate in the general curriculum,
continue to receive the services
specified on the child’s IEP, and
continue to participate with
nondisabled children to the extent they
would have in their current placement.
This continues to be our policy.
Portions of a school day that a child had
been suspended may be considered as a
removal in regard to determining
whether there is a pattern of removals
as defined in § 300.536.
Whether a bus suspension would
count as a day of suspension would
depend on whether the bus
transportation is a part of the child’s
IEP. If the bus transportation were a part
of the child’s IEP, a bus suspension
would be treated as a suspension under
§ 300.530 unless the public agency
provides the bus service in some other
way, because that transportation is
necessary for the child to obtain access
to the location where services will be
delivered. If the bus transportation is
not a part of the child’s IEP, a bus
suspension is not a suspension under
§ 300.530. In those cases, the child and
the child’s parent have the same
obligations to get the child to and from
school as a nondisabled child who has
been suspended from the bus. However,
public agencies should consider
whether the behavior on the bus is
similar to behavior in a classroom that
is addressed in an IEP and whether the
child’s behavior on the bus should be
addressed in the IEP or a behavioral
intervention plan for the child.
Because the determination as to
whether an in-school suspension or bus
suspension counts as a day of
suspension under § 300.530 depends on
the unique circumstances of each case,
we do not believe that we should
include these policies in our
regulations.
Changes: None.
Services (§ 300.530(d))
Comment: Many commenters
expressed concern that the change from
‘‘continue to progress in the general
curriculum’’ in current § 300.522(b)(1)
to ‘‘continue to participate in the
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general education curriculum’’ in
§ 300.530(d)(1)(i) is a lower standard.
They requested that we use the language
from current § 300.522(b)(1).
Discussion: Section 615(k)(1)(D)(i) of
the Act and § 300.530(d)(1) provide that
a child must continue to receive
educational services so as to enable the
child ‘‘to continue to participate in the
general educational curriculum,
although in another setting, and to
progress toward meeting the goals set
out in the child’s IEP.’’ We believe that
using the statutory language in the
regulation is appropriate because the
Act specifically uses different language
to describe a child’s relationship to the
general education curriculum in periods
of removal for disciplinary reasons than
for services under the child’s regular IEP
in section 614(d)(1)(A)(i)(IV) of the Act.
Based on this difference, we decline to
make the change requested.
We caution that we do not interpret
‘‘participate’’ to mean that a school or
district must replicate every aspect of
the services that a child would receive
if in his or her normal classroom. For
example, it would not generally be
feasible for a child removed for
disciplinary reasons to receive every
aspect of the services that a child would
receive if in his or her chemistry or auto
mechanics classroom as these classes
generally are taught using a hands-on
component or specialized equipment or
facilities.
Changes: None.
Comment: Many commenters
recommended § 300.530(d) clarify that
children with disabilities who violate a
code of student conduct and are
removed from their current placement
to an interim alternative educational
setting or another setting, or are
suspended, are entitled to FAPE in
accordance with section 612(a)(1) of the
Act. Several commenters recommended
revising § 300.530(d)(1)(i) to explicitly
state that the educational services
provided to a child removed for
disciplinary reasons must include all
the special education services, related
services, supplementary aids and
services, and accommodations required
by the child’s IEP to ensure the child
receives FAPE. Many commenters
requested that the regulations clarify
that LEAs must continue to implement
a child’s IEP as written, including
related services, while the child is in an
interim alternative educational setting.
Discussion: Section 612(a)(1)(A) of the
Act provides that FAPE must be made
available to all children with disabilities
ages 3 through 21, inclusive, including
children with disabilities who have
been suspended or expelled from
school. Further, section 615(k)(1)(D)(i)
of the Act provides that if school
personnel seek to order a change in
placement of a child with a disability
who violates a code of student conduct,
the child must continue to receive
education services (as provided in
section 612(a)(1) of the Act) so as to
enable him or her to continue to
participate in the general curriculum,
although in another setting (which
includes an interim alternative
education setting), and to progress
toward meeting the goals set out in the
child’s IEP. In other words, while
children with disabilities removed for
more than 10 school days in a school
year for disciplinary reasons must
continue to receive FAPE, we believe
the Act modifies the concept of FAPE in
these circumstances to encompass those
services necessary to enable the child to
continue to participate in the general
curriculum, and to progress toward
meeting the goals set out in the child’s
IEP. An LEA is not required to provide
children suspended for more than 10
school days in a school year for
disciplinary reasons, exactly the same
services in exactly the same settings as
they were receiving prior to the
imposition of discipline. However, the
special education and related services
the child does receive must enable the
child to continue to participate in the
general curriculum, and to progress
toward meeting the goals set out in the
child’s IEP.
Section 300.530(d) clarifies that
decisions regarding the extent to which
services would need to be provided and
the amount of services that would be
necessary to enable a child with a
disability to appropriately participate in
the general curriculum and progress
toward achieving the goals on the
child’s IEP may be different if the child
is removed from his or her regular
placement for a short period of time. For
example, a child who is removed for a
short period of time and who is
performing at grade level may not need
the same kind and amount of services to
meet this standard as a child who is
removed from his or her regular
placement for 45 days under
§ 300.530(g) or § 300.532 and not
performing at grade level.
We believe it is reasonable for school
personnel (if the child is to be removed
for more than 10 school days in the
same school year and not considered a
change in placement) and the IEP Team
(if the child’s removal is a change in
placement under § 300.536 and not a
manifestation of the child’s disability or
a removal pursuant to § 300.530(g)) to
make informed educational decisions
about the extent to which services must
be provided for a child with a disability
placed in an interim alternative
educational setting, another setting, or
suspension to enable the child to
participate in the general education
curriculum and make progress toward
the goals of the child’s IEP.
As stated above, we read the Act as
modifying the concept of FAPE in
circumstances where a child is removed
from his or her current placement for
disciplinary reasons. Specifically, we
interpret section 615(k)(1)(D)(i) of the
Act to require that the special education
and related services that are necessary
to enable the child to continue to
participate in the general education
curriculum and to progress toward
meeting the goals set out in the child’s
IEP, must be provided at public
expense, under public supervision and
direction, and, to the extent appropriate
to the circumstances, be provided in
conformity with the child’s IEP. We,
therefore, believe § 300.530(d)(1) should
be amended to be consistent with the
Act by adding the reference to the FAPE
requirements in § 300.101(a), and to
ensure it is understood that the
educational services provided to a child
removed for disciplinary reasons are
consistent with the FAPE requirements
in section 612(a)(1) of the Act.
We are making additional technical
changes to paragraph (d)(1) to eliminate
cross-references, where appropriate, and
to provide greater clarity that children
with disabilities removed for
disciplinary reasons pursuant to
paragraphs (c) and (g) of this section
must continue to receive services and
receive, as appropriate, a functional
behavior assessment and behavior
intervention services and modifications.
We are, therefore, removing from
paragraph (d)(1) of this section the
phrase ‘‘except as provided in
paragraphs (d)(3) and (d)(4)’’ and
removing the reference to paragraph (b)
of this section, which references the
general authority for removing a child
who violates a code of student conduct,
as it is unnecessary.
Changes: Section 300.530(d)(1)(i) has
been amended to be consistent with
section 615(k)(1)(D)(i) of the Act by
cross-referencing the FAPE requirement
in § 300.101(a). We have also revised
paragraph (d)(1) by removing the
reference to the exceptions for
paragraph (d)(3) and (d)(4) of this
section and removing the reference to
paragraph (b) of this section.
Comment: None.
Discussion: In light of the changes
made to proposed paragraph (d)(1) of
this section by removing the phrase
regarding the exceptions for paragraph
(d)(3) and (d)(4) of this section, it is
necessary to revise § 300.530(d)(2) to
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accurately reflect when services may be
provided in an interim alternative
educational setting.
Changes: We have modified
§ 300.530(d)(2) to clarify that services
required by paragraph (d)(1), (d)3),
(d)(4), and (d)(5) of this section may be
provided in an interim alternative
educational setting.
Comment: Several commenters stated
that § 300.530(d)(3) is not clear and
requested clarification as to whether
children who are removed for more than
10 school days in the same school year
must continue to receive services. One
commenter expressed concern that
§ 300.530(d)(3), which clarifies that a
public agency is only required to
provide services to a child with a
disability who is removed from his or
her current placement for 10 school
days or less in that school year if it
provides services to a child without
disabilities who is similarly removed, is
unsupported by the Act and
substantially undermines the rights
afforded to children with disabilities
removed from their current placement
for disciplinary reasons. The commenter
wanted this provision removed from the
regulations. Other commenters
requested clarifying the authority of
school personnel with respect to the
procedures in § 300.530(d)(3).
Discussion: The Act and the
regulations recognize that school
officials need some reasonable degree of
flexibility when disciplining children
with disabilities who violate a code of
student conduct. Interrupting a child’s
participation in education for up to 10
school days over the course of a school
year, when necessary and appropriate to
the circumstances, does not impose an
unreasonable limitation on a child with
a disability’s right to FAPE. Section
300.530(d)(3) is consistent with section
612(a)(1)(A) of the Act and current
§ 300.121(d) and reflects the
Department’s longstanding position that
public agencies need not provide
services to a child with a disability
removed for 10 school days or less in a
school year, as long as the public agency
does not provide educational services to
nondisabled children removed for the
same amount of time. This position was
affirmed by the Supreme Court in Honig
v. Doe, 484 U.S. 305 (1988). We are
amending § 300.530(d)(3) to replace
‘‘need not’’ with ‘‘is only required to’’
for greater clarity. We also are amending
paragraph (d)(3) of this section to write
it in active voice and in the positive and
removed the cross-reference to the
general provision in paragraph (b) of
this section, as it is not necessary.
Changes: Technical changes have
been made to § 300.530(d)(3) to remove
the cross-reference to paragraph (b) of
this section. We also amended this
paragraph as stated above to provide
greater clarity.
Comment: Many commenters wanted
us to remove the words ‘‘if any’’ from
§ 300.530(d)(4). Several commenters
thought that § 300.530(d)(4), which
allows school personnel to determine
the extent to which services are needed,
‘‘if any,’’ gives public agencies the
authority to deny special education
services to students who have been
suspended or expelled for more than 10
school days in a school year. Other
commenters also thought that including
the phrase ‘‘if any’’ implies that special
education services are not mandatory
for a child who has been removed for 10
or more non-consecutive days and do
not constitute a change in placement.
Discussion: We believe
§ 300.530(d)(4) ensures that children
with disabilities removed for brief
periods of time receive appropriate
services, while preserving the flexibility
of school personnel to move quickly to
remove a child when needed and
determine how best to address the
child’s needs. Paragraph (d)(4) of this
section is not intended to imply that a
public agency may deny educational
services to children with disabilities
who have been suspended or expelled
for more than 10 school days in a school
year, nor is § 300.530(d)(4) intended to
always require the provision of services
when a child is removed from school for
just a few days in a school year. We
believe the extent to which educational
services need to be provided and the
type of instruction to be provided would
depend on the length of the removal, the
extent to which the child has been
removed previously, and the child’s
needs and educational goals. For
example, a child with a disability who
is removed for only a few days and is
performing near grade level would not
likely need the same level of
educational services as a child with a
disability who has significant learning
difficulties and is performing well
below grade level. The Act is clear that
the public agency must provide services
to the extent necessary to enable the
child to appropriately participate in the
general curriculum and appropriately
advance toward achieving the goals in
the child’s IEP.
We recognize the concern of the
commenters that the phrase ‘‘if any’’
could imply that school personnel need
not provide educational services to
these children. Therefore, we are
removing the phrase ‘‘if any’’ from
paragraph (d)(4). For clarity, we are
replacing the cross-reference to
§ 300.530(d)(1) with the language from
§ 300.530(d)(1)(i) and restructure the
paragraph.
Changes: The phrase ‘‘if any’’ has
been removed from § 300.530(d)(4). For
clarity, we have removed a cross
reference in § 300.530(d)(4) and
replaced it with the language from
§ 300.530(d)(1)(i) and made technical
edits to restructure the paragraph.
Comment: One commenter questioned
whether the ability of school personnel
to remove a child from his or her
current placement for disciplinary
reasons means, if a child’s current
placement is a special education
classroom setting, school personnel may
remove the child from special education
services.
Discussion: If the child’s current
placement is a special education setting,
the child could be removed from the
special education setting to another
setting for disciplinary reasons.
Similarly, if the child with a disability
who violated a school code of conduct
receives services in a regular classroom,
the child could be removed to an
appropriate interim alternative
educational setting, another setting, or
suspension. Section 300.530(b),
consistent with section 615(k)(1)(B) of
the Act, provides that school personnel
may remove a child with a disability
who violates a code of student conduct
from his or her current placement to an
appropriate interim alternative
educational setting, another setting, or
suspension. However, § 300.530(d) is
clear that the child who is removed for
more than 10 school days in the same
school year must continue to receive
educational services, to enable the child
to continue to participate in the general
education curriculum, although in
another setting, and to progress toward
meeting the goals set out in his or her
IEP.
Changes: None.
Comment: One commenter requested
clarifying how many days a child with
a disability may be placed in an interim
alternative educational setting before
the public agency must provide
services.
Discussion: School personnel may
remove a child with a disability from
his or her current placement to an
interim alternative educational setting,
another setting, or suspension for up to
10 school days in the same school year
without providing educational services.
Beginning, however, on the eleventh
cumulative day in a school year that a
child with a disability is removed from
the child’s current placement, and for
any subsequent removals, educational
services must be provided to the extent
required in § 300.530(d), while the
removal continues.
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Changes: None.
Comment: Numerous commenters
recommended revising § 300.530(d)(4)
to require that the parent be included in
the consultation school personnel must
have with at least one of the child’s
teachers to determine the extent to
which services are needed for a child
with a disability who has been removed
from his or her current placement for
more than 10 school days (if the current
removal is for not more than 10
consecutive school days and is not a
change in placement under § 300.536).
Discussion: The provisions in
§ 300.530(d)(4) only address the
provision of services in those situations
where a removal of a child with a
disability from the child’s current
placement is for a short period of time
and the removal does not constitute a
change in placement. In many instances,
these short-term removals are for one or
two days. We believe that, in these
instances, it is reasonable for
appropriate school personnel, in
consultation with at least one of the
teachers of a child, to determine how
best to address the child’s needs during
these relatively brief periods of removal.
We believe it would place an
unreasonable burden on school
personnel to require that the parent be
involved in making the determination of
the extent to which services are needed
for a child removed for such a short
period of time. We do not believe
requiring school personnel to make
these decisions under these
circumstances imposes an unreasonable
limitation on a child with a disability’s
right to FAPE. For these reasons, we do
not believe § 300.530(d)(4) should be
revised to require that the parent be
included in the consultation. However,
there is nothing in these regulations that
would prohibit school personnel, if they
choose to do so, from including parents
in the consultation.
Changes: None.
Comment: One commenter requested
that § 300.530(d)(4) be modified to
include the requirement in current
§ 300.121(d)(3)(i) that school personnel
consult with the child’s special
education teacher as opposed to any of
the child’s teachers. The commenter
stated that it makes sense that the
special education teacher be considered
the first choice for this role given that
the special education teacher generally
has the most knowledge of the child and
the student’s educational needs.
Discussion: The determination of
which teacher school personnel should
consult should be based on the facts and
circumstances of each case, the needs of
the child and the expertise of the child’s
teachers. We agree that, in many cases,
the special education teacher may be the
most appropriate teacher with whom
school personnel should consult. This,
however, is not always the case. In light
of the short-term nature of the removals
under paragraph (d)(4) of the section
and the need for school personnel to
make quick decisions regarding
services, we believe local school
personnel need broad flexibility in
making such decisions and are in the
best position to determine the
appropriate teacher with whom to
consult. For these reasons, we are not
amending § 300.530(d)(4) to require
consultation with the child’s special
education teacher as in current
§ 300.121(d)(3)(i). There is nothing,
however, in the Act or these regulations
that would prohibit school personnel
from consulting with one of the child’s
special education teachers.
Changes: None.
Comment: Several commenters
recommended the regulations clarify
that a child placed in an appropriate
interim alternative educational setting
will participate in all State and
districtwide assessments.
Discussion: It is not necessary to
include the language recommended by
the commenters as section 612(a)(16)(A)
of the Act is clear that the State must
ensure that all children with disabilities
are included in all general State and
districtwide assessment programs,
including assessments described in
section 1111 of the ESEA, 20 U.S.C.
6311, with appropriate accommodations
and alternate assessments, if necessary,
and as indicated in each child’s
respective IEP. This requirement applies
to children with disabilities who have
been placed in an appropriate interim
alternative education setting or another
setting, or who are suspended.
Changes: None.
Comment: One commenter requested
specifying in § 300.530(d) that LEAs
must include children with disabilities
placed in interim alternative
educational settings in their
determination of AYP. The writer
expressed concern that LEAs may try to
avoid accountability by placing children
with disabilities in interim alternative
educational settings.
Discussion: The Act does not address
the issue of AYP. However, title 1 of the
ESEA is clear that children who are
enrolled within a district for a full
academic year must be included in the
AYP reports of an LEA. (20 U.S.C. 7325)
Title 1 of the ESEA does not provide an
exception for children with disabilities
placed in interim alternative
educational settings. In addition, State
agencies, LEAs, and schools must assess
all children, regardless of whether a
child is to be included for reporting or
accountability purposes and regardless
of the amount of time the child has been
enrolled in the State agency, LEA, or
school. The only public school children
with disabilities enrolled in public
settings who are exempted from
participation in State and districtwide
assessment programs under the Act are
children with disabilities convicted as
adults under State law and incarcerated
in adult prisons (§ 300.324(d)(1)(i)). As
AYP is addressed under title 1 of the
ESEA, we do not need to regulate on
this matter.
Changes: None.
Comment: A few commenters stated
that § 300.530(d)(5) is inconsistent with
section 615(k)(1)(E) of the Act, which
requires that within 10 school days of
any decision to change a child’s
placement because of a violation of a
code of conduct, the LEA, parent, and
relevant members of the IEP Team (as
determined by the parent and the LEA)
shall consider whether the conduct was
caused by or had a direct and
substantial relationship to the disability
or whether the conduct was caused by
the failure of the LEA to implement the
IEP. These commenters stated that
§ 300.530(d)(5) gives the IEP Team
control over determinations regarding
services and placement, regardless of
manifestation, and does not give control
to the LEA, parent and relevant
members of the IEP Team as provided
in the Act.
Discussion: We disagree with the
commenters that § 300.530(d)(5) is
inconsistent with section 615(k)(1)(E) of
the Act because paragraph (d)(5) of this
section describes who is responsible for
determining the appropriate services for
a child with a disability whose
disciplinary removal is a change in
placement under § 300.536, while
section 615(k)(1)(E) of the Act describes
who is responsible for making a
manifestation determination. These are
very different and distinct provisions.
Further, section 615(k) of the Act does
not specifically address who is
responsible for determining the
educational services to be provided a
child with a disability whose
disciplinary removal is a change in
placement. Section 615(k)(1)(E) of the
Act, consistent with § 300.530(e),
provides that, within 10 school days of
any decision to change the placement of
a child with a disability because of a
violation of a code of student conduct,
the LEA, the parent, and relevant
members of the IEP Team (as
determined by the parent and the LEA)
shall determine whether the child’s
conduct was a manifestation of the
child’s disability. We believe that in
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instances where a child’s disciplinary
removal constitutes a change in
placement, and given the length of time
of such removals, the IEP Team is the
appropriate entity to determine the
educational services necessary to enable
the child to continue to participate in
the general education curriculum,
although in another setting, and to
progress toward meeting the goals set
out in the child’s IEP. Section
300.530(d)(5) is clear that whenever a
removal constitutes a change in
placement under § 300.536, the child’s
IEP Team determines the services the
child will be provided.
Changes: None.
Comment: One commenter stated that
the phrase ‘‘location in which services
will be provided’’ as used in
§ 300.530(d)(5) is not included in the
Act. The commenter pointed out that
section 615(k)(2) of the Act refers to the
IEP Team’s ‘‘determination of setting.’’
The commenter stated that using the
statutory language will make it less
likely the IEP Team will interpret the
regulations to require the IEP Team to
determine the specific location of the
services to be provided to a child
removed from his or her current
placement to an interim alternative
educational setting. Several other
commenters stated that the use of the
phrase ‘‘location in which services will
be provided’’ in paragraph (d)(5) of this
section is confusing and recommended
limiting the IEP Team responsibility to
determining the setting (as required
under section 615(k)(2) of the Act) and
the services and not the specific
location.
Discussion: Section 615(k)(2) of the
Act provides that the IEP Team is
responsible for determining the interim
alternative educational setting for a
child with a disability for certain
removals that are a change of placement.
In § 300.531, for reasons described
elsewhere in this preamble, we interpret
this obligation to apply to all removals
that constitute a change of placement for
disciplinary reasons, as defined in
§ 300.536. We interpret ‘‘setting’’ in this
context to be the environment in which
the child will receive services, such as
an alternative school, alternative
classroom, or home setting. In many
instances, the location and the setting or
environment in which the child will
receive services are the same. It is
possible, however, that a school may
have available more than one location
that meets the criteria of the setting
chosen by the IEP Team. For example,
an LEA may have available two
alternative schools that meet the criteria
of the interim alternative educational
setting chosen by the IEP Team. In those
cases school personnel would be able to
assign the child to either of these
locations, if the IEP Team has not
specified a particular one.
We are persuaded by the commenters
and, therefore, are removing the
reference to ‘‘location in which services
will be provided’’ in paragraphs (d)(4)
and (d)(5) of this section. We are also
removing the phrase ‘‘is for more than
10 consecutive school days or’’ from
paragraphs (d)(5) of this section because
it is unnecessary since such a removal
is a change in placement under
§ 300.536.
Changes: We have amended
paragraphs (d)(4) and (d)(5) of this
section by removing the phrase
‘‘location in which services will be
provided.’’ We also have amended
paragraph (d)(5) of this section by
removing the phrase ‘‘is for more than
10 consecutive school days or.’’
Manifestation Determination
(§ 300.530(e))
Comment: Several commenters
requested including in § 300.530(e) the
following measures when determining
the relationship between a behavior and
a disability: (1) whether the child’s
disability impaired the ability of the
child to control the behavior; (2)
whether the child understood the
impact and consequences of the
behavior; (3) whether the placement was
appropriate; or (4) whether the IEP, the
identified services, and their
implementation were appropriate.
Another commenter recommended
clarifying that when a determination is
made that a child’s behavior is not a
manifestation of his or her disability, if
the group does not consider whether the
IEP and placement were appropriate,
the parents have the right to file a
complaint.
Discussion: The language requested
by the commenters was included in
section 615(k)(4) of the Individuals with
Disabilities Education Act Amendments
of 1997, Public Law 105–17. Congress
later removed the requirements
mentioned by the commenters for
conducting a review to determine
whether a child’s behavior was a
manifestation of the child’s disability
and it would be beyond the authority of
the Department to include the language
in these regulations. Section 615(k)(1)(E)
of the Act now requires the LEA, the
parent, and relevant members of the IEP
Team (as determined by the parent and
the LEA), to determine whether a child’s
behavior was a manifestation of the
child’s disability based on two
inquiries: (1) was the conduct caused
by, or did it have a direct and
substantial relationship to the child’s
disability; or (2) was the conduct the
direct result of the LEA’s failure to
implement the child’s IEP?
It is not necessary to clarify that a
parent has the right to file a complaint,
as the commenters suggest. Section
300.532, consistent with section
615(k)(3) of the Act, provides that a
parent of a child with a disability who
disagrees with any decision regarding
placement under §§ 300.530 and
300.531, or the manifestation
determination under § 300.530(e), may
request an expedited due process
hearing, which must occur within 20
school days of the date the complaint
requesting the hearing is filed, and the
determination by the hearing officer
must be rendered within 10 school days
after the hearing.
Changes: None.
Comment: Several commenters
recommended that the observations
used for the manifestation
determination review be from both
teachers and related service personnel.
Some commenters requested
§ 300.530(e) clarify that the phrase ‘‘all
relevant information in the child’s file’’
includes a review of the child’s IEP,
placement appropriateness, special
education services, supplementary aids
and services, and if the behavior
intervention strategies were appropriate
and consistent with the IEP. One
commenter recommended documents
and discussions at IEP Team meetings
referencing the child’s behavior should
be maintained and considered at a
manifestation determination.
Discussion: Section 300.530(e)(1),
which tracks section 615(k)(1)(E) of the
Act, requires a review of all relevant
information in the child’s file, including
the child’s IEP, any teacher
observations, and any relevant
information provided by the parents.
We believe this clearly conveys that the
list of relevant information in paragraph
(e)(1) of the section is not exhaustive
and may include other relevant
information in the child’s file, such as
the information mentioned by the
commenters. It would be impractical to
list all the possible relevant information
that may be in a child’s file and,
therefore, it is not necessary to further
regulate on this matter.
Changes: None.
Comment: Several commenters
requested clarifying that a manifestation
determination under § 300.530(e) would
not need to be conducted for removals
of not more than 10 consecutive days or
for removals that otherwise do not
constitute a change in placement.
Discussion: By including an
introductory phrase to proposed
§ 300.530(e)(1) we intended to clarify
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that a manifestation determination need
not be conducted for removals that will
be for not more than 10 consecutive
school days and will not constitute a
change in placement under § 300.536. In
other words, manifestation
determinations are limited to removals
that constitute a change in placement
under § 300.536. Upon further
consideration, we believe the phrase
‘‘except for removals that will be for not
more than 10 consecutive school days
and will not constitute a change in
placement under § 300.536’’ is
unnecessary and confusing. We believe
limiting § 300.530(e)(1) to the statutory
language in section 615(k)(1)(E)(i) of the
Act makes it sufficiently clear that
within 10 school days of any decision
to change the placement of a child with
a disability because of a violation of a
code of student conduct a manifestation
determination must be conducted and,
therefore, we are removing the
introductory phrase as it is unnecessary.
Changes: We have revised
§ 300.530(e) by removing the
introductory phrase ‘‘except for
removals that will be for not more than
10 consecutive school days and will not
constitute a change in placement under
§ 300.536.’’
Comment: A few commenters
expressed concern that the
manifestation determination is too
narrow and does not account for the
spectrum of inter-related and individual
challenges associated with many
disabilities.
Discussion: We believe the criteria in
§ 300.530(e)(1) that the LEA, parent, and
relevant members of the IEP Team must
determine whether a child’s conduct is
a manifestation of the child’s disability
is broad and flexible, and would include
such factors as the inter-related and
individual challenges associated with
many disabilities. The revised
manifestation provisions in section 615
of the Act provide a simplified, common
sense manifestation determination
process that could be used by school
personnel. The basis for this change is
provided in note 237–245 of the Conf.
Rpt., pp. 224–225, which states, ‘‘the
Conferees intend to assure that the
manifestation determination is done
carefully and thoroughly with
consideration of any rare or
extraordinary circumstances presented.’’
The Conferees further intended that ‘‘if
a change in placement is proposed, the
manifestation determination will
analyze the child’s behavior as
demonstrated across settings and across
time when determining whether the
conduct in question is a direct result of
the disability.’’ No further clarification
is necessary.
Changes: None.
Comment: A few commenters
recommended that the manifestation
determination in § 300.530(e) include a
case-by-case analysis of the disability of
the child involved compared with the
child’s conduct as many children with
disabilities display behaviors that can
be disruptive to a classroom, but these
behaviors should not be considered a
current disciplinary issue when the
behaviors are characteristic of the
disability.
Discussion: We believe that it is not
necessary to modify the regulations to
include a requirement that a
manifestation determination include a
case-by-case analysis of the disability of
the child because section 615(k)(1)(E) of
the Act and § 300.530(e) are sufficiently
clear that decisions regarding the
manifestation determination must be
made on a case-by-case basis. We
believe the Act recognizes that a child
with a disability may display disruptive
behaviors characteristic of the child’s
disability and the child should not be
punished for behaviors that are a result
of the child’s disability. The intent of
Congress in developing section
615(k)(1)(E) was that, in determining
that a child’s conduct was a
manifestation of his or her disability, it
must be determined that ‘‘the conduct
in question was caused by, or had a
direct and substantial relationship to,
the child’s disability, and was not an
attenuated association, such as low self-
esteem, to the child’s disability.’’ (Note
237–245 of the Conf. Rpt., p. 225). The
regulation, which follows the statutory
language, thus accurately reflects the
manner in which the Act describes the
behavior of the child is to be considered
in the manifestation determination.
Further, section 615(k)(1)(F) of the
Act and § 300.530(f) provide that if the
LEA, the parent, and relevant members
of the IEP Team make the determination
that the behavior resulting in the
removal was a manifestation of the
child’s disability, the following actions
must be implemented: (1) the IEP Team
must conduct a functional behavioral
assessment, unless the LEA had
conducted a functional behavioral
assessment before the behavior that
resulted in the change in placement
occurred, and implement a behavioral
intervention plan for the child; (2) or if
a behavioral intervention plan already
has been developed, review the
behavioral intervention plan, and
modify it, as necessary, to address the
behavior; and (3) return the child to the
placement from which the child was
removed (other than a 45-day placement
under § 300.530(g)), unless the parent
and the LEA agree to a change in
placement as part of the modification of
the behavioral intervention plan.
Changes: None.
Comment: One commenter
recommended clarifying that when a
determination is made that a child’s
behavior is not a manifestation of his or
her disability, if the group does not
consider whether the placement was
appropriate, the parents have the right
to file a complaint.
Discussion: The Act no longer
requires that the appropriateness of the
child’s IEP and placement be considered
when making a manifestation
determination. The Act now requires
that the LEA, the parent, and relevant
members of the IEP Team must, when
making a manifestation determination,
determine whether (1) the conduct in
question was caused by, or had a direct
and substantial relationship to, the
child’s disability; or (2) the conduct in
question was the direct result of the
LEA’s failure to implement the IEP.
However, § 300.532, consistent with
section 615(k)(3) of the Act, does
provide that a parent of a child with a
disability who disagrees with any
decision regarding placement under
§§ 300.530 and 300.531, or the
manifestation determination under
§ 300.530(e), may request an expedited
due process hearing, which must occur
within 20 school days of the date the
hearing is requested and must result in
a determination within 10 school days
after the hearing.
Changes: None.
Comment: Several commenters
requested clarification on the potential
range of consequences when a
disciplinary change in placement has
occurred for a child with a disability
and the child’s behavior is determined
to be a manifestation of his or her
disability.
Discussion: Under section 615(k)(1)(F)
of the Act and section 504 of the
Rehabilitation Act of 1973, if the
behavior that resulted in the change of
placement is determined to be a
manifestation of a child’s disability, the
child must be returned to the placement
from which the child was removed
(other than a 45-day placement under
§§ 300.530(g), 300.532(b)(2), and
300.533), unless the public agency and
the parents otherwise agree to a change
of placement.
When the behavior is related to the
child’s disability, proper development
of the child’s IEP should include
development of strategies, including
positive behavioral interventions,
supports, and other strategies to address
that behavior, consistent with
§ 300.324(a)(2)(i) and (a)(3)(i). When the
behavior is determined to be a
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manifestation of a child’s disability but
has not previously been addressed in
the child’s IEP, the IEP Team must
review and revise the child’s IEP so that
the child will receive services
appropriate to his or her needs.
Implementation of the behavioral
strategies identified in a child’s IEP,
including strategies designed to correct
behavior by imposing disciplinary
consequences, is appropriate under the
Act and section 504, even if the
behavior is a manifestation of the child’s
disability. A change in placement that is
appropriate and consistent with the
child’s needs may be implemented
subject to the parent’s procedural
safeguards regarding prior notice
(§ 300.503), mediation (§ 300.506), due
process (§§ 300.507 through 300.517)
and pendency (§ 300.518).
Changes: None.
Comment: Many commenters
requested modifying § 300.530(e) to
require that, if it is determined that the
child’s behavior was a direct result of
the LEA’s failure to implement the
child’s IEP, it must take immediate steps
to remedy those deficiencies.
Discussion: If the LEA, the parent, and
the relevant members of the IEP Team
determine that the child’s conduct is a
manifestation of the child’s disability
because the child’s behavior was the
direct result of the LEA’s failure to
implement the IEP, the LEA has an
affirmative obligation to take immediate
steps to ensure that all services set forth
in the child’s IEP are provided,
consistent with the child’s needs as
identified in the IEP. We agree with the
commenters that these regulations
should require that, if it is determined
that the child’s behavior was a direct
result of the LEA’s failure to implement
the child’s IEP, the LEA must take
immediate steps to remedy those
deficiencies. Therefore, we are adding a
new paragraph (e)(3) to this section,
consistent with this obligation.
Changes: We have added a new
paragraph (3) to § 300.532(e) which
provides that, if the LEA, the parent,
and relevant members of the child’s IEP
Team determine that the child’s
behavior was a direct result of the LEA’s
failure to implement the child’s IEP, the
LEA must take immediate steps to
remedy those deficiencies.
Comment: A few commenters
expressed concern that the absence of
short-term objectives in the IEP hampers
the ability to determine if the child’s
conduct was the direct result of the
LEA’s failure to implement the IEP.
Discussion: We disagree with the
commenters that the absence of short-
term objectives in the IEP will hinder
the ability of the LEA, the parent, and
relevant members of the IEP Team to
determine whether a child’s conduct is
the direct result of the LEA’s failure to
implement the child’s IEP. The group
members making the manifestation
determination are required to review not
only the IEP of the child, but all relevant
information in the child’s folder, any
teacher observations of the child, and
any relevant information provided by
the parents. We believe the information
available to the group making the
manifestation determination, when
reviewed in its totality, is sufficient to
make a manifestation determination.
Changes: None.
Determination That Behavior Was a
Manifestation (§ 300.530(f))
Comment: Some commenters
recommended requiring that, even if a
child’s conduct is determined not to be
a manifestation of the child’s disability
pursuant to § 300.530(e), the IEP Team,
in determining how the child will be
provided services, must, at a minimum,
consider whether to conduct a
functional behavioral assessment and
implement a behavior plan. One
commenter requested that the
requirement in § 300.530(f) for
conducting a functional behavioral
assessment be removed from this
section and added to §§ 300.320 through
300.324, regarding IEPs.
Discussion: Section 300.530(f),
consistent with section 615(k)(1)(F) of
the Act, requires that a child with a
disability receive, as appropriate, a
functional behavioral assessment, and
behavioral intervention plan and
modifications, that are designed to
address the child’s behavior if the
child’s behavior that gave rise to the
removal is a manifestation of the child’s
disability. As provided in § 300.530(e),
a manifestation determination is only
required for disciplinary removals that
constitute a change of placement under
§ 300.536. However, we must recognize
that Congress specifically removed from
the Act a requirement to conduct a
functional behavioral assessment or
review and modify an existing
behavioral intervention plan for all
children within 10 days of a
disciplinary removal, regardless of
whether the behavior was a
manifestation or not.
We also recognize, though, that as a
matter of practice, it makes a great deal
of sense to attend to behavior of
children with disabilities that is
interfering with their education or that
of others, so that the behavior can be
addressed, even when that behavior will
not result in a change in placement. In
fact, the Act emphasizes a proactive
approach to behaviors that interfere
with learning by requiring that, for
children with disabilities whose
behavior impedes their learning or that
of others, the IEP Team consider, as
appropriate, and address in the child’s
IEP, ‘‘the use of positive behavioral
interventions, and other strategies to
address the behavior.’’ (See section
614(d)(3)(B)(i) of the Act). This
provision should ensure that children
who need behavior intervention plans to
succeed in school receive them. For
these reasons, we decline to make the
changes suggested.
Changes: None.
Comment: Many commenters
requested requiring that a functional
behavioral assessment older than one
year be considered invalid in a
manifestation determination review.
One commenter suggested that the
regulations include language that
requires the agency to conduct a new
functional behavioral assessment when
the child’s most recent functional
assessment is not current.
Discussion: We believe it would be
inappropriate to specify through
regulation what constitutes a ‘‘current’’
or ‘‘valid’’ functional behavioral
assessment as such decisions are best
left to the LEA, the parent, and relevant
members of the IEP Team (as
determined by the LEA and the parent)
who, pursuant to section 615(k)(1)(E) of
the Act, are responsible for making the
manifestation determination. As a
policy matter, a previously conducted
functional behavioral assessment that is
valid and relevant should be included
in the information reviewed by the LEA,
the parent, and relevant members of the
IEP Team when making a manifestation
determination.
Changes: None.
Special Circumstances (§ 300.530(g))
Comment: Some commenters
recommended requiring that an
appropriate permanent placement be in
effect at the beginning of the next school
year to ensure that a child is not held
in the 45-school day interim alternative
educational setting for a period that
extends into the new academic year.
Discussion: Interim alternative
educational settings under section
615(k)(1)(G) of the Act and § 300.530(g)
are limited to not more than 45 school
days, unless extended by the hearing
officer under § 300.532(b)(3) because
returning the child to his or her original
placement would be substantially likely
to cause injury to him or herself or to
others. The 45-school day placement in
an interim alternative educational
setting, unless extended by
§ 300.532(b)(3), is a maximum time limit
for a change in placement to an
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appropriate interim alternative
educational setting. We decline to
change the regulations as suggested by
the commenters based on the school
year ending before a child completes the
ordered school day placement in an
interim alternative educational setting
(in this example 45 school days). There
is nothing in the Act or these
regulations that precludes the public
agency from requiring the child to fulfill
the remainder of the placement when a
new school year begins as agency
personnel have this flexibility under
section 615(k)(1)(G) of the Act.
Changes: None.
Comment: Some commenters
requested that the regulations clarify
that a child’s home is not a suitable
placement setting for an interim
alternative educational setting for a
child with a disability removed
pursuant to § 300.530 for disciplinary
reasons.
Discussion: While the Act does not
specify the alternative setting in which
educational services must be provided,
the Act is clear that the determination
of an appropriate alternative
educational setting must be selected ‘‘so
as to enable the child to continue to
participate in the general education
curriculum, although in another setting,
and to progress toward meeting the
goals set out in the child’s IEP.’’ (See
section 615(k)(1)(D)(i) of the Act).
Further, section 615(k)(2) of the Act
provides that the interim alternative
educational setting must be determined
by the IEP Team. What constitutes an
appropriate interim alternative
educational setting will depend on the
circumstances of each individual case.
Whether a child’s home would be an
appropriate interim alternative
educational setting under § 300.530
would depend on the particular
circumstances of an individual case
such as the length of the removal, the
extent to which the child previously has
been removed from his or her regular
placement, and the child’s individual
needs and educational goals. In general,
though, because removals under
§§ 300.530(g) and 300.532 will be for
periods of time up to 45 days, care must
be taken to ensure that if home
instruction is provided for a child
removed under § 300.530, the services
that are provided will satisfy the
requirements for services for a removal
under § 300.530(d) and section
615(k)(1)(D) of the Act. We do not
believe, however, that it is appropriate
to include in the regulations that a
child’s home is not a suitable placement
setting for an interim alternative
educational setting as suggested by the
commenter. As stated above, the Act
gives the IEP Team the responsibility of
determining the alternative setting and
we believe the IEP Team must have the
flexibility to make the setting
determination based on the
circumstances and the child’s
individual needs.
Changes: None.
Comment: One commenter expressed
concern that the high standard of
‘‘serious bodily injury’’ is unreasonable.
The commenter states that school
personnel should be given discretion to
remove children for a 45 school-day
period who have committed assault or
otherwise acted dangerously. The
commenter stated that the standard for
having inflicted ‘‘serious bodily injury’’
would seldom be met without a child
being incarcerated. Another commenter
stated that the statutory definition of
serious bodily injury is too narrow to
have much practical value for school
purposes since most injuries on school
grounds are not related to the use of
dangerous weapons. This commenter
recommended expanding the definition
to include more typical injuries that
occur on school property, and not
limiting the definition by the language
in section 1365(3)(h) of title 18, United
States Code.
Discussion: Section 300.530(g)(3)
incorporates the new provision in
section 615(k)(1)(G)(iii) of the Act that
permits school personnel to remove a
child to an interim alternative
educational setting for not more than 45
school days without regard to whether
the behavior is a manifestation of the
child’s disability if the child has
inflicted serious bodily injury upon
another person while at school, on
school premises, or at a school function.
Section 615(k)(7)(D) of the Act is clear
that the term serious bodily injury has
the meaning given the term in section
1365(3)(h) of title 18, United States
Code. That provision defines serious
bodily injury as bodily injury, which
involves substantial risk of death;
extreme physical pain; protracted and
obvious disfigurement; or protracted
loss or impairment of the function of a
bodily member, organ, or mental
faculty. Nothing in the Act permits the
Department to expand the definition of
serious bodily injury, as used in
§ 300.530(g), to include a bodily injury
beyond that included in 18 U.S.C.
1365(3)(h). Therefore, we are not
amending § 300.530(g)(3).
Changes: None.
Comment: One commenter
recommended clarifying the distinction
between the removal of a child to an
interim alternative educational setting
by school personnel for inflicting
‘‘serious bodily injury upon another
person’’ (§ 300.530(g)(3)) and the
removal of the child by a hearing officer
because maintaining the child’s current
placement is ‘‘substantially likely to
result in injury to the child or others’’
(§ 300.532(b)(2)(ii)).
Discussion: The provision in
§ 300.530(g)(3), consistent with section
615(k)(1)(G)(iii) of the Act, indicates
that school personnel have the
discretion to remove a child with a
disability who inflicts ‘‘serious bodily
injury upon another person’’ from his or
her current placement to an interim
alternative educational setting for up to
45 school days (defined in 18 U.S.C.
1365(3)(h) as bodily injury), which
involve substantial risk of death;
extreme physical pain; protracted and
obvious disfigurement; or protracted
loss or impairment of the function of a
bodily member, organ, or mental
faculty. Section 300.530(g)(3) applies to
school personnel’s unilateral removal of
a child from the current educational
placement. School officials must seek
permission from the hearing officer
under § 300.532 to order a change of
placement of the child to an appropriate
interim alternative educational setting.
Hearing officers have the authority
under § 300.532 to exercise their
judgments after considering all factors
and the body of evidence presented in
an individual case when determining
whether a child’s behavior is
substantially likely to result in injury to
the child or others. Given that the
phrase ‘‘serious bodily injury,’’ as used
in § 300.530(g), has a definitive meaning
and the meaning of ‘‘substantially likely
to result in injury to the child or others’’
is left to the judgment of the hearing
officer, we do not believe further
clarification is needed.
Changes: None.
Notification (§ 300.530(h))
Comment: Some commenters
recommended clarifying that parental
notification in § 300.530(h) must take
place following disciplinary action
proposing a removal of a child for more
than 10 consecutive days or when there
is a disciplinary change in placement.
One commenter suggested that, to be
consistent with the Act, the parental
notification requirement should only
pertain to disciplinary decisions made
pursuant to § 300.530(g).
Discussion: We agree with the
commenters that the meaning of the
term ‘‘disciplinary action’’ in section
615(k)(1)(H) of the Act, regarding
parental notification, is unclear. We
believe that, on the one hand, it would
be unreasonably burdensome to read the
term as applying to every imposition of
discipline, including those that might
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not result in the child being removed
from the regular educational
environment at all. On the other hand,
we think the suggestion that the term be
applied only to removals under
§ 300.530(g) would inappropriately
narrow the application of the
notification provision and result in
parents not being notified for removals
that could reasonably have a significant
impact on a child’s education, such as
a removal for 10 school days or more.
Therefore, we agree with those
commenters who suggested that
paragraph (h) of this section should be
amended to clarify that the requirement
for parental notification applies to a
removal that constitutes a change in
placement of a child with a disability
for a violation of a code of student
conduct.
Changes: Section 300.530(h) has been
amended to clarify that on the date on
which the decision is made to make a
removal that constitutes a change in the
placement of a child with a disability
because of a violation of a code of
student conduct, the LEA must notify
the parents of that decision, and provide
the parents the procedural safeguards
notice described in § 300.504.
Comment: One commenter stated that
the requirement in § 300.530(h), which
requires the LEA to provide the parents
the procedural safeguards notice
described in § 300.504 whenever the
decision to take disciplinary action is
made, is inconsistent with the Act and
recommended revising § 300.530(h) to
be consistent with section 615(k)(1)(H)
of the Act. The commenter stated that
section 615(k)(1)(H) of the Act requires
the LEA to ‘‘notify’’ the parents of the
decision to take disciplinary action and
of all the procedural safeguards. The
commenter stated that the statutory
language implies that the LEA simply
needs to remind (notify) the parent of
the procedural safeguards given to them
for the school year as required in section
615(d)(1)(A)(i) through (iii) of the Act,
not to ‘‘provide’’ the parents with the
procedural safeguards notice as required
in § 300.530(h).
Discussion: The commenter is correct
that section 615(k)(1)(H) of the Act does
not specifically state that the LEA must
‘‘provide a copy’’ of the procedural
safeguards notice but, that the LEA must
‘‘notify’’ the parent of the LEA’s
decision to take disciplinary action and
of all procedural safeguards accorded
under section 615 of the Act. We
believe, however, that implicit in the
Act is a much higher standard for
‘‘notify’’ than ‘‘remind’’ parents as
suggested by the commenter. Further, in
other places where ‘‘notify’’ is used in
the Act, it is clear the meaning of the
term is ‘‘to provide notice ‘‘ (for
example, section 615(c)(2)(A) and (D) of
the Act). We believe § 300.530(h), which
requires the LEA to notify the parents of
its decision to change the placement of
their child with a disability because of
a violation of a code of student conduct
and provide the parents the procedural
safeguards notice described in
§ 300.504, is reasonable and consistent
with the Act.
Changes: None.
Definitions (§ 300.530(i))
Comment: Many commenters stated
that the definitions for serious bodily
injury, controlled substance, and
weapon are not readily available to
school personnel and parents and
requested that the full definitions be
included in § 300.530(i) and not only
referenced.
Discussion: As we stated in the
Analysis of Comments and Changes
discussion for subpart A of this part,
including the actual definitions of terms
that are defined in statutes other than
the Act is problematic because these
definitions may change over time and
the Department would need to amend
the regulations each time an included
definition that is defined in another
statute changes. However, we are
including the definitions of serious
bodily injury from section 1365(h)(3) of
title 18, United States Code, and
dangerous weapon from section
930(g)(2) of title 18, United States Code,
here for reference. We are not including
the definition of controlled substance
from section 202(c) of the Controlled
Substances Act because the definition is
lengthy and frequently changes.
The term serious bodily injury means
bodily injury that involves—
1. A substantial risk of death;
2. Extreme physical pain;
3. Protracted and obvious
disfigurement; or
4. Protracted loss or impairment of the
function of a bodily member, organ, or
mental faculty.
The term dangerous weapon means a
weapon, device, instrument, material, or
substance, animate or inanimate, that is
used for, or is readily capable of,
causing death or serious bodily injury,
except that such term does not include
a pocket knife with a blade of less than
21⁄2 inches in length.
Changes: None.
Determination of Setting (§ 300.531)
Comment: None.
Discussion: In light of the
restructuring of § 300.530 and the
elimination of cross-references in that
section, we are revising § 300.531 to
include a cross-reference to paragraph
(d)(5) of § 300.530 to make clear that, for
a removal that is a change of placement
under § 300.536, the child’s IEP Team
must determine the appropriate interim
alternative educational setting for the
child.
Changes: We have revised § 300.531
to include a cross-reference to paragraph
(d)(5) of § 300.530.
Appeal (§ 300.532)
Comment: Numerous commenters
requested clarifying in the regulations
that the public agency has the burden to
prove to a hearing officer that removing
the child is necessary because
maintaining the current placement is
substantially likely to result in injury to
self or others.
Discussion: Although the Act does not
address allocation of the burden of proof
in due process hearings brought under
the Act, the U.S. Supreme Court
recently addressed the issue. In
Schaffer, the Court first noted that the
term ‘‘burden of proof’’ is commonly
held to encompass both the burden of
persuasion (i.e., which party loses if the
evidence is closely balanced) and the
burden of production (i.e., the party
responsible for going forward at
different points in the proceeding). In
Schaffer, only the burden of persuasion
was at issue. The Court held that the
burden of persuasion in a hearing
challenging the validity of an IEP is
placed on the party on which this
burden usually falls—on the party
seeking relief—whether that is the
parent of the child with a disability or
the LEA. Where the public agency has
requested that a hearing officer remove
a child to an interim alternative
educational setting, the burden of
persuasion is on the public agency.
Since Supreme Court precedent is
binding legal authority, further
regulation in this area is unnecessary.
Changes: None.
Comment: Many commenters
requested that the regulations clarify
that the LEA has the burden of proof in
determining whether the child’s
behavior was or was not a manifestation
of the child’s disability and that the IEP
was appropriate and properly
implemented. Other commenters
expressed concern that the regulations,
as written, put the burden on the parent
to prove either that the conduct was
caused by or had a direct and
substantial relationship to the child’s
disability or that the IEP was not being
implemented.
Discussion: The concept of burden of
proof is not applicable to the
manifestation determination, which
does not occur in a hearing under the
Act. Under § 300.530(e), the LEA, the
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parent, and relevant members of the IEP
Team (as determined by the parent and
the LEA) are responsible for
determining whether the child’s
behavior is a manifestation of the child’s
disability, by conducting a fair inquiry
into the issues posed by
§ 300.530(e)(1)(i) and (ii). If the parent
disagrees with the manifestation
determination, they have the right to
appeal that decision by requesting a due
process hearing under § 300.532. At the
point a due process hearing is
requested, the concept of burden of
proof would be applicable. As stated
above, the Supreme Court determined in
Schaffer that the burden of proof
ultimately is allocated to the moving
party.
Changes: None.
Comment: A few commenters
recommended requiring that the hearing
officer must consider the
appropriateness of the child’s current
placement; consider whether the public
agency has made reasonable efforts to
minimize the risk of harm in the child’s
current placement, including the use of
supplementary aids and services; and
determine that the interim alternative
educational setting meets specified
requirements.
Discussion: We are not making
changes to the regulations, regarding a
hearing officer’s decision-making, to
require a hearing officer to consider
such factors as those suggested by the
commenters because a hearing officer
must have the ability to conduct
hearings and render and write decisions
in accordance with appropriate,
standard legal practice and exercise his
or her judgment in the context of all the
factors involved in an individual case.
Changes: None.
Comment: Some commenters
recommended clarifying the reference to
a ‘‘hearing’’ in § 300.532(a) and an
‘‘expedited hearing’’ in § 300.532(c).
Some of these commenters stated that
there seems to be a conflict between the
two hearings. Other commenters
questioned whether the hearing
referenced in paragraphs (a) and (c) of
this section must be conducted
consistent with all the impartial due
process hearing requirements. Another
commenter suggested that a hearing
requested pursuant to § 300.532 may be
contrary to section 615(h) of the Act,
which provides for the right to counsel,
to cross-examine witnesses, and to
present evidence and receive the record
of due process hearings.
Discussion: The hearing referenced in
§ 300.532(a) and (c) is the same hearing
and not separate hearings. Paragraph (a)
in this section states that a parent of a
child with a disability who disagrees
with any decision regarding a
placement, or the manifestation
determination, or an LEA that believes
that maintaining the current placement
of the child is substantially likely to
result in injury to the child or to others,
may request a hearing. Paragraph (c) of
this section clarifies that a hearing
requested under paragraph (a) of this
section is an impartial due process
hearing consistent with the due process
hearing requirements of §§ 300.510
through 300.514 (including hearing
rights, such as a right to counsel,
presenting evidence and cross-
examining witnesses, and obtaining a
written decision), except that the
timelines for the hearing are expedited
and a State may establish different
procedural rules for expedited due
process hearings as long as the rules
ensure the requirements in §§ 300.510
through 300.514 are met. We believe
these regulations will ensure that the
basic protections regarding hearings
under the Act are met, while enabling
States to adjust other procedural rules
they may have superimposed on due
process hearings in light of the
expedited nature of these hearings.
Further, we believe it is important that
all the due process protections in
§§ 300.510 through 300.514 are
maintained because of the importance of
the rights at issue in these hearings.
Changes: None.
Comment: One commenter
recommended the regulations clarify
that a placement determination made by
a hearing officer pursuant to his or her
authority under § 300.532(b), regarding
an appeal requested by a parent who
disagrees with the placement of a child,
is final and cannot be augmented by the
SEA or LEA.
Discussion: Section 300.514,
consistent with section 615(i)(1)(A) of
the Act, is clear that a hearing officer’s
decision made in a hearing conducted
pursuant to §§ 300.530 through 300.534
is final, except that a party may appeal
the decision under the provisions in
§ 300.514(b). Absent a decision upon
appeal, the SEA or the LEA may not
augment or alter the hearing officer’s
decision. We do not believe that the
regulations need to be clarified.
Changes: None.
Comment: One commenter
recommended clarifying whether there
is a difference between ‘‘likely to result
in injury to child or others’’ as used in
§ 300.532(b)(2)(ii) and ‘‘child would be
dangerous’’ as used in § 300.530(b)(3).
The commenter suggested that
§ 300.532(b)(3), which permits the LEA
to return to the hearing officer to request
continuation of an interim alternative
education placement if the LEA believes
the child would be dangerous if
returned to the original placement, is a
lesser standard than that required of the
hearing officer in § 300.532(b)(2)(ii),
which permits a hearing officer to order
a change in placement to an appropriate
interim alternative education setting if
the hearing officer determines that
maintaining the current placement of
the child is substantially likely to result
in injury to the child or to others.
Discussion: There is no intended
difference between the phrase ‘‘likely to
result in injury to the child or others’’
as used in § 300.532(b)(2)(ii) and ‘‘child
would be dangerous’’ as used in
§ 300.532(b)(3). Section 300.532(b)(2)(ii)
clarifies that the hearing officer can
order a change in placement of a child
with a disability to an interim
alternative educational setting for not
more than 45 school days if the hearing
officer determines that maintaining the
current placement of the child is
substantially likely to result in injury to
the child or others. To avoid confusion,
the term ‘‘dangerous’’ is replaced with
‘‘substantially likely to result in injury
to the child or to others.’’
Changes: We have replaced the term
‘‘dangerous’’ in § 300.532(b)(3) with
‘‘substantially likely to result in injury
to the child or to others.’’
Comment: A few commenters
questioned whether the change from the
heading ‘‘expedited due process
hearings’’ in current § 300.528 to
‘‘expedited hearing’’ in § 300.532(c)
represents a change in the hearings that
are available under § 300.532.
Discussion: The removal of ‘‘due
process’’ from the heading in current
300.528 does not represent a substantive
change. The change was made to track
the statutory requirements in the Act.
However, we believe it is important to
clarify that an expedited hearing under
§ 300.532(c) is a due process hearing
and the heading to paragraph (c) has
been amended to retain the heading in
current § 300.528. We also have made
additional technical and clarifying
changes to paragraphs (c)(2) and (c)(3) of
§ 300.532. In paragraph (c)(2) of this
section, we are clarifying that an
expedited hearing must occur within 20
school days of the date the complaint
requesting the hearing is filed and
restructuring the paragraph for clarity.
In paragraph (c)(3) of this section, we
are clarifying that the meeting
referenced in this paragraph is a
resolution meeting.
Changes: The heading in § 300.532(c)
has been revised to clarify that a hearing
under paragraph (c) of this section is an
‘‘expedited due process hearing.’’ We
have also made technical and clarifying
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changes to paragraphs (c)(2) and (c)(3) of
this section.
Comment: Many commenters
requested clarifying whether the
requirements in § 300.508(d), regarding
sufficiency of the complaint, apply to
the expedited hearing requested under
§ 300.532(c), pertaining to
disagreements with a decision regarding
disciplinary placements.
Discussion: In light of the shortened
timelines for conducting an expedited
due process hearing under § 300.532(c),
it is not practical to apply to the
expedited due process hearing the
sufficiency provision in § 300.508(d),
which requires that the due process
complaint must be deemed sufficient
unless the party receiving the due
process complaint notifies the hearing
officer and the other party in writing,
within 15 days of receipt of the due
process complaint, that the receiving
party believes the due process
complaint does not include all the
necessary content of a complaint as
required in § 300.508(b).
To identify the provisions that do
apply when a parent requests a hearing
under § 300.532(a), we have changed
§ 300.532(a) to clarify that parents and
the LEA may request a hearing under
§ 300.532(a) by filing a complaint
pursuant to §§ 300.507 and 300.508(a)
and (b).
Changes: We have changed
§ 300.532(a) to provide that the parent
and the LEA may request a hearing
under this section by filing a complaint
pursuant to §§ 300.507 and 300.508(a)
and (b).
Comment: Several commenters stated
that section 615(k) of the Act does not
require a resolution meeting as part of
an expedited hearing and recommended
removing the requirement in
§ 300.532(c)(3)(i) that a resolution
meeting must occur within seven days
of the date an expedited hearing is
requested under § 300.532(a). One
commenter stated that, given the
expedited timelines for the hearing and
the decision, Congress did not intend
for the resolution meeting to apply to an
expedited hearing under section
615(k)(4) of the Act.
Discussion: We are not removing the
requirement in § 300.532(c) requiring a
resolution meeting because an
expedited hearing under section
615(k)(3) of the Act is a due process
hearing subject to the provisions in
section 615(f) of the Act, including the
requirement that the LEA convene a
resolution meeting when the parent files
a due process complaint. Recognizing
the need to promptly resolve a
disagreement regarding a disciplinary
decision, we believe the resolution
meeting provides an opportunity for an
LEA and parents to resolve a
disagreement regarding a disciplinary
placement or manifestation
determination before the timeframe for
conducting a due process hearing
begins. In light of the requirement in
section 615(k)(4)(B) of the Act that an
expedited hearing must occur within 20
school days of the date the complaint
requesting the hearing is filed and a
determination must be made within 10
school days after the hearing, which is
a much shorter time frame than the one
for a due process complaint filed
pursuant to 615(f) of the Act, we
shortened the resolution meeting
timeline to fit into the expedited hearing
timeline. Recognizing the need to
ensure that the resolution meeting does
not delay the expedited hearing if an
agreement is not reached,
§ 300.532(c)(3) provides that the
resolution meeting must occur within
seven days of receiving notice of the
parent’s due process complaint
regarding a disciplinary placement
under §§ 300.530 and 300.531, or the
manifestation determination under
§ 300.530(e), and the hearing may
proceed unless the matter is resolved
within 15 days of the receipt of the
parent’s due process complaint
requesting the expedited due process
hearing, and all the applicable timelines
for an expedited due process hearing
under paragraph (c) of this section
commence. However, the parties may
agree to waive the resolution meeting or
agree to use the mediation process.
Changes: None.
Comment: Several commenters noted
that § 300.532(c)(3)(i) states that a
resolution meeting must occur within
seven days of the date the ‘‘hearing is
requested,’’ while § 300.510(a)(1),
consistent with section 615(f)(1)(B)(i)(I)
of the Act, states that the resolution
meeting must occur within 15 days of
‘‘receiving notice of the due process
complaint.’’ The commenters
recommended that the Department
amend § 300.532(c)(3)(i) to be consistent
with § 300.510(a)(1).
Discussion: We agree with the
commenters that the language in
§ 300.532(c)(3)(i) should be consistent
with § 300.510(a)(1) and are amending
§ 300.532(c)(3)(i) to state that a
resolution meeting must occur within
seven days of ‘‘receiving notice of the
parent’s due process complaint’’ to be
consistent with § 300.510(a)(1). In
addition, for consistency, we are
amending § 300.532(c)(3)(ii) to state that
the due process hearing may proceed
unless the matter has been resolved to
the satisfaction of both parties within 15
days of ‘‘the receipt of the parent’s due
process complaint.’’
Changes: Paragraphs (c)(3)(i) and (ii)
of § 300.532 have been amended as
stated above. Paragraph (c)(3) of this
section has also been amended to
remove the cross-reference to
§ 300.510(a)(3) and specific explanatory
language has been inserted.
Comment: One commenter asked
whether the intent of § 300.532(c)(3)(ii)
is to allow the expedited hearing to go
forward if the parent fails to participate
in the resolution meeting within 15 days
of receipt of a hearing request or
whether the resolution meeting and
hearing would be indefinitely delayed
in the context of the expedited hearing
for the failure of a parent to participate
in the resolution meeting.
Discussion: Section 300.532(c)(3)(i)
clearly states that the resolution meeting
must occur within seven days of a
public agency’s receiving notice of the
parent’s due process complaint. It is not
expected that parties will necessarily
reach agreement during the resolution
meeting; the parties often need time to
consider the resolution options offered
at the meeting. The intent of
§ 300.532(c)(3)(ii) is to allow parties
sufficient time to consider the
resolution options discussed in the
resolution meeting. However, if the
parties do not reach agreement within
15 days of receipt of the parent’s due
process complaint, the expedited
hearing may proceed and all the
applicable timelines for an expedited
due process hearing under paragraph (c)
commence. Lack of parent participation
in the resolution meeting would be
addressed the same way it is in a regular
due process hearing under § 300.510(b),
except that the timeframes will differ.
For these reasons, we believe it is
unnecessary to clarify the regulations.
Changes: None.
Comment: Several commenters
recommended removing proposed
§ 300.532(c)(4), which allows a State to
shorten the time periods for the
disclosure of evidence, evaluations, and
recommendations for expedited due
process hearings to two business days,
because it will not give a parent
adequate time to prepare for hearings,
especially when a parent doesn’t have a
lawyer. One commenter stated that
because LEAs have possession and
control of education records, a
reduction to two days for disclosure is
unfair and creates a hardship on a
parent in preparing for the hearing.
Other commenters stated that this
provision is inconsistent with section
615(f)(2) of the Act, which requires that
not less than five business days prior to
a hearing, parties must disclose all
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evaluations and recommendations that
parties intend to use at a hearing. A few
commenters stated that proposed
§ 300.532(c)(4) diminishes the
protections for children with disabilities
and their parents found in the July 20,
1983 regulations, and, therefore, violates
section 607(b)(1) and (b)(2) of the Act.
Discussion: We are persuaded by the
commenters that limiting the disclosure
time to two days would significantly
impair the ability of the parties to
prepare for the hearing, since one
purpose of the expedited hearing is to
provide protection to the child. We are
removing proposed § 300.532(c)(4),
which provides an exception to the
normal five day disclosure requirement.
Changes: We have removed proposed
§ 300.532(c)(4) for the reason stated
above. In addition, proposed paragraphs
(c)(5) and (c)(6) of this section have been
redesignated as paragraphs (c)(4) and
(c)(5), respectively. A technical edit has
been made to paragraph (c)(1) of this
section to ensure the reference to
proposed paragraphs (c)(2) through (5)
of this section now reference paragraphs
(c)(2) through (4) consistent with these
changes.
Comment: Numerous commenters
expressed concern that proposed
§ 300.532(c)(5) (new § 300.532(c)(4)),
which permits States to establish a
different set of procedural rules for
expedited due process hearings, could
permit States to re-write rules regarding
basic procedural safeguards. One
commenter expressed concern that
proposed § 300.532(c)(5) may lead to
abuse if the rules from §§ 300.511
through 300.514 regarding complaints,
sufficiency, raising new issues, losing
on procedural grounds, and appeals are
not part of the expedited due process
hearing requirements.
Discussion: We agree with the
commenters that proposed
§ 300.532(c)(5), as written, could be
interpreted to give States authority to
change due process rules provided for
in the Act. Therefore, we are amending
new § 300.532(c)(4) (proposed
§ 300.532(c)(5)) to clarify that while a
State may establish different State-
imposed procedural rules for expedited
due process hearings conducted under
this section than it has established for
other due process hearings, the State
must ensure that the requirements in
§§ 300.510 through 300.514 are met.
This will ensure that the basic
protections regarding expedited
hearings under the Act are met, while
enabling States, in light of the expedited
nature of these hearings, to adjust other
procedural rules they have established
for due process hearings.
Changes: New § 300.532(c)(4)
(proposed § 300.532(c)(5)) has been
amended to clarify that a State may
establish different State imposed rules
for expedited due process hearings
under § 300.532(c) than it has
established for other due process
hearings but, except for the timelines
modified as in paragraph (c)(3) of
§ 300.532, the State must ensure that the
requirements in §§ 300.510 through
300.514 are met.
Placement During Appeals (§ 300.533)
Comment: One commenter
recommended retaining the ‘‘stay-put’’
requirement in current § 300.526(b).
This section provides that if a child is
placed in an interim alternative
education setting and school personnel
propose to change the child’s placement
after expiration of the interim
alternative educational placement,
during the pendency of any proceeding
to challenge the proposed change in
placement, the child must remain in the
child’s placement prior to the interim
alternative educational setting. One
commenter requested clarification as to
whether the removal of current
§ 300.526(b) represents a substantive
change in the Department’s policy.
Other commenters requested clarifying
what the child’s placement would be
after the 45-day interim alternative
educational setting if the LEA requests
another hearing under § 300.532(b)(3).
Discussion: The Act changed the stay-
put provision applying to disciplinary
actions. The provisions regarding stay-
put in current § 300.527(b) are not
included in these regulations because
the provisions upon which § 300.527(b)
were based, were removed by Congress
from section 615(k)(4) of the Act. We,
therefore, are not revising the
regulations in light of Congress’ clear
intent that, when there is an appeal
under section 615(k)(3) of the Act by the
parent or the public agency, the child
shall remain in the interim alternative
educational setting chosen by the IEP
Team pending the hearing officer’s
decision or until the time period for the
disciplinary action expires, whichever
occurs first, unless the parent and the
public agency agree otherwise.
Section 300.533 reflects the statutory
requirements in section 615(k)(4)(A) of
the Act. For example, consistent with
§ 300.533, if a child’s parents oppose a
proposed change in placement at the
end of a 45-day interim alternative
educational placement, during the
pendency of the proceeding to challenge
the change in placement, the child
remains in the interim alternative
educational setting pending the decision
of the hearing officer or until the
expiration of the time period for the
disciplinary action, whichever occurs
first, unless the parent and the public
agency agree otherwise.
Changes: None.
Comment: One commenter
recommended that LEAs and SEAs not
be allowed to have a policy prohibiting
the IEP Team from deciding where the
child would ‘‘stay-put’’ during an
appeal under § 300.532. The commenter
stated that the IEP Team should have
the authority to maintain a child in his
or her current placement when
appropriate.
Discussion: Section 300.531,
consistent with section 615(k)(2) of the
Act, provides that the IEP Team
determines the interim alternative
educational setting for removals that
constitute a change in placement under
§ 300.536. Additionally, section
615(k)(4)(A) of the Act is clear that,
during an appeal under section
615(k)(3) of the Act, the child must
remain in the interim alternative
education setting pending the decision
of the hearing officer or until the
expiration of the time period for the
disciplinary action expires, whichever
comes first, unless the parent and the
LEA agree otherwise. Thus, under the
Act, whenever a hearing is requested
under section 615(k)(3) of the Act by the
parent or the LEA, it is the parties
involved in the hearing (i.e., the parent
and the LEA), not the IEP Team, that
may agree to change the time period of
the removal or the interim setting for the
child. We, therefore, do not believe it is
necessary or appropriate to regulate as
suggested by the commenter. There is
nothing in the Act or these regulations,
however, which would prohibit the
parents and the LEA from agreeing to
involve the IEP Team in any decision to
change the time period of the removal
or interim alternative educational
setting.
Changes: None.
Protections of Children Not Determined
Eligible for Special Education and
Related Services (§ 300.534)
Comment: A few commenters
requested including in § 300.534(b)(1)
language allowing the parent of the
child to express concerns about his or
her child orally to supervisory or
administrative personnel, rather than
requiring written notification. Other
commenters requested clarifying what it
means for parents to ‘‘express concern’’
to school personnel.
Discussion: Section 615(k)(5)(B)(i) of
the Act clearly states that parents must
express concern ‘‘in writing’’ to
supervisory or administrative personnel,
or a teacher of the child, that their child
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is in need of special education and
related services. To include the
language recommended by the
commenters in § 300.534(b)(1) to allow
the parent of the child to orally express
their concerns (as opposed to doing so
in writing) is inconsistent with and
would impermissibly broaden the
requirements in the Act. We do not
believe it is necessary to clarify the
phrase ‘‘express concern’’ in
§ 300.534(b) because we believe that, in
the context of this section, it is
understood to mean that a parent is
concerned that his or her child is in
need of special education and related
services and expresses that concern in
writing to the child’s teacher or
administrative personnel.
Changes: None.
Comment: One commenter
recommended adding to the basis of
knowledge criteria in § 300.534(b) that if
the child were currently receiving early
intervening services under § 300.226 the
LEA would be deemed to have
knowledge that a child is a child with
a disability.
Discussion: A public agency will not
be considered to have a basis of
knowledge under § 300.534(b) merely
because a child receives services under
the coordinated, early intervening
services in section 613(f) of the Act and
§ 300.226 of these regulations. The basis
of knowledge criteria is clearly stated in
section 615(k)(5)(B) of the Act and
§ 300.534. We do not believe that
expanding the basis of knowledge
provision, as recommended by the
commenter, would be appropriate given
the specific requirements in the Act.
However, if a parent or a teacher of a
child receiving early intervening
services expresses a concern, in writing,
to appropriate agency personnel, that
the child may need special education
and related services, the public agency
would be deemed to have knowledge
that the child is a child with a disability
under this part.
Changes: None.
Comment: A few commenters
recommended removing the
requirement in § 300.534(b)(3) that the
teacher of the child must express
specific concerns regarding a child’s
pattern of behavior directly to the
director of special education of the LEA
or to other supervisory personnel of the
LEA ‘‘in accordance with the agency’s
established child find or special
education referral system.’’ One of the
commenters stated that this language is
confusing and is not required by the
Act. One commenter requested
clarifying whether the LEA would be
deemed to have knowledge if the
information was relayed by a child’s
teacher in a written manner not
consistent with the LEA’s referral
system.
Discussion: Since not all child find
and referral processes in States and
LEAs would necessarily meet the
requirement in section 615(k)(5)(B)(iii)
of the Act that the teacher of the child,
or other personnel of the LEA, must
express specific concerns about a
pattern of behavior demonstrated by the
child ‘‘directly to the director of special
education of such agency or to other
supervisory personnel of the agency,’’
we are removing from § 300.534(b)(3)
the requirement that concerns be
expressed in accordance with the
agency’s established child find or
special education referral system.
We continue to believe the child find
and special education referral system is
an important function of schools, LEAs,
and States. School personnel should
refer children for evaluation through the
agency’s child or special education
referral system when the child’s
behavior or performance indicates that
they may have a disability covered
under the Act. Having the teacher of a
child (or other personnel) express his or
her concerns regarding a child in
accordance with the agency’s
established child find or referral system
helps ensure that the concerns
expressed are specific, rather than
casual comments, regarding the
behaviors demonstrated by the child
and indicate that the child may be a
child with a disability under the Act.
For these reasons, we would encourage
those States and LEAs whose child find
or referral processes do not permit
teachers to express specific concerns
directly to the director of special
education of such agency or to other
supervisory personnel of the agency, to
change these processes to meet this
requirement.
Changes: In light of some State child
find procedures, we have removed from
§ 300.534(b)(3) the requirement that the
teacher or other LEA personnel must
express concerns regarding a child’s
pattern of behavior in accordance with
the agency’s established child find or
special education referral system.
Comment: Several commenters
recommended clarifying that a child
who was evaluated and determined
ineligible for special education and
related services years ago would not be
an exception under § 300.534(c) to the
basis of knowledge requirement in
paragraph (b) of this section. Many
commenters recommended that an
evaluation and eligibility determination
that is more than three years old not
prevent deeming an LEA to have a basis
of knowledge. One of these commenters
specifically recommended revising
§ 300.534(c)(1)(i) to clarify that a public
agency would not be deemed to have
knowledge that a child is a child with
a disability if the parent of the child has
not allowed an evaluation of the child
pursuant to §§ 300.300 through 300.311
‘‘within three years prior to the
incident.’’
Discussion: The exceptions included
in § 300.534(c) track the statutory
requirements in section 615(k)(5)(C) of
the Act. The intent of Congress in
revising section 615(k)(5) of the Act was
to ‘‘ensure that schools can
appropriately discipline students, while
maintaining protections for students
whom the school had valid reason to
know had a disability’’ and that the
provisions in the Act should not have
the ‘‘unintended consequence of
providing a shield against the ability of
a school district to be able to
appropriately discipline a student.’’ (S.
Rpt. No. 108–185, p. 46). We are not
including time restrictions, as suggested
by the commenters, to the exceptions in
paragraph (c) of this section because we
believe such restrictions are
unnecessary and could have the
unintended consequence of hindering
the school’s ability to appropriately
discipline a child. We believe the basis
of knowledge provision in § 300.534(b)
is sufficient to ensure that a school had
valid reason to know that a child may
need special education and related
services.
Changes: None.
Comment: A few commenters
recommended removing
§ 300.534(c)(1)(i), which states that a
public agency would not be deemed to
have knowledge that a child is a child
with a disability if the parent has not
allowed an evaluation of the child
pursuant to §§ 300.300 through 300.311.
The commenters stated that this would
deny children with disabilities FAPE
and the procedural protections granted
children with disabilities removed from
their educational placement for
disciplinary reasons.
Discussion: The requirement in
§ 300.534(c)(1)(i), regarding the
exception to the basis of knowledge if a
parent refuses to consent to an
evaluation, is statutory. Further,
§ 300.300(a)(3), consistent with section
614(a)(1)(D)(ii)(I) of the Act, clearly
states that the public agency may, but is
not required to, pursue an initial
evaluation of a child if the parents
refuse to provide consent, or fail to
respond to a request to provide consent,
for the initial evaluation, by utilizing
the Act’s due process procedures. If a
public agency chooses not to utilize the
Act’s due process procedures, the LEA
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is not considered in violation of the
requirement to provide FAPE.
Changes: None.
Comment: A few commenters
recommended retaining in
§ 300.534(c)(2) the language in current
§ 300.527(c)(1)(i) to clarify that the
evaluation used to determine whether a
child is a child with a disability under
this part must be conducted pursuant to
§§ 300.300 through 300.311.
Discussion: It is accurate that the
evaluation referenced in § 300.534(c)(2)
must be conducted consistent with the
evaluation requirements in §§ 300.300
through 300.311. We agree with the
commenters that paragraph (c)(2) of this
section should be amended to make
clear that the evaluation conducted
under this paragraph must be conducted
consistent with the evaluation
requirements in §§ 300.300 through
300.311.
Changes: We have amended
paragraph (c)(2) to make clear that the
evaluation under this provision must be
conducted in accordance with
§§ 300.300 through 300.311.
Comment: A few commenters
recommended amending § 300.534(d)(2)
to require that if a request is made for
an evaluation of a child during the time
period in which the child is subjected
to a disciplinary removal under
§ 300.530, the evaluation must be
completed within ten days of the
parent’s request and that an eligibility
determination be made within five days
of the completion of the evaluation.
Discussion: We do not believe a
specific timeline for an expedited
evaluation or an eligibility
determination should be included in
these regulations. What may be required
to conduct an evaluation will vary
widely depending on the nature and
extent of a child’s suspected disability
and the amount of additional
information that would be necessary to
make an eligibility determination.
However, § 300.534(d)(2)(i), consistent
with section 615(k)(5)(D)(ii) of the Act,
specifies that the evaluation in these
instances be ‘‘expedited’’, which means
that an evaluation should be conducted
in a shorter period of time than a typical
evaluation conducted pursuant to
section 614 of the Act, which must be
conducted within 60 days of receiving
parental consent for the evaluation. (See
section 614(a)(1)(C)(i)(I) of the Act).
Further, we believe it would be
inappropriate to specify the timeframe
from the completion of an evaluation to
the determination of eligibility when
there is no specific statutory basis to do
so. The Department has long held that
eligibility decisions should be made
within a reasonable period of time
following the completion of an
evaluation.
Changes: None.
Comment: A few commenters stated
that § 300.534(d)(2) seems to imply that
when a request is made for an expedited
evaluation of a child subjected to a
disciplinary removal, the child would
receive an educational placement and
services pending the results of the
evaluation.
Discussion: We believe that
§ 300.534(d) is clear. Section 300.534(d)
does not require the provision of
services to a child while an expedited
evaluation is being conducted, if the
public agency did not have a basis of
knowledge that the child was a child
with a disability. An educational
placement under § 300.534(d)(2)(ii) may
include a suspension or expulsion
without services, if those measures are
comparable to disciplinary measures
applied to children without disabilities
who engage in comparable behavior. Of
course, States and LEAs are free to
choose to provide services to children
under § 300.534(d).
Changes: None.
Referral to and Action by Law
Enforcement and Judicial Authorities
(§ 300.535)
Comment: One commenter stated that
the requirement in § 300.535(b)(2),
which requires a public agency
reporting a crime to transmit copies of
the child’s special education and
disciplinary records only to the extent
that the transmission is permitted by the
Family Educational Rights and Privacy
Act (FERPA), is beyond the scope of the
Act and should be removed.
Discussion: We do not believe that
§ 300.535(b)(2) goes beyond the scope of
the Act as sections 612(a)(8) and 617(c)
of the Act direct the Secretary to take
appropriate action, in accordance with
FERPA, to assure the confidentiality of
personally identifiable information
contained in records collected or
maintained by the Secretary and by
SEAs and LEAs. We therefore are not
removing this provision. We maintain
that the provisions in section
615(k)(6)(B) of the Act, as reflected in
§ 300.535(b)(2), must be read consistent
with the disclosures permitted under
FERPA for the education records of all
children. Under FERPA, personally
identifiable information (such as the
child’s status as a special education
child) can only be released with
parental consent, except in certain very
limited circumstances. Therefore, the
transmission of a child’s special
education and disciplinary records
under paragraph (b)(2) of this section
without parental consent is permissible
only to the extent that such
transmission is permitted under FERPA.
Changes: None.
Change of Placement Because of
Disciplinary Removals (§ 300.536)
Comment: A few commenters
expressed concern that the requirements
in § 300.536 do not account for schools
with zero tolerance policies.
Discussion: We believe the provisions
in §§ 300.530 through 300.536 do
account for zero tolerance policies by
providing public agencies the flexibility
to implement discipline policies as they
deem necessary to create safe
classrooms and schools for teachers and
children as long as those policies are
fair and equitable for all children and
protect the rights of children with
disabilities. If a child with a disability
is removed from his or her current
placement and placed in an interim
alternative educational setting, another
setting, or suspended or expelled under
the public agency’s zero tolerance
policy, the disciplinary requirements in
§§ 300.530 through 300.536 apply.
Therefore, we do not believe it is
necessary to include language in
§ 300.536 regarding a public agency’s
zero tolerance policy as such policies
are irrelevant to what constitutes a
change in placement for disciplinary
removals under the Act.
Changes: None.
Comment: Many commenters
recommended removing proposed
§ 300.536(b) (new § 300.536(a)(2))
regarding a series of removals that
constitute a change in placement stating
it has no statutory basis.
Discussion: We believe section
615(k)(1)(B) of the Act regarding the
authority of school personnel to remove
children with disabilities for not more
than 10 school days, to the same extent
as nondisabled children, provides the
statutory basis for proposed § 300.536(b)
(new § 300.536(a)(2)). This section of the
Act does not permit using repeated
disciplinary removals of 10 school days
or less as a means of avoiding the
normal change in placement protections
under Part B of the Act.
Changes: None.
Comment: Numerous commenters
recommended removing the reference to
manifestation determination in
proposed § 300.536(b)(2) (new
§ 300.536(a)(2)(ii)). Several of these
commenters stated that it is unnecessary
since the manifestation determination is
reserved for removals longer than 10
school days. Some commenters stated if
the language in proposed paragraph
(b)(1) of this section (new paragraph
(a)(2)(i) of this section) that a series of
removals constitutes a pattern because
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the series of removals total more than 10
school days in a school year is going to
be retained, proposed paragraph (b)(2)
of this section (new paragraph (a)(2)(ii)
of this section) should be eliminated
because it is excessive and has no basis
in the Act. Other commenters found the
manifestation determination
requirement in proposed paragraph
(b)(2) of this section ‘‘circular’’ because
requiring a child’s behavior to be a
manifestation of his or her disability
before determining that a change in
placement has occurred under proposed
paragraph (b)(2) of this section (new
paragraph (a)(2)(ii) of this section) and
then requiring that a manifestation
determination be conducted under
§ 300.530(e), whenever a child’s
removal constitutes a change in
placement, is redundant and confusing.
Discussion: We agree with the
commenters that requiring that a child’s
behavior must be a manifestation of the
child’s disability before determining
that a series of removals constitutes a
change in placement under proposed
paragraph (b) of this section (new
paragraph (a)(2) of this section) should
be removed. We believe it is sufficient
for the public agency to conclude that
a change in placement has occurred if
a child has been subjected to a series of
removals that total more than 10 school
days in a school year, the behaviors are
substantially similar in nature, and such
additional factors as the length of each
removal, the total amount of time the
child has been removed, and the
proximity of the removals to one
another support the premise that the
series of removals constitute a pattern.
However, our removal of the
manifestation determination under
proposed paragraph (b)(2) of this section
(new paragraph (a)(2) of this section)
does not eliminate the obligation to
conduct a manifestation determination
under § 300.530(e) if the public agency’s
determination is that the series of
removals constitutes a change in
placement. Section 300.530(e) requires
that a manifestation determination be
conducted within 10 school days of any
decision to change the placement of a
child with a disability because of a
violation of a code of student conduct.
Changes: We have restructured
proposed § 300.536(b) as follows:
Proposed paragraph (b)(1) of this section
is redesignated as new paragraph
(a)(2)(i); proposed paragraph (b)(2) of
this section is redesignated as new
paragraph (a)(2)(ii); proposed paragraph
(b)(3) of this section is redesignated as
paragraph (a)(2)(iii). We also removed
from new paragraph (a)(2)(ii) of this
section (proposed paragraph (b)(2) of
this section) the requirement that a
child’s behavior must have been a
manifestation of the child’s disability
before determining that a series of
removals constitutes a change in
placement under § 300.536.
Comment: One commenter
recommended revising proposed
§ 300.536(b)(2) (new § 300.536(a)(2)(ii))
to clarify that the child’s behavior must
be substantially similar to the child’s
behavior in ‘‘previous’’ incidents that
resulted in the series of removals.
Discussion: Our intent in including
new § 300.536(a)(2)(ii) (proposed
§ 300.536(b)(2)) to these regulations is to
assist in the appropriate application of
the change in placement provisions in
paragraph (a)(2) of this section. We
concur with the commenter and believe
adding the reference to ‘‘previous’’
incidents provides clarity to the
provision that, when determining
whether a child has been subjected to a
series of removals that constitute a
pattern under § 300.536(a)(2), school
personnel should determine whether
the child’s behavior that resulted in the
removal is substantially similar to the
previous incidents that resulted in the
series of removals.
Changes: New § 300.536(a)(2)(ii)
(proposed § 300.536(b)(2)) has been
amended to reference the child’s
behavior in ‘‘previous’’ incidents that
resulted in the series of removals.
Comment: Many commenters
requested the regulations define
‘‘substantially similar behavior.’’ Many
commenters expressed concern that
there is no precedent or statutory
support for the use of ‘‘substantially
similar behavior’’ and requested
explaining the statutory basis for
including the provision. One
commenter suggested including a
provision in proposed § 300.536(b)(2)
that substantially similar behaviors
must have been recognized by the IEP
Team or be included in the IEP as
related to the child’s disability. One
commenter stated that what constitutes
‘‘substantially similar behavior’’ is
highly subjective, prone to overuse, and
likely to lead to litigation.
Discussion: We are not changing the
regulations because, in light of the
Department’s longstanding position that
a change in placement has occurred if
a child has been subjected to a series of
disciplinary removals that constitute a
pattern, we believe requiring the public
agency to carefully review the child’s
previous behaviors to determine
whether the behaviors, taken
cumulatively, are substantially similar
is an important step in determining
whether a series of removals of a child
constitutes a change in placement, and
is necessary to ensure that public
agencies appropriately apply the change
in placement provisions. Whether the
behavior in the incidents that resulted
in the series of removals is
‘‘substantially similar’’ should be made
on a case-by-case basis and include
consideration of any relevant
information regarding the child’s
behaviors, including, where
appropriate, any information in the
child’s IEP. However, we do not believe
it is appropriate to require in these
regulations that the ‘‘substantially
similar behaviors’’ be recognized by the
IEP Team or included in the child’s IEP
as recommended by the commenter. The
commenter is correct that what
constitutes ‘‘substantially similar
behavior’’ is a subjective determination.
However, we believe that when the
child’s behaviors, taken cumulatively,
are objectively reviewed in the context
of all the criteria in paragraph (a)(2) of
this section for determining whether the
series of behaviors constitutes a change
in placement, the public agency will be
able to make a reasonable determination
as to whether a change in placement has
occurred. Of course, if the parent
disagrees with the determination by the
public agency, the parent may request a
due process hearing pursuant to
§ 300.532.
Changes: None.
Comment: One commenter requested
an explanation of what recourse parents
have if they disagree with the public
agency’s change in placement decision
for a child who violates a code of
student conduct.
Discussion: If a parent of a child with
a disability disagrees with any decision
regarding a disciplinary change in
placement of a child under §§ 300.530
and 300.531, or the manifestation
determination under § 300.530(e), the
parent may request a due process
hearing pursuant to § 300.532.
Changes: None.
Comment: Several commenters
requested clarifying who determines
whether a series of removals under
proposed § 300.536(b) (new paragraph
(a)(2) of this section) constitutes a
change in placement. One commenter
recommended adding in proposed
paragraph (b) language from the
Analysis of Comments and Changes to
current § 300.520 clarifying that any
decision regarding whether a pattern of
removals constitutes a change in
placement must be made on a case-by-
case basis by the public agency. (March
12, 1999 (64 FR 12618)).
Discussion: Whether a pattern of
removals constitutes a ‘‘change in
placement’’ under new paragraph (a)(2)
of this section (proposed § 300.536(b))
must be determined on a case-by-case
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basis by the public agency. We agree it
is important to clarify this position in
these regulations and is necessary to
ensure proper implementation of this
section. We are including the language
from the Federal Register of March 12,
1999 (64 FR 12618), (as suggested by the
commenter.
Changes: A new paragraph (b) has
been added to § 300.536 to clarify that
the public agency (subject to review
through the due process and judicial
proceedings) makes the determination,
on a case-by-case basis, whether a
pattern of removals constitutes a change
in placement.
State Enforcement Mechanisms
(§ 300.537)
Comment: None.
Discussion: New § 300.537 is
addressed under the Analysis of
Comments and Changes section for this
subpart in response to comments on
§ 300.510(d).
Changes: We have added a new
§ 300.537 on State enforcement
mechanisms to clarify that,
notwithstanding §§ 300.506(b)(7) and
new 300.510(d)(2)(proposed
§ 300.510(c)(2)), nothing in this part
prevents a State from providing parties
to a written agreement reached as a
result of a mediation or resolution
process other mechanisms to enforce
that agreement, provided that such
mechanisms are not mandatory and do
not deny or delay the right of the parties
to seek enforcement of the written
agreement in a State court of competent
jurisdiction or in a district court of the
United States. We have also added a
cross reference to new § 300.573 in new
§ 300.510(d) (proposed § 300.510(c)),
regarding written settlement
agreements.
Subpart F—Monitoring, Enforcement,
Confidentiality, and Program
Information
Monitoring, Technical Assistance, and
Enforcement
State Monitoring and Enforcement
(§ 300.600)
Comment: Several commenters
recommended modifying § 300.600 to
include language from section 616(a)(1)
and (a)(3) of the Act to clarify that the
Department, like the States, has the
authority and obligation to monitor and
enforce Part B of the Act. The
commenters recommended that the
requirements in section 616(a)(1) of the
Act be included in the regulations
because improving accountability is one
of the most important goals of this
reauthorization and the Act mandates
the Secretary to monitor and enforce the
Act.
Discussion: We take the responsibility
to monitor and enforce compliance with
the Act seriously, but that responsibility
comes from the Act, and from the
Department’s inherent authority to
ensure that the laws it is charged with
implementing are carried out, and not
from these regulations. In general, we do
not believe that it is necessary to
include language on the responsibility
of the Secretary in the regulations, as,
under § 300.2, the regulations apply to
States that receive payments under Part
B of the Act and public agencies of
those States, but not to the Department.
Information on our monitoring and
enforcement activities is available on
the Department’s Web site at: http://
www.ed.gov/policy/speced/guid/idea/
monitor/index.html.
Changes: None.
Comment: Several commenters stated
that the monitoring priority areas in
section 616(a)(3) of the Act should be
included in § 300.600.
Discussion: We agree that the
monitoring priority areas in section
616(a)(3) of the Act related to State
responsibilities should be included in
the regulations because these provisions
require each State to monitor its LEAs
in each of the monitoring priority areas
specified in the Act. Accordingly, we
will add further clarification regarding
the monitoring priority areas from
section 616(a)(3) of the Act in § 300.600.
Changes: A new paragraph (d) has
been added to § 300.600 to include the
State monitoring priority areas in
section 616(a)(3) of the Act.
Comment: One commenter expressed
concern that there will be no
accountability on the part of States and
the Department for complying with the
requirements in section 616(a)(1) and
(a)(3) of the Act because the regulations
do not reflect these requirements.
Discussion: The requirements in
section 616(a)(1) of the Act, relating to
a State’s monitoring responsibilities, are
included in the regulations in
§ 300.600(a). Further, as indicated in the
response to the previous comment, a
provision regarding the State’s
responsibility to monitor LEAs located
in the State using the indicators in the
monitoring priority areas in section
616(a)(3) of the Act has been added in
new § 300.600(d). Regarding the
Secretary’s monitoring responsibility,
section 616(a)(1) of the Act is clear that
the Secretary must monitor
implementation of Part B of the Act
through the oversight of States’ exercise
of general supervision and through the
State performance plans. Sections
616(a)(3) and 616(b) further describe the
Secretary’s responsibilities to monitor
States’ implementation of Part B of the
Act. In addition, note 253–258 of the
Conf. Rpt. No. 108–779, p. 232, provides
that the Secretary must request such
information from States and
stakeholders as is necessary to
implement the purposes of the Act,
including the use of on-site monitoring
visits and file reviews to enforce the
requirements of the Act. We continue to
believe it is unnecessary to include the
Secretary’s obligations in the
regulations. We also do not believe
further clarification regarding State
accountability is necessary in § 300.600.
Changes: None.
Comment: One commenter noted that
§ 300.600(c) requires States to use
quantifiable indicators and such
qualitative indicators as are needed to
adequately measure performance in the
monitoring priority areas identified in
section 616(a)(3) of the Act. The
commenter expressed concern that this
requirement expands the data collection
burden on States and focuses on inputs,
processes, and whether certain
procedural rights are met, rather than
focusing on educational results and
outcomes for children with disabilities.
Discussion: Section 300.600 reflects
the requirements in the Act and
Congress’ determination that collection
of this data is necessary to fulfill the
purposes of the Act. Specifically,
section 616(b)(2) of the Act requires
each State to develop a State
performance plan that includes
measurable and rigorous targets for the
indicators established under the
monitoring priority areas. As directed
by section 616(a)(3) of the Act, the
Secretary also has established
quantifiable indicators in each of the
monitoring priority areas listed in the
Act and these regulations. These
indicators focus on improving
educational results and functional
outcomes for children with disabilities,
and include issues such as the provision
of services in the LRE, participation and
performance on Statewide assessments,
and graduation and dropout rates. In
addition, important systemic indicators,
such as monitoring, mediation, and
child find, are included. More
information about State performance
plans, the indicators, and the
Department’s review of the State
performance plans is available on the
Department’s Web site at: http://
www.ed.gov/policy/speced/guid/idea/
bapr/index.html.
Changes: None.
Comment: One commenter
recommended changing § 300.600 to
require States to develop policies and
procedures to analyze the performance
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of each public agency; develop written
policies and procedures to guide
monitoring activities; and develop and
maintain a stakeholder group, which
would include public school
administrators, advocates, family
members, and others, to guide
monitoring and enforcement activities.
Discussion: Section 300.149(b),
consistent with section 612(a)(11) of the
Act, already requires States to have
policies and procedures in effect to
ensure compliance with the monitoring
and enforcement requirements in
§§ 300.600 through 300.602 and
§§ 300.606 through 300.608. Sections
300.167 through 300.169, consistent
with section 612(a)(21) of the Act,
require States to establish and maintain
an advisory panel with broad and
diverse representation to advise States
on, among other things, developing
evaluations and corrective action plans
to address findings identified in Federal
monitoring reports. Accordingly, we do
not believe any modification of
§ 300.600, regarding State monitoring
procedures, is necessary.
Changes: None.
Comment: Several commenters
recommended modifying § 300.600 to
require States to establish a committee,
which includes advocates to oversee
monitoring and enforcement activities.
A number of commenters suggested that
this group, at a minimum, include
representatives of PTIs; protection and
advocacy groups; and parent, disability
advocacy, and education organizations.
Several commenters also
recommended requiring the advisory
committee to provide advice on the
development of the State’s performance
goals and indicators required in
§ 300.157, the State’s performance plan,
including measurable and rigorous
targets required in § 300.601(a)(1) and
(a)(3), the State’s report to the public
required in § 300.602(b)(2), the State’s
corrective action or improvement plan
under § 300.604(b)(2)(i), and other State
monitoring, improvement, and
enforcement activities.
Discussion: The State advisory panel,
required in §§ 300.167 through 300.169,
consistent with section 612(a)(21)(A) of
the Act, addresses many of the
commenters’ suggestions. The purpose
of the State advisory panel, as stated in
§ 300.167 and section 612(a)(21)(A) of
the Act, is to provide policy guidance to
the SEA with respect to special
education and related services for
children with disabilities. Pursuant to
§ 300.168 and section 612(a)(21)(B) of
the Act, a broad membership is
required. The duties of the panel are,
among other things, to advise the SEA
on unmet needs, evaluations, and
corrective action plans to address
findings identified in Federal
monitoring reports, consistent with
§ 300.169 and section 612(a)(21)(D) of
the Act. However, although we believe
that broad stakeholder involvement in
the development of the State
performance plans and annual
performance reports is very important,
we decline to regulate that a specific
group be involved in their development.
We have, however, provided guidance
in OSEP’s August 9, 2005 memorandum
to States, Submission of Part B State
Performance Plans and Annual
Performance Reports, (OSEP Memo 05–
12), located at http://www.ed.gov/
policy/speced/guid/idea/bapr/
index.html, which directs States to
provide information in their State
performance plans on how they
obtained broad input from stakeholders
on the State performance plan.
Accordingly, we find it unnecessary to
add any further clarification in
§ 300.600.
Changes: None.
Comment: Some commenters
recommended modifying § 300.600(b)(2)
to clarify that monitoring and
enforcement activities also apply to
programs under Part C of the Act. A few
commenters suggested clarifying that
Part C of the Act should be monitored
to evaluate how well it serves infants
and toddlers with disabilities and their
families.
Discussion: Section 300.600 applies
only to Part B of the Act. However, the
commenters are correct that the
monitoring and enforcement activities
in section 616 of the Act also apply to
Part C of the Act, as provided in section
642 of the Act. The Department will
address this recommendation in the
promulgation of regulations
implementing Part C of the Act.
Changes: None.
Comment: A few commenters
recommended clarifying that the
monitoring priority in section
616(a)(3)(A) of the Act, relating to the
provision of FAPE in the LRE, should be
based on the unique needs of the
individual child. One commenter stated
that the regulations should stress
individualization when determining
LRE. This commenter recommended
including language from note 89 of the
Conf. Rpt. No. 108–779, p. 186, which
highlights Congress’ intent that each
public agency ensure that a ‘‘continuum
of alternative placements (instruction in
regular classes, special classes, special
schools, home instruction, and
instruction in hospitals and institutions)
is available to meet the needs of
children with disabilities for special
education and related services.’’
Discussion: Section 300.115,
consistent with section 612(a)(5) of the
Act, requires each public agency to
ensure that a continuum of alternative
placements (including instruction in
regular classes, special classes, special
schools, home instruction, and
instruction in hospitals and institutions)
is available to meet the needs of
children with disabilities for special
education and related services. The LRE
provisions are intended to ensure that a
child with a disability is served in a
setting where the child can be educated
successfully and that placement
decisions are individually determined
based on each child’s abilities and
needs. We do not believe that the
change recommended by the commenter
is needed.
Changes: None.
Comment: One commenter
recommended changing § 300.600 to
specify that the Department’s
monitoring of States for compliance
with the LRE requirements in
§§ 300.114 through 300.117 include a
review of IEPs to determine if: (1)
Placements were based on the
individual unique needs of each child;
(2) placements were requested by
parents; (3) IEP Teams followed the IEP
requirements in §§ 300.320 through
300.328; (4) children received the
services required to participate and
progress in the general curriculum; (5)
children are in appropriate
environments; and (6) the educational
and emotional advancements of
children were considered. The
commenter recommended adding
language to direct individuals who
monitor the implementation of the Act
to look further than ‘‘numbers’’ when
monitoring the LRE requirements.
Discussion: As noted in section
616(a)(1) of the Act, the Secretary
monitors implementation of the Act
through oversight of States’ exercise of
general supervision and States’
performance plans. Section 616(a)(1) of
the Act further states that the Secretary
requires States to monitor and enforce
the implementation of the Act by LEAs.
The activities listed by the commenter
are not the type of monitoring activities
the Act requires the Secretary to
undertake. The commenter’s listed
activities are more appropriately the
responsibilities of States as they monitor
the implementation of the Act in their
LEAs.
Changes: None.
Comment: One commenter
recommended avoiding references to the
Act in §§ 300.600 through 300.609 when
references to the regulations could
accomplish the same result.
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Discussion: We agree with the
commenter and will revise §§ 300.600
through 300.609 accordingly.
Changes: We have revised §§ 300.600
through 300.609 by replacing statutory
citations with relevant regulatory
citations, where appropriate.
Comment: One commenter
recommended clarifying that racial
disproportionality in educational
placements falls within the monitoring
priority areas for monitoring and
enforcement.
Discussion: New § 300.600(d),
consistent with section 616(a)(3) of the
Act, includes disproportionate
representation of racial and ethnic
groups in special education and related
services (to the extent the representation
is the result of inappropriate
identification) as a monitoring priority.
Because the monitoring priority area
clearly refers to disproportionate
representation to the extent the
representation is a result of
inappropriate identification of children
with disabilities, and not placement, we
do not believe we can include
disproportionate representation
resulting from educational placement
within the scope of this monitoring
priority area.
Changes: None.
Comment: One commenter
recommended including a requirement
in § 300.600(c) that States develop
corrective action plans for each LEA
monitored to improve performance in
the monitoring priority areas. The
commenter also suggested requiring that
corrective action plans be completed by
the State within one year of the
monitoring report.
Discussion: Section 300.600(a),
consistent with section 616(a)(1)(C) of
the Act, requires States to monitor
implementation and enforcement of the
Act. As discussed elsewhere in this
section in response to comments
regarding § 300.604 (Enforcement), we
have revised § 300.600(a) to identify the
specific enforcement actions included
in § 300.604 that are appropriate for
States to use with LEAs. The new
§ 300.600(a) identifies specific methods
that must be used to ensure correction
when an LEA has been determined to
need assistance for two consecutive
years or to need intervention for three
or more consecutive years. For example,
§ 300.600(a) refers to § 300.604(b)(2)(i),
which discusses the preparation of a
corrective action or improvement plan.
In addition, new § 300.608(b) clarifies
that States can use other authority
available to them to monitor and enforce
the Act. States need the flexibility to
select the most appropriate mechanism
to ensure correction in a timely manner.
Requiring that corrective action plans be
developed in every instance is overly
prescriptive when there are multiple
methods that can be used. Accordingly,
we do not think it is necessary to make
the change suggested by the commenter.
Changes: None.
State Performance Plans and Data
Collection (§ 300.601)
Comment: One commenter expressed
concern that § 300.601(a)(3) and (b)(1)
over-regulate by requiring measurable
and rigorous targets beyond those
established in the Act. The commenter
expressed concern that this would result
in additional data collection and
analyses and require substantial
administrative staff time and additional
costs at the State and local levels. The
commenter stated that, while the
Department may monitor any area and
review any data, it is unnecessary to
establish additional non-statutory
indicators and targets.
Discussion: Section 300.601(a)(3),
consistent with section 616(a)(3) of the
Act, requires the Secretary to establish
indicators to adequately measure
performance in the monitoring priority
areas. Under section 616(b)(2)(A) of the
Act, States are required to establish
measurable and rigorous targets for the
indicators established under the
monitoring priority areas described in
section 616(a)(3). The Department
established indicators only in the three
monitoring priority areas listed in new
§ 300.600(d), consistent with section
616(a)(3) of the Act. Given that States
are required to establish targets for
indicators established under the
monitoring priority areas and indicators
were established only under the three
statutory monitoring priority areas, the
Secretary is not requiring measurable
and rigorous targets in areas beyond
those established in the Act. We
disagree with the commenter and do not
believe the Department has over-
regulated in this area.
Changes: None.
Comment: A few commenters
recommended changing § 300.601 to
specify that States must provide an
opportunity for public comment in
developing the State performance plan.
Discussion: We agree that the public
should be represented in developing
State performance plans. In note 253–
258 of the Conf. Rpt. No. 108–779, p.
232, Congress stated its expectation that
State performance plans, indicators, and
targets be developed with broad
stakeholder input and public
dissemination. OSEP Memo 05–12
requires States to provide information in
the overview section of the State
performance plan, clarifying how the
State obtained broad input from
stakeholders on the State performance
plan. Furthermore, §§ 300.167 through
300.169 clarify the State’s responsibility
to establish and maintain an advisory
panel, whose membership consists of
broad and diverse representation, to
advise States on many issues, including
developing evaluations and reporting on
data to the Secretary. Accordingly, we
believe that no additional clarification is
needed.
Changes: None.
Comment: One commenter expressed
concern that the requirement in
§ 300.601(a)(3) reflects a ‘‘one-size-fits-
all’’ approach that is not in the Act
because it requires the Secretary to
establish indicators for the State
performance plan and annual
performance reports and requires States
to collect data on each of the indicators.
Discussion: Section 616(a)(3) of the
Act requires the Secretary to establish
quantifiable indicators in each of the
monitoring priority areas, and
qualitative indicators, as needed, to
adequately measure performance.
Section 300.601(a) reflects this
requirement. The requirement that each
State establish measurable and rigorous
targets for the indicators established by
the Secretary and collect relevant data is
set forth in section 616(b)(2)(B) of the
Act. We do not agree that this presents
a one-size-fits-all approach because
States set their own targets for
indicators such as graduation, dropout,
and performance on assessments, and
identify improvement strategies specific
to the unique circumstances of their
State. In addition, OSEP Memo 05–12
includes the indicators established by
the Secretary and also indicates that
States have the flexibility to establish
their own indicators, in addition to the
indicators established by the Secretary.
Changes: None.
Comment: One commenter
recommended amending § 300.601 to
specify that, as part of the State’s
performance plan, measurable and
rigorous targets are only required for the
indicators established by the Secretary
and are not required for any additional
indicators established by the State.
Discussion: Pursuant to the guidance
in OSEP Memo 05–12, the Secretary has
established indicators under the three
monitoring priority areas in new
§ 300.600(d), consistent with section
616(a)(3) of the Act. States may choose
to add additional indicators if there are
other areas the State wishes to improve.
If the State adds indicators to the State
Performance Plan, the State must
include measurable and rigorous targets
for each additional indicator because
the purpose of the State performance
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plan is to evaluate the State’s efforts to
implement the statutory requirements
and describe how the State will
improve. States are free to have
additional indicators that are not
included in the State performance plan
and these indicators would not need to
have measurable and rigorous targets.
Changes: None.
State Use of Targets and Reporting
(§ 300.602)
Comment: A few commenters
recommended modifying
§ 300.602(b)(1)(A) to require each LEA
to work with an LEA monitoring
stakeholder advisory committee that
would advise the LEA on analyzing and
reporting its performance on the targets
in the State performance plan and on
developing LEA plans. The commenters
stated that, at a minimum, the advisory
committee should include
representatives of parents, disability
advocacy groups, and other
organizations.
Discussion: There is nothing in
section 616 of the Act that requires
LEAs to establish local stakeholder
groups. Given the wide variation in the
size of LEAs across the country and the
wide variety of issues facing those
LEAs, we do not believe that a Federal
requirement is appropriate. States have
the discretion to establish (or have their
LEAs establish) local advisory groups to
advise the LEAs, if they so choose.
Changes: None.
Comment: One commenter
recommended modifying § 300.602 to
require each State to include LEA
corrective action plans (including
indicators, targets, findings, and
timelines for LEAs to correct any
findings) in the State’s report to the
public on the performance of each LEA
in the State on the targets in the State’s
performance plan.
Discussion: Section 300.602,
consistent with section 616(b)(2)(C) of
the Act, requires States to report
annually on the performance of each
LEA against targets in the State
performance plan. We believe requiring
States to include LEAs’ corrective action
plans in the States’ public reports would
create additional burden for States that
is not required by the Act.
Changes: None.
Comment: Several commenters
recommended revising § 300.602 to
specify that the State performance plan
and the public report on LEAs’
performance must be in language that is
accessible to, and understandable by, all
interested parties.
Discussion: The Department expects
the information that a State reports in its
annual performance reports and in the
public reports on LEA performance will
be made available in an understandable
and uniform format across the State,
including alternative formats upon
request, and, to the extent practicable,
in a language that parents understand.
We do not believe it is necessary to add
a specific requirement to the regulations
because other Federal laws and policies
already require that information to
parents be available in alternative
formats and to parents who are limited
English proficient. Specifically, Title VI
of the Civil Rights Act of 1964 requires
SEAs and LEAs to communicate to
parents with limited English proficiency
what is communicated to parents who
are not limited English proficient.
Under Title VI, SEAs and LEAs have
flexibility in determining what mix of
oral and written translation services
may be necessary and reasonable for
communicating this information.
Similarly, Executive Order 13166
requires that recipients of Federal
financial assistance take reasonable
steps to ensure meaningful access by
individuals with limited English
proficiency. For individuals with
disabilities, title II of the Americans
with Disabilities Act requires that State
and local governments, and Section 504
of the Rehabilitation Act of 1973
requires that recipients of Federal
financial assistance, ensure that their
communications with individuals with
disabilities are as effective as their
communications with others, and that
appropriate auxiliary aids and services
are available when necessary to ensure
effective communication.
Changes: None.
Comment: One commenter suggested
that the annual performance report
include cross-references or links to the
State report card and local report cards
on the academic performance of
children with disabilities under the
ESEA.
Discussion: States may choose, but are
not required, to include in the annual
performance report the cross-references
or links suggested by the commenter.
States also may choose, but are not
required, to use their ESEA report cards
for reporting annually on the
performance of LEAs on the indicators
in the State performance plan. We do
not believe it is appropriate to require
States to cross-reference or link to ESEA
report cards because it is overly
burdensome and may create confusion
because the indicators and timeframe
for reporting may not be the same
between the two reporting systems.
Changes: None.
Comment: One commenter
recommended requiring States to post
their monitoring reports of LEAs on the
States’ Web site and make reports on
monitoring activities for each LEA
available to the public in written format
and to the media.
Discussion: States have the discretion
to decide how these reports are made
available to the public. There is nothing
in the Act that requires States to post
monitoring reports of LEAs on the
States’ Web site or through other means.
However, States may, if they wish, make
such postings.
Changes: None.
Comment: One commenter suggested
removing § 300.602(b)(1)(ii), which
requires a State to include in its report
to the public on the performance of each
LEA, the most recent performance data
on each individual LEA and the date the
data were obtained, if the State collects
these data through monitoring or
sampling.
Discussion: We believe that the data
we are requiring the States to provide
under § 300.602(b)(1)(ii) are necessary
for the proper implementation of the
Act. Providing the most recent LEA
performance data and the date the data
were obtained will reduce data burden
while maintaining the States’
accountability for results, specifically
related to indicator data that are more
difficult to collect because those data
are not collected through State-reported
data collection systems under section
618 of the Act. However, the proposed
regulations were not as clear as they
should have been about the conditions
under which States may use monitoring
and sampling data. Therefore, we are
revising § 300.601(b) by adding a new
provision that specifies that if the
Secretary permits States to collect data
on specific indicators through State
monitoring or sampling, and a State
chooses to collect data on those
indicators through State monitoring or
sampling, the State must collect data on
those indicators on each LEA at least
once during the period of the State
performance plan. This will require that
States collect data to assess each LEA’s
performance on indicators for which
State monitoring or sampling data are
permitted during the period of the State
performance plan, so that the public
will receive specific information about
each LEA. We also are revising
§ 300.602(b)(1)(ii) to make clear that the
required information about specific
LEAs would only have to be included in
the reports to the public on LEA
performance required by
§ 300.602(b)(1)(i)(A), which should
prevent this provision from being
interpreted to require LEA-specific
reporting to the Secretary.
Changes: We have renumbered
§ 300.601(b)(2) as § 300.601(b)(3) and
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added a new § 300.601(b)(2) to specify
that, if permitted by the Secretary, if a
State collects data on an indicator
through State monitoring or sampling,
the State must collect data on the
indicator at least once during the period
of the State performance plan. We also
have revised § 300.602(b)(1)(ii) to
provide a more specific reference to the
public report required under
§ 300.602(b)(1)(i)(A).
Comment: One commenter
recommended that § 300.602 specify
that data on disproportionality be
reported to the public, pursuant to
sections 616(b)(2)(C) and 618 of the Act.
Discussion: The provisions in
§ 300.602 already include the
requirement suggested by the
commenter. Section 300.602, consistent
with section 616(b)(2)(C) of the Act,
requires each State to use the targets
established in its State performance
plan and the monitoring priority areas
described in § 300.600(d), to analyze the
performance of each LEA in the State,
and to report annually to the public on
such performance. As described in new
§ 300.600(d), the monitoring priority
areas on which the State will report
include the disproportionate
representation of racial and ethnic
groups in special education and related
services, to the extent the
disproportionate representation is the
result of inappropriate identification.
Accordingly, States are required to
report this information to the public.
States must establish targets on each of
the indicators set by the Secretary.
We also note that § 300.642(a),
consistent with section 618(b) of the
Act, requires that data collected
pursuant to section 618 of the Act be
reported publicly. These data will
include State-level data on the number
and percentage of children with
disabilities by race and ethnicity on a
number of measures, including
identification as children with
disabilities, placement, graduation and
drop-out, and discipline. Accordingly,
we do not believe any further changes
to the regulations are necessary.
Changes: None.
Secretary’s Review and Determination
Regarding State Performance (§ 300.603)
Comment: One commenter expressed
concern that the tone and substance of
the monitoring and enforcement
provisions in §§ 300.603 through
300.609, related to approval or
disapproval by the Secretary of the
State’s performance plan and
interventions against the SEA, are
overly prescriptive and negative. The
commenter stated that enforcement
provisions applicable to all elementary
school and secondary school programs
already exist in GEPA.
Discussion: We do not agree that the
enforcement provisions are overly
prescriptive. These enforcement
provisions simply reflect the statutory
requirements in section 616(d) and (e) of
the Act. These provisions are more
specific than the provisions in GEPA.
Changes: None.
Comment: A few commenters
recommended including in the
regulations the provisions in section
616(c) of the Act, regarding the process
the Secretary must follow if the
Secretary finds that a State performance
plan does not meet the requirements in
section 616 of the Act.
Discussion: We believe that the
review process spelled out in section
616(c) of the Act is sufficiently clear and
that regulations are not necessary.
Further, under the statutory framework,
the State performance plans were due to
the Department by December 3, 2005,
and the Department’s review of the State
performance plans for the six-year
period of federal fiscal years 2005
through 2011 has already been
completed. Accordingly, we believe it is
unnecessary to add further clarification
regarding the Secretary’s responsibilities
in § 300.603.
Changes: None.
Comment: One commenter
recommended that the Department’s
process for approval of targets in State
performance plans be rational,
consistent, and transparent. For
example, the commenter suggested that
as the Department responds to and
negotiates with a State regarding the
State’s targets, the process should be
open so that States can learn from the
Department’s discussions with other
States.
Discussion: We agree with the
commenter. Accordingly, the
Department has posted its analyses of
each State’s performance plan on the
Department’s Web site at: http://
www.ed.gov/fund/data/report/idea/
partbspap/index.html. In so doing, the
Department’s analyses are transparent
and provide States with the opportunity
to review the Department’s responses to
other States’ performance plans.
Changes: None.
Enforcement (§ 300.604)
Comment: A few commenters
recommended changing the
enforcement requirements in § 300.604
to clarify the actions a State must take
relating to enforcement. The
commenters stated that it is essential
that States understand their explicit
authority under the Act to take certain
enforcement actions against LEAs if the
State is identified as a State that needs
assistance, needs intervention, or needs
substantial intervention. The
commenters stated that some of the
enforcement mechanisms available to
the Secretary in section 616(e) of the
Act, such as requiring entry into a GEPA
compliance agreement or referral to the
Office of the Inspector General, may
have no direct counterpart under State
law and therefore, would not be
available to States.
Discussion: The Department agrees
that it is important to clarify the specific
enforcement actions that States must
use against an LEA if the LEA is
determined to need assistance,
intervention, or substantial intervention.
We are revising § 300.600(a) to identify
the specific enforcement actions
identified in § 300.604 that are
appropriate for a State, as opposed to
the Federal government, to use if it
determines that an LEA needs assistance
or intervention in implementing the
requirements of Part B of the Act.
Changes: We have revised
§ 300.600(a) to require States to enforce
Part B of the Act in accordance with the
enforcement mechanisms identified in
§ 300.604(a)(1) and (a)(3), (b)(2)(i) and
(b)(2)(v), and (c)(2).
Comment: One commenter
recommended including in §§ 300.600
through 300.609 a method for
individuals or organizations to inform
the Department about compliance issues
in their district or State.
Discussion: The Department is
committed to obtaining input from
individuals and organizations as part of
its monitoring process, and has a system
for receiving and responding to citizen
complaints about LEA and State
compliance. However, detailed
operational procedures for monitoring
State activities are not typically
included in regulations. Accordingly,
we believe it is unnecessary to provide
further clarification regarding specific
monitoring procedures in §§ 300.600
through 300.609.
Changes: None.
Comment: One commenter
recommended clarifying in § 300.604
that withholding State administrative
funds would only occur following the
Secretary’s determination that, for three
or more consecutive years, the State
needs intervention in implementing the
requirements of Part B of the Act.
Discussion: Section 300.604(b)(2)(iii),
consistent with section 616(e)(2)(iii) of
the Act, clearly delineates that
consideration of withholding State
administrative funds occurs following a
‘‘needs intervention’’ determination by
the Secretary for three or more
consecutive years. Therefore, we do not
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believe it is necessary to add further
clarification regarding the withholding
of State administrative funds.
Changes: None.
State Enforcement and Rule of
Construction (§§ 300.608 and 300.609)
Comment: One commenter
recommended including in § 300.608 a
provision that would allow an SEA to
use any means authorized by law to
effect compliance when it is determined
that an LEA is not meeting the
requirements of Part B of the Act,
including the targets in the State’s
performance plan.
Discussion: The enforcement scheme
outlined in §§ 300.600(a), 300.604, and
300.608 represents the minimum steps
that a State must take to enforce
compliance with the Act. (The
minimum enforcement steps the
Department must take are specified in
§ 300.604.) However, we believe that the
regulations should be clear that States
have the flexibility to use other
mechanisms to bring about compliance,
just as section 616(g) of the Act and
§ 300.609 recognize that the Department
needs the flexibility to use the authority
in GEPA to monitor and enforce the Act,
in addition to the enforcement program
laid out in section 616(e) of the Act.
Therefore, we will add to § 300.608 a
new provision noting that States are not
restricted from using any other authority
available to them to monitor and enforce
the Act. Taking steps under any such
authority, however, does not relieve a
State from complying with the
requirements of §§ 300.600(a), 300.604,
and 300.608(a).
Changes: We have designated
proposed § 300.608 as § 300.608(a) and
added a new paragraph (b) to specify
that States are not restricted from
utilizing any other authority available to
them to monitor and enforce the Act.
We also have clarified in § 300.609 that
the reference to ‘‘authority under
GEPA’’ includes the provisions of 34
CFR parts 76, 77, 80, and 81, including
the imposition of special conditions
under 34 CFR 80.12.
Confidentiality of Information
Confidentiality (§ 300.610) and
Definitions (§ 300.611)
Comment: None.
Discussion: Both §§ 300.610 and
300.611 contained incorrect references
to § 300.628, which does not exist. We
have revised those references.
Changes: We have removed the
incorrect references to § 300.628 in
§§ 300.610 and 300.611 and replaced
them with references to § 300.627 and
§ 300.625, respectively.
Notice to Parents (§ 300.612)
Comment: One commenter stated that
§ 300.612 exceeds the authority under
sections 612(a)(8) and 617(c) of the Act.
Discussion: Proposed § 300.612
incorrectly referenced the requirements
in § 300.121. The correct reference is
§ 300.123, which requires each State to
have policies and procedures to ensure
that public agencies in the State protect
the confidentiality of personally
identifiable information. We will make
this correction in § 300.612. With this
correction, § 300.612 requires the SEA
to give notice to parents that fully
informs them about the requirements
regarding the confidentiality of
personally identifiable information.
We do not agree that § 300.612
exceeds the authority under sections
612(a)(8) and 617(c) of the Act. Section
612(a)(8) of the Act requires agencies in
the State to comply with section 617(c)
of the Act, and section 617(c) of the Act
gives the Secretary the authority to take
appropriate measures to protect the
confidentiality of any personally
identifiable data, information, and
records collected or maintained by the
Secretary and by SEAs and LEAs. This
is a longstanding requirement in the
regulations that we do not believe
should be changed.
Changes: We have changed
§ 300.612(a) by removing the incorrect
reference to § 300.121 and replacing it
with a reference to § 300.123.
Comment: One commenter expressed
concern that summaries of the policies
and procedures that participating
agencies must follow regarding storage,
disclosure to third parties, retention,
and destruction of personally
identifiable information would not be
adequate to fully inform parents.
Discussion: Section 300.612(a)(3) is a
longstanding requirement that has been
in the Part B regulations since they were
published in 1977. The Department’s
experience in administering this
program indicates that the requirement
to include a summary of policies that
participating agencies must follow
regarding storage, disclosure to third
parties, retention, and destruction of
personally identifiable information is an
effective way for parents to be informed
about these requirements. Parents who
desire additional information regarding
their rights, consistent with these
policies, can request the additional
information from the SEA. SEAs are
encouraged to comply with such
requests without undue delay.
Changes: None.
Comment: One commenter
recommended requiring the SEA to post
its confidentiality of personally
identifiable information notice for
parents on the State’s Web site.
Discussion: We believe that it is up to
each State to determine whether posting
this notice on the State’s Web site will
serve the needs of parents and public
agencies in the State. We, therefore,
decline to regulate on this matter.
Changes: None.
Amendment of Records at Parent’s
Request (§ 300.618) and Opportunity for
a Hearing (§ 300.619)
Comment: A few commenters
requested clarification regarding how
parents can register their disagreement
with information in their child’s record
and request that their child’s record be
changed.
Discussion: Sections 300.618,
300.619, and 300.621 all address the
process that parents must use to seek
changes in their child’s records if they
believe the record is inaccurate,
misleading, or otherwise in violation of
the privacy or other rights of the child.
When a parent requests that a change be
made in the child’s record, under
§ 300.618, agencies must amend the
information within a reasonable time or
inform parents of the agency’s refusal to
amend the information and the parent’s
right to a hearing to challenge the public
agency’s determination. If parents want
to challenge the accuracy of information
in the child’s education records, they
may do so by requesting a hearing under
§ 300.619 (by contacting the LEA staff
member assigned that responsibility).
Section 300.621 specifically provides
that a hearing held under § 300.619
must be conducted according to the
procedures in 34 CFR 99.22. 34 CFR
99.22, in turn, requires a hearing to meet
the following minimum requirements:
(a) The educational agency or
institution shall hold the hearing within
a reasonable time after it has received
the request for the hearing from the
parent or eligible student.
(b) The educational agency or
institution shall give the parent or
eligible student notice of the date, time,
and place, reasonably in advance of the
hearing.
(c) The hearing may be conducted by
any individual, including an official of
the educational agency or institution,
who does not have a direct interest in
the outcome of the hearing.
(d) The educational agency or
institution shall give the parent or
eligible student a full and fair
opportunity to present evidence
relevant to the issues raised under
§ 99.21. The parent or eligible student
may, at their own expense, be assisted
or represented by one or more
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individuals of his or her own choice,
including an attorney.
(e) The educational agency or
institution shall make its decision in
writing within a reasonable period of
time after the hearing.
(f) The decision must be based solely
on the evidence presented at the
hearing, and must include a summary of
the evidence and the reasons for the
decision.
The parent is not required, under the
Act and these regulations, to follow the
procedures that are applicable to filing
a due process complaint under
§§ 300.507 through 300.510. This is
because the hearing authorized under
§ 300.619 is for the explicit purpose of
giving a parent the opportunity to
challenge the information in education
records when a parent believes the
information is inaccurate, misleading, or
otherwise in violation of the privacy or
other rights of the child. We do not
believe further clarification regarding
the specific procedures in §§ 300.618
and 300.619 is necessary. The
procedures used for these hearings vary
from State to State, and we believe it is
best to give States the flexibility to
develop their own procedures for such
hearings, as long as they meet the
requirements in § 300.621.
Changes: None.
Consent (§ 300.622)
Comment: One commenter suggested
requiring schools to obtain parental
consent before disclosing personally
identifiable information to any party,
unless authorized by 34 CFR part 99.
Another commenter requested
clarification regarding the requirements
in § 300.622.
Discussion: We agree that § 300.622
should be revised to more accurately
reflect the Department’s policies
regarding when parental consent is or is
not required for disclosures of
personally identifiable information to
officials of participating agencies, and
other individuals and entities. In some
instances, current § 300.571 (proposed
§ 300.622) has been construed to
prohibit disclosures without parental
consent under this part that would be
permitted without parental consent
under FERPA. Accordingly, when final
regulations for this program were issued
in 1999, we amended current
§ 300.571(a) (proposed § 300.622(a)) to
clarify that the release of disciplinary
records to law enforcement authorities
could occur without parental consent, to
the extent that such disclosure was
permitted under FERPA. In order to
more clearly state the Department’s
longstanding position that consent is
required for disclosures of personally
identifiable information to parties, other
than officials of participating agencies
collecting or using the information
under this part, unless the information
is contained in education records and
the disclosure is allowed without
parental consent under 34 CFR part 99,
we are reorganizing § 300.622(a).
Under FERPA and § 300.622(a),
schools, generally, must have written
permission from the parent (or child
who has reached the age of majority) in
order to release information from a
child’s education records. However,
there are exceptions to this general rule
under FERPA that also apply to the
records of children with disabilities and
permit the release of information from
education records without parental
consent. Under 34 CFR 99.31(a), schools
can disclose education records without
consent under the circumstances
specified in § 99.31 including if the
disclosure meets one or more of the
following conditions:
School officials with legitimate
educational interests, as determined by
the educational agency or institution;
Other schools where the student seeks
or intends to enroll, subject to the
requirements of § 99.34;
Specified authorized representatives,
subject to the requirements of § 99.35, in
connection with an audit or evaluation
of Federal or State-supported education
programs, or compliance with or
enforcement of Federal legal
requirements which relate to those
programs;
Appropriate parties in connection
with financial aid to a student for which
the student has applied or which the
student has received, if necessary for
specified purposes;
Organizations conducting certain
studies for or on behalf of the school;
Accrediting organizations;
To comply with a judicial order or
lawfully issued subpoena;
Appropriate officials in cases of
health and safety emergencies; and
State and local authorities, within a
juvenile justice system, pursuant to
specific State law.
We believe that the changes to
§ 300.622(a) state more clearly that
under § 300.622, disclosures of
personally identifiable information from
education records of children with
disabilities can be made without
parental consent if the disclosure
without parental consent would be
permissible under FERPA. For example,
in a situation involving a health
emergency, information from a child
with a disability’s education records
could be released to a hospital without
parental consent in order to ensure that
the child received appropriate
emergency health services.
Under proposed § 300.622(b), parental
consent is not required for disclosures
of personally identifiable information to
officials of participating agencies for
purposes of carrying out a requirement
of this part. This is not a new
requirement; proposed § 300.622(b) is
the same as current § 300.571(b).
However, we believe the requirement
should be stated more clearly, and
therefore, are changing the language in
paragraph (b). We believe that this
provision is particularly important to
ensure that participating agencies have
the information they need to carry out
the requirements of this part in an
effective manner. For example, if
another State agency provides school
health services under the Act, consent
would not be required for a school nurse
to have access to personally identifiable
information in a child’s education
records in order to provide the school
health services that are included on the
child’s IEP.
However, despite the recognition that
officials of participating agencies need
access to records of children with
disabilities to carry out the requirements
of this part, there are important privacy
concerns that we feel need to be
protected in certain specified situations.
We believe that parental consent should
be required before personally
identifiable information can be released
to representatives of participating
agencies who are likely to provide or
pay for transition services in accordance
with § 300.321(b)(3). Representatives of
these agencies, generally, are invited to
participate in a child’s IEP meeting
because they may be providing or
paying for transition services. We do not
believe that the representatives of these
agencies should have access to all the
child’s records unless the parent (or the
child who has reached the age of
majority) gives consent for the
disclosure. We are, therefore, adding a
new paragraph (b)(2) in § 300.622 to
make this clear.
We also believe it is important to be
clear about the confidentiality
requirements for children who are
placed in private schools by their
parents, given the significant change in
the child find requirements for these
children. Under section
612(a)(10)(A)(i)(II) of the Act, child find
for these children now is the
responsibility of the LEA in which the
private school is located and not the
child’s LEA of residence. We can
anticipate situations in which there may
be requests for information to be
exchanged between the two LEAs, such
as when a child is evaluated and
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identified as a child with a disability by
the LEA in which the private school is
located and the child subsequently
returns to public school in the LEA of
residence. We believe under such
circumstances parental consent should
be required before personally
identifiable information is released
between officials of the LEA where a
private school is located and the LEA of
the parent’s residence. We believe that
consent is important in these situations
to protect the privacy of the child and
the child’s family. Therefore, we are
adding a new paragraph (b)(3) to
§ 300.622 to make this clear.
We are removing the requirement in
proposed § 300.622(c) (current
§ 300.571(c)), which requires the SEA to
provide policies and procedures that are
used in the event that a parent refuses
to provide consent under this section.
This is already included in
§ 300.504(c)(3), which requires the
procedural safeguards notice to include,
among other things, a full explanation of
the parental consent requirements and
the opportunity to present and resolve
complaints through the due process or
State complaint procedures.
Changes: We have reorganized
§ 300.622 to more accurately reflect the
Department’s policy regarding when
parental consent is and is not required
for disclosures of personally identifiable
information to officials of participating
agencies, and other individuals and
entities. We made changes to
§ 300.622(a) and added a new paragraph
(b)(1) to clarify the Department’s
longstanding policy that consent is
required for disclosures of personally
identifiable information to parties,
unless the interested parties are officials
of participating agencies, collecting or
using the information under this part, or
the information is contained in
education records and the disclosure is
allowed without parental consent under
FERPA. We added a new paragraph
(b)(2) to clarify that parental consent is
required for the disclosure of
information to participating agencies
that likely may provide or pay for
transition services. We also added a new
paragraph (b)(3) to require parental
consent for the disclosure of records of
parentally placed private school
children between LEAs. Finally, we
removed the requirement in proposed
§ 300.622(c) (current § 300.571(c)),
because the information is included in
§ 300.504(c)(3).
Safeguards (§ 300.623)
Comment: None.
Discussion: We have corrected the
incorrect reference to § 300.121 in the
text of this regulation, which should
have referred to the State eligibility
requirement concerning confidentiality,
and not the State eligibility requirement
regarding procedural safeguards.
Changes: We have removed the
incorrect reference to § 300.121 and
replaced it with a reference to § 300.123.
Children’s Rights (§ 300.625)
Comment: One commenter requested
clarifying the requirement in
§ 300.625(a) that children receive
privacy rights similar to those received
by parents.
Discussion: Section 300.625 is the
same as current § 300.574 and has been
in the regulations since 1977. It
provides that States must have policies
and procedures concerning the extent to
which children are afforded rights of
privacy similar to those of parents,
taking into consideration the age of the
child and type or severity of disability.
It does not require States to grant
particular privacy rights to a child in
addition to those that apply when the
child reaches the age of majority, as
specified in paragraphs (b) and (c) of
§ 300.625. We do not believe further
clarification is necessary.
Changes: None.
Comment: A few commenters stated
that the notice to transfer parental rights
to a child at the age of majority should
be provided to the child and parents one
year before the child reaches the age of
majority.
Discussion: We do not believe this
change is necessary because the
regulations in § 300.320(c) already
address the notification requirement.
Specifically, § 300.320(c) requires that,
beginning no later than one year before
the child reaches the age of majority
under State law, the IEP must include
a statement that the child has been
informed of the child’s rights under Part
B of the Act, if any, that will transfer to
the child on reaching the age of majority
under § 300.520. Because the
regulations already contain the notice
requirement, we do not believe it is
necessary to add further clarification of
this requirement to § 300.625.
Changes: None.
Enforcement (§ 300.626)
Comment: None.
Discussion: This provision,
concerning State enforcement, should
not refer to § 300.610, which is a
requirement that applies to the
Secretary.
Changes: We have removed the
incorrect reference to § 300.610 and
replaced it with a reference to § 300.611.
Annual report of children served—
information required in the report
(§ 300.641)
Comment: A few commenters stated
that § 300.641 is inconsistent with the
requirement in § 300.111(d), which
states that the Act does not require the
classification of children by their
disability. The commenter noted that it
is difficult to comply with the
requirements for data collection and
analysis without classifying children by
their disability.
Discussion: We do not believe there is
any inconsistency between the
requirements in § 300.641(c) and
§ 300.111, as suggested by the
commenter. Section 300.641(c)
addresses counting children who have
already been identified as having a
disability and is consistent with the
requirements in section 618 of the Act.
Section 300.111 addresses child find
and the determination of a child’s
eligibility for special education and
related services. The Act does not
require children to be identified with a
particular disability category for
purposes of the delivery of special
education and related services. In other
words, while the Act requires that the
Department collect aggregate data on
children’s disabilities, it does not
require that particular children be
labeled with particular disabilities for
purposes of service delivery, since a
child’s entitlement under the Act is to
FAPE and not to a particular disability
label.
Changes: None.
Comment: A few commenters
recommended removing § 300.641(c)
because States have reporting policies in
place that might not be consistent with
these new requirements. Numerous
commenters stated that LEAs often
report children with vision and hearing
loss who have an additional disability
in the category of multiple disabilities,
which has resulted in under-reporting of
children who are deaf-blind. The
commenters stated that an accurate
count of children with deaf-blindness is
necessary to ensure that these children
receive the specialized communication
services they need, and to ensure that a
sufficient number of specialists are
trained to meet the specialized needs of
these children. One commenter stated
that a child’s secondary disability
should not affect the reporting of the
child’s primary disability. Another
commenter suggested referring to deaf-
blindness as the primary disability, if a
child has multiple disabilities.
Discussion: The reporting
requirements in § 300.641(c) are not
new. Section 300.641(c) is the same as
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current § 300.751(e); State reporting
policies therefore should already be
consistent with these regulations.
Section 300.641(d) addresses how States
must report a child with a disability
who has more than one disability for
purposes of the annual report of
children served under the Act.
Paragraph (d)(1) states that if a child has
only two disabilities and those
disabilities are deafness and blindness,
and the child is not reported as having
a developmental delay, that child must
be reported under the category of deaf-
blindness. Paragraph (d)(2) states that if
a child has more than one disability and
is not reported as having deaf-blindness
or as having a developmental delay, the
child must be reported under the
category of multiple disabilities. We
believe that § 300.641(d) is clear that
children with deaf-blindness who have
an additional disability must be
included in the category of multiple
disabilities. To designate deaf-blindness
as the primary disability and include
children with deaf-blindness who have
an additional disability in the category
of deaf-blindness would be inconsistent
with the requirements in § 300.641(d).
Although we do not believe that any
changes to the requirements in
§ 300.641(d) are necessary, we will
review the instructions we provide to
States regarding the reporting of
children with deaf-blindness who have
an additional disability and make any
needed clarifications.
Changes: None.
Disproportionality (§ 300.646)
Comment: One commenter requested
clarification as to whether the
determination of disproportionality is
based solely on a numerical formula or
on district policies, procedures, and
practices. One commenter
recommended amending the regulations
to clarify that the determination of
disproportionality is based on a review
of LEA policies and procedures, and not
just a numerical determination. Another
commenter requested a definition of
significant disproportionality. Several
commenters requested that the
regulations clarify that States need only
address statistically significant
disproportionality based on the use of
reliable data.
Discussion: Section 618(d)(1) of the
Act is clear that the determination of
significant disproportionality by race or
ethnicity is based on a collection and
examination of data and not on a
district’s policies, procedures, or
practices. This requirement is clearly
reflected in § 300.646. We do not believe
it is appropriate to change § 300.646
because the commenter’s suggestion is
inconsistent with the provisions in
section 618(d) of the Act.
With respect to the definition of
significant disproportionality, each
State has the discretion to define the
term for the LEAs and for the State in
general. Therefore, in identifying
significant disproportionality, a State
may determine statistically significant
levels. The State’s review of its
constituent LEAs’ policies, practices,
and procedures for identifying and
placing children with disabilities would
occur in LEAs with significant
disproportionality in identification,
placement, or discipline, based on the
examination of the data. The purpose of
this review is to determine if the
policies, practices, and procedures are
consistent with the Act. Establishing a
national standard for significant
disproportionality is not appropriate
because there are multiple factors at the
State level to consider in making such
determinations. For example, States
need to consider the population size,
the size of individual LEAs, and
composition of State population. States
are in the best position to evaluate those
factors. The Department has provided
guidance to States on methods for
assessing disproportionality. This
guidance can be found at: http://
www.ideadata.org/docs/
Disproportionality%20
Technical%20Assistance%20Guide.pdf.
Changes: None.
Comment: A few commenters
suggested adding gender to the analysis
of disproportionality. The commenters
expressed concern that males are over-
identified as children with disabilities.
Discussion: Although States will be
collecting data on the gender of children
with disabilities for other purposes, the
Act does not require an analysis for
disproportionality on the basis of
gender. We are concerned about
increasing the burden on States. Given
that there is no statement of
congressional intent indicating the need
to do this analysis, we do not believe it
should be included in the regulations.
Changes: None.
Comment: One commenter expressed
concern that the regulations are not
consistent with the statutory
requirements for data collection on
suspension, expulsion, identification,
and placement.
Discussion: We disagree with the
commenter. The regulations in
§ 300.646 reflect the requirements in
section 618(d) of the Act.
Changes: None.
Comment: Several commenters raised
concerns and made recommendations
regarding § 300.646(b)(2), which
requires the State to require any LEA
identified with significant
disproportionality to reserve the
maximum amount under section 613(f)
of the Act for comprehensive,
coordinated early intervening services
to serve children in the LEA,
particularly, but not exclusively
children in those groups that were
significantly overidentified. A few
commenters recommended that LEAs
not be required to reserve the maximum
amount under section 613(f) of the Act.
Several commenters recommended
adding language in § 300.646(b)(2) to
require LEAs to monitor the effect of
early intervening services on
disproportionate representation.
Discussion: The requirements in
§ 300.646(b)(2) follow the specific
language in section 616(d) of the Act. To
allow LEAs to reserve less than the
maximum amount required in section
613(f) of the Act when significant
disproportionality is identified would
be inconsistent with the Act. Therefore,
we do not believe a change in this
requirement is appropriate.
As part of the requirements in
§§ 300.600 through 300.604, States must
report annually on indicators in three
monitoring priority areas. One of the
monitoring priority areas is
disproportionality, for which there are
two indicators. In addition to annually
reviewing State performance on each
indicator in each monitoring priority
area, the State must review each LEA
against indicators established for each
monitoring priority area, so the State
will be examining data annually to
identify any disproportionality. If
disproportionality is identified in LEAs,
the policies, procedures, and practices
of the LEAs will be examined to
determine if they are leading to
inappropriate identification, and,
pursuant to section 618(d)(2)(C) of the
Act and § 300.646(b)(3), the LEA will be
required to report publicly on the
revision of policies, practices, and
procedures used in identification or
placement. It is, therefore, unnecessary
to add a requirement that LEAs monitor
the effect of early intervening services
on disproportionality because the LEAS
will have to continue to publicly report
on their revision of policies, practices
and procedures until the significant
disproportionality in the LEA is
eliminated. We believe that the intent of
the suggestion will be accomplished
through this other requirement.
Changes: None.
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Subpart G—Authorization, Allotment,
Use of Funds, and Authorization of
Appropriations
Outlying Areas, Freely Associated
States, and the Secretary of the Interior
(§ 300.701)
Comment: None.
Discussion: The requirements of Part
B of the Act that were listed in the
NPRM under § 300.701(a)(1)(ii)(A)(1)
through (5) did not include all of the
requirements that apply to freely
associated States. To ensure that freely
associated States do not interpret these
regulations as including all of the
requirements in Part B of the Act that
apply to them, we are removing these
provisions. Section 300.701(a)(1)(ii) and
(2) clarifies that, consistent with section
611(b)(1)(A)(ii) of the Act, freely
associated States must meet the
applicable requirements that apply to
States under Part B of the Act.
Changes: We have removed
paragraphs (1) through (5) in
§ 300.701(a)(1)(ii)(A).
Technical Assistance (§ 300.702)
Comment: One commenter requested
that the regulations clarify whether the
technical assistance funds referred to in
§ 300.702 are available to both SEAs and
lead agencies under Part C of the Act.
Discussion: Section 300.702,
consistent with section 611(c) of the
Act, allows the Secretary to reserve
funds under Part B of the Act to support
technical assistance activities
authorized in section 616(i) of the Act.
Under section 642 of the Act, section
616 applies to the early intervention
programs for infants and toddlers with
disabilities under Part C of the Act.
Section 616(i) of the Act requires the
Secretary to review the data collection
and analysis capacity of States to ensure
that data and information necessary for
monitoring the implementation of Parts
B and C of the Act are collected,
analyzed, and accurately reported to the
Secretary, and to provide technical
assistance, as needed. Therefore the
technical assistance referred to in
§ 300.702 can be provided to both SEAs
and lead agencies under Part C of the
Act.
Changes: None.
Allocations to States (§ 300.703)
Comment: A few commenters noted
that States need additional funding to
comply with these regulations.
Discussion: The Department does not
have the authority to allocate more
funds than Congress appropriates.
Section 300.703, consistent with section
611(d) of the Act, describes how the
appropriated funds must be distributed
to States.
Changes: None.
State-Level Activities (§ 300.704)
Comment: One commenter suggested
adding language in the regulations
requiring public agencies to provide
technical assistance to personnel in
residential treatment facilities. The
commenter stated that this assistance
would help residential treatment
facilities meet the requirements of FAPE
for the children they serve.
Discussion: Section 300.704(a)(1),
consistent with section 611(e)(1) of the
Act, allows, but does not require, States
to use funds reserved for State
administration to provide technical
assistance to other programs that
provide services to children with
disabilities, which could include
residential treatment facilities providing
services to children with disabilities
under the Act. Section 300.704(b)(4)(i),
consistent with section 611(e)(2)(C)(i) of
the Act, allows, but does not require,
States to use funds reserved for other
State-level activities to provide support
and direct services, including technical
assistance, personnel preparation, and
professional development and training,
which could include technical
assistance to staff who provide services
to children with disabilities at
residential treatment centers and other
such facilities. Because the Act gives
States the discretion to determine how
to use these funds, so long as they are
used in accordance with the
requirements in Part B of the Act, the
Department does not believe it would be
appropriate to remove this discretion by
regulation and require States to use
these funds to provide technical
assistance to particular types of
facilities, as suggested by the
commenter.
Changes: None.
Comment: We received a number of
comments requesting that the
regulations require States to use funds
reserved for State-level activities for
specific purposes. Some commenters
stated that these funds should be used
to find and train surrogate parents.
Other commenters requested that these
funds be used to support parent centers.
One commenter requested that these
funds be used for programs that employ
well-researched best practices. Another
commenter suggested that the funds be
used for family involvement activities.
One commenter requested that the
regulations clarify that these funds may
be used to purchase supplemental
educational materials.
Discussion: The Act does not require
States to use their funds reserved for
other State-level activities for the
purposes requested by the commenters.
The Act also does not prohibit the use
of funds for these purposes. Instead,
States have discretion in determining
how these funds are used, so long as
they are used to carry out the activities
in § 300.704(b)(3) and (4). Therefore, we
do not believe it would be appropriate
to regulate as suggested by the
commenters.
Changes: None.
Comment: One commenter stated that
the term ‘‘maximize’’ in
§ 300.704(b)(4)(v), regarding the use of
funds to support the use of technology
to maximize accessibility to the general
education curriculum, was an
‘‘affirmative duty’’ and, thus, required
more detailed instruction. This
commenter also stated that the term
‘‘improve’’ in § 300.704(b)(4)(xi),
regarding the use of funds to provide
professional development to teachers
who teach children with disabilities in
order to improve academic
achievement, was an ‘‘affirmative duty’’
and, thus, required more detailed
instruction.
Discussion: The language referred to
by the commenter is from the Act. The
activities noted by the commenter are
authorized under the Act but are not
required. The Department has reviewed
§ 300.704(b)(4)(v) and (b)(4)(xi) and does
not believe that additional detail is
necessary, because States need the
flexibility that the Act provides to
appropriately meet the needs within the
State.
Changes: None.
Comment: One commenter agreed
with the provision in § 300.704(b)(4)(v)
that allows States to use funds to
support the use of technology to
maximize access to the general
education curriculum for children with
disabilities. The commenter stated,
however, that SEAs and LEAs would be
unwilling to research and employ new
technologies and asked who would be
responsible for conducting this activity.
Discussion: Supporting the use of
technology to maximize accessibility to
the general education curriculum is a
State-level activity that States are
permitted, but not required, to fund.
States have considerable flexibility in
determining what State-level activities
will be funded, provided the
requirements of Part B of the Act are
met. How a State implements a
particular activity or program is a matter
best left to each State to decide.
Changes: None.
Comment: One commenter stated that
§ 300.704(b)(4)(v), regarding the use of
technology to maximize accessibility to
the general education curriculum for
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children with disabilities, lacked
specificity and asked for definitions of
the terms ‘‘universal design principles,’’
‘‘maximize accessibility to the general
curriculum,’’ and ‘‘maximum extent.’’
Discussion: The definition of
universal design, as used in the
Assistive Technology Act of 1998, as
amended, is included in the Analysis of
Comments and Changes section for
subpart A. We believe this will clarify
the meaning of ‘‘universal design
principles,’’ as used in
§ 300.704(b)(4)(v). The term ‘‘maximize
accessibility to the general education
curriculum’’ is sufficiently specific in
the context used and does not need
further definition. The term ‘‘maximum
extent’’ is not used in § 300.704(b)(4)(v).
Changes: None.
Local Educational Agency High Cost
Fund (§ 300.704(c))
Comment: One commenter expressed
concern that the regulations for the high
cost fund, particularly the reference to
the cost of room and board for a
residential placement, would discourage
educational placements in the LRE. The
commenter stated that many children
with disabilities are sent out of their
school districts for special education
and related services and asked that the
regulations ensure that this practice
does not increase.
Discussion: The language regarding
room and board in § 300.704(c)(4)(ii)
was included to clarify that the cost of
room and board for a necessary
residential placement could be
supported by the high cost fund. Section
§ 300.704(c)(4)(ii) clarifies that the cost
of room and board for a residential
placement must be determined
necessary and be consistent with the
LRE requirements in § 300.114. We
believe this is adequate to ensure that
educational placements in the LRE are
not discouraged.
Changes: None.
Comment: One commenter stated that
reimbursements from a high cost fund
would be difficult to compute and
requested a template to assist LEAs in
their calculations. Another commenter
requested a list of specific procedures
that would be excluded from coverage
by a high cost fund.
Discussion: How States implement the
high cost fund is a matter left to the
discretion of each State, so long as the
State meets the requirements of Part B
of the Act. Accordingly, the Department
does not believe it would be appropriate
to develop a template, prepared at the
Federal level, or a list of specific
procedures that would be excluded from
coverage. Whether a particular
expenditure is appropriate will vary
with the specific facts and
circumstances of the situation.
Changes: None.
Comment: One commenter asked
whether high cost funds could be used
for court-ordered placements.
Discussion: Nothing in the Act or the
regulations prohibits payment for
providing special education and related
services to high need children with
disabilities in court-ordered placements,
if a State wishes to fund such
placements and the other provisions of
Part B of the Act are met.
Changes: None.
Comment: A few commenters
requested that the regulations include
plans for continuing programs funded
by high cost funds should these funds
become unavailable.
Discussion: The availability of Federal
support for a high cost fund, as
described in § 300.704(c) and section
611(e)(3) of the Act, is based on a
number of factors, including continued
Federal appropriations for the Grants to
States program and the continued
authorization for such a fund under the
Act. Funding of a high cost fund in a
particular State is dependent on a
State’s decision to use a portion of its
State-level set-aside for a high cost fund.
This is a matter of State discretion and
is not appropriate for regulation at the
Federal level.
Changes: None.
Comment: A few commenters
requested an opportunity for public
comment before a State implements a
high cost fund.
Discussion: Section 300.704(c)(3)(i),
consistent with section 611(e)(3)(C)(ii)
of the Act, requires an SEA to develop,
annually review, and amend, as
necessary, a State plan for a high cost
fund. Under § 300.704(c)(3)(i)(A), the
State plan must, among other
components, establish, in consultation
and coordination with representatives
from LEAs, a definition of a high need
child with a disability that meets certain
criteria. This plan must be developed no
later than 90 days after the State
reserves funds for a high cost fund.
Section 300.704(c)(3)(ii), consistent with
section 611(e)(3)(C)(iii) of the Act,
requires a State to make its final State
plan for the high cost fund available to
the public not less than 30 days before
the beginning of the school year,
including dissemination of such
information on the State’s Web site.
Although there is nothing in the Act
that requires that the public be given the
opportunity to comment on the State’s
plan, there also is nothing in the Act
that would prohibit a State from
providing an opportunity for public
comment prior to finalizing the State’s
plan for the high cost fund. We believe
the decision to provide opportunity for
public comment is best left to each
State.
Changes: None.
Comment: A few commenters asked if
LEAs are obligated to participate in the
State Medicaid program and whether
States could limit the types of
reimbursement to LEAs from Medicaid.
Discussion: LEAs are not obligated
under the Act to participate in a State
Medicaid program. Title XIX of the
Social Security Act of 1965, as
amended, controls Medicaid
reimbursement for medical assistance
for eligible individuals and families
with low incomes and resources.
Therefore, it would not be appropriate
to address in these regulations whether
States, under the Act, could limit the
type of Medicaid reimbursement to
LEAs.
Changes: None.
Comment: One commenter asked if
there was any intent to develop criteria
for the development of innovative cost
sharing consortia, as stated in
§ 300.704(c)(1)(i)(B). The commenter
stated that there are no regulations for
submitting a State plan for innovative
cost-sharing consortia, similar or
parallel to the requirements associated
with the high cost fund.
Discussion: The commenter is correct
that the proposed regulations would not
require the development of a State plan
for the high cost fund that includes
information or criteria about the
development of innovative cost-sharing
consortia. It is important that, if a State
elects to reserve funds for supporting
innovative and effective ways of cost
sharing under § 300.704(c)(1)(i)(B), the
State, in its State plan under
§ 300.704(c)(3)(i), include a description
of how those funds will be used.
Therefore, a change will be made to
make this clear.
Changes: A new paragraph (F) has
been added to § 300.704(c)(3)(i) to
clarify that, if a State elects to reserve
funds for supporting innovative and
effective ways of cost sharing, it must
describe in its State plan how these
funds will be used.
Comment: One commenter asked
whether State administrative funds
could be used for administering the high
cost fund.
Discussion: Section 300.704(c)(2) is
clear that a State cannot use any of the
funds the State reserves for the high cost
fund for costs associated with
establishing, supporting, and otherwise
administering the fund. However, a
State may use funds reserved for State
administration under § 300.704(a) for
administering the high cost fund.
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Changes: None.
Comment: One commenter requested
that the regulations require an SEA to
describe in its State plan for the high
cost fund the ways in which the SEA
will work with State child welfare
programs.
Discussion: Section 300.704(c)(3)
incorporates the language in section
611(e)(3)(C) of the Act, regarding a State
plan for the high cost fund. The Act
does not require that the State plan
include the ways in which the SEA will
work with State child welfare agencies.
However, there is nothing in the Act or
these regulations that would prohibit a
State from including such information
in its plan if it chooses to do so. We
believe that the decision whether to
include this information in the State
plan for the high cost fund is a matter
best left to the State.
Changes: None.
Comment: A few commenters stated
that parents, representatives of the State
Advisory Panel, and other stakeholders
should participate in developing the
definition of a high need child for the
purposes of the high cost fund.
Discussion: Section
300.704(c)(3)(i)(A), consistent with
section 611(e)(3)(C)(i) of the Act,
requires the SEA to establish a State
definition of a high need child with a
disability in consultation with LEAs.
The Act does not require the
involvement of parents, representatives
of the State Advisory panel, or other
stakeholders. However, there is nothing
in the Act or these regulations that
would prohibit a State from consulting
with these or other groups, if the State
chooses to do so. The Department
believes that it would be inappropriate
to require SEAs to consult with specific
groups, because the appropriate groups
for consultation will vary from State to
State.
Changes: None.
Flexibility in Using Funds for Part C
(§ 300.704(f))
Comment: A few commenters
requested that § 300.704(f) require States
that offer early intervention services to
children with disabilities who are
eligible for services under section 619 of
the Act to notify families of the details
of this program and a parent’s right to
change immediately to special
education services should the parent
desire. Another commenter
recommended that § 300.704(f) require
LEAs to obtain parental consent before
providing early intervention services to
children eligible for services under
section 619 of the Act.
Discussion: Section 300.704(f) adopts
the requirements of, and is consistent
with, section 611(e)(7) of the Act. Under
section 611(e)(7) of the Act, funds that
are available under §§ 300.704(a)(1),
300.705(c), and 300.814(e) may be used
to develop and implement a State policy
to provide services under Part C of the
Act to children beyond the age of three.
The provisions that authorize such
programs are reflected in Part C of the
Act, predominantly in section 635(c) of
the Act, which contains specific notice
and consent requirements. The notice of
proposed rulemaking for Part C of the
Act will address the notice, consent,
and other requirements that apply to
State lead agencies that elect to offer
services to children with disabilities
and their families beyond the age of
three under section 635(c) of the Act.
The public will have a separate
opportunity to comment on the
proposed regulations for Part C of the
Act when they are published in the
Federal Register. Accordingly, it would
not be appropriate to include the
requested information in these
regulations implementing Part B of the
Act.
Changes: None.
Allocation for State in Which By-Pass Is
Implemented for Parentally-Placed
Private School Children With
Disabilities (§ 300.706)
Comment: None.
Discussion: We have determined that
§ 300.706 is no longer applicable. Under
section 611(d) of the Act, distribution of
funds under Part B of the Act to States
is not based on child count. Section
300.191 details the amount of funds
under Part B of the Act that the
Secretary deducts from a State’s
allocation if a by-pass is implemented.
Changes: We have removed § 300.706,
because it is no longer applicable.
Use of amounts by Secretary of the
Interior (§ 300.707)
Definitions (§ 300.707(a))
Comment: A few commenters
requested that the Department add a
new definition of LEA and SEA for the
purposes of regulations related to
schools operated or funded by the
Secretary of the Interior. One
commenter stated that the regulations
would be clearer if these terms were
defined for BIA-funded schools, because
the definition of state educational
agency makes no mention of the BIA.
Another commenter recommended
defining LEAs as BIA-funded schools
and defining SEA as the Secretary of the
Interior for the purposes of regulations
related to schools operated or funded by
the Secretary of the Interior.
Discussion: We believe the definition
of local educational agency in § 300.28,
with a specific reference to BIA-funded
schools in § 300.28(c), and the
definition of State educational agency
in § 300.41, along with the requirements
in §§ 300.707 through 300.716, provide
sufficient clarity on the Secretary of the
Interior’s responsibilities to implement
the requirements of the Act. However,
we understand that the definitions of
local educational agency and State
educational agency by themselves may
not be directly applicable to the
regulations related to schools operated
or funded by the Secretary of the
Interior. Therefore, the Department will
consider taking action to clarify the
definitions of local educational agency
and State educational agency for the
purpose of this regulation in the future.
Changes: None.
Comment: One commenter stated that
the definition of tribal governing body of
a school is similar to the definition of
‘‘tribal governing body’’ in the principal
statute governing BIA-funded schools
(section 1141 of the Education
Amendments of 1978, 25 U.S.C.
2021(19)) and suggested using that
definition if the intent was to define
‘‘tribal governing body.’’ The
commenter also noted that tribal
governing body of a school is not used
anywhere in the regulations.
Discussion: The Department agrees
that the definition of ‘‘tribal governing
body’’ in 25 U.S.C. 2021(19) is a better
definition than the definition of tribal
governing body of a school. The
definition is more accurate and defines
a term used in these regulations. We are
replacing the definition of tribal
governing body of a school with the
definition of tribal governing body, as
defined in 25 U.S.C. 2021(19): Tribal
governing body means, with respect to
any school, the tribal governing body, or
tribal governing bodies, that represent at
least 90 percent of the children served
by such school.
Changes: The definition of tribal
governing body of a school in
§ 300.707(a)(2) has been replaced with
the definition of tribal governing body
from 25 U.S.C. 2021(19).
Provision of Amounts for Assistance
(§ 300.707(b))
Comment: One commenter suggested
adding specific language to the
regulations to require the Secretaries of
the Interior and Education to meet the
statutory deadlines for providing and
distributing funds under Part B of the
Act.
Discussion: Section 300.707(b),
consistent with section 611(h)(1)(A) of
the Act, sets specific dates for the
Secretary of the Interior to allocate
funds provided to the Secretary of the
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Interior under the Act to elementary
schools and secondary schools for
Indian children operated or funded by
the Secretary of the Interior. The
Secretary of the Interior must allocate 80
percent of these funds by July 1 of each
fiscal year, and the remaining 20
percent by September 30 of each fiscal
year. The Act does not require the
Secretary of Education to meet any
deadline for providing and distributing
funds to the Secretary of the Interior.
Provision of funds under Part B of the
Act to the Department of the Interior
(DOI) will always depend on whether
the DOI has properly established and
maintained its eligibility. Therefore, we
do not believe it would be appropriate
to establish such a deadline.
Changes: None.
Comment: One commenter stated that
BIA-funded schools do not require State
accreditation and asked how a program
affiliated with a BIA-funded school
could be mandated by the State to be
accredited.
Discussion: The commenter appears
to be referring to current § 300.715(c),
regarding counting children aged three
through five who are enrolled in
programs affiliated with BIA-funded
schools that are State accredited.
Current § 300.715(c) was removed
because a State can no longer require a
BIA-funded school to attain or maintain
State accreditation.
Changes: None.
Comment: A few commenters
recommended revising § 300.707(c) to
clarify that, for children living on
reservations who do not attend BIA-
funded schools, the SEA in which the
reservation is located is responsible for
ensuring that the requirements of Part B
of the Act are implemented, and if the
reservation is in more than one State,
the SEA in which the child resides is
responsible.
Discussion: The Department agrees
that there is a need to clarify that States
are responsible for serving Indian
children on reservations located in their
State who are not attending BIA-funded
schools. We will revise § 300.707(c) to
clarify that, for children on reservations
who do not attend BIA-funded schools,
the State in which the reservation is
located must ensure that all the
requirements of Part B of the Act are
implemented.
The Act does not address who is
responsible if a reservation is located in
more than one State. Under section
612(a)(1)(A) of the Act, a State must
make FAPE available to all children
with disabilities residing in the State.
Therefore, as a general matter, if a
reservation is located in more than one
State, the State in which the child
resides would be responsible for
ensuring that the requirements of Part B
of the Act are met for that child.
Changes: Section 300.707(c) has been
revised to clarify that, for children on
reservations who do not attend BIA-
funded schools, the State in which the
reservation is located must ensure that
all the requirements of Part B of the Act
are met.
Use of Funds Under Part B of the Act
(§ 300.710(a))
Comment: One commenter stated that
the Secretary of the Interior has no
statutory authority to reserve funds for
administration under section
611(h)(1)(A) of the Act, and therefore,
§ 300.710 should be removed from the
regulations.
Discussion: The Secretary of the
Interior may reserve funds for
administration under § 300.710. Section
300.707(b), consistent with section
611(h)(1)(A) of the Act, requires the
Secretary of Education to provide
amounts to the Secretary of the Interior
to meet the need for assistance for the
education of children with disabilities
on reservations aged 5 to 21, inclusive,
enrolled in elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior. The amount of such
payment for any fiscal year must be
equal to 80 percent of the amount
allotted for the Secretary of the Interior
under section 611(b)(2) of the Act for
that fiscal year.
Since the enactment of regulations
implementing Pub. L. 94–142 in 1977,
the regulations have permitted the
Secretary of the Interior to use five
percent of the funds under Part B of the
Act allocated for the education of
children with disabilities enrolled in
BIA-funded schools for administration.
The Act added the requirement in
section 611(h)(1)(A) for 80 percent of
the funds to be allocated to BIA-funded
schools by July 1 of each fiscal year, and
20 percent of the funds allocated by
September 30 of each fiscal year.
Congress’ intent in adding this
requirement was to ensure that the
Secretary of the Interior distributes
funds under Part B of the Act quickly
and efficiently to BIA-funded schools to
ensure that they have the resources they
need to provide services to children
with disabilities. (See H. Rpt. 108–77, p.
92.) There is no indication that Congress
intended to eliminate the Department’s
longstanding regulatory provision
permitting the Secretary of the Interior
to reserve funds for administration,
which assist the Office of Indian
Education Programs in carrying out its
monitoring activities. Section
611(h)(4)(F) of the Act specifically
prohibits the Secretary of the Interior
from using any of the 20 percent of the
funds under Part B of the Act allocated
for coordinating services for preschool
children with disabilities for
administrative purposes. However, there
is no provision that prohibits the
Secretary of the Interior from using any
of the 80 percent of funds under Part B
of the Act allocated to provide special
education and related services in BIA-
funded schools for administrative
purposes.
Changes: None.
Early Intervening Services (§ 300.711)
Comment: One commenter supported
permitting BIA-funded schools to use
funds under Part B of the Act for early
intervening services, but stated that not
all BIA-funded schools receive funds
under Part B of the Act, because the BIA
will not provide any such funds until a
school uses 15 percent of its Indian
School Equalization Program funds
(ISEP). The commenter requested that
the regulations specify that BIA-funded
schools are permitted and encouraged to
use their ISEP funds to provide early
intervening services and that schools,
upon doing so, would be eligible for
funds under Part B of the Act.
Discussion: While the Act requires
that the Secretary of the Interior allocate
funds under Part B of the Act to BIA-
funded schools to meet the educational
needs of children with disabilities, the
Act does not establish requirements for
how those funds must be distributed to
BIA-funded schools. The Secretary of
the Interior requires that BIA-funded
schools use 15 percent of ISEP formula
funds for special education services
before receiving funds under Part B of
the Act. While the Department
understands the concern that not every
BIA-funded school will have special
education needs sufficient to meet the
15 percent threshold and, therefore, may
not receive any funds under Part B of
the Act, the Department does not have
the authority to permit or encourage
BIA-funded schools to use their 15
percent ISEP threshold funds to provide
early intervening services or to require
the Secretary of the Interior to provide
Part B funds to those schools once they
have spent 15 percent of their ISEP
funds on early intervening services.
Changes: None.
Plan for Coordination of Services
(§ 300.713)
Comment: One commenter stated that
the requirements in § 303.713 go beyond
the legal authority of the Secretary of
the Interior. The commenter stated that
the Secretary of the Interior provides
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services only in BIA-funded schools,
and the Office of Indian Education
Programs does not have jurisdiction
over a State to ensure that the State is
providing services to Indian children
under Part B of the Act. In addition, the
commenter stated that the term ‘‘all
Indian children’’ was too broad, because
the Secretary of the Interior is
authorized to provide funding only for
programs for children who are at least
one-fourth Indian blood of a federally
recognized tribe; residing on or near a
reservation; and enrolled in a BIA-
funded school.
Discussion: Section 300.713(a) and
section 611(h)(5) of the Act do not
require the Secretary of the Interior to
provide services or funding to Indian
children who are not at least one-fourth
Indian blood of a federally recognized
tribe, residing on or near a reservation,
and enrolled in a BIA-funded school.
These sections require the Secretary of
the Interior to develop and implement a
plan for the coordination of services for
all Indian children with disabilities
residing on reservations covered under
Part B of the Act. In order to clarify the
Secretary of the Interior’s responsibility
under this provision, we are revising
§ 300.713(a) to clarify that reservations
covered under Part B of the Act means
reservations served by elementary
schools and secondary schools for
Indian children operated or funded by
the Secretary of the Interior.
Section 300.713(a) and section
611(h)(5) of the Act require that the plan
address the coordination of services for
all Indian children residing on those
reservations. This includes Indian
children residing on those reservations
that are enrolled in public schools in the
local school district, as well as Indian
children that are enrolled in BIA-funded
schools. This also includes Indian
students incarcerated in State, local, and
tribal juvenile and adult correctional
facilities. We are revising § 300.713(b) to
ensure that the plan provides for
coordination of services benefiting all
Indian children with disabilities,
including services provided by SEAs
and State, local, and tribal juvenile and
adult correctional facilities.
Changes: Section 300.713(a) has been
revised to require the Secretary of the
Interior to develop and implement a
plan for the coordination of services for
all Indian children with disabilities
residing on reservations served by
elementary schools and secondary
schools for Indian children operated or
funded by the Secretary of the Interior.
Section 300.713(b) has been revised to
require the plan to provide for the
coordination of services benefiting these
children from whatever source,
including SEAs, and State, local, and
tribal juvenile and adult correctional
facilities.
Establishment of Advisory Board
(§ 300.714)
Comment: One commenter requested
definitions of ‘‘collaboration’’ and
‘‘collaborated teachers.’’
Discussion: We do not believe it is
necessary to define ‘‘collaboration’’ in
these regulations, because it is a
commonly used term, which means
working jointly with others, especially
in an intellectual endeavor. Although
the Act does not prohibit the
Department from regulating on this
issue, we do not believe it is necessary.
The term ‘‘collaborated teachers’’ is not
used in the Act or these regulations and,
thus, is not appropriate for inclusion in
the definitions in these regulations.
Changes: None.
Subpart H—Preschool Grants for
Children with Disabilities
Allocation for State in Which By-Pass Is
Implemented for Parentally-Placed
Private School Children With
Disabilities (§ 300.811)
Comment: None.
Discussion: We have determined that
§ 300.811, regarding allocation for a
State in which by-pass is implemented
for parentally-placed private school
children with disabilities, is no longer
applicable. Under section 619(c) of the
Act, distribution of Part B funds to
States is not based on child count.
Section 300.191 details the amount of
Part B funds the Secretary deducts from
a State’s allocation if a by-pass is
implemented.
Changes: We are removing § 300.811
from the final regulations.
Subgrants to LEAs (§ 300.815)
Comment: One commenter asked
whether the base year that applies to
section 611 of the Act also applies to
section 619 of the Act.
Discussion: The base year that applies
to section 611 of the Act is not the same
as the base year that applies to section
619 of the Act. The formula for
allocating funds to LEAs under sections
611 and 619 of the Act is based on the
amount of program funds received in a
prior year (the base year), the relative
numbers of children enrolled in public
and private elementary schools and
secondary schools within the LEA’s
jurisdiction, and the relative numbers of
children living in poverty. Under
section 619(g)(1)(A) of the Act, the base
year for allocating section 619 funds to
LEAs under the Preschool Grant
program is Federal fiscal year (FFY)
1997. Under section 611(f)(2)(A) of the
Act, the base year for allocating section
611 funds to LEAs under the Grants to
States for the Education of Children
with Disabilities Program is FFY 1999.
Changes: None.
Executive Order 12866
Costs and Benefits
Under Executive Order 12866, we
have assessed the costs and benefits of
this regulatory action.
Summary of Public Comments
The Department received four
comments on the role of school
psychologists in administering IQ tests
as described in the proposed analysis of
the costs and benefits of this regulatory
action. The first commenter stated that
it is inaccurate to conclude that fewer
school psychologists will be needed,
and asserted that school psychologists
typically do more than administer IQ
tests to students. The second commenter
stated that public agencies could realize
savings under the proposed regulation
by reducing the amount of time school
psychologists spend conducting
cognitive assessments to document IQ
discrepancies. The third commenter
requested that the Department remove
all language suggesting that potential
savings may result from the need for
fewer school psychologists to
administer IQ tests. The fourth
commenter stated that time saved on
formal assessments as a result of the
need to conduct fewer IQ tests could be
used by school psychologists to train
school staff in research-validated
instructional and behavioral
interventions, and to engage in other
pro-active pre-referral policies.
All of these comments were
considered in conducting the analysis of
the costs and benefits of the final
regulations. All of the Department’s
estimates and assumptions on which
they are based are described below.
Summary of Costs and Benefits
Costs and Benefits of Statutory Changes
For the information of readers, the
following is an analysis of the costs and
benefits of the most significant statutory
changes made by the Act that are
incorporated into the final regulations
governing the Assistance to States for
the Education of Children with
Disabilities program under Part B of the
Act. In conducting this analysis, the
Department examined the extent to
which the regulations add to or reduce
the costs for public agencies and others
in relation to the costs of implementing
the program regulations prior to the
enactment of the new statute. Based on
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this analysis, the Secretary has
concluded that the statutory changes
reflected in these final regulations will
not impose significant net costs in any
one year, and may result in savings to
SEAs and LEAs. An analysis of specific
provisions follows:
Requirement for State Certification for
Highly Qualified Special Education
Teachers
Section 300.156(c) requires that each
person employed as a public school
special education teacher who teaches
in an elementary, middle, or secondary
school be highly qualified, as defined in
§ 300.18, by the deadline established in
section 1119(a)(2) of the ESEA, no later
than the end of the 2005–2006 school
year. Section 300.18(b)(1) requires that
every public elementary and secondary
school special education teacher obtain
full State certification as a special
education teacher or pass the State
special education teacher licensing
examination, and hold a license to teach
in the State as a special education
teacher as one of the conditions of being
considered highly qualified to teach as
a special education teacher. Previously,
special education teachers were not
required by Federal law to be certified
as special education teachers in their
States. The regulations preclude
teachers for whom the special education
certification or licensure requirements
have been waived on an emergency,
temporary, or provisional basis from
meeting the definition of a highly
qualified special education teacher.
Teachers employed by a public charter
school are exempt from these
requirements and are subject to the
requirements for highly qualified
teachers in their State’s public charter
school law.
The impact of the requirement in the
final regulations that all special
education teachers have full special
education certification depends on
whether States and districts comply
with the requirement by helping
existing teachers who lack certification
acquire it, or by hiring new fully-
certified teachers, or some combination
of the two.
According to State-reported data
collected by the Department’s Office of
Special Education Programs,
certification or licensure requirements
have been waived for eight percent of
special education teachers, or
approximately 30,000 teachers. If States
and districts respond to the statutory
change reflected in the final regulations
by hiring certified teachers to fill these
positions, it could cost well over $1
billion to cover the salaries for a single
year. (Occupational Employment and
Wages Survey, November 2004,
indicates a median national salary of
$44,330 for elementary school teachers
and $46,300 for secondary school
teachers.) However, given that the Study
of Personnel Needs in Special Education
(SPENSE) found that in 1999–2000,
12,241 positions for special education
teachers were left vacant or filled by
substitute teachers because suitable
candidates could not be found, it is
unlikely that States and districts can
meet this requirement through hiring.
The SPENSE study also found that 12
percent of special education teachers
who lack full certification in their main
teaching assignment field are fully
certified in their main teaching
assignment field in another State. This
means that States should be able to
certify an estimated 3,600 additional
special education teachers at relatively
little expense through reciprocal
certification agreements with other
States.
Responses to the 1999–2000 Schools
and Staffing Survey indicate that nearly
10 percent (approximately 3,000
teachers) of special education teachers
who lacked full certification, including
those teaching under provisional,
temporary, or emergency certification,
were enrolled in a program to obtain
State certification. If teachers already
participating in a certification program
are presumed to be within 10 semester
hours of meeting their coursework
requirements and the estimated cost of
a semester hour in a university or
college program is $200, then it would
cost $6 million to help these teachers
obtain full State certification. If teachers
require more than 10 semester hours to
complete their certification programs, it
is unlikely they will be able to obtain
certification through coursework in a
timely manner.
States and districts are unlikely to be
able to meet these requirements entirely
through reciprocity agreements and
college and university programs. The
above estimates involve fewer than
7,000 of the approximately 30,000
teachers who lack full certification.
Other options States and districts might
use to certify the more than 23,000
remaining teachers include assessments
of academic skill and subject matter
knowledge and professional
development. Assessment requirements
for special education teachers vary
across States and teaching assignment
fields, but most States require at least
two subject matter tests, a general test
on core content knowledge, and a
disability-specific test, for special
education teacher certification. The
average cost of each test is $75. The
SPENSE study found that one-fourth of
beginning special education teachers
who took a certification test reported
having to take it more than once before
passing. If States and districts certified
the remaining 23,000 teachers through
existing assessments and 25 percent of
the teachers took the tests twice, the
cost would be approximately $4.3
million.
Some subset of special education
teachers currently teaching through
waivers will require additional training
to obtain special education certification.
The cost of certifying these teachers
depends on State special education
certification requirements and the types
of professional development needed to
help these teachers meet the
requirements. Most studies in the year
2000 found that district expenditures for
professional development range from
one to four percent of a district’s total
budget or $2,062 per teacher. If 18,000
teachers need additional training,
costing an average expenditure of
$2,000 per teacher for professional
development, the cost of certifying these
teachers through training would be $36
million.
Because there is little information
available on what is required to
implement these statutory changes and
the cost of doing so, the Secretary
concludes that the cost may be
significant given the number of special
education teachers who lack
certification. The Secretary further
concludes that the benefits of State
certification may not necessarily
outweigh the costs.
The Secretary believes that teacher
certification can be a valuable tool in
ensuring that teachers have the
knowledge and skills they need to help
students meet high academic standards.
Because the highly qualified teacher
requirements in the ESEA, which focus
on content knowledge, already applied
to special education teachers providing
instruction in core academic subjects,
the benefits of requiring special
education teachers to also meet State
certification requirements for special
education teachers will largely depend
on the extent to which these
requirements reflect pedagogical
knowledge and other teacher
characteristics that are likely to have a
positive effect on achievement of
students with disabilities. As of now,
there is minimal research showing the
relationship between special education
certification and academic achievement
for students with disabilities.
Special Education Teachers Teaching to
Alternate Achievement Standards
Section 9101 of the ESEA requires
that teachers of a core academic subject
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have full State teacher certification,
hold at least a bachelor’s degree, and be
able to demonstrate knowledge of the
subject matter they teach. Elementary-
level teachers may demonstrate subject
matter expertise by passing a rigorous
State test of their subject knowledge and
teaching skills in reading, writing,
mathematics, and other areas of the
basic elementary school curriculum, but
middle or secondary school teachers
must demonstrate a high level of
competence in each of the academic
subjects that they teach.
Section 300.18(c) permits special
education teachers who teach core
academic subjects exclusively to
children who are assessed against the
alternate achievement standards,
established under 34 CFR 200.1(d), to
fulfill the highly qualified teacher
requirements in section 9101(23)(B) or
(C) of the ESEA as applied to an
elementary school teacher, or, in the
case of instruction above the elementary
level, to meet the requirements in
section 9101(23)(B) or (C) for an
elementary school teacher and have
subject matter knowledge appropriate to
the level of instruction being provided,
as determined by the State, needed to
effectively teach to those standards.
The cost of demonstrating subject area
competence depends on the number of
special education teachers who teach
core academic subjects exclusively to
children assessed against alternate
achievement standards, the number of
these teachers who already would be
considered highly qualified under
section 9101(23) of the ESEA and the
number who would not, and the cost of
helping special education teachers who
are not highly qualified meet the highly
qualified teacher requirements for
teaching core academic subjects at the
middle and high school levels (or
replacing them with highly qualified
teachers). The final regulations will
generate savings for public agencies to
the extent that the cost of helping
teachers demonstrate subject area
competence at the elementary level and
obtain the knowledge appropriate to the
level of instruction needed to teach to
alternate achievement standards is
lower than the cost of demonstrating
subject matter competence at the level
(middle or high school) at which they
are teaching.
Under 34 CFR 200.1(d), States are
permitted to assess up to one percent of
students against alternate achievement
standards. Based on estimated 2005–
2006 school enrollment data compiled
by the National Center for Education
Statistics (NCES), States could assess up
to 257,650 students in the middle and
secondary levels (grades 6–12) against
alternate achievement standards. Based
on a typical ratio of one teacher for
every six students for instruction based
on alternate achievement standards, as
many as 43,000 special education
teachers would be eligible to
demonstrate that they fulfill the
requirements for highly qualified
teachers in section 9101 of the ESEA by
demonstrating subject matter knowledge
appropriate to the level of instruction
being provided instead of the student’s
grade level. The number of affected
teachers would depend on the extent to
which these special education teachers
are teaching exclusively children
assessed against alternate achievement
standards.
Although it is difficult to estimate the
savings from these final regulations, the
Secretary expects some savings to be
produced because affected special
education teachers are not required to
demonstrate the same level of content
knowledge as other middle and high
school teachers of core academic
subjects, thereby reducing the amount of
additional coursework or professional
development that is needed to meet
State standards. The savings depend on
the gap between what State standards
require in terms of content knowledge
for middle and high school teachers in
various academic areas and what the
affected teachers are able to demonstrate
in the academic subjects they are
teaching. Any savings will be offset in
part by the cost of developing a means
for the affected teachers to demonstrate
subject matter knowledge appropriate to
the level of instruction being provided.
However, this cost is not expected to be
significant. On balance, the Secretary
concludes that the final regulations
could produce significant savings
without adversely affecting the quality
of instruction provided to children
assessed against alternate achievement
standards.
Special Education Teachers Teaching
Multiple Subjects
Section 300.18(d) permits special
education teachers who are not new to
the profession and teach two or more
core academic subjects exclusively to
children with disabilities to
demonstrate competence in all the core
academic subjects that the teacher
teaches in the same manner as other
elementary, middle, and secondary
school teachers who are new to the
profession under 34 CFR 200.56(c),
including through a High Objective
Uniform State Standards of Evaluation
(HOUSSE) covering multiple subjects.
The final regulations allow more time
(two years after the date of employment)
for new special education teachers who
teach multiple subjects and who have
met the highly qualified requirements
for mathematics, language arts, or
science to demonstrate competence in
other core academic subjects that they
teach, as required by 34 CFR 200.56(c).
The final regulations also clarify in
§ 300.18(e) that States have the option of
developing separate HOUSSE standards
for special education teachers, including
a single HOUSSE for special education
teachers of multiple subjects. States may
not establish lesser standards for
content knowledge for special education
teachers, however.
We are unable to estimate the number
of new teachers who teach two or more
core academic subjects exclusively to
children with disabilities who might be
affected by the additional time afforded
by the regulation. However, the extent
of savings relates to the number of
subjects taught by teachers of multiple
subjects and the benefits of enabling the
affected teachers to take whatever
coursework they need to demonstrate
competence in those additional areas
over a longer period of time. Under
prior law, public agencies might have
needed to employ additional teachers
(or redeploy some existing teachers) in
those subject areas in which their newly
hired teachers could not immediately
demonstrate competence. The Secretary
concludes that the benefits of being able
to hire teachers who are qualified in at
least one subject area outweigh any
costs to students being taught by
teachers who currently do not meet the
requirements in other areas but are
working to demonstrate their knowledge
in other areas in which they teach.
Since States are not permitted to
establish a lesser standard for the
content knowledge requirements for
special education teachers, they are not
likely to realize additional savings due
to reduced expenses for coursework or
professional development for special
education teachers who have not
demonstrated content area knowledge.
States may realize administrative
savings, however, by being able to use
separate HOUSSE standards that are
both aligned with their licensing or
certification standards for special
education teachers and that cover
multiple subjects. The Secretary
concludes that the final regulations
could produce administrative savings
for States without adversely affecting
the quality of instruction provided to
children taught by special education
teachers assessed through a separate
mechanism that upholds the same
standards for content knowledge.
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Limitation on Number of Reevaluations
in a Single Year
Section 300.303(b)(1) prohibits
conducting more than one reevaluation
in a single year without the agreement
of the school district and the parent.
The previous regulations required
reevaluations when conditions
warranted one or at the request of either
the child’s parent or teacher.
Multiple evaluations in a single year
are rare and are conducted when
parents are not satisfied with the
evaluation findings or methodology,
children have a degenerative condition
that affects the special education and
related services needed, or very young
children (ages three through four) are
experiencing rapid development that
may affect the need for services. The
final regulations will not significantly
affect the number of evaluations in the
latter two instances because public
agencies and parents are likely to agree
that multiple evaluations are warranted.
These cases, however, account for a very
small number of the cases in which
multiple evaluations are conducted each
year.
Because evaluation findings may be
used to support requests for due process
hearings, we can use data on the
number of requests for due process
hearings to estimate the number of cases
in which more than one evaluation in a
single year would have been conducted
because parents were not satisfied with
the evaluation findings or methodology.
Based on data from the recent
Government Accountability Office
(GAO) report, ‘‘Special Education:
Numbers of Formal Disputes Are
Generally Low and States Are Using
Mediation and Other Strategies to
Resolve Conflicts’’ (GAO–03–897), in
which States reported receiving 11,068
requests for due process hearings during
1999–2000, we estimate that States
would receive 20 requests for every
10,000 students with disabilities during
the 2006–2007 school year. Based on the
prevalence of complaints by parents, we
estimate that, of the 1.7 million children
estimated to be eligible for reevaluation
in 2006–2007, multiple evaluations
would have been requested by parents
for an estimated 3,400 children. If we
assume that these additional evaluations
would cost about $1,000 each, public
agencies could save $3.4 million under
the final regulations by not agreeing to
more than one evaluation of children in
these instances.
Triennial Evaluations
The previous regulations required a
school district to conduct an evaluation
of each child served under the Act every
three years to determine, among other
things, whether the child was still
eligible for special education. The
previous regulations also permitted the
evaluation team to dispense with
additional tests to determine the child’s
continued eligibility if the team
concluded that this information was not
needed and the parents provided
consent. Section 300.303(b)(2) permits
districts to dispense with the triennial
evaluation when the child’s parents and
the public agency agree that a
reevaluation is unnecessary. The impact
of this change depends on the following
factors: the number of children eligible
for a reevaluation, the cost of the
evaluation, and the extent to which
districts and parents agree to waive
reevaluations.
Published estimates of the cost of
multidisciplinary evaluations range
from $500 to $2,500, but these estimates
may overestimate potential savings
because testing is a significant factor in
the cost of evaluations, and districts are
already permitted to dispense with
additional testing when extant data are
sufficient for reevaluation. The extent to
which States and districts eliminated
unnecessary testing during triennial
evaluations under the previous
regulations is unclear, but program
officers estimate that additional testing
or observation by a school psychologist
is not needed for as many as half of the
approximately 1.7 million children
eligible for triennial evaluations each
year. In the estimated 850,000 cases in
which additional testing is not needed,
review of the extant data may still be
warranted to determine if a child still
needs special education and related
services under the Act or to assess
whether any additions or modifications
to the special education and related
services being provided are needed to
help the child meet the child’s IEP
goals. Even if additions or modifications
to special education and related services
are not likely, parents may not want to
dispense with the triennial evaluation if
they believe further information could
be gained from the extant data or they
want to compare their child’s progress
against his or her previous assessments.
If parents and the district agree that a
reevaluation is not needed in 15
percent, or 127,500, of these cases and
a reevaluation using only extant data
would have cost $150, the final
regulations could save $19.125 million.
These savings will be partially offset
by increased administrative costs
associated with obtaining consent from
parents to dispense with reevaluation.
To estimate the cost of obtaining
parental consent, the Department
assumes that schools could use a
standard pre-printed document that
would take approximately 15 minutes of
administrative personnel time to fill out
and send to parents. In addition, we
estimate that an average of 2.5
additional written notices or telephone
calls would be needed to obtain
consent, requiring 15 minutes of
administrative personnel time per
additional contact. At an average hourly
compensation of $25, the cost to public
agencies of obtaining parental consent
would be $2.8 million, resulting in
estimated net savings to public agencies
from the final regulations of $16.3
million.
IEP Team Attendance
Section 300.321(e)(1) permits certain
members of the IEP Team to be excused
from attending an IEP Team meeting, in
whole or in part, if the parent of the
child with a disability and the public
agency agree in writing that the
member’s attendance is not necessary
because the member’s area of the
curriculum or related services is not
being modified or discussed. The
previous regulations required that all
IEP Team meetings include the parents
of the child, at least one regular
education teacher (if the child is, or may
be, participating in the regular
education environment), at least one
special education teacher, a
representative of the public agency, and
someone who could interpret the
instructional implications of the
evaluation results (who may be one of
the other required IEP Team members).
The extent to which public agencies
will realize savings from the final
regulations depends on which team
members are excused from how much of
the meeting. If the average IEP Team
meeting lasts 1.5 hours and requires a
half an hour of teacher preparation, then
we estimate that the opportunity costs
for a teacher of attending a meeting
(based on average compensation per
hour of $48) would be $96. If we assume
an average of 1.2 IEP Team meetings are
held for each of the 6.947 million
children with disabilities, then 8.34
million IEP Team meetings will be held
in 2006–2007. If one teacher could be
excused from five percent of these
meetings, the final regulation could
result in savings of $40 million.
These savings will be partially offset
by increased administrative costs
associated with obtaining written
consent from parents and public agency
staff. Based on the above estimate of the
cost of obtaining consent from parents
under § 300.303(b)(2), the Department
estimates that the cost to public
agencies of obtaining written consent
from these parents would be $9.1
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million, resulting in net savings to
public agencies from the final
regulations of $30.9 million.
Section 300.321(e)(2) permits certain
members of an IEP Team to be excused
from attending an IEP Team meeting
that involves a modification to or
discussion of the member’s area of the
curriculum or related service if the
parent and the public agency consent in
writing to the excusal and the member
submits written input to the parent and
the other members of the IEP Team prior
to the meeting. The change is unlikely
to generate notable savings because
reduced time spent in meetings is likely
to be offset by the time required to draft
written input, send it to the parents and
other IEP Team members, and secure
the consent of parents and public
agency to the excusal. In cases in which
IEP Team meetings take longer than the
average time of 1.5 hours, there are
likely to be controversial issues or
significant modifications to the IEP
under discussion. Parents are
presumably less likely to consent to the
excusal of team members in these
instances.
Definition of Individualized Education
Program (IEP)
Section 300.320(a)(2)(i) requires that
each IEP include a statement of
measurable annual goals, including
academic and functional goals, for the
child. The previous regulations required
that each IEP contain benchmarks or
short-term objectives for each of the
annual goals. By eliminating the need to
develop benchmarks or short-term
objectives, the final regulations could
result in teachers spending less time on
each IEP. Under § 300.320(a)(2)(ii),
however, IEPs for the estimated 486,000
children with disabilities who take
alternate assessments aligned to
alternate achievement standards would
still be required to include a statement
of benchmarks or short-term objectives.
Based on average compensation for
teachers of $48 per hour, a reduction in
time as modest as 15 minutes could save
approximately $12 per IEP or $77.5
million total in opportunity costs for
teachers related to the development of
IEPs during the 2006–2007 school year
for the 6.461 million children with
disabilities who do not take alternate
assessments aligned to alternate
achievement standards.
Amendments to an IEP
When changes to a child’s IEP are
needed after the annual IEP Team
meeting for the school year has been
held, § 300.324(a)(4) allows the parent
of a child with a disability and the
public agency to agree to forego a
meeting and develop a written
document to amend or modify the
child’s current IEP. Under the previous
regulations, the IEP Team was required
to reconvene in order to make
amendments to an IEP. Based on our
estimate of an average of 1.2 IEP Team
meetings per child per year,
approximately 1.4 million IEP Team
meetings beyond the required annual
IEP Team meeting would be held during
the 2006–2007 school year. If half of
these meetings concerned amendments
or modifications to an IEP and parents
and agency representatives agreed to
forego a meeting and develop a written
document in half of these cases, then
350,000 IEP Team meetings would not
be needed. The combined opportunity
costs for personnel participating in a
typical IEP Team meeting are estimated
at $307. If drafting a written document
to amend or modify an IEP is assumed
to cost half as much as a meeting, then
this change could result in savings of
$53.7 million.
Procedural Safeguards Notice
Section 300.504(a), which
incorporates changes in section
615(d)(1) of the Act, requires that a copy
of the procedural safeguards notice be
given to parents of children with
disabilities only once a school year,
except that a copy must also be given
when an initial evaluation or parent
request for an evaluation occurs; the
first time a due process hearing is
requested during a school year; when
the decision to take disciplinary action
is made; and when a parent requests the
notice. The prior law required that a
copy of the procedural safeguards notice
be given to the parents upon initial
referral for an evaluation, each
notification of an IEP Team meeting,
each reevaluation of the child, and the
registration of each request for a due
process hearing. Under the final
regulations, a copy of the procedural
safeguards notice no longer has to be
given to parents with each notice for an
IEP Team meeting or every time a
request for a due process hearing is
received. Instead, the document only
has to be given to parents once a year,
and the first time a due process hearing
is requested in a year, when the
decision to take disciplinary action is
made, when a copy of the document is
specifically requested by a parent, or
when an initial evaluation or request for
a reevaluation occurs.
To determine the impact of this
change, it is necessary to estimate the
savings created by providing fewer
notices to parents who are notified
about more than one IEP Team meeting
during the year or who file more than
one request for a due process hearing.
Given the small number of hearing
requests in a year (about 20 per 10,000
children with disabilities), our analysis
will focus on the number of parents
involved in more than one IEP Team
meeting. Although we lack detailed data
on the number of IEP Team meetings
conducted each year, we estimate that
approximately 6.947 million children
with disabilities will be served in school
year 2006–2007. For the vast majority of
these children, we believe there will be
only one IEP Team meeting during the
year. For purposes of estimating an
upper limit on savings, if we assume an
average of 1.2 meetings per year per
child, 1.39 million children will have
two IEP Team meetings each year and
the change reflected in § 300.504(a) will
result in 1.39 million fewer procedural
notices provided to parents. While some
people may believe this change
represents a significant reduction in
paperwork for schools, the actual
savings are likely to be minimal given
the low cost of producing a notice of
this size (about 10 pages) and the small
amount of administrative staff time
involved in providing this notice to
parents (about 10 minutes). Taking all of
this into consideration, total savings are
unlikely to exceed $5 million.
Due Process Request Notices
Section 300.511(d) prohibits the party
who requested the due process hearing
from raising issues not raised in the due
process request notice, unless the other
party agrees. Under previous
regulations, there was no prohibition on
raising issues at due process hearings
that were not raised in the due process
notice.
By encouraging the party requesting
the hearing to clearly identify and
articulate issues sooner, the final
regulations could generate actual
savings by facilitating early resolution of
disagreements through less costly
means, such as mediation or resolution
meetings. But early identification of
issues could come at the cost of more
extensive involvement of attorneys
earlier in the process. At the same time,
prohibiting the party requesting the
hearing from raising new issues at the
time of the hearing could result in
additional complaints or protracted
conflict and litigation. On balance, net
costs or savings are not likely to be
significant.
Using data from recent State data
collections conducted by the
Consortium for Appropriate Dispute
Resolution in Special Education
(CADRE), in which States reported
receiving 12,914 requests for due
process hearings during 2000–2001, we
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estimate that there will be
approximately 14,059 requests in 2006–
2007. Because some parties already hire
attorneys or consult other resources
such as advocates or parent training
centers to develop the request for due
process, the Department assumes that
only a portion of the requests would be
affected by this new requirement.
Although we have no reliable data on
average attorneys’ fees in due process
cases, for purposes of this analysis, the
Department assumes an hourly rate of
$300 as an upper limit. The Department
further assumes that each instance in
which a party chooses to hire an
attorney sooner as a result of this change
will involve no more than three
additional hours of work. Even if we
assume that parties requesting the
hearing will incur this additional cost in
the case of 8,000 of the expected
requests for due process, the total costs
would not be significant (less than $8
million), and could be outweighed by
the benefits of early identification and
resolution of issues. Although such
benefits are largely unquantifiable, early
identification and resolution of disputes
would likely benefit all parties involved
in disputes.
Resolution Meetings
Section 300.510 requires the parents,
relevant members of the IEP Team, and
a representative of the public agency to
participate in a resolution meeting, prior
to the initiation of a due process
hearing, unless the parents and LEA
agree to use mediation or agree to waive
the requirement for a resolution
meeting. The impact of these final
regulations will depend on the
following factors: the number of
requests for due process hearings, the
extent to which disagreements are
already resolved without formal
hearings, the likelihood that parties will
agree to participate in mandatory
resolution meetings instead of other
potentially more expensive alternatives
to due process hearings (e.g.,
mediation), and the likelihood that
parties will avoid due process hearings
by reaching agreement as a result of
mandatory resolution meetings.
Available data suggest that overall
savings are not likely to be significant
because of the small number of due
process requests and the extent to which
disagreements are already being
successfully resolved through
mediation.
Based on data reported in a recent
CADRE State data collection in which
States reported receiving 12,914
requests for due process hearings during
2000–2001, we estimate that there will
be approximately 14,059 requests for
due process hearings in school year
2006–2007. Based on data from the
same study, we also estimate that the
large majority of these disagreements
will be successfully resolved through
mediation or dropped. Out of the 12,914
requests for school year 2000–2001,
approximately 5,536 went to mediation
and only 3,659 ended up in formal
hearings. Assuming no change in the
use and efficacy of mediation, we
predict that 6,028 requests would go to
mediation in school year 2006–2007.
We further predict that another 4,047
complaints will be dropped, leaving no
more than 3,985 requests for due
process hearings that would require
resolution meetings.
Because of the high cost of due
process hearings and the low expected
cost of conducting a resolution meeting,
there would likely be some savings for
all parties involved if resolution
meetings were relatively successful in
resolving disagreements. For example,
California reports an average cost of
$18,600 for a due process hearing, while
Texas reports having spent an average of
$9,000 for a hearing officer’s services.
Anticipating that attorneys will
participate in approximately 40 percent
of the predicted 3,985 resolution
meetings (including drafting legally
binding agreements when parties reach
agreement), we expect resolution
meetings to cost just over twice the
average cost of IEP Team meetings, or
approximately $700 per meeting. Even
with a very low success rate (eight
percent), given the expected costs of
these meetings compared to the high
cost of conducting a hearing, all parties
involved would likely realize some
modest savings. However, because
disputes that result in formal hearings
tend to be the most difficult to resolve,
we do not expect that mandatory
resolution meetings will be highly
successful in resolving such cases. By
definition, these are cases in which the
parties are not amenable to using
existing alternatives to formal hearings
such as mediation. Moreover, assuming
an average cost of between $10,000 and
$20,000 per due process hearing, even if
as many as 20 percent of the 3,985
complaints were successfully resolved
through resolution meetings, net savings
still would not exceed $10 million.
(Note that it is unclear to what extent
data on average mediation and due
process hearing costs account for LEA
opportunity costs (e.g., cost per teacher
and/or administrator participating). To
the extent that these data do not reflect
the opportunity costs of participating
LEA officials and staff, we have
overestimated the potential savings from
resolution meetings).
Beyond those savings to all parties
resulting from reductions in the total
number of formal hearings, we also
expect some additional savings to result
from parties agreeing to participate in
resolution meetings instead of
mediation, particularly if the resolution
meetings are as effective as mediation in
resolving disagreements. However,
unlike due process hearings, the
expected cost of conducting a resolution
meeting ($700 per meeting) is only
somewhat less than the cost of a
mediation session (between $600 and
$1,800 per session). Because the cost
differential between resolution meetings
and mediations is relatively small
(compared to the difference in cost
between resolution meetings and due
process hearings) the potential for
savings generated by parties agreeing to
resolution meetings instead of
mediation is minimal.
The Secretary concludes that
requiring parties to participate in
resolution meetings prior to due process
hearings could generate modest savings
for all parties to disputes, insofar as
mandatory resolution meetings could
result in fewer due process hearings and
may be used as a less expensive
alternative to mediation.
Manifestation Determination Review
Procedures
Section 300.530(e) and (f) incorporate
the change in the statutory standard for
conducting manifestation determination
reviews. Under the prior law, the IEP
Team could conclude that the behavior
of a child with a disability was not a
manifestation of the child’s disability
only after considering a list of factors,
determining that the child’s IEP and
placement were appropriate, and that
FAPE, supplemental services, and
behavioral intervention strategies were
being provided in a manner consistent
with the child’s IEP. Previous law also
required the IEP Team to consider
whether a child’s disability impaired
the child’s ability to understand the
impact and consequences of the
behavior in question, and to control
such behavior. The Act eliminated or
substantially revised these
requirements. The final regulations
simply require an IEP Team to review
all relevant information in the child’s
file to determine if the conduct in
question was caused by, or had a direct
and substantial relationship to, the
child’s disability, or if the conduct in
question was the direct result of the
LEA’s failure to implement the IEP. The
purpose of the change in the law is to
simplify the discipline process and
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make it easier for school officials to
discipline children with disabilities
when discipline is appropriate and
justified.
Because fewer factors need to be
considered during each manifestation
determination review, the time required
to conduct such reviews will likely be
reduced, and some minimal savings
may be realized. However, the more
significant impact relates to secondary
effects. Because it will be less
burdensome for school personnel to
conduct manifestation determinations,
it is reasonable to expect an overall
increase in the number of these reviews
as school personnel take advantage of
the streamlined process to pursue
disciplinary actions against those
children with disabilities who commit
serious violations of student codes of
conduct. This prediction is consistent
with a recent GAO report (‘‘Student
Discipline: Individuals with Disabilities
Education Act’’ (GAO–01–210)), which
found that a ‘‘sizable minority of
principals’’ voiced concern that
discipline policies under previous law
impeded proper disciplinary action for
students with disabilities, and that some
of these comments ‘‘may have stemmed
from the additional time and resources
that principals reportedly use to
discipline special education students
compared with regular education
students.’’ Even more importantly, the
changes in the law will make it easier
for review team members to conclude
that the behavior in question is not a
manifestation of a child’s disability,
enabling school personnel to apply
disciplinary sanctions in more cases
involving children with disabilities.
We have minimal data on the number
of manifestation determination reviews
being conducted. However, State-
reported data for the 2002–2003 school
year suggest that schools are conducting
a relatively small number of
manifestation reviews. According to
these data, for every 1,000 children with
disabilities, approximately 11 will be
suspended or expelled for longer than
10 days during the school year (either
through a single suspension or as a
result of multiple short-term
suspensions)—the disciplinary action
triggering a manifestation review.
(Please note that we have no way of
accurately estimating what portion of
short-term suspensions that add up to
10 days would be determined by school
personnel to constitute a change in
placement. Therefore, we assume, for
purposes of this analysis, that 100
percent of these instances would require
a manifestation review because they
would be deemed a change in
placement). Based on a recent GAO
study (‘‘Student Discipline: Individuals
with Disabilities Education Act’’ (GAO–
01–210)), we assume that under
previous law at least 85 percent of
manifestation reviews resulted in
disciplinary actions (e.g., long-term
suspensions or expulsion). In other
words, approximately 15 percent of all
manifestation reviews did not result in
disciplinary action because the behavior
in question was determined to be a
manifestation of the child’s disability.
Without taking into consideration
increases in the frequency of
manifestation reviews, using suspension
and expulsion data from previous years,
we estimate that the total number of
manifestation reviews in 2006–2007
will be approximately 87,880. If we
assume that the streamlining reflected
in the regulations will produce a 20
percent increase in the total number of
manifestation reviews, we predict that
17,576 additional meetings will occur,
for a total of 105,456 meetings.
Under the final regulations, the
Secretary also expects an increase in the
total number of manifestation reviews
resulting in disciplinary actions, but it
is not likely to be a significant increase.
GAO’s finding that there is little
practical difference in how school
personnel disciplined regular and
special education students under
previous law suggests that manifestation
reviews are already highly likely to
result in disciplinary actions.
The Secretary concludes that the final
regulations will generate some minimal
savings from the reduction in time
required to conduct the manifestation
reviews. Schools would also realize
some qualitative benefits related to the
increased likelihood that the outcome of
the review will result in disciplinary
action, thereby fostering a school
environment that is safer, more orderly,
and more conducive to learning. The
Secretary acknowledges that the final
regulations could create additional costs
for parents of children who, but for this
change, would not have been subject to
disciplinary removals, to the extent that
such parents disagree with the
manifestation determination and choose
to appeal it. On balance, the Secretary
believes that the benefits likely to result
from this change relating to school
safety and order outweigh the costs to
families.
Authority To Remove Students With
Disabilities to Interim Alternative
Educational Settings
Sections 300.530(g) through 300.532
incorporate two significant statutory
changes relating to the authority of
school personnel to remove children
with disabilities to interim alternative
educational settings. First, the Act now
gives school personnel the authority to
remove to interim alternative
educational settings children who have
inflicted serious bodily injury to
themselves, or others. Under previous
law, school personnel were authorized
to remove children to alternative
settings only for misconduct involving:
(1) The use and possession of weapons;
and (2) the knowing possession, sale, or
use of illegal drugs or controlled
substances. The Act added the
commission of serious bodily injury to
this list. In cases involving serious
bodily injury, school personnel would
be able to unilaterally remove children
with disabilities to interim alternative
educational settings for up to 45 school
days without having to request that a
hearing officer review the facts to
determine whether or not the child is
substantially likely to harm him or
herself or others. Second, the 45-day
rule has changed. Under previous law,
students could not be removed to
interim alternative educational settings
for more than 45 days. Now, under the
Act, the comparable time limitation is
45 school days.
Although the addition of serious
bodily injury significantly simplifies the
process for removing a child who has
engaged in such misconduct, the data
suggest that the savings from the final
regulations will be minimal. Recent
Department of Justice data show that
‘‘fighting without a weapon’’ is by far
the most common type of serious
misconduct engaged in by all students.
However, State-reported data suggest
that, of the 20,000 instances in 2002–
2003 in which children with disabilities
were suspended or expelled for longer
than 10 days, only 1,200 involved
serious bodily injury or removal ‘‘by a
hearing officer for likely injury.’’ We
estimate that approximately 6.947
million children with disabilities will
be served during the 2006–2007 school
year. Using these data, we project that
there would have been approximately
1,283 instances in 2006–2007 in which
a school district might have requested
approval from a hearing officer to
remove a child for inflicting serious
bodily injury, if the law had not been
changed. Taking into account the time
that would have been spent by both
relevant school administrators and the
hearing officers and their estimated
hourly wages (about $125 per hour for
hearing officers and $50 per hour for
school administrators), we conclude
that the unilateral authority afforded
school officials under the final
regulations produce only minimal
savings (less than $1 million).
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A much more significant benefit
relates to the enhanced ability of school
officials to provide for a safe and orderly
environment for all students in the
1,283 cases in which school officials
would have been expected to seek and
secure hearing officer approval for
removing a child with a disability to an
alternative setting and the other cases in
which they might not have taken such
action, but where removal of a child
with a disability who has caused injury
is justified and produces overall benefits
for the school.
The change in how days are to be
counted (e.g., from ‘‘calendar days’’
under previous law to ‘‘school days’’
under the final regulations) allows
school officials to extend placements in
alternative settings for approximately
two additional weeks. This generates
some savings to the extent that it
obviates the need for school officials to
seek hearing officer approval to extend
a child’s placement in an alternative
setting.
While school personnel are not
required to use the new authority to
remove children who have inflicted
serious bodily injury or to remove
children for the total amount of time
that is authorized, we acknowledge that
it would create additional costs for
schools that choose to take full
advantage of this authority because of
the added costs of providing services in
interim alternative educational settings.
Using data from a recent GAO study
(‘‘Student Discipline: Individuals with
Disabilities Education Act’’ (GAO–01–
210)), we estimate that approximately
3,007 children will be removed to an
interim alternative educational setting
in 2006–2007 for misconduct involving
drugs or weapons and at least another
1,283 for misconduct involving serious
bodily injury. Although we do not have
data on the costs of educating these
children in an alternative setting for 45
school days, the Secretary concludes
that the costs of doing so will be
outweighed by the qualitative benefits
to schools associated with ensuring
children a safe and orderly environment
that is conducive to learning.
Costs and Benefits of Non-Statutory
Final Regulatory Provisions
The following is an analysis of the
costs and benefits of the non-statutory
final regulatory provisions that includes
consideration of the special effects these
changes may have on small entities.
The final regulations primarily affect
SEAs and LEAs, which are responsible
for carrying out the requirements of Part
B of the Act as a condition of receiving
Federal financial assistance under the
Act. Some of the changes also affect
children attending private schools and
consequently indirectly affect private
schools.
For purposes of this analysis as it
relates to small entities, the Secretary
has focused on LEAs because these
regulations most directly affect local
public agencies. The analysis uses a
definition of small school district
developed by the NCES for purposes of
its recent publication, Characteristics of
Small and Rural School Districts. In that
publication, NCES defines a small
school district as ‘‘one having fewer
students in membership than the sum of
(a) 25 students per grade in the
elementary grades it offers (usually K–
8) and (b) 100 students per grade in the
secondary grades it offers (usually 9–
12)’’. Using this definition,
approximately 38 percent of the
Nation’s public agencies in the 2002–
2003 Common Core of Data were
considered small and served three
percent of the Nation’s students.
Approximately 17 percent of children in
small districts had IEPs.
Both small and large districts will be
affected economically by the final
regulations, but no data are available to
analyze the effect on small districts
separately. For this reason, this analysis
assumes that the effect of the final
regulations on small entities will be
roughly proportional to the number of
children with disabilities served by
those districts.
For school year 2006–2007, we project
that approximately 48.6 million
children will be enrolled in public
elementary and secondary schools.
Using the NCES definition and
assuming that all districts grew at the
same rate between school years 2002–
2003 and 2005–2006, we estimate that
in the 2006–2007 school year,
approximately 1.46 million children
will be enrolled in small districts. Based
on the percentage of students in small
districts with IEPs in 2002–2003, we
estimate that in the 2006–2007 school
year, these districts will serve
approximately 248,000 children with
disabilities of the 6.947 million children
with disabilities served nationwide.
There are many provisions in the final
regulations that will result in economic
impacts, both positive and negative. The
following analysis estimates the impact
of the final regulations that were not
required by the Act:
Procedures for Evaluating Children
With Specific Learning Disabilities
Section 300.307(a) requires that States
adopt criteria for determining whether a
child has a specific learning disability.
Under the final regulations, States may
not require that LEAs use criteria based
on a severe discrepancy between
intellectual ability and achievement for
determining whether a child has a
specific learning disability. The final
regulations also require that criteria
adopted by States permit the use of a
process that determines if the child
responds to scientific, research-based
intervention. States are also permitted to
use other alternative procedures to
determine if a child has a specific
learning disability.
Before determining that a child has a
specific learning disability, § 300.309(b)
requires that the evaluation team
consider data that demonstrate that
prior to, or as part of the referral
process, the child received appropriate
instruction in regular education settings
and that data-based documentation of
repeated assessments of achievement
during instruction was provided to the
child’s parents. If the child has not
made adequate progress under these
conditions after an appropriate period of
time, the final regulations further
require that the public agency refer the
child for an evaluation to determine if
special education and related services
are needed. Under the final regulations,
the child’s parents and the team of
qualified professionals, described in
§ 300.306(a)(1), are permitted to extend
the evaluation timelines described in
§§ 300.301 through 300.303 by mutual
written agreement.
If the estimated number of initial
evaluations each year is 1.7 million and
the percentage of evaluations involving
children with specific learning
disabilities is equivalent to the
percentage of all children served under
Part B of the Act with specific learning
disabilities, then the final regulations
will affect approximately 816,000
evaluations each year. Depending on the
criteria adopted by their States pursuant
to § 300.307(a), public agencies could
realize savings under the final
regulations by reducing the amount of a
school psychologist’s time involved in
conducting cognitive assessments that
would have been needed to document
an IQ discrepancy. However, these
savings could be offset by increased
costs associated with documenting
student achievement through regular
formal assessments of their progress, as
required under § 300.309(b).
Although the cost of evaluating
children suspected of having specific
learning disabilities might be affected by
the final regulations, the Department
expects that the most significant
benefits of the changes will be achieved
through improved identification of
children suspected of having specific
learning disabilities. By requiring that
States permit alternatives to an IQ-
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discrepancy criterion, the final
regulations facilitate more appropriate
and timely identification of children
with specific learning disabilities, so
that they can benefit from research-
based interventions that have been
shown to produce better achievement
and behavioral outcomes.
The final regulations may impose
additional costs on small public
agencies that currently lack capacity to
conduct repeated assessments of
achievement during instruction and
provide parents with documentation of
the formal assessments of their child’s
progress. These costs are likely to be
offset by reduced need for psychologists
to administer intellectual assessments.
To the extent that small districts may
not employ school psychologists, the
revised criteria may alleviate testing
burdens felt disproportionately by small
districts under an IQ discrepancy
evaluation model.
Transition Requirements
Section 300.321(b) modifies previous
regulations regarding transition services
planning for children with disabilities
who are 16 through 21 years old. Public
agencies are still required to invite other
agencies that are likely to be responsible
for providing or paying for transition
services to the child’s IEP Team
meeting. If the invited agency does not
send a representative, public agencies
are no longer required to take additional
steps to obtain the participation of those
agencies in the planning of transition, as
required under former
§ 300.344(b)(3)(ii).
Public agencies will realize savings
from the change to the extent that they
will not have to continue to contact
agencies that declined to participate in
IEP Team meetings on transition
planning. In school year 2006–2007, we
project that public agencies will
conduct 1.193 million meetings for
children with disabilities who are 16
through 21 years old. We used data from
the National Longitudinal Transition
Study 2 (NLTS2) on school contacts of
outside agency personnel to project the
number of instances in which outside
agencies would be invited to IEP Team
meetings during the 2006–2007 school
year. Based on these data, we project
that schools will invite 1.492 million
personnel from other agencies to IEP
Team meetings for these students during
the 2006–2007 school year. The NLTS2
also collected data on the percentage of
children with a transition plan for
whom outside agency staff were actively
involved in transition planning. Based
on these data, we project that 432,800
(29 percent) of the contacts will result
in the active participation of outside
agency personnel in transition planning
for children with disabilities who are
age 16 through 21.
We base our estimate of the savings
from the change on the projected
1,059,200 (71 percent) instances in
which outside agencies will not
participate in transition planning
despite school contacts that, under the
previous regulations, would have
included both an invitation to
participate in the child’s IEP Team
meeting and additional follow-up
attempts. If public agencies made only
one additional attempt to contact the
outside agency and each attempt
required 15 minutes of administrative
personnel time, then the change will
save $6.6 million (based on an average
hourly compensation for office and
administrative support staff of $25).
Studies of best practices conducted by
the National Center on Secondary
Education and Transition indicate that
effective transition planning requires
structured interagency collaboration.
Successful approaches cited in the
studies included memoranda of
understanding between relevant
agencies and interagency teams or
coordinators to ensure that educators,
State agency personnel and other
community service providers share
information with parents and children
with disabilities. The previous
regulations focused on administrative
contact instead of active strategic
partnerships between agencies that
facilitate seamless transitions for
children with disabilities between
school and adult settings. For this
reason, the Department believes that the
elimination of the non-statutory
requirement that public agencies make
additional attempts to contact other
agencies will reduce administrative
burden and allow public agencies to
focus their efforts on interagency
collaborative transition planning for
children with disabilities.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995
does not require you to respond to a
collection of information unless it
displays a valid OMB control number.
We display the valid OMB control
numbers assigned to the collections of
information in these final regulations at
the end of the affected sections of the
regulations.
These final regulations include 9
information collection requirements
associated with the following
provisions: §§ 300.100 through 300.176,
§ 300.182, § 300.199, §§ 300.201 through
300.213, § 300.224, § 300.226,
§§ 300.506 through 300.507, § 300.511,
§§ 300.601 through 300.602, § 300.640,
§ 300.704, and § 300.804. A description
of these provisions is given below with
an estimate of the annual recordkeeping
burden. Included in the estimate is the
time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
each collection of information.
Collection of Information: Annual
State Application under Part B of the
Act. §§ 300.100 through 300.176,
§ 300.182, and § 300.804. Each State is
eligible for assistance under Part B of
the Act for a fiscal year if the State
submits a plan that provides assurances
to the Secretary that the State has in
effect policies and procedures to ensure
that the State meets the eligibility
criteria under Part B of the Act and
these final regulations. Under the Act,
States are no longer required to have on
file with the Secretary policies and
procedures to demonstrate to the
satisfaction of the Secretary that the
State meets specific conditions for
assistance under Part B of the Act.
Information collection 1820–0030 has
been revised to reflect this change in the
Act and these regulations.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average twelve hours for
each response for 60 respondents,
including the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0030 is estimated to be
720 hours.
Collection of Information: Part B State
Performance Plan (SPP) and Annual
Performance Report (APR). §§ 300.600
through 300.602. Each State must have
in place, not later than one year after the
date of enactment of the Act, a
performance plan that evaluates the
State’s efforts to implement the
requirements and purposes of Part B of
the Act and these final regulations and
describe how the State will improve
such implementation. Each State shall
report annually to the public on the
performance of each LEA located in the
State on the targets in the State’s
performance plan. The State must report
annually to the Secretary on the
performance of the State under the
State’s performance plan.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 325 hours for
each response for 60 respondents,
including the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
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data needed, and completing and
reviewing the collection of information.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0624 is estimated to be
19,500 hours.
Collection of Information: Report of
Children with Disabilities Receiving
Special Education under Part B of the
Individuals with Disabilities Education
Act. §§ 300.640 through 300.645. Each
State that receives assistance under Part
B of the Act shall provide data each year
to the Secretary and the public on
children with disabilities by race/
ethnicity, disability, gender, and limited
English proficiency status receiving
special education and related services in
each State.
Annual reporting and recordkeeping
burden for this collection is estimated to
average 9 hours for each of 60 State
agencies and 2 hours for LEAs in each
State. Thus, the total annual reporting
and recordkeeping burden for collection
1820–0043 is 33,276 hours.
Collection of Information: Report of
Children with Disabilities Subject to
Disciplinary Removal. § 300.640. Each
State must provide data to the Secretary
and the public by race, ethnicity,
limited English proficiency status,
gender, and disability category on
children with disabilities who are
removed to an interim alternative
educational setting and the acts or items
precipitating those removals. Data must
also be reported by race, ethnicity,
limited English proficiency status,
gender, and disability category on the
number of children with disabilities
who are subject to long-term
suspensions or expulsions. In addition,
data must be reported on the number
and percentage of children with
disabilities who are removed to
alternative educational settings or
expelled as compared to children
without disabilities, and on the
incidence and duration of disciplinary
actions, including suspensions of one
day or more. Information collection
1820–0621 has been revised to reflect
the new statutory requirements and the
final regulations.
Annual reporting and record keeping
burden for this collection of information
is estimated to average 17.5 hours for
each of an average of 260 LEAs per State
to collect, review, and report the data
and 74 hours per State agency (60) to
collect, maintain, and report these data.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0621 for all States (60)
is estimated to be 277,440 hours.
Collection of Information: Personnel
(in Full-Time Equivalency of
Assignments) Employed to Provide
Special Education and Related Services
for Children with Disabilities. § 300.640,
§ 300.642, and § 300.645. Each LEA
must ensure that all personnel are
appropriately and adequately prepared
and each SEA must establish and
maintain qualifications to ensure that
personnel are appropriately and
adequately prepared and trained,
including that those personnel have the
content knowledge and skills to serve
children with disabilities. To help
ensure that these requirements are met,
the Secretary must collect data that can
be used to monitor these requirements.
Information collection 1820–0518 has
been revised to reflect the new statutory
requirements and the final regulations.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 0.5 hours for
each of an average of 260 LEAs per State
and 2.5 hours for each of 60 State
agencies. Thus, the total annual
reporting and recordkeeping burden for
information collection 1820–0518 for all
States is 7,950 hours.
Collection of Information: Report of
Children with Disabilities Exiting
Special Education. § 300.640. Each State
must report to the Secretary children by
race, ethnicity, limited English
proficiency status, gender, and
disability category, the number of
children with disabilities aged 14
through 21 who stopped receiving
special education and related services
because of program completion
(including graduation with a regular
secondary school diploma), or other
reasons, and the reasons why those
children stopped receiving special
education and related services.
Information collection 1820–0521 has
been revised to reflect the new statutory
requirements and the final regulations.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 6 hours for each
of an average of 260 LEAs per State and
11 hours for each of 60 State agencies.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0521 for all States is
94,260 hours.
Collection of Information: Part B,
Individuals with Disabilities Education
Act Implementation of FAPE
Requirements. § 300.640. Each State
must provide to the Secretary and the
public data on children with disabilities
by race, ethnicity, limited English
proficiency status, gender, and
disability category who are receiving a
free appropriate public education,
participating in regular education, in
separate classes, separate schools or
facilities, or public or private residential
facilities. Information collection 1820–
0517 has been revised to reflect the new
statutory requirement.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 27 hours for each
of an average of 260 LEAs per State and
28 hours for each of 60 State agencies.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0517 for all States is
422,880 hours.
Collection of Information: Report of
Dispute Resolution Under Part B of the
Individuals with Disabilities Education
Act: Complaints, Mediations, and Due
Process Hearings. § 300.640. Each State
must report to the Secretary and the
public, the number of due process
complaints filed under section 615 of
the Act and the number of hearings
conducted; the number of hearings
requested under section 615(k) of the
Act and the number of changes in
placement ordered as a result of those
hearings; and the number of mediations
held and the number of settlement
agreements reached through those
mediations.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 70 hours for each
of 60 State agencies. Thus, the total
annual reporting and recordkeeping
burden for information collection 1820–
0677 is estimated to be 4,200 hours.
Collection of Information: State and
LEA Record Keeping and Reporting
Requirements under Part B. § 300.132,
§§ 300.134 through 300.136, §§ 300.151
through 300.153, §§ 300.201 through
300.213, § 300.224, § 300.226, § 300.504,
§ 300.506, § 300.507, § 300.511, and
§ 300.704. The Act requires States and
LEAs to gather, maintain, and report
various information and data, but the
Act does not require this information
and data to be submitted to the
Department. In the NPRM, these
requirements were reflected in separate
information collections. For the purpose
of clarity and efficiency we have
combined these separate collections of
information into one collection that
reflects all the record keeping and
reporting that must be completed at the
State or LEA level, which do not require
reporting to the Department. The
following collections of information
referenced in the NPRM are combined
into information collection 1820–0600:
LEA Application under Part B of the
Act; List of Hearing Officers and
Mediators, Complaint Procedures; LEA
Consultation with Private School
Representatives; Private School
Complaint of Noncompliance with
Consultation Requirements;
Identification of State-Imposed Rules,
Regulations, or Policies; Number of
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Children with Disabilities Enrolled in
Private Schools by Their Parents; State
Plan for High Cost Fund; Free and Low-
Cost Legal Services; and Confidentiality
Pledge Prior to the Commencement of
Mediation.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to approximately 6 hours
for 79,194 respondents (LEAs and State
agencies). The total annual reporting
and recordkeeping burden for
information collection 1820–0600 for all
States and LEAs is 472,651 hours.
Intergovernmental Review
This program is subject to the
requirements of Executive Order 12372
and the regulations in 34 CFR part 79.
The objective of the Executive order is
to foster an intergovernmental
partnership and a strengthened
federalism by relying on processes
developed by State and local
governments for coordination and
review of proposed Federal financial
assistance.
In accordance with this order, we
intend this document to provide early
notification of the Department’s specific
plans and actions for this program.
Assessment of Educational Impact
In the NPRM published in the Federal
Register on June 21, 2005, we requested
comments on whether the proposed
regulations would require transmission
of information that any other agency or
authority of the United States gathers or
makes available.
Based on the response to the NPRM
and on our own review, we have
determined that these final regulations
do not require transmission of
information that any other agency or
authority of the United States gathers or
makes available.
Electronic Access to this Document
You may view this document, as well
as all other Department of Education
documents published in the Federal
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List of Subjects
34 CFR Part 300
Administrative practice and
procedure, Education of individuals
with disabilities, Elementary and
secondary education, Equal educational
opportunity, Grant programs’education,
Privacy, Private schools, Reporting and
recordkeeping requirements.
34 CFR Part 301
Education of individuals with
disabilities, Elementary and secondary
education, Equal educational
opportunity, Grant programs—
education, Infants and children,
Reporting and recordkeeping
requirements.
Dated: July 31, 2006.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in this
preamble, and under the authority of 20
U.S.C. 1221(e)(3) and 1406, the
Secretary amends title 34 of the Code of
Federal Regulations as follows:
1. Part 300 is revised to read as
follows:
PART 300—ASSISTANCE TO STATES
FOR THE EDUCATION OF CHILDREN
WITH DISABILITIES
Subpart A—General
Purposes and Applicability
Sec.
300.1 Purposes.
300.2 Applicability of this part to State and
local agencies.
Definitions Used in This Part
300.4 Act.
300.5 Assistive technology device.
300.6 Assistive technology service.
300.7 Charter school.
300.8 Child with a disability.
300.9 Consent.
300.10 Core academic subjects.
300.11 Day; business day; school day.
300.12 Educational service agency.
300.13 Elementary school.
300.14 Equipment.
300.15 Evaluation.
300.16 Excess costs.
300.17 Free appropriate public education.
300.18 Highly qualified special education
teachers.
300.19 Homeless children.
300.20 Include.
300.21 Indian and Indian tribe.
300.22 Individualized education program.
300.23 Individualized education program
team.
300.24 Individualized family service plan.
300.25 Infant or toddler with a disability.
300.26 Institution of higher education.
300.27 Limited English proficient.
300.28 Local educational agency.
300.29 Native language.
300.30 Parent.
300.31 Parent training and information
center.
300.32 Personally identifiable.
300.33 Public agency.
300.34 Related services.
300.35 Scientifically based research.
300.36 Secondary school.
300.37 Services plan.
300.38 Secretary.
300.39 Special education.
300.40 State.
300.41 State educational agency.
300.42 Supplementary aids and services.
300.43 Transition services.
300.44 Universal design.
300.45 Ward of the State.
Subpart B—State Eligibility
General
300.100 Eligibility for assistance.
FAPE Requirements
300.101 Free appropriate public education
(FAPE).
300.102 Limitation—exception to FAPE for
certain ages.
Other FAPE Requirements
300.103 FAPE—methods and payments.
300.104 Residential placement.
300.105 Assistive technology.
300.106 Extended school year services.
300.107 Nonacademic services.
300.108 Physical education.
300.109 Full educational opportunity goal
(FEOG).
300.110 Program options.
300.111 Child find.
300.112 Individualized education programs
(IEP).
300.113 Routine checking of hearing aids
and external components of surgically
implanted medical devices.
Least Restrictive Environment (LRE)
300.114 LRE requirements.
300.115 Continuum of alternative
placements.
300.116 Placements.
300.117 Nonacademic settings.
300.118 Children in public or private
institutions.
300.119 Technical assistance and training
activities.
300.120 Monitoring activities.
Additional Eligibility Requirements
300.121 Procedural safeguards.
300.122 Evaluation.
300.123 Confidentiality of personally
identifiable information.
300.124 Transition of children from the Part
C program to preschool programs.
300.125–300.128 [Reserved]
Children in Private Schools
300.129 State responsibility regarding
children in private schools.
Children With Disabilities Enrolled by Their
Parents in Private Schools
300.130 Definition of parentally-placed
private school children with disabilities.
300.131 Child find for parentally-placed
private school children with disabilities.
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300.132 Provision of services for parentally-
placed private school children with
disabilities—basic requirement.
300.133 Expenditures.
300.134 Consultation.
300.135 Written affirmation.
300.136 Compliance.
300.137 Equitable services determined.
300.138 Equitable services provided.
300.139 Location of services and
transportation.
300.140 Due process complaints and State
complaints.
300.141 Requirement that funds not benefit
a private school.
300.142 Use of personnel.
300.143 Separate classes prohibited.
300.144 Property, equipment, and supplies.
Children With Disabilities in Private Schools
Placed or Referred by Public Agencies
300.145 Applicability of §§ 300.146 through
300.147.
300.146 Responsibility of SEA.
300.147 Implementation by SEA.
Children With Disabilities Enrolled by Their
Parents in Private Schools When FAPE is at
Issue
300.148 Placement of children by parents
when FAPE is at issue.
SEA Responsibility for General Supervision
and Implementation of Procedural
Safeguards
300.149 SEA responsibility for general
supervision.
300.150 SEA implementation of procedural
safeguards.
State Complaint Procedures
300.151 Adoption of State complaint
procedures.
300.152 Minimum State complaint
procedures.
300.153 Filing a complaint.
Methods of Ensuring Services
300.154 Methods of ensuring services.
Additional Eligibility Requirements
300.155 Hearings relating to LEA eligibility.
300.156 Personnel qualifications.
300.157 Performance goals and indicators.
300.158–300.161 [Reserved]
300.162 Supplementation of State, local,
and other Federal funds.
300.163 Maintenance of State financial
support.
300.164 Waiver of requirement regarding
supplementing and not supplanting with
Part B funds.
300.165 Public participation.
300.166 Rule of construction.
State Advisory Panel
300.167 State advisory panel.
300.168 Membership.
300.169 Duties.
Other Provisions Required for State
Eligibility
300.170 Suspension and expulsion rates.
300.171 Annual description of use of Part B
funds.
300.172 Access to instructional materials.
300.173 Overidentification and
disproportionality.
300.174 Prohibition on mandatory
medication.
300.175 SEA as provider of FAPE or direct
services.
300.176 Exception for prior State plans.
300.177 States’ sovereign immunity.
Department Procedures
300.178 Determination by the Secretary that
a State is eligible to receive a grant.
300.179 Notice and hearing before
determining that a State is not eligible to
receive a grant.
300.180 Hearing official or panel.
300.181 Hearing procedures.
300.182 Initial decision; final decision.
300.183 Filing requirements.
300.184 Judicial review.
300.185 [Reserved]
300.186 Assistance under other Federal
programs.
By-pass for Children in Private Schools
300.190 By-pass—general.
300.191 Provisions for services under a by-
pass.
300.192 Notice of intent to implement a by-
pass.
300.193 Request to show cause.
300.194 Show cause hearing.
300.195 Decision.
300.196 Filing requirements.
300.197 Judicial review.
300.198 Continuation of a by-pass.
State Administration
300.199 State administration.
Subpart C—Local Educational Agency
Eligibility
300.200 Condition of assistance.
300.201 Consistency with State policies.
300.202 Use of amounts.
300.203 Maintenance of effort.
300.204 Exception to maintenance of effort.
300.205 Adjustment to local fiscal efforts in
certain fiscal years.
300.206 Schoolwide programs under title I
of the ESEA.
300.207 Personnel development.
300.208 Permissive use of funds.
300.209 Treatment of charter schools and
their students.
300.210 Purchase of instructional materials.
300.211 Information for SEA.
300.212 Public information.
300.213 Records regarding migratory
children with disabilities.
300.214–300.219 [Reserved]
300.220 Exception for prior local plans.
300.221 Notification of LEA or State agency
in case of ineligibility.
300.222 LEA and State agency compliance.
300.223 Joint establishment of eligibility.
300.224 Requirements for establishing
eligibility.
300.225 [Reserved]
300.226 Early intervening services.
300.227 Direct services by the SEA.
300.228 State agency eligibility.
300.229 Disciplinary information.
300.230 SEA flexibility.
Subpart D—Evaluations, Eligibility
Determinations, Individualized Education
Programs, and Educational Placements
Parental Consent
300.300 Parental consent.
Evaluations and Reevaluations
300.301 Initial evaluations.
300.302 Screening for instructional
purposes is not evaluation.
300.303 Reevaluations.
300.304 Evaluation procedures.
300.305 Additional requirements for
evaluations and reevaluations.
300.306 Determination of eligibility.
Additional Procedures for Identifying
Children With Specific Learning Disabilities
300.307 Specific learning disabilities.
300.308 Additional group members.
300.309 Determining the existence of a
specific learning disability.
300.310 Observation.
300.311 Specific documentation for the
eligibility determination.
Individualized Education Programs
300.320 Definition of individualized
education program.
300.321 IEP Team.
300.322 Parent participation.
300.323 When IEPs must be in effect.
Development of IEP
300.324 Development, review, and revision
of IEP.
300.325 Private school placements by
public agencies.
300.326 [Reserved]
300.327 Educational placements.
300.328 Alternative means of meeting
participation.
Subpart E—Procedural Safeguards
Due Process Procedures for Parents and
Children
300.500 Responsibility of SEA and other
public agencies.
300.501 Opportunity to examine records;
parent participation in meetings.
300.502 Independent educational
evaluation.
300.503 Prior notice by the public agency;
content of notice.
300.504 Procedural safeguards notice.
300.505 Electronic mail.
300.506 Mediation.
300.507 Filing a due process complaint.
300.508 Due process complaint.
300.509 Model forms.
300.510 Resolution process.
300.511 Impartial due process hearing.
300.512 Hearing rights.
300.513 Hearing decisions.
300.514 Finality of decision; appeal;
impartial review.
300.515 Timelines and convenience of
hearings and reviews.
300.516 Civil action.
300.517 Attorneys’ fees.
300.518 Child’s status during proceedings.
300.519 Surrogate parents.
300.520 Transfer of parental rights at age of
majority.
300.521–300.529 [Reserved]
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Discipline Procedures
300.530 Authority of school personnel.
300.531 Determination of setting.
300.532 Appeal.
300.533 Placement during appeals.
300.534 Protections for children not
determined eligible for special education
and related services.
300.535 Referral to and action by law
enforcement and judicial authorities.
300.536 Change of placement because of
disciplinary removals.
300.537 State enforcement mechanisms.
300.538–300.599 [Reserved]
Subpart F—Monitoring, Enforcement,
Confidentiality, and Program Information
Monitoring, Technical Assistance, and
Enforcement
300.600 State monitoring and enforcement.
300.601 State performance plans and data
collection.
300.602 State use of targets and reporting.
300.603 Secretary’s review and
determination regarding State
performance.
300.604 Enforcement.
300.605 Withholding funds.
300.606 Public attention.
300.607 Divided State agency
responsibility.
300.608 State enforcement.
300.609 Rule of construction.
Confidentiality of Information
300.610 Confidentiality.
300.611 Definitions.
300.612 Notice to parents.
300.613 Access rights.
300.614 Record of access.
300.615 Records on more than one child.
300.616 List of types and locations of
information.
300.617 Fees.
300.618 Amendment of records at parent’s
request.
300.619 Opportunity for a hearing.
300.620 Result of hearing.
300.621 Hearing procedures.
300.622 Consent.
300.623 Safeguards.
300.624 Destruction of information.
300.625 Children’s rights.
300.626 Enforcement.
300.627 Department use of personally
identifiable information.
Reports—Program Information
300.640 Annual report of children served—
report requirement.
300.641 Annual report of children served—
information required in the report.
300.642 Data reporting.
300.643 Annual report of children served—
certification.
300.644 Annual report of children served—
criteria for counting children.
300.645 Annual report of children served—
other responsibilities of the SEA.
300.646 Disproportionality.
Subpart G—Authorization, Allotment, Use
of Funds, Authorization of Appropriations
Allotments, Grants, and Use of Funds
300.700 Grants to States.
300.701 Outlying areas, freely associated
States, and the Secretary of the Interior.
300.702 Technical assistance.
300.703 Allocations to States.
300.704 State-level activities.
300.705 Subgrants to LEAs.
300.706 [Reserved]
Secretary of the Interior
300.707 Use of amounts by Secretary of the
Interior.
300.708 Submission of information.
300.709 Public participation.
300.710 Use of funds under Part B of the
Act.
300.711 Early intervening services.
300.712 Payments for education and
services for Indian children with
disabilities aged three through five.
300.713 Plan for coordination of services.
300.714 Establishment of advisory board.
300.715 Annual reports.
300.716 Applicable regulations.
Definitions That Apply to This Subpart
300.717 Definitions applicable to
allotments, grants, and use of funds.
Acquisition of Equipment and Construction
or Alteration of Facilities
300.718 Acquisition of equipment and
construction or alteration of facilities.
Subpart H—Preschool Grants for Children
With Disabilities
300.800 In general.
300.801–300.802 [Reserved]
300.803 Definition of State.
300.804 Eligibility.
300.805 [Reserved]
300.806 Eligibility for financial assistance.
300.807 Allocations to States.
300.808 Increase in funds.
300.809 Limitations.
300.810 Decrease in funds.
300.811 [Reserved]
300.812 Reservation for State activities.
300.813 State administration.
300.814 Other State-level activities.
300.815 Subgrants to LEAs.
300.816 Allocations to LEAs.
300.817 Reallocation of LEA funds.
300.818 Part C of the Act inapplicable.
Appendix A to Part 300—Excess Costs
Calculation
Appendix B to Part 300—Proportionate Share
Calculation
Appendix C to Part 300—National
Instructional Materials Accessibility
Standard (NIMAS)
Appendix D to Part 300—Maintenance of
Effort and Early Intervening Services
Appendix E to Part 300—Index for IDEA—
Part B Regulations (34 CFR Part 300)
Authority: 20 U.S.C. 1221e–3, 1406, 1411–
1419, unless otherwise noted.
Subpart A—General
Purposes and Applicability
§ 300.1 Purposes.
The purposes of this part are—
(a) To ensure that all children with
disabilities have available to them a free
appropriate public education that
emphasizes special education and
related services designed to meet their
unique needs and prepare them for
further education, employment, and
independent living;
(b) To ensure that the rights of
children with disabilities and their
parents are protected;
(c) To assist States, localities,
educational service agencies, and
Federal agencies to provide for the
education of all children with
disabilities; and
(d) To assess and ensure the
effectiveness of efforts to educate
children with disabilities.
(Authority: 20 U.S.C. 1400(d))
§ 300.2 Applicability of this part to State
and local agencies.
(a) States. This part applies to each
State that receives payments under Part
B of the Act, as defined in § 300.4.
(b) Public agencies within the State.
The provisions of this part—
(1) Apply to all political subdivisions
of the State that are involved in the
education of children with disabilities,
including:
(i) The State educational agency
(SEA).
(ii) Local educational agencies (LEAs),
educational service agencies (ESAs),
and public charter schools that are not
otherwise included as LEAs or ESAs
and are not a school of an LEA or ESA.
(iii) Other State agencies and schools
(such as Departments of Mental Health
and Welfare and State schools for
children with deafness or children with
blindness).
(iv) State and local juvenile and adult
correctional facilities; and
(2) Are binding on each public agency
in the State that provides special
education and related services to
children with disabilities, regardless of
whether that agency is receiving funds
under Part B of the Act.
(c) Private schools and facilities. Each
public agency in the State is responsible
for ensuring that the rights and
protections under Part B of the Act are
given to children with disabilities—
(1) Referred to or placed in private
schools and facilities by that public
agency; or
(2) Placed in private schools by their
parents under the provisions of
§ 300.148.
(Authority: 20 U.S.C. 1412)
Definitions Used in This Part
§ 300.4 Act.
Act means the Individuals with
Disabilities Education Act, as amended.
(Authority: 20 U.S.C. 1400(a))
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§ 300.5 Assistive technology device.
Assistive technology device means
any item, piece of equipment, or
product system, whether acquired
commercially off the shelf, modified, or
customized, that is used to increase,
maintain, or improve the functional
capabilities of a child with a disability.
The term does not include a medical
device that is surgically implanted, or
the replacement of such device.
(Authority: 20 U.S.C. 1401(1))
§ 300.6 Assistive technology service.
Assistive technology service means
any service that directly assists a child
with a disability in the selection,
acquisition, or use of an assistive
technology device. The term includes—
(a) The evaluation of the needs of a
child with a disability, including a
functional evaluation of the child in the
child’s customary environment;
(b) Purchasing, leasing, or otherwise
providing for the acquisition of assistive
technology devices by children with
disabilities;
(c) Selecting, designing, fitting,
customizing, adapting, applying,
maintaining, repairing, or replacing
assistive technology devices;
(d) Coordinating and using other
therapies, interventions, or services
with assistive technology devices, such
as those associated with existing
education and rehabilitation plans and
programs;
(e) Training or technical assistance for
a child with a disability or, if
appropriate, that child’s family; and
(f) Training or technical assistance for
professionals (including individuals
providing education or rehabilitation
services), employers, or other
individuals who provide services to,
employ, or are otherwise substantially
involved in the major life functions of
that child.
(Authority: 20 U.S.C. 1401(2))
§ 300.7 Charter school.
Charter school has the meaning given
the term in section 5210(1) of the
Elementary and Secondary Education
Act of 1965, as amended, 20 U.S.C. 6301
et seq. (ESEA).
(Authority: 20 U.S.C. 7221i(1))
§ 300.8 Child with a disability.
(a) General. (1) Child with a disability
means a child evaluated in accordance
with §§ 300.304 through 300.311 as
having mental retardation, a hearing
impairment (including deafness), a
speech or language impairment, a visual
impairment (including blindness), a
serious emotional disturbance (referred
to in this part as ‘‘emotional
disturbance’’), an orthopedic
impairment, autism, traumatic brain
injury, an other health impairment, a
specific learning disability, deaf-
blindness, or multiple disabilities, and
who, by reason thereof, needs special
education and related services.
(2)(i) Subject to paragraph (a)(2)(ii) of
this section, if it is determined, through
an appropriate evaluation under
§§ 300.304 through 300.311, that a child
has one of the disabilities identified in
paragraph (a)(1) of this section, but only
needs a related service and not special
education, the child is not a child with
a disability under this part.
(ii) If, consistent with § 300.39(a)(2),
the related service required by the child
is considered special education rather
than a related service under State
standards, the child would be
determined to be a child with a
disability under paragraph (a)(1) of this
section.
(b) Children aged three through nine
experiencing developmental delays.
Child with a disability for children aged
three through nine (or any subset of that
age range, including ages three through
five), may, subject to the conditions
described in § 300.111(b), include a
child—
(1) Who is experiencing
developmental delays, as defined by the
State and as measured by appropriate
diagnostic instruments and procedures,
in one or more of the following areas:
Physical development, cognitive
development, communication
development, social or emotional
development, or adaptive development;
and
(2) Who, by reason thereof, needs
special education and related services.
(c) Definitions of disability terms. The
terms used in this definition of a child
with a disability are defined as follows:
(1)(i) Autism means a developmental
disability significantly affecting verbal
and nonverbal communication and
social interaction, generally evident
before age three, that adversely affects a
child’s educational performance. Other
characteristics often associated with
autism are engagement in repetitive
activities and stereotyped movements,
resistance to environmental change or
change in daily routines, and unusual
responses to sensory experiences.
(ii) Autism does not apply if a child’s
educational performance is adversely
affected primarily because the child has
an emotional disturbance, as defined in
paragraph (c)(4) of this section.
(iii) A child who manifests the
characteristics of autism after age three
could be identified as having autism if
the criteria in paragraph (c)(1)(i) of this
section are satisfied.
(2) Deaf-blindness means concomitant
hearing and visual impairments, the
combination of which causes such
severe communication and other
developmental and educational needs
that they cannot be accommodated in
special education programs solely for
children with deafness or children with
blindness.
(3) Deafness means a hearing
impairment that is so severe that the
child is impaired in processing
linguistic information through hearing,
with or without amplification that
adversely affects a child’s educational
performance.
(4)(i) Emotional disturbance means a
condition exhibiting one or more of the
following characteristics over a long
period of time and to a marked degree
that adversely affects a child’s
educational performance:
(A) An inability to learn that cannot
be explained by intellectual, sensory, or
health factors.
(B) An inability to build or maintain
satisfactory interpersonal relationships
with peers and teachers.
(C) Inappropriate types of behavior or
feelings under normal circumstances.
(D) A general pervasive mood of
unhappiness or depression.
(E) A tendency to develop physical
symptoms or fears associated with
personal or school problems.
(ii) Emotional disturbance includes
schizophrenia. The term does not apply
to children who are socially
maladjusted, unless it is determined
that they have an emotional disturbance
under paragraph (c)(4)(i) of this section.
(5) Hearing impairment means an
impairment in hearing, whether
permanent or fluctuating, that adversely
affects a child’s educational
performance but that is not included
under the definition of deafness in this
section.
(6) Mental retardation means
significantly subaverage general
intellectual functioning, existing
concurrently with deficits in adaptive
behavior and manifested during the
developmental period, that adversely
affects a child’s educational
performance.
(7) Multiple disabilities means
concomitant impairments (such as
mental retardation-blindness or mental
retardation-orthopedic impairment), the
combination of which causes such
severe educational needs that they
cannot be accommodated in special
education programs solely for one of the
impairments. Multiple disabilities does
not include deaf-blindness.
(8) Orthopedic impairment means a
severe orthopedic impairment that
adversely affects a child’s educational
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performance. The term includes
impairments caused by a congenital
anomaly, impairments caused by
disease (e.g., poliomyelitis, bone
tuberculosis), and impairments from
other causes (e.g., cerebral palsy,
amputations, and fractures or burns that
cause contractures).
(9) Other health impairment means
having limited strength, vitality, or
alertness, including a heightened
alertness to environmental stimuli, that
results in limited alertness with respect
to the educational environment, that—
(i) Is due to chronic or acute health
problems such as asthma, attention
deficit disorder or attention deficit
hyperactivity disorder, diabetes,
epilepsy, a heart condition, hemophilia,
lead poisoning, leukemia, nephritis,
rheumatic fever, sickle cell anemia, and
Tourette syndrome; and
(ii) Adversely affects a child’s
educational performance.
(10) Specific learning disability—(i)
General. Specific learning disability
means a disorder in one or more of the
basic psychological processes involved
in understanding or in using language,
spoken or written, that may manifest
itself in the imperfect ability to listen,
think, speak, read, write, spell, or to do
mathematical calculations, including
conditions such as perceptual
disabilities, brain injury, minimal brain
dysfunction, dyslexia, and
developmental aphasia.
(ii) Disorders not included. Specific
learning disability does not include
learning problems that are primarily the
result of visual, hearing, or motor
disabilities, of mental retardation, of
emotional disturbance, or of
environmental, cultural, or economic
disadvantage.
(11) Speech or language impairment
means a communication disorder, such
as stuttering, impaired articulation, a
language impairment, or a voice
impairment, that adversely affects a
child’s educational performance.
(12) Traumatic brain injury means an
acquired injury to the brain caused by
an external physical force, resulting in
total or partial functional disability or
psychosocial impairment, or both, that
adversely affects a child’s educational
performance. Traumatic brain injury
applies to open or closed head injuries
resulting in impairments in one or more
areas, such as cognition; language;
memory; attention; reasoning; abstract
thinking; judgment; problem-solving;
sensory, perceptual, and motor abilities;
psychosocial behavior; physical
functions; information processing; and
speech. Traumatic brain injury does not
apply to brain injuries that are
congenital or degenerative, or to brain
injuries induced by birth trauma.
(13) Visual impairment including
blindness means an impairment in
vision that, even with correction,
adversely affects a child’s educational
performance. The term includes both
partial sight and blindness.
(Authority: 20 U.S.C. 1401(3); 1401(30))
§ 300.9 Consent.
Consent means that—
(a) The parent has been fully informed
of all information relevant to the activity
for which consent is sought, in his or
her native language, or other mode of
communication;
(b) The parent understands and agrees
in writing to the carrying out of the
activity for which his or her consent is
sought, and the consent describes that
activity and lists the records (if any) that
will be released and to whom; and
(c)(1) The parent understands that the
granting of consent is voluntary on the
part of the parent and may be revoked
at anytime.
(2) If a parent revokes consent, that
revocation is not retroactive (i.e., it does
not negate an action that has occurred
after the consent was given and before
the consent was revoked).
(Authority: 20 U.S.C. 1414(a)(1)(D))
§ 300.10 Core academic subjects.
Core academic subjects means
English, reading or language arts,
mathematics, science, foreign languages,
civics and government, economics, arts,
history, and geography.
(Authority: 20 U.S.C. 1401(4))
§ 300.11 Day; business day; school day.
(a) Day means calendar day unless
otherwise indicated as business day or
school day.
(b) Business day means Monday
through Friday, except for Federal and
State holidays (unless holidays are
specifically included in the designation
of business day, as in
§ 300.148(d)(1)(ii)).
(c)(1) School day means any day,
including a partial day that children are
in attendance at school for instructional
purposes.
(2) School day has the same meaning
for all children in school, including
children with and without disabilities.
(Authority: 20 U.S.C. 1221e–3)
§ 300.12 Educational service agency.
Educational service agency means—
(a) A regional public multiservice
agency—
(1) Authorized by State law to
develop, manage, and provide services
or programs to LEAs;
(2) Recognized as an administrative
agency for purposes of the provision of
special education and related services
provided within public elementary
schools and secondary schools of the
State;
(b) Includes any other public
institution or agency having
administrative control and direction
over a public elementary school or
secondary school; and
(c) Includes entities that meet the
definition of intermediate educational
unit in section 602(23) of the Act as in
effect prior to June 4, 1997.
(Authority: 20 U.S.C. 1401(5))
§ 300.13 Elementary school.
Elementary school means a nonprofit
institutional day or residential school,
including a public elementary charter
school, that provides elementary
education, as determined under State
law.
(Authority: 20 U.S.C. 1401(6))
§ 300.14 Equipment.
Equipment means—
(a) Machinery, utilities, and built-in
equipment, and any necessary
enclosures or structures to house the
machinery, utilities, or equipment; and
(b) All other items necessary for the
functioning of a particular facility as a
facility for the provision of educational
services, including items such as
instructional equipment and necessary
furniture; printed, published and audio-
visual instructional materials;
telecommunications, sensory, and other
technological aids and devices; and
books, periodicals, documents, and
other related materials.
(Authority: 20 U.S.C. 1401(7))
§ 300.15 Evaluation.
Evaluation means procedures used in
accordance with §§ 300.304 through
300.311 to determine whether a child
has a disability and the nature and
extent of the special education and
related services that the child needs.
(Authority: 20 U.S.C. 1414(a) (c))
§ 300.16 Excess costs.
Excess costs means those costs that
are in excess of the average annual per-
student expenditure in an LEA during
the preceding school year for an
elementary school or secondary school
student, as may be appropriate, and that
must be computed after deducting—
(a) Amounts received—
(1) Under Part B of the Act;
(2) Under Part A of title I of the ESEA;
and
(3) Under Parts A and B of title III of
the ESEA and;
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(b) Any State or local funds expended
for programs that would qualify for
assistance under any of the parts
described in paragraph (a) of this
section, but excluding any amounts for
capital outlay or debt service. (See
Appendix A to part 300 for an example
of how excess costs must be calculated.)
(Authority: 20 U.S.C. 1401(8))
§ 300.17 Free appropriate public
education.
Free appropriate public education or
FAPE means special education and
related services that—
(a) Are provided at public expense,
under public supervision and direction,
and without charge;
(b) Meet the standards of the SEA,
including the requirements of this part;
(c) Include an appropriate preschool,
elementary school, or secondary school
education in the State involved; and
(d) Are provided in conformity with
an individualized education program
(IEP) that meets the requirements of
§§ 300.320 through 300.324.
(Authority: 20 U.S.C. 1401(9))
§ 300.18 Highly qualified special education
teachers.
(a) Requirements for special
education teachers teaching core
academic subjects. For any public
elementary or secondary school special
education teacher teaching core
academic subjects, the term highly
qualified has the meaning given the
term in section 9101 of the ESEA and 34
CFR 200.56, except that the
requirements for highly qualified also—
(1) Include the requirements
described in paragraph (b) of this
section; and
(2) Include the option for teachers to
meet the requirements of section 9101 of
the ESEA by meeting the requirements
of paragraphs (c) and (d) of this section.
(b) Requirements for special
education teachers in general. (1) When
used with respect to any public
elementary school or secondary school
special education teacher teaching in a
State, highly qualified requires that—
(i) The teacher has obtained full State
certification as a special education
teacher (including certification obtained
through alternative routes to
certification), or passed the State special
education teacher licensing
examination, and holds a license to
teach in the State as a special education
teacher, except that when used with
respect to any teacher teaching in a
public charter school, highly qualified
means that the teacher meets the
certification or licensing requirements,
if any, set forth in the State’s public
charter school law;
(ii) The teacher has not had special
education certification or licensure
requirements waived on an emergency,
temporary, or provisional basis; and
(iii) The teacher holds at least a
bachelor’s degree.
(2) A teacher will be considered to
meet the standard in paragraph (b)(1)(i)
of this section if that teacher is
participating in an alternative route to
special education certification program
under which—
(i) The teacher—
(A) Receives high-quality professional
development that is sustained,
intensive, and classroom-focused in
order to have a positive and lasting
impact on classroom instruction, before
and while teaching;
(B) Participates in a program of
intensive supervision that consists of
structured guidance and regular ongoing
support for teachers or a teacher
mentoring program;
(C) Assumes functions as a teacher
only for a specified period of time not
to exceed three years; and
(D) Demonstrates satisfactory progress
toward full certification as prescribed by
the State; and
(ii) The State ensures, through its
certification and licensure process, that
the provisions in paragraph (b)(2)(i) of
this section are met.
(3) Any public elementary school or
secondary school special education
teacher teaching in a State, who is not
teaching a core academic subject, is
highly qualified if the teacher meets the
requirements in paragraph (b)(1) or the
requirements in (b)(1)(iii) and (b)(2) of
this section.
(c) Requirements for special
education teachers teaching to alternate
achievement standards. When used
with respect to a special education
teacher who teaches core academic
subjects exclusively to children who are
assessed against alternate achievement
standards established under 34 CFR
200.1(d), highly qualified means the
teacher, whether new or not new to the
profession, may either—
(1) Meet the applicable requirements
of section 9101 of the ESEA and 34 CFR
200.56 for any elementary, middle, or
secondary school teacher who is new or
not new to the profession; or
(2) Meet the requirements of
paragraph (B) or (C) of section 9101(23)
of the ESEA as applied to an elementary
school teacher, or, in the case of
instruction above the elementary level,
meet the requirements of paragraph (B)
or (C) of section 9101(23) of the ESEA
as applied to an elementary school
teacher and have subject matter
knowledge appropriate to the level of
instruction being provided and needed
to effectively teach to those standards,
as determined by the State.
(d) Requirements for special
education teachers teaching multiple
subjects. Subject to paragraph (e) of this
section, when used with respect to a
special education teacher who teaches
two or more core academic subjects
exclusively to children with disabilities,
highly qualified means that the teacher
may either—
(1) Meet the applicable requirements
of section 9101 of the ESEA and 34 CFR
200.56(b) or (c);
(2) In the case of a teacher who is not
new to the profession, demonstrate
competence in all the core academic
subjects in which the teacher teaches in
the same manner as is required for an
elementary, middle, or secondary school
teacher who is not new to the profession
under 34 CFR 200.56(c) which may
include a single, high objective uniform
State standard of evaluation (HOUSSE)
covering multiple subjects; or
(3) In the case of a new special
education teacher who teaches multiple
subjects and who is highly qualified in
mathematics, language arts, or science,
demonstrate, not later than two years
after the date of employment,
competence in the other core academic
subjects in which the teacher teaches in
the same manner as is required for an
elementary, middle, or secondary school
teacher under 34 CFR 200.56(c), which
may include a single HOUSSE covering
multiple subjects.
(e) Separate HOUSSE standards for
special education teachers. Provided
that any adaptations of the State’s
HOUSSE would not establish a lower
standard for the content knowledge
requirements for special education
teachers and meets all the requirements
for a HOUSSE for regular education
teachers—
(1) A State may develop a separate
HOUSSE for special education teachers;
and
(2) The standards described in
paragraph (e)(1) of this section may
include single HOUSSE evaluations that
cover multiple subjects.
(f) Rule of construction.
Notwithstanding any other individual
right of action that a parent or student
may maintain under this part, nothing
in this part shall be construed to create
a right of action on behalf of an
individual student or class of students
for the failure of a particular SEA or
LEA employee to be highly qualified, or
to prevent a parent from filing a
complaint under §§ 300.151 through
300.153 about staff qualifications with
the SEA as provided for under this part.
(g) Applicability of definition to
ESEA; and clarification of new special
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education teacher. (1) A teacher who is
highly qualified under this section is
considered highly qualified for purposes
of the ESEA.
(2) For purposes of § 300.18(d)(3), a
fully certified regular education teacher
who subsequently becomes fully
certified or licensed as a special
education teacher is a new special
education teacher when first hired as a
special education teacher.
(h) Private school teachers not
covered. The requirements in this
section do not apply to teachers hired
by private elementary schools and
secondary schools including private
school teachers hired or contracted by
LEAs to provide equitable services to
parentally-placed private school
children with disabilities under
§ 300.138.
(Authority: 20 U.S.C. 1401(10))
§ 300.19 Homeless children.
Homeless children has the meaning
given the term homeless children and
youths in section 725 (42 U.S.C. 11434a)
of the McKinney-Vento Homeless
Assistance Act, as amended, 42 U.S.C.
11431 et seq.
(Authority: 20 U.S.C. 1401(11))
§ 300.20 Include.
Include means that the items named
are not all of the possible items that are
covered, whether like or unlike the ones
named.
(Authority: 20 U.S.C. 1221e–3)
§ 300.21 Indian and Indian tribe.
(a) Indian means an individual who is
a member of an Indian tribe.
(b) Indian tribe means any Federal or
State Indian tribe, band, rancheria,
pueblo, colony, or community,
including any Alaska Native village or
regional village corporation (as defined
in or established under the Alaska
Native Claims Settlement Act, 43 U.S.C.
1601 et seq.).
(c) Nothing in this definition is
intended to indicate that the Secretary
of the Interior is required to provide
services or funding to a State Indian
tribe that is not listed in the Federal
Register list of Indian entities
recognized as eligible to receive services
from the United States, published
pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of
1994, 25 U.S.C. 479a–1.
(Authority: 20 U.S.C. 1401(12) and (13))
§ 300.22 Individualized education program.
Individualized education program or
IEP means a written statement for a
child with a disability that is developed,
reviewed, and revised in accordance
with §§ 300.320 through 300.324.
(Authority: 20 U.S.C. 1401(14))
§ 300.23 Individualized education program
team.
Individualized education program
team or IEP Team means a group of
individuals described in § 300.321 that
is responsible for developing, reviewing,
or revising an IEP for a child with a
disability.
(Authority: 20 U.S.C. 1414(d)(1)(B))
§ 300.24 Individualized family service plan.
Individualized family service plan or
IFSP has the meaning given the term in
section 636 of the Act.
(Authority: 20 U.S.C. 1401(15))
§ 300.25 Infant or toddler with a disability.
Infant or toddler with a disability—
(a) Means an individual under three
years of age who needs early
intervention services because the
individual—
(1) Is experiencing developmental
delays, as measured by appropriate
diagnostic instruments and procedures
in one or more of the areas of cognitive
development, physical development,
communication development, social or
emotional development, and adaptive
development; or
(2) Has a diagnosed physical or
mental condition that has a high
probability of resulting in
developmental delay; and
(b) May also include, at a State’s
discretion—
(1) At-risk infants and toddlers; and
(2) Children with disabilities who are
eligible for services under section 619
and who previously received services
under Part C of the Act until such
children enter, or are eligible under
State law to enter, kindergarten or
elementary school, as appropriate,
provided that any programs under Part
C of the Act serving such children shall
include—
(i) An educational component that
promotes school readiness and
incorporates pre-literacy, language, and
numeracy skills; and
(ii) A written notification to parents of
their rights and responsibilities in
determining whether their child will
continue to receive services under Part
C of the Act or participate in preschool
programs under section 619.
(Authority: 20 U.S.C. 1401(16) and 1432(5))
§ 300.26 Institution of higher education.
Institution of higher education—
(a) Has the meaning given the term in
section 101 of the Higher Education Act
of 1965, as amended, 20 U.S.C. 1021 et
seq. (HEA); and
(b) Also includes any community
college receiving funds from the
Secretary of the Interior under the
Tribally Controlled Community College
or University Assistance Act of 1978, 25
U.S.C. 1801, et seq.
(Authority: 20 U.S.C. 1401(17))
§ 300.27 Limited English proficient.
Limited English proficient has the
meaning given the term in section
9101(25) of the ESEA.
(Authority: 20 U.S.C. 1401(18))
§ 300.28 Local educational agency.
(a) General. Local educational agency
or LEA means a public board of
education or other public authority
legally constituted within a State for
either administrative control or
direction of, or to perform a service
function for, public elementary or
secondary schools in a city, county,
township, school district, or other
political subdivision of a State, or for a
combination of school districts or
counties as are recognized in a State as
an administrative agency for its public
elementary schools or secondary
schools.
(b) Educational service agencies and
other public institutions or agencies.
The term includes—
(1) An educational service agency, as
defined in § 300.12; and
(2) Any other public institution or
agency having administrative control
and direction of a public elementary
school or secondary school, including a
public nonprofit charter school that is
established as an LEA under State law.
(c) BIA funded schools. The term
includes an elementary school or
secondary school funded by the Bureau
of Indian Affairs, and not subject to the
jurisdiction of any SEA other than the
Bureau of Indian Affairs, but only to the
extent that the inclusion makes the
school eligible for programs for which
specific eligibility is not provided to the
school in another provision of law and
the school does not have a student
population that is smaller than the
student population of the LEA receiving
assistance under the Act with the
smallest student population.
(Authority: 20 U.S.C. 1401(19))
§ 300.29 Native language.
(a) Native language, when used with
respect to an individual who is limited
English proficient, means the following:
(1) The language normally used by
that individual, or, in the case of a
child, the language normally used by
the parents of the child, except as
provided in paragraph (a)(2) of this
section.
(2) In all direct contact with a child
(including evaluation of the child), the
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language normally used by the child in
the home or learning environment.
(b) For an individual with deafness or
blindness, or for an individual with no
written language, the mode of
communication is that normally used by
the individual (such as sign language,
Braille, or oral communication).
(Authority: 20 U.S.C. 1401(20))
§ 300.30 Parent.
(a) Parent means—
(1) A biological or adoptive parent of
a child;
(2) A foster parent, unless State law,
regulations, or contractual obligations
with a State or local entity prohibit a
foster parent from acting as a parent;
(3) A guardian generally authorized to
act as the child’s parent, or authorized
to make educational decisions for the
child (but not the State if the child is a
ward of the State);
(4) An individual acting in the place
of a biological or adoptive parent
(including a grandparent, stepparent, or
other relative) with whom the child
lives, or an individual who is legally
responsible for the child’s welfare; or
(5) A surrogate parent who has been
appointed in accordance with § 300.519
or section 639(a)(5) of the Act.
(b) (1) Except as provided in
paragraph (b)(2) of this section, the
biological or adoptive parent, when
attempting to act as the parent under
this part and when more than one party
is qualified under paragraph (a) of this
section to act as a parent, must be
presumed to be the parent for purposes
of this section unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child.
(2) If a judicial decree or order
identifies a specific person or persons
under paragraphs (a)(1) through (4) of
this section to act as the ‘‘parent’’ of a
child or to make educational decisions
on behalf of a child, then such person
or persons shall be determined to be the
‘‘parent’’ for purposes of this section.
(Authority: 20 U.S.C. 1401(23))
§ 300.31 Parent training and information
center.
Parent training and information
center means a center assisted under
sections 671 or 672 of the Act.
(Authority: 20 U.S.C. 1401(25))
§ 300.32 Personally identifiable.
Personally identifiable means
information that contains—
(a) The name of the child, the child’s
parent, or other family member;
(b) The address of the child;
(c) A personal identifier, such as the
child’s social security number or
student number; or
(d) A list of personal characteristics or
other information that would make it
possible to identify the child with
reasonable certainty.
(Authority: 20 U.S.C. 1415(a))
§ 300.33 Public agency.
Public agency includes the SEA,
LEAs, ESAs, nonprofit public charter
schools that are not otherwise included
as LEAs or ESAs and are not a school
of an LEA or ESA, and any other
political subdivisions of the State that
are responsible for providing education
to children with disabilities.
(Authority: 20 U.S.C. 1412(a)(11))
§ 300.34 Related services.
(a) General. Related services means
transportation and such developmental,
corrective, and other supportive services
as are required to assist a child with a
disability to benefit from special
education, and includes speech-
language pathology and audiology
services, interpreting services,
psychological services, physical and
occupational therapy, recreation,
including therapeutic recreation, early
identification and assessment of
disabilities in children, counseling
services, including rehabilitation
counseling, orientation and mobility
services, and medical services for
diagnostic or evaluation purposes.
Related services also include school
health services and school nurse
services, social work services in schools,
and parent counseling and training.
(b) Exception; services that apply to
children with surgically implanted
devices, including cochlear implants.
(1) Related services do not include a
medical device that is surgically
implanted, the optimization of that
device’s functioning (e.g., mapping),
maintenance of that device, or the
replacement of that device.
(2) Nothing in paragraph (b)(1) of this
section—
(i) Limits the right of a child with a
surgically implanted device (e.g.,
cochlear implant) to receive related
services (as listed in paragraph (a) of
this section) that are determined by the
IEP Team to be necessary for the child
to receive FAPE.
(ii) Limits the responsibility of a
public agency to appropriately monitor
and maintain medical devices that are
needed to maintain the health and
safety of the child, including breathing,
nutrition, or operation of other bodily
functions, while the child is transported
to and from school or is at school; or
(iii) Prevents the routine checking of
an external component of a surgically
implanted device to make sure it is
functioning properly, as required in
§ 300.113(b).
(c) Individual related services terms
defined. The terms used in this
definition are defined as follows:
(1) Audiology includes—
(i) Identification of children with
hearing loss;
(ii) Determination of the range, nature,
and degree of hearing loss, including
referral for medical or other professional
attention for the habilitation of hearing;
(iii) Provision of habilitative
activities, such as language habilitation,
auditory training, speech reading (lip-
reading), hearing evaluation, and speech
conservation;
(iv) Creation and administration of
programs for prevention of hearing loss;
(v) Counseling and guidance of
children, parents, and teachers
regarding hearing loss; and
(vi) Determination of children’s needs
for group and individual amplification,
selecting and fitting an appropriate aid,
and evaluating the effectiveness of
amplification.
(2) Counseling services means services
provided by qualified social workers,
psychologists, guidance counselors, or
other qualified personnel.
(3) Early identification and
assessment of disabilities in children
means the implementation of a formal
plan for identifying a disability as early
as possible in a child’s life.
(4) Interpreting services includes—
(i) The following, when used with
respect to children who are deaf or hard
of hearing: Oral transliteration services,
cued language transliteration services,
sign language transliteration and
interpreting services, and transcription
services, such as communication access
real-time translation (CART), C-Print,
and TypeWell; and
(ii) Special interpreting services for
children who are deaf-blind.
(5) Medical services means services
provided by a licensed physician to
determine a child’s medically related
disability that results in the child’s need
for special education and related
services.
(6) Occupational therapy—
(i) Means services provided by a
qualified occupational therapist; and
(ii) Includes—
(A) Improving, developing, or
restoring functions impaired or lost
through illness, injury, or deprivation;
(B) Improving ability to perform tasks
for independent functioning if functions
are impaired or lost; and
(C) Preventing, through early
intervention, initial or further
impairment or loss of function.
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(7) Orientation and mobility
services—
(i) Means services provided to blind
or visually impaired children by
qualified personnel to enable those
students to attain systematic orientation
to and safe movement within their
environments in school, home, and
community; and
(ii) Includes teaching children the
following, as appropriate:
(A) Spatial and environmental
concepts and use of information
received by the senses (such as sound,
temperature and vibrations) to establish,
maintain, or regain orientation and line
of travel (e.g., using sound at a traffic
light to cross the street);
(B) To use the long cane or a service
animal to supplement visual travel
skills or as a tool for safely negotiating
the environment for children with no
available travel vision;
(C) To understand and use remaining
vision and distance low vision aids; and
(D) Other concepts, techniques, and
tools.
(8)(i) Parent counseling and training
means assisting parents in
understanding the special needs of their
child;
(ii) Providing parents with
information about child development;
and
(iii) Helping parents to acquire the
necessary skills that will allow them to
support the implementation of their
child’s IEP or IFSP.
(9) Physical therapy means services
provided by a qualified physical
therapist.
(10) Psychological services includes—
(i) Administering psychological and
educational tests, and other assessment
procedures;
(ii) Interpreting assessment results;
(iii) Obtaining, integrating, and
interpreting information about child
behavior and conditions relating to
learning;
(iv) Consulting with other staff
members in planning school programs
to meet the special educational needs of
children as indicated by psychological
tests, interviews, direct observation, and
behavioral evaluations;
(v) Planning and managing a program
of psychological services, including
psychological counseling for children
and parents; and
(vi) Assisting in developing positive
behavioral intervention strategies.
(11) Recreation includes—
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools
and community agencies; and
(iv) Leisure education.
(12) Rehabilitation counseling
services means services provided by
qualified personnel in individual or
group sessions that focus specifically on
career development, employment
preparation, achieving independence,
and integration in the workplace and
community of a student with a
disability. The term also includes
vocational rehabilitation services
provided to a student with a disability
by vocational rehabilitation programs
funded under the Rehabilitation Act of
1973, as amended, 29 U.S.C. 701 et seq.
(13) School health services and school
nurse services means health services
that are designed to enable a child with
a disability to receive FAPE as described
in the child’s IEP. School nurse services
are services provided by a qualified
school nurse. School health services are
services that may be provided by either
a qualified school nurse or other
qualified person.
(14) Social work services in schools
includes—
(i) Preparing a social or
developmental history on a child with
a disability;
(ii) Group and individual counseling
with the child and family;
(iii) Working in partnership with
parents and others on those problems in
a child’s living situation (home, school,
and community) that affect the child’s
adjustment in school;
(iv) Mobilizing school and community
resources to enable the child to learn as
effectively as possible in his or her
educational program; and
(v) Assisting in developing positive
behavioral intervention strategies.
(15) Speech-language pathology
services includes—
(i) Identification of children with
speech or language impairments;
(ii) Diagnosis and appraisal of specific
speech or language impairments;
(iii) Referral for medical or other
professional attention necessary for the
habilitation of speech or language
impairments;
(iv) Provision of speech and language
services for the habilitation or
prevention of communicative
impairments; and
(v) Counseling and guidance of
parents, children, and teachers
regarding speech and language
impairments.
(16) Transportation includes—
(i) Travel to and from school and
between schools;
(ii) Travel in and around school
buildings; and
(iii) Specialized equipment (such as
special or adapted buses, lifts, and
ramps), if required to provide special
transportation for a child with a
disability.
(Authority: 20 U.S.C. 1401(26))
§ 300.35 Scientifically based research.
Scientifically based research has the
meaning given the term in section
9101(37) of the ESEA.
(Authority: 20 U.S.C. 1411(e)(2)(C)(xi))
§ 300.36 Secondary school.
Secondary school means a nonprofit
institutional day or residential school,
including a public secondary charter
school that provides secondary
education, as determined under State
law, except that it does not include any
education beyond grade 12.
(Authority: 20 U.S.C. 1401(27))
§ 300.37 Services plan.
Services plan means a written
statement that describes the special
education and related services the LEA
will provide to a parentally-placed child
with a disability enrolled in a private
school who has been designated to
receive services, including the location
of the services and any transportation
necessary, consistent with § 300.132,
and is developed and implemented in
accordance with §§ 300.137 through
300.139.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.38 Secretary.
Secretary means the Secretary of
Education.
(Authority: 20 U.S.C. 1401(28))
§ 300.39 Special education.
(a) General. (1) Special education
means specially designed instruction, at
no cost to the parents, to meet the
unique needs of a child with a
disability, including—
(i) Instruction conducted in the
classroom, in the home, in hospitals and
institutions, and in other settings; and
(ii) Instruction in physical education.
(2) Special education includes each of
the following, if the services otherwise
meet the requirements of paragraph
(a)(1) of this section—
(i) Speech-language pathology
services, or any other related service, if
the service is considered special
education rather than a related service
under State standards;
(ii) Travel training; and
(iii) Vocational education.
(b) Individual special education terms
defined. The terms in this definition are
defined as follows:
(1) At no cost means that all specially-
designed instruction is provided
without charge, but does not preclude
incidental fees that are normally
charged to nondisabled students or their
parents as a part of the regular
education program.
(2) Physical education means—
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(i) The development of—
(A) Physical and motor fitness;
(B) Fundamental motor skills and
patterns; and
(C) Skills in aquatics, dance, and
individual and group games and sports
(including intramural and lifetime
sports); and
(ii) Includes special physical
education, adapted physical education,
movement education, and motor
development.
(3) Specially designed instruction
means adapting, as appropriate to the
needs of an eligible child under this
part, the content, methodology, or
delivery of instruction—
(i) To address the unique needs of the
child that result from the child’s
disability; and
(ii) To ensure access of the child to
the general curriculum, so that the child
can meet the educational standards
within the jurisdiction of the public
agency that apply to all children.
(4) Travel training means providing
instruction, as appropriate, to children
with significant cognitive disabilities,
and any other children with disabilities
who require this instruction, to enable
them to—
(i) Develop an awareness of the
environment in which they live; and
(ii) Learn the skills necessary to move
effectively and safely from place to
place within that environment (e.g., in
school, in the home, at work, and in the
community).
(5) Vocational education means
organized educational programs that are
directly related to the preparation of
individuals for paid or unpaid
employment, or for additional
preparation for a career not requiring a
baccalaureate or advanced degree.
(Authority: 20 U.S.C. 1401(29))
§ 300.40 State.
State means each of the 50 States, the
District of Columbia, the
Commonwealth of Puerto Rico, and
each of the outlying areas.
(Authority: 20 U.S.C. 1401(31))
§ 300.41 State educational agency.
State educational agency or SEA
means the State board of education or
other agency or officer primarily
responsible for the State supervision of
public elementary schools and
secondary schools, or, if there is no such
officer or agency, an officer or agency
designated by the Governor or by State
law.
(Authority: 20 U.S.C. 1401(32))
§ 300.42 Supplementary aids and services.
Supplementary aids and services
means aids, services, and other supports
that are provided in regular education
classes, other education-related settings,
and in extracurricular and nonacademic
settings, to enable children with
disabilities to be educated with
nondisabled children to the maximum
extent appropriate in accordance with
§§ 300.114 through 300.116.
(Authority: 20 U.S.C. 1401(33))
§ 300.43 Transition services.
(a) Transition services means a
coordinated set of activities for a child
with a disability that—
(1) Is designed to be within a results-
oriented process, that is focused on
improving the academic and functional
achievement of the child with a
disability to facilitate the child’s
movement from school to post-school
activities, including postsecondary
education, vocational education,
integrated employment (including
supported employment), continuing and
adult education, adult services,
independent living, or community
participation;
(2) Is based on the individual child’s
needs, taking into account the child’s
strengths, preferences, and interests;
and includes—
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment
and other post-school adult living
objectives; and
(v) If appropriate, acquisition of daily
living skills and provision of a
functional vocational evaluation.
(b) Transition services for children
with disabilities may be special
education, if provided as specially
designed instruction, or a related
service, if required to assist a child with
a disability to benefit from special
education.
(Authority: 20 U.S.C. 1401(34))
§ 300.44 Universal design.
Universal design has the meaning
given the term in section 3 of the
Assistive Technology Act of 1998, as
amended, 29 U.S.C. 3002.
(Authority: 20 U.S.C. 1401(35))
§ 300.45 Ward of the State.
(a) General. Subject to paragraph (b)
of this section, ward of the State means
a child who, as determined by the State
where the child resides, is—
(1) A foster child;
(2) A ward of the State; or
(3) In the custody of a public child
welfare agency.
(b) Exception. Ward of the State does
not include a foster child who has a
foster parent who meets the definition
of a parent in § 300.30.
(Authority: 20 U.S.C. 1401(36))
Subpart B—State Eligibility
General
§ 300.100 Eligibility for assistance.
A State is eligible for assistance under
Part B of the Act for a fiscal year if the
State submits a plan that provides
assurances to the Secretary that the
State has in effect policies and
procedures to ensure that the State
meets the conditions in §§ 300.101
through 300.176.
(Approved by the Office of Management
and Budget under control number 1820–
0030)
(Authority: 20 U.S.C. 1412(a))
FAPE Requirements
§ 300.101 Free appropriate public
education (FAPE).
(a) General. A free appropriate public
education must be available to all
children residing in the State between
the ages of 3 and 21, inclusive,
including children with disabilities who
have been suspended or expelled from
school, as provided for in § 300.530(d).
(b) FAPE for children beginning at age
3. (1) Each State must ensure that—
(i) The obligation to make FAPE
available to each eligible child residing
in the State begins no later than the
child’s third birthday; and
(ii) An IEP or an IFSP is in effect for
the child by that date, in accordance
with § 300.323(b).
(2) If a child’s third birthday occurs
during the summer, the child’s IEP
Team shall determine the date when
services under the IEP or IFSP will
begin.
(c) Children advancing from grade to
grade. (1) Each State must ensure that
FAPE is available to any individual
child with a disability who needs
special education and related services,
even though the child has not failed or
been retained in a course or grade, and
is advancing from grade to grade.
(2) The determination that a child
described in paragraph (a) of this
section is eligible under this part, must
be made on an individual basis by the
group responsible within the child’s
LEA for making eligibility
determinations.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1)(A))
§ 300.102 Limitation—exception to FAPE
for certain ages.
(a) General. The obligation to make
FAPE available to all children with
disabilities does not apply with respect
to the following:
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(1) Children aged 3, 4, 5, 18, 19, 20,
or 21 in a State to the extent that its
application to those children would be
inconsistent with State law or practice,
or the order of any court, respecting the
provision of public education to
children of those ages.
(2)(i) Children aged 18 through 21 to
the extent that State law does not
require that special education and
related services under Part B of the Act
be provided to students with disabilities
who, in the last educational placement
prior to their incarceration in an adult
correctional facility—
(A) Were not actually identified as
being a child with a disability under
§ 300.8; and
(B) Did not have an IEP under Part B
of the Act.
(ii) The exception in paragraph
(a)(2)(i) of this section does not apply to
children with disabilities, aged 18
through 21, who—
(A) Had been identified as a child
with a disability under § 300.8 and had
received services in accordance with an
IEP, but who left school prior to their
incarceration; or
(B) Did not have an IEP in their last
educational setting, but who had
actually been identified as a child with
a disability under § 300.8.
(3)(i) Children with disabilities who
have graduated from high school with a
regular high school diploma.
(ii) The exception in paragraph
(a)(3)(i) of this section does not apply to
children who have graduated from high
school but have not been awarded a
regular high school diploma.
(iii) Graduation from high school with
a regular high school diploma
constitutes a change in placement,
requiring written prior notice in
accordance with § 300.503.
(iv) As used in paragraphs (a)(3)(i)
through (a)(3)(iii) of this section, the
term regular high school diploma does
not include an alternative degree that is
not fully aligned with the State’s
academic standards, such as a certificate
or a general educational development
credential (GED).
(4) Children with disabilities who are
eligible under subpart H of this part, but
who receive early intervention services
under Part C of the Act.
(b) Documents relating to exceptions.
The State must assure that the
information it has provided to the
Secretary regarding the exceptions in
paragraph (a) of this section, as required
by § 300.700 (for purposes of making
grants to States under this part), is
current and accurate.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1)(B)–(C))
Other FAPE Requirements
§ 300.103 FAPE—methods and payments.
(a) Each State may use whatever State,
local, Federal, and private sources of
support are available in the State to
meet the requirements of this part. For
example, if it is necessary to place a
child with a disability in a residential
facility, a State could use joint
agreements between the agencies
involved for sharing the cost of that
placement.
(b) Nothing in this part relieves an
insurer or similar third party from an
otherwise valid obligation to provide or
to pay for services provided to a child
with a disability.
(c) Consistent with § 300.323(c), the
State must ensure that there is no delay
in implementing a child’s IEP, including
any case in which the payment source
for providing or paying for special
education and related services to the
child is being determined.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1401(8), 1412(a)(1)).
§ 300.104 Residential placement
If placement in a public or private
residential program is necessary to
provide special education and related
services to a child with a disability, the
program, including non-medical care
and room and board, must be at no cost
to the parents of the child.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1),
1412(a)(10)(B))
§ 300.105 Assistive technology.
(a) Each public agency must ensure
that assistive technology devices or
assistive technology services, or both, as
those terms are defined in §§ 300.5 and
300.6, respectively, are made available
to a child with a disability if required
as a part of the child’s—
(1) Special education under § 300.36;
(2) Related services under § 300.34; or
(3) Supplementary aids and services
under §§ 300.38 and 300.114(a)(2)(ii).
(b) On a case-by-case basis, the use of
school-purchased assistive technology
devices in a child’s home or in other
settings is required if the child’s IEP
Team determines that the child needs
access to those devices in order to
receive FAPE.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1),
1412(a)(12)(B)(i))
§ 300.106 Extended school year services.
(a) General. (1) Each public agency
must ensure that extended school year
services are available as necessary to
provide FAPE, consistent with
paragraph (a)(2) of this section.
(2) Extended school year services
must be provided only if a child’s IEP
Team determines, on an individual
basis, in accordance with §§ 300.320
through 300.324, that the services are
necessary for the provision of FAPE to
the child.
(3) In implementing the requirements
of this section, a public agency may
not—
(i) Limit extended school year
services to particular categories of
disability; or
(ii) Unilaterally limit the type,
amount, or duration of those services.
(b) Definition. As used in this section,
the term extended school year services
means special education and related
services that—
(1) Are provided to a child with a
disability—
(i) Beyond the normal school year of
the public agency;
(ii) In accordance with the child’s IEP;
and
(iii) At no cost to the parents of the
child; and
(2) Meet the standards of the SEA.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1))
§ 300.107 Nonacademic services.
The State must ensure the following:
(a) Each public agency must take
steps, including the provision of
supplementary aids and services
determined appropriate and necessary
by the child’s IEP Team, to provide
nonacademic and extracurricular
services and activities in the manner
necessary to afford children with
disabilities an equal opportunity for
participation in those services and
activities.
(b) Nonacademic and extracurricular
services and activities may include
counseling services, athletics,
transportation, health services,
recreational activities, special interest
groups or clubs sponsored by the public
agency, referrals to agencies that
provide assistance to individuals with
disabilities, and employment of
students, including both employment by
the public agency and assistance in
making outside employment available.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1))
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§ 300.108 Physical education.
The State must ensure that public
agencies in the State comply with the
following:
(a) General. Physical education
services, specially designed if necessary,
must be made available to every child
with a disability receiving FAPE, unless
the public agency enrolls children
without disabilities and does not
provide physical education to children
without disabilities in the same grades.
(b) Regular physical education. Each
child with a disability must be afforded
the opportunity to participate in the
regular physical education program
available to nondisabled children
unless—
(1) The child is enrolled full time in
a separate facility; or
(2) The child needs specially designed
physical education, as prescribed in the
child’s IEP.
(c) Special physical education. If
specially designed physical education is
prescribed in a child’s IEP, the public
agency responsible for the education of
that child must provide the services
directly or make arrangements for those
services to be provided through other
public or private programs.
(d) Education in separate facilities.
The public agency responsible for the
education of a child with a disability
who is enrolled in a separate facility
must ensure that the child receives
appropriate physical education services
in compliance with this section.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5)(A))
§ 300.109 Full educational opportunity
goal (FEOG).
The State must have in effect policies
and procedures to demonstrate that the
State has established a goal of providing
full educational opportunity to all
children with disabilities, aged birth
through 21, and a detailed timetable for
accomplishing that goal.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(2))
§ 300.110 Program options.
The State must ensure that each
public agency takes steps to ensure that
its children with disabilities have
available to them the variety of
educational programs and services
available to nondisabled children in the
area served by the agency, including art,
music, industrial arts, consumer and
homemaking education, and vocational
education.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))
§ 300.111 Child find.
(a) General. (1) The State must have
in effect policies and procedures to
ensure that—
(i) All children with disabilities
residing in the State, including children
with disabilities who are homeless
children or are wards of the State, and
children with disabilities attending
private schools, regardless of the
severity of their disability, and who are
in need of special education and related
services, are identified, located, and
evaluated; and
(ii) A practical method is developed
and implemented to determine which
children are currently receiving needed
special education and related services.
(b) Use of term developmental delay.
The following provisions apply with
respect to implementing the child find
requirements of this section:
(1) A State that adopts a definition of
developmental delay under § 300.8(b)
determines whether the term applies to
children aged three through nine, or to
a subset of that age range (e.g., ages
three through five).
(2) A State may not require an LEA to
adopt and use the term developmental
delay for any children within its
jurisdiction.
(3) If an LEA uses the term
developmental delay for children
described in § 300.8(b), the LEA must
conform to both the State’s definition of
that term and to the age range that has
been adopted by the State.
(4) If a State does not adopt the term
developmental delay, an LEA may not
independently use that term as a basis
for establishing a child’s eligibility
under this part.
(c) Other children in child find. Child
find also must include—
(1) Children who are suspected of
being a child with a disability under
§ 300.8 and in need of special
education, even though they are
advancing from grade to grade; and
(2) Highly mobile children, including
migrant children.
(d) Construction. Nothing in the Act
requires that children be classified by
their disability so long as each child
who has a disability that is listed in
§ 300.8 and who, by reason of that
disability, needs special education and
related services is regarded as a child
with a disability under Part B of the Act.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1401(3)); 1412(a)(3))
§ 300.112 Individualized education
programs (IEP).
The State must ensure that an IEP, or
an IFSP that meets the requirements of
section 636(d) of the Act, is developed,
reviewed, and revised for each child
with a disability in accordance with
§§ 300.320 through 300.324, except as
provided in § 300.300(b)(3)(ii).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(4))
§ 300.113 Routine checking of hearing
aids and external components of surgically
implanted medical devices.
(a) Hearing aids. Each public agency
must ensure that hearing aids worn in
school by children with hearing
impairments, including deafness, are
functioning properly.
(b) External components of surgically
implanted medical devices. (1) Subject
to paragraph (b)(2) of this section, each
public agency must ensure that the
external components of surgically
implanted medical devices are
functioning properly.
(2) For a child with a surgically
implanted medical device who is
receiving special education and related
services under this part, a public agency
is not responsible for the post-surgical
maintenance, programming, or
replacement of the medical device that
has been surgically implanted (or of an
external component of the surgically
implanted medical device).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1401(1), 1401(26)(B))
Least Restrictive Environment (LRE)
§ 300.114 LRE requirements.
(a) General. (1) Except as provided in
§ 300.324(d)(2) (regarding children with
disabilities in adult prisons), the State
must have in effect policies and
procedures to ensure that public
agencies in the State meet the LRE
requirements of this section and
§§ 300.115 through 300.120.
(2) Each public agency must ensure
that—
(i) To the maximum extent
appropriate, children with disabilities,
including children in public or private
institutions or other care facilities, are
educated with children who are
nondisabled; and
(ii) Special classes, separate
schooling, or other removal of children
with disabilities from the regular
educational environment occurs only if
the nature or severity of the disability is
such that education in regular classes
with the use of supplementary aids and
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services cannot be achieved
satisfactorily.
(b) Additional requirement—State
funding mechanism—(1) General. (i) A
State funding mechanism must not
result in placements that violate the
requirements of paragraph (a) of this
section; and
(ii) A State must not use a funding
mechanism by which the State
distributes funds on the basis of the type
of setting in which a child is served that
will result in the failure to provide a
child with a disability FAPE according
to the unique needs of the child, as
described in the child’s IEP.
(2) Assurance. If the State does not
have policies and procedures to ensure
compliance with paragraph (b)(1) of this
section, the State must provide the
Secretary an assurance that the State
will revise the funding mechanism as
soon as feasible to ensure that the
mechanism does not result in
placements that violate that paragraph.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.115 Continuum of alternative
placements.
(a) Each public agency must ensure
that a continuum of alternative
placements is available to meet the
needs of children with disabilities for
special education and related services.
(b) The continuum required in
paragraph (a) of this section must—
(1) Include the alternative placements
listed in the definition of special
education under § 300.38 (instruction in
regular classes, special classes, special
schools, home instruction, and
instruction in hospitals and
institutions); and
(2) Make provision for supplementary
services (such as resource room or
itinerant instruction) to be provided in
conjunction with regular class
placement.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.116 Placements.
In determining the educational
placement of a child with a disability,
including a preschool child with a
disability, each public agency must
ensure that—
(a) The placement decision—
(1) Is made by a group of persons,
including the parents, and other persons
knowledgeable about the child, the
meaning of the evaluation data, and the
placement options; and
(2) Is made in conformity with the
LRE provisions of this subpart,
including §§ 300.114 through 300.118;
(b) The child’s placement—
(1) Is determined at least annually;
(2) Is based on the child’s IEP; and
(3) Is as close as possible to the child’s
home;
(c) Unless the IEP of a child with a
disability requires some other
arrangement, the child is educated in
the school that he or she would attend
if nondisabled;
(d) In selecting the LRE, consideration
is given to any potential harmful effect
on the child or on the quality of services
that he or she needs; and
(e) A child with a disability is not
removed from education in age-
appropriate regular classrooms solely
because of needed modifications in the
general education curriculum.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.117 Nonacademic settings.
In providing or arranging for the
provision of nonacademic and
extracurricular services and activities,
including meals, recess periods, and the
services and activities set forth in
§ 300.107, each public agency must
ensure that each child with a disability
participates with nondisabled children
in the extracurricular services and
activities to the maximum extent
appropriate to the needs of that child.
The public agency must ensure that
each child with a disability has the
supplementary aids and services
determined by the child’s IEP Team to
be appropriate and necessary for the
child to participate in nonacademic
settings.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.118 Children in public or private
institutions.
Except as provided in § 300.149(d)
(regarding agency responsibility for
general supervision for some
individuals in adult prisons), an SEA
must ensure that § 300.114 is effectively
implemented, including, if necessary,
making arrangements with public and
private institutions (such as a
memorandum of agreement or special
implementation procedures).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.119 Technical assistance and
training activities.
Each SEA must carry out activities to
ensure that teachers and administrators
in all public agencies—
(a) Are fully informed about their
responsibilities for implementing
§ 300.114; and
(b) Are provided with technical
assistance and training necessary to
assist them in this effort.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.120 Monitoring activities.
(a) The SEA must carry out activities
to ensure that § 300.114 is implemented
by each public agency.
(b) If there is evidence that a public
agency makes placements that are
inconsistent with § 300.114, the SEA
must—
(1) Review the public agency’s
justification for its actions; and
(2) Assist in planning and
implementing any necessary corrective
action.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
Additional Eligibility Requirements
§ 300.121 Procedural safeguards.
(a) General. The State must have
procedural safeguards in effect to ensure
that each public agency in the State
meets the requirements of §§ 300.500
through 300.536.
(b) Procedural safeguards identified.
Children with disabilities and their
parents must be afforded the procedural
safeguards identified in paragraph (a) of
this section.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(6)(A))
§ 300.122 Evaluation.
Children with disabilities must be
evaluated in accordance with §§ 300.300
through 300.311 of subpart D of this
part.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(7))
§ 300.123 Confidentiality of personally
identifiable information.
The State must have policies and
procedures in effect to ensure that
public agencies in the State comply
with §§ 300.610 through 300.626 related
to protecting the confidentiality of any
personally identifiable information
collected, used, or maintained under
Part B of the Act.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
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§ 300.124 Transition of children from the
Part C program to preschool programs.
The State must have in effect policies
and procedures to ensure that—
(a) Children participating in early
intervention programs assisted under
Part C of the Act, and who will
participate in preschool programs
assisted under Part B of the Act,
experience a smooth and effective
transition to those preschool programs
in a manner consistent with section
637(a)(9) of the Act;
(b) By the third birthday of a child
described in paragraph (a) of this
section, an IEP or, if consistent with
§ 300.323(b) and section 636(d) of the
Act, an IFSP, has been developed and is
being implemented for the child
consistent with § 300.101(b); and
(c) Each affected LEA will participate
in transition planning conferences
arranged by the designated lead agency
under section 635(a)(10) of the Act.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(9))
§§ 300.125–300.128 [Reserved]
Children in Private Schools
§ 300.129 State responsibility regarding
children in private schools.
The State must have in effect policies
and procedures that ensure that LEAs,
and, if applicable, the SEA, meet the
private school requirements in
§§ 300.130 through 300.148.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10))
Children With Disabilities Enrolled by
Their Parents in Private Schools
§ 300.130 Definition of parentally-placed
private school children with disabilities.
Parentally-placed private school
children with disabilities means
children with disabilities enrolled by
their parents in private, including
religious, schools or facilities that meet
the definition of elementary school in
§ 300.13 or secondary school in
§ 300.36, other than children with
disabilities covered under §§ 300.145
through 300.147.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.131 Child find for parentally-placed
private school children with disabilities.
(a) General. Each LEA must locate,
identify, and evaluate all children with
disabilities who are enrolled by their
parents in private, including religious,
elementary schools and secondary
schools located in the school district
served by the LEA, in accordance with
paragraphs (b) through (e) of this
section, and §§ 300.111 and 300.201.
(b) Child find design. The child find
process must be designed to ensure—
(1) The equitable participation of
parentally-placed private school
children; and
(2) An accurate count of those
children.
(c) Activities. In carrying out the
requirements of this section, the LEA,
or, if applicable, the SEA, must
undertake activities similar to the
activities undertaken for the agency’s
public school children.
(d) Cost. The cost of carrying out the
child find requirements in this section,
including individual evaluations, may
not be considered in determining if an
LEA has met its obligation under
§ 300.133.
(e) Completion period. The child find
process must be completed in a time
period comparable to that for students
attending public schools in the LEA
consistent with § 300.301.
(f) Out-of-State children. Each LEA in
which private, including religious,
elementary schools and secondary
schools are located must, in carrying out
the child find requirements in this
section, include parentally-placed
private school children who reside in a
State other than the State in which the
private schools that they attend are
located.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
§ 300.132 Provision of services for
parentally-placed private school children
with disabilities—basic requirement.
(a) General. To the extent consistent
with the number and location of
children with disabilities who are
enrolled by their parents in private,
including religious, elementary schools
and secondary schools located in the
school district served by the LEA,
provision is made for the participation
of those children in the program
assisted or carried out under Part B of
the Act by providing them with special
education and related services,
including direct services determined in
accordance with § 300.137, unless the
Secretary has arranged for services to
those children under the by-pass
provisions in §§ 300.190 through
300.198.
(b) Services plan for parentally-placed
private school children with disabilities.
In accordance with paragraph (a) of this
section and §§ 300.137 through 300.139,
a services plan must be developed and
implemented for each private school
child with a disability who has been
designated by the LEA in which the
private school is located to receive
special education and related services
under this part.
(c) Record keeping. Each LEA must
maintain in its records, and provide to
the SEA, the following information
related to parentally-placed private
school children covered under
§§ 300.130 through 300.144:
(1) The number of children evaluated;
(2) The number of children
determined to be children with
disabilities; and
(3) The number of children served.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
§ 300.133 Expenditures.
(a) Formula. To meet the requirement
of § 300.132(a), each LEA must spend
the following on providing special
education and related services
(including direct services) to parentally-
placed private school children with
disabilities:
(1) For children aged 3 through 21, an
amount that is the same proportion of
the LEA’s total subgrant under section
611(f) of the Act as the number of
private school children with disabilities
aged 3 through 21 who are enrolled by
their parents in private, including
religious, elementary schools and
secondary schools located in the school
district served by the LEA, is to the total
number of children with disabilities in
its jurisdiction aged 3 through 21.
(2)(i) For children aged three through
five, an amount that is the same
proportion of the LEA’s total subgrant
under section 619(g) of the Act as the
number of parentally-placed private
school children with disabilities aged
three through five who are enrolled by
their parents in a private, including
religious, elementary school located in
the school district served by the LEA, is
to the total number of children with
disabilities in its jurisdiction aged three
through five.
(ii) As described in paragraph (a)(2)(i)
of this section, children aged three
through five are considered to be
parentally-placed private school
children with disabilities enrolled by
their parents in private, including
religious, elementary schools, if they are
enrolled in a private school that meets
the definition of elementary school in
§ 300.13.
(3) If an LEA has not expended for
equitable services all of the funds
described in paragraphs (a)(1) and (a)(2)
of this section by the end of the fiscal
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year for which Congress appropriated
the funds, the LEA must obligate the
remaining funds for special education
and related services (including direct
services) to parentally-placed private
school children with disabilities during
a carry-over period of one additional
year.
(b) Calculating proportionate amount.
In calculating the proportionate amount
of Federal funds to be provided for
parentally-placed private school
children with disabilities, the LEA, after
timely and meaningful consultation
with representatives of private schools
under § 300.134, must conduct a
thorough and complete child find
process to determine the number of
parentally-placed children with
disabilities attending private schools
located in the LEA. (See Appendix B for
an example of how proportionate share
is calculated).
(c) Annual count of the number of
parentally-placed private school
children with disabilities. (1) Each LEA
must—
(i) After timely and meaningful
consultation with representatives of
parentally-placed private school
children with disabilities (consistent
with § 300.134), determine the number
of parentally-placed private school
children with disabilities attending
private schools located in the LEA; and
(ii) Ensure that the count is conducted
on any date between October 1 and
December 1, inclusive, of each year.
(2) The count must be used to
determine the amount that the LEA
must spend on providing special
education and related services to
parentally-placed private school
children with disabilities in the next
subsequent fiscal year.
(d) Supplement, not supplant. State
and local funds may supplement and in
no case supplant the proportionate
amount of Federal funds required to be
expended for parentally-placed private
school children with disabilities under
this part.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.134 Consultation.
To ensure timely and meaningful
consultation, an LEA, or, if appropriate,
an SEA, must consult with private
school representatives and
representatives of parents of parentally-
placed private school children with
disabilities during the design and
development of special education and
related services for the children
regarding the following:
(a) Child find. The child find process,
including—
(1) How parentally-placed private
school children suspected of having a
disability can participate equitably; and
(2) How parents, teachers, and private
school officials will be informed of the
process.
(b) Proportionate share of funds. The
determination of the proportionate share
of Federal funds available to serve
parentally-placed private school
children with disabilities under
§ 300.133(b), including the
determination of how the proportionate
share of those funds was calculated.
(c) Consultation process. The
consultation process among the LEA,
private school officials, and
representatives of parents of parentally-
placed private school children with
disabilities, including how the process
will operate throughout the school year
to ensure that parentally-placed
children with disabilities identified
through the child find process can
meaningfully participate in special
education and related services.
(d) Provision of special education and
related services. How, where, and by
whom special education and related
services will be provided for parentally-
placed private school children with
disabilities, including a discussion of—
(1) The types of services, including
direct services and alternate service
delivery mechanisms; and
(2) How special education and related
services will be apportioned if funds are
insufficient to serve all parentally-
placed private school children; and
(3) How and when those decisions
will be made;
(e) Written explanation by LEA
regarding services. How, if the LEA
disagrees with the views of the private
school officials on the provision of
services or the types of services
(whether provided directly or through a
contract), the LEA will provide to the
private school officials a written
explanation of the reasons why the LEA
chose not to provide services directly or
through a contract.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(iii))
§ 300.135 Written affirmation.
(a) When timely and meaningful
consultation, as required by § 300.134,
has occurred, the LEA must obtain a
written affirmation signed by the
representatives of participating private
schools.
(b) If the representatives do not
provide the affirmation within a
reasonable period of time, the LEA must
forward the documentation of the
consultation process to the SEA.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(iv))
§ 300.136 Compliance.
(a) General. A private school official
has the right to submit a complaint to
the SEA that the LEA—
(1) Did not engage in consultation that
was meaningful and timely; or
(2) Did not give due consideration to
the views of the private school official.
(b) Procedure. (1) If the private school
official wishes to submit a complaint,
the official must provide to the SEA the
basis of the noncompliance by the LEA
with the applicable private school
provisions in this part; and
(2) The LEA must forward the
appropriate documentation to the SEA.
(3)(i) If the private school official is
dissatisfied with the decision of the
SEA, the official may submit a
complaint to the Secretary by providing
the information on noncompliance
described in paragraph (b)(1) of this
section; and
(ii) The SEA must forward the
appropriate documentation to the
Secretary.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(v))
§ 300.137 Equitable services determined.
(a) No individual right to special
education and related services. No
parentally-placed private school child
with a disability has an individual right
to receive some or all of the special
education and related services that the
child would receive if enrolled in a
public school.
(b) Decisions. (1) Decisions about the
services that will be provided to
parentally-placed private school
children with disabilities under
§§ 300.130 through 300.144 must be
made in accordance with paragraph (c)
of this section and § 300.134(c).
(2) The LEA must make the final
decisions with respect to the services to
be provided to eligible parentally-placed
private school children with disabilities.
(c) Services plan for each child served
under §§ 300.130 through 300.144. If a
child with a disability is enrolled in a
religious or other private school by the
child’s parents and will receive special
education or related services from an
LEA, the LEA must—
(1) Initiate and conduct meetings to
develop, review, and revise a services
plan for the child, in accordance with
§ 300.138(b); and
(2) Ensure that a representative of the
religious or other private school attends
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each meeting. If the representative
cannot attend, the LEA shall use other
methods to ensure participation by the
religious or other private school,
including individual or conference
telephone calls.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.138 Equitable services provided.
(a) General. (1) The services provided
to parentally-placed private school
children with disabilities must be
provided by personnel meeting the same
standards as personnel providing
services in the public schools, except
that private elementary school and
secondary school teachers who are
providing equitable services to
parentally-placed private school
children with disabilities do not have to
meet the highly qualified special
education teacher requirements of
§ 300.18.
(2) Parentally-placed private school
children with disabilities may receive a
different amount of services than
children with disabilities in public
schools.
(b) Services provided in accordance
with a services plan. (1) Each parentally-
placed private school child with a
disability who has been designated to
receive services under § 300.132 must
have a services plan that describes the
specific special education and related
services that the LEA will provide to the
child in light of the services that the
LEA has determined, through the
process described in §§ 300.134 and
300.137, it will make available to
parentally-placed private school
children with disabilities.
(2) The services plan must, to the
extent appropriate—
(i) Meet the requirements of § 300.320,
or for a child ages three through five,
meet the requirements of § 300.323(b)
with respect to the services provided;
and
(ii) Be developed, reviewed, and
revised consistent with §§ 300.321
through 300.324.
(c) Provision of equitable services. (1)
The provision of services pursuant to
this section and §§ 300.139 through
300.143 must be provided:
(i) By employees of a public agency;
or
(ii) Through contract by the public
agency with an individual, association,
agency, organization, or other entity.
(2) Special education and related
services provided to parentally-placed
private school children with disabilities,
including materials and equipment,
must be secular, neutral, and
nonideological.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(vi))
§ 300.139 Location of services and
transportation.
(a) Services on private school
premises. Services to parentally-placed
private school children with disabilities
may be provided on the premises of
private, including religious, schools, to
the extent consistent with law.
(b) Transportation—(1) General. (i) If
necessary for the child to benefit from
or participate in the services provided
under this part, a parentally-placed
private school child with a disability
must be provided transportation—
(A) From the child’s school or the
child’s home to a site other than the
private school; and
(B) From the service site to the private
school, or to the child’s home,
depending on the timing of the services.
(ii) LEAs are not required to provide
transportation from the child’s home to
the private school.
(2) Cost of transportation. The cost of
the transportation described in
paragraph (b)(1)(i) of this section may be
included in calculating whether the
LEA has met the requirement of
§ 300.133.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.140 Due process complaints and
State complaints.
(a) Due process not applicable, except
for child find. (1) Except as provided in
paragraph (b) of this section, the
procedures in §§ 300.504 through
300.519 do not apply to complaints that
an LEA has failed to meet the
requirements of §§ 300.132 through
300.139, including the provision of
services indicated on the child’s
services plan.
(b) Child find complaints—to be filed
with the LEA in which the private school
is located. (1) The procedures in
§§ 300.504 through 300.519 apply to
complaints that an LEA has failed to
meet the child find requirements in
§ 300.131, including the requirements in
§§ 300.300 through 300.311.
(2) Any due process complaint
regarding the child find requirements
(as described in paragraph (b)(1) of this
section) must be filed with the LEA in
which the private school is located and
a copy must be forwarded to the SEA.
(c) State complaints. (1) Any
complaint that an SEA or LEA has failed
to meet the requirements in §§ 300.132
through 300.135 and 300.137 through
300.144 must be filed in accordance
with the procedures described in
§§ 300.151 through 300.153.
(2) A complaint filed by a private
school official under § 300.136(a) must
be filed with the SEA in accordance
with the procedures in § 300.136(b).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.141 Requirement that funds not
benefit a private school.
(a) An LEA may not use funds
provided under section 611 or 619 of
the Act to finance the existing level of
instruction in a private school or to
otherwise benefit the private school.
(b) The LEA must use funds provided
under Part B of the Act to meet the
special education and related services
needs of parentally-placed private
school children with disabilities, but
not for meeting—
(1) The needs of a private school; or
(2) The general needs of the students
enrolled in the private school.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.142 Use of personnel.
(a) Use of public school personnel. An
LEA may use funds available under
sections 611 and 619 of the Act to make
public school personnel available in
other than public facilities—
(1) To the extent necessary to provide
services under §§ 300.130 through
300.144 for parentally-placed private
school children with disabilities; and
(2) If those services are not normally
provided by the private school.
(b) Use of private school personnel.
An LEA may use funds available under
sections 611 and 619 of the Act to pay
for the services of an employee of a
private school to provide services under
§§ 300.130 through 300.144 if—
(1) The employee performs the
services outside of his or her regular
hours of duty; and
(2) The employee performs the
services under public supervision and
control.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.143 Separate classes prohibited.
An LEA may not use funds available
under section 611 or 619 of the Act for
classes that are organized separately on
the basis of school enrollment or
religion of the children if—’
(a) The classes are at the same site;
and
(b) The classes include children
enrolled in public schools and children
enrolled in private schools.
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(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.144 Property, equipment, and
supplies.
(a) A public agency must control and
administer the funds used to provide
special education and related services
under §§ 300.137 through 300.139, and
hold title to and administer materials,
equipment, and property purchased
with those funds for the uses and
purposes provided in the Act.
(b) The public agency may place
equipment and supplies in a private
school for the period of time needed for
the Part B program.
(c) The public agency must ensure
that the equipment and supplies placed
in a private school—
(1) Are used only for Part B purposes;
and
(2) Can be removed from the private
school without remodeling the private
school facility.
(d) The public agency must remove
equipment and supplies from a private
school if—
(1) The equipment and supplies are
no longer needed for Part B purposes; or
(2) Removal is necessary to avoid
unauthorized use of the equipment and
supplies for other than Part B purposes.
(e) No funds under Part B of the Act
may be used for repairs, minor
remodeling, or construction of private
school facilities.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(vii))
Children With Disabilities in Private
Schools Placed or Referred by Public
Agencies
§ 300.145 Applicability of §§ 300.146
through 300.147.
Sections 300.146 through 300.147
apply only to children with disabilities
who are or have been placed in or
referred to a private school or facility by
a public agency as a means of providing
special education and related services.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
§ 300.146 Responsibility of SEA.
Each SEA must ensure that a child
with a disability who is placed in or
referred to a private school or facility by
a public agency—
(a) Is provided special education and
related services—
(1) In conformance with an IEP that
meets the requirements of §§ 300.320
through 300.325; and
(2) At no cost to the parents;
(b) Is provided an education that
meets the standards that apply to
education provided by the SEA and
LEAs including the requirements of this
part, except for § 300.18 and
§ 300.156(c); and
(c) Has all of the rights of a child with
a disability who is served by a public
agency.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
§ 300.147 Implementation by SEA.
In implementing § 300.146, the SEA
must—
(a) Monitor compliance through
procedures such as written reports, on-
site visits, and parent questionnaires;
(b) Disseminate copies of applicable
standards to each private school and
facility to which a public agency has
referred or placed a child with a
disability; and
(c) Provide an opportunity for those
private schools and facilities to
participate in the development and
revision of State standards that apply to
them.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
Children With Disabilities Enrolled by
Their Parents in Private Schools When
FAPE Is at Issue
§ 300.148 Placement of children by
parents when FAPE is at issue.
(a) General. This part does not require
an LEA to pay for the cost of education,
including special education and related
services, of a child with a disability at
a private school or facility if that agency
made FAPE available to the child and
the parents elected to place the child in
a private school or facility. However, the
public agency must include that child in
the population whose needs are
addressed consistent with §§ 300.131
through 300.144.
(b) Disagreements about FAPE.
Disagreements between the parents and
a public agency regarding the
availability of a program appropriate for
the child, and the question of financial
reimbursement, are subject to the due
process procedures in §§ 300.504
through 300.520.
(c) Reimbursement for private school
placement. If the parents of a child with
a disability, who previously received
special education and related services
under the authority of a public agency,
enroll the child in a private preschool,
elementary school, or secondary school
without the consent of or referral by the
public agency, a court or a hearing
officer may require the agency to
reimburse the parents for the cost of that
enrollment if the court or hearing officer
finds that the agency had not made
FAPE available to the child in a timely
manner prior to that enrollment and that
the private placement is appropriate. A
parental placement may be found to be
appropriate by a hearing officer or a
court even if it does not meet the State
standards that apply to education
provided by the SEA and LEAs.
(d) Limitation on reimbursement. The
cost of reimbursement described in
paragraph (c) of this section may be
reduced or denied—
(1) If—
(i) At the most recent IEP Team
meeting that the parents attended prior
to removal of the child from the public
school, the parents did not inform the
IEP Team that they were rejecting the
placement proposed by the public
agency to provide FAPE to their child,
including stating their concerns and
their intent to enroll their child in a
private school at public expense; or
(ii) At least ten (10) business days
(including any holidays that occur on a
business day) prior to the removal of the
child from the public school, the
parents did not give written notice to
the public agency of the information
described in paragraph (d)(1)(i) of this
section;
(2) If, prior to the parents’ removal of
the child from the public school, the
public agency informed the parents,
through the notice requirements
described in § 300.503(a)(1), of its intent
to evaluate the child (including a
statement of the purpose of the
evaluation that was appropriate and
reasonable), but the parents did not
make the child available for the
evaluation; or
(3) Upon a judicial finding of
unreasonableness with respect to
actions taken by the parents.
(e) Exception. Notwithstanding the
notice requirement in paragraph (d)(1)
of this section, the cost of
reimbursement—
(1) Must not be reduced or denied for
failure to provide the notice if—
(i) The school prevented the parents
from providing the notice;
(ii) The parents had not received
notice, pursuant to § 300.504, of the
notice requirement in paragraph (d)(1)
of this section; or
(iii) Compliance with paragraph (d)(1)
of this section would likely result in
physical harm to the child; and
(2) May, in the discretion of the court
or a hearing officer, not be reduced or
denied for failure to provide this notice
if—
(i) The parents are not literate or
cannot write in English; or
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(ii) Compliance with paragraph (d)(1)
of this section would likely result in
serious emotional harm to the child.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(C))
SEA Responsibility for General
Supervision and Implementation of
Procedural Safeguards
§ 300.149 SEA responsibility for general
supervision.
(a) The SEA is responsible for
ensuring—
(1) That the requirements of this part
are carried out; and
(2) That each educational program for
children with disabilities administered
within the State, including each
program administered by any other
State or local agency (but not including
elementary schools and secondary
schools for Indian children operated or
funded by the Secretary of the
Interior)—
(i) Is under the general supervision of
the persons responsible for educational
programs for children with disabilities
in the SEA; and
(ii) Meets the educational standards of
the SEA (including the requirements of
this part).
(3) In carrying out this part with
respect to homeless children, the
requirements of subtitle B of title VII of
the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11431 et seq.)
are met.
(b) The State must have in effect
policies and procedures to ensure that it
complies with the monitoring and
enforcement requirements in §§ 300.600
through 300.602 and §§ 300.606 through
300.608.
(c) Part B of the Act does not limit the
responsibility of agencies other than
educational agencies for providing or
paying some or all of the costs of FAPE
to children with disabilities in the State.
(d) Notwithstanding paragraph (a) of
this section, the Governor (or another
individual pursuant to State law) may
assign to any public agency in the State
the responsibility of ensuring that the
requirements of Part B of the Act are
met with respect to students with
disabilities who are convicted as adults
under State law and incarcerated in
adult prisons.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(11); 1416)
§ 300.150 SEA implementation of
procedural safeguards.
The SEA (and any agency assigned
responsibility pursuant to § 300.149(d))
must have in effect procedures to inform
each public agency of its responsibility
for ensuring effective implementation of
procedural safeguards for the children
with disabilities served by that public
agency.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(11); 1415(a))
State Complaint Procedures
§ 300.151 Adoption of State complaint
procedures.
(a) General. Each SEA must adopt
written procedures for—
(1) Resolving any complaint,
including a complaint filed by an
organization or individual from another
State, that meets the requirements of
§ 300.153 by—
(i) Providing for the filing of a
complaint with the SEA; and
(ii) At the SEA’s discretion, providing
for the filing of a complaint with a
public agency and the right to have the
SEA review the public agency’s decision
on the complaint; and
(2) Widely disseminating to parents
and other interested individuals,
including parent training and
information centers, protection and
advocacy agencies, independent living
centers, and other appropriate entities,
the State procedures under §§ 300.151
through 300.153.
(b) Remedies for denial of appropriate
services. In resolving a complaint in
which the SEA has found a failure to
provide appropriate services, an SEA,
pursuant to its general supervisory
authority under Part B of the Act, must
address—
(1) The failure to provide appropriate
services, including corrective action
appropriate to address the needs of the
child (such as compensatory services or
monetary reimbursement); and
(2) Appropriate future provision of
services for all children with
disabilities.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1221e–3)
§ 300.152 Minimum State complaint
procedures.
(a) Time limit; minimum procedures.
Each SEA must include in its complaint
procedures a time limit of 60 days after
a complaint is filed under § 300.153 to—
(1) Carry out an independent on-site
investigation, if the SEA determines that
an investigation is necessary;
(2) Give the complainant the
opportunity to submit additional
information, either orally or in writing,
about the allegations in the complaint;
(3) Provide the public agency with the
opportunity to respond to the
complaint, including, at a minimum—
(i) At the discretion of the public
agency, a proposal to resolve the
complaint; and
(ii) An opportunity for a parent who
has filed a complaint and the public
agency to voluntarily engage in
mediation consistent with § 300.506;
(4) Review all relevant information
and make an independent
determination as to whether the public
agency is violating a requirement of Part
B of the Act or of this part; and
(5) Issue a written decision to the
complainant that addresses each
allegation in the complaint and
contains—
(i) Findings of fact and conclusions;
and
(ii) The reasons for the SEA’s final
decision.
(b) Time extension; final decision;
implementation. The SEA’s procedures
described in paragraph (a) of this
section also must—
(1) Permit an extension of the time
limit under paragraph (a) of this section
only if—
(i) Exceptional circumstances exist
with respect to a particular complaint;
or
(ii) The parent (or individual or
organization, if mediation or other
alternative means of dispute resolution
is available to the individual or
organization under State procedures)
and the public agency involved agree to
extend the time to engage in mediation
pursuant to paragraph (a)(3)(ii) of this
section, or to engage in other alternative
means of dispute resolution, if available
in the State; and
(2) Include procedures for effective
implementation of the SEA’s final
decision, if needed, including—
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve
compliance.
(c) Complaints filed under this section
and due process hearings under
§ 300.507 and §§ 300.530 through
300.532. (1) If a written complaint is
received that is also the subject of a due
process hearing under § 300.507 or
§§ 300.530 through 300.532, or contains
multiple issues of which one or more
are part of that hearing, the State must
set aside any part of the complaint that
is being addressed in the due process
hearing until the conclusion of the
hearing. However, any issue in the
complaint that is not a part of the due
process action must be resolved using
the time limit and procedures described
in paragraphs (a) and (b) of this section.
(2) If an issue raised in a complaint
filed under this section has previously
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been decided in a due process hearing
involving the same parties—
(i) The due process hearing decision
is binding on that issue; and
(ii) The SEA must inform the
complainant to that effect.
(3) A complaint alleging a public
agency’s failure to implement a due
process hearing decision must be
resolved by the SEA.
Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1221e–3)
§ 300.153 Filing a complaint.
(a) An organization or individual may
file a signed written complaint under
the procedures described in §§ 300.151
through 300.152.
(b) The complaint must include—
(1) A statement that a public agency
has violated a requirement of Part B of
the Act or of this part;
(2) The facts on which the statement
is based;
(3) The signature and contact
information for the complainant; and
(4) If alleging violations with respect
to a specific child—
(i) The name and address of the
residence of the child;
(ii) The name of the school the child
is attending;
(iii) In the case of a homeless child or
youth (within the meaning of section
725(2) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(2)),
available contact information for the
child, and the name of the school the
child is attending;
(iv) A description of the nature of the
problem of the child, including facts
relating to the problem; and
(v) A proposed resolution of the
problem to the extent known and
available to the party at the time the
complaint is filed.
(c) The complaint must allege a
violation that occurred not more than
one year prior to the date that the
complaint is received in accordance
with § 300.151.
(d) The party filing the complaint
must forward a copy of the complaint to
the LEA or public agency serving the
child at the same time the party files the
complaint with the SEA.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1221e–3)
Methods of Ensuring Services
§ 300.154 Methods of ensuring services.
(a) Establishing responsibility for
services. The Chief Executive Officer of
a State or designee of that officer must
ensure that an interagency agreement or
other mechanism for interagency
coordination is in effect between each
noneducational public agency described
in paragraph (b) of this section and the
SEA, in order to ensure that all services
described in paragraph (b)(1) of this
section that are needed to ensure FAPE
are provided, including the provision of
these services during the pendency of
any dispute under paragraph (a)(3) of
this section. The agreement or
mechanism must include the following:
(1) An identification of, or a method
for defining, the financial responsibility
of each agency for providing services
described in paragraph (b)(1) of this
section to ensure FAPE to children with
disabilities. The financial responsibility
of each noneducational public agency
described in paragraph (b) of this
section, including the State Medicaid
agency and other public insurers of
children with disabilities, must precede
the financial responsibility of the LEA
(or the State agency responsible for
developing the child’s IEP).
(2) The conditions, terms, and
procedures under which an LEA must
be reimbursed by other agencies.
(3) Procedures for resolving
interagency disputes (including
procedures under which LEAs may
initiate proceedings) under the
agreement or other mechanism to secure
reimbursement from other agencies or
otherwise implement the provisions of
the agreement or mechanism.
(4) Policies and procedures for
agencies to determine and identify the
interagency coordination
responsibilities of each agency to
promote the coordination and timely
and appropriate delivery of services
described in paragraph (b)(1) of this
section.
(b) Obligation of noneducational
public agencies. (1)(i) If any public
agency other than an educational agency
is otherwise obligated under Federal or
State law, or assigned responsibility
under State policy or pursuant to
paragraph (a) of this section, to provide
or pay for any services that are also
considered special education or related
services (such as, but not limited to,
services described in § 300.5 relating to
assistive technology devices, § 300.6
relating to assistive technology services,
§ 300.34 relating to related services,
§ 300.41 relating to supplementary aids
and services, and § 300.42 relating to
transition services) that are necessary
for ensuring FAPE to children with
disabilities within the State, the public
agency must fulfill that obligation or
responsibility, either directly or through
contract or other arrangement pursuant
to paragraph (a) of this section or an
agreement pursuant to paragraph (c) of
this section.
(ii) A noneducational public agency
described in paragraph (b)(1)(i) of this
section may not disqualify an eligible
service for Medicaid reimbursement
because that service is provided in a
school context.
(2) If a public agency other than an
educational agency fails to provide or
pay for the special education and
related services described in paragraph
(b)(1) of this section, the LEA (or State
agency responsible for developing the
child’s IEP) must provide or pay for
these services to the child in a timely
manner. The LEA or State agency is
authorized to claim reimbursement for
the services from the noneducational
public agency that failed to provide or
pay for these services and that agency
must reimburse the LEA or State agency
in accordance with the terms of the
interagency agreement or other
mechanism described in paragraph (a)
of this section.
(c) Special rule. The requirements of
paragraph (a) of this section may be met
through—
(1) State statute or regulation;
(2) Signed agreements between
respective agency officials that clearly
identify the responsibilities of each
agency relating to the provision of
services; or
(3) Other appropriate written methods
as determined by the Chief Executive
Officer of the State or designee of that
officer and approved by the Secretary.
(d) Children with disabilities who are
covered by public benefits or insurance.
(1) A public agency may use the
Medicaid or other public benefits or
insurance programs in which a child
participates to provide or pay for
services required under this part, as
permitted under the public benefits or
insurance program, except as provided
in paragraph (d)(2) of this section.
(2) With regard to services required to
provide FAPE to an eligible child under
this part, the public agency—
(i) May not require parents to sign up
for or enroll in public benefits or
insurance programs in order for their
child to receive FAPE under Part B of
the Act;
(ii) May not require parents to incur
an out-of-pocket expense such as the
payment of a deductible or co-pay
amount incurred in filing a claim for
services provided pursuant to this part,
but pursuant to paragraph (g)(2) of this
section, may pay the cost that the
parents otherwise would be required to
pay;
(iii) May not use a child’s benefits
under a public benefits or insurance
program if that use would—
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(A) Decrease available lifetime
coverage or any other insured benefit;
(B) Result in the family paying for
services that would otherwise be
covered by the public benefits or
insurance program and that are required
for the child outside of the time the
child is in school;
(C) Increase premiums or lead to the
discontinuation of benefits or insurance;
or
(D) Risk loss of eligibility for home
and community-based waivers, based on
aggregate health-related expenditures;
and
(iv)(A) Must obtain parental consent,
consistent with § 300.9, each time that
access to public benefits or insurance is
sought; and
(B) Notify parents that the parents’
refusal to allow access to their public
benefits or insurance does not relieve
the public agency of its responsibility to
ensure that all required services are
provided at no cost to the parents.
(e) Children with disabilities who are
covered by private insurance. (1) With
regard to services required to provide
FAPE to an eligible child under this
part, a public agency may access the
parents’ private insurance proceeds only
if the parents provide consent consistent
with § 300.9.
(2) Each time the public agency
proposes to access the parents’ private
insurance proceeds, the agency must—
(i) Obtain parental consent in
accordance with paragraph (e)(1) of this
section; and
(ii) Inform the parents that their
refusal to permit the public agency to
access their private insurance does not
relieve the public agency of its
responsibility to ensure that all required
services are provided at no cost to the
parents.
(f) Use of Part B funds. (1) If a public
agency is unable to obtain parental
consent to use the parents’ private
insurance, or public benefits or
insurance when the parents would incur
a cost for a specified service required
under this part, to ensure FAPE the
public agency may use its Part B funds
to pay for the service.
(2) To avoid financial cost to parents
who otherwise would consent to use
private insurance, or public benefits or
insurance if the parents would incur a
cost, the public agency may use its Part
B funds to pay the cost that the parents
otherwise would have to pay to use the
parents’ benefits or insurance (e.g., the
deductible or co-pay amounts).
(g) Proceeds from public benefits or
insurance or private insurance. (1)
Proceeds from public benefits or
insurance or private insurance will not
be treated as program income for
purposes of 34 CFR 80.25.
(2) If a public agency spends
reimbursements from Federal funds
(e.g., Medicaid) for services under this
part, those funds will not be considered
‘‘State or local’’ funds for purposes of
the maintenance of effort provisions in
§§ 300.163 and 300.203.
(h) Construction. Nothing in this part
should be construed to alter the
requirements imposed on a State
Medicaid agency, or any other agency
administering a public benefits or
insurance program by Federal statute,
regulations or policy under title XIX, or
title XXI of the Social Security Act, 42
U.S.C. 1396 through 1396v and 42
U.S.C. 1397aa through 1397jj, or any
other public benefits or insurance
program.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(12) and (e))
Additional Eligibility Requirements
§ 300.155 Hearings relating to LEA
eligibility.
The SEA must not make any final
determination that an LEA is not
eligible for assistance under Part B of
the Act without first giving the LEA
reasonable notice and an opportunity
for a hearing under 34 CFR 76.401(d).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(13))
§ 300.156 Personnel qualifications.
(a) General. The SEA must establish
and maintain qualifications to ensure
that personnel necessary to carry out the
purposes of this part are appropriately
and adequately prepared and trained,
including that those personnel have the
content knowledge and skills to serve
children with disabilities.
(b) Related services personnel and
paraprofessionals. The qualifications
under paragraph (a) of this section must
include qualifications for related
services personnel and
paraprofessionals that—
(1) Are consistent with any State-
approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to the professional discipline in
which those personnel are providing
special education or related services;
and
(2) Ensure that related services
personnel who deliver services in their
discipline or profession—
(i) Meet the requirements of paragraph
(b)(1) of this section; and
(ii) Have not had certification or
licensure requirements waived on an
emergency, temporary, or provisional
basis; and
(iii) Allow paraprofessionals and
assistants who are appropriately trained
and supervised, in accordance with
State law, regulation, or written policy,
in meeting the requirements of this part
to be used to assist in the provision of
special education and related services
under this part to children with
disabilities.
(c) Qualifications for special
education teachers. The qualifications
described in paragraph (a) of this
section must ensure that each person
employed as a public school special
education teacher in the State who
teaches in an elementary school, middle
school, or secondary school is highly
qualified as a special education teacher
by the deadline established in section
1119(a)(2) of the ESEA.
(d) Policy. In implementing this
section, a State must adopt a policy that
includes a requirement that LEAs in the
State take measurable steps to recruit,
hire, train, and retain highly qualified
personnel to provide special education
and related services under this part to
children with disabilities.
(e) Rule of construction.
Notwithstanding any other individual
right of action that a parent or student
may maintain under this part, nothing
in this part shall be construed to create
a right of action on behalf of an
individual student or a class of students
for the failure of a particular SEA or
LEA employee to be highly qualified, or
to prevent a parent from filing a
complaint about staff qualifications with
the SEA as provided for under this part.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(14))
§ 300.157 Performance goals and
indicators.
The State must—
(a) Have in effect established goals for
the performance of children with
disabilities in the State that—
(1) Promote the purposes of this part,
as stated in § 300.1;
(2) Are the same as the State’s
objectives for progress by children in its
definition of adequate yearly progress,
including the State’s objectives for
progress by children with disabilities,
under section 1111(b)(2)(C) of the ESEA,
20 U.S.C. 6311;
(3) Address graduation rates and
dropout rates, as well as such other
factors as the State may determine; and
(4) Are consistent, to the extent
appropriate, with any other goals and
academic standards for children
established by the State;
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(b) Have in effect established
performance indicators the State will
use to assess progress toward achieving
the goals described in paragraph (a) of
this section, including measurable
annual objectives for progress by
children with disabilities under section
1111(b)(2)(C)(v)(II)(cc) of the ESEA, 20
U.S.C. 6311; and
(c) Annually report to the Secretary
and the public on the progress of the
State, and of children with disabilities
in the State, toward meeting the goals
established under paragraph (a) of this
section, which may include elements of
the reports required under section
1111(h) of the ESEA.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(15))
§§ 300.158–300.161 [Reserved]
§ 300.162 Supplementation of State, local,
and other Federal funds.
(a) Expenditures. Funds paid to a
State under this part must be expended
in accordance with all the provisions of
this part.
(b) Prohibition against commingling.
(1) Funds paid to a State under this part
must not be commingled with State
funds.
(2) The requirement in paragraph
(b)(1) of this section is satisfied by the
use of a separate accounting system that
includes an audit trail of the
expenditure of funds paid to a State
under this part. Separate bank accounts
are not required. (See 34 CFR 76.702
(Fiscal control and fund accounting
procedures).)
(c) State-level nonsupplanting. (1)
Except as provided in § 300.202, funds
paid to a State under Part B of the Act
must be used to supplement the level of
Federal, State, and local funds
(including funds that are not under the
direct control of the SEA or LEAs)
expended for special education and
related services provided to children
with disabilities under Part B of the Act,
and in no case to supplant those
Federal, State, and local funds.
(2) If the State provides clear and
convincing evidence that all children
with disabilities have available to them
FAPE, the Secretary may waive, in
whole or in part, the requirements of
paragraph (c)(1) of this section if the
Secretary concurs with the evidence
provided by the State under § 300.164.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(17))
§ 300.163 Maintenance of State financial
support.
(a) General. A State must not reduce
the amount of State financial support for
special education and related services
for children with disabilities, or
otherwise made available because of the
excess costs of educating those children,
below the amount of that support for the
preceding fiscal year.
(b) Reduction of funds for failure to
maintain support. The Secretary
reduces the allocation of funds under
section 611 of the Act for any fiscal year
following the fiscal year in which the
State fails to comply with the
requirement of paragraph (a) of this
section by the same amount by which
the State fails to meet the requirement.
(c) Waivers for exceptional or
uncontrollable circumstances. The
Secretary may waive the requirement of
paragraph (a) of this section for a State,
for one fiscal year at a time, if the
Secretary determines that—
(1) Granting a waiver would be
equitable due to exceptional or
uncontrollable circumstances such as a
natural disaster or a precipitous and
unforeseen decline in the financial
resources of the State; or
(2) The State meets the standard in
§ 300.164 for a waiver of the
requirement to supplement, and not to
supplant, funds received under Part B of
the Act.
(d) Subsequent years. If, for any fiscal
year, a State fails to meet the
requirement of paragraph (a) of this
section, including any year for which
the State is granted a waiver under
paragraph (c) of this section, the
financial support required of the State
in future years under paragraph (a) of
this section shall be the amount that
would have been required in the
absence of that failure and not the
reduced level of the State’s support.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(18))
§ 300.164 Waiver of requirement regarding
supplementing and not supplanting with
Part B funds.
(a) Except as provided under
§§ 300.202 through 300.205, funds paid
to a State under Part B of the Act must
be used to supplement and increase the
level of Federal, State, and local funds
(including funds that are not under the
direct control of SEAs or LEAs)
expended for special education and
related services provided to children
with disabilities under Part B of the Act
and in no case to supplant those
Federal, State, and local funds. A State
may use funds it retains under
§ 300.704(a) and (b) without regard to
the prohibition on supplanting other
funds.
(b) If a State provides clear and
convincing evidence that all eligible
children with disabilities throughout
the State have FAPE available to them,
the Secretary may waive for a period of
one year in whole or in part the
requirement under § 300.162 (regarding
State-level nonsupplanting) if the
Secretary concurs with the evidence
provided by the State.
(c) If a State wishes to request a
waiver under this section, it must
submit to the Secretary a written request
that includes—
(1) An assurance that FAPE is
currently available, and will remain
available throughout the period that a
waiver would be in effect, to all eligible
children with disabilities throughout
the State, regardless of the public
agency that is responsible for providing
FAPE to them. The assurance must be
signed by an official who has the
authority to provide that assurance as it
applies to all eligible children with
disabilities in the State;
(2) All evidence that the State wishes
the Secretary to consider in determining
whether all eligible children with
disabilities have FAPE available to
them, setting forth in detail—
(i) The basis on which the State has
concluded that FAPE is available to all
eligible children in the State; and
(ii) The procedures that the State will
implement to ensure that FAPE remains
available to all eligible children in the
State, which must include—
(A) The State’s procedures under
§ 300.111 for ensuring that all eligible
children are identified, located and
evaluated;
(B) The State’s procedures for
monitoring public agencies to ensure
that they comply with all requirements
of this part;
(C) The State’s complaint procedures
under §§ 300.151 through 300.153; and
(D) The State’s hearing procedures
under §§ 300.511 through 300.516 and
§§ 300.530 through 300.536;
(3) A summary of all State and
Federal monitoring reports, and State
complaint decisions (see §§ 300.151
through 300.153) and hearing decisions
(see §§ 300.511 through 300.516 and
§§ 300.530 through 300.536), issued
within three years prior to the date of
the State’s request for a waiver under
this section, that includes any finding
that FAPE has not been available to one
or more eligible children, and evidence
that FAPE is now available to all
children addressed in those reports or
decisions; and
(4) Evidence that the State, in
determining that FAPE is currently
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available to all eligible children with
disabilities in the State, has consulted
with the State advisory panel under
§ 300.167.
(d) If the Secretary determines that the
request and supporting evidence
submitted by the State makes a prima
facie showing that FAPE is, and will
remain, available to all eligible children
with disabilities in the State, the
Secretary, after notice to the public
throughout the State, conducts a public
hearing at which all interested persons
and organizations may present evidence
regarding the following issues:
(1) Whether FAPE is currently
available to all eligible children with
disabilities in the State.
(2) Whether the State will be able to
ensure that FAPE remains available to
all eligible children with disabilities in
the State if the Secretary provides the
requested waiver.
(e) Following the hearing, the
Secretary, based on all submitted
evidence, will provide a waiver, in
whole or in part, for a period of one year
if the Secretary finds that the State has
provided clear and convincing evidence
that FAPE is currently available to all
eligible children with disabilities in the
State, and the State will be able to
ensure that FAPE remains available to
all eligible children with disabilities in
the State if the Secretary provides the
requested waiver.
(f) A State may receive a waiver of the
requirement of section 612(a)(18)(A) of
the Act and § 300.164 if it satisfies the
requirements of paragraphs (b) through
(e) of this section.
(g) The Secretary may grant
subsequent waivers for a period of one
year each, if the Secretary determines
that the State has provided clear and
convincing evidence that all eligible
children with disabilities throughout
the State have, and will continue to
have throughout the one-year period of
the waiver, FAPE available to them.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(17)(C),
(18)(C)(ii))
§ 300.165 Public participation.
(a) Prior to the adoption of any
policies and procedures needed to
comply with Part B of the Act
(including any amendments to those
policies and procedures), the State must
ensure that there are public hearings,
adequate notice of the hearings, and an
opportunity for comment available to
the general public, including
individuals with disabilities and parents
of children with disabilities.
(b) Before submitting a State plan
under this part, a State must comply
with the public participation
requirements in paragraph (a) of this
section and those in 20 U.S.C.
1232d(b)(7).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(19); 20 U.S.C.
1232d(b)(7))
§ 300.166 Rule of construction.
In complying with §§ 300.162 and
300.163, a State may not use funds paid
to it under this part to satisfy State-law
mandated funding obligations to LEAs,
including funding based on student
attendance or enrollment, or inflation.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(20))
State Advisory Panel
§ 300.167 State advisory panel.
The State must establish and maintain
an advisory panel for the purpose of
providing policy guidance with respect
to special education and related services
for children with disabilities in the
State.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(21)(A))
§ 300.168 Membership.
(a) General. The advisory panel must
consist of members appointed by the
Governor, or any other official
authorized under State law to make
such appointments, be representative of
the State population and be composed
of individuals involved in, or concerned
with the education of children with
disabilities, including—
(1) Parents of children with
disabilities (ages birth through 26);
(2) Individuals with disabilities;
(3) Teachers;
(4) Representatives of institutions of
higher education that prepare special
education and related services
personnel;
(5) State and local education officials,
including officials who carry out
activities under subtitle B of title VII of
the McKinney-Vento Homeless
Assistance Act, (42 U.S.C. 11431 et
seq.);
(6) Administrators of programs for
children with disabilities;
(7) Representatives of other State
agencies involved in the financing or
delivery of related services to children
with disabilities;
(8) Representatives of private schools
and public charter schools;
(9) Not less than one representative of
a vocational, community, or business
organization concerned with the
provision of transition services to
children with disabilities;
(10) A representative from the State
child welfare agency responsible for
foster care; and
(11) Representatives from the State
juvenile and adult corrections agencies.
(b) Special rule. A majority of the
members of the panel must be
individuals with disabilities or parents
of children with disabilities (ages birth
through 26).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))
§ 300.169 Duties.
The advisory panel must—
(a) Advise the SEA of unmet needs
within the State in the education of
children with disabilities;
(b) Comment publicly on any rules or
regulations proposed by the State
regarding the education of children with
disabilities;
(c) Advise the SEA in developing
evaluations and reporting on data to the
Secretary under section 618 of the Act;
(d) Advise the SEA in developing
corrective action plans to address
findings identified in Federal
monitoring reports under Part B of the
Act; and
(e) Advise the SEA in developing and
implementing policies relating to the
coordination of services for children
with disabilities.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(21)(D))
Other Provisions Required for State
Eligibility
§ 300.170 Suspension and expulsion rates.
(a) General. The SEA must examine
data, including data disaggregated by
race and ethnicity, to determine if
significant discrepancies are occurring
in the rate of long-term suspensions and
expulsions of children with
disabilities—
(1) Among LEAs in the State; or
(2) Compared to the rates for
nondisabled children within those
agencies.
(b) Review and revision of policies. If
the discrepancies described in
paragraph (a) of this section are
occurring, the SEA must review and, if
appropriate, revise (or require the
affected State agency or LEA to revise)
its policies, procedures, and practices
relating to the development and
implementation of IEPs, the use of
positive behavioral interventions and
supports, and procedural safeguards, to
ensure that these policies, procedures,
and practices comply with the Act.
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(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(22))
§ 300.171 Annual description of use of
Part B funds.
(a) In order to receive a grant in any
fiscal year a State must annually
describe—
(1) How amounts retained for State
administration and State-level activities
under § 300.704 will be used to meet the
requirements of this part; and
(2) How those amounts will be
allocated among the activities described
in § 300.704 to meet State priorities
based on input from LEAs.
(b) If a State’s plans for use of its
funds under § 300.704 for the
forthcoming year do not change from
the prior year, the State may submit a
letter to that effect to meet the
requirement in paragraph (a) of this
section.
(c) The provisions of this section do
not apply to the Virgin Islands, Guam,
American Samoa, the Commonwealth of
the Northern Mariana Islands, and the
freely associated States.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1411(e)(5))
§ 300.172 Access to instructional
materials.
(a) General. The State must—
(1) Adopt the National Instructional
Materials Accessibility Standard
(NIMAS), published as appendix C to
part 300, for the purposes of providing
instructional materials to blind persons
or other persons with print disabilities,
in a timely manner after publication of
the NIMAS in the Federal Register on
July 19, 2006 (71 FR 41084); and
(2) Establish a State definition of
‘‘timely manner’’ for purposes of
paragraphs (b)(2) and (b)(3) of this
section if the State is not coordinating
with the National Instructional
Materials Access Center (NIMAC) or
(b)(3) and (c)(2) of this section if the
State is coordinating with the NIMAC.
(b) Rights and responsibilities of SEA.
(1) Nothing in this section shall be
construed to require any SEA to
coordinate with the NIMAC.
(2) If an SEA chooses not to
coordinate with the NIMAC, the SEA
must provide an assurance to the
Secretary that it will provide
instructional materials to blind persons
or other persons with print disabilities
in a timely manner.
(3) Nothing in this section relieves an
SEA of its responsibility to ensure that
children with disabilities who need
instructional materials in accessible
formats, but are not included under the
definition of blind or other persons with
print disabilities in § 300.172(e)(1)(i) or
who need materials that cannot be
produced from NIMAS files, receive
those instructional materials in a timely
manner.
(4) In order to meet its responsibility
under paragraphs (b)(2), (b)(3), and (c) of
this section to ensure that children with
disabilities who need instructional
materials in accessible formats are
provided those materials in a timely
manner, the SEA must ensure that all
public agencies take all reasonable steps
to provide instructional materials in
accessible formats to children with
disabilities who need those
instructional materials at the same time
as other children receive instructional
materials.
(c) Preparation and delivery of files. If
an SEA chooses to coordinate with the
NIMAC, as of December 3, 2006, the
SEA must—
(1) As part of any print instructional
materials adoption process,
procurement contract, or other practice
or instrument used for purchase of print
instructional materials, must enter into
a written contract with the publisher of
the print instructional materials to—
(i) Require the publisher to prepare
and, on or before delivery of the print
instructional materials, provide to
NIMAC electronic files containing the
contents of the print instructional
materials using the NIMAS; or
(ii) Purchase instructional materials
from the publisher that are produced in,
or may be rendered in, specialized
formats.
(2) Provide instructional materials to
blind persons or other persons with
print disabilities in a timely manner.
(d) Assistive technology. In carrying
out this section, the SEA, to the
maximum extent possible, must work
collaboratively with the State agency
responsible for assistive technology
programs.
(e) Definitions. (1) In this section and
§ 300.210—
(i) Blind persons or other persons with
print disabilities means children served
under this part who may qualify to
receive books and other publications
produced in specialized formats in
accordance with the Act entitled ‘‘An
Act to provide books for adult blind,’’
approved March 3, 1931, 2 U.S.C 135a;
(ii) National Instructional Materials
Access Center or NIMAC means the
center established pursuant to section
674(e) of the Act;
(iii) National Instructional Materials
Accessibility Standard or NIMAS has
the meaning given the term in section
674(e)(3)(B) of the Act;
(iv) Specialized formats has the
meaning given the term in section
674(e)(3)(D) of the Act.
(2) The definitions in paragraph (e)(1)
of this section apply to each State and
LEA, whether or not the State or LEA
chooses to coordinate with the NIMAC.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(23), 1474(e))
§ 300.173 Overidentification and
disproportionality.
The State must have in effect,
consistent with the purposes of this part
and with section 618(d) of the Act,
policies and procedures designed to
prevent the inappropriate
overidentification or disproportionate
representation by race and ethnicity of
children as children with disabilities,
including children with disabilities
with a particular impairment described
in § 300.8.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(24))
§ 300.174 Prohibition on mandatory
medication.
(a) General. The SEA must prohibit
State and LEA personnel from requiring
parents to obtain a prescription for
substances identified under schedules I,
II, III, IV, or V in section 202(c) of the
Controlled Substances Act (21 U.S.C.
812(c)) for a child as a condition of
attending school, receiving an
evaluation under §§ 300.300 through
300.311, or receiving services under this
part.
(b) Rule of construction. Nothing in
paragraph (a) of this section shall be
construed to create a Federal
prohibition against teachers and other
school personnel consulting or sharing
classroom-based observations with
parents or guardians regarding a
student’s academic and functional
performance, or behavior in the
classroom or school, or regarding the
need for evaluation for special
education or related services under
§ 300.111 (related to child find).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(25))
§ 300.175 SEA as provider of FAPE or
direct services.
If the SEA provides FAPE to children
with disabilities, or provides direct
services to these children, the agency—
(a) Must comply with any additional
requirements of §§ 300.201 and 300.202
and §§ 300.206 through 300.226 as if the
agency were an LEA; and
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(b) May use amounts that are
otherwise available to the agency under
Part B of the Act to serve those children
without regard to § 300.202(b) (relating
to excess costs).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(b))
§ 300.176 Exception for prior State plans.
(a) General. If a State has on file with
the Secretary policies and procedures
approved by the Secretary that
demonstrate that the State meets any
requirement of § 300.100, including any
policies and procedures filed under Part
B of the Act as in effect before,
December 3, 2004, the Secretary
considers the State to have met the
requirement for purposes of receiving a
grant under Part B of the Act.
(b) Modifications made by a State. (1)
Subject to paragraph (b)(2) of this
section, policies and procedures
submitted by a State in accordance with
this subpart remain in effect until the
State submits to the Secretary the
modifications that the State determines
necessary.
(2) The provisions of this subpart
apply to a modification to an
application to the same extent and in
the same manner that they apply to the
original plan.
(c) Modifications required by the
Secretary. The Secretary may require a
State to modify its policies and
procedures, but only to the extent
necessary to ensure the State’s
compliance with this part, if—
(1) After December 3, 2004, the
provisions of the Act or the regulations
in this part are amended;
(2) There is a new interpretation of
this Act by a Federal court or a State’s
highest court; or
(3) There is an official finding of
noncompliance with Federal law or
regulations.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(c)(2) and (3))
§ 300.177 States’ sovereign immunity.
(a) General. A State that accepts funds
under this part waives its immunity
under the 11th amendment to the
Constitution of the United States from
suit in Federal court for a violation of
this part.
(b) Remedies. In a suit against a State
for a violation of this part, remedies
(including remedies both at law and in
equity) are available for such a violation
in the suit against a public entity other
than a State.
(c) Effective date. Paragraphs (a) and
(b) of this section apply with respect to
violations that occur in whole or part
after the date of enactment of the
Education of the Handicapped Act
Amendments of 1990.
(Authority: 20 U.S.C. 1404)
Department Procedures
§ 300.178 Determination by the Secretary
that a State is eligible to receive a grant.
If the Secretary determines that a
State is eligible to receive a grant under
Part B of the Act, the Secretary notifies
the State of that determination.
(Authority: 20 U.S.C. 1412(d)(1))
§ 300.179 Notice and hearing before
determining that a State is not eligible to
receive a grant.
(a) General. (1) The Secretary does not
make a final determination that a State
is not eligible to receive a grant under
Part B of the Act until providing the
State—
(i) With reasonable notice; and
(ii) With an opportunity for a hearing.
(2) In implementing paragraph
(a)(1)(i) of this section, the Secretary
sends a written notice to the SEA by
certified mail with return receipt
requested.
(b) Content of notice. In the written
notice described in paragraph (a)(2) of
this section, the Secretary—
(1) States the basis on which the
Secretary proposes to make a final
determination that the State is not
eligible;
(2) May describe possible options for
resolving the issues;
(3) Advises the SEA that it may
request a hearing and that the request
for a hearing must be made not later
than 30 days after it receives the notice
of the proposed final determination that
the State is not eligible; and
(4) Provides the SEA with information
about the hearing procedures that will
be followed.
(Authority: 20 U.S.C. 1412(d)(2))
§ 300.180 Hearing official or panel.
(a) If the SEA requests a hearing, the
Secretary designates one or more
individuals, either from the Department
or elsewhere, not responsible for or
connected with the administration of
this program, to conduct a hearing.
(b) If more than one individual is
designated, the Secretary designates one
of those individuals as the Chief
Hearing Official of the Hearing Panel. If
one individual is designated, that
individual is the Hearing Official.
(Authority: 20 U.S.C. 1412(d)(2))
§ 300.181 Hearing procedures.
(a) As used in §§ 300.179 through
300.184 the term party or parties means
the following:
(1) An SEA that requests a hearing
regarding the proposed disapproval of
the State’s eligibility under this part.
(2) The Department official who
administers the program of financial
assistance under this part.
(3) A person, group or agency with an
interest in and having relevant
information about the case that has
applied for and been granted leave to
intervene by the Hearing Official or
Hearing Panel.
(b) Within 15 days after receiving a
request for a hearing, the Secretary
designates a Hearing Official or Hearing
Panel and notifies the parties.
(c) The Hearing Official or Hearing
Panel may regulate the course of
proceedings and the conduct of the
parties during the proceedings. The
Hearing Official or Hearing Panel takes
all steps necessary to conduct a fair and
impartial proceeding, to avoid delay,
and to maintain order, including the
following:
(1) The Hearing Official or Hearing
Panel may hold conferences or other
types of appropriate proceedings to
clarify, simplify, or define the issues or
to consider other matters that may aid
in the disposition of the case.
(2) The Hearing Official or Hearing
Panel may schedule a prehearing
conference with the Hearing Official or
Hearing Panel and the parties.
(3) Any party may request the Hearing
Official or Hearing Panel to schedule a
prehearing or other conference. The
Hearing Official or Hearing Panel
decides whether a conference is
necessary and notifies all parties.
(4) At a prehearing or other
conference, the Hearing Official or
Hearing Panel and the parties may
consider subjects such as—
(i) Narrowing and clarifying issues;
(ii) Assisting the parties in reaching
agreements and stipulations;
(iii) Clarifying the positions of the
parties;
(iv) Determining whether an
evidentiary hearing or oral argument
should be held; and
(v) Setting dates for—
(A) The exchange of written
documents;
(B) The receipt of comments from the
parties on the need for oral argument or
evidentiary hearing;
(C) Further proceedings before the
Hearing Official or Hearing Panel
(including an evidentiary hearing or oral
argument, if either is scheduled);
(D) Requesting the names of witnesses
each party wishes to present at an
evidentiary hearing and estimation of
time for each presentation; or
(E) Completion of the review and the
initial decision of the Hearing Official or
Hearing Panel.
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(5) A prehearing or other conference
held under paragraph (b)(4) of this
section may be conducted by telephone
conference call.
(6) At a prehearing or other
conference, the parties must be prepared
to discuss the subjects listed in
paragraph (b)(4) of this section.
(7) Following a prehearing or other
conference the Hearing Official or
Hearing Panel may issue a written
statement describing the issues raised,
the action taken, and the stipulations
and agreements reached by the parties.
(d) The Hearing Official or Hearing
Panel may require parties to state their
positions and to provide all or part of
the evidence in writing.
(e) The Hearing Official or Hearing
Panel may require parties to present
testimony through affidavits and to
conduct cross-examination through
interrogatories.
(f) The Hearing Official or Hearing
Panel may direct the parties to exchange
relevant documents or information and
lists of witnesses, and to send copies to
the Hearing Official or Panel.
(g) The Hearing Official or Hearing
Panel may receive, rule on, exclude, or
limit evidence at any stage of the
proceedings.
(h) The Hearing Official or Hearing
Panel may rule on motions and other
issues at any stage of the proceedings.
(i) The Hearing Official or Hearing
Panel may examine witnesses.
(j) The Hearing Official or Hearing
Panel may set reasonable time limits for
submission of written documents.
(k) The Hearing Official or Hearing
Panel may refuse to consider documents
or other submissions if they are not
submitted in a timely manner unless
good cause is shown.
(l) The Hearing Official or Hearing
Panel may interpret applicable statutes
and regulations but may not waive them
or rule on their validity.
(m)(1) The parties must present their
positions through briefs and the
submission of other documents and may
request an oral argument or evidentiary
hearing. The Hearing Official or Hearing
Panel shall determine whether an oral
argument or an evidentiary hearing is
needed to clarify the positions of the
parties.
(2) The Hearing Official or Hearing
Panel gives each party an opportunity to
be represented by counsel.
(n) If the Hearing Official or Hearing
Panel determines that an evidentiary
hearing would materially assist the
resolution of the matter, the Hearing
Official or Hearing Panel gives each
party, in addition to the opportunity to
be represented by counsel—
(1) An opportunity to present
witnesses on the party’s behalf; and
(2) An opportunity to cross-examine
witnesses either orally or with written
questions.
(o) The Hearing Official or Hearing
Panel accepts any evidence that it finds
is relevant and material to the
proceedings and is not unduly
repetitious.
(p)(1) The Hearing Official or Hearing
Panel—
(i) Arranges for the preparation of a
transcript of each hearing;
(ii) Retains the original transcript as
part of the record of the hearing; and
(iii) Provides one copy of the
transcript to each party.
(2) Additional copies of the transcript
are available on request and with
payment of the reproduction fee.
(q) Each party must file with the
Hearing Official or Hearing Panel all
written motions, briefs, and other
documents and must at the same time
provide a copy to the other parties to the
proceedings.
(Authority: 20 U.S.C. 1412(d)(2))
§ 300.182 Initial decision; final decision.
(a) The Hearing Official or Hearing
Panel prepares an initial written
decision that addresses each of the
points in the notice sent by the
Secretary to the SEA under § 300.179
including any amendments to or further
clarifications of the issues, under
§ 300.181(c)(7).
(b) The initial decision of a Hearing
Panel is made by a majority of Panel
members.
(c) The Hearing Official or Hearing
Panel mails, by certified mail with
return receipt requested, a copy of the
initial decision to each party (or to the
party’s counsel) and to the Secretary,
with a notice stating that each party has
an opportunity to submit written
comments regarding the decision to the
Secretary.
(d) Each party may file comments and
recommendations on the initial decision
with the Hearing Official or Hearing
Panel within 15 days of the date the
party receives the Panel’s decision.
(e) The Hearing Official or Hearing
Panel sends a copy of a party’s initial
comments and recommendations to the
other parties by certified mail with
return receipt requested. Each party may
file responsive comments and
recommendations with the Hearing
Official or Hearing Panel within seven
days of the date the party receives the
initial comments and recommendations.
(f) The Hearing Official or Hearing
Panel forwards the parties’ initial and
responsive comments on the initial
decision to the Secretary who reviews
the initial decision and issues a final
decision.
(g) The initial decision of the Hearing
Official or Hearing Panel becomes the
final decision of the Secretary unless,
within 25 days after the end of the time
for receipt of written comments and
recommendations, the Secretary informs
the Hearing Official or Hearing Panel
and the parties to a hearing in writing
that the decision is being further
reviewed for possible modification.
(h) The Secretary rejects or modifies
the initial decision of the Hearing
Official or Hearing Panel if the Secretary
finds that it is clearly erroneous.
(i) The Secretary conducts the review
based on the initial decision, the written
record, the transcript of the Hearing
Official’s or Hearing Panel’s
proceedings, and written comments.
(j) The Secretary may remand the
matter to the Hearing Official or Hearing
Panel for further proceedings.
(k) Unless the Secretary remands the
matter as provided in paragraph (j) of
this section, the Secretary issues the
final decision, with any necessary
modifications, within 30 days after
notifying the Hearing Official or Hearing
Panel that the initial decision is being
further reviewed.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(d)(2))
§ 300.183 Filing requirements.
(a) Any written submission by a party
under §§ 300.179 through 300.184 must
be filed by hand delivery, by mail, or by
facsimile transmission. The Secretary
discourages the use of facsimile
transmission for documents longer than
five pages.
(b) The filing date under paragraph (a)
of this section is the date the document
is—
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile
transmission is responsible for
confirming that a complete and legible
copy of the document was received by
the Department.
(d) If a document is filed by facsimile
transmission, the Secretary, the Hearing
Official, or the Hearing Panel, as
applicable, may require the filing of a
follow-up hard copy by hand delivery or
by mail within a reasonable period of
time.
(e) If agreed upon by the parties,
service of a document may be made
upon the other party by facsimile
transmission.
(Authority: 20 U.S.C. 1412(d))
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§ 300.184 Judicial review.
If a State is dissatisfied with the
Secretary’s final decision with respect to
the eligibility of the State under section
612 of the Act, the State may, not later
than 60 days after notice of that
decision, file with the United States
Court of Appeals for the circuit in
which that State is located a petition for
review of that decision. A copy of the
petition must be transmitted by the
clerk of the court to the Secretary. The
Secretary then files in the court the
record of the proceedings upon which
the Secretary’s decision was based, as
provided in 28 U.S.C. 2112.
(Authority: 20 U.S.C. 1416(e)(8))
§ 300.185 [Reserved]
§ 300.186 Assistance under other Federal
programs.
Part B of the Act may not be
construed to permit a State to reduce
medical and other assistance available,
or to alter eligibility, under titles V and
XIX of the Social Security Act with
respect to the provision of FAPE for
children with disabilities in the State.
(Authority: 20 U.S.C. 1412(e))
By-pass for Children in Private Schools
§ 300.190 By-pass—general.
(a) If, on December 2, 1983, the date
of enactment of the Education of the
Handicapped Act Amendments of 1983,
an SEA was prohibited by law from
providing for the equitable participation
in special programs of children with
disabilities enrolled in private
elementary schools and secondary
schools as required by section
612(a)(10)(A) of the Act, or if the
Secretary determines that an SEA, LEA,
or other public agency has substantially
failed or is unwilling to provide for such
equitable participation then the
Secretary shall, notwithstanding such
provision of law, arrange for the
provision of services to these children
through arrangements which shall be
subject to the requirements of section
612(a)(10)(A) of the Act.
(b) The Secretary waives the
requirement of section 612(a)(10)(A) of
the Act and of §§ 300.131 through
300.144 if the Secretary implements a
by-pass.
(Authority: 20 U.S.C. 1412(f)(1))
§ 300.191 Provisions for services under a
by-pass.
(a) Before implementing a by-pass, the
Secretary consults with appropriate
public and private school officials,
including SEA officials, in the affected
State, and as appropriate, LEA or other
public agency officials to consider
matters such as—
(1) Any prohibition imposed by State
law that results in the need for a by-
pass; and
(2) The scope and nature of the
services required by private school
children with disabilities in the State,
and the number of children to be served
under the by-pass.
(b) After determining that a by-pass is
required, the Secretary arranges for the
provision of services to private school
children with disabilities in the State,
LEA or other public agency in a manner
consistent with the requirements of
section 612(a)(10)(A) of the Act and
§§ 300.131 through 300.144 by
providing services through one or more
agreements with appropriate parties.
(c) For any fiscal year that a by-pass
is implemented, the Secretary
determines the maximum amount to be
paid to the providers of services by
multiplying—
(1) A per child amount determined by
dividing the total amount received by
the State under Part B of the Act for the
fiscal year by the number of children
with disabilities served in the prior year
as reported to the Secretary under
section 618 of the Act; by
(2) The number of private school
children with disabilities (as defined in
§§ 300.8(a) and 300.130) in the State,
LEA or other public agency, as
determined by the Secretary on the basis
of the most recent satisfactory data
available, which may include an
estimate of the number of those children
with disabilities.
(d) The Secretary deducts from the
State’s allocation under Part B of the Act
the amount the Secretary determines is
necessary to implement a by-pass and
pays that amount to the provider of
services. The Secretary may withhold
this amount from the State’s allocation
pending final resolution of any
investigation or complaint that could
result in a determination that a by-pass
must be implemented.
(Authority: 20 U.S.C. 1412(f)(2))
§ 300.192 Notice of intent to implement a
by-pass.
(a) Before taking any final action to
implement a by-pass, the Secretary
provides the SEA and, as appropriate,
LEA or other public agency with written
notice.
(b) In the written notice, the
Secretary—
(1) States the reasons for the proposed
by-pass in sufficient detail to allow the
SEA and, as appropriate, LEA or other
public agency to respond; and
(2) Advises the SEA and, as
appropriate, LEA or other public agency
that it has a specific period of time (at
least 45 days) from receipt of the written
notice to submit written objections to
the proposed by-pass and that it may
request in writing the opportunity for a
hearing to show cause why a by-pass
should not be implemented.
(c) The Secretary sends the notice to
the SEA and, as appropriate, LEA or
other public agency by certified mail
with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3)(A))
§ 300.193 Request to show cause.
An SEA, LEA or other public agency
in receipt of a notice under § 300.192
that seeks an opportunity to show cause
why a by-pass should not be
implemented must submit a written
request for a show cause hearing to the
Secretary, within the specified time
period in the written notice in
§ 300.192(b)(2).
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.194 Show cause hearing.
(a) If a show cause hearing is
requested, the Secretary—
(1) Notifies the SEA and affected LEA
or other public agency, and other
appropriate public and private school
officials of the time and place for the
hearing;
(2) Designates a person to conduct the
show cause hearing. The designee must
not have had any responsibility for the
matter brought for a hearing; and
(3) Notifies the SEA, LEA or other
public agency, and representatives of
private schools that they may be
represented by legal counsel and submit
oral or written evidence and arguments
at the hearing.
(b) At the show cause hearing, the
designee considers matters such as—
(1) The necessity for implementing a
by-pass;
(2) Possible factual errors in the
written notice of intent to implement a
by-pass; and
(3) The objections raised by public
and private school representatives.
(c) The designee may regulate the
course of the proceedings and the
conduct of parties during the pendency
of the proceedings. The designee takes
all steps necessary to conduct a fair and
impartial proceeding, to avoid delay,
and to maintain order.
(d) The designee has no authority to
require or conduct discovery.
(e) The designee may interpret
applicable statutes and regulations, but
may not waive them or rule on their
validity.
(f) The designee arranges for the
preparation, retention, and, if
appropriate, dissemination of the record
of the hearing.
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(g) Within 10 days after the hearing,
the designee—
(1) Indicates that a decision will be
issued on the basis of the existing
record; or
(2) Requests further information from
the SEA, LEA, other public agency,
representatives of private schools or
Department officials.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.195 Decision.
(a) The designee who conducts the
show cause hearing—
(1) Within 120 days after the record of
a show cause hearing is closed, issues
a written decision that includes a
statement of findings; and
(2) Submits a copy of the decision to
the Secretary and sends a copy to each
party by certified mail with return
receipt requested.
(b) Each party may submit comments
and recommendations on the designee’s
decision to the Secretary within 30 days
of the date the party receives the
designee’s decision.
(c) The Secretary adopts, reverses, or
modifies the designee’s decision and
notifies all parties to the show cause
hearing of the Secretary’s final action.
That notice is sent by certified mail with
return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.196 Filing requirements.
(a) Any written submission under
§ 300.194 must be filed by hand-
delivery, by mail, or by facsimile
transmission. The Secretary discourages
the use of facsimile transmission for
documents longer than five pages.
(b) The filing date under paragraph (a)
of this section is the date the document
is—
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile
transmission is responsible for
confirming that a complete and legible
copy of the document was received by
the Department.
(d) If a document is filed by facsimile
transmission, the Secretary or the
hearing officer, as applicable, may
require the filing of a follow-up hard
copy by hand-delivery or by mail within
a reasonable period of time.
(e) If agreed upon by the parties,
service of a document may be made
upon the other party by facsimile
transmission.
(f) A party must show a proof of
mailing to establish the filing date under
paragraph (b)(2) of this section as
provided in 34 CFR 75.102(d).
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.197 Judicial review.
If dissatisfied with the Secretary’s
final action, the SEA may, within 60
days after notice of that action, file a
petition for review with the United
States Court of Appeals for the circuit in
which the State is located. The
procedures for judicial review are
described in section 612(f)(3) (B)
through (D) of the Act.
(Authority: 20 U.S.C. 1412(f)(3)(B)–(D))
§ 300.198 Continuation of a by-pass.
The Secretary continues a by-pass
until the Secretary determines that the
SEA, LEA or other public agency will
meet the requirements for providing
services to private school children.
(Authority: 20 U.S.C. 1412(f)(2)(C))
State Administration
§ 300.199 State administration.
(a) Rulemaking. Each State that
receives funds under Part B of the Act
must—
(1) Ensure that any State rules,
regulations, and policies relating to this
part conform to the purposes of this
part;
(2) Identify in writing to LEAs located
in the State and the Secretary any such
rule, regulation, or policy as a State-
imposed requirement that is not
required by Part B of the Act and
Federal regulations; and
(3) Minimize the number of rules,
regulations, and policies to which the
LEAs and schools located in the State
are subject under Part B of the Act.
(b) Support and facilitation. State
rules, regulations, and policies under
Part B of the Act must support and
facilitate LEA and school-level system
improvement designed to enable
children with disabilities to meet the
challenging State student academic
achievement standards.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1407)
Subpart C—Local Educational Agency
Eligibility
§ 300.200 Condition of assistance.
An LEA is eligible for assistance
under Part B of the Act for a fiscal year
if the agency submits a plan that
provides assurances to the SEA that the
LEA meets each of the conditions in
§§ 300.201 through 300.213.
(Authority: 20 U.S.C. 1413(a))
§ 300.201 Consistency with State policies.
The LEA, in providing for the
education of children with disabilities
within its jurisdiction, must have in
effect policies, procedures, and
programs that are consistent with the
State policies and procedures
established under §§ 300.101 through
300.163, and §§ 300.165 through
300.174.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(1))
§ 300.202 Use of amounts.
(a) General. Amounts provided to the
LEA under Part B of the Act—
(1) Must be expended in accordance
with the applicable provisions of this
part;
(2) Must be used only to pay the
excess costs of providing special
education and related services to
children with disabilities, consistent
with paragraph (b) of this section; and
(3) Must be used to supplement State,
local, and other Federal funds and not
to supplant those funds.
(b) Excess cost requirement—(1)
General. (i) The excess cost requirement
prevents an LEA from using funds
provided under Part B of the Act to pay
for all of the costs directly attributable
to the education of a child with a
disability, subject to paragraph (b)(1)(ii)
of this section.
(ii) The excess cost requirement does
not prevent an LEA from using Part B
funds to pay for all of the costs directly
attributable to the education of a child
with a disability in any of the ages 3, 4,
5, 18, 19, 20, or 21, if no local or State
funds are available for nondisabled
children of these ages. However, the
LEA must comply with the
nonsupplanting and other requirements
of this part in providing the education
and services for these children.
(2)(i) An LEA meets the excess cost
requirement if it has spent at least a
minimum average amount for the
education of its children with
disabilities before funds under Part B of
the Act are used.
(ii) The amount described in
paragraph (b)(2)(i) of this section is
determined in accordance with the
definition of excess costs in § 300.16.
That amount may not include capital
outlay or debt service.
(3) If two or more LEAs jointly
establish eligibility in accordance with
§ 300.223, the minimum average amount
is the average of the combined
minimum average amounts determined
in accordance with the definition of
excess costs in § 300.16 in those
agencies for elementary or secondary
school students, as the case may be.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(A))
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§ 300.203 Maintenance of effort.
(a) General. Except as provided in
§§ 300.204 and 300.205, funds provided
to an LEA under Part B of the Act must
not be used to reduce the level of
expenditures for the education of
children with disabilities made by the
LEA from local funds below the level of
those expenditures for the preceding
fiscal year.
(b) Standard. (1) Except as provided
in paragraph (b)(2) of this section, the
SEA must determine that an LEA
complies with paragraph (a) of this
section for purposes of establishing the
LEA’s eligibility for an award for a fiscal
year if the LEA budgets, for the
education of children with disabilities,
at least the same total or per capita
amount from either of the following
sources as the LEA spent for that
purpose from the same source for the
most recent prior year for which
information is available:
(i) Local funds only.
(ii) The combination of State and local
funds.
(2) An LEA that relies on paragraph
(b)(1)(i) of this section for any fiscal year
must ensure that the amount of local
funds it budgets for the education of
children with disabilities in that year is
at least the same, either in total or per
capita, as the amount it spent for that
purpose in the most recent fiscal year
for which information is available and
the standard in paragraph (b)(1)(i) of
this section was used to establish its
compliance with this section.
(3) The SEA may not consider any
expenditures made from funds provided
by the Federal Government for which
the SEA is required to account to the
Federal Government or for which the
LEA is required to account to the
Federal Government directly or through
the SEA in determining an LEA’s
compliance with the requirement in
paragraph (a) of this section.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(A))
§ 300.204 Exception to maintenance of
effort.
Notwithstanding the restriction in
§ 300.203(a), an LEA may reduce the
level of expenditures by the LEA under
Part B of the Act below the level of
those expenditures for the preceding
fiscal year if the reduction is attributable
to any of the following:
(a) The voluntary departure, by
retirement or otherwise, or departure for
just cause, of special education or
related services personnel.
(b) A decrease in the enrollment of
children with disabilities.
(c) The termination of the obligation
of the agency, consistent with this part,
to provide a program of special
education to a particular child with a
disability that is an exceptionally costly
program, as determined by the SEA,
because the child—
(1) Has left the jurisdiction of the
agency;
(2) Has reached the age at which the
obligation of the agency to provide
FAPE to the child has terminated; or
(3) No longer needs the program of
special education.
(d) The termination of costly
expenditures for long-term purchases,
such as the acquisition of equipment or
the construction of school facilities.
(e) The assumption of cost by the high
cost fund operated by the SEA under
§ 300.704(c).
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(B))
§ 300.205 Adjustment to local fiscal efforts
in certain fiscal years.
(a) Amounts in excess.
Notwithstanding § 300.202(a)(2) and (b)
and § 300.203(a), and except as
provided in paragraph (d) of this section
and § 300.230(e)(2), for any fiscal year
for which the allocation received by an
LEA under § 300.705 exceeds the
amount the LEA received for the
previous fiscal year, the LEA may
reduce the level of expenditures
otherwise required by § 300.203(a) by
not more than 50 percent of the amount
of that excess.
(b) Use of amounts to carry out
activities under ESEA. If an LEA
exercises the authority under paragraph
(a) of this section, the LEA must use an
amount of local funds equal to the
reduction in expenditures under
paragraph (a) of this section to carry out
activities that could be supported with
funds under the ESEA regardless of
whether the LEA is using funds under
the ESEA for those activities.
(c) State prohibition. Notwithstanding
paragraph (a) of this section, if an SEA
determines that an LEA is unable to
establish and maintain programs of
FAPE that meet the requirements of
section 613(a) of the Act and this part
or the SEA has taken action against the
LEA under section 616 of the Act and
subpart F of these regulations, the SEA
must prohibit the LEA from reducing
the level of expenditures under
paragraph (a) of this section for that
fiscal year.
(d) Special rule. The amount of funds
expended by an LEA for early
intervening services under § 300.226
shall count toward the maximum
amount of expenditures that the LEA
may reduce under paragraph (a) of this
section.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(C))
§ 300.206 Schoolwide programs under title
I of the ESEA.
(a) General. Notwithstanding the
provisions of §§ 300.202 and 300.203 or
any other provision of Part B of the Act,
an LEA may use funds received under
Part B of the Act for any fiscal year to
carry out a schoolwide program under
section 1114 of the ESEA, except that
the amount used in any schoolwide
program may not exceed—
(1)(i) The amount received by the LEA
under Part B of the Act for that fiscal
year; divided by
(ii) The number of children with
disabilities in the jurisdiction of the
LEA; and multiplied by
(2) The number of children with
disabilities participating in the
schoolwide program.
(b) Funding conditions. The funds
described in paragraph (a) of this
section are subject to the following
conditions:
(1) The funds must be considered as
Federal Part B funds for purposes of the
calculations required by § 300.202(a)(2)
and (a)(3).
(2) The funds may be used without
regard to the requirements of
§ 300.202(a)(1).
(c) Meeting other Part B requirements.
Except as provided in paragraph (b) of
this section, all other requirements of
Part B of the Act must be met by an LEA
using Part B funds in accordance with
paragraph (a) of this section, including
ensuring that children with disabilities
in schoolwide program schools—
(1) Receive services in accordance
with a properly developed IEP; and
(2) Are afforded all of the rights and
services guaranteed to children with
disabilities under the Act.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(D))
§ 300.207 Personnel development.
The LEA must ensure that all
personnel necessary to carry out Part B
of the Act are appropriately and
adequately prepared, subject to the
requirements of § 300.156 (related to
personnel qualifications) and section
2122 of the ESEA.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(3))
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§ 300.208 Permissive use of funds.
(a) Uses. Notwithstanding §§ 300.202,
300.203(a), and 300.162(b), funds
provided to an LEA under Part B of the
Act may be used for the following
activities:
(1) Services and aids that also benefit
nondisabled children. For the costs of
special education and related services,
and supplementary aids and services,
provided in a regular class or other
education-related setting to a child with
a disability in accordance with the IEP
of the child, even if one or more
nondisabled children benefit from these
services.
(2) Early intervening services. To
develop and implement coordinated,
early intervening educational services in
accordance with § 300.226.
(3) High cost special education and
related services. To establish and
implement cost or risk sharing funds,
consortia, or cooperatives for the LEA
itself, or for LEAs working in a
consortium of which the LEA is a part,
to pay for high cost special education
and related services.
(b) Administrative case management.
An LEA may use funds received under
Part B of the Act to purchase
appropriate technology for
recordkeeping, data collection, and
related case management activities of
teachers and related services personnel
providing services described in the IEP
of children with disabilities, that is
needed for the implementation of those
case management activities.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(4))
§ 300.209 Treatment of charter schools
and their students.
(a) Rights of children with disabilities.
Children with disabilities who attend
public charter schools and their parents
retain all rights under this part.
(b) Charter schools that are public
schools of the LEA. (1) In carrying out
Part B of the Act and these regulations
with respect to charter schools that are
public schools of the LEA, the LEA
must—
(i) Serve children with disabilities
attending those charter schools in the
same manner as the LEA serves children
with disabilities in its other schools,
including providing supplementary and
related services on site at the charter
school to the same extent to which the
LEA has a policy or practice of
providing such services on the site to its
other public schools; and
(ii) Provide funds under Part B of the
Act to those charter schools—
(A) On the same basis as the LEA
provides funds to the LEA’s other public
schools, including proportional
distribution based on relative
enrollment of children with disabilities;
and
(B) At the same time as the LEA
distributes other Federal funds to the
LEA’s other public schools, consistent
with the State’s charter school law.
(2) If the public charter school is a
school of an LEA that receives funding
under § 300.705 and includes other
public schools—
(i) The LEA is responsible for
ensuring that the requirements of this
part are met, unless State law assigns
that responsibility to some other entity;
and
(ii) The LEA must meet the
requirements of paragraph (b)(1) of this
section.
(c) Public charter schools that are
LEAs. If the public charter school is an
LEA, consistent with § 300.28, that
receives funding under § 300.705, that
charter school is responsible for
ensuring that the requirements of this
part are met, unless State law assigns
that responsibility to some other entity.
(d) Public charter schools that are not
an LEA or a school that is part of an
LEA. (1) If the public charter school is
not an LEA receiving funding under
§ 300.705, or a school that is part of an
LEA receiving funding under § 300.705,
the SEA is responsible for ensuring that
the requirements of this part are met.
(2) Paragraph (d)(1) of this section
does not preclude a State from assigning
initial responsibility for ensuring the
requirements of this part are met to
another entity. However, the SEA must
maintain the ultimate responsibility for
ensuring compliance with this part,
consistent with § 300.149.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(5))
§ 300.210 Purchase of instructional
materials.
(a) General. Not later than December
3, 2006, an LEA that chooses to
coordinate with the National
Instructional Materials Access Center
(NIMAC), when purchasing print
instructional materials, must acquire
those instructional materials in the same
manner, and subject to the same
conditions as an SEA under § 300.172.
(b) Rights of LEA. (1) Nothing in this
section shall be construed to require an
LEA to coordinate with the NIMAC.
(2) If an LEA chooses not to
coordinate with the NIMAC, the LEA
must provide an assurance to the SEA
that the LEA will provide instructional
materials to blind persons or other
persons with print disabilities in a
timely manner.
(3) Nothing in this section relieves an
LEA of its responsibility to ensure that
children with disabilities who need
instructional materials in accessible
formats but are not included under the
definition of blind or other persons with
print disabilities in § 300.172(e)(1)(i) or
who need materials that cannot be
produced from NIMAS files, receive
those instructional materials in a timely
manner.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(6))
§ 300.211 Information for SEA.
The LEA must provide the SEA with
information necessary to enable the SEA
to carry out its duties under Part B of
the Act, including, with respect to
§§ 300.157 and 300.160, information
relating to the performance of children
with disabilities participating in
programs carried out under Part B of the
Act.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(7))
§ 0.212 Public information.
The LEA must make available to
parents of children with disabilities and
to the general public all documents
relating to the eligibility of the agency
under Part B of the Act.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(8))
§ 300.213 Records regarding migratory
children with disabilities.
The LEA must cooperate in the
Secretary’s efforts under section 1308 of
the ESEA to ensure the linkage of
records pertaining to migratory children
with disabilities for the purpose of
electronically exchanging, among the
States, health and educational
information regarding those children.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(9))
§§ 300.214–300.219 [Reserved]
§ 300.220 Exception for prior local plans.
(a) General. If an LEA or a State
agency described in § 300.228 has on
file with the SEA policies and
procedures that demonstrate that the
LEA or State agency meets any
requirement of § 300.200, including any
policies and procedures filed under Part
B of the Act as in effect before December
3, 2004, the SEA must consider the LEA
or State agency to have met that
requirement for purposes of receiving
assistance under Part B of the Act.
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(b) Modification made by an LEA or
State agency. Subject to paragraph (c) of
this section, policies and procedures
submitted by an LEA or a State agency
in accordance with this subpart remain
in effect until the LEA or State agency
submits to the SEA the modifications
that the LEA or State agency determines
are necessary.
(c) Modifications required by the SEA.
The SEA may require an LEA or a State
agency to modify its policies and
procedures, but only to the extent
necessary to ensure the LEA’s or State
agency’s compliance with Part B of the
Act or State law, if—
(1) After December 3, 2004, the
effective date of the Individuals with
Disabilities Education Improvement Act
of 2004, the applicable provisions of the
Act (or the regulations developed to
carry out the Act) are amended;
(2) There is a new interpretation of an
applicable provision of the Act by
Federal or State courts; or
(3) There is an official finding of
noncompliance with Federal or State
law or regulations.
(Authority: 20 U.S.C. 1413(b))
§ 300.221 Notification of LEA or State
agency in case of ineligibility.
If the SEA determines that an LEA or
State agency is not eligible under Part B
of the Act, then the SEA must—
(a) Notify the LEA or State agency of
that determination; and
(b) Provide the LEA or State agency
with reasonable notice and an
opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))
§ 300.222 LEA and State agency
compliance.
(a) General. If the SEA, after
reasonable notice and an opportunity
for a hearing, finds that an LEA or State
agency that has been determined to be
eligible under this subpart is failing to
comply with any requirement described
in §§ 300.201 through 300.213, the SEA
must reduce or must not provide any
further payments to the LEA or State
agency until the SEA is satisfied that the
LEA or State agency is complying with
that requirement.
(b) Notice requirement. Any State
agency or LEA in receipt of a notice
described in paragraph (a) of this
section must, by means of public notice,
take the measures necessary to bring the
pendency of an action pursuant to this
section to the attention of the public
within the jurisdiction of the agency.
(c) Consideration. In carrying out its
responsibilities under this section, each
SEA must consider any decision
resulting from a hearing held under
§§ 300.511 through 300.533 that is
adverse to the LEA or State agency
involved in the decision.
(Authority: 20 U.S.C. 1413(d))
§ 300.223 Joint establishment of eligibility.
(a) General. An SEA may require an
LEA to establish its eligibility jointly
with another LEA if the SEA determines
that the LEA will be ineligible under
this subpart because the agency will not
be able to establish and maintain
programs of sufficient size and scope to
effectively meet the needs of children
with disabilities.
(b) Charter school exception. An SEA
may not require a charter school that is
an LEA to jointly establish its eligibility
under paragraph (a) of this section
unless the charter school is explicitly
permitted to do so under the State’s
charter school statute.
(c) Amount of payments. If an SEA
requires the joint establishment of
eligibility under paragraph (a) of this
section, the total amount of funds made
available to the affected LEAs must be
equal to the sum of the payments that
each LEA would have received under
§ 300.705 if the agencies were eligible
for those payments.
(Authority: 20 U.S.C. 1413(e)(1) and (2))
§ 300.224 Requirements for establishing
eligibility.
(a) Requirements for LEAs in general.
LEAs that establish joint eligibility
under this section must—
(1) Adopt policies and procedures
that are consistent with the State’s
policies and procedures under
§§ 300.101 through 300.163, and
§§ 300.165 through 300.174; and
(2) Be jointly responsible for
implementing programs that receive
assistance under Part B of the Act.
(b) Requirements for educational
service agencies in general. If an
educational service agency is required
by State law to carry out programs
under Part B of the Act, the joint
responsibilities given to LEAs under
Part B of the Act—
(1) Do not apply to the administration
and disbursement of any payments
received by that educational service
agency; and
(2) Must be carried out only by that
educational service agency.
(c) Additional requirement.
Notwithstanding any other provision of
§§ 300.223 through 300.224, an
educational service agency must
provide for the education of children
with disabilities in the least restrictive
environment, as required by § 300.112.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(e)(3) and (4))
§ 300.225 [Reserved]
§ 300.226 Early intervening services.
(a) General. An LEA may not use more
than 15 percent of the amount the LEA
receives under Part B of the Act for any
fiscal year, less any amount reduced by
the LEA pursuant to § 300.205, if any, in
combination with other amounts (which
may include amounts other than
education funds), to develop and
implement coordinated, early
intervening services, which may include
interagency financing structures, for
students in kindergarten through grade
12 (with a particular emphasis on
students in kindergarten through grade
three) who are not currently identified
as needing special education or related
services, but who need additional
academic and behavioral support to
succeed in a general education
environment. (See Appendix D for
examples of how § 300.205(d), regarding
local maintenance of effort, and
§ 300.226(a) affect one another.)
(b) Activities. In implementing
coordinated, early intervening services
under this section, an LEA may carry
out activities that include—
(1) Professional development (which
may be provided by entities other than
LEAs) for teachers and other school staff
to enable such personnel to deliver
scientifically based academic and
behavioral interventions, including
scientifically based literacy instruction,
and, where appropriate, instruction on
the use of adaptive and instructional
software; and
(2) Providing educational and
behavioral evaluations, services, and
supports, including scientifically based
literacy instruction.
(c) Construction. Nothing in this
section shall be construed to either limit
or create a right to FAPE under Part B
of the Act or to delay appropriate
evaluation of a child suspected of
having a disability.
(d) Reporting. Each LEA that develops
and maintains coordinated, early
intervening services under this section
must annually report to the SEA on—
(1) The number of children served
under this section who received early
intervening services; and
(2) The number of children served
under this section who received early
intervening services and subsequently
receive special education and related
services under Part B of the Act during
the preceding two year period.
(e) Coordination with ESEA. Funds
made available to carry out this section
may be used to carry out coordinated,
early intervening services aligned with
activities funded by, and carried out
under the ESEA if those funds are used
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to supplement, and not supplant, funds
made available under the ESEA for the
activities and services assisted under
this section.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(f))
§ 300.227 Direct services by the SEA.
(a) General. (1) An SEA must use the
payments that would otherwise have
been available to an LEA or to a State
agency to provide special education and
related services directly to children with
disabilities residing in the area served
by that LEA, or for whom that State
agency is responsible, if the SEA
determines that the LEA or State
agency—
(i) Has not provided the information
needed to establish the eligibility of the
LEA or State agency, or elected not to
apply for its Part B allotment, under Part
B of the Act;
(ii) Is unable to establish and maintain
programs of FAPE that meet the
requirements of this part;
(iii) Is unable or unwilling to be
consolidated with one or more LEAs in
order to establish and maintain the
programs; or
(iv) Has one or more children with
disabilities who can best be served by a
regional or State program or service
delivery system designed to meet the
needs of these children.
(2) SEA administrative procedures. (i)
In meeting the requirements in
paragraph (a)(1) of this section, the SEA
may provide special education and
related services directly, by contract, or
through other arrangements.
(ii) The excess cost requirements of
§ 300.202(b) do not apply to the SEA.
(b) Manner and location of education
and services. The SEA may provide
special education and related services
under paragraph (a) of this section in
the manner and at the locations
(including regional or State centers) as
the SEA considers appropriate. The
education and services must be
provided in accordance with this part.
(Authority: 20 U.S.C. 1413(g))
§ 300.228 State agency eligibility.
Any State agency that desires to
receive a subgrant for any fiscal year
under § 300.705 must demonstrate to
the satisfaction of the SEA that—
(a) All children with disabilities who
are participating in programs and
projects funded under Part B of the Act
receive FAPE, and that those children
and their parents are provided all the
rights and procedural safeguards
described in this part; and
(b) The agency meets the other
conditions of this subpart that apply to
LEAs.
(Authority: 20 U.S.C. 1413(h))
§ 300.229 Disciplinary information.
(a) The State may require that a public
agency include in the records of a child
with a disability a statement of any
current or previous disciplinary action
that has been taken against the child
and transmit the statement to the same
extent that the disciplinary information
is included in, and transmitted with, the
student records of nondisabled children.
(b) The statement may include a
description of any behavior engaged in
by the child that required disciplinary
action, a description of the disciplinary
action taken, and any other information
that is relevant to the safety of the child
and other individuals involved with the
child.
(c) If the State adopts such a policy,
and the child transfers from one school
to another, the transmission of any of
the child’s records must include both
the child’s current IEP and any
statement of current or previous
disciplinary action that has been taken
against the child.
(Authority: 20 U.S.C. 1413(i))
§ 300.230 SEA flexibility.
(a) Adjustment to State fiscal effort in
certain fiscal years. For any fiscal year
for which the allotment received by a
State under § 300.703 exceeds the
amount the State received for the
previous fiscal year and if the State in
school year 2003–2004 or any
subsequent school year pays or
reimburses all LEAs within the State
from State revenue 100 percent of the
non-Federal share of the costs of special
education and related services, the SEA,
notwithstanding §§ 300.162 through
300.163 (related to State-level
nonsupplanting and maintenance of
effort), and § 300.175 (related to direct
services by the SEA) may reduce the
level of expenditures from State sources
for the education of children with
disabilities by not more than 50 percent
of the amount of such excess.
(b) Prohibition. Notwithstanding
paragraph (a) of this section, if the
Secretary determines that an SEA is
unable to establish, maintain, or oversee
programs of FAPE that meet the
requirements of this part, or that the
State needs assistance, intervention, or
substantial intervention under
§ 300.603, the Secretary prohibits the
SEA from exercising the authority in
paragraph (a) of this section.
(c) Education activities. If an SEA
exercises the authority under paragraph
(a) of this section, the agency must use
funds from State sources, in an amount
equal to the amount of the reduction
under paragraph (a) of this section, to
support activities authorized under the
ESEA, or to support need-based student
or teacher higher education programs.
(d) Report. For each fiscal year for
which an SEA exercises the authority
under paragraph (a) of this section, the
SEA must report to the Secretary—
(1) The amount of expenditures
reduced pursuant to that paragraph; and
(2) The activities that were funded
pursuant to paragraph (c) of this section.
(e) Limitation. (1) Notwithstanding
paragraph (a) of this section, an SEA
may not reduce the level of
expenditures described in paragraph (a)
of this section if any LEA in the State
would, as a result of such reduction,
receive less than 100 percent of the
amount necessary to ensure that all
children with disabilities served by the
LEA receive FAPE from the combination
of Federal funds received under Part B
of the Act and State funds received from
the SEA.
(2) If an SEA exercises the authority
under paragraph (a) of this section,
LEAs in the State may not reduce local
effort under § 300.205 by more than the
reduction in the State funds they
receive.
(Authority: 20 U.S.C. 1413(j))
Subpart D—Evaluations, Eligibility
Determinations, Individualized
Education Programs, and Educational
Placements
Parental Consent
§ 300.300 Parental consent.
(a) Parental consent for initial
evaluation. (1)(i) The public agency
proposing to conduct an initial
evaluation to determine if a child
qualifies as a child with a disability
under § 300.8 must, after providing
notice consistent with §§ 300.503 and
300.504, obtain informed consent,
consistent with § 300.9, from the parent
of the child before conducting the
evaluation.
(ii) Parental consent for initial
evaluation must not be construed as
consent for initial provision of special
education and related services.
(iii) The public agency must make
reasonable efforts to obtain the informed
consent from the parent for an initial
evaluation to determine whether the
child is a child with a disability.
(2) For initial evaluations only, if the
child is a ward of the State and is not
residing with the child’s parent, the
public agency is not required to obtain
informed consent from the parent for an
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initial evaluation to determine whether
the child is a child with a disability if—
(i) Despite reasonable efforts to do so,
the public agency cannot discover the
whereabouts of the parent of the child;
(ii) The rights of the parents of the
child have been terminated in
accordance with State law; or
(iii) The rights of the parent to make
educational decisions have been
subrogated by a judge in accordance
with State law and consent for an initial
evaluation has been given by an
individual appointed by the judge to
represent the child.
(3)(i) If the parent of a child enrolled
in public school or seeking to be
enrolled in public school does not
provide consent for initial evaluation
under paragraph (a)(1) of this section, or
the parent fails to respond to a request
to provide consent, the public agency
may, but is not required to, pursue the
initial evaluation of the child by
utilizing the procedural safeguards in
subpart E of this part (including the
mediation procedures under § 300.506
or the due process procedures under
§§ 300.507 through 300.516), if
appropriate, except to the extent
inconsistent with State law relating to
such parental consent.
(ii) The public agency does not violate
its obligation under § 300.111 and
§§ 300.301 through 300.311 if it declines
to pursue the evaluation.
(b) Parental consent for services. (1) A
public agency that is responsible for
making FAPE available to a child with
a disability must obtain informed
consent from the parent of the child
before the initial provision of special
education and related services to the
child.
(2) The public agency must make
reasonable efforts to obtain informed
consent from the parent for the initial
provision of special education and
related services to the child.
(3) If the parent of a child fails to
respond or refuses to consent to services
under paragraph (b)(1) of this section,
the public agency may not use the
procedures in subpart E of this part
(including the mediation procedures
under § 300.506 or the due process
procedures under §§ 300.507 through
300.516) in order to obtain agreement or
a ruling that the services may be
provided to the child.
(4) If the parent of the child refuses to
consent to the initial provision of
special education and related services,
or the parent fails to respond to a
request to provide consent for the initial
provision of special education and
related services, the public agency—
(i) Will not be considered to be in
violation of the requirement to make
available FAPE to the child for the
failure to provide the child with the
special education and related services
for which the public agency requests
consent; and
(ii) Is not required to convene an IEP
Team meeting or develop an IEP under
§§ 300.320 and 300.324 for the child for
the special education and related
services for which the public agency
requests such consent.
(c) Parental consent for reevaluations.
(1) Subject to paragraph (c)(2) of this
section, each public agency—
(i) Must obtain informed parental
consent, in accordance with
§ 300.300(a)(1), prior to conducting any
reevaluation of a child with a disability.
(ii) If the parent refuses to consent to
the reevaluation, the public agency may,
but is not required to, pursue the
reevaluation by using the consent
override procedures described in
paragraph (a)(3) of this section.
(iii) The public agency does not
violate its obligation under § 300.111
and §§ 300.301 through 300.311 if it
declines to pursue the evaluation or
reevaluation.
(2) The informed parental consent
described in paragraph (c)(1) of this
section need not be obtained if the
public agency can demonstrate that—
(i) It made reasonable efforts to obtain
such consent; and
(ii) The child’s parent has failed to
respond.
(d) Other consent requirements.
(1) Parental consent is not required
before—
(i) Reviewing existing data as part of
an evaluation or a reevaluation; or
(ii) Administering a test or other
evaluation that is administered to all
children unless, before administration
of that test or evaluation, consent is
required of parents of all children.
(2) In addition to the parental consent
requirements described in paragraph (a)
of this section, a State may require
parental consent for other services and
activities under this part if it ensures
that each public agency in the State
establishes and implements effective
procedures to ensure that a parent’s
refusal to consent does not result in a
failure to provide the child with FAPE.
(3) A public agency may not use a
parent’s refusal to consent to one service
or activity under paragraphs (a) or (d)(2)
of this section to deny the parent or
child any other service, benefit, or
activity of the public agency, except as
required by this part.
(4)(i) If a parent of a child who is
home schooled or placed in a private
school by the parents at their own
expense does not provide consent for
the initial evaluation or the
reevaluation, or the parent fails to
respond to a request to provide consent,
the public agency may not use the
consent override procedures (described
in paragraphs (a)(3) and (c)(1) of this
section); and
(ii) The public agency is not required
to consider the child as eligible for
services under §§ 300.132 through
300.144.
(5) To meet the reasonable efforts
requirement in paragraphs (a)(1)(iii),
(a)(2)(i), (b)(2), and (c)(2)(i) of this
section, the public agency must
document its attempts to obtain parental
consent using the procedures in
§ 300.322(d).
(Authority: 20 U.S.C. 1414(a)(1)(D) and
1414(c))
Evaluations and Reevaluations
§ 300.301 Initial evaluations.
(a) General. Each public agency must
conduct a full and individual initial
evaluation, in accordance with
§§ 300.305 and 300.306, before the
initial provision of special education
and related services to a child with a
disability under this part.
(b) Request for initial evaluation.
Consistent with the consent
requirements in § 300.300, either a
parent of a child or a public agency may
initiate a request for an initial
evaluation to determine if the child is a
child with a disability.
(c) Procedures for initial evaluation.
The initial evaluation—
(1)(i) Must be conducted within 60
days of receiving parental consent for
the evaluation; or
(ii) If the State establishes a timeframe
within which the evaluation must be
conducted, within that timeframe; and
(2) Must consist of procedures—
(i) To determine if the child is a child
with a disability under § 300.8; and
(ii) To determine the educational
needs of the child.
(d) Exception. The timeframe
described in paragraph (c)(1) of this
section does not apply to a public
agency if—
(1) The parent of a child repeatedly
fails or refuses to produce the child for
the evaluation; or
(2) A child enrolls in a school of
another public agency after the relevant
timeframe in paragraph (c)(1) of this
section has begun, and prior to a
determination by the child’s previous
public agency as to whether the child is
a child with a disability under § 300.8.
(e) The exception in paragraph (d)(2)
of this section applies only if the
subsequent public agency is making
sufficient progress to ensure a prompt
completion of the evaluation, and the
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parent and subsequent public agency
agree to a specific time when the
evaluation will be completed.
(Authority: 20 U.S.C. 1414(a))
§ 300.302 Screening for instructional
purposes is not evaluation.
The screening of a student by a
teacher or specialist to determine
appropriate instructional strategies for
curriculum implementation shall not be
considered to be an evaluation for
eligibility for special education and
related services.
(Authority: 20 U.S.C. 1414(a)(1)(E))
§ 300.303 Reevaluations.
(a) General. A public agency must
ensure that a reevaluation of each child
with a disability is conducted in
accordance with §§ 300.304 through
300.311—
(1) If the public agency determines
that the educational or related services
needs, including improved academic
achievement and functional
performance, of the child warrant a
reevaluation; or
(2) If the child’s parent or teacher
requests a reevaluation.
(b) Limitation. A reevaluation
conducted under paragraph (a) of this
section—
(1) May occur not more than once a
year, unless the parent and the public
agency agree otherwise; and
(2) Must occur at least once every 3
years, unless the parent and the public
agency agree that a reevaluation is
unnecessary.
(Authority: 20 U.S.C. 1414(a)(2))
§ 300.304 Evaluation procedures.
(a) Notice. The public agency must
provide notice to the parents of a child
with a disability, in accordance with
§ 300.503, that describes any evaluation
procedures the agency proposes to
conduct.
(b) Conduct of evaluation. In
conducting the evaluation, the public
agency must—
(1) Use a variety of assessment tools
and strategies to gather relevant
functional, developmental, and
academic information about the child,
including information provided by the
parent, that may assist in determining—
(i) Whether the child is a child with
a disability under § 300.8; and
(ii) The content of the child’s IEP,
including information related to
enabling the child to be involved in and
progress in the general education
curriculum (or for a preschool child, to
participate in appropriate activities);
(2) Not use any single measure or
assessment as the sole criterion for
determining whether a child is a child
with a disability and for determining an
appropriate educational program for the
child; and
(3) Use technically sound instruments
that may assess the relative contribution
of cognitive and behavioral factors, in
addition to physical or developmental
factors.
(c) Other evaluation procedures. Each
public agency must ensure that—
(1) Assessments and other evaluation
materials used to assess a child under
this part—
(i) Are selected and administered so
as not to be discriminatory on a racial
or cultural basis;
(ii) Are provided and administered in
the child’s native language or other
mode of communication and in the form
most likely to yield accurate
information on what the child knows
and can do academically,
developmentally, and functionally,
unless it is clearly not feasible to so
provide or administer;
(iii) Are used for the purposes for
which the assessments or measures are
valid and reliable;
(iv) Are administered by trained and
knowledgeable personnel; and
(v) Are administered in accordance
with any instructions provided by the
producer of the assessments.
(2) Assessments and other evaluation
materials include those tailored to
assess specific areas of educational need
and not merely those that are designed
to provide a single general intelligence
quotient.
(3) Assessments are selected and
administered so as best to ensure that if
an assessment is administered to a child
with impaired sensory, manual, or
speaking skills, the assessment results
accurately reflect the child’s aptitude or
achievement level or whatever other
factors the test purports to measure,
rather than reflecting the child’s
impaired sensory, manual, or speaking
skills (unless those skills are the factors
that the test purports to measure).
(4) The child is assessed in all areas
related to the suspected disability,
including, if appropriate, health, vision,
hearing, social and emotional status,
general intelligence, academic
performance, communicative status, and
motor abilities;
(5) Assessments of children with
disabilities who transfer from one
public agency to another public agency
in the same school year are coordinated
with those children’s prior and
subsequent schools, as necessary and as
expeditiously as possible, consistent
with § 300.301(d)(2) and (e), to ensure
prompt completion of full evaluations.
(6) In evaluating each child with a
disability under §§ 300.304 through
300.306, the evaluation is sufficiently
comprehensive to identify all of the
child’s special education and related
services needs, whether or not
commonly linked to the disability
category in which the child has been
classified.
(7) Assessment tools and strategies
that provide relevant information that
directly assists persons in determining
the educational needs of the child are
provided.
(Authority: 20 U.S.C. 1414(b)(1)-(3),
1412(a)(6)(B))
§ 300.305 Additional requirements for
evaluations and reevaluations.
(a) Review of existing evaluation data.
As part of an initial evaluation (if
appropriate) and as part of any
reevaluation under this part, the IEP
Team and other qualified professionals,
as appropriate, must—
(1) Review existing evaluation data on
the child, including—
(i) Evaluations and information
provided by the parents of the child;
(ii) Current classroom-based, local, or
State assessments, and classroom-based
observations; and
(iii) Observations by teachers and
related services providers; and
(2) On the basis of that review, and
input from the child’s parents, identify
what additional data, if any, are needed
to determine—
(i)(A) Whether the child is a child
with a disability, as defined in § 300.8,
and the educational needs of the child;
or
(B) In case of a reevaluation of a child,
whether the child continues to have
such a disability, and the educational
needs of the child;
(ii) The present levels of academic
achievement and related developmental
needs of the child;
(iii)(A) Whether the child needs
special education and related services;
or
(B) In the case of a reevaluation of a
child, whether the child continues to
need special education and related
services; and
(iv) Whether any additions or
modifications to the special education
and related services are needed to
enable the child to meet the measurable
annual goals set out in the IEP of the
child and to participate, as appropriate,
in the general education curriculum.
(b) Conduct of review. The group
described in paragraph (a) of this
section may conduct its review without
a meeting.
(c) Source of data. The public agency
must administer such assessments and
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other evaluation measures as may be
needed to produce the data identified
under paragraph (a) of this section.
(d) Requirements if additional data
are not needed. (1) If the IEP Team and
other qualified professionals, as
appropriate, determine that no
additional data are needed to determine
whether the child continues to be a
child with a disability, and to determine
the child’s educational needs, the public
agency must notify the child’s parents
of’—
(i) That determination and the reasons
for the determination; and
(ii) The right of the parents to request
an assessment to determine whether the
child continues to be a child with a
disability, and to determine the child’s
educational needs.
(2) The public agency is not required
to conduct the assessment described in
paragraph (d)(1)(ii) of this section unless
requested to do so by the child’s
parents.
(e) Evaluations before change in
eligibility. (1) Except as provided in
paragraph (e)(2) of this section, a public
agency must evaluate a child with a
disability in accordance with §§ 300.304
through 300.311 before determining that
the child is no longer a child with a
disability.
(2) The evaluation described in
paragraph (e)(1) of this section is not
required before the termination of a
child’s eligibility under this part due to
graduation from secondary school with
a regular diploma, or due to exceeding
the age eligibility for FAPE under State
law.
(3) For a child whose eligibility
terminates under circumstances
described in paragraph (e)(2) of this
section, a public agency must provide
the child with a summary of the child’s
academic achievement and functional
performance, which shall include
recommendations on how to assist the
child in meeting the child’s
postsecondary goals.
(Authority: 20 U.S.C. 1414(c))
§ 300.306 Determination of eligibility.
(a) General. Upon completion of the
administration of assessments and other
evaluation measures—
(1) A group of qualified professionals
and the parent of the child determines
whether the child is a child with a
disability, as defined in § 300.8, in
accordance with paragraph (b) of this
section and the educational needs of the
child; and
(2) The public agency provides a copy
of the evaluation report and the
documentation of determination of
eligibility at no cost to the parent.
(b) Special rule for eligibility
determination. A child must not be
determined to be a child with a
disability under this part—
(1) If the determinant factor for that
determination is—
(i) Lack of appropriate instruction in
reading, including the essential
components of reading instruction (as
defined in section 1208(3) of the ESEA);
(ii) Lack of appropriate instruction in
math; or
(iii) Limited English proficiency; and
(2) If the child does not otherwise
meet the eligibility criteria under
§ 300.8(a).
(c) Procedures for determining
eligibility and educational need. (1) In
interpreting evaluation data for the
purpose of determining if a child is a
child with a disability under § 300.8,
and the educational needs of the child,
each public agency must—
(i) Draw upon information from a
variety of sources, including aptitude
and achievement tests, parent input,
and teacher recommendations, as well
as information about the child’s
physical condition, social or cultural
background, and adaptive behavior; and
(ii) Ensure that information obtained
from all of these sources is documented
and carefully considered.
(2) If a determination is made that a
child has a disability and needs special
education and related services, an IEP
must be developed for the child in
accordance with §§ 300.320 through
300.324.
(Authority: 20 U.S.C. 1414(b)(4) and (5))
Additional Procedures for Identifying
Children With Specific Learning
Disabilities
§ 300.307 Specific learning disabilities.
(a) General. A State must adopt,
consistent with § 300.309, criteria for
determining whether a child has a
specific learning disability as defined in
§ 300.8(c)(10). In addition, the criteria
adopted by the State—
(1) Must not require the use of a
severe discrepancy between intellectual
ability and achievement for determining
whether a child has a specific learning
disability, as defined in § 300.8(c)(10);
(2) Must permit the use of a process
based on the child’s response to
scientific, research-based intervention;
and
(3) May permit the use of other
alternative research-based procedures
for determining whether a child has a
specific learning disability, as defined
in § 300.8(c)(10).
(b) Consistency with State criteria. A
public agency must use the State criteria
adopted pursuant to paragraph (a) of
this section in determining whether a
child has a specific learning disability.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
§ 300.308 Additional group members.
The determination of whether a child
suspected of having a specific learning
disability is a child with a disability as
defined in § 300.8, must be made by the
child’s parents and a team of qualified
professionals, which must include—
(a)(1) The child’s regular teacher; or
(2) If the child does not have a regular
teacher, a regular classroom teacher
qualified to teach a child of his or her
age; or
(3) For a child of less than school age,
an individual qualified by the SEA to
teach a child of his or her age; and
(b) At least one person qualified to
conduct individual diagnostic
examinations of children, such as a
school psychologist, speech-language
pathologist, or remedial reading teacher.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
§ 300.309 Determining the existence of a
specific learning disability.
(a) The group described in § 300.306
may determine that a child has a
specific learning disability, as defined
in § 300.8(c)(10), if—
(1) The child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards in
one or more of the following areas,
when provided with learning
experiences and instruction appropriate
for the child’s age or State-approved
grade-level standards:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading fluency skills.
(vi) Reading comprehension.
(vii) Mathematics calculation.
(viii) Mathematics problem solving.
(2)(i) The child does not make
sufficient progress to meet age or State-
approved grade-level standards in one
or more of the areas identified in
paragraph (a)(1) of this section when
using a process based on the child’s
response to scientific, research-based
intervention; or
(ii) The child exhibits a pattern of
strengths and weaknesses in
performance, achievement, or both,
relative to age, State-approved grade-
level standards, or intellectual
development, that is determined by the
group to be relevant to the identification
of a specific learning disability, using
appropriate assessments, consistent
with §§ 300.304 and 300.305; and
(3) The group determines that its
findings under paragraphs (a)(1) and (2)
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of this section are not primarily the
result of—
(i) A visual, hearing, or motor
disability;
(ii) Mental retardation;
(iii) Emotional disturbance;
(iv) Cultural factors;
(v) Environmental or economic
disadvantage; or
(vi) Limited English proficiency.
(b) To ensure that underachievement
in a child suspected of having a specific
learning disability is not due to lack of
appropriate instruction in reading or
math, the group must consider, as part
of the evaluation described in
§§ 300.304 through 300.306—
(1) Data that demonstrate that prior to,
or as a part of, the referral process, the
child was provided appropriate
instruction in regular education settings,
delivered by qualified personnel; and
(2) Data-based documentation of
repeated assessments of achievement at
reasonable intervals, reflecting formal
assessment of student progress during
instruction, which was provided to the
child’s parents.
(c) The public agency must promptly
request parental consent to evaluate the
child to determine if the child needs
special education and related services,
and must adhere to the timeframes
described in §§ 300.301 and 300.303,
unless extended by mutual written
agreement of the child’s parents and a
group of qualified professionals, as
described in § 300.306(a)(1)—
(1) If, prior to a referral, a child has
not made adequate progress after an
appropriate period of time when
provided instruction, as described in
paragraphs (b)(1) and (b)(2) of this
section; and
(2) Whenever a child is referred for an
evaluation.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
§ 300.310 Observation.
(a) The public agency must ensure
that the child is observed in the child’s
learning environment (including the
regular classroom setting) to document
the child’s academic performance and
behavior in the areas of difficulty.
(b) The group described in
§ 300.306(a)(1), in determining whether
a child has a specific learning disability,
must decide to—
(1) Use information from an
observation in routine classroom
instruction and monitoring of the
child’s performance that was done
before the child was referred for an
evaluation; or
(2) Have at least one member of the
group described in § 300.306(a)(1)
conduct an observation of the child’s
academic performance in the regular
classroom after the child has been
referred for an evaluation and parental
consent, consistent with § 300.300(a), is
obtained.
(c) In the case of a child of less than
school age or out of school, a group
member must observe the child in an
environment appropriate for a child of
that age.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
§ 300.311 Specific documentation for the
eligibility determination.
(a) For a child suspected of having a
specific learning disability, the
documentation of the determination of
eligibility, as required in § 300.306(a)(2),
must contain a statement of—
(1) Whether the child has a specific
learning disability;
(2) The basis for making the
determination, including an assurance
that the determination has been made in
accordance with § 300.306(c)(1);
(3) The relevant behavior, if any,
noted during the observation of the
child and the relationship of that
behavior to the child’s academic
functioning;
(4) The educationally relevant
medical findings, if any;
(5) Whether—
(i) The child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards
consistent with § 300.309(a)(1); and
(ii)(A) The child does not make
sufficient progress to meet age or State-
approved grade-level standards
consistent with § 300.309(a)(2)(i); or
(B) The child exhibits a pattern of
strengths and weaknesses in
performance, achievement, or both,
relative to age, State-approved grade
level standards or intellectual
development consistent with
§ 300.309(a)(2)(ii);
(6) The determination of the group
concerning the effects of a visual,
hearing, or motor disability; mental
retardation; emotional disturbance;
cultural factors; environmental or
economic disadvantage; or limited
English proficiency on the child’s
achievement level; and
(7) If the child has participated in a
process that assesses the child’s
response to scientific, research-based
intervention—
(i) The instructional strategies used
and the student-centered data collected;
and
(ii) The documentation that the
child’s parents were notified about—
(A) The State’s policies regarding the
amount and nature of student
performance data that would be
collected and the general education
services that would be provided;
(B) Strategies for increasing the
child’s rate of learning; and
(C) The parents’ right to request an
evaluation.
(b) Each group member must certify in
writing whether the report reflects the
member’s conclusion. If it does not
reflect the member’s conclusion, the
group member must submit a separate
statement presenting the member’s
conclusions.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
Individualized Education Programs
§ 300.320 Definition of individualized
education program.
(a) General. As used in this part, the
term individualized education program
or IEP means a written statement for
each child with a disability that is
developed, reviewed, and revised in a
meeting in accordance with §§ 300.320
through 300.324, and that must
include—
(1) A statement of the child’s present
levels of academic achievement and
functional performance, including—
(i) How the child’s disability affects
the child’s involvement and progress in
the general education curriculum (i.e.,
the same curriculum as for nondisabled
children); or
(ii) For preschool children, as
appropriate, how the disability affects
the child’s participation in appropriate
activities;
(2)(i) A statement of measurable
annual goals, including academic and
functional goals designed to—
(A) Meet the child’s needs that result
from the child’s disability to enable the
child to be involved in and make
progress in the general education
curriculum; and
(B) Meet each of the child’s other
educational needs that result from the
child’s disability;
(ii) For children with disabilities who
take alternate assessments aligned to
alternate achievement standards, a
description of benchmarks or short-term
objectives;
(3) A description of—
(i) How the child’s progress toward
meeting the annual goals described in
paragraph (2) of this section will be
measured; and
(ii) When periodic reports on the
progress the child is making toward
meeting the annual goals (such as
through the use of quarterly or other
periodic reports, concurrent with the
issuance of report cards) will be
provided;
(4) A statement of the special
education and related services and
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supplementary aids and services, based
on peer-reviewed research to the extent
practicable, to be provided to the child,
or on behalf of the child, and a
statement of the program modifications
or supports for school personnel that
will be provided to enable the child—
(i) To advance appropriately toward
attaining the annual goals;
(ii) To be involved in and make
progress in the general education
curriculum in accordance with
paragraph (a)(1) of this section, and to
participate in extracurricular and other
nonacademic activities; and
(iii) To be educated and participate
with other children with disabilities and
nondisabled children in the activities
described in this section;
(5) An explanation of the extent, if
any, to which the child will not
participate with nondisabled children in
the regular class and in the activities
described in paragraph (a)(4) of this
section;
(6)(i) A statement of any individual
appropriate accommodations that are
necessary to measure the academic
achievement and functional
performance of the child on State and
districtwide assessments consistent
with section 612(a)(16) of the Act; and
(ii) If the IEP Team determines that
the child must take an alternate
assessment instead of a particular
regular State or districtwide assessment
of student achievement, a statement of
why—
(A) The child cannot participate in
the regular assessment; and
(B) The particular alternate
assessment selected is appropriate for
the child; and
(7) The projected date for the
beginning of the services and
modifications described in paragraph
(a)(4) of this section, and the anticipated
frequency, location, and duration of
those services and modifications.
(b) Transition services. Beginning not
later than the first IEP to be in effect
when the child turns 16, or younger if
determined appropriate by the IEP
Team, and updated annually, thereafter,
the IEP must include—
(1) Appropriate measurable
postsecondary goals based upon age
appropriate transition assessments
related to training, education,
employment, and, where appropriate,
independent living skills; and
(2) The transition services (including
courses of study) needed to assist the
child in reaching those goals.
(c) Transfer of rights at age of
majority. Beginning not later than one
year before the child reaches the age of
majority under State law, the IEP must
include a statement that the child has
been informed of the child’s rights
under Part B of the Act, if any, that will
transfer to the child on reaching the age
of majority under § 300.520.
(d) Construction. Nothing in this
section shall be construed to require—
(1) That additional information be
included in a child’s IEP beyond what
is explicitly required in section 614 of
the Act; or
(2) The IEP Team to include
information under one component of a
child’s IEP that is already contained
under another component of the child’s
IEP.
(Authority: 20 U.S.C. 1414(d)(1)(A) and
(d)(6))
§ 300.321 IEP Team.
(a) General. The public agency must
ensure that the IEP Team for each child
with a disability includes—
(1) The parents of the child;
(2) Not less than one regular
education teacher of the child (if the
child is, or may be, participating in the
regular education environment);
(3) Not less than one special
education teacher of the child, or where
appropriate, not less then one special
education provider of the child;
(4) A representative of the public
agency who—
(i) Is qualified to provide, or supervise
the provision of, specially designed
instruction to meet the unique needs of
children with disabilities;
(ii) Is knowledgeable about the
general education curriculum; and
(iii) Is knowledgeable about the
availability of resources of the public
agency.
(5) An individual who can interpret
the instructional implications of
evaluation results, who may be a
member of the team described in
paragraphs (a)(2) through (a)(6) of this
section;
(6) At the discretion of the parent or
the agency, other individuals who have
knowledge or special expertise
regarding the child, including related
services personnel as appropriate; and
(7) Whenever appropriate, the child
with a disability.
(b) Transition services participants.
(1) In accordance with paragraph (a)(7)
of this section, the public agency must
invite a child with a disability to attend
the child’s IEP Team meeting if a
purpose of the meeting will be the
consideration of the postsecondary goals
for the child and the transition services
needed to assist the child in reaching
those goals under § 300.320(b).
(2) If the child does not attend the IEP
Team meeting, the public agency must
take other steps to ensure that the
child’s preferences and interests are
considered.
(3) To the extent appropriate, with the
consent of the parents or a child who
has reached the age of majority, in
implementing the requirements of
paragraph (b)(1) of this section, the
public agency must invite a
representative of any participating
agency that is likely to be responsible
for providing or paying for transition
services.
(c) Determination of knowledge and
special expertise. The determination of
the knowledge or special expertise of
any individual described in paragraph
(a)(6) of this section must be made by
the party (parents or public agency) who
invited the individual to be a member
of the IEP Team.
(d) Designating a public agency
representative. A public agency may
designate a public agency member of the
IEP Team to also serve as the agency
representative, if the criteria in
paragraph (a)(4) of this section are
satisfied.
(e) IEP Team attendance. (1) A
member of the IEP Team described in
paragraphs (a)(2) through (a)(5) of this
section is not required to attend an IEP
Team meeting, in whole or in part, if the
parent of a child with a disability and
the public agency agree, in writing, that
the attendance of the member is not
necessary because the member’s area of
the curriculum or related services is not
being modified or discussed in the
meeting.
(2) A member of the IEP Team
described in paragraph (e)(1) of this
section may be excused from attending
an IEP Team meeting, in whole or in
part, when the meeting involves a
modification to or discussion of the
member’s area of the curriculum or
related services, if—
(i) The parent, in writing, and the
public agency consent to the excusal;
and
(ii) The member submits, in writing to
the parent and the IEP Team, input into
the development of the IEP prior to the
meeting.
(f) Initial IEP Team meeting for child
under Part C. In the case of a child who
was previously served under Part C of
the Act, an invitation to the initial IEP
Team meeting must, at the request of the
parent, be sent to the Part C service
coordinator or other representatives of
the Part C system to assist with the
smooth transition of services.
(Authority: 20 U.S.C. 1414(d)(1)(B)–(d)(1)(D))
§ 300.322 Parent participation.
(a) Public agency responsibility—
general. Each public agency must take
steps to ensure that one or both of the
parents of a child with a disability are
present at each IEP Team meeting or are
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afforded the opportunity to participate,
including—
(1) Notifying parents of the meeting
early enough to ensure that they will
have an opportunity to attend; and
(2) Scheduling the meeting at a
mutually agreed on time and place.
(b) Information provided to parents.
(1) The notice required under paragraph
(a)(1) of this section must—
(i) Indicate the purpose, time, and
location of the meeting and who will be
in attendance; and
(ii) Inform the parents of the
provisions in § 300.321(a)(6) and (c)
(relating to the participation of other
individuals on the IEP Team who have
knowledge or special expertise about
the child), and § 300.321(f) (relating to
the participation of the Part C service
coordinator or other representatives of
the Part C system at the initial IEP Team
meeting for a child previously served
under Part C of the Act).
(2) For a child with a disability
beginning not later than the first IEP to
be in effect when the child turns 16, or
younger if determined appropriate by
the IEP Team, the notice also must—
(i) Indicate—
(A) That a purpose of the meeting will
be the consideration of the
postsecondary goals and transition
services for the child, in accordance
with § 300.320(b); and
(B) That the agency will invite the
student; and
(ii) Identify any other agency that will
be invited to send a representative.
(c) Other methods to ensure parent
participation. If neither parent can
attend an IEP Team meeting, the public
agency must use other methods to
ensure parent participation, including
individual or conference telephone
calls, consistent with § 300.328 (related
to alternative means of meeting
participation).
(d) Conducting an IEP Team meeting
without a parent in attendance. A
meeting may be conducted without a
parent in attendance if the public
agency is unable to convince the parents
that they should attend. In this case, the
public agency must keep a record of its
attempts to arrange a mutually agreed
on time and place, such as—
(1) Detailed records of telephone calls
made or attempted and the results of
those calls;
(2) Copies of correspondence sent to
the parents and any responses received;
and
(3) Detailed records of visits made to
the parent’s home or place of
employment and the results of those
visits.
(e) Use of interpreters or other action,
as appropriate. The public agency must
take whatever action is necessary to
ensure that the parent understands the
proceedings of the IEP Team meeting,
including arranging for an interpreter
for parents with deafness or whose
native language is other than English.
(f) Parent copy of child’s IEP. The
public agency must give the parent a
copy of the child’s IEP at no cost to the
parent.
(Authority: 20 U.S.C. 1414(d)(1)(B)(i))
§ 300.323 When IEPs must be in effect.
(a) General. At the beginning of each
school year, each public agency must
have in effect, for each child with a
disability within its jurisdiction, an IEP,
as defined in § 300.320.
(b) IEP or IFSP for children aged three
through five. (1) In the case of a child
with a disability aged three through five
(or, at the discretion of the SEA, a two-
year-old child with a disability who will
turn age three during the school year),
the IEP Team must consider an IFSP
that contains the IFSP content
(including the natural environments
statement) described in section 636(d) of
the Act and its implementing
regulations (including an educational
component that promotes school
readiness and incorporates pre-literacy,
language, and numeracy skills for
children with IFSPs under this section
who are at least three years of age), and
that is developed in accordance with the
IEP procedures under this part. The
IFSP may serve as the IEP of the child,
if using the IFSP as the IEP is—
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the
child’s parents.
(2) In implementing the requirements
of paragraph (b)(1) of this section, the
public agency must—
(i) Provide to the child’s parents a
detailed explanation of the differences
between an IFSP and an IEP; and
(ii) If the parents choose an IFSP,
obtain written informed consent from
the parents.
(c) Initial IEPs; provision of services.
Each public agency must ensure that—
(1) A meeting to develop an IEP for a
child is conducted within 30 days of a
determination that the child needs
special education and related services;
and
(2) As soon as possible following
development of the IEP, special
education and related services are made
available to the child in accordance
with the child’s IEP.
(d) Accessibility of child’s IEP to
teachers and others. Each public agency
must ensure that—
(1) The child’s IEP is accessible to
each regular education teacher, special
education teacher, related services
provider, and any other service provider
who is responsible for its
implementation; and
(2) Each teacher and provider
described in paragraph (d)(1) of this
section is informed of—
(i) His or her specific responsibilities
related to implementing the child’s IEP;
and
(ii) The specific accommodations,
modifications, and supports that must
be provided for the child in accordance
with the IEP.
(e) IEPs for children who transfer
public agencies in the same State. If a
child with a disability (who had an IEP
that was in effect in a previous public
agency in the same State) transfers to a
new public agency in the same State,
and enrolls in a new school within the
same school year, the new public
agency (in consultation with the
parents) must provide FAPE to the child
(including services comparable to those
described in the child’s IEP from the
previous public agency), until the new
public agency either—
(1) Adopts the child’s IEP from the
previous public agency; or
(2) Develops, adopts, and implements
a new IEP that meets the applicable
requirements in §§ 300.320 through
300.324.
(f) IEPs for children who transfer from
another State. If a child with a disability
(who had an IEP that was in effect in a
previous public agency in another State)
transfers to a public agency in a new
State, and enrolls in a new school
within the same school year, the new
public agency (in consultation with the
parents) must provide the child with
FAPE (including services comparable to
those described in the child’s IEP from
the previous public agency), until the
new public agency—
(1) Conducts an evaluation pursuant
to §§ 300.304 through 300.306 (if
determined to be necessary by the new
public agency); and
(2) Develops, adopts, and implements
a new IEP, if appropriate, that meets the
applicable requirements in §§ 300.320
through 300.324.
(g) Transmittal of records. To
facilitate the transition for a child
described in paragraphs (e) and (f) of
this section—
(1) The new public agency in which
the child enrolls must take reasonable
steps to promptly obtain the child’s
records, including the IEP and
supporting documents and any other
records relating to the provision of
special education or related services to
the child, from the previous public
agency in which the child was enrolled,
pursuant to 34 CFR 99.31(a)(2); and
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(2) The previous public agency in
which the child was enrolled must take
reasonable steps to promptly respond to
the request from the new public agency.
(Authority: 20 U.S.C. 1414(d)(2)(A)–(C))
Development of IEP
§ 300.324 Development, review, and
revision of IEP.
(a) Development of IEP—(1) General.
In developing each child’s IEP, the IEP
Team must consider—
(i) The strengths of the child;
(ii) The concerns of the parents for
enhancing the education of their child;
(iii) The results of the initial or most
recent evaluation of the child; and
(iv) The academic, developmental,
and functional needs of the child.
(2) Consideration of special factors.
The IEP Team must—
(i) In the case of a child whose
behavior impedes the child’s learning or
that of others, consider the use of
positive behavioral interventions and
supports, and other strategies, to
address that behavior;
(ii) In the case of a child with limited
English proficiency, consider the
language needs of the child as those
needs relate to the child’s IEP;
(iii) In the case of a child who is blind
or visually impaired, provide for
instruction in Braille and the use of
Braille unless the IEP Team determines,
after an evaluation of the child’s reading
and writing skills, needs, and
appropriate reading and writing media
(including an evaluation of the child’s
future needs for instruction in Braille or
the use of Braille), that instruction in
Braille or the use of Braille is not
appropriate for the child;
(iv) Consider the communication
needs of the child, and in the case of a
child who is deaf or hard of hearing,
consider the child’s language and
communication needs, opportunities for
direct communications with peers and
professional personnel in the child’s
language and communication mode,
academic level, and full range of needs,
including opportunities for direct
instruction in the child’s language and
communication mode; and
(v) Consider whether the child needs
assistive technology devices and
services.
(3) Requirement with respect to
regular education teacher. A regular
education teacher of a child with a
disability, as a member of the IEP Team,
must, to the extent appropriate,
participate in the development of the
IEP of the child, including the
determination of—
(i) Appropriate positive behavioral
interventions and supports and other
strategies for the child; and
(ii) Supplementary aids and services,
program modifications, and support for
school personnel consistent with
§ 300.320(a)(4).
(4) Agreement. (i) In making changes
to a child’s IEP after the annual IEP
Team meeting for a school year, the
parent of a child with a disability and
the public agency may agree not to
convene an IEP Team meeting for the
purposes of making those changes, and
instead may develop a written
document to amend or modify the
child’s current IEP.
(ii) If changes are made to the child’s
IEP in accordance with paragraph
(a)(4)(i) of this section, the public
agency must ensure that the child’s IEP
Team is informed of those changes.
(5) Consolidation of IEP Team
meetings. To the extent possible, the
public agency must encourage the
consolidation of reevaluation meetings
for the child and other IEP Team
meetings for the child.
(6) Amendments. Changes to the IEP
may be made either by the entire IEP
Team at an IEP Team meeting, or as
provided in paragraph (a)(4) of this
section, by amending the IEP rather than
by redrafting the entire IEP. Upon
request, a parent must be provided with
a revised copy of the IEP with the
amendments incorporated.
(b) Review and revision of IEPs—(1)
General. Each public agency must
ensure that, subject to paragraphs (b)(2)
and (b)(3) of this section, the IEP
Team—
(i) Reviews the child’s IEP
periodically, but not less than annually,
to determine whether the annual goals
for the child are being achieved; and
(ii) Revises the IEP, as appropriate, to
address—
(A) Any lack of expected progress
toward the annual goals described in
§ 300.320(a)(2), and in the general
education curriculum, if appropriate;
(B) The results of any reevaluation
conducted under § 300.303;
(C) Information about the child
provided to, or by, the parents, as
described under § 300.305(a)(2);
(D) The child’s anticipated needs; or
(E) Other matters.
(2) Consideration of special factors. In
conducting a review of the child’s IEP,
the IEP Team must consider the special
factors described in paragraph (a)(2) of
this section.
(3) Requirement with respect to
regular education teacher. A regular
education teacher of the child, as a
member of the IEP Team, must,
consistent with paragraph (a)(3) of this
section, participate in the review and
revision of the IEP of the child.
(c) Failure to meet transition
objectives—(1) Participating agency
failure. If a participating agency, other
than the public agency, fails to provide
the transition services described in the
IEP in accordance with § 300.320(b), the
public agency must reconvene the IEP
Team to identify alternative strategies to
meet the transition objectives for the
child set out in the IEP.
(2) Construction. Nothing in this part
relieves any participating agency,
including a State vocational
rehabilitation agency, of the
responsibility to provide or pay for any
transition service that the agency would
otherwise provide to children with
disabilities who meet the eligibility
criteria of that agency.
(d) Children with disabilities in adult
prisons—(1) Requirements that do not
apply. The following requirements do
not apply to children with disabilities
who are convicted as adults under State
law and incarcerated in adult prisons:
(i) The requirements contained in
section 612(a)(16) of the Act and
§ 300.320(a)(6) (relating to participation
of children with disabilities in general
assessments).
(ii) The requirements in § 300.320(b)
(relating to transition planning and
transition services) do not apply with
respect to the children whose eligibility
under Part B of the Act will end,
because of their age, before they will be
eligible to be released from prison based
on consideration of their sentence and
eligibility for early release.
(2) Modifications of IEP or placement.
(i) Subject to paragraph (d)(2)(ii) of this
section, the IEP Team of a child with a
disability who is convicted as an adult
under State law and incarcerated in an
adult prison may modify the child’s IEP
or placement if the State has
demonstrated a bona fide security or
compelling penological interest that
cannot otherwise be accommodated.
(ii) The requirements of §§ 300.320
(relating to IEPs), and 300.112 (relating
to LRE), do not apply with respect to the
modifications described in paragraph
(d)(2)(i) of this section.
(Authority: 20 U.S.C. 1412(a)(1),
1412(a)(12)(A)(i), 1414(d)(3), (4)(B), and (7);
and 1414(e))
§ 300.325 Private school placements by
public agencies.
(a) Developing IEPs. (1) Before a
public agency places a child with a
disability in, or refers a child to, a
private school or facility, the agency
must initiate and conduct a meeting to
develop an IEP for the child in
accordance with §§ 300.320 and
300.324.
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(2) The agency must ensure that a
representative of the private school or
facility attends the meeting. If the
representative cannot attend, the agency
must use other methods to ensure
participation by the private school or
facility, including individual or
conference telephone calls.
(b) Reviewing and revising IEPs. (1)
After a child with a disability enters a
private school or facility, any meetings
to review and revise the child’s IEP may
be initiated and conducted by the
private school or facility at the
discretion of the public agency.
(2) If the private school or facility
initiates and conducts these meetings,
the public agency must ensure that the
parents and an agency representative—
(i) Are involved in any decision about
the child’s IEP; and
(ii) Agree to any proposed changes in
the IEP before those changes are
implemented.
(c) Responsibility. Even if a private
school or facility implements a child’s
IEP, responsibility for compliance with
this part remains with the public agency
and the SEA.
(Authority: 20 U.S.C. 1412(a)(10)(B))
§ 300.326 [Reserved]
§ 300.327 Educational placements.
Consistent with § 300.501(c), each
public agency must ensure that the
parents of each child with a disability
are members of any group that makes
decisions on the educational placement
of their child.
(Authority: 20 U.S.C. 1414(e))
§ 300.328 Alternative means of meeting
participation.
When conducting IEP Team meetings
and placement meetings pursuant to
this subpart, and subpart E of this part,
and carrying out administrative matters
under section 615 of the Act (such as
scheduling, exchange of witness lists,
and status conferences), the parent of a
child with a disability and a public
agency may agree to use alternative
means of meeting participation, such as
video conferences and conference calls.
(Authority: 20 U.S.C. 1414(f))
Subpart E—Procedural Safeguards
Due Process Procedures for Parents
and Children
§ 300.500 Responsibility of SEA and other
public agencies.
Each SEA must ensure that each
public agency establishes, maintains,
and implements procedural safeguards
that meet the requirements of §§ 300.500
through 300.536.
(Authority: 20 U.S.C. 1415(a))
§ 300.501 Opportunity to examine records;
parent participation in meetings.
(a) Opportunity to examine records.
The parents of a child with a disability
must be afforded, in accordance with
the procedures of §§ 300.613 through
300.621, an opportunity to inspect and
review all education records with
respect to—
(1) The identification, evaluation, and
educational placement of the child; and
(2) The provision of FAPE to the
child.
(b) Parent participation in meetings.
(1) The parents of a child with a
disability must be afforded an
opportunity to participate in meetings
with respect to—
(i) The identification, evaluation, and
educational placement of the child; and
(ii) The provision of FAPE to the
child.
(2) Each public agency must provide
notice consistent with § 300.322(a)(1)
and (b)(1) to ensure that parents of
children with disabilities have the
opportunity to participate in meetings
described in paragraph (b)(1) of this
section.
(3) A meeting does not include
informal or unscheduled conversations
involving public agency personnel and
conversations on issues such as teaching
methodology, lesson plans, or
coordination of service provision. A
meeting also does not include
preparatory activities that public agency
personnel engage in to develop a
proposal or response to a parent
proposal that will be discussed at a later
meeting.
(c) Parent involvement in placement
decisions. (1) Each public agency must
ensure that a parent of each child with
a disability is a member of any group
that makes decisions on the educational
placement of the parent’s child.
(2) In implementing the requirements
of paragraph (c)(1) of this section, the
public agency must use procedures
consistent with the procedures
described in § 300.322(a) through (b)(1).
(3) If neither parent can participate in
a meeting in which a decision is to be
made relating to the educational
placement of their child, the public
agency must use other methods to
ensure their participation, including
individual or conference telephone
calls, or video conferencing.
(4) A placement decision may be
made by a group without the
involvement of a parent, if the public
agency is unable to obtain the parent’s
participation in the decision. In this
case, the public agency must have a
record of its attempt to ensure their
involvement.
(Authority: 20 U.S.C. 1414(e), 1415(b)(1))
§ 300.502 Independent educational
evaluation.
(a) General. (1) The parents of a child
with a disability have the right under
this part to obtain an independent
educational evaluation of the child,
subject to paragraphs (b) through (e) of
this section.
(2) Each public agency must provide
to parents, upon request for an
independent educational evaluation,
information about where an
independent educational evaluation
may be obtained, and the agency criteria
applicable for independent educational
evaluations as set forth in paragraph (e)
of this section.
(3) For the purposes of this subpart—
(i) Independent educational
evaluation means an evaluation
conducted by a qualified examiner who
is not employed by the public agency
responsible for the education of the
child in question; and
(ii) Public expense means that the
public agency either pays for the full
cost of the evaluation or ensures that the
evaluation is otherwise provided at no
cost to the parent, consistent with
§ 300.103.
(b) Parent right to evaluation at public
expense.
(1) A parent has the right to an
independent educational evaluation at
public expense if the parent disagrees
with an evaluation obtained by the
public agency, subject to the conditions
in paragraphs (b)(2) through (4) of this
section.
(2) If a parent requests an
independent educational evaluation at
public expense, the public agency must,
without unnecessary delay, either—
(i) File a due process complaint to
request a hearing to show that its
evaluation is appropriate; or
(ii) Ensure that an independent
educational evaluation is provided at
public expense, unless the agency
demonstrates in a hearing pursuant to
§§ 300.507 through 300.513 that the
evaluation obtained by the parent did
not meet agency criteria.
(3) If the public agency files a due
process complaint notice to request a
hearing and the final decision is that the
agency’s evaluation is appropriate, the
parent still has the right to an
independent educational evaluation, but
not at public expense.
(4) If a parent requests an
independent educational evaluation, the
public agency may ask for the parent’s
reason why he or she objects to the
public evaluation. However, the public
agency may not require the parent to
provide an explanation and may not
unreasonably delay either providing the
independent educational evaluation at
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public expense or filing a due process
complaint to request a due process
hearing to defend the public evaluation.
(5) A parent is entitled to only one
independent educational evaluation at
public expense each time the public
agency conducts an evaluation with
which the parent disagrees.
(c) Parent-initiated evaluations. If the
parent obtains an independent
educational evaluation at public
expense or shares with the public
agency an evaluation obtained at private
expense, the results of the evaluation—
(1) Must be considered by the public
agency, if it meets agency criteria, in
any decision made with respect to the
provision of FAPE to the child; and
(2) May be presented by any party as
evidence at a hearing on a due process
complaint under subpart E of this part
regarding that child.
(d) Requests for evaluations by
hearing officers. If a hearing officer
requests an independent educational
evaluation as part of a hearing on a due
process complaint, the cost of the
evaluation must be at public expense.
(e) Agency criteria. (1) If an
independent educational evaluation is
at public expense, the criteria under
which the evaluation is obtained,
including the location of the evaluation
and the qualifications of the examiner,
must be the same as the criteria that the
public agency uses when it initiates an
evaluation, to the extent those criteria
are consistent with the parent’s right to
an independent educational evaluation.
(2) Except for the criteria described in
paragraph (e)(1) of this section, a public
agency may not impose conditions or
timelines related to obtaining an
independent educational evaluation at
public expense.
(Authority: 20 U.S.C. 1415(b)(1) and
(d)(2)(A))
§ 300.503 Prior notice by the public
agency; content of notice.
(a) Notice. Written notice that meets
the requirements of paragraph (b) of this
section must be given to the parents of
a child with a disability a reasonable
time before the public agency—
(1) Proposes to initiate or change the
identification, evaluation, or
educational placement of the child or
the provision of FAPE to the child; or
(2) Refuses to initiate or change the
identification, evaluation, or
educational placement of the child or
the provision of FAPE to the child.
(b) Content of notice. The notice
required under paragraph (a) of this
section must include—
(1) A description of the action
proposed or refused by the agency;
(2) An explanation of why the agency
proposes or refuses to take the action;
(3) A description of each evaluation
procedure, assessment, record, or report
the agency used as a basis for the
proposed or refused action;
(4) A statement that the parents of a
child with a disability have protection
under the procedural safeguards of this
part and, if this notice is not an initial
referral for evaluation, the means by
which a copy of a description of the
procedural safeguards can be obtained;
(5) Sources for parents to contact to
obtain assistance in understanding the
provisions of this part;
(6) A description of other options that
the IEP Team considered and the
reasons why those options were
rejected; and
(7) A description of other factors that
are relevant to the agency’s proposal or
refusal.
(c) Notice in understandable
language. (1) The notice required under
paragraph (a) of this section must be—
(i) Written in language
understandable to the general public;
and
(ii) Provided in the native language of
the parent or other mode of
communication used by the parent,
unless it is clearly not feasible to do so.
(2) If the native language or other
mode of communication of the parent is
not a written language, the public
agency must take steps to ensure—
(i) That the notice is translated orally
or by other means to the parent in his
or her native language or other mode of
communication;
(ii) That the parent understands the
content of the notice; and
(iii) That there is written evidence
that the requirements in paragraphs
(c)(2)(i) and (ii) of this section have been
met.
(Authority: 20 U.S.C. 1415(b)(3) and (4),
1415(c)(1), 1414(b)(1))
§ 300.504 Procedural safeguards notice.
(a) General. A copy of the procedural
safeguards available to the parents of a
child with a disability must be given to
the parents only one time a school year,
except that a copy also must be given to
the parents—
(1) Upon initial referral or parent
request for evaluation;
(2) Upon receipt of the first State
complaint under §§ 300.151 through
300.153 and upon receipt of the first
due process complaint under § 300.507
in a school year;
(3) In accordance with the discipline
procedures in § 300.530(h); and
(4) Upon request by a parent.
(b) Internet Web site. A public agency
may place a current copy of the
procedural safeguards notice on its
Internet Web site if a Web site exists.
(c) Contents. The procedural
safeguards notice must include a full
explanation of all of the procedural
safeguards available under § 300.148,
§§ 300.151 through 300.153, § 300.300,
§§ 300.502 through 300.503, §§ 300.505
through 300.518, § 300.520, §§ 300.530
through 300.536 and §§ 300.610 through
300.625 relating to—
(1) Independent educational
evaluations;
(2) Prior written notice;
(3) Parental consent;
(4) Access to education records;
(5) Opportunity to present and resolve
complaints through the due process
complaint and State complaint
procedures, including—
(i) The time period in which to file a
complaint;
(ii) The opportunity for the agency to
resolve the complaint; and
(iii) The difference between the due
process complaint and the State
complaint procedures, including the
jurisdiction of each procedure, what
issues may be raised, filing and
decisional timelines, and relevant
procedures;
(6) The availability of mediation;
(7) The child’s placement during the
pendency of any due process complaint;
(8) Procedures for students who are
subject to placement in an interim
alternative educational setting;
(9) Requirements for unilateral
placement by parents of children in
private schools at public expense;
(10) Hearings on due process
complaints, including requirements for
disclosure of evaluation results and
recommendations;
(11) State-level appeals (if applicable
in the State);
(12) Civil actions, including the time
period in which to file those actions;
and
(13) Attorneys’ fees.
(d) Notice in understandable
language. The notice required under
paragraph (a) of this section must meet
the requirements of § 300.503(c).
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1415(d))
§ 300.505 Electronic mail.
A parent of a child with a disability
may elect to receive notices required by
§§ 300.503, 300.504, and 300.508 by an
electronic mail communication, if the
public agency makes that option
available.
(Authority: 20 U.S.C. 1415(n))
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§ 300.506 Mediation.
(a) General. Each public agency must
ensure that procedures are established
and implemented to allow parties to
disputes involving any matter under
this part, including matters arising prior
to the filing of a due process complaint,
to resolve disputes through a mediation
process.
(b) Requirements. The procedures
must meet the following requirements:
(1) The procedures must ensure that
the mediation process—
(i) Is voluntary on the part of the
parties;
(ii) Is not used to deny or delay a
parent’s right to a hearing on the
parent’s due process complaint, or to
deny any other rights afforded under
Part B of the Act; and
(iii) Is conducted by a qualified and
impartial mediator who is trained in
effective mediation techniques.
(2) A public agency may establish
procedures to offer to parents and
schools that choose not to use the
mediation process, an opportunity to
meet, at a time and location convenient
to the parents, with a disinterested
party—
(i) Who is under contract with an
appropriate alternative dispute
resolution entity, or a parent training
and information center or community
parent resource center in the State
established under section 671 or 672 of
the Act; and
(ii) Who would explain the benefits
of, and encourage the use of, the
mediation process to the parents.
(3)(i) The State must maintain a list of
individuals who are qualified mediators
and knowledgeable in laws and
regulations relating to the provision of
special education and related services.
(ii) The SEA must select mediators on
a random, rotational, or other impartial
basis.
(4) The State must bear the cost of the
mediation process, including the costs
of meetings described in paragraph
(b)(2) of this section.
(5) Each session in the mediation
process must be scheduled in a timely
manner and must be held in a location
that is convenient to the parties to the
dispute.
(6) If the parties resolve a dispute
through the mediation process, the
parties must execute a legally binding
agreement that sets forth that resolution
and that—
(i) States that all discussions that
occurred during the mediation process
will remain confidential and may not be
used as evidence in any subsequent due
process hearing or civil proceeding; and
(ii) Is signed by both the parent and
a representative of the agency who has
the authority to bind such agency.
(7) A written, signed mediation
agreement under this paragraph is
enforceable in any State court of
competent jurisdiction or in a district
court of the United States.
Discussions that occur during the
mediation process must be confidential
and may not be used as evidence in any
subsequent due process hearing or civil
proceeding of any Federal court or State
court of a State receiving assistance
under this part.
(c) Impartiality of mediator. (1) An
individual who serves as a mediator
under this part—
(i) May not be an employee of the SEA
or the LEA that is involved in the
education or care of the child; and
(ii) Must not have a personal or
professional interest that conflicts with
the person’s objectivity.
(2) A person who otherwise qualifies
as a mediator is not an employee of an
LEA or State agency described under
§ 300.228 solely because he or she is
paid by the agency to serve as a
mediator.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1415(e))
§ 300.507 Filing a due process complaint.
(a) General. (1) A parent or a public
agency may file a due process complaint
on any of the matters described in
§ 300.503(a)(1) and (2) (relating to the
identification, evaluation or educational
placement of a child with a disability,
or the provision of FAPE to the child).
(2) The due process complaint must
allege a violation that occurred not more
than two years before the date the
parent or public agency knew or should
have known about the alleged action
that forms the basis of the due process
complaint, or, if the State has an explicit
time limitation for filing a due process
complaint under this part, in the time
allowed by that State law, except that
the exceptions to the timeline described
in § 300.511(f) apply to the timeline in
this section.
(b) Information for parents. The
public agency must inform the parent of
any free or low-cost legal and other
relevant services available in the area
if—
(1) The parent requests the
information; or
(2) The parent or the agency files a
due process complaint under this
section.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1415(b)(6))
§ 300.508 Due process complaint.
(a) General. (1) The public agency
must have procedures that require either
party, or the attorney representing a
party, to provide to the other party a due
process complaint (which must remain
confidential).
(2) The party filing a due process
complaint must forward a copy of the
due process complaint to the SEA.
(b) Content of complaint. The due
process complaint required in paragraph
(a)(1) of this section must include—
(1) The name of the child;
(2) The address of the residence of the
child;
(3) The name of the school the child
is attending;
(4) In the case of a homeless child or
youth (within the meaning of section
725(2) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(2)),
available contact information for the
child, and the name of the school the
child is attending;
(5) A description of the nature of the
problem of the child relating to the
proposed or refused initiation or
change, including facts relating to the
problem; and
(6) A proposed resolution of the
problem to the extent known and
available to the party at the time.
(c) Notice required before a hearing
on a due process complaint. A party
may not have a hearing on a due process
complaint until the party, or the
attorney representing the party, files a
due process complaint that meets the
requirements of paragraph (b) of this
section.
(d) Sufficiency of complaint. (1) The
due process complaint required by this
section must be deemed sufficient
unless the party receiving the due
process complaint notifies the hearing
officer and the other party in writing,
within 15 days of receipt of the due
process complaint, that the receiving
party believes the due process
complaint does not meet the
requirements in paragraph (b) of this
section.
(2) Within five days of receipt of
notification under paragraph (d)(1) of
this section, the hearing officer must
make a determination on the face of the
due process complaint of whether the
due process complaint meets the
requirements of paragraph (b) of this
section, and must immediately notify
the parties in writing of that
determination.
(3) A party may amend its due process
complaint only if—
(i) The other party consents in writing
to the amendment and is given the
opportunity to resolve the due process
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complaint through a meeting held
pursuant to § 300.510; or
(ii) The hearing officer grants
permission, except that the hearing
officer may only grant permission to
amend at any time not later than five
days before the due process hearing
begins.
(4) If a party files an amended due
process complaint, the timelines for the
resolution meeting in § 300.510(a) and
the time period to resolve in
§ 300.510(b) begin again with the filing
of the amended due process complaint.
(e) LEA response to a due process
complaint. (1) If the LEA has not sent
a prior written notice under § 300.503 to
the parent regarding the subject matter
contained in the parent’s due process
complaint, the LEA must, within 10
days of receiving the due process
complaint, send to the parent a response
that includes—
(i) An explanation of why the agency
proposed or refused to take the action
raised in the due process complaint;
(ii) A description of other options that
the IEP Team considered and the
reasons why those options were
rejected;
(iii) A description of each evaluation
procedure, assessment, record, or report
the agency used as the basis for the
proposed or refused action; and
(iv) A description of the other factors
that are relevant to the agency’s
proposed or refused action.
(2) A response by an LEA under
paragraph (e)(1) of this section shall not
be construed to preclude the LEA from
asserting that the parent’s due process
complaint was insufficient, where
appropriate.
(f) Other party response to a due
process complaint. Except as provided
in paragraph (e) of this section, the party
receiving a due process complaint must,
within 10 days of receiving the due
process complaint, send to the other
party a response that specifically
addresses the issues raised in the due
process complaint.
(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2))
§ 300.509 Model forms.
(a) Each SEA must develop model
forms to assist parents and public
agencies in filing a due process
complaint in accordance with
§§ 300.507(a) and 300.508(a) through (c)
and to assist parents and other parties
in filing a State complaint under
§§ 300.151 through 300.153. However,
the SEA or LEA may not require the use
of the model forms.
(b) Parents, public agencies, and other
parties may use the appropriate model
form described in paragraph (a) of this
section, or another form or other
document, so long as the form or
document that is used meets, as
appropriate, the content requirements in
§ 300.508(b) for filing a due process
complaint, or the requirements in
§ 300.153(b) for filing a State complaint.
(Authority: 20 U.S.C. 1415(b)(8))
§ 300.510 Resolution process.
(a) Resolution meeting. (1) Within 15
days of receiving notice of the parent’s
due process complaint, and prior to the
initiation of a due process hearing under
§ 300.511, the LEA must convene a
meeting with the parent and the
relevant member or members of the IEP
Team who have specific knowledge of
the facts identified in the due process
complaint that—
(i) Includes a representative of the
public agency who has decision-making
authority on behalf of that agency; and
(ii) May not include an attorney of the
LEA unless the parent is accompanied
by an attorney.
(2) The purpose of the meeting is for
the parent of the child to discuss the
due process complaint, and the facts
that form the basis of the due process
complaint, so that the LEA has the
opportunity to resolve the dispute that
is the basis for the due process
complaint.
(3) The meeting described in
paragraph (a)(1) and (2) of this section
need not be held if—
(i) The parent and the LEA agree in
writing to waive the meeting; or
(ii) The parent and the LEA agree to
use the mediation process described in
§ 300.506.
(4) The parent and the LEA determine
the relevant members of the IEP Team
to attend the meeting.
(b) Resolution period. (1) If the LEA
has not resolved the due process
complaint to the satisfaction of the
parent within 30 days of the receipt of
the due process complaint, the due
process hearing may occur.
(2) Except as provided in paragraph
(c) of this section, the timeline for
issuing a final decision under § 300.515
begins at the expiration of this 30-day
period.
(3) Except where the parties have
jointly agreed to waive the resolution
process or to use mediation,
notwithstanding paragraphs (b)(1) and
(2) of this section, the failure of the
parent filing a due process complaint to
participate in the resolution meeting
will delay the timelines for the
resolution process and due process
hearing until the meeting is held.
(4) If the LEA is unable to obtain the
participation of the parent in the
resolution meeting after reasonable
efforts have been made (and
documented using the procedures in
§ 300.322(d)), the LEA may, at the
conclusion of the 30-day period, request
that a hearing officer dismiss the
parent’s due process complaint.
(5) If the LEA fails to hold the
resolution meeting specified in
paragraph (a) of this section within 15
days of receiving notice of a parent’s
due process complaint or fails to
participate in the resolution meeting,
the parent may seek the intervention of
a hearing officer to begin the due
process hearing timeline.
(c) Adjustments to 30-day resolution
period. The 45-day timeline for the due
process hearing in § 300.515(a) starts the
day after one of the following events:
(1) Both parties agree in writing to
waive the resolution meeting;
(2) After either the mediation or
resolution meeting starts but before the
end of the 30-day period, the parties
agree in writing that no agreement is
possible;
(3) If both parties agree in writing to
continue the mediation at the end of the
30-day resolution period, but later, the
parent or public agency withdraws from
the mediation process.
(d) Written settlement agreement. If a
resolution to the dispute is reached at
the meeting described in paragraphs
(a)(1) and (2) of this section, the parties
must execute a legally binding
agreement that is—
(1) Signed by both the parent and a
representative of the agency who has the
authority to bind the agency; and
(2) Enforceable in any State court of
competent jurisdiction or in a district
court of the United States, or, by the
SEA, if the State has other mechanisms
or procedures that permit parties to seek
enforcement of resolution agreements,
pursuant to § 300.537.
(e) Agreement review period. If the
parties execute an agreement pursuant
to paragraph (c) of this section, a party
may void the agreement within 3
business days of the agreement’s
execution.
(Authority: 20 U.S.C. 1415(f)(1)(B))
§ 300.511 Impartial due process hearing.
(a) General. Whenever a due process
complaint is received under § 300.507
or § 300.532, the parents or the LEA
involved in the dispute must have an
opportunity for an impartial due process
hearing, consistent with the procedures
in §§ 300.507, 300.508, and 300.510.
(b) Agency responsible for conducting
the due process hearing. The hearing
described in paragraph (a) of this
section must be conducted by the SEA
or the public agency directly
responsible for the education of the
child, as determined under State statute,
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State regulation, or a written policy of
the SEA.
(c) Impartial hearing officer. (1) At a
minimum, a hearing officer—
(i) Must not be—
(A) An employee of the SEA or the
LEA that is involved in the education or
care of the child; or
(B) A person having a personal or
professional interest that conflicts with
the person’s objectivity in the hearing;
(ii) Must possess knowledge of, and
the ability to understand, the provisions
of the Act, Federal and State regulations
pertaining to the Act, and legal
interpretations of the Act by Federal and
State courts;
(iii) Must possess the knowledge and
ability to conduct hearings in
accordance with appropriate, standard
legal practice; and
(iv) Must possess the knowledge and
ability to render and write decisions in
accordance with appropriate, standard
legal practice.
(2) A person who otherwise qualifies
to conduct a hearing under paragraph
(c)(1) of this section is not an employee
of the agency solely because he or she
is paid by the agency to serve as a
hearing officer.
(3) Each public agency must keep a
list of the persons who serve as hearing
officers. The list must include a
statement of the qualifications of each of
those persons.
(d) Subject matter of due process
hearings. The party requesting the due
process hearing may not raise issues at
the due process hearing that were not
raised in the due process complaint
filed under § 300.508(b), unless the
other party agrees otherwise.
(e) Timeline for requesting a hearing.
A parent or agency must request an
impartial hearing on their due process
complaint within two years of the date
the parent or agency knew or should
have known about the alleged action
that forms the basis of the due process
complaint, or if the State has an explicit
time limitation for requesting such a
due process hearing under this part, in
the time allowed by that State law.
(f) Exceptions to the timeline. The
timeline described in paragraph (e) of
this section does not apply to a parent
if the parent was prevented from filing
a due process complaint due to—
(1) Specific misrepresentations by the
LEA that it had resolved the problem
forming the basis of the due process
complaint; or
(2) The LEA’s withholding of
information from the parent that was
required under this part to be provided
to the parent.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1415(f)(1)(A),
1415(f)(3)(A)–(D))
§ 300.512 Hearing rights.
(a) General. Any party to a hearing
conducted pursuant to §§ 300.507
through 300.513 or §§ 300.530 through
300.534, or an appeal conducted
pursuant to § 300.514, has the right to—
(1) Be accompanied and advised by
counsel and by individuals with special
knowledge or training with respect to
the problems of children with
disabilities;
(2) Present evidence and confront,
cross-examine, and compel the
attendance of witnesses;
(3) Prohibit the introduction of any
evidence at the hearing that has not
been disclosed to that party at least five
business days before the hearing;
(4) Obtain a written, or, at the option
of the parents, electronic, verbatim
record of the hearing; and
(5) Obtain written, or, at the option of
the parents, electronic findings of fact
and decisions.
(b) Additional disclosure of
information. (1) At least five business
days prior to a hearing conducted
pursuant to § 300.511(a), each party
must disclose to all other parties all
evaluations completed by that date and
recommendations based on the offering
party’s evaluations that the party
intends to use at the hearing.
(2) A hearing officer may bar any
party that fails to comply with
paragraph (b)(1) of this section from
introducing the relevant evaluation or
recommendation at the hearing without
the consent of the other party.
(c) Parental rights at hearings. Parents
involved in hearings must be given the
right to—
(1) Have the child who is the subject
of the hearing present;
(2) Open the hearing to the public;
and
(3) Have the record of the hearing and
the findings of fact and decisions
described in paragraphs (a)(4) and (a)(5)
of this section provided at no cost to
parents.
(Authority: 20 U.S.C. 1415(f)(2), 1415(h))
§ 300.513 Hearing decisions.
(a) Decision of hearing officer on the
provision of FAPE. (1) Subject to
paragraph (a)(2) of this section, a
hearing officer’s determination of
whether a child received FAPE must be
based on substantive grounds.
(2) In matters alleging a procedural
violation, a hearing officer may find that
a child did not receive a FAPE only if
the procedural inadequacies—
(i) Impeded the child’s right to a
FAPE;
(ii) Significantly impeded the parent’s
opportunity to participate in the
decision-making process regarding the
provision of a FAPE to the parent’s
child; or
(iii) Caused a deprivation of
educational benefit.
(3) Nothing in paragraph (a) of this
section shall be construed to preclude a
hearing officer from ordering an LEA to
comply with procedural requirements
under §§ 300.500 through 300.536.
(b) Construction clause. Nothing in
§§ 300.507 through 300.513 shall be
construed to affect the right of a parent
to file an appeal of the due process
hearing decision with the SEA under
§ 300.514(b), if a State level appeal is
available.
(c) Separate request for a due process
hearing. Nothing in §§ 300.500 through
300.536 shall be construed to preclude
a parent from filing a separate due
process complaint on an issue separate
from a due process complaint already
filed.
(d) Findings and decision to advisory
panel and general public. The public
agency, after deleting any personally
identifiable information, must—
(1) Transmit the findings and
decisions referred to in § 300.512(a)(5)
to the State advisory panel established
under § 300.167; and
(2) Make those findings and decisions
available to the public.
(Authority: 20 U.S.C. 1415(f)(3)(E) and (F),
1415(h)(4), 1415(o))
§ 300.514 Finality of decision; appeal;
impartial review.
(a) Finality of hearing decision. A
decision made in a hearing conducted
pursuant to §§ 300.507 through 300.513
or §§ 300.530 through 300.534 is final,
except that any party involved in the
hearing may appeal the decision under
the provisions of paragraph (b) of this
section and § 300.516.
(b) Appeal of decisions; impartial
review. (1) If the hearing required by
§ 300.511 is conducted by a public
agency other than the SEA, any party
aggrieved by the findings and decision
in the hearing may appeal to the SEA.
(2) If there is an appeal, the SEA must
conduct an impartial review of the
findings and decision appealed. The
official conducting the review must—
(i) Examine the entire hearing record;
(ii) Ensure that the procedures at the
hearing were consistent with the
requirements of due process;
(iii) Seek additional evidence if
necessary. If a hearing is held to receive
additional evidence, the rights in
§ 300.512 apply;
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(iv) Afford the parties an opportunity
for oral or written argument, or both, at
the discretion of the reviewing official;
(v) Make an independent decision on
completion of the review; and
(vi) Give a copy of the written, or, at
the option of the parents, electronic
findings of fact and decisions to the
parties.
(c) Findings and decision to advisory
panel and general public. The SEA,
after deleting any personally identifiable
information, must—
(1) Transmit the findings and
decisions referred to in paragraph
(b)(2)(vi) of this section to the State
advisory panel established under
§ 300.167; and
(2) Make those findings and decisions
available to the public.
(d) Finality of review decision. The
decision made by the reviewing official
is final unless a party brings a civil
action under § 300.516.
(Authority: 20 U.S.C. 1415(g) and (h)(4),
1415(i)(1)(A), 1415(i)(2))
§ 300.515 Timelines and convenience of
hearings and reviews.
(a) The public agency must ensure
that not later than 45 days after the
expiration of the 30 day period under
§ 300.510(b), or the adjusted time
periods described in § 300.510(c)—
(1) A final decision is reached in the
hearing; and
(2) A copy of the decision is mailed
to each of the parties.
(b) The SEA must ensure that not later
than 30 days after the receipt of a
request for a review—
(1) A final decision is reached in the
review; and
(2) A copy of the decision is mailed
to each of the parties.
(c) A hearing or reviewing officer may
grant specific extensions of time beyond
the periods set out in paragraphs (a) and
(b) of this section at the request of either
party.
(d) Each hearing and each review
involving oral arguments must be
conducted at a time and place that is
reasonably convenient to the parents
and child involved.
(Authority: 20 U.S.C. 1415(f)(1)(B)(ii),
1415(g), 1415(i)(1))
§ 300.516 Civil action.
(a) General. Any party aggrieved by
the findings and decision made under
§§ 300.507 through 300.513 or
§§ 300.530 through 300.534 who does
not have the right to an appeal under
§ 300.514(b), and any party aggrieved by
the findings and decision under
§ 300.514(b), has the right to bring a
civil action with respect to the due
process complaint notice requesting a
due process hearing under § 300.507 or
§§ 300.530 through 300.532. The action
may be brought in any State court of
competent jurisdiction or in a district
court of the United States without
regard to the amount in controversy.
(b) Time limitation. The party
bringing the action shall have 90 days
from the date of the decision of the
hearing officer or, if applicable, the
decision of the State review official, to
file a civil action, or, if the State has an
explicit time limitation for bringing civil
actions under Part B of the Act, in the
time allowed by that State law.
(c) Additional requirements. In any
action brought under paragraph (a) of
this section, the court—
(1) Receives the records of the
administrative proceedings;
(2) Hears additional evidence at the
request of a party; and
(3) Basing its decision on the
preponderance of the evidence, grants
the relief that the court determines to be
appropriate.
(d) Jurisdiction of district courts. The
district courts of the United States have
jurisdiction of actions brought under
section 615 of the Act without regard to
the amount in controversy.
(e) Rule of construction. Nothing in
this part restricts or limits the rights,
procedures, and remedies available
under the Constitution, the Americans
with Disabilities Act of 1990, title V of
the Rehabilitation Act of 1973, or other
Federal laws protecting the rights of
children with disabilities, except that
before the filing of a civil action under
these laws seeking relief that is also
available under section 615 of the Act,
the procedures under §§ 300.507 and
300.514 must be exhausted to the same
extent as would be required had the
action been brought under section 615
of the Act.
(Authority: 20 U.S.C. 1415(i)(2) and (3)(A),
1415(l))
§ 300.517 Attorneys’ fees.
(a) In general. (1) In any action or
proceeding brought under section 615 of
the Act, the court, in its discretion, may
award reasonable attorneys’ fees as part
of the costs to—
(i) The prevailing party who is the
parent of a child with a disability;
(ii) To a prevailing party who is an
SEA or LEA against the attorney of a
parent who files a complaint or
subsequent cause of action that is
frivolous, unreasonable, or without
foundation, or against the attorney of a
parent who continued to litigate after
the litigation clearly became frivolous,
unreasonable, or without foundation; or
(iii) To a prevailing SEA or LEA
against the attorney of a parent, or
against the parent, if the parent’s request
for a due process hearing or subsequent
cause of action was presented for any
improper purpose, such as to harass, to
cause unnecessary delay, or to
needlessly increase the cost of litigation.
(2) Nothing in this subsection shall be
construed to affect section 327 of the
District of Columbia Appropriations
Act, 2005.
(b) Prohibition on use of funds. (1)
Funds under Part B of the Act may not
be used to pay attorneys’ fees or costs
of a party related to any action or
proceeding under section 615 of the Act
and subpart E of this part.
(2) Paragraph (b)(1) of this section
does not preclude a public agency from
using funds under Part B of the Act for
conducting an action or proceeding
under section 615 of the Act.
(c) Award of fees. A court awards
reasonable attorneys’ fees under section
615(i)(3) of the Act consistent with the
following:
(1) Fees awarded under section
615(i)(3) of the Act must be based on
rates prevailing in the community in
which the action or proceeding arose for
the kind and quality of services
furnished. No bonus or multiplier may
be used in calculating the fees awarded
under this paragraph.
(2)(i) Attorneys’ fees may not be
awarded and related costs may not be
reimbursed in any action or proceeding
under section 615 of the Act for services
performed subsequent to the time of a
written offer of settlement to a parent
if—
(A) The offer is made within the time
prescribed by Rule 68 of the Federal
Rules of Civil Procedure or, in the case
of an administrative proceeding, at any
time more than 10 days before the
proceeding begins;
(B) The offer is not accepted within 10
days; and
(C) The court or administrative
hearing officer finds that the relief
finally obtained by the parents is not
more favorable to the parents than the
offer of settlement.
(ii) Attorneys’ fees may not be
awarded relating to any meeting of the
IEP Team unless the meeting is
convened as a result of an
administrative proceeding or judicial
action, or at the discretion of the State,
for a mediation described in § 300.506.
(iii) A meeting conducted pursuant to
§ 300.510 shall not be considered—
(A) A meeting convened as a result of
an administrative hearing or judicial
action; or
(B) An administrative hearing or
judicial action for purposes of this
section.
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(3) Notwithstanding paragraph (c)(2)
of this section, an award of attorneys’
fees and related costs may be made to
a parent who is the prevailing party and
who was substantially justified in
rejecting the settlement offer.
(4) Except as provided in paragraph
(c)(5) of this section, the court reduces,
accordingly, the amount of the
attorneys’ fees awarded under section
615 of the Act, if the court finds that—
(i) The parent, or the parent’s
attorney, during the course of the action
or proceeding, unreasonably protracted
the final resolution of the controversy;
(ii) The amount of the attorneys’ fees
otherwise authorized to be awarded
unreasonably exceeds the hourly rate
prevailing in the community for similar
services by attorneys of reasonably
comparable skill, reputation, and
experience;
(iii) The time spent and legal services
furnished were excessive considering
the nature of the action or proceeding;
or
(iv) The attorney representing the
parent did not provide to the LEA the
appropriate information in the due
process request notice in accordance
with § 300.508.
(5) The provisions of paragraph (c)(4)
of this section do not apply in any
action or proceeding if the court finds
that the State or local agency
unreasonably protracted the final
resolution of the action or proceeding or
there was a violation of section 615 of
the Act.
(Authority: 20 U.S.C. 1415(i)(3)(B)–(G))
§ 300.518 Child’s status during
proceedings.
(a) Except as provided in § 300.533,
during the pendency of any
administrative or judicial proceeding
regarding a due process complaint
notice requesting a due process hearing
under § 300.507, unless the State or
local agency and the parents of the child
agree otherwise, the child involved in
the complaint must remain in his or her
current educational placement.
(b) If the complaint involves an
application for initial admission to
public school, the child, with the
consent of the parents, must be placed
in the public school until the
completion of all the proceedings.
(c) If the complaint involves an
application for initial services under
this part from a child who is
transitioning from Part C of the Act to
Part B and is no longer eligible for Part
C services because the child has turned
three, the public agency is not required
to provide the Part C services that the
child had been receiving. If the child is
found eligible for special education and
related services under Part B and the
parent consents to the initial provision
of special education and related services
under § 300.300(b), then the public
agency must provide those special
education and related services that are
not in dispute between the parent and
the public agency.
(d) If the hearing officer in a due
process hearing conducted by the SEA
or a State review official in an
administrative appeal agrees with the
child’s parents that a change of
placement is appropriate, that
placement must be treated as an
agreement between the State and the
parents for purposes of paragraph (a) of
this section.
(Authority: 20 U.S.C. 1415(j))
§ 300.519 Surrogate parents.
(a) General. Each public agency must
ensure that the rights of a child are
protected when—
(1) No parent (as defined in § 300.30)
can be identified;
(2) The public agency, after
reasonable efforts, cannot locate a
parent;
(3) The child is a ward of the State
under the laws of that State; or
(4) The child is an unaccompanied
homeless youth as defined in section
725(6) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(6)).
(b) Duties of public agency. The duties
of a public agency under paragraph (a)
of this section include the assignment of
an individual to act as a surrogate for
the parents. This must include a
method—
(1) For determining whether a child
needs a surrogate parent; and
(2) For assigning a surrogate parent to
the child.
(c) Wards of the State. In the case of
a child who is a ward of the State, the
surrogate parent alternatively may be
appointed by the judge overseeing the
child’s case, provided that the surrogate
meets the requirements in paragraphs
(d)(2)(i) and (e) of this section.
(d) Criteria for selection of surrogate
parents. (1) The public agency may
select a surrogate parent in any way
permitted under State law.
(2) Public agencies must ensure that a
person selected as a surrogate parent—
(i) Is not an employee of the SEA, the
LEA, or any other agency that is
involved in the education or care of the
child;
(ii) Has no personal or professional
interest that conflicts with the interest
of the child the surrogate parent
represents; and
(iii) Has knowledge and skills that
ensure adequate representation of the
child.
(e) Non-employee requirement;
compensation. A person otherwise
qualified to be a surrogate parent under
paragraph (d) of this section is not an
employee of the agency solely because
he or she is paid by the agency to serve
as a surrogate parent.
(f) Unaccompanied homeless youth.
In the case of a child who is an
unaccompanied homeless youth,
appropriate staff of emergency shelters,
transitional shelters, independent living
programs, and street outreach programs
may be appointed as temporary
surrogate parents without regard to
paragraph (d)(2)(i) of this section, until
a surrogate parent can be appointed that
meets all of the requirements of
paragraph (d) of this section.
(g) Surrogate parent responsibilities.
The surrogate parent may represent the
child in all matters relating to—
(1) The identification, evaluation, and
educational placement of the child; and
(2) The provision of FAPE to the
child.
(h) SEA responsibility. The SEA must
make reasonable efforts to ensure the
assignment of a surrogate parent not
more than 30 days after a public agency
determines that the child needs a
surrogate parent.
(Authority: 20 U.S.C. 1415(b)(2))
§ 300.520 Transfer of parental rights at age
of majority.
(a) General. A State may provide that,
when a child with a disability reaches
the age of majority under State law that
applies to all children (except for a
child with a disability who has been
determined to be incompetent under
State law)—
(1)(i) The public agency must provide
any notice required by this part to both
the child and the parents; and
(ii) All rights accorded to parents
under Part B of the Act transfer to the
child;
(2) All rights accorded to parents
under Part B of the Act transfer to
children who are incarcerated in an
adult or juvenile, State or local
correctional institution; and
(3) Whenever a State provides for the
transfer of rights under this part
pursuant to paragraph (a)(1) or (a)(2) of
this section, the agency must notify the
child and the parents of the transfer of
rights.
(b) Special rule. A State must
establish procedures for appointing the
parent of a child with a disability, or, if
the parent is not available, another
appropriate individual, to represent the
educational interests of the child
throughout the period of the child’s
eligibility under Part B of the Act if,
under State law, a child who has
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reached the age of majority, but has not
been determined to be incompetent, can
be determined not to have the ability to
provide informed consent with respect
to the child’s educational program.
(Authority: 20 U.S.C. 1415(m))
§§ 300.521–300.529 [Reserved]
Discipline Procedures
§ 300.530 Authority of school personnel.
(a) Case-by-case determination.
School personnel may consider any
unique circumstances on a case-by-case
basis when determining whether a
change in placement, consistent with
the other requirements of this section, is
appropriate for a child with a disability
who violates a code of student conduct.
(b) General. (1) School personnel
under this section may remove a child
with a disability who violates a code of
student conduct from his or her current
placement to an appropriate interim
alternative educational setting, another
setting, or suspension, for not more than
10 consecutive school days (to the
extent those alternatives are applied to
children without disabilities), and for
additional removals of not more than 10
consecutive school days in that same
school year for separate incidents of
misconduct (as long as those removals
do not constitute a change of placement
under § 300.536).
(2) After a child with a disability has
been removed from his or her current
placement for 10 school days in the
same school year, during any
subsequent days of removal the public
agency must provide services to the
extent required under paragraph (d) of
this section.
(c) Additional authority. For
disciplinary changes in placement that
would exceed 10 consecutive school
days, if the behavior that gave rise to the
violation of the school code is
determined not to be a manifestation of
the child’s disability pursuant to
paragraph (e) of this section, school
personnel may apply the relevant
disciplinary procedures to children with
disabilities in the same manner and for
the same duration as the procedures
would be applied to children without
disabilities, except as provided in
paragraph (d) of this section.
(d) Services. (1) A child with a
disability who is removed from the
child’s current placement pursuant to
paragraphs (c), or (g) of this section
must—
(i) Continue to receive educational
services, as provided in § 300.101(a), so
as to enable the child to continue to
participate in the general education
curriculum, although in another setting,
and to progress toward meeting the
goals set out in the child’s IEP; and
(ii) Receive, as appropriate, a
functional behavioral assessment, and
behavioral intervention services and
modifications, that are designed to
address the behavior violation so that it
does not recur.
(2) The services required by paragraph
(d)(1), (d)(3), (d)(4), and (d)(5) of this
section may be provided in an interim
alternative educational setting.
(3) A public agency is only required
to provide services during periods of
removal to a child with a disability who
has been removed from his or her
current placement for 10 school days or
less in that school year, if it provides
services to a child without disabilities
who is similarly removed.
(4) After a child with a disability has
been removed from his or her current
placement for 10 school days in the
same school year, if the current removal
is for not more than 10 consecutive
school days and is not a change of
placement under § 300.536, school
personnel, in consultation with at least
one of the child’s teachers, determine
the extent to which services are needed,
as provided in § 300.101(a), so as to
enable the child to continue to
participate in the general education
curriculum, although in another setting,
and to progress toward meeting the
goals set out in the child’s IEP.
(5) If the removal is a change of
placement under § 300.536, the child’s
IEP Team determines appropriate
services under paragraph (d)(1) of this
section.
(e) Manifestation determination. (1)
Within 10 school days of any decision
to change the placement of a child with
a disability because of a violation of a
code of student conduct, the LEA, the
parent, and relevant members of the
child’s IEP Team (as determined by the
parent and the LEA) must review all
relevant information in the student’s
file, including the child’s IEP, any
teacher observations, and any relevant
information provided by the parents to
determine—
(i) If the conduct in question was
caused by, or had a direct and
substantial relationship to, the child’s
disability; or
(ii) If the conduct in question was the
direct result of the LEA’s failure to
implement the IEP.
(2) The conduct must be determined
to be a manifestation of the child’s
disability if the LEA, the parent, and
relevant members of the child’s IEP
Team determine that a condition in
either paragraph (e)(1)(i) or (1)(ii) of this
section was met.
(3) If the LEA, the parent, and relevant
members of the child’s IEP Team
determine the condition described in
paragraph (e)(1)(ii) of this section was
met, the LEA must take immediate steps
to remedy those deficiencies.
(f) Determination that behavior was a
manifestation. If the LEA, the parent,
and relevant members of the IEP Team
make the determination that the
conduct was a manifestation of the
child’s disability, the IEP Team must—
(1) Either—
(i) Conduct a functional behavioral
assessment, unless the LEA had
conducted a functional behavioral
assessment before the behavior that
resulted in the change of placement
occurred, and implement a behavioral
intervention plan for the child; or
(ii) If a behavioral intervention plan
already has been developed, review the
behavioral intervention plan, and
modify it, as necessary, to address the
behavior; and
(2) Except as provided in paragraph
(g) of this section, return the child to the
placement from which the child was
removed, unless the parent and the LEA
agree to a change of placement as part
of the modification of the behavioral
intervention plan.
(g) Special circumstances. School
personnel may remove a student to an
interim alternative educational setting
for not more than 45 school days
without regard to whether the behavior
is determined to be a manifestation of
the child’s disability, if the child—
(1) Carries a weapon to or possesses
a weapon at school, on school premises,
or to or at a school function under the
jurisdiction of an SEA or an LEA;
(2) Knowingly possesses or uses
illegal drugs, or sells or solicits the sale
of a controlled substance, while at
school, on school premises, or at a
school function under the jurisdiction of
an SEA or an LEA; or
(3) Has inflicted serious bodily injury
upon another person while at school, on
school premises, or at a school function
under the jurisdiction of an SEA or an
LEA.
(h) Notification. On the date on which
the decision is made to make a removal
that constitutes a change of placement
of a child with a disability because of
a violation of a code of student conduct,
the LEA must notify the parents of that
decision, and provide the parents the
procedural safeguards notice described
in § 300.504.
(i) Definitions. For purposes of this
section, the following definitions apply:
(1) Controlled substance means a drug
or other substance identified under
schedules I, II, III, IV, or V in section
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202(c) of the Controlled Substances Act
(21 U.S.C. 812(c)).
(2) Illegal drug means a controlled
substance; but does not include a
controlled substance that is legally
possessed or used under the supervision
of a licensed health-care professional or
that is legally possessed or used under
any other authority under that Act or
under any other provision of Federal
law.
(3) Serious bodily injury has the
meaning given the term ‘‘serious bodily
injury’’ under paragraph (3) of
subsection (h) of section 1365 of title 18,
United States Code.
(4) Weapon has the meaning given the
term ‘‘dangerous weapon’’ under
paragraph (2) of the first subsection (g)
of section 930 of title 18, United States
Code.
(Authority: 20 U.S.C. 1415(k)(1) and (7))
§ 300.531 Determination of setting.
The child’s IEP Team determines the
interim alternative educational setting
for services under § 300.530(c), (d)(5),
and (g).
(Authority: 20 U.S.C. 1415(k)(2))
§ 300.532 Appeal.
(a) General. The parent of a child with
a disability who disagrees with any
decision regarding placement under
§§ 300.530 and 300.531, or the
manifestation determination under
§ 300.530(e), or an LEA that believes
that maintaining the current placement
of the child is substantially likely to
result in injury to the child or others,
may appeal the decision by requesting
a hearing. The hearing is requested by
filing a complaint pursuant to
§§ 300.507 and 300.508(a) and (b).
(b) Authority of hearing officer. (1) A
hearing officer under § 300.511 hears,
and makes a determination regarding an
appeal under paragraph (a) of this
section.
(2) In making the determination under
paragraph (b)(1) of this section, the
hearing officer may—
(i) Return the child with a disability
to the placement from which the child
was removed if the hearing officer
determines that the removal was a
violation of § 300.530 or that the child’s
behavior was a manifestation of the
child’s disability; or
(ii) Order a change of placement of the
child with a disability to an appropriate
interim alternative educational setting
for not more than 45 school days if the
hearing officer determines that
maintaining the current placement of
the child is substantially likely to result
in injury to the child or to others.
(3) The procedures under paragraphs
(a) and (b)(1) and (2) of this section may
be repeated, if the LEA believes that
returning the child to the original
placement is substantially likely to
result in injury to the child or to others.
(c) Expedited due process hearing. (1)
Whenever a hearing is requested under
paragraph (a) of this section, the parents
or the LEA involved in the dispute must
have an opportunity for an impartial
due process hearing consistent with the
requirements of §§ 300.507 and
300.508(a) through (c) and §§ 300.510
through 300.514, except as provided in
paragraph (c)(2) through (4) of this
section.
(2) The SEA or LEA is responsible for
arranging the expedited due process
hearing, which must occur within 20
school days of the date the complaint
requesting the hearing is filed. The
hearing officer must make a
determination within 10 school days
after the hearing.
(3) Unless the parents and LEA agree
in writing to waive the resolution
meeting described in paragraph (c)(3)(i)
of this section, or agree to use the
mediation process described in
§ 300.506—
(i) A resolution meeting must occur
within seven days of receiving notice of
the due process complaint; and
(ii) The due process hearing may
proceed unless the matter has been
resolved to the satisfaction of both
parties within 15 days of the receipt of
the due process complaint.
(4) A State may establish different
State-imposed procedural rules for
expedited due process hearings
conducted under this section than it has
established for other due process
hearings, but, except for the timelines as
modified in paragraph (c)(3) of this
section, the State must ensure that the
requirements in §§ 300.510 through
300.514 are met.
(5) The decisions on expedited due
process hearings are appealable
consistent with § 300.514.
(Authority:
20 U.S.C. 1415(k)(3) and (4)(B),
1415(f)(1)(A))
§ 300.533 Placement during appeals.
When an appeal under § 300.532 has
been made by either the parent or the
LEA, the child must remain in the
interim alternative educational setting
pending the decision of the hearing
officer or until the expiration of the time
period specified in §A300.530(c) or (g),
whichever occurs first, unless the parent
and the SEA or LEA agree otherwise.
(Authority: 20 U.S.C. 1415(k)(4)(A))
§ 300.534 Protections for children not
determined eligible for special education
and related services.
(a) General. A child who has not been
determined to be eligible for special
education and related services under
this part and who has engaged in
behavior that violated a code of student
conduct, may assert any of the
protections provided for in this part if
the public agency had knowledge (as
determined in accordance with
paragraph (b) of this section) that the
child was a child with a disability
before the behavior that precipitated the
disciplinary action occurred.
(b) Basis of knowledge. A public
agency must be deemed to have
knowledge that a child is a child with
a disability if before the behavior that
precipitated the disciplinary action
occurred—
(1) The parent of the child expressed
concern in writing to supervisory or
administrative personnel of the
appropriate educational agency, or a
teacher of the child, that the child is in
need of special education and related
services;
(2) The parent of the child requested
an evaluation of the child pursuant to
§§ 300.300 through 300.311; or
(3) The teacher of the child, or other
personnel of the LEA, expressed specific
concerns about a pattern of behavior
demonstrated by the child directly to
the director of special education of the
agency or to other supervisory
personnel of the agency.
(c) Exception. A public agency would
not be deemed to have knowledge under
paragraph (b) of this section if—
(1) The parent of the child—
(i) Has not allowed an evaluation of
the child pursuant to §§ 300.300
through 300.311; or
(ii) Has refused services under this
part; or
(2) The child has been evaluated in
accordance with §§ 300.300 through
300.311 and determined to not be a
child with a disability under this part.
(d) Conditions that apply if no basis
of knowledge. (1) If a public agency does
not have knowledge that a child is a
child with a disability (in accordance
with paragraphs (b) and (c) of this
section) prior to taking disciplinary
measures against the child, the child
may be subjected to the disciplinary
measures applied to children without
disabilities who engage in comparable
behaviors consistent with paragraph
(d)(2) of this section.
(2)(i) If a request is made for an
evaluation of a child during the time
period in which the child is subjected
to disciplinary measures under
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§ 300.530, the evaluation must be
conducted in an expedited manner.
(ii) Until the evaluation is completed,
the child remains in the educational
placement determined by school
authorities, which can include
suspension or expulsion without
educational services.
(iii) If the child is determined to be a
child with a disability, taking into
consideration information from the
evaluation conducted by the agency and
information provided by the parents, the
agency must provide special education
and related services in accordance with
this part, including the requirements of
§§ 300.530 through 300.536 and section
612(a)(1)(A) of the Act.
(Authority: 20 U.S.C. 1415(k)(5))
§ 300.535 Referral to and action by law
enforcement and judicial authorities.
(a) Rule of construction. Nothing in
this part prohibits an agency from
reporting a crime committed by a child
with a disability to appropriate
authorities or prevents State law
enforcement and judicial authorities
from exercising their responsibilities
with regard to the application of Federal
and State law to crimes committed by a
child with a disability.
(b) Transmittal of records. (1) An
agency reporting a crime committed by
a child with a disability must ensure
that copies of the special education and
disciplinary records of the child are
transmitted for consideration by the
appropriate authorities to whom the
agency reports the crime.
(2) An agency reporting a crime under
this section may transmit copies of the
child’s special education and
disciplinary records only to the extent
that the transmission is permitted by the
Family Educational Rights and Privacy
Act.
(Authority: 20 U.S.C. 1415(k)(6))
§ 300.536 Change of placement because of
disciplinary removals.
(a) For purposes of removals of a child
with a disability from the child’s current
educational placement under §§ 300.530
through 300.535, a change of placement
occurs if—
(1) The removal is for more than 10
consecutive school days; or
(2) The child has been subjected to a
series of removals that constitute a
pattern—
(i) Because the series of removals total
more than 10 school days in a school
year;
(ii) Because the child’s behavior is
substantially similar to the child’s
behavior in previous incidents that
resulted in the series of removals; and
(iii) Because of such additional factors
as the length of each removal, the total
amount of time the child has been
removed, and the proximity of the
removals to one another.
(b)(1) The public agency determines
on a case-by-case basis whether a
pattern of removals constitutes a change
of placement.
(2) This determination is subject to
review through due process and judicial
proceedings.
(Authority: 20 U.S.C. 1415(k))
§ 300.537 State enforcement mechanisms.
Notwithstanding §§ 300.506(b)(7) and
300.510(d)(2), which provide for
judicial enforcement of a written
agreement reached as a result of
mediation or a resolution meeting, there
is nothing in this part that would
prevent the SEA from using other
mechanisms to seek enforcement of that
agreement, provided that use of those
mechanisms is not mandatory and does
not delay or deny a party the right to
seek enforcement of the written
agreement in a State court of competent
jurisdiction or in a district court of the
United States.
(Authority: 20 U.S.C. 1415(e)(2)(F),
1415(f)(1)(B))
§§ 300.538–300.599 [Reserved]
Subpart F—Monitoring, Enforcement,
Confidentiality, and Program
Information
Monitoring, Technical Assistance, and
Enforcement
§ 300.600 State monitoring and
enforcement.
(a) The State must monitor the
implementation of this part, enforce this
part in accordance with § 300.604(a)(1)
and (a)(3), (b)(2)(i) and (b)(2)(v), and
(c)(2), and annually report on
performance under this part.
(b) The primary focus of the State’s
monitoring activities must be on—
(1) Improving educational results and
functional outcomes for all children
with disabilities; and
(2) Ensuring that public agencies meet
the program requirements under Part B
of the Act, with a particular emphasis
on those requirements that are most
closely related to improving educational
results for children with disabilities.
(c) As a part of its responsibilities
under paragraph (a) of this section, the
State must use quantifiable indicators
and such qualitative indicators as are
needed to adequately measure
performance in the priority areas
identified in paragraph (d) of this
section, and the indicators established
by the Secretary for the State
performance plans.
(d) The State must monitor the LEAs
located in the State, using quantifiable
indicators in each of the following
priority areas, and using such
qualitative indicators as are needed to
adequately measure performance in
those areas:
(1) Provision of FAPE in the least
restrictive environment.
(2) State exercise of general
supervision, including child find,
effective monitoring, the use of
resolution meetings, mediation, and a
system of transition services as defined
in § 300.43 and in 20 U.S.C. 1437(a)(9).
(3) Disproportionate representation of
racial and ethnic groups in special
education and related services, to the
extent the representation is the result of
inappropriate identification.
(Approved by the Office of Management and
Budget under control number 1820–0624)
(Authority: 20 U.S.C. 1416(a))
§ 300.601 State performance plans and
data collection.
(a) General. Not later than December
3, 2005, each State must have in place
a performance plan that evaluates the
State’s efforts to implement the
requirements and purposes of Part B of
the Act, and describes how the State
will improve such implementation.
(1) Each State must submit the State’s
performance plan to the Secretary for
approval in accordance with the
approval process described in section
616(c) of the Act.
(2) Each State must review its State
performance plan at least once every six
years, and submit any amendments to
the Secretary.
(3) As part of the State performance
plan, each State must establish
measurable and rigorous targets for the
indicators established by the Secretary
under the priority areas described in
§ 300.600(d).
(b) Data collection. (1) Each State
must collect valid and reliable
information as needed to report
annually to the Secretary on the
indicators established by the Secretary
for the State performance plans.
(2) If the Secretary permits States to
collect data on specific indicators
through State monitoring or sampling,
and the State collects the data through
State monitoring or sampling, the State
must collect data on those indicators for
each LEA at least once during the period
of the State performance plan.
(3) Nothing in Part B of the Act shall
be construed to authorize the
development of a nationwide database
of personally identifiable information
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on individuals involved in studies or
other collections of data under Part B of
the Act.
(Approved by the Office of Management and
Budget under control number 1820–0624)
(Authority: 20 U.S.C. 1416(b))
§ 300.602 State use of targets and
reporting.
(a) General. Each State must use the
targets established in the State’s
performance plan under § 300.601 and
the priority areas described in
§ 300.600(d) to analyze the performance
of each LEA.
(b) Public reporting and privacy—(1)
Public report. (i) Subject to paragraph
(b)(1)(ii) of this section, the State must—
(A) Report annually to the public on
the performance of each LEA located in
the State on the targets in the State’s
performance plan; and
(B) Make the State’s performance plan
available through public means,
including by posting on the Web site of
the SEA, distribution to the media, and
distribution through public agencies.
(ii) If the State, in meeting the
requirements of paragraph (b)(1)(i) of
this section, collects performance data
through State monitoring or sampling,
the State must include in its report
under paragraph (b)(1)(i)(A) of this
section the most recently available
performance data on each LEA, and the
date the data were obtained.
(2) State performance report. The
State must report annually to the
Secretary on the performance of the
State under the State’s performance
plan.
(3) Privacy. The State must not report
to the public or the Secretary any
information on performance that would
result in the disclosure of personally
identifiable information about
individual children, or where the
available data are insufficient to yield
statistically reliable information.
(Approved by the Office of Management and
Budget under control number 1820–0624)
(Authority: 20 U.S.C. 1416(b)(2)(C))
§ 300.603 Secretary’s review and
determination regarding State performance.
(a) Review. The Secretary annually
reviews the State’s performance report
submitted pursuant to § 300.602(b)(2).
(b) Determination—(1) General. Based
on the information provided by the
State in the State’s annual performance
report, information obtained through
monitoring visits, and any other public
information made available, the
Secretary determines if the State—
(i) Meets the requirements and
purposes of Part B of the Act;
(ii) Needs assistance in implementing
the requirements of Part B of the Act;
(iii) Needs intervention in
implementing the requirements of Part
B of the Act; or
(iv) Needs substantial intervention in
implementing the requirements of Part
B of the Act.
(2) Notice and opportunity for a
hearing. (i) For determinations made
under paragraphs (b)(1)(iii) and
(b)(1)(iv) of this section, the Secretary
provides reasonable notice and an
opportunity for a hearing on those
determinations.
(ii) The hearing described in
paragraph (b)(2) of this section consists
of an opportunity to meet with the
Assistant Secretary for Special
Education and Rehabilitative Services to
demonstrate why the Department
should not make the determination
described in paragraph (b)(1) of this
section.
(Authority: 20 U.S.C. 1416(d))
§ 300.604 Enforcement.
(a) Needs assistance. If the Secretary
determines, for two consecutive years,
that a State needs assistance under
§ 300.603(b)(1)(ii) in implementing the
requirements of Part B of the Act, the
Secretary takes one or more of the
following actions:
(1) Advises the State of available
sources of technical assistance that may
help the State address the areas in
which the State needs assistance, which
may include assistance from the Office
of Special Education Programs, other
offices of the Department of Education,
other Federal agencies, technical
assistance providers approved by the
Secretary, and other federally funded
nonprofit agencies, and requires the
State to work with appropriate entities.
Such technical assistance may
include—
(i) The provision of advice by experts
to address the areas in which the State
needs assistance, including explicit
plans for addressing the area for concern
within a specified period of time;
(ii) Assistance in identifying and
implementing professional
development, instructional strategies,
and methods of instruction that are
based on scientifically based research;
(iii) Designating and using
distinguished superintendents,
principals, special education
administrators, special education
teachers, and other teachers to provide
advice, technical assistance, and
support; and
(iv) Devising additional approaches to
providing technical assistance, such as
collaborating with institutions of higher
education, educational service agencies,
national centers of technical assistance
supported under Part D of the Act, and
private providers of scientifically based
technical assistance.
(2) Directs the use of State-level funds
under section 611(e) of the Act on the
area or areas in which the State needs
assistance.
(3) Identifies the State as a high-risk
grantee and imposes special conditions
on the State’s grant under Part B of the
Act.
(b) Needs intervention. If the
Secretary determines, for three or more
consecutive years, that a State needs
intervention under § 300.603(b)(1)(iii) in
implementing the requirements of Part
B of the Act, the following shall apply:
(1) The Secretary may take any of the
actions described in paragraph (a) of
this section.
(2) The Secretary takes one or more of
the following actions:
(i) Requires the State to prepare a
corrective action plan or improvement
plan if the Secretary determines that the
State should be able to correct the
problem within one year.
(ii) Requires the State to enter into a
compliance agreement under section
457 of the General Education Provisions
Act, as amended, 20 U.S.C. 1221 et seq.
(GEPA), if the Secretary has reason to
believe that the State cannot correct the
problem within one year.
(iii) For each year of the
determination, withholds not less than
20 percent and not more than 50 percent
of the State’s funds under section 611(e)
of the Act, until the Secretary
determines the State has sufficiently
addressed the areas in which the State
needs intervention.
(iv) Seeks to recover funds under
section 452 of GEPA.
(v) Withholds, in whole or in part,
any further payments to the State under
Part B of the Act.
(vi) Refers the matter for appropriate
enforcement action, which may include
referral to the Department of Justice.
(c) Needs substantial intervention.
Notwithstanding paragraph (a) or (b) of
this section, at any time that the
Secretary determines that a State needs
substantial intervention in
implementing the requirements of Part
B of the Act or that there is a substantial
failure to comply with any condition of
an SEA’s or LEA’s eligibility under Part
B of the Act, the Secretary takes one or
more of the following actions:
(1) Recovers funds under section 452
of GEPA.
(2) Withholds, in whole or in part,
any further payments to the State under
Part B of the Act.
(3) Refers the case to the Office of the
Inspector General at the Department of
Education.
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(4) Refers the matter for appropriate
enforcement action, which may include
referral to the Department of Justice.
(d) Report to Congress. The Secretary
reports to the Committee on Education
and the Workforce of the House of
Representatives and the Committee on
Health, Education, Labor, and Pensions
of the Senate within 30 days of taking
enforcement action pursuant to
paragraph (a), (b), or (c) of this section,
on the specific action taken and the
reasons why enforcement action was
taken.
(Authority: 20 U.S.C. 1416(e)(1)–(e)(3), (e)(5))
§ 300.605 Withholding funds.
(a) Opportunity for hearing. Prior to
withholding any funds under Part B of
the Act, the Secretary provides
reasonable notice and an opportunity
for a hearing to the SEA involved,
pursuant to the procedures in
§§ 300.180 through 300.183.
(b) Suspension. Pending the outcome
of any hearing to withhold payments
under paragraph (a) of this section, the
Secretary may suspend payments to a
recipient, suspend the authority of the
recipient to obligate funds under Part B
of the Act, or both, after the recipient
has been given reasonable notice and an
opportunity to show cause why future
payments or authority to obligate funds
under Part B of the Act should not be
suspended.
(c) Nature of withholding. (1) If the
Secretary determines that it is
appropriate to withhold further
payments under § 300.604(b)(2) or (c)(2),
the Secretary may determine—
(i) That the withholding will be
limited to programs or projects, or
portions of programs or projects, that
affected the Secretary’s determination
under § 300.603(b)(1); or
(ii) That the SEA must not make
further payments under Part B of the
Act to specified State agencies or LEAs
that caused or were involved in the
Secretary’s determination under
§ 300.603(b)(1).
(2) Until the Secretary is satisfied that
the condition that caused the initial
withholding has been substantially
rectified—
(i) Payments to the State under Part B
of the Act must be withheld in whole or
in part; and
(ii) Payments by the SEA under Part
B of the Act must be limited to State
agencies and LEAs whose actions did
not cause or were not involved in the
Secretary’s determination under
§ 300.603(b)(1), as the case may be.
(Authority: 20 U.S.C. 1416(e)(4), (e)(6))
§ 300.606 Public attention.
Any State that has received notice
under §§ 300.603(b)(1)(ii) through (iv)
must, by means of a public notice, take
such measures as may be necessary to
notify the public within the State of the
pendency of an action taken pursuant to
§ 300.604.
(Authority: 20 U.S.C. 1416(e)(7))
§ 300.607 Divided State agency
responsibility.
For purposes of this subpart, if
responsibility for ensuring that the
requirements of Part B of the Act are
met with respect to children with
disabilities who are convicted as adults
under State law and incarcerated in
adult prisons is assigned to a public
agency other than the SEA pursuant to
§ 300.149(d), and if the Secretary finds
that the failure to comply substantially
with the provisions of Part B of the Act
are related to a failure by the public
agency, the Secretary takes appropriate
corrective action to ensure compliance
with Part B of the Act, except that—
(a) Any reduction or withholding of
payments to the State under § 300.604
must be proportionate to the total funds
allotted under section 611 of the Act to
the State as the number of eligible
children with disabilities in adult
prisons under the supervision of the
other public agency is proportionate to
the number of eligible individuals with
disabilities in the State under the
supervision of the SEA; and
(b) Any withholding of funds under
§ 300.604 must be limited to the specific
agency responsible for the failure to
comply with Part B of the Act.
(Authority: 20 U.S.C. 1416(h))
§ 300.608 State enforcement.
(a) If an SEA determines that an LEA
is not meeting the requirements of Part
B of the Act, including the targets in the
State’s performance plan, the SEA must
prohibit the LEA from reducing the
LEA’s maintenance of effort under
§ 300.203 for any fiscal year.
(b) Nothing in this subpart shall be
construed to restrict a State from
utilizing any other authority available to
it to monitor and enforce the
requirements of Part B of the Act.
(Authority: 20 U.S.C. 1416(f); 20 U.S.C.
1412(a)(11))
§ 300.609 Rule of construction.
Nothing in this subpart shall be
construed to restrict the Secretary from
utilizing any authority under GEPA,
including the provisions in 34 CFR parts
76, 77, 80, and 81 to monitor and
enforce the requirements of the Act,
including the imposition of special
conditions under 34 CFR 80.12.
(Authority: 20 U.S.C. 1416(g))
Confidentiality of Information
§ 300.610 Confidentiality.
The Secretary takes appropriate
action, in accordance with section 444
of GEPA, to ensure the protection of the
confidentiality of any personally
identifiable data, information, and
records collected or maintained by the
Secretary and by SEAs and LEAs
pursuant to Part B of the Act, and
consistent with §§ 300.611 through
300.627.
(Authority: 20 U.S.C. 1417(c))
§ 300.611 Definitions.
As used in §§ 300.611 through
300.625—
(a) Destruction means physical
destruction or removal of personal
identifiers from information so that the
information is no longer personally
identifiable.
(b) Education records means the type
of records covered under the definition
of ‘‘education records’’ in 34 CFR part
99 (the regulations implementing the
Family Educational Rights and Privacy
Act of 1974, 20 U.S.C. 1232g (FERPA)).
(c) Participating agency means any
agency or institution that collects,
maintains, or uses personally
identifiable information, or from which
information is obtained, under Part B of
the Act.
(Authority: 20 U.S.C. 1221e–3, 1412(a)(8),
1417(c))
§ 300.612 Notice to parents.
(a) The SEA must give notice that is
adequate to fully inform parents about
the requirements of § 300.123,
including—
(1) A description of the extent that the
notice is given in the native languages
of the various population groups in the
State;
(2) A description of the children on
whom personally identifiable
information is maintained, the types of
information sought, the methods the
State intends to use in gathering the
information (including the sources from
whom information is gathered), and the
uses to be made of the information;
(3) A summary of the policies and
procedures that participating agencies
must follow regarding storage,
disclosure to third parties, retention,
and destruction of personally
identifiable information; and
(4) A description of all of the rights of
parents and children regarding this
information, including the rights under
FERPA and implementing regulations in
34 CFR part 99.
(b) Before any major identification,
location, or evaluation activity, the
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notice must be published or announced
in newspapers or other media, or both,
with circulation adequate to notify
parents throughout the State of the
activity.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.613 Access rights.
(a) Each participating agency must
permit parents to inspect and review
any education records relating to their
children that are collected, maintained,
or used by the agency under this part.
The agency must comply with a request
without unnecessary delay and before
any meeting regarding an IEP, or any
hearing pursuant to § 300.507 or
§§ 300.530 through 300.532, or
resolution session pursuant to
§ 300.510, and in no case more than 45
days after the request has been made.
(b) The right to inspect and review
education records under this section
includes—
(1) The right to a response from the
participating agency to reasonable
requests for explanations and
interpretations of the records;
(2) The right to request that the
agency provide copies of the records
containing the information if failure to
provide those copies would effectively
prevent the parent from exercising the
right to inspect and review the records;
and
(3) The right to have a representative
of the parent inspect and review the
records.
(c) An agency may presume that the
parent has authority to inspect and
review records relating to his or her
child unless the agency has been
advised that the parent does not have
the authority under applicable State law
governing such matters as guardianship,
separation, and divorce.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.614 Record of access.
Each participating agency must keep
a record of parties obtaining access to
education records collected,
maintained, or used under Part B of the
Act (except access by parents and
authorized employees of the
participating agency), including the
name of the party, the date access was
given, and the purpose for which the
party is authorized to use the records.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.615 Records on more than one child.
If any education record includes
information on more than one child, the
parents of those children have the right
to inspect and review only the
information relating to their child or to
be informed of that specific information.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.616 List of types and locations of
information.
Each participating agency must
provide parents on request a list of the
types and locations of education records
collected, maintained, or used by the
agency.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.617 Fees.
(a) Each participating agency may
charge a fee for copies of records that
are made for parents under this part if
the fee does not effectively prevent the
parents from exercising their right to
inspect and review those records.
(b) A participating agency may not
charge a fee to search for or to retrieve
information under this part.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.618 Amendment of records at
parent’s request.
(a) A parent who believes that
information in the education records
collected, maintained, or used under
this part is inaccurate or misleading or
violates the privacy or other rights of the
child may request the participating
agency that maintains the information to
amend the information.
(b) The agency must decide whether
to amend the information in accordance
with the request within a reasonable
period of time of receipt of the request.
(c) If the agency decides to refuse to
amend the information in accordance
with the request, it must inform the
parent of the refusal and advise the
parent of the right to a hearing under
§ 300.619.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.619 Opportunity for a hearing.
The agency must, on request, provide
an opportunity for a hearing to
challenge information in education
records to ensure that it is not
inaccurate, misleading, or otherwise in
violation of the privacy or other rights
of the child.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.620 Result of hearing.
(a) If, as a result of the hearing, the
agency decides that the information is
inaccurate, misleading or otherwise in
violation of the privacy or other rights
of the child, it must amend the
information accordingly and so inform
the parent in writing.
(b) If, as a result of the hearing, the
agency decides that the information is
not inaccurate, misleading, or otherwise
in violation of the privacy or other
rights of the child, it must inform the
parent of the parent’s right to place in
the records the agency maintains on the
child a statement commenting on the
information or setting forth any reasons
for disagreeing with the decision of the
agency.
(c) Any explanation placed in the
records of the child under this section
must—
(1) Be maintained by the agency as
part of the records of the child as long
as the record or contested portion is
maintained by the agency; and
(2) If the records of the child or the
contested portion is disclosed by the
agency to any party, the explanation
must also be disclosed to the party.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.621 Hearing procedures.
A hearing held under § 300.619 must
be conducted according to the
procedures in 34 CFR 99.22.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.622 Consent.
(a) Parental consent must be obtained
before personally identifiable
information is disclosed to parties, other
than officials of participating agencies
in accordance with paragraph (b)(1) of
this section, unless the information is
contained in education records, and the
disclosure is authorized without
parental consent under 34 CFR part 99.
(b)(1) Except as provided in paragraphs
(b)(2) and (b)(3) of this section, parental
consent is not required before
personally identifiable information is
released to officials of participating
agencies for purposes of meeting a
requirement of this part.
(2) Parental consent, or the consent of
an eligible child who has reached the
age of majority under State law, must be
obtained before personally identifiable
information is released to officials of
participating agencies providing or
paying for transition services in
accordance with § 300.321(b)(3).
(3) If a child is enrolled, or is going
to enroll in a private school that is not
located in the LEA of the parent’s
residence, parental consent must be
obtained before any personally
identifiable information about the child
is released between officials in the LEA
where the private school is located and
officials in the LEA of the parent’s
residence.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.623 Safeguards.
(a) Each participating agency must
protect the confidentiality of personally
identifiable information at collection,
storage, disclosure, and destruction
stages.
(b) One official at each participating
agency must assume responsibility for
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ensuring the confidentiality of any
personally identifiable information.
(c) All persons collecting or using
personally identifiable information must
receive training or instruction regarding
the State’s policies and procedures
under § 300.123 and 34 CFR part 99.
(d) Each participating agency must
maintain, for public inspection, a
current listing of the names and
positions of those employees within the
agency who may have access to
personally identifiable information.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.624 Destruction of information.
(a) The public agency must inform
parents when personally identifiable
information collected, maintained, or
used under this part is no longer needed
to provide educational services to the
child.
(b) The information must be destroyed
at the request of the parents. However,
a permanent record of a student’s name,
address, and phone number, his or her
grades, attendance record, classes
attended, grade level completed, and
year completed may be maintained
without time limitation.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.625 Children’s rights.
(a) The SEA must have in effect
policies and procedures regarding the
extent to which children are afforded
rights of privacy similar to those
afforded to parents, taking into
consideration the age of the child and
type or severity of disability.
(b) Under the regulations for FERPA
in 34 CFR 99.5(a), the rights of parents
regarding education records are
transferred to the student at age 18.
(c) If the rights accorded to parents
under Part B of the Act are transferred
to a student who reaches the age of
majority, consistent with § 300.520, the
rights regarding educational records in
§§ 300.613 through 300.624 must also be
transferred to the student. However, the
public agency must provide any notice
required under section 615 of the Act to
the student and the parents.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.626 Enforcement.
The SEA must have in effect the
policies and procedures, including
sanctions that the State uses, to ensure
that its policies and procedures
consistent with §§ 300.611 through
300.625 are followed and that the
requirements of the Act and the
regulations in this part are met.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.627 Department use of personally
identifiable information.
If the Department or its authorized
representatives collect any personally
identifiable information regarding
children with disabilities that is not
subject to the Privacy Act of 1974, 5
U.S.C. 552a, the Secretary applies the
requirements of 5 U.S.C. 552a(b)(1) and
(b)(2), 552a(b)(4) through (b)(11); 552a(c)
through 552a(e)(3)(B); 552a(e)(3)(D);
552a(e)(5) through (e)(10); 552a(h);
552a(m); and 552a(n); and the
regulations implementing those
provisions in 34 CFR part 5b.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Reports—Program Information
§ 300.640 Annual report of children
served—report requirement.
(a) The SEA must annually report to
the Secretary on the information
required by section 618 of the Act at the
times specified by the Secretary.
(b) The SEA must submit the report
on forms provided by the Secretary.
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0659, 1820–0621, 1820–
0518, 1820–0521, 1820–0517, and 1820–
0677)
(Authority: 20 U.S.C. 1418(a))
§ 300.641 Annual report of children
served—information required in the report.
(a) For purposes of the annual report
required by section 618 of the Act and
§ 300.640, the State and the Secretary of
the Interior must count and report the
number of children with disabilities
receiving special education and related
services on any date between October 1
and December 1 of each year.
(b) For the purpose of this reporting
provision, a child’s age is the child’s
actual age on the date of the child count.
(c) The SEA may not report a child
under more than one disability category.
(d) If a child with a disability has
more than one disability, the SEA must
report that child in accordance with the
following procedure:
(1) If a child has only two disabilities
and those disabilities are deafness and
blindness, and the child is not reported
as having a developmental delay, that
child must be reported under the
category ‘‘deaf-blindness.’’
(2) A child who has more than one
disability and is not reported as having
deaf-blindness or as having a
developmental delay must be reported
under the category ‘‘multiple
disabilities.’’
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0621, 1820–0521, and
1820–0517)
(Authority: 20 U.S.C. 1418(a), (b))
§ 300.642 Data reporting.
(a) Protection of personally
identifiable data. The data described in
section 618(a) of the Act and in
§ 300.641 must be publicly reported by
each State in a manner that does not
result in disclosure of data identifiable
to individual children.
(b) Sampling. The Secretary may
permit States and the Secretary of the
Interior to obtain data in section 618(a)
of the Act through sampling.
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0518, 1820–0521, and
1820–0517)
(Authority: 20 U.S.C. 1418(b))
§ 300.643 Annual report of children
served—certification.
The SEA must include in its report a
certification signed by an authorized
official of the agency that the
information provided under § 300.640 is
an accurate and unduplicated count of
children with disabilities receiving
special education and related services
on the dates in question.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0043)
(Authority: 20 U.S.C. 1418(a)(3))
§ 300.644 Annual report of children
served—criteria for counting children.
The SEA may include in its report
children with disabilities who are
enrolled in a school or program that is
operated or supported by a public
agency, and that—
(a) Provides them with both special
education and related services that meet
State standards;
(b) Provides them only with special
education, if a related service is not
required, that meets State standards; or
(c) In the case of children with
disabilities enrolled by their parents in
private schools, counts those children
who are eligible under the Act and
receive special education or related
services or both that meet State
standards under §§ 300.132 through
300.144.
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0659, 1820–0621, 1820–
0521, and 1820–0517)
(Authority: 20 U.S.C. 1418(a))
§ 300.645 Annual report of children
served—other responsibilities of the SEA.
In addition to meeting the other
requirements of §§ 300.640 through
300.644, the SEA must—
(a) Establish procedures to be used by
LEAs and other educational institutions
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in counting the number of children with
disabilities receiving special education
and related services;
(b) Set dates by which those agencies
and institutions must report to the SEA
to ensure that the State complies with
§ 300.640(a);
(c) Obtain certification from each
agency and institution that an
unduplicated and accurate count has
been made;
(d) Aggregate the data from the count
obtained from each agency and
institution, and prepare the reports
required under §§ 300.640 through
300.644; and
(e) Ensure that documentation is
maintained that enables the State and
the Secretary to audit the accuracy of
the count.
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0659, 1820–0621, 1820–
0518, 1820–0521, and 1820–0517)
(Authority: 20 U.S.C. 1418(a))
§ 300.646 Disproportionality.
(a) General. Each State that receives
assistance under Part B of the Act, and
the Secretary of the Interior, must
provide for the collection and
examination of data to determine if
significant disproportionality based on
race and ethnicity is occurring in the
State and the LEAs of the State with
respect to—
(1) The identification of children as
children with disabilities, including the
identification of children as children
with disabilities in accordance with a
particular impairment described in
section 602(3) of the Act;
(2) The placement in particular
educational settings of these children;
and
(3) The incidence, duration, and type
of disciplinary actions, including
suspensions and expulsions.
(b) Review and revision of policies,
practices, and procedures. In the case of
a determination of significant
disproportionality with respect to the
identification of children as children
with disabilities, or the placement in
particular educational settings of these
children, in accordance with paragraph
(a) of this section, the State or the
Secretary of the Interior must—
(1) Provide for the review and, if
appropriate revision of the policies,
procedures, and practices used in the
identification or placement to ensure
that the policies, procedures, and
practices comply with the requirements
of the Act.
(2) Require any LEA identified under
paragraph (a) of this section to reserve
the maximum amount of funds under
section 613(f) of the Act to provide
comprehensive coordinated early
intervening services to serve children in
the LEA, particularly, but not
exclusively, children in those groups
that were significantly overidentified
under paragraph (a) of this section; and
(3) Require the LEA to publicly report
on the revision of policies, practices,
and procedures described under
paragraph (b)(1) of this section.
(Authority: 20 U.S.C. 1418(d))
Subpart G—Authorization, Allotment,
Use of Funds, and Authorization of
Appropriations
Allotments, Grants, and Use of Funds
§ 300.700 Grants to States.
(a) Purpose of grants. The Secretary
makes grants to States, outlying areas,
and freely associated States (as defined
in § 300.717), and provides funds to the
Secretary of the Interior, to assist them
to provide special education and related
services to children with disabilities in
accordance with Part B of the Act.
(b) Maximum amount. The maximum
amount of the grant a State may receive
under section 611 of the Act is—
(1) For fiscal years 2005 and 2006—
(i) The number of children with
disabilities in the State who are
receiving special education and related
services—
(A) Aged three through five, if the
State is eligible for a grant under section
619 of the Act; and
(B) Aged 6 through 21; multiplied
by—
(ii) Forty (40) percent of the average
per-pupil expenditure in public
elementary schools and secondary
schools in the United States (as defined
in § 300.717); and
(2) For fiscal year 2007 and
subsequent fiscal years—
(i) The number of children with
disabilities in the 2004–2005 school
year in the State who received special
education and related services—
(A) Aged three through five if the
State is eligible for a grant under section
619 of the Act; and
(B) Aged 6 through 21; multiplied by
(ii) Forty (40) percent of the average
per-pupil expenditure in public
elementary schools and secondary
schools in the United States (as defined
in § 300.717);
(iii) Adjusted by the rate of annual
change in the sum of—
(A) Eighty-five (85) percent of the
State’s population of children aged 3
through 21 who are of the same age as
children with disabilities for whom the
State ensures the availability of FAPE
under Part B of the Act; and
(B) Fifteen (15) percent of the State’s
population of children described in
paragraph (b)(2)(iii)(A) of this section
who are living in poverty.
(Authority: 20 U.S.C. 1411(a) and (d))
§ 300.701 Outlying areas, freely associated
States, and the Secretary of the Interior.
(a) Outlying areas and freely
associated States. (1) Funds reserved.
From the amount appropriated for any
fiscal year under section 611(i) of the
Act, the Secretary reserves not more
than one percent, which must be used—
(i) To provide assistance to the
outlying areas in accordance with their
respective populations of individuals
aged 3 through 21; and
(ii) To provide each freely associated
State a grant in the amount that the
freely associated State received for fiscal
year 2003 under Part B of the Act, but
only if the freely associated State—
(A) Meets the applicable requirements
of Part B of the Act that apply to States.
(B) Meets the requirements in
paragraph (a)(2) of this section.
(2) Application. Any freely associated
State that wishes to receive funds under
Part B of the Act must include, in its
application for assistance—
(i) Information demonstrating that it
will meet all conditions that apply to
States under Part B of the Act.
(ii) An assurance that,
notwithstanding any other provision of
Part B of the Act, it will use those funds
only for the direct provision of special
education and related services to
children with disabilities and to
enhance its capacity to make FAPE
available to all children with
disabilities;
(iii) The identity of the source and
amount of funds, in addition to funds
under Part B of the Act, that it will make
available to ensure that FAPE is
available to all children with disabilities
within its jurisdiction; and
(iv) Such other information and
assurances as the Secretary may require.
(3) Special rule. The provisions of
Public Law 95–134, permitting the
consolidation of grants by the outlying
areas, do not apply to funds provided to
the outlying areas or to the freely
associated States under Part B of the
Act.
(b) Secretary of the Interior. From the
amount appropriated for any fiscal year
under section 611(i) of the Act, the
Secretary reserves 1.226 percent to
provide assistance to the Secretary of
the Interior in accordance with
§§ 300.707 through 300.716.
(Authority: 20 U.S.C. 1411(b))
§ 300.702 Technical assistance.
(a) In general. The Secretary may
reserve not more than one-half of one
percent of the amounts appropriated
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under Part B of the Act for each fiscal
year to support technical assistance
activities authorized under section
616(i) of the Act.
(b) Maximum amount. The maximum
amount the Secretary may reserve under
paragraph (a) of this section for any
fiscal year is $25,000,000, cumulatively
adjusted by the rate of inflation as
measured by the percentage increase, if
any, from the preceding fiscal year in
the Consumer Price Index For All Urban
Consumers, published by the Bureau of
Labor Statistics of the Department of
Labor.
(Authority: 20 U.S.C. 1411(c))
§ 300.703 Allocations to States.
(a) General. After reserving funds for
technical assistance under § 300.702,
and for payments to the outlying areas,
the freely associated States, and the
Secretary of the Interior under § 300.701
(a) and (b) for a fiscal year, the Secretary
allocates the remaining amount among
the States in accordance with
paragraphs (b), (c), and (d) of this
section.
(b) Special rule for use of fiscal year
1999 amount. If a State received any
funds under section 611 of the Act for
fiscal year 1999 on the basis of children
aged three through five, but does not
make FAPE available to all children
with disabilities aged three through five
in the State in any subsequent fiscal
year, the Secretary computes the State’s
amount for fiscal year 1999, solely for
the purpose of calculating the State’s
allocation in that subsequent year under
paragraph (c) or (d) of this section, by
subtracting the amount allocated to the
State for fiscal year 1999 on the basis of
those children.
(c) Increase in funds. If the amount
available for allocations to States under
paragraph (a) of this section for a fiscal
year is equal to or greater than the
amount allocated to the States under
section 611 of the Act for the preceding
fiscal year, those allocations are
calculated as follows:
(1) Allocation of increase.—(i)
General. Except as provided in
paragraph (c)(2) of this section, the
Secretary allocates for the fiscal year—
(A) To each State the amount the State
received under this section for fiscal
year 1999;
(B) Eighty-five (85) percent of any
remaining funds to States on the basis
of the States’ relative populations of
children aged 3 through 21 who are of
the same age as children with
disabilities for whom the State ensures
the availability of FAPE under Part B of
the Act; and
(C) Fifteen (15) percent of those
remaining funds to States on the basis
of the States’ relative populations of
children described in paragraph
(c)(1)(i)(B) of this section who are living
in poverty.
(ii) Data. For the purpose of making
grants under this section, the Secretary
uses the most recent population data,
including data on children living in
poverty, that are available and
satisfactory to the Secretary.
(2) Limitations. Notwithstanding
paragraph (c)(1) of this section,
allocations under this section are
subject to the following:
(i) Preceding year allocation. No
State’s allocation may be less than its
allocation under section 611 of the Act
for the preceding fiscal year.
(ii) Minimum. No State’s allocation
may be less than the greatest of—
(A) The sum of—
(1) The amount the State received
under section 611 of the Act for fiscal
year 1999; and
(2) One third of one percent of the
amount by which the amount
appropriated under section 611(i) of the
Act for the fiscal year exceeds the
amount appropriated for section 611 of
the Act for fiscal year 1999;
(B) The sum of—
(1) The amount the State received
under section 611 of the Act for the
preceding fiscal year; and
(2) That amount multiplied by the
percentage by which the increase in the
funds appropriated for section 611 of
the Act from the preceding fiscal year
exceeds 1.5 percent; or
(C) The sum of—
(1) The amount the State received
under section 611 of the Act for the
preceding fiscal year; and
(2) That amount multiplied by 90
percent of the percentage increase in the
amount appropriated for section 611 of
the Act from the preceding fiscal year.
(iii) Maximum. Notwithstanding
paragraph (c)(2)(ii) of t his section, no
State’s allocation under paragraph (a) of
this section may exceed the sum of—
(A) The amount the State received
under section 611 of the Act for the
preceding fiscal year; and
(B) That amount multiplied by the
sum of 1.5 percent and the percentage
increase in the amount appropriated
under section 611 of the Act from the
preceding fiscal year.
(3) Ratable reduction. If the amount
available for allocations to States under
paragraph (c) of this section is
insufficient to pay those allocations in
full, those allocations are ratably
reduced, subject to paragraph (c)(2)(i) of
this section.
(d) Decrease in funds. If the amount
available for allocations to States under
paragraph (a) of this section for a fiscal
year is less than the amount allocated to
the States under section 611 of the Act
for the preceding fiscal year, those
allocations are calculated as follows:
(1) Amounts greater than fiscal year
1999 allocations. If the amount available
for allocations under paragraph (a) of
this section is greater than the amount
allocated to the States for fiscal year
1999, each State is allocated the sum
of—
(i) 1999 amount. The amount the
State received under section 611 of the
Act for fiscal year 1999; and
(ii) Remaining funds. An amount that
bears the same relation to any remaining
funds as the increase the State received
under section 611 of the Act for the
preceding fiscal year over fiscal year
1999 bears to the total of all such
increases for all States.
(2) Amounts equal to or less than
fiscal year 1999 allocations.—(i)
General. If the amount available for
allocations under paragraph (a) of this
section is equal to or less than the
amount allocated to the States for fiscal
year 1999, each State is allocated the
amount it received for fiscal year 1999.
(ii) Ratable reduction. If the amount
available for allocations under
paragraph (d) of this section is
insufficient to make the allocations
described in paragraph (d)(2)(i) of this
section, those allocations are ratably
reduced.
(Authority: 20 U.S.C. 1411(d))
§ 300.704 State-level activities.
(a) State administration. (1) For the
purpose of administering Part B of the
Act, including paragraph (c) of this
section, section 619 of the Act, and the
coordination of activities under Part B
of the Act with, and providing technical
assistance to, other programs that
provide services to children with
disabilities—
(i) Each State may reserve for each
fiscal year not more than the maximum
amount the State was eligible to reserve
for State administration under section
611 of the Act for fiscal year 2004 or
$800,000 (adjusted in accordance with
paragraph (a)(2) of this section),
whichever is greater; and
(ii) Each outlying area may reserve for
each fiscal year not more than five
percent of the amount the outlying area
receives under § 300.701(a) for the fiscal
year or $35,000, whichever is greater.
(2) For each fiscal year, beginning
with fiscal year 2005, the Secretary
cumulatively adjusts—
(i) The maximum amount the State
was eligible to reserve for State
administration under section 611 of the
Act for fiscal year 2004; and
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(ii) $800,000, by the rate of inflation
as measured by the percentage increase,
if any, from the preceding fiscal year in
the Consumer Price Index For All Urban
Consumers, published by the Bureau of
Labor Statistics of the Department of
Labor.
(3) Prior to expenditure of funds
under paragraph (a) of this section, the
State must certify to the Secretary that
the arrangements to establish
responsibility for services pursuant to
section 612(a)(12)(A) of the Act are
current.
(4) Funds reserved under paragraph
(a)(1) of this section may be used for the
administration of Part C of the Act, if
the SEA is the lead agency for the State
under that Part.
(b) Other State-level activities. (1)
States may reserve a portion of their
allocations for other State-level
activities. The maximum amount that a
State may reserve for other State-level
activities is as follows:
(i) If the amount that the State sets
aside for State administration under
paragraph (a) of this section is greater
than $850,000 and the State opts to
finance a high cost fund under
paragraph (c) of this section:
(A) For fiscal years 2005 and 2006, 10
percent of the State’s allocation under
§ 300.703.
(B) For fiscal year 2007 and
subsequent fiscal years, an amount
equal to 10 percent of the State’s
allocation for fiscal year 2006 under
§ 300.703 adjusted cumulatively for
inflation.
(ii) If the amount that the State sets
aside for State administration under
paragraph (a) of this section is greater
than $850,000 and the State opts not to
finance a high cost fund under
paragraph (c) of this section—
(A) For fiscal years 2005 and 2006,
nine percent of the State’s allocation
under § 300.703.
(B) For fiscal year 2007 and
subsequent fiscal years, an amount
equal to nine percent of the State’s
allocation for fiscal year 2006 adjusted
cumulatively for inflation.
(iii) If the amount that the State sets
aside for State administration under
paragraph (a) of this section is less than
or equal to $850,000 and the State opts
to finance a high cost fund under
paragraph (c) of this section:
(A) For fiscal years 2005 and 2006,
10.5 percent of the State’s allocation
under § 300.703.
(B) For fiscal year 2007 and
subsequent fiscal years, an amount
equal to 10.5 percent of the State’s
allocation for fiscal year 2006 under
§ 300.703 adjusted cumulatively for
inflation.
(iv) If the amount that the State sets
aside for State administration under
paragraph (a) of this section is equal to
or less than $850,000 and the State opts
not to finance a high cost fund under
paragraph (c) of this section:
(A) For fiscal years 2005 and 2006,
nine and one-half percent of the State’s
allocation under § 300.703.
(B) For fiscal year 2007 and
subsequent fiscal years, an amount
equal to nine and one-half percent of the
State’s allocation for fiscal year 2006
under § 300.703 adjusted cumulatively
for inflation.
(2) The adjustment for inflation is the
rate of inflation as measured by the
percentage of increase, if any, from the
preceding fiscal year in the Consumer
Price Index for All Urban Consumers,
published by the Bureau of Labor
Statistics of the Department of Labor.
(3) Some portion of the funds reserved
under paragraph (b)(1) of this section
must be used to carry out the following
activities:
(i) For monitoring, enforcement, and
complaint investigation; and
(ii) To establish and implement the
mediation process required by section
615(e) of the Act, including providing
for the costs of mediators and support
personnel;
(4) Funds reserved under paragraph
(b)(1) of this section also may be used
to carry out the following activities:
(i) For support and direct services,
including technical assistance,
personnel preparation, and professional
development and training;
(ii) To support paperwork reduction
activities, including expanding the use
of technology in the IEP process;
(iii) To assist LEAs in providing
positive behavioral interventions and
supports and mental health services for
children with disabilities;
(iv) To improve the use of technology
in the classroom by children with
disabilities to enhance learning;
(v) To support the use of technology,
including technology with universal
design principles and assistive
technology devices, to maximize
accessibility to the general education
curriculum for children with
disabilities;
(vi) Development and implementation
of transition programs, including
coordination of services with agencies
involved in supporting the transition of
students with disabilities to
postsecondary activities;
(vii) To assist LEAs in meeting
personnel shortages;
(viii) To support capacity building
activities and improve the delivery of
services by LEAs to improve results for
children with disabilities;
(ix) Alternative programming for
children with disabilities who have
been expelled from school, and services
for children with disabilities in
correctional facilities, children enrolled
in State-operated or State-supported
schools, and children with disabilities
in charter schools;
(x) To support the development and
provision of appropriate
accommodations for children with
disabilities, or the development and
provision of alternate assessments that
are valid and reliable for assessing the
performance of children with
disabilities, in accordance with sections
1111(b) and 6111 of the ESEA; and
(xi) To provide technical assistance to
schools and LEAs, and direct services,
including supplemental educational
services as defined in section 1116(e) of
the ESEA to children with disabilities,
in schools or LEAs identified for
improvement under section 1116 of the
ESEA on the sole basis of the
assessment results of the disaggregated
subgroup of children with disabilities,
including providing professional
development to special and regular
education teachers, who teach children
with disabilities, based on scientifically
based research to improve educational
instruction, in order to improve
academic achievement to meet or
exceed the objectives established by the
State under section 1111(b)(2)(G) of the
ESEA.
(c) Local educational agency high cost
fund. (1) In general—
(i) For the purpose of assisting LEAs
(including a charter school that is an
LEA or a consortium of LEAs) in
addressing the needs of high need
children with disabilities, each State has
the option to reserve for each fiscal year
10 percent of the amount of funds the
State reserves for other State-level
activities under paragraph (b)(1) of this
section—
(A) To finance and make
disbursements from the high cost fund
to LEAs in accordance with paragraph
(c) of this section during the first and
succeeding fiscal years of the high cost
fund; and
(B) To support innovative and
effective ways of cost sharing by the
State, by an LEA, or among a
consortium of LEAs, as determined by
the State in coordination with
representatives from LEAs, subject to
paragraph (c)(2)(ii) of this section.
(ii) For purposes of paragraph (c) of
this section, local educational agency
includes a charter school that is an LEA,
or a consortium of LEAs.
(2)(i) A State must not use any of the
funds the State reserves pursuant to
paragraph (c)(1)(i) of this section, which
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are solely for disbursement to LEAs, for
costs associated with establishing,
supporting, and otherwise
administering the fund. The State may
use funds the State reserves under
paragraph (a) of this section for those
administrative costs.
(ii) A State must not use more than 5
percent of the funds the State reserves
pursuant to paragraph (c)(1)(i) of this
section for each fiscal year to support
innovative and effective ways of cost
sharing among consortia of LEAs.
(3)(i) The SEA must develop, not later
than 90 days after the State reserves
funds under paragraph (c)(1)(i) of this
section, annually review, and amend as
necessary, a State plan for the high cost
fund. Such State plan must—
(A) Establish, in consultation and
coordination with representatives from
LEAs, a definition of a high need child
with a disability that, at a minimum—
(1) Addresses the financial impact a
high need child with a disability has on
the budget of the child’s LEA; and
(2) Ensures that the cost of the high
need child with a disability is greater
than 3 times the average per pupil
expenditure (as defined in section 9101
of the ESEA) in that State;
(B) Establish eligibility criteria for the
participation of an LEA that, at a
minimum, take into account the number
and percentage of high need children
with disabilities served by an LEA;
(C) Establish criteria to ensure that
placements supported by the fund are
consistent with the requirements of
§§ 300.114 through 300.118;
(D) Develop a funding mechanism
that provides distributions each fiscal
year to LEAs that meet the criteria
developed by the State under
paragraph(c)(3)(i)(B) of this section;
(E) Establish an annual schedule by
which the SEA must make its
distributions from the high cost fund
each fiscal year; and
(F) If the State elects to reserve funds
for supporting innovative and effective
ways of cost sharing under paragraph
(c)(1)(i)(B) of this section, describe how
these funds will be used.
(ii) The State must make its final State
plan available to the public not less than
30 days before the beginning of the
school year, including dissemination of
such information on the State Web site.
(4)(i) Each SEA must make all annual
disbursements from the high cost fund
established under paragraph (c)(1)(i) of
this section in accordance with the State
plan published pursuant to paragraph
(c)(3) of this section.
(ii) The costs associated with
educating a high need child with a
disability, as defined under paragraph
(c)(3)(i)(A) of this section, are only those
costs associated with providing direct
special education and related services to
the child that are identified in that
child’s IEP, including the cost of room
and board for a residential placement
determined necessary, consistent with
§ 300.114, to implement a child’s IEP.
(iii) The funds in the high cost fund
remain under the control of the State
until disbursed to an LEA to support a
specific child who qualifies under the
State plan for the high cost funds or
distributed to LEAs, consistent with
paragraph (c)(9) of this section.
(5) The disbursements under
paragraph (c)(4) of this section must not
be used to support legal fees, court
costs, or other costs associated with a
cause of action brought on behalf of a
child with a disability to ensure FAPE
for such child.
(6) Nothing in paragraph (c) of this
section—
(i) Limits or conditions the right of a
child with a disability who is assisted
under Part B of the Act to receive FAPE
pursuant to section 612(a)(1) of the Act
in the least restrictive environment
pursuant to section 612(a)(5) of the Act;
or
(ii) Authorizes an SEA or LEA to
establish a limit on what may be spent
on the education of a child with a
disability.
(7) Notwithstanding the provisions of
paragraphs (c)(1) through (6) of this
section, a State may use funds reserved
pursuant to paragraph (c)(1)(i) of this
section for implementing a placement
neutral cost sharing and reimbursement
program of high need, low incidence,
catastrophic, or extraordinary aid to
LEAs that provides services to high
need children based on eligibility
criteria for such programs that were
created not later than January 1, 2004,
and are currently in operation, if such
program serves children that meet the
requirement of the definition of a high
need child with a disability as described
in paragraph (c)(3)(i)(A) of this section.
(8) Disbursements provided under
paragraph (c) of this section must not be
used to pay costs that otherwise would
be reimbursed as medical assistance for
a child with a disability under the State
Medicaid program under Title XIX of
the Social Security Act.
(9) Funds reserved under paragraph
(c)(1)(i) of this section from the
appropriation for any fiscal year, but not
expended pursuant to paragraph (c)(4)
of this section before the beginning of
their last year of availability for
obligation, must be allocated to LEAs in
the same manner as other funds from
the appropriation for that fiscal year are
allocated to LEAs under § 300.705
during their final year of availability.
(d) Inapplicability of certain
prohibitions. A State may use funds the
State reserves under paragraphs (a) and
(b) of this section without regard to—
(1) The prohibition on commingling
of funds in § 300.162(b).
(2) The prohibition on supplanting
other funds in § 300.162(c).
(e) Special rule for increasing funds.
A State may use funds the State reserves
under paragraph (a)(1) of this section as
a result of inflationary increases under
paragraph (a)(2) of this section to carry
out activities authorized under
paragraph(b)(4)(i), (iii), (vii), or (viii) of
this section.
(f) Flexibility in using funds for Part
C. Any State eligible to receive a grant
under section 619 of the Act may use
funds made available under paragraph
(a)(1) of this section, § 300.705(c), or
§ 300.814(e) to develop and implement
a State policy jointly with the lead
agency under Part C of the Act and the
SEA to provide early intervention
services (which must include an
educational component that promotes
school readiness and incorporates
preliteracy, language, and numeracy
skills) in accordance with Part C of the
Act to children with disabilities who are
eligible for services under section 619 of
the Act and who previously received
services under Part C of the Act until
the children enter, or are eligible under
State law to enter, kindergarten, or
elementary school as appropriate.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1411(e))
§ 300.705 Subgrants to LEAs.
(a) Subgrants required. Each State that
receives a grant under section 611 of the
Act for any fiscal year must distribute
any funds the State does not reserve
under § 300.704 to LEAs (including
public charter schools that operate as
LEAs) in the State that have established
their eligibility under section 613 of the
Act for use in accordance with Part B of
the Act.
(b) Allocations to LEAs. For each
fiscal year for which funds are allocated
to States under § 300.703, each State
shall allocate funds as follows:
(1) Base payments. The State first
must award each LEA described in
paragraph (a) of this section the amount
the LEA would have received under
section 611 of the Act for fiscal year
1999, if the State had distributed 75
percent of its grant for that year under
section 611(d) of the Act, as that section
was then in effect.
(2) Base payment adjustments. For
any fiscal year after 1999—
(i) If a new LEA is created, the State
must divide the base allocation
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determined under paragraph (b)(1) of
this section for the LEAs that would
have been responsible for serving
children with disabilities now being
served by the new LEA, among the new
LEA and affected LEAs based on the
relative numbers of children with
disabilities ages 3 through 21, or ages 6
through 21 if a State has had its
payment reduced under § 300.703(b),
currently provided special education by
each of the LEAs;
(ii) If one or more LEAs are combined
into a single new LEA, the State must
combine the base allocations of the
merged LEAs; and
(iii) If, for two or more LEAs,
geographic boundaries or administrative
responsibility for providing services to
children with disabilities ages 3 through
21 change, the base allocations of
affected LEAs must be redistributed
among affected LEAs based on the
relative numbers of children with
disabilities ages 3 through 21, or ages 6
through 21 if a State has had its
payment reduced under § 300.703(b),
currently provided special education by
each affected LEA.
(3) Allocation of remaining funds.
After making allocations under
paragraph (b)(1) of this section, as
adjusted by paragraph (b)(2) of this
section, the State must—
(i) Allocate 85 percent of any
remaining funds to those LEAs on the
basis of the relative numbers of children
enrolled in public and private
elementary schools and secondary
schools within the LEA’s jurisdiction;
and
(ii) Allocate 15 percent of those
remaining funds to those LEAs in
accordance with their relative numbers
of children living in poverty, as
determined by the SEA.
(c) Reallocation of funds. If an SEA
determines that an LEA is adequately
providing FAPE to all children with
disabilities residing in the area served
by that agency with State and local
funds, the SEA may reallocate any
portion of the funds under this part that
are not needed by that LEA to provide
FAPE to other LEAs in the State that are
not adequately providing special
education and related services to all
children with disabilities residing in the
areas served by those other LEAs.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1411(f))
§ 300.706 [Reserved]
Secretary of the Interior
§ 300.707 Use of amounts by Secretary of
the Interior.
(a) Definitions. For purposes of
§§ 300.707 through 300.716, the
following definitions apply:
(1) Reservation means Indian Country
as defined in 18 U.S.C. 1151.
(2) Tribal governing body has the
definition given that term in 25 U.S.C.
2021(19).
(b) Provision of amounts for
assistance. The Secretary provides
amounts to the Secretary of the Interior
to meet the need for assistance for the
education of children with disabilities
on reservations aged 5 to 21, inclusive,
enrolled in elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior. The amount of the payment
for any fiscal year is equal to 80 percent
of the amount allotted under section
611(b)(2) of the Act for that fiscal year.
Of the amount described in the
preceding sentence, after the Secretary
of the Interior reserves funds for
administration under § 300.710, 80
percent must be allocated to such
schools by July 1 of that fiscal year and
20 percent must be allocated to such
schools by September 30 of that fiscal
year.
(c) Additional requirement. With
respect to all other children aged 3 to
21, inclusive, on reservations, the SEA
of the State in which the reservation is
located must ensure that all of the
requirements of Part B of the Act are
implemented.
(Authority: 20 U.S.C. 1411(h)(1))
§ 300.708 Submission of information.
The Secretary may provide the
Secretary of the Interior amounts under
§ 300.707 for a fiscal year only if the
Secretary of the Interior submits to the
Secretary information that—
(a) Meets the requirements of section
612(a)(1), (3) through (9), (10)(B)
through (C), (11) through (12), (14)
through (16), (19), and (21) through (25)
of the Act (including monitoring and
evaluation activities);
(b) Meets the requirements of section
612(b) and (e) of the Act;
(c) Meets the requirements of section
613(a)(1), (2)(A)(i), (7) through (9) and
section 613(i) of the Act (references to
LEAs in these sections must be read as
references to elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior);
(d) Meets the requirements of section
616 of the Act that apply to States
(references to LEAs in section 616 of the
Act must be read as references to
elementary schools and secondary
schools for Indian children operated or
funded by the Secretary of the Interior).
(e) Meets the requirements of this part
that implement the sections of the Act
listed in paragraphs (a) through (d) of
this section;
(f) Includes a description of how the
Secretary of the Interior will coordinate
the provision of services under Part B of
the Act with LEAs, tribes and tribal
organizations, and other private and
Federal service providers;
(g) Includes an assurance that there
are public hearings, adequate notice of
the hearings, and an opportunity for
comment afforded to members of tribes,
tribal governing bodies, and affected
local school boards before the adoption
of the policies, programs, and
procedures related to the requirements
described in paragraphs (a) through (d)
of this section;
(h) Includes an assurance that the
Secretary of the Interior provides the
information that the Secretary may
require to comply with section 618 of
the Act;
(i)(1) Includes an assurance that the
Secretary of the Interior and the
Secretary of Health and Human Services
have entered into a memorandum of
agreement, to be provided to the
Secretary, for the coordination of
services, resources, and personnel
between their respective Federal, State,
and local offices and with the SEAs and
LEAs and other entities to facilitate the
provision of services to Indian children
with disabilities residing on or near
reservations.
(2) The agreement must provide for
the apportionment of responsibilities
and costs, including child find,
evaluation, diagnosis, remediation or
therapeutic measures, and (where
appropriate) equipment and medical or
personal supplies, as needed for a child
with a disability to remain in a school
or program; and
(j) Includes an assurance that the
Department of the Interior will
cooperate with the Department in its
exercise of monitoring and oversight of
the requirements in this section and
§§ 300.709 through 300.711 and
§§ 300.713 through 300.716, and any
agreements entered into between the
Secretary of the Interior and other
entities under Part B of the Act, and will
fulfill its duties under Part B of the Act.
The Secretary withholds payments
under § 300.707 with respect to the
requirements described in this section
in the same manner as the Secretary
withholds payments under section
616(e)(6) of the Act.
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(Authority: 20 U.S.C. 1411(h)(2) and (3))
§ 300.709 Public participation.
In fulfilling the requirements of
§ 300.708 the Secretary of the Interior
must provide for public participation
consistent with § 300.165.
(Authority: 20 U.S.C. 1411(h))
§ 300.710 Use of funds under Part B of the
Act.
(a) The Secretary of the Interior may
reserve five percent of its payment
under § 300.707(b) in any fiscal year, or
$500,000, whichever is greater, for
administrative costs in carrying out the
provisions of §§ 300.707 through
300.709, 300.711, and 300.713 through
300.716.
(b) Payments to the Secretary of the
Interior under § 300.712 must be used in
accordance with that section.
(Authority: 20 U.S.C. 1411(h)(1)(A))
§ 300.711 Early intervening services.
(a) The Secretary of the Interior may
allow each elementary school and
secondary school for Indian children
operated or funded by the Secretary of
the Interior to use not more than 15
percent of the amount the school
receives under § 300.707(b) for any
fiscal year, in combination with other
amounts (which may include amounts
other than education funds), to develop
and implement coordinated, early
intervening services, which may include
interagency financing structures, for
children in kindergarten through grade
12 (with a particular emphasis on
children in kindergarten through grade
three) who have not been identified as
needing special education or related
services but who need additional
academic and behavioral support to
succeed in a general education
environment, in accordance with
section 613(f) of the Act.
(b) Each elementary school and
secondary school for Indian children
operated or funded by the Secretary of
the Interior that develops and maintains
coordinated early intervening services
in accordance with section 613(f) of the
Act and § 300.226 must annually report
to the Secretary of the Interior in
accordance with section 613(f) of the
Act.
(Authority: 20 U.S.C. 1411(h) and 1413(f))
§ 300.712 Payments for education and
services for Indian children with disabilities
aged three through five.
(a) General. With funds appropriated
under section 611(i) of the Act, the
Secretary makes payments to the
Secretary of the Interior to be
distributed to tribes or tribal
organizations (as defined under section
4 of the Indian Self-Determination and
Education Assistance Act) or consortia
of tribes or tribal organizations to
provide for the coordination of
assistance for special education and
related services for children with
disabilities aged three through five on
reservations served by elementary
schools and secondary schools for
Indian children operated or funded by
the Department of the Interior. The
amount of the payments under
paragraph (b) of this section for any
fiscal year is equal to 20 percent of the
amount allotted under § 300.701(b).
(b) Distribution of funds. The
Secretary of the Interior must distribute
the total amount of the payment under
paragraph (a) of this section by
allocating to each tribe, tribal
organization, or consortium an amount
based on the number of children with
disabilities aged three through five
residing on reservations as reported
annually, divided by the total of those
children served by all tribes or tribal
organizations.
(c) Submission of information. To
receive a payment under this section,
the tribe or tribal organization must
submit the figures to the Secretary of the
Interior as required to determine the
amounts to be allocated under
paragraph (b) of this section. This
information must be compiled and
submitted to the Secretary.
(d) Use of funds. (1) The funds
received by a tribe or tribal organization
must be used to assist in child find,
screening, and other procedures for the
early identification of children aged
three through five, parent training, and
the provision of direct services. These
activities may be carried out directly or
through contracts or cooperative
agreements with the BIA, LEAs, and
other public or private nonprofit
organizations. The tribe or tribal
organization is encouraged to involve
Indian parents in the development and
implementation of these activities.
(2) The tribe or tribal organization, as
appropriate, must make referrals to
local, State, or Federal entities for the
provision of services or further
diagnosis.
(e) Biennial report. To be eligible to
receive a grant pursuant to paragraph (a)
of this section, the tribe or tribal
organization must provide to the
Secretary of the Interior a biennial
report of activities undertaken under
this section, including the number of
contracts and cooperative agreements
entered into, the number of children
contacted and receiving services for
each year, and the estimated number of
children needing services during the
two years following the year in which
the report is made. The Secretary of the
Interior must include a summary of this
information on a biennial basis in the
report to the Secretary required under
section 611(h) of the Act. The Secretary
may require any additional information
from the Secretary of the Interior.
(f) Prohibitions. None of the funds
allocated under this section may be
used by the Secretary of the Interior for
administrative purposes, including
child count and the provision of
technical assistance.
(Authority: 20 U.S.C. 1411(h)(4))
§ 300.713 Plan for coordination of
services.
(a) The Secretary of the Interior must
develop and implement a plan for the
coordination of services for all Indian
children with disabilities residing on
reservations served by elementary
schools and secondary schools for
Indian children operated or funded by
the Secretary of the Interior.
(b) The plan must provide for the
coordination of services benefiting those
children from whatever source,
including tribes, the Indian Health
Service, other BIA divisions, other
Federal agencies, State educational
agencies, and State, local, and tribal
juvenile and adult correctional facilities.
(c) In developing the plan, the
Secretary of the Interior must consult
with all interested and involved parties.
(d) The plan must be based on the
needs of the children and the system
best suited for meeting those needs, and
may involve the establishment of
cooperative agreements between the
BIA, other Federal agencies, and other
entities.
(e) The plan also must be distributed
upon request to States; to SEAs, LEAs,
and other agencies providing services to
infants, toddlers, and children with
disabilities; to tribes; and to other
interested parties.
(Authority: 20 U.S.C. 1411(h)(5))
§ 300.714 Establishment of advisory
board.
(a) To meet the requirements of
section 612(a)(21) of the Act, the
Secretary of the Interior must establish,
under the BIA, an advisory board
composed of individuals involved in or
concerned with the education and
provision of services to Indian infants,
toddlers, children, and youth with
disabilities, including Indians with
disabilities, Indian parents or guardians
of such children, teachers, service
providers, State and local educational
officials, representatives of tribes or
tribal organizations, representatives
from State Interagency Coordinating
Councils under section 641 of the Act in
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States having reservations, and other
members representing the various
divisions and entities of the BIA. The
chairperson must be selected by the
Secretary of the Interior.
(b) The advisory board must—
(1) Assist in the coordination of
services within the BIA and with other
local, State, and Federal agencies in the
provision of education for infants,
toddlers, and children with disabilities;
(2) Advise and assist the Secretary of
the Interior in the performance of the
Secretary of the Interior’s
responsibilities described in section
611(h) of the Act;
(3) Develop and recommend policies
concerning effective inter- and intra-
agency collaboration, including
modifications to regulations, and the
elimination of barriers to inter- and
intra-agency programs and activities;
(4) Provide assistance and
disseminate information on best
practices, effective program
coordination strategies, and
recommendations for improved early
intervention services or educational
programming for Indian infants,
toddlers, and children with disabilities;
and
(5) Provide assistance in the
preparation of information required
under § 300.708(h).
(Authority: 20 U.S.C. 1411(h)(6))
§ 300.715 Annual reports.
(a) In general. The advisory board
established under § 300.714 must
prepare and submit to the Secretary of
the Interior and to Congress an annual
report containing a description of the
activities of the advisory board for the
preceding year.
(b) Availability. The Secretary of the
Interior must make available to the
Secretary the report described in
paragraph (a) of this section.
(Authority: 20 U.S.C. 1411(h)(7))
§ 300.716 Applicable regulations.
The Secretary of the Interior must
comply with the requirements of
§§ 300.103 through 300.108, 300.110
through 300.124, 300.145 through
300.154, 300.156 through 300.160,
300.165, 300.170 through 300.186,
300.226, 300.300 through 300.606,
300.610 through 300.646, and 300.707
through 300.716.
(Authority: 20 U.S.C. 1411(h)(2)(A))
Definitions that Apply to this Subpart
§ 300.717 Definitions applicable to
allotments, grants, and use of funds.
As used in this subpart—
(a) Freely associated States means the
Republic of the Marshall Islands, the
Federated States of Micronesia, and the
Republic of Palau;
(b) Outlying areas means the United
States Virgin Islands, Guam, American
Samoa, and the Commonwealth of the
Northern Mariana Islands;
(c) State means each of the 50 States,
the District of Columbia, and the
Commonwealth of Puerto Rico; and
(d) Average per-pupil expenditure in
public elementary schools and
secondary schools in the United States
means—
(1) Without regard to the source of
funds—
(i) The aggregate current
expenditures, during the second fiscal
year preceding the fiscal year for which
the determination is made (or, if
satisfactory data for that year are not
available, during the most recent
preceding fiscal year for which
satisfactory data are available) of all
LEAs in the 50 States and the District of
Columbia); plus
(ii) Any direct expenditures by the
State for the operation of those agencies;
divided by (2) The aggregate number of
children in average daily attendance to
whom those agencies provided free
public education during that preceding
year.
(Authority: 20 U.S.C. 1401(22), 1411(b)(1) (C)
and (g))
Acquisition of Equipment and
Construction or Alteration of Facilities
§ 300.718 Acquisition of equipment and
construction or alteration of facilities.
(a) General. If the Secretary
determines that a program authorized
under Part B of the Act will be
improved by permitting program funds
to be used to acquire appropriate
equipment, or to construct new facilities
or alter existing facilities, the Secretary
may allow the use of those funds for
those purposes.
(b) Compliance with certain
regulations. Any construction of new
facilities or alteration of existing
facilities under paragraph (a) of this
section must comply with the
requirements of—
(1) Appendix A of part 36 of title 28,
Code of Federal Regulations (commonly
known as the ‘‘Americans with
Disabilities Accessibility Standards for
Buildings and Facilities’’); or
(2) Appendix A of subpart 101–19.6 of
title 41, Code of Federal Regulations
(commonly known as the ‘‘Uniform
Federal Accessibility Standards’’).
(Authority: 20 U.S.C. 1404)
Subpart H—Preschool Grants for
Children with Disabilities
§ 300.800 In general.
The Secretary provides grants under
section 619 of the Act to assist States to
provide special education and related
services in accordance with Part B of the
Act—
(a) To children with disabilities aged
three through five years; and
(b) At a State’s discretion, to two-year-
old children with disabilities who will
turn three during the school year.
(Authority: 20 U.S.C. 1419(a))
§§ 300.801–300.802 [Reserved]
§ 300.803 Definition of State.
As used in this subpart, State means
each of the 50 States, the District of
Columbia, and the Commonwealth of
Puerto Rico.
(Authority: 20 U.S.C. 1419(i))
§ 300.804 Eligibility.
A State is eligible for a grant under
section 619 of the Act if the State—
(a) Is eligible under section 612 of the
Act to receive a grant under Part B of the
Act; and
(b) Makes FAPE available to all
children with disabilities, aged three
through five, residing in the State.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1419(b))
§ 300.805 [Reserved]
§ 300.806 Eligibility for financial
assistance.
No State or LEA, or other public
institution or agency, may receive a
grant or enter into a contract or
cooperative agreement under subpart 2
or 3 of Part D of the Act that relates
exclusively to programs, projects, and
activities pertaining to children aged
three through five years, unless the State
is eligible to receive a grant under
section 619(b) of the Act.
(Authority: 20 U.S.C. 1481(e))
§ 300.807 Allocations to States.
The Secretary allocates the amount
made available to carry out section 619
of the Act for a fiscal year among the
States in accordance with §§ 300.808
through 300.810.
(Authority: 20 U.S.C. 1419(c)(1))
§ 300.808 Increase in funds.
If the amount available for allocation
to States under § 300.807 for a fiscal
year is equal to or greater than the
amount allocated to the States under
section 619 of the Act for the preceding
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fiscal year, those allocations are
calculated as follows:
(a) Except as provided in § 300.809,
the Secretary—
(1) Allocates to each State the amount
the State received under section 619 of
the Act for fiscal year 1997;
(2) Allocates 85 percent of any
remaining funds to States on the basis
of the States’ relative populations of
children aged three through five; and
(3) Allocates 15 percent of those
remaining funds to States on the basis
of the States’ relative populations of all
children aged three through five who
are living in poverty.
(b) For the purpose of making grants
under this section, the Secretary uses
the most recent population data,
including data on children living in
poverty, that are available and
satisfactory to the Secretary.
(Authority: 20 U.S.C. 1419(c)(2)(A))
§ 300.809 Limitations.
(a) Notwithstanding § 300.808,
allocations under that section are
subject to the following:
(1) No State’s allocation may be less
than its allocation under section 619 of
the Act for the preceding fiscal year.
(2) No State’s allocation may be less
than the greatest of—
(i) The sum of—
(A) The amount the State received
under section 619 of the Act for fiscal
year 1997; and
(B) One-third of one percent of the
amount by which the amount
appropriated under section 619(j) of the
Act for the fiscal year exceeds the
amount appropriated for section 619 of
the Act for fiscal year 1997;
(ii) The sum of—
(A) The amount the State received
under section 619 of the Act for the
preceding fiscal year; and
(B) That amount multiplied by the
percentage by which the increase in the
funds appropriated under section 619 of
the Act from the preceding fiscal year
exceeds 1.5 percent; or
(iii) The sum of—
(A) The amount the State received
under section 619 of the Act for the
preceding fiscal year; and
(B) That amount multiplied by 90
percent of the percentage increase in the
amount appropriated under section 619
of the Act from the preceding fiscal
year.
(b) Notwithstanding paragraph (a)(2)
of this section, no State’s allocation
under § 300.808 may exceed the sum
of—
(1) The amount the State received
under section 619 of the Act for the
preceding fiscal year; and
(2) That amount multiplied by the
sum of 1.5 percent and the percentage
increase in the amount appropriated
under section 619 of the Act from the
preceding fiscal year.
(c) If the amount available for
allocation to States under § 300.808 and
paragraphs (a) and (b) of this section is
insufficient to pay those allocations in
full, those allocations are ratably
reduced, subject to paragraph (a)(1) of
this section.
(Authority: 20 U.S.C. 1419(c)(2)(B) and
(c)(2)(C))
§ 300.810 Decrease in funds.
If the amount available for allocations
to States under § 300.807 for a fiscal
year is less than the amount allocated to
the States under section 619 of the Act
for the preceding fiscal year, those
allocations are calculated as follows:
(a) If the amount available for
allocations is greater than the amount
allocated to the States for fiscal year
1997, each State is allocated the sum
of—
(1) The amount the State received
under section 619 of the Act for fiscal
year 1997; and
(2) An amount that bears the same
relation to any remaining funds as the
increase the State received under
section 619 of the Act for the preceding
fiscal year over fiscal year 1997 bears to
the total of all such increases for all
States.
(b) If the amount available for
allocations is equal to or less than the
amount allocated to the States for fiscal
year 1997, each State is allocated the
amount the State received for fiscal year
1997, ratably reduced, if necessary.
(Authority: 20 U.S.C. 1419(c)(3))
§ 300.811 [Reserved]
§ 300.812 Reservation for State activities.
(a) Each State may reserve not more
than the amount described in paragraph
(b) of this section for administration and
other State-level activities in accordance
with §§ 300.813 and 300.814.
(b) For each fiscal year, the Secretary
determines and reports to the SEA an
amount that is 25 percent of the amount
the State received under section 619 of
the Act for fiscal year 1997,
cumulatively adjusted by the Secretary
for each succeeding fiscal year by the
lesser of—
(1) The percentage increase, if any,
from the preceding fiscal year in the
State’s allocation under section 619 of
the Act; or
(2) The rate of inflation, as measured
by the percentage increase, if any, from
the preceding fiscal year in the
Consumer Price Index For All Urban
Consumers, published by the Bureau of
Labor Statistics of the Department of
Labor.
(Authority: 20 U.S.C. 1419(d))
§ 300.813 State administration.
(a) For the purpose of administering
section 619 of the Act (including the
coordination of activities under Part B
of the Act with, and providing technical
assistance to, other programs that
provide services to children with
disabilities), a State may use not more
than 20 percent of the maximum
amount the State may reserve under
§ 300.812 for any fiscal year.
(b) Funds described in paragraph (a)
of this section may also be used for the
administration of Part C of the Act.
(Authority: 20 U.S.C. 1419(e))
§ 300.814 Other State-level activities.
Each State must use any funds the
State reserves under § 300.812 and does
not use for administration under
§ 300.813—
(a) For support services (including
establishing and implementing the
mediation process required by section
615(e) of the Act), which may benefit
children with disabilities younger than
three or older than five as long as those
services also benefit children with
disabilities aged three through five;
(b) For direct services for children
eligible for services under section 619 of
the Act;
(c) For activities at the State and local
levels to meet the performance goals
established by the State under section
612(a)(15) of the Act;
(d) To supplement other funds used to
develop and implement a statewide
coordinated services system designed to
improve results for children and
families, including children with
disabilities and their families, but not
more than one percent of the amount
received by the State under section 619
of the Act for a fiscal year;
(e) To provide early intervention
services (which must include an
educational component that promotes
school readiness and incorporates
preliteracy, language, and numeracy
skills) in accordance with Part C of the
Act to children with disabilities who are
eligible for services under section 619 of
the Act and who previously received
services under Part C of the Act until
such children enter, or are eligible
under State law to enter, kindergarten;
or
(f) At the State’s discretion, to
continue service coordination or case
management for families who receive
services under Part C of the Act,
consistent with § 300.814(e).
(Authority: 20 U.S.C. 1419(f))
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§ 300.815 Subgrants to LEAs.
Each State that receives a grant under
section 619 of the Act for any fiscal year
must distribute all of the grant funds
that the State does not reserve under
§ 300.812 to LEAs in the State that have
established their eligibility under
section 613 of the Act.
(Authority: 20 U.S.C. 1419(g)(1))
§ 300.816 Allocations to LEAs.
(a) Base payments. The State must
first award each LEA described in
§ 300.815 the amount that agency would
have received under section 619 of the
Act for fiscal year 1997 if the State had
distributed 75 percent of its grant for
that year under section 619(c)(3), as
such section was then in effect.
(b) Base payment adjustments. For
fiscal year 1998 and beyond—
(1) If a new LEA is created, the State
must divide the base allocation
determined under paragraph (a) of this
section for the LEAs that would have
been responsible for serving children
with disabilities now being served by
the new LEA, among the new LEA and
affected LEAs based on the relative
numbers of children with disabilities
ages three through five currently
provided special education by each of
the LEAs;
(2) If one or more LEAs are combined
into a single new LEA, the State must
combine the base allocations of the
merged LEAs; and
(3) If for two or more LEAs,
geographic boundaries or administrative
responsibility for providing services to
children with disabilities ages three
through five changes, the base
allocations of affected LEAs must be
redistributed among affected LEAs
based on the relative numbers of
children with disabilities ages three
through five currently provided special
education by each affected LEA.
(c) Allocation of remaining funds.
After making allocations under
paragraph (a) of this section, the State
must—
(1) Allocate 85 percent of any
remaining funds to those LEAs on the
basis of the relative numbers of children
enrolled in public and private
elementary schools and secondary
schools within the LEA’s jurisdiction;
and
(2) Allocate 15 percent of those
remaining funds to those LEAs in
accordance with their relative numbers
of children living in poverty, as
determined by the SEA.
(d) Use of best data. For the purpose
of making grants under this section,
States must apply on a uniform basis
across all LEAs the best data that are
available to them on the numbers of
children enrolled in public and private
elementary and secondary schools and
the numbers of children living in
poverty.
(Authority: 20 U.S.C. 1419(g)(1))
§ 300.817 Reallocation of LEA funds.
If an SEA determines that an LEA is
adequately providing FAPE to all
children with disabilities aged three
through five residing in the area served
by the LEA with State and local funds,
the SEA may reallocate any portion of
the funds under section 619 of the Act
that are not needed by that LEA to
provide FAPE to other LEAs in the State
that are not adequately providing
special education and related services to
all children with disabilities aged three
through five residing in the areas the
other LEAs serve.
(Authority: 20 U.S.C. 1419(g)(2))
§ 300.818 Part C of the Act inapplicable.
Part C of the Act does not apply to
any child with a disability receiving
FAPE, in accordance with Part B of the
Act, with funds received under section
619 of the Act.
(Authority: 20 U.S.C. 1419(h))
Appendix A to Part 300—Excess Costs
Calculation
Except as otherwise provided, amounts
provided to an LEA under Part B of the Act
may be used only to pay the excess costs of
providing special education and related
services to children with disabilities. Excess
costs are those costs for the education of an
elementary school or secondary school
student with a disability that are in excess of
the average annual per student expenditure
in an LEA during the preceding school year
for an elementary school or secondary school
student, as may be appropriate. An LEA must
spend at least the average annual per student
expenditure on the education of an
elementary school or secondary school child
with a disability before funds under Part B
of the Act are used to pay the excess costs
of providing special education and related
services.
Section 602(8) of the Act and § 300.16
require the LEA to compute the minimum
average amount separately for children with
disabilities in its elementary schools and for
children with disabilities in its secondary
schools. LEAs may not compute the
minimum average amount it must spend on
the education of children with disabilities
based on a combination of the enrollments in
its elementary schools and secondary
schools.
The following example shows how to
compute the minimum average amount an
LEA must spend for the education of each of
its elementary school children with
disabilities under section 602(3) of the Act
before it may use funds under Part B of the
Act.
a. First the LEA must determine the total
amount of its expenditures for elementary
school students from all sources—local,
State, and Federal (including Part B)—in the
preceding school year. Only capital outlay
and debt services are excluded.
Example: The following is an example of
a computation for children with disabilities
enrolled in an LEA’s elementary schools. In
this example, the LEA had an average
elementary school enrollment for the
preceding school year of 800 (including 100
children with disabilities). The LEA spent
the following amounts last year for
elementary school students (including its
elementary school children with disabilities):
(1) From State and local tax
funds.
$6,500,000
(2) From Federal funds ......... 600,000
Total expenditures ....... 7,100,000
Of this total, $60,000 was for capital outlay
and debt service relating to the education of
elementary school students. This must be
subtracted from total expenditures.
(1) Total Expenditures .......... $7,100,000
(2) Less capital outlay and
debt.
¥60,000
Total expenditures for
elementary school stu-
dents less capital out-
lay and debt.
$7,040,000
b. Next, the LEA must subtract from the
total expenditures amounts spent for:
(1) IDEA, Part B allocation,
(2) ESEA, Title I, Part A allocation,
(3) ESEA, Title III, Parts A and B
allocation,
(4) State and local funds for children with
disabilities, and
(5) State or local funds for programs under
ESEA, Title I, Part A, and Title III, Parts A
and B.
These are funds that the LEA actually
spent, not funds received last year but carried
over for the current school year.
Example: The LEA spent the following
amounts for elementary school students last
year:
(1) From funds under IDEA,
Part B allocation.
$ 200,000
(2) From funds under ESEA,
Title I, Part A alloca-
tion.
250,000
(3) From funds under ESEA,
Title III, Parts A and B
allocation.
50,000
(4) From State funds and
local funds for children
with disabilities.
500,000
(5) From State and local
funds for programs
under ESEA, Title I,
Part A, and Title III,
Parts A and B.
150,000
Total .............................. 1,150,000
(1) Total expenditures less
capital outlay and debt.
7,040,000
(2) Other deductions ............. ¥1,150,000
Total .............................. $5,890,000
c. Except as otherwise provided, the LEA
next must determine the average annual per
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student expenditure for its elementary
schools dividing the average number of
students enrolled in the elementary schools
of the agency during the preceding year
(including its children with disabilities) into
the amount computed under the above
paragraph. The amount obtained through this
computation is the minimum amount the
LEA must spend (on the average) for the
education of each of its elementary school
children with disabilities. Funds under Part
B of the Act may be used only for costs over
and above this minimum.
(1) Amount from Step b ........ $5,890,000
(2) Average number of stu-
dents enrolled.
800
(3) $5,890,000/800 Average
annual per student ex-
penditure.
$ 7,362
d. Except as otherwise provided, to
determine the total minimum amount of
funds the LEA must spend for the education
of its elementary school children with
disabilities in the LEA (not including capital
outlay and debt service), the LEA must
multiply the number of elementary school
children with disabilities in the LEA times
the average annual per student expenditure
obtained in paragraph c above. Funds under
Part B of the Act can only be used for excess
costs over and above this minimum.
(1) Number of children with
disabilities in the LEA’s
elementary schools.
100
(2) Average annual per stu-
dent expenditure.
$ 7,362
(3) $7,362 x 100.
Total minimum amount
of funds the LEA must
spend for the education
of children with dis-
abilities enrolled in the
LEA’s elementary
schools before using
Part B funds.
$ 736,200
Appendix B to Part 300—Proportionate
Share Calculation
Each LEA must expend, during the grant
period, on the provision of special education
and related services for the parentally-placed
private school children with disabilities
enrolled in private elementary schools and
secondary schools located in the LEA an
amount that is equal to—
(1) A proportionate share of the LEA’s
subgrant under section 611(f) of the Act for
children with disabilities aged 3 through 21.
This is an amount that is the same proportion
of the LEA’s total subgrant under section
611(f) of the Act as the number of parentally-
placed private school children with
disabilities aged 3 through 21 enrolled in
private elementary schools and secondary
schools located in the LEA is to the total
number of children with disabilities enrolled
in public and private elementary schools and
secondary schools located in the LEA aged 3
through 21; and
(2) A proportionate share of the LEA’s
subgrant under section 619(g) of the Act for
children with disabilities aged 3 through 5.
This is an amount that is the same proportion
of the LEA’s total subgrant under section
619(g) of the Act as the total number of
parentally-placed private school children
with disabilities aged 3 through 5 enrolled in
private elementary schools located in the
LEA is to the total number of children with
disabilities enrolled in public and private
elementary schools located in the LEA aged
3 through 5.
Consistent with section 612(a)(10)(A)(i) of
the Act and § 300.133 of these regulations,
annual expenditures for parentally-placed
private school children with disabilities are
calculated based on the total number of
children with disabilities enrolled in public
and private elementary schools and
secondary schools located in the LEA eligible
to receive special education and related
services under Part B, as compared with the
total number of eligible parentally-placed
private school children with disabilities
enrolled in private elementary schools
located in the LEA. This ratio is used to
determine the proportion of the LEA’s total
Part B subgrants under section 611(f) of the
Act for children aged 3 through 21, and
under section 619(g) of the Act for children
aged 3 through 5, that is to be expended on
services for parentally-placed private school
children with disabilities enrolled in private
elementary schools and secondary schools
located in the LEA.
The following is an example of how the
proportionate share is calculated:
There are 300 eligible children with
disabilities enrolled in the Flintstone School
District and 20 eligible parentally-placed
private school children with disabilities
enrolled in private elementary schools and
secondary schools located in the LEA for a
total of 320 eligible public and private school
children with disabilities (note:
proportionate share for parentally-placed
private school children is based on total
children eligible, not children served). The
number of eligible parentally-placed private
school children with disabilities (20) divided
by the total number of eligible public and
private school children with disabilities (320)
indicates that 6.25 percent of the LEA’s
subgrant must be spent for the group of
eligible parentally-placed children with
disabilities enrolled in private elementary
schools and secondary schools located in the
LEA. Flintstone School District receives
$152,500 in Federal flow through funds.
Therefore, the LEA must spend $9,531.25 on
special education or related services to the
group of parentally-placed private school
children with disabilities enrolled in private
elementary schools and secondary schools
located in the LEA. (Note: The LEA must
calculate the proportionate share of IDEA
funds before earmarking funds for any early
intervening activities in § 300.226).
The following outlines the calculations for
the example of how the proportionate share
is calculated.
Proportionate Share Calculation
for Parentally-Placed Private
School Children with Disabil-
ities For Flintstone School
District:
Number of eligible children with
disabilities in public schools
in the LEA ................................ 300
Number of parentally-placed eli-
gible children with disabilities
in private elementary schools
and secondary schools located
in the LEA ................................ 20
Total number of eligible
children ............................. 320
FEDERAL FLOW-THROUGH FUNDS
TO FLINTSTONE SCHOOL DISTRICT
Total allocation to
Flintstone .......................... $152,500
Calculating Proportionate Share:
Total allocation to Flinstone ....... 152,500
Divided by total number of eligi-
ble children .............................. 320
Average allocation per eligible
child .......................................... 476.5625
Multiplied by the number of pa-
rentally placed children with
disabilities ................................ 20
Amount to be expended for pa-
rentally-placed children with
disabilities ................................ 9,531.25
Appendix C to Part 300—National
Instructional Materials Accessibility
Standard (NIMAS)
Under sections 612(a)(23)(A) and 674(e)(4)
of the Individuals with Disabilities Education
Act, as amended by the Individuals with
Disabilities Education Improvement Act of
2004, the Secretary of Education establishes
the NIMAS. Under section 674(e)(4) of the
Act, the NIMAS applies to print instructional
materials published after July 19, 2006. The
purpose of the NIMAS is to help increase the
availability and timely delivery of print
instructional materials in accessible formats
to blind or other persons with print
disabilities in elementary and secondary
schools.
Technical Specifications—The Baseline
Element Set
The Baseline Element Set details the
minimum requirement that must be delivered
to fulfill the NIMAS. It is the responsibility
of publishers to provide this NIMAS-
conformant XML content file, a package file
(OPF), a PDF-format copy of the title page (or
whichever page(s) contain(s) ISBN and
copyright information), and a full set of the
content’s images. All of the images included
within a work must be provided in a folder
and placeholders entered in the relevant
XML document indicating their location (all
images must be included). The preferred
image type is SVG, next is either PNG or JPG
format. Images should be rendered in the
same size/proportion as their originals at 300
dpi. Images should be named with relative
path filenames in XML files (example: img
id=‘‘staricon4’’ src=‘‘./images/U10C02/
staricon4.jpg’’ alt=‘‘star icon’’).
NIMAS-conformant content must be valid
to the NIMAS 1.1 [see ANSI/NISO Z39.86
2005 or subsequent revisions]. In addition,
files are required to use the tags from the
Baseline Element Set when such tags are
appropriate. Publishers are encouraged to
augment the required Baseline Element Set
with tags from the Optional Element Set
(elements not included in the Standard) as
applicable. For the purposes of NIMAS,
appropriate usage of elements, both baseline
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and optional, is defined by the DAISY
Structure Guidelines. Files that do not follow
these guidelines in the selection and
application of tags are not conformant to this
Standard. Both optional elements and
appropriate structure guidelines may be
located within Z39.86–2002 and Z39.86–
2005 available from http://www.daisy.org/
z3986/. Use of the most current standard is
recommended.
THE BASELINE ELEMENT SET
Element Description
a. Document-level tags
dtbook ..................................... The root element in the Digital Talking Book DTD. contains metadata in and the contents
itself in .
head ........................................ Contains metainformation about the book but no actual content of the book itself, which is placed in .
book ........................................ Surrounds the actual content of the document, which is divided into , , and
. , which contains metadata, precedes .
meta ........................................ Indicates metadata about the book. It is an empty element that may appear repeatedly only in .
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
b. Structure and Hierarchy
frontmatter ............................... Usually contains and , as well as preliminary material that is often enclosed in appro-
priate or etc. Content may include a copyright notice, a foreword, an acknowledgements
section, a table of contents, etc. serves as a guide to the content and nature of a .
bodymatter .............................. Consists of the text proper of a book, as contrasted with preliminary material or supplementary in-
formation in .
rearmatter ................................ Contains supplementary material such as appendices, glossaries, bibliographies, and indices. It follows the
of the book.
level1 ....................................... The highest-level container of major divisions of a book. Used in , , and
to mark the largest divisions of the book (usually parts or chapters), inside which sub-
divisions (often sections) may nest. The class attribute identifies the actual name (e.g., part, chapter) of the
structure it marks. Contrast with .
level2 ....................................... Contains subdivisions that nest within divisions. The class attribute identifies the actual name (e.g.,
subpart, chapter, subsection) of the structure it marks.
level3 ....................................... Contains sub-subdivisions that nest within subdivisions (e.g., sub-subsections within subsections). The
class attribute identifies the actual name (e.g., section, subpart, subsubsection) of the subordinate structure it
marks.
level4 ....................................... Contains further subdivisions that nest within subdivisions. The class attribute identifies the actual
name of the subordinate structure it marks.
level5 ....................................... Contains further subdivisions that nest within subdivisions. The class attribute identifies the actual
name of the subordinate structure it marks.
level6 ....................................... Contains further subdivisions that nest within subdivisions. The class attribute identifies the actual
name of the subordinate structure it marks.
h1 ............................................ Contains the text of the heading for a structure.
h2 ............................................ Contains the text of the heading for a structure.
h3 ............................................ Contains the text of the heading for a structure.
h4 ............................................ Contains the text of the heading for a structure.
h5 ............................................ Contains the text of the heading for a structure.
h6 ............................................ Contains the text of the heading for a structure.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
c. Block elements
author ...................................... Identifies the writer of a work other than this one. Contrast with , which identifies the author of this
work. typically occurs within
and .
blockquote ............................... Indicates a block of quoted content that is set off from the surrounding text by paragraph breaks. Compare with
, which marks short, inline quotations.
list ............................................ Contains some form of list, ordered or unordered. The list may have an intermixed heading (generally
only one, possibly with ), and an intermixture of list items and . If bullets and out-
line enumerations are part of the print content, they are expected to prefix those list items in content, rather
than be implicitly generated.
li ............................................... Marks each list item in a . content may be either inline or block and may include other nested lists. Al-
ternatively it may contain a sequence of list item components, , that identify regularly occurring content,
such as the heading and page number of each entry in a table of contents.
hd ............................................ Marks the text of a heading in a or .
note ......................................... Marks a footnote, endnote, etc. Any local reference to is by . [Attribute
id]
p .............................................. Contains a paragraph, which may contain subsidiary or .
sidebar .................................... Contains information supplementary to the main text and/or narrative flow and is often boxed and printed apart
from the main text block on a page. It may have a heading .
cite ........................................... Marks a reference (or citation) to another document.
dd ............................................ Marks a definition of the preceding term - within a definition list
. A definition without a preceding -
has no semantic interpretation, but is visually presented aligned with other
- .
dl ............................................. Contains a definition list, usually consisting of pairs of terms
- and definitions
- . Any definition can con-
tain another definition list.
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THE BASELINE ELEMENT SET—Continued
Element Description
dt ............................................. Marks a term in a definition list
for which a definition - follows.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
d. Inline Elements
em ........................................... Indicates emphasis. Usually is rendered in italics. Compare with .
q .............................................. Contains a short, inline quotation. Compare with
, which marks a longer quotation set off from the
surrounding text.
strong ...................................... Marks stronger emphasis than . Visually is usually rendered bold.
sub .......................................... Indicates a subscript character (printed below a character’s normal baseline). Can be used recursively and/or
intermixed with .
sup .......................................... Marks a superscript character (printed above a character’s normal baseline). Can be used recursively and/or
intermixed with .
br ............................................. Marks a forced line break.
line ........................................... Marks a single logical line of text. Often used in conjunction with in documents with numbered lines.
[Use only when line breaks must be preserved to capture meaning (e.g., poems, legal texts).]
linenum .................................... Contains a line number, for example in legal text. [Use only when is used, and only for lines numbered in
print book.]
pagenum ................................. Contains one page number as it appears from the print document, usually inserted at the point within the file
immediately preceding the first item of content on a new page. [NB: Only valid when it includes an id at-
tribute].
noteref ..................................... Marks one or more characters that reference a footnote or endnote . Contrast with .
and are independently skippable.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
e. Tables
table ........................................ Contains cells of tabular data arranged in rows and columns. A may have a s or groupings of several in . A simple . It may have de-
scriptions of the columns in
may be
made up of just rows . A long table crossing several pages of the print book should have separate
values for each of the pages containing that indicated on the page where it starts. Note
the logical order of optional , optional , then one or more of either or just rows .
This order accommodates simple or large, complex tables. The and information usually helps
identify content of the rows. For a multiple-page print the and are repeated
on each page, but not redundantly tagged.
td ............................................. Indicates a table cell containing data.
tr .............................................. Marks one row of a containing | or | cells.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
f. Images
imggroup ................................. Provides a container for one or more ![]() and associated |
|---|
(s) and (s). A may
contain a description of the image. The content model allows: 1) multiple ![]()
if they share a caption, with
the ids of each ![]()
in the , 2) multiple if several captions refer to a
single ![]()
where each caption has the same , 3) multiple if
different versions are needed for different media (e.g., large print, braille, or print). If several refer
to a single ![]()
, each prodnote has the same .
img .......................................... Points to the image to be rendered. An ![]()
may stand alone or be grouped using . Note that pro-
viding extracted images is not a requirement of the NIMAS. If they are included, it is best to refer to them
using ![]()
within the container.
caption ..................................... Describes a or ![]()
. If used with it must follow immediately after the start tag. If used
with it is not so constrained.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
1. The Optional Elements and Guidelines for
Use
Publishers are encouraged to apply markup
beyond the baseline (required) elements. The
complete DTBook Element Set reflects the
tags necessary to create the six types of
Digital Talking Books and Braille output.
Because of the present necessity to subdivide
the creation of alternate format materials into
distinct phases, the Panel determined that
baseline elements would be provided by
publishers, and optional elements would be
added to the NIMAS-conformant files by
third party conversion entities. In both
circumstances the protocols for tagging
digital files should conform to the most
current ANSI/NISO Z39.86 specification.
Content converters are directed to the most
current DAISY Structure Guidelines (http://
www.daisy.org/z3986/) for guidance on their
use.
Since the publication of the original
National File Format report from which the
NIMAS technical specifications were
derived, ANSI/NISO Z39.86–2002 was
updated and is now ANSI/NISO Z39.86–
2005. It may be best to avoid using the
following optional elements which are no
longer included in ANSI/NISO Z39.86–2005:
style, notice, hr, and levelhd.
Also, the following new elements were
introduced by ANSI/NISO Z39.86–2005 and
should be considered optional elements for
the NIMAS: bridgehead, byline, covertitle,
dateline, epigraph, linegroup, and poem.
Please refer to ANSI/NISO Z39.86–2005 for
additional information regarding these
elements. To access the ANSI/NISO Z39.86–
2005 specification, go to http://
www.daisy.org/z3986/.
2. Package File
A package file describes a publication. It
identifies all other files in the publication
and provides descriptive and access
information about them. A publication must
include a package file conforming to the
NIMAS. The package file is based on the
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Open eBook Publication Structure 1.2
package file specification (For most recent
detail please see http://www.openebook.org/
oebps/oebps1.2/download/oeb12-
xhtml.htm#sec2). A NIMAS package file
must be an XML-valid OeB PS 1.2 package
file instance and must meet the following
additional standards:
The NIMAS Package File must include the
following Dublin Core (dc:)metadata:
dc:Title.
dc:Creator (if applicable).
dc:Publisher.
dc:Date (Date of NIMAS-compliant file
creation—yyyy-mm-dd).
dc:Format (=‘‘NIMAS 1.0’’).
dc:Identifier (a unique identifier for the
NIMAS-compliant digital publication, e.g.,
print ISBN + ‘‘-NIMAS’’—exact format to
be determined).
dc:Language (one instance, or multiple in the
case of a foreign language textbook, etc.).
dc:Rights (details to be determined).
dc:Source (ISBN of print version of textbook).
And the following x-metadata items:
nimas-SourceEdition (the edition of the print
textbook).
nimas-SourceDate (date of publication of the
print textbook).
The following metadata were proposed
also as a means of facilitating recordkeeping,
storage and file retrieval:
dc:Subject (Lang Arts, Soc Studies, etc.).
nimas-grade (specific grade level of the print
textbook, e.g.; Grade 6).
nimas gradeRange (specific grade range of the
print textbook, e.g.; Grades 4–5).
An additional suggestion references the use
of:
dc:audience:educationLevel (for the grade
and gradeRange identifiers, noting that
Dublin Core recommends using
educationLevel with an appropriate
controlled vocabulary for context, and
recommends the U.S. Department of
Education’s Level of Education vocabulary
online at http://www.ed.gov/admin/
reference/index.jsp. Using educationLevel
obviates the need for a separate field for
gradeRange since dc elements can repeat
more than once. A book used in more than
one grade would therefore have two
elements, one with value ‘‘Grade 4’’ and
another with value ‘‘Grade 5.’’
A final determination as to which of these
specific metadata elements to use needs to be
clarified in practice. The package manifest
must list all provided files (text, images, etc.).
(Note: For purposes of continuity and to
minimize errors in transformation and
processing, the NIMAS-compliant digital text
should be provided as a single document.)
3. Modular Extensions
The most current DAISY/NISO standard,
formally the ANSI/NISO Z39.86,
Specifications for the Digital Talking Book
defines a comprehensive system for creating
Digital Talking Books. A part of this standard
is DTBook, an XML vocabulary that provides
a core set of elements needed to produce
most types of books. However, DTBook is not
intended to be an exhaustive vocabulary for
all types of books.
Guidelines for the correct approach to
extend the DAISY/NISO standard have been
established. Mathematics, video support,
testing, workbooks, music, dictionaries,
chemistry, and searching are some of the
extensions that have been discussed. Visit
http://www.daisy.org/z3986/ to learn more
about modular extensions.
End
Appendix D to Part 300—Maintenance of
Effort and Early Intervening Services
LEAs that seek to reduce their local
maintenance of effort in accordance with
§ 300.205(d) and use some of their Part B
funds for early intervening services under
§ 300.226 must do so with caution because
the local maintenance of effort reduction
provision and the authority to use Part B
funds for early intervening services are
interconnected. The decisions that an LEA
makes about the amount of funds that it uses
for one purpose affect the amount that it may
use for the other. Below are examples that
illustrate how §§ 300.205(d) and 300.226(a)
affect one another.
Example 1: In this example, the amount
that is 15 percent of the LEA’s total grant (see
§ 300.226(a)), which is the maximum amount
that the LEA may use for early intervening
services (EIS), is greater than the amount that
may be used for local maintenance of effort
(MOE) reduction (50 percent of the increase
in the LEA’s grant from the prior year’s grant)
(see § 300.205(a)).
Prior Year’s Allocation .................. $900,000.
Current Year’s Allocation .............. 1,000,000.
Increase ........................................... 100,000.
Maximum Available for MOE Re-
duction ........................................ 50,000.
Maximum Available for EIS .......... 150,000.
If the LEA chooses to set aside $150,000 for
EIS, it may not reduce its MOE (MOE
maximum $50,000 less $150,000 for EIS
means $0 can be used for MOE).
If the LEA chooses to set aside $100,000 for
EIS, it may not reduce its MOE (MOE
maximum $50,000 less $100,000 for EIS
means $0 can be used for MOE).
If the LEA chooses to set aside $50,000 for
EIS, it may not reduce its MOE (MOE
maximum $50,000 less $50,000 for EIS
means $0 can be used for MOE).
If the LEA chooses to set aside $30,000 for
EIS, it may reduce its MOE by $20,000 (MOE
maximum $50,000 less $30,000 for EIS
means $20,000 can be used for MOE).
If the LEA chooses to set aside $0 for EIS,
it may reduce its MOE by $50,000 (MOE
maximum $50,000 less $0 for EIS means
$50,000 can be used for MOE).
Example 2: In this example, the amount
that is 15 percent of the LEA’s total grant (see
§ 300.226(a)), which is the maximum amount
that the LEA may use for EIS, is less than the
amount that may be used for MOE reduction
(50 percent of the increase in the LEA’s grant
from the prior year’s grant) (see § 300.205(a)).
Prior Year’s Allocation .................. $1,000,000.
Current Year’s Allocation .............. 2,000,000.
Increase ........................................... 1,000,000.
Maximum Available for MOE Re-
duction ........................................ 500,000.
Maximum Available for EIS .......... 300,000.
If the LEA chooses to use no funds for
MOE, it may set aside $300,000 for EIS (EIS
maximum $300,000 less $0 means $300,000
for EIS).
If the LEA chooses to use $100,000 for
MOE, it may set aside $200,000 for EIS (EIS
maximum $300,000 less $100,000 means
$200,000 for EIS).
If the LEA chooses to use $150,000 for
MOE, it may set aside $150,000 for EIS (EIS
maximum $300,000 less $150,000 means
$150,000 for EIS).
If the LEA chooses to use $300,000 for
MOE, it may not set aside anything for EIS
(EIS maximum $300,000 less $300,000 means
$0 for EIS).
If the LEA chooses to use $500,000 for
MOE, it may not set aside anything for EIS
(EIS maximum $300,000 less $500,000 means
$0 for EIS).
Appendix E to Part 300—Index for
IDEA—Part B Regulations (34 CFR Part
300)
ACCESS TO
• Access rights (Parents) ............................................................................................................................................... 300.613.
• Assistive technology devices in child’s home ......................................................................................................... 300.105(b).
• Disciplinary records ................................................................................................................................................... 300.229.
• Education records (Procedural safeguards notice) ................................................................................................... 300.504(c)(4).
• General curriculum (Ensure access to) ..................................................................................................................... 300.39(b)(3)(ii).
• Instructional materials (see §§ 300.172, 300.210).
• List of employees who may have access to records ................................................................................................ 300.623(d).
• Parent’s private insurance proceeds ......................................................................................................................... 300.154(e).
• Record of access (Confidentiality) ............................................................................................................................ 300.614.
ACCESSIBILITY STANDARDS (Regarding construction)
• Americans with Disabilities Accessibility Standards for Buildings and Facilities ............................................... 300.718(b)(1).
• Uniform Federal Accessibility Standards ................................................................................................................ 300.718(b)(2).
ACCOMMODATIONS
• In assessments ............................................................................................................................................................ 300.320(a)(6)(i).
• State level activities in support of ............................................................................................................................ 300.704(b)(4)(x).
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ACT (Definition) ............................................................................................................................................................ 300.4.
ADD AND ADHD (See ‘‘Attention deficit disorder’’ and ‘‘Attention deficit hyperactivity disorder’’)
ADDITIONAL DISCLOSURE OF INFORMATION REQUIREMENT .......................................................................... 300.512(b).
ADULT CORRECTIONAL FACILITIES (See ‘‘Correctional facilities’’)
ADULT PRISONS (Children with disabilities in)
• Divided State agency responsibility ......................................................................................................................... 300.607.
• FAPE requirements:
Æ Exception to FAPE ............................................................................................................................................. 300.102(a)(2).
Æ Modifications of IEP or placement .................................................................................................................... 300.324(d)(2).
Æ Requirements that do not apply ........................................................................................................................ 300.324(d)(1).
• Governor ..................................................................................................................................................................... 300.149(d).
• Other public agency responsibility ........................................................................................................................... 300.149(d).
ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See ‘‘Child with a disability,’’ § 300.8(c)(1)(i), (c)(3),
(c)(4)(i), (c)(5), (c)(6), (c)(8), (c)(9)(ii), (c)(11), (c)(12))
ADVISORY BOARD
(Secretary of the Interior) .............................................................................................................................................. 300.714.
ADVISORY PANEL (See ‘‘State advisory panel’’)
AGE–APPROPRIATE CLASSROOM ............................................................................................................................. 300.116(e).
ALLOCATION(S)
• By-pass for private school children (see § 300.191(d)).
• To LEAs (see §§ 300.705(b), 300.816)
• To Outlying areas ....................................................................................................................................................... 300.701(a).
• To Secretary of the Interior ....................................................................................................................................... 300.707.
• To States (see §§ 300.703, 300.807 through 300.810).
ALLOWABLE COSTS
(By SEA for State administration) ................................................................................................................................ 300.704(a).
ALTERATION OF FACILITIES ..................................................................................................................................... 300.718(b).
ALTERNATE ASSESSMENTS
• Aligned with alternate achievement standards ........................................................................................................ 300.320(a)(2)(ii).
• Development and provision of in accordance with ESEA ...................................................................................... 300.704(b)(4)(x).
• Participation determined by IEP Team .................................................................................................................... 300.320(a)(6)(ii).
ALTERNATIVE PLACEMENTS (Continuum) .............................................................................................................. 300.115.
ALTERNATIVE STRATEGIES to meet transition objectives ...................................................................................... 300.324(c)(1).
AMENDMENTS
• To LEA policies and procedures .............................................................................................................................. 300.220(b).
• To State policies and procedures:
Æ Made by State ..................................................................................................................................................... 300.176(b).
Æ Required by the Secretary .................................................................................................................................. 300.176(c).
ANNUAL GOALS (IEPs)
• FAPE for children suspended or expelled (see §§ 300.101(a), 300.530(d))
• IEP content:
Æ How progress will be measured ........................................................................................................................ 300.320(a)(3).
Æ Special education and related services ............................................................................................................. 300.320(a)(4).
Æ Statement of measurable annual goals .............................................................................................................. 300.320(a)(2)(i).
• Review and revision of IEP ....................................................................................................................................... 300.324(b)(1).
• Review of existing evaluation data ........................................................................................................................... 300.305(a).
ANNUAL REPORT
Of children served (see §§ 300.640 through 300.646)
On education of Indian children .................................................................................................................................. 300.715.
APPENDICES TO PART 300 (A through E)
Excess Costs Calculation (see Appendix A)
Proportionate Share Calculation (see Appendix B)
National Instructional Materials Accessibility Standard (NIMAS) (see Appendix C)
Maintenance of Effort and Early Intervening Services (see Appendix D)
Index for IDEA—Part B Regulations (This Appendix E)
APPLICABILITY OF THIS PART to State, local, and private agencies ..................................................................... 300.2.
APPLICATION
• Initial admission to public school ............................................................................................................................ 300.518(b).
• Initial services ............................................................................................................................................................ 300.518(c).
ASSESSMENT(S)
• For specific learning disability (see § 300.309(a)(2)(ii), (b)(2))
• Functional behavioral assessment (see § 300.530(d)(1)(ii), (f)(1)(i))
• In evaluation (see §§ 300.304(b), (c), 300.305(a)(1)(ii), (c), (d))
• Of leisure function (in ‘‘Recreation’’) ....................................................................................................................... 300.34(c)(11)(i).
ASSESSMENTS—STATE and DISTRICT-WIDE
Alternate assessments (see § 300.320 (a)(2)(ii), (a)(6)(ii))
Performance indicators .................................................................................................................................................. 300.157.
ASSISTANCE UNDER OTHER FEDERAL PROGRAMS ............................................................................................. 300.186.
ASSISTIVE TECHNOLOGY (AT)
• AT devices .................................................................................................................................................................. 300.5.
• AT services ................................................................................................................................................................. 300.6.
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• Consideration of special factors ................................................................................................................................ 300.324(a)(2)(v).
• Hearing aids ............................................................................................................................................................... 300.113.
• Requirement:
Æ Ensure availability of ......................................................................................................................................... 300.105(a).
Æ Use of AT in child’s home ................................................................................................................................. 300.105(b).
• Surgically implanted medical devices (see §§ 300.5, 300.34(b), 300.113(b))
ASTHMA ........................................................................................................................................................................ 300.8(c)(9).
ATTENTION DEFICIT DISORDER (ADD) .................................................................................................................... 300.8(c)(9).
ATTENTION DEFICIT HYPERACTIVITY DISORDER (ADHD) .................................................................................. 300.8(c)(9).
ATTORNEYS’ FEES ....................................................................................................................................................... 300.517.
• Award of fees ............................................................................................................................................................. 300.517(c).
• Prohibition on use of funds for ................................................................................................................................. 300.517(b).
• When court reduces fee awards ................................................................................................................................ 300.517(c)(4).
AUDIOLOGY .................................................................................................................................................................. 300.34(c)(1).
AUTHORITY (A–O)
• Of guardian ................................................................................................................................................................. 300.30(a)(3).
• Of hearing officer (Discipline) .................................................................................................................................. 300.532(b).
• Of school personnel (Discipline) .............................................................................................................................. 300.530.
• Of Secretary to monitor and enforce ........................................................................................................................ 300.609.
AUTHORITY (P–Z)
• Parental authority to inspect and review records .................................................................................................... 300.613.
• State complaint procedures ....................................................................................................................................... 300.151(b).
• Waiver request (Signed by person with authority) .................................................................................................. 300.164(c)(1).
AUTISM ......................................................................................................................................................................... 300.8(c)(1).
AVERAGE PER-PUPIL EXPENDITURE
(Definition) ..................................................................................................................................................................... 300.717(d).
BASE PAYMENTS (to LEAs) (See § 300.705(b)(1), (b)(2))
BASIS OF KNOWLEDGE: Protection for children not yet eligible ............................................................................ 300.534(b).
BEHAVIORAL ASSESSMENT (See ‘‘Functional behavioral assessment’’)
BEHAVIORAL INTERVENTION(S) .............................................................................................................................. 300.530(f).
• Assist in developing .................................................................................................................................................. 300.34(c)(10)(vi).
• Behavioral intervention plan .................................................................................................................................... 300.530(f).
• Consideration of by IEP Team .................................................................................................................................. 300.324(a)(2)(i).
• Not a manifestation of disability .............................................................................................................................. 300.530(d).
• Regular education teacher (Determination of) ......................................................................................................... 300.324(a)(3).
• Suspension and expulsion rates ............................................................................................................................... 300.170(b).
BENCHMARKS OR SHORT TERM OBJECTIVES ........................................................................................................ 300.320(a)(2)(ii).
BENEFITS TO NONDISABLED (Permissive use of funds) ......................................................................................... 300.208(a)(1).
BIA (See ‘‘Bureau of Indian Affairs’’)
BLIND(NESS): Under ‘‘Visual impairment’’
• Access to instructional materials (see §§ 300.172, 300.210(b)(3))
• Consideration of special factors by IEP Team .......................................................................................................... 300.324(a)(2).
• Definition .................................................................................................................................................................... 300.8(c)(13).
BRAILLE (see §§ 300.29(b), 300.324(a)(2)(iii))
BUREAU OF INDIAN AFFAIRS (BIA)
• BIA funded schools ................................................................................................................................................... 300.28(c).
• In definition of ‘‘LEA’’ ............................................................................................................................................... 300.28(c).
• See also §§ 300.21(c), 300.713(b), (d), 300.714
• Use of funds ............................................................................................................................................................... 300.712(d).
BUSINESS DAY
• Definition .................................................................................................................................................................... 300.11(b).
• See ‘‘Timelines,’’ ‘‘Timelines—Discipline’’
BY-PASS: Private school children with disabilities (see §§ 300.190 through 300.198)
CALENDAR DAY
• Definition .................................................................................................................................................................... 300.11(a).
• See ‘‘Timelines,’’ ‘‘Timelines—Discipline’’
CERTIFICATION
• Annual report of children served ............................................................................................................................. 300.643.
CHANGE OF PLACEMENT BECAUSE OF DISCIPLINARY REMOVALS ................................................................. 300.536.
CHARTER SCHOOLS
• Applicability of this part to ...................................................................................................................................... 300.2(b)(1)(ii).
• Definition .................................................................................................................................................................... 300.7.
• Exception: joint establishment of eligibility ............................................................................................................ 300.223(b).
• In definition of ‘‘Elementary school’’ ....................................................................................................................... 300.13.
• In definition of ‘‘LEA’’ ............................................................................................................................................... 300.28(b)(2).
• In definition of ‘‘Public agency’’ ............................................................................................................................... 300.33.
• In definition of ‘‘Secondary school’’ ........................................................................................................................ 300.36.
• State-level activities regarding charter schools ........................................................................................................ 300.704(b)(4)(ix).
• Treatment of charter schools and their students ..................................................................................................... 300.209.
CHIEF EXECUTIVE OFFICER (CEO)
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• Adult prisons (Assigned by Governor) ..................................................................................................................... 300.149(d).
• Methods of ensuring services (see § 300.154(a), (c))
CHILD COUNT
• Annual report of children served (see §§ 300.640 through 300.646)
• Certification ................................................................................................................................................................ 300.643.
• Criteria for .................................................................................................................................................................. 300.644.
• Dates for count ........................................................................................................................................................... 300.641(a).
• Indian children .......................................................................................................................................................... 300.712(b).
• LEA records of private school children ................................................................................................................... 300.132(c).
• Procedures for counting children served ................................................................................................................. 300.645(a).
CHILD FIND
• Basic requirement ...................................................................................................................................................... 300.111(a).
• Children advancing from grade to grade .................................................................................................................. 300.111(c)(1).
• Developmental delay ................................................................................................................................................. 300.111(b).
• Highly mobile children ............................................................................................................................................. 300.111(c)(2).
• Homeless children ..................................................................................................................................................... 300.111(a)(1)(i).
• Indian children aged 3 through 5 ............................................................................................................................. 300.712(d)(1).
• Migrant children ........................................................................................................................................................ 300.111(c)(2).
• Private school children .............................................................................................................................................. 300.131(b).
• Protections for children not determined eligible ..................................................................................................... 300.534.
• Secretaries of the Interior and Health and Human Services (Memo of agreement) .............................................. 300.708(i)(2).
CHILD WITH A DISABILITY (CWD)
• Adversely affects educational performance (see § 300.8(c)(1)(i), (c)(3), (c)(4)(i), (c)(5), (c)(6), (c)(8), (c)(9)(ii),
(c)(11), (c)(12), (c)(13))
• Children experiencing developmental delay(s) ....................................................................................................... 300.8(b)(1).
• Children who need only a related service ............................................................................................................... 300.8(a)(2).
• Definition .................................................................................................................................................................... 300.8(a)(1).
• Individual disability terms (Defined) ....................................................................................................................... 300.8(c).
• Requirement ............................................................................................................................................................... 300.111(b).
• See ‘‘Developmental delay(s)’’
CHILD’S STATUS DURING PROCEEDINGS
• Discipline (see §§ 300.530(f)(2), 300.533)
• Pendency (Stay put) ................................................................................................................................................... 300.518.
CHILDREN ADVANCING FROM GRADE TO GRADE
• Child find ................................................................................................................................................................... 300.111(c)(1).
• FAPE ........................................................................................................................................................................... 300.101(c).
CHILDREN EXPERIENCING DEVELOPMENTAL DELAY(S) (See ‘‘Developmental delay(s)’’)
CHILDREN’S RIGHTS (Confidentiality) ....................................................................................................................... 300.625.
CIVIL ACTION—PROCEEDINGS .................................................................................................................................. 300.516.
• Finality of review decision ....................................................................................................................................... 300.514(d).
• Mediation ................................................................................................................................................................... 300.506(b)(6)(i).
• Procedural safeguards notice .................................................................................................................................... 300.504(c)(12).
• See ‘‘Court(s)’’
COCHLEAR IMPLANT (See ‘‘Surgically implanted medical device’’) ...................................................................... 300.34(b).
CODE OF CONDUCT
• Case-by-case determination ....................................................................................................................................... 300.530(a).
• Manifestation determination review ......................................................................................................................... 300.530(e).
• Protections for children not determined eligible ..................................................................................................... 300.534(a).
COMMINGLING—PROHIBITION AGAINST ............................................................................................................... 300.162(b).
COMMUNITY-BASED WAIVERS (Public benefits or insurance) .............................................................................. 300.154(d)(2)(iii).
COMPLAINT(S): DUE PROCESS
• Attorneys’ fees ............................................................................................................................................................ 300.517(a)(1).
• Civil action ................................................................................................................................................................. 300.516(a).
• Pendency .................................................................................................................................................................... 300.518(a).
• Private school children (Complaints) ....................................................................................................................... 300.140(c).
• See ‘‘Due process hearing(s) and reviews’’
COMPLAINT(S): STATE COMPLAINT PROCEDURES (A–P)
• Adoption of State complaint procedures ................................................................................................................. 300.151(a).
• Complaint investigations (SEA allocations for) ....................................................................................................... 300.704(b)(3)(i).
• Filing a complaint ...................................................................................................................................................... 300.153(a).
• Minimum State complaint procedures ..................................................................................................................... 300.152.
• Private schools (State complaints) ............................................................................................................................ 300.140.
• Procedural safeguards notice .................................................................................................................................... 300.504(c).
• Provisions for services under by-pass ...................................................................................................................... 300.191(d).
• Public agency failure to implement hearing decision ............................................................................................. 300.152(c)(3).
COMPLAINT(S): STATE COMPLAINT PROCEDURES (Q–Z)
• See also §§ 300.151 through 300.153
• Time limit ................................................................................................................................................................... 300.152(a).
• Waiver of nonsupplanting requirement ................................................................................................................... 300.163(c)(2).
COMPLIANCE—COMPLY (A–M)
• Child find requirements ............................................................................................................................................ 300.111(a).
• Department procedures (If failure to comply) .......................................................................................................... 300.604(c).
• FAPE requirement ...................................................................................................................................................... 300.101(a).
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• LEA and State agency compliance ........................................................................................................................... 300.222(a).
• LRE (State funding mechanism) ............................................................................................................................... 300.114(b).
• Modifications of policies:.
Æ Made by LEA or State agency ............................................................................................................................ 300.176(b).
Æ Required by SEA ................................................................................................................................................ 300.220(c).
Æ Required by Secretary ........................................................................................................................................ 300.176(c).
• Monitoring (See ‘‘Monitor; Monitoring activities’’);
COMPLIANCE—COMPLY (N–Z)
• Physical education ..................................................................................................................................................... 300.108.
• Private school placement by parents ........................................................................................................................ 300.148(e).
• Private school placements by public agencies:
Æ IEP requirement .................................................................................................................................................. 300.325(c).
Æ SEA (Monitor compliance) ................................................................................................................................ 300.147(a)
• Public participation requirements ............................................................................................................................ 300.165.
• SEA responsibility if LEA does not comply ............................................................................................................ 300.227(a).
• State funding mechanism (LRE) ............................................................................................................................... 300.114(b).
• COMPREHENSIVE EVALUATION ........................................................................................................................... 300.304(c)(6).
CONDITION OF ASSISTANCE
• LEA eligibility ............................................................................................................................................................ 300.200.
• State eligibility ........................................................................................................................................................... 300.100.
CONFIDENTIALITY (A–C)
• Access rights .............................................................................................................................................................. 300.613.
• Children’s rights ......................................................................................................................................................... 300.625.
• Consent ....................................................................................................................................................................... 300.622.
CONFIDENTIALITY (D–E)
Definitions:
Æ Destruction of information ................................................................................................................................. 300.611(a).
Æ Education records ............................................................................................................................................... 300.611(b).
Æ Participating agency ........................................................................................................................................... 300.611(c).
• Department use of personally identifiable information .......................................................................................... 300.627.
• Disciplinary information ........................................................................................................................................... 300.229.
• Enforcement by SEA .................................................................................................................................................. 300.626.
CONFIDENTIALITY (F–Z)
• Family Educational Rights and Privacy Act:
Æ Children’s rights ................................................................................................................................................. 300.625.
Æ Disciplinary records ........................................................................................................................................... 300.535(b)(2).
Æ In definition of ‘‘Education records’’ ................................................................................................................ 300.611(b).
Æ Notice to parents ................................................................................................................................................ 300.612(a)(3).
• Fees ............................................................................................................................................................................. 300.617.
• Hearing procedures .................................................................................................................................................... 300.621.
• List of types and location of information ................................................................................................................. 300.616.
• Notice to parents ........................................................................................................................................................ 300.612(a).
• Opportunity for a hearing ......................................................................................................................................... 300.619.
• Parental authority to inspect and review records .................................................................................................... 300.613(b).
• Record of access ......................................................................................................................................................... 300.614.
• Records on more than one child ............................................................................................................................... 300.615.
• Result of hearing ........................................................................................................................................................ 300.620.
• Safeguards .................................................................................................................................................................. 300.623.
• State eligibility requirement ...................................................................................................................................... 300.123.
CONSENT (A–I)
• Confidentiality (Records to non-agency officials) .................................................................................................... 300.622(a).
• Definition .................................................................................................................................................................... 300.9.
• IEP vs. IFSP ................................................................................................................................................................ 300.323(b)(2)(ii).
• Initial evaluations ...................................................................................................................................................... 300.300(a).
• Initial provision of services ....................................................................................................................................... 300.300(b).
CONSENT (J–Z)
• Not required:
Æ Before administering a test or other evaluation to all children ...................................................................... 300.300(d)(1)(ii).
Æ Before reviewing existing data .......................................................................................................................... 300.300(d)(1)(i).
Æ When screening for instructional purposes ...................................................................................................... 300.302.
• Private insurance (Accessing) ................................................................................................................................... 300.154(e)(1).
• Reasonable efforts to obtain consent:
Æ For initial evaluation .......................................................................................................................................... 300.300(a)(1)(iii).
Æ For initial evaluations for wards of the State ................................................................................................... 300.300(a)(2).
Æ For initial provision of services ........................................................................................................................ 300.300(b)(2).
Æ Reasonable efforts requirements ........................................................................................................................ 300.300(d)(5).
• Reevaluations ............................................................................................................................................................. 300.300(c)(2).
• Release of information from education records ....................................................................................................... 300.622
CONSIDERATION OF SPECIAL FACTORS (by IEP Team) ........................................................................................ 300.324(a)(2).
CONSISTENCY WITH STATE POLICIES: LEA ........................................................................................................... 300.201.
CONSTRUCTION
• Accessibility standards .............................................................................................................................................. 300.718(b).
• Exception to maintenance of effort (Termination of costly expenditures for construction) ................................. 300.204(d).
• Private schools (No funds may be used for) ............................................................................................................ 300.144(e).
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CONSTRUCTION CLAUSES (A–I)
• Child find (Nothing requires classifying children by disability) ............................................................................ 300.111(d).
• Civil action (Exhaust administrative remedies under Part B before filing a civil action) .................................... 300.516(e).
• Early intervening services ......................................................................................................................................... 300.226(c).
• Funding mandated by State law ............................................................................................................................... 300.166.
• Hearing: right of parent to appeal decision .............................................................................................................. 300.513(b).
• Highly qualified SEA or LEA staff ............................................................................................................................ 300.156(e).
• Highly qualified teacher ............................................................................................................................................ 300.18(f).
• IEP (Inclusion of additional information beyond explicit requirements) .............................................................. 300.320(d)(1).
• IEP (Information in more than one component not required) ................................................................................ 300.320(d)(2).
CONSTRUCTION CLAUSES (J–Z)
• Prohibition on mandatory medication ..................................................................................................................... 300.174(b).
• Referral to and action by law enforcement and judicial authorities ...................................................................... 300.535(a).
• Secretary’s authority to monitor enforcement under GEPA .................................................................................... 300.609.
• State Medicaid agency (Nothing alters requirements imposed under Titles XIX or XXI or other public bene-
fits or insurance program).
300.154(h).
• Transition service ...................................................................................................................................................... 300.324(c)(2).
CONSUMER PRICE INDEX For All Urban Consumers (regarding rate of inflation) (See §§ 300.702(b),
300.704(a)(2)(ii), (b)(2), 300.812(b)(2))
CONTENT OF IEP ......................................................................................................................................................... 300.320(a).
CONTINUUM OF ALTERNATIVE PLACEMENTS (See ‘‘Least restrictive environment’’) ...................................... 300.115.
CONTROLLED SUBSTANCE (Definition) .................................................................................................................... 300.530(i)(1).
COORDINATION OF SERVICES
• Methods of ensuring services .................................................................................................................................... 300.154(a).
• Secretary of the Interior ............................................................................................................................................. 300.708(i)(1).
Æ Advisory board (Service coordination within BIA) ......................................................................................... 300.714(b)(1).
Æ Payments for children aged 3 through 5 ........................................................................................................... 300.712(a).
Æ Plan for coordination of services ....................................................................................................................... 300.713.
• See ‘‘Interagency agreements,’’ ‘‘Interagency coordination’’
• State advisory panel (Advise SEA on) ..................................................................................................................... 300.169(e).
• Use of LEA funds for early intervening services ..................................................................................................... 300.208(a)(2).
• Use of SEA allocations for transition ....................................................................................................................... 300.704(b)(4)(vi).
CO-PAY OR DEDUCTIBLE (Public benefits or insurance) ......................................................................................... 300.154(d)(2)(ii).
CORE ACADEMIC SUBJECTS
• Definition .................................................................................................................................................................... 300.10.
• See ‘‘Highly qualified special education teachers’’ ................................................................................................. 300.18.
CORRECTIONAL FACILITIES
• Applicability of this part to ...................................................................................................................................... 300.2(b)(1)(iv).
• Divided State agency responsibility ......................................................................................................................... 300.607.
• Exception to FAPE (Children in adult facilities) ..................................................................................................... 300.102(a)(2).
• See also ‘‘Adult prisons’’
• State advisory panel (Representatives on) ............................................................................................................... 300.168(a)(11).
• State juvenile-adult correctional facilities ................................................................................................................ 300.2(b)(1)(iv).
• Transfer of rights to children in ............................................................................................................................... 300.520(a)(2).
CORRECTIVE ACTION (PLAN)
• Corrective actions to achieve compliance (see §§ 300.152(b)(2)(iii), 300.607)
• Monitoring activities .................................................................................................................................................. 300.120(b)(2).
• Needs intervention by Secretary ............................................................................................................................... 300.604(b)(2)(i).
• State advisory panel (Advise SEA on) ..................................................................................................................... 300.169(d).
COUNSELING SERVICES (Definition) ......................................................................................................................... 300.34(c)(2).
COUNT (See ‘‘Child count’’)
COURT(S)
• Attorneys’ fees ............................................................................................................................................................ 300.517.
• Civil action ................................................................................................................................................................. 300.516.
• Court order:
Æ Exception to FAPE for certain ages ................................................................................................................... 300.102(a)(1).
• Judicial review:
Æ By-pass ................................................................................................................................................................ 300.197.
Æ Department procedures ...................................................................................................................................... 300.184.
• New interpretation of Act by courts requiring modification .................................................................................. 300.176(c)(2).
• Reimbursement for private school placement (see § 300.148(b) through (e))
CRIME (See ‘‘Reporting a crime’’) ................................................................................................................................ 300.535.
CRITERIA (A–I)
• Child count ................................................................................................................................................................. 300.644.
• Child eligibility (Determinant factor) ....................................................................................................................... 300.306(b)(1).
• IEP Team (Public agency representative) ................................................................................................................. 300.321(a)(4).
• Independent educational evaluation ........................................................................................................................ 300.502.
CRITERIA (J–Z)
• Specific learning disability (see §§ 300.307, 300.309)
• Surrogate parents ....................................................................................................................................................... 300.519(d).
CURRENT PLACEMENT (Discipline)
• Authority of hearing officer ...................................................................................................................................... 300.532(b).
• Placement during appeals ......................................................................................................................................... 300.533.
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DATA (A–L)
• Allocation of remaining funds to LEAs .................................................................................................................... 300.816(d).
• Average per-pupil expenditure (Definition) ............................................................................................................. 300.717(d).
• By-pass (Provision of services under) ...................................................................................................................... 300.191(c)(2).
• Determination of needed evaluation data ................................................................................................................ 300.305(c).
• Disaggregated data ..................................................................................................................................................... 300.704(b)(4)(xi).
• Evaluation data:
Æ Procedures for determining eligibility and placement .................................................................................... 300.306(c).
Æ Review of existing data ...................................................................................................................................... 300.305(a)(1).
• Grants to States most recent data ............................................................................................................................. 300.703(c)(1)(ii).
• LRE (Placements—meaning of evaluation data ........................................................................................................ 300.116(a)(1).
DATA (M–Z)
• Parental consent (Not required for reviewing existing evaluation data) ................................................................ 300.300(d)(1)(i).
• State advisory council (Advise SEA on) .................................................................................................................. 300.169(c).
• Suspension and expulsion rates ............................................................................................................................... 300.170(a).
DAY
• Business day (Definition) .......................................................................................................................................... 300.11(b).
• Day (Calendar) ............................................................................................................................................................ 300.11(a).
• Discipline (See ‘‘Timelines—Discipline’’)
• School day (Definition) ............................................................................................................................................. 300.11(c).
• See ‘‘Timelines’’.
DECREASE IN ENROLLMENT (Exception to LEA maintenance of effort) ................................................................ 300.204(b).
DECREASE IN FUNDS (To States) ............................................................................................................................... 300.703(d).
DEDUCTIBLE OR CO-PAY (Public benefits or insurance) ......................................................................................... 300.154(d)(2)(ii).
DEFINITIONS (A–D)
• Act ............................................................................................................................................................................... 300.4.
• Assistive technology device ...................................................................................................................................... 300.5.
• Assistive technology service ..................................................................................................................................... 300.6.
• At no cost ................................................................................................................................................................... 300.39(b)(1).
• Audiology ................................................................................................................................................................... 300.34(c)(1).
• Autism ........................................................................................................................................................................ 300.8(c)(1).
• Average per-pupil expenditure in public elementary and secondary schools in the United States .................... 300.717(d).
• Business day ............................................................................................................................................................... 300.11(b).
• Charter school ............................................................................................................................................................ 300.7.
• Child with a disability ............................................................................................................................................... 300.8(a)(1).
• Consent ....................................................................................................................................................................... 300.9.
• Controlled substance ................................................................................................................................................. 300.530(i)(1).
• Core academic subjects .............................................................................................................................................. 300.10.
• Counseling services ................................................................................................................................................... 300.34(c)(2).
• Day; business day; school day .................................................................................................................................. 300.11.
• Deaf-blindness ............................................................................................................................................................ 300.8(c)(2).
• Deafness ...................................................................................................................................................................... 300.8(c)(3).
• Destruction (Of information) ..................................................................................................................................... 300.611(a).
• Developmental delays(s) ............................................................................................................................................ 300.8(b).
DEFINITIONS (E–H)
• Early identification and assessment ......................................................................................................................... 300.34(c)(3).
• Education records ...................................................................................................................................................... 300.611(b).
• Educational service agency ....................................................................................................................................... 300.12.
• Elementary school ...................................................................................................................................................... 300.13.
• Emotional disturbance ............................................................................................................................................... 300.8(c)(4).
• Equipment .................................................................................................................................................................. 300.14.
• Evaluation ................................................................................................................................................................... 300.15.
• Excess costs ................................................................................................................................................................ 300.16.
• Extended school year services .................................................................................................................................. 300.106(b).
• Free appropriate public education ........................................................................................................................... 300.17.
• Freely associated States ............................................................................................................................................. 300.717(a).
• Hearing impairment ................................................................................................................................................... 300.8(c)(5).
• Highly qualified special education teacher .............................................................................................................. 300.18(b).
• Homeless children ..................................................................................................................................................... 300.19.
DEFINITIONS (I)
• IEP Team .................................................................................................................................................................... 300.23.
• Illegal drug ................................................................................................................................................................. 300.530(i)(2).
• Include ........................................................................................................................................................................ 300.20.
• Independent educational evaluation ........................................................................................................................ 300.502(a)(3)(i).
• Indian .......................................................................................................................................................................... 300.21(a).
• Indian tribe ................................................................................................................................................................. 300.21(b).
• Individualized education program (IEP) .................................................................................................................. 300.22.
• Individualized family service plan ........................................................................................................................... 300.24.
• Infant or toddler with a disability ............................................................................................................................ 300.25.
• Institution of higher education ................................................................................................................................. 300.26.
• Interpreting services .................................................................................................................................................. 300.34(c)(4).
DEFINITIONS (J–O)
• Limited English proficient (LEP) .............................................................................................................................. 300.27.
• Local educational agency (LEA) ............................................................................................................................... 300.28.
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• Medical services ......................................................................................................................................................... 300.34(c)(5).
• Mental retardation ..................................................................................................................................................... 300.8(c)(6).
• Multiple disabilities ................................................................................................................................................... 300.8(c)(7).
• Native language .......................................................................................................................................................... 300.29(a).
• Occupational therapy ................................................................................................................................................ 300.34(c)(6).
• Orientation and mobility services ............................................................................................................................ 300.34(c)(7).
• Orthopedic impairment ............................................................................................................................................. 300.8(c)(8).
• Other health impairment ........................................................................................................................................... 300.8(c)(9).
• Outlying areas ............................................................................................................................................................ 300.717(b).
DEFINITIONS (P–R)
• Parent .......................................................................................................................................................................... 300.30(a).
• Parent counseling and training ................................................................................................................................. 300.34(c)(8).
• Parent training and information center .................................................................................................................... 300.31.
• Parentally-placed private school children with disabilities ................................................................................... 300.130.
• Participating agency (as used in ‘‘Confidentiality’’) ................................................................................................ 300.611(c).
• Party or parties (Regarding procedures) ................................................................................................................... 300.181(a).
• Personally identifiable ............................................................................................................................................... 300.32.
• Physical education ..................................................................................................................................................... 300.39(b)(2).
• Physical therapy ......................................................................................................................................................... 300.34(c)(9).
• Psychological services ............................................................................................................................................... 300.34(c)(10).
• Public agency ............................................................................................................................................................. 300.33.
• Public expense ........................................................................................................................................................... 300.502(a)(3)(ii).
• Recreation ................................................................................................................................................................... 300.34(c)(11).
• Rehabilitation counseling services ........................................................................................................................... 300.34(c)(12).
• Related services .......................................................................................................................................................... 300.34(a).
DEFINITIONS (S)
• School day .................................................................................................................................................................. 300.11(c).
• School health services ............................................................................................................................................... 300.34(c)(13).
• School nurse services ................................................................................................................................................ 300.34(c)(13).
• Scientifically based research ..................................................................................................................................... 300.35.
• Secondary school ....................................................................................................................................................... 300.36.
• Secretary ..................................................................................................................................................................... 300.38.
• Serious bodily injury ................................................................................................................................................. 300.530(i)(3).
• Services plan .............................................................................................................................................................. 300.37.
• Social work services in schools ................................................................................................................................ 300.34(c)(14).
• Special education ....................................................................................................................................................... 300.39(a).
• Specially designed instruction .................................................................................................................................. 300.39(b)(3).
• Specific learning disability ....................................................................................................................................... 300.8(c)(10).
• Speech-language pathology services ......................................................................................................................... 300.34(c)(15).
• Speech or language impairment ............................................................................................................................... 300.8(c)(11).
• State ............................................................................................................................................................................ 300.40.
• State (Special definition) ........................................................................................................................................... 300.717(c).
• State educational agency (SEA) ................................................................................................................................ 300.41.
• Supplementary aids and services ............................................................................................................................. 300.42.
DEFINITIONS (T–Z)
• Transition services ..................................................................................................................................................... 300.43.
• Transportation ............................................................................................................................................................ 300.34(c)(16).
• Traumatic brain injury .............................................................................................................................................. 300.8(c)(12).
• Travel training ............................................................................................................................................................ 300.38(b)(4).
• Universal design ........................................................................................................................................................ 300.44.
• Visual impairment including blindness ................................................................................................................... 300.8(c)(13).
• Vocational education ................................................................................................................................................. 300.39(b)(5).
• Ward of the State ....................................................................................................................................................... 300.45.
• Weapon ....................................................................................................................................................................... 300.530(i)(4).
DEPARTMENT OF LABOR, Bureau of Labor Statistics (Regarding rate of inflation) (see §§ 300.702(b),
300.704(a)(2)(ii), (b)(2), 300.812(b)(2))
DEPARTMENT (U.S. Department of Education)
• Enforcement: hearing procedures (see §§ 300.178 through 300.184)
• Monitoring (Regarding Secretary of the Interior) ..................................................................................................... 300.708(a).
• Personally identifiable information (Use of) ............................................................................................................ 300.627.
DESTRUCTION OF INFORMATION ............................................................................................................................ 300.624(b).
• Definition .................................................................................................................................................................... 300.611(a).
DETERMINANT FACTOR for eligibility determination
• Lack of instruction in reading or math (see § 300.306(b)(1)(i), (b)(1)(ii))
• Limited English proficiency ...................................................................................................................................... 300.306(b)(1)(iii).
DEVELOPMENT, REVIEW, AND REVISION OF IEP .................................................................................................. 300.324.
DEVELOPMENTAL DELAY(S)
• In definition of ‘‘Child with a disability’’ ................................................................................................................ 300.8(b).
• Requirements for using ‘‘Developmental delay’’ ..................................................................................................... 300.111(b).
• State definition ........................................................................................................................................................... 300.111(b).
• Using specified disability categories ........................................................................................................................ 300.111(d).
DIABETES ...................................................................................................................................................................... 300.8(c)(9)(i).
DIRECT SERVICES
• For children in private schools (see §§ 300.132(a); 300.133(a); 300.134(d)(1))
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• Nature and location of services ................................................................................................................................ 300.227(b).
• Payment by Secretary of the Interior ........................................................................................................................ 300.712(d).
• SEA (Additional information) ................................................................................................................................... 300.175(a).
• State-level activities ................................................................................................................................................... 300.704(b)(4)(i).
• Use of LEA allocations for ........................................................................................................................................ 300.227(a).
DISABILITY: ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See ‘‘Adversely affects educational
performance’’)
DISAGGREGATED DATA
• Assessment results for subgroup of children with disabilities ............................................................................... 300.704(b)(4)(xi).
• For suspension and expulsion by race and ethnicity .............................................................................................. 300.170(a).
DISCIPLINE (A–B)
• Alternative educational setting (see §§ 300.530(d)(1), (d)(2), (d)(4), (g), 300.531, 300.533)
• Appeal ........................................................................................................................................................................ 300.532(a).
• Behavioral interventions—intervention plan ........................................................................................................... 300.530(f).
DISCIPLINE (C–H)
• Change of placements for disciplinary removals ..................................................................................................... 300.536.
• Child’s status during due process hearings .............................................................................................................. 300.518.
• Determination of setting ............................................................................................................................................ 300.531.
• Expedited due process hearings ............................................................................................................................... 300.532(c).
• Functional behavioral assessment (see § 300.530(d)(1)(ii), (f)(1)(i)).
• Hearing officer (authority of) (see §§ 300.532(b), 300.533).
DISCIPLINE (I–Z)
• IEP Team (relevant members) (see §§ 300.530(e)(1), (f), 300.531).
• Interim alternative educational setting (see §§ 300.530(b), (d)(2), (g), 300.531, 300.532(b)(2)(ii), 300.533).
• Manifestation determination ..................................................................................................................................... 300.530(e).
• Placement during appeals ......................................................................................................................................... 300.533.
• Protections for children not determined eligible ..................................................................................................... 300.534.
• Referral to and action by law enforcement and judicial authorities ...................................................................... 300.535.
• School personnel (Authority of) ............................................................................................................................... 300.530(b).
• See ‘‘Timelines—Discipline’’.
DISCLOSURE
• Additional disclosure of information requirement .................................................................................................. 300.512(b).
• Consent required before disclosing:
Æ Education records to public benefits or insurance agencies ........................................................................... 300.154(d)(2)(iv).
Æ Personal information to non-agency officials ................................................................................................... 300.622(a).
• Notice on disclosure of evaluation results ............................................................................................................... 300.504(c)(10).
• Policies on disclosing information to 3rd parties .................................................................................................... 300.612(a)(3).
• Prohibit evidence not disclosed ................................................................................................................................ 300.512(a)(3).
DISPROPORTIONALITY ............................................................................................................................................... 300.646.
DISPUTES
• Interagency disputes (Methods of ensuring services):
Æ Ensure services during pendency of dispute .................................................................................................... 300.154(a).
Æ Procedures for resolving .................................................................................................................................... 300.154(a)(3).
• Mediation (see also § 300.532(c)(3)) ......................................................................................................................... 300.506.
Æ Attorneys’ fees for .............................................................................................................................................. 300.517(c)(2)(ii).
Æ During discipline appeal process ...................................................................................................................... 300.532(c)(3).
Æ During resolution process (see § 300.510(b)(3), (c)(3))
Æ Enforcement of agreement (see §§ 300.506(b)(7), 300.510(d)(2), 300.537)
DIVIDED STATE AGENCY RESPONSIBILITY (Adult prisons) .................................................................................. 300.607.
DIVORCE—SEPARATION (Authority to review records) ........................................................................................... 300.613(c).
DROPOUT RATES (Performance indicators) ............................................................................................................... 300.157(a)(3).
DUE PROCESS HEARING(S) AND REVIEWS (A–E)
• Agency responsible for conducting hearing ............................................................................................................. 300.511(b).
• Appeal of decisions; impartial review ..................................................................................................................... 300.514(b).
• Attorneys’ fees ............................................................................................................................................................ 300.517(a).
• Basic requirements (see §§ 300.507 through 300.514)
• Child’s status during proceedings (Pendency) ......................................................................................................... 300.518.
Æ Parent request for hearing (Discipline) ............................................................................................................. 300.532(a).
• Civil action ................................................................................................................................................................. 300.516(a).
• Evaluations disclosed at least 5 business days before hearing ............................................................................... 300.512(a)(3).
• Expedited due process hearings (Discipline) ........................................................................................................... 300.532(c).
DUE PROCESS HEARING(S) AND REVIEWS (F–I)
• Failure to implement a due process hearing decision ............................................................................................ 300.152(c)(3).
• Finality of decision; appeal; impartial review ......................................................................................................... 300.514.
• Findings of fact and decisions (see § 300.512(a)(5), (c)(3)):
Æ To State advisory panel (see §§ 300.513(d), 300.514(c))
• Hearing rights ............................................................................................................................................................. 300.512(a).
• Impartial hearing officer ............................................................................................................................................ 300.511(c).
Æ See ‘‘Hearing officer(s)’’
DUE PROCESS HEARING(S) AND REVIEWS (J–Z)
• Parental rights at hearings ......................................................................................................................................... 300.512(c).
• Party notice to other party ........................................................................................................................................ 300.508(c).
Æ Model form to assist parents ............................................................................................................................. 300.509.
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• Party request for hearing (Discipline) ....................................................................................................................... 300.532(a).
• Pendency (Stay put) ................................................................................................................................................... 300.518.
• Prohibit evidence not introduced 5 business days before hearing ......................................................................... 300.512(a)(3).
• Record of hearing ....................................................................................................................................................... 300.512(c)(3).
• See ‘‘Civil action—proceedings,’’ ‘‘Court(s)’’ ‘‘Procedural safeguards,’’ ‘‘Timelines’’
• Timelines and convenience of hearings—reviews (see §§ 300.506(b)(5), 300.511(e), 300.516(b))
EARLY IDENTIFICATION AND ASSESSMENT (Definition) ..................................................................................... 300.34(c)(3).
EARLY INTERVENING SERVICES ............................................................................................................................... 300.226.
• Adjustment to local fiscal efforts .............................................................................................................................. 300.205(d).
• Do not limit/create right to FAPE ............................................................................................................................. 300.226(c).
• For children not currently identified as needing special education or related services ...................................... 300.226(a).
• Permissive use of funds ............................................................................................................................................. 300.208(a)(2).
• Scientifically based literacy instruction ................................................................................................................... 300.226(b).
• Use of funds:
Æ By LEA ................................................................................................................................................................ 300.226(a).
Æ By Secretary of the Interior ................................................................................................................................ 300.711.
EDUCATION RECORDS (Definition) ............................................................................................................................ 300.611(b).
EDUCATIONAL PLACEMENTS (LRE) ......................................................................................................................... 300.114.
EDUCATIONAL SERVICE AGENCY (ESA)
• Definition .................................................................................................................................................................... 300.12.
• In definition of ‘‘LEA’’ ............................................................................................................................................... 300.28(b)(1).
• Joint establishment of eligibility (Regarding ESAs) ................................................................................................. 300.224(b).
Æ Additional requirements (Regarding LRE) ........................................................................................................ 300.224(c).
ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965 (ESEA)
• Coordination of early intervening services .............................................................................................................. 300.226(e).
• Excess cost requirement ............................................................................................................................................ 300.202(b).
• Schoolwide programs ................................................................................................................................................ 300.206(a).
ELIGIBILITY (CHILD—STUDENT) (A–G)
• Additional eligibility requirements (see §§ 300.121 through 300.124, 300.307 through 300.311)
• Children with disabilities in adult prisons .............................................................................................................. 300.324(d).
• Children with specific learning disabilities (Documentation of eligibility determination) .................................. 300.311(a).
• Determinant factor for ............................................................................................................................................... 300.306(b)(1).
• Determination of eligibility ....................................................................................................................................... 300.306.
• Developmental delay (Non-use of term by LEA if not adopted by State) .............................................................. 300.111(b)(iv).
• Documentation of eligibility (To parent) .................................................................................................................. 300.306(a)(2).
• Graduation with regular diploma: termination (see §§ 300.102(a)(3), 300.305(e)(2)).
ELIGIBILITY (CHILD—STUDENT) (H–Z)
• Lack of instruction in reading or math .................................................................................................................... 300.306(b).
• Limited English proficiency ...................................................................................................................................... 300.306(b).
• Public benefits or insurance (Risk loss of eligibility) .............................................................................................. § 300.154(d)(2) (iii).
• Termination of eligibility (see §§ 300.204(c), 300.305(e)(2))
• Transfer of rights (Special rule) ................................................................................................................................ 300.520(b).
ELIGIBILITY (PUBLIC AGENCIES)
• Hearings related to (See ‘‘Hearings—Hearing procedures’’)
• Joint establishment of (see §§ 300.202(b)(3), 300.223(a), 300.224(a))
• LEA (See ‘‘LEA eligibility’’) Secretary of the Interior ............................................................................................. 300.712(e).
• State (See ‘‘State eligibility’’)
• State agency eligibility .............................................................................................................................................. 300.228.
Æ See ‘‘State agencies’’
EMOTIONAL DISTURBANCE (Definition) .................................................................................................................. 300.8(c)(4).
ENFORCEMENT
• Department procedures (see §§ 300.600, 300.604, 300.605)
• Referral to law enforcement authorities ................................................................................................................... 300.535.
• State policies and procedures:
Æ Enforcement mechanisms .................................................................................................................................. 300.537.
Æ LEA not meeting requirements .......................................................................................................................... 300.608.
Æ Regarding confidentiality ................................................................................................................................... 300.626.
EPILEPSY ....................................................................................................................................................................... 300.8(c)(9)(i).
EQUIPMENT
• Acquisition of ............................................................................................................................................................. 300.718(a).
• Definition .................................................................................................................................................................... 300.14.
• Exception to maintenance of effort ........................................................................................................................... 300.204(d).
• Placement in private school ...................................................................................................................................... 300.144.
EVALUATION (A–G)
• Assessments in (see §§ 300.304(b), (c) 300.305(c)).
• Basic requirements (see §§ 300.301, 300.303, 00.324)
• Comprehensive (Identify all special education needs) ............................................................................................ 300.304(c)(6).
• Definition of ............................................................................................................................................................... 300.15.
• Evaluation procedures ............................................................................................................................................... 300.304.
• Evaluation report to parents ...................................................................................................................................... 300.306(a)(2).
• Existing evaluation data (Review of) ........................................................................................................................ 300.305(a)(1).
• Graduation (Evaluation not required for) ................................................................................................................. 300.305(e)(2).
EVALUATION (H–Z)
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• Independent educational evaluation (IEE) ............................................................................................................... 300.502.
• Initial evaluation (see §§ 300.301, 300.305)
• Observation in determining SLD .............................................................................................................................. 300.310.
• Parent consent ............................................................................................................................................................ 300.300.
• Parent right to evaluation at public expense ........................................................................................................... 300.502(b).
• Reevaluation ............................................................................................................................................................... 300.303.
EXCEPTION
• Charter schools exception (Joint eligibility) ............................................................................................................. 300.223(b).
• For prior local policies and procedures ................................................................................................................... 300.220.
• For prior State policies and procedures ................................................................................................................... 300.176(a).
• To FAPE:
Æ For certain ages .................................................................................................................................................. 300.102.
Æ For graduating with a regular diploma ............................................................................................................. 300.102(a)(3)(i).
Æ For children in adult prisons (see §§ 300.102(a)(2), 300.324(d)).
• To maintenance of effort ........................................................................................................................................... 300.204.
• To reimbursement for parental placement ............................................................................................................... 300.148(e).
EXCESS COSTS
• Calculation of (see Appendix A—Excess Costs Calculation)
• Definition .................................................................................................................................................................... 300.16.
• Excess cost requirement ............................................................................................................................................ 300.202(b)
• Joint establishment of eligibility ............................................................................................................................... 300.202(b)(3)
• LEA requirement ........................................................................................................................................................ 300.202(b)
• Limitation on use of Part B funds ............................................................................................................................ 300.202(b)
• Meeting the excess cost requirement ........................................................................................................................ 300.202(b)(2)
• See also §§ 300.163(a), 300.175(b), 300.202(a), 300.227(a)(2)(ii)
EXISTING EVALUATION DATA (Review of) ............................................................................................................. 300.305(a)(1).
EXPEDITED DUE PROCESS HEARINGS ..................................................................................................................... 300.532(c).
• Authority of hearing officer ...................................................................................................................................... 300.532(b).
• Party appeal (Hearing requested by parents) ........................................................................................................... 300.532(a).
EXPULSION (See ‘‘Suspension and expulsion’’)
EXTENDED SCHOOL YEAR SERVICES ...................................................................................................................... 300.106.
EXTRACURRICULAR
• IEP content ................................................................................................................................................................. 300.320(a)(4)(ii).
• In supplementary aids and services ......................................................................................................................... 300.42.
• Nonacademic services ............................................................................................................................................... 300.107.
• Nonacademic settings ................................................................................................................................................ 300.117.
FACILITIES
• Alteration of ............................................................................................................................................................... 300.718.
• Children in private schools or facilities (see §§ 300.130, 300.142(a), 300.144(b), (c), 300.147(c))
• Construction of ........................................................................................................................................................... 300.718.
• Physical education (In separate facilities) ................................................................................................................ 300.108(d).
• Private schools and facilities .................................................................................................................................... 300.2(c).
• See also ‘‘Correctional facilities’’
• Termination of expenses for construction of ........................................................................................................... 300.204(d).
FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA) (See ‘‘Confidentiality’’)
FAPE (A–G)
• Definition .................................................................................................................................................................... 300.17.
• Documentation of exceptions .................................................................................................................................... 300.102(b).
• Exception to FAPE:
Æ For certain ages .................................................................................................................................................. 300.102(a).
Æ For children receiving early intervention services .......................................................................................... 300.102(a)(4).
Æ For children graduating with a regular diploma .............................................................................................. 300.102(a)(3).
Æ For children in adult correctional facilities ..................................................................................................... 300.102(a)(2).
• For children:
Æ Advancing from grade to grade ......................................................................................................................... 300.101(c).
Æ Beginning at age 3 .............................................................................................................................................. 300.101(b).
Æ On Indian reservations ....................................................................................................................................... 300.707(c).
Æ Suspended or expelled from school .................................................................................................................. 300.101(a).
• General requirement .................................................................................................................................................. 300.101(a).
FAPE (H–Z)
• Methods and payments ............................................................................................................................................. 300.103.
• Private school children with disabilities:
Æ Placed by parents when FAPE is at issue ......................................................................................................... 300.148.
Æ Placed in or referred by public agencies (see §§ 300.145 through 300.147)
• Reallocation of LEA funds (FAPE adequately provided) ........................................................................................ 300.705(c).
• Services (and placement) for FAPE:
Æ Based on child’s needs (Not disability category) ............................................................................................. 300.304(c)(6).
• State eligibility condition .......................................................................................................................................... 300.100.
FAS (Freely associated States) ...................................................................................................................................... 300.717(a).
FAX (FACSIMILE TRANSMISSION)
• Department procedures (see §§ 300.183, 300.196(a) through (e))
FERPA (Family Educational Rights and Privacy Act) (See ‘‘Confidentiality’’)
FILING A CLAIM (Private insurance) .......................................................................................................................... 300.154(e).
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FILING A COMPLAINT (State complaint procedures) ............................................................................................... 300.153.
FILING REQUIREMENTS
• By-pass (Regarding private school children) ........................................................................................................... 300.196.
• Department procedures ............................................................................................................................................. 300.183.
• See §§ 300.178 through 300.186.
FINALITY OF DECISION .............................................................................................................................................. 300.514.
FORMULA
• Allocations to LEAs ................................................................................................................................................... 300.705(b).
• Allocations to States .................................................................................................................................................. 300.703.
• Allocation to States when by-pass is implemented ................................................................................................. 300.191.
• Allocation to States regarding section 619 (see §§ 300.807, 300.810).
• Parentally-placed private school children ............................................................................................................... 300.133.
• SEA set aside funds ................................................................................................................................................... 300.704(b).
• See also § 300.171(a).
FOSTER PARENT .......................................................................................................................................................... 300.30(a)(2).
• See also § 300.45(b).
FREELY ASSOCIATED STATES AND OUTLYING AREAS
• Funding for ................................................................................................................................................................. 300.701(a).
• Purpose of grants ....................................................................................................................................................... 300.700(a).
FULL EDUCATIONAL OPPORTUNITY GOAL ........................................................................................................... 300.109.
FUNCTIONAL BEHAVIORAL ASSESSMENT (see § 300.530(d)(1)(ii), (f)(1)(i))
FUNDING MECHANISM: LRE ...................................................................................................................................... 300.114(b).
FUNDS (See ‘‘Use of funds’’)
GENERAL CURRICULUM
• Discipline (Continue participating in) ...................................................................................................................... 300.530(d)(1)(i).
• Evaluation procedures:
Æ Be involved and progress in .............................................................................................................................. 300.304(b)(1)(ii).
Æ Review of existing evaluation data ................................................................................................................... 300.305(a)(1).
• IEPs:
Æ Measurable annual goals .................................................................................................................................... 300.320(a)(2)(i).
Æ Present levels of educational performance ....................................................................................................... 300.320(a)(1).
Æ Review and revision of IEPs .............................................................................................................................. 300.324(b)(1)(ii).
Æ Special education and related services ............................................................................................................. 300.320(a)(4)(ii).
• IEP Team .................................................................................................................................................................... 300.321(a)(4)(ii).
• Specially designed instruction (Definition) ............................................................................................................. 300.39(b)(3).
GOALS
Annual goals (See ‘‘IEP’’ and ‘‘Annual goals’’).
• Performance goals and indicators ............................................................................................................................. 300.157.
Æ State and local activities to meet ...................................................................................................................... 300.814(c).
Æ Use of State-level funds to meet ........................................................................................................................ 300.704(b)(4)(x).
GOVERNOR (Adult prisons) ......................................................................................................................................... 300.149(d).
• See also ‘‘Chief executive officer’’.
GRADUATION
• Evaluation not required for ....................................................................................................................................... 300.305(e)(2).
• Exception to FAPE ..................................................................................................................................................... 300.102(a)(3)(i).
• Graduation rates as performance indicators ............................................................................................................. 300.157(a)(3).
• Written prior notice required .................................................................................................................................... 300.102(a)(3)(iii).
GRANDPARENT OR STEPPARENT (In definition of ‘‘Parent’’) ................................................................................ 300.30(a)(4).
GRANTS
• Grants to States: ......................................................................................................................................................... 300.700.
Æ Maximum amount .............................................................................................................................................. 300.700(b).
Æ Purpose of ........................................................................................................................................................... 300.700(a).
• See ‘‘Subgrants’’.
GUARDIAN (In definition of ‘‘Parent’’) ....................................................................................................................... 300.30(a)(3).
GUARDIANSHIP, SEPARATION, AND DIVORCE (Regarding parent’s authority to review records) ..................... 300.613(c).
HEALTH AND HUMAN SERVICES (Secretary of) ...................................................................................................... 300.708(i)(1).
HEARING AIDS: Proper functioning of ....................................................................................................................... 300.113(a).
HEARING IMPAIRMENT
• Definition .................................................................................................................................................................... 300.8(c)(5).
• Related services, audiology ....................................................................................................................................... 300.34(c)(1).
HEARING OFFICER(S) (A–B)
• Additional disclosure of information requirement .................................................................................................. 300.512(b).
• Attorneys’ fees ............................................................................................................................................................ 300.517(c)(2)(i).
• Authority of (Discipline) ........................................................................................................................................... 300.532(b).
Æ Basis of decisions ............................................................................................................................................... 300.513(a).
HEARING OFFICER(S) (C–Z)
• Change of placement:
Æ Hearing officer decision agrees with parents ................................................................................................... 300.518(d).
Æ Hearing officer may order .................................................................................................................................. 300.532(b)(2)(ii).
• Expedited due process hearing (Discipline) ............................................................................................................. 300.532(c).
• Impartial hearing officer ............................................................................................................................................ 300.511(c).
• Parent appeal (Discipline) ......................................................................................................................................... 300.532(a).
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• Placement during appeals ......................................................................................................................................... 300.533.
• Private school placement when FAPE is at issue .................................................................................................... 300.148(b).
• Reimbursement for private school placement by parents ....................................................................................... 300.148(c).
• Requests for evaluations by ....................................................................................................................................... 300.502(d).
HEARING RIGHTS ........................................................................................................................................................ 300.512.
HEARINGS—HEARING PROCEDURES
• Due process (See ‘‘Due process hearings’’).
• Public hearings on policies and procedures ............................................................................................................ 300.165(a).
• State and local eligibility:
Æ LEA eligibility .................................................................................................................................................... 300.155.
Æ Notification in case of LEA or State ineligibility ............................................................................................. 300.221.
Æ State eligibility (Notice and hearing) (see §§ 300.178, 300.179, 300.181).
HEART CONDITION ..................................................................................................................................................... 300.8(c)(9)(i).
HEIGHTENED ALERTNESS TO ENVIRONMENTAL STIMULI (In ‘‘Other health impairment’’) ........................... 300.8(c)(9).
HIGH COST FUND (LEA) ............................................................................................................................................. 300.704(c).
HIGHLY MOBILE CHILDREN (e.g., homeless and migrant children) ....................................................................... 300.111(c)(2).
HIGHLY QUALIFIED TEACHER (A–Q)
• Alternative route to certification .............................................................................................................................. 300.18(b)(2).
• Definition of ............................................................................................................................................................... 300.18.
• Private school teachers .............................................................................................................................................. 300.18(h).
HIGHLY QUALIFIED TEACHER (R–Z)
• Requirements for in general ...................................................................................................................................... 300.18(b).
• Requirements for teaching to alternate achievement standards ............................................................................. 300.18(c).
• Requirements for teaching multiple subjects ........................................................................................................... 300.18(d).
• Personnel qualifications ............................................................................................................................................ 300.156(c).
HIGH NEED CHILD ....................................................................................................................................................... 300.704(c)(3)(i).
HOMELESS CHILDREN
• Child find ................................................................................................................................................................... 300.111(a)(1)(i).
• Definition of ............................................................................................................................................................... 300.19.
• McKinney-Vento Homeless Assistance Act (see §§ 300.19, 300.149(a)(3), 300.153(b)(4)(iii), 300.168(a)(5),
300.508(b)(4)).
• Surrogate parents for ................................................................................................................................................. 300.519(a)(4).
HYPERACTIVITY (Attention deficit hyperactivity disorder) ..................................................................................... 300.8(c)(9)(i).
INAPPLICABILITY (Of requirements that prohibit commingling and supplanting of funds) ................................. 300.704(d).
IEE (See ‘‘Independent educational evaluation’’)
IEP (A–I)
• Agency responsibilities for transition services ........................................................................................................ 300.324(c)(1).
• Basic requirements (see §§ 300.320 through 300.324).
• Child participation when considering transition ..................................................................................................... 300.321(b)(1).
• Consideration of special factors ................................................................................................................................ 300.324(a)(2).
• Consolidation of IEP Team meetings ........................................................................................................................ 300.324(a)(5).
• Content of IEPs ........................................................................................................................................................... 300.320(a).
• Definition (see §§ 300.22, 300.320).
• Development, review, and revision of ...................................................................................................................... 300.324.
• IEP or IFSP for children aged 3 through 5 ............................................................................................................... 300.323(b).
• IEP Team .................................................................................................................................................................... 300.321.
IEP (J–Z)
• Modifications of IEP or placement (FAPE for children in adult prisons) .............................................................. 300.324(d)(2)(i).
• Modify/Amend without convening meeting (see § 300.324(a)(4), (a)(6)).
• Parent participation ................................................................................................................................................... 300.322.
• Alternative means ...................................................................................................................................................... 300.328.
• Part C coordinator involvement ................................................................................................................................ 300.321(f).
• Private school placements by public agencies ......................................................................................................... 300.325(a)(1).
• Regular education teacher (See ‘‘IEP Team’’).
• Review and revision of IEPs ..................................................................................................................................... 300.324(b).
• SEA responsibility regarding private school ............................................................................................................ 300.325(c).
• State eligibility requirement ...................................................................................................................................... 300.112.
• Transition services ..................................................................................................................................................... 300.320(b).
• When IEPs must be in effect ..................................................................................................................................... 300.323.
IEP TEAM ...................................................................................................................................................................... 300.321.
• Alternative educational setting (Determined by) ..................................................................................................... 300.531.
• Consideration of special factors ................................................................................................................................ 300.324(a)(2).
Æ Assistive technology ........................................................................................................................................... 300.324(a)(2)(v).
Æ Behavioral interventions .................................................................................................................................... 300.324(a)(2)(i).
Æ Braille needs ....................................................................................................................................................... 300.324(a)(2)(iii).
Æ Communication needs (Deafness and other needs) ......................................................................................... 300.324(a)(2)(iv).
Æ Limited English proficiency .............................................................................................................................. 300.324(a)(2)(ii).
• Determination of knowledge or special expertise .................................................................................................... 300.321(c).
• Discipline procedures (see §§ 300.530(e), 300.531).
• Manifestation determination ..................................................................................................................................... 300.530(e).
• Other individuals who have knowledge or special expertise (At parent or agency discretion) .......................... 300.321(a)(6).
• Participation by private school (public agency placement) .................................................................................... 300.325(a).
• Regular education teacher (see §§ 300.321(a)(2), 300.324(a)(3)).
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IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN)
• Definition .................................................................................................................................................................... 300.24.
• Transition from Part C ............................................................................................................................................... 300.124.
• IFSP vs. IEP ................................................................................................................................................................ 300.323(b).
ILLEGAL DRUG (Definition—discipline) ..................................................................................................................... 300.530(i)(2).
IMPARTIAL DUE PROCESS HEARING ....................................................................................................................... 300.511.
• See ‘‘Due process hearings and reviews’’.
IMPARTIAL HEARING OFFICER ................................................................................................................................. 300.511(c).
IMPARTIALITY OF MEDIATOR .................................................................................................................................. 300.506(b)(1).
INCIDENTAL BENEFITS (Permissive use of funds) ................................................................................................... 300.208.
INCIDENTAL FEES (In definition of ‘‘at no cost’’ under ‘‘Special education’’) ....................................................... 300.39(b)(1).
INCLUDE (Definition) .................................................................................................................................................... 300.20.
INDEPENDENT EDUCATIONAL EVALUATION (IEE) ............................................................................................... 300.502.
• Agency criteria (see § 300.502(a)(2), (b)(2)(ii), (c)(1), (e)).
• Definition .................................................................................................................................................................... 300.502(a)(3)(i).
• Parent-initiated evaluations ...................................................................................................................................... 300.502(c).
• Parent right to ............................................................................................................................................................ 300.502(a)(1).
• Procedural safeguards notice .................................................................................................................................... 300.504(c)(1).
• Public expense (Definition under IEE) ..................................................................................................................... 300.502(a)(3)(ii).
• Request by hearing officers ....................................................................................................................................... 300.502(d).
• Use as evidence at hearing ........................................................................................................................................ 300.502(c)(2).
INDIAN; INDIAN CHILDREN
• Child find for Indian children aged 3 through 5 ..................................................................................................... 300.712(d).
• Definition of ‘‘Indian’’ ............................................................................................................................................... 300.21(a).
• Definition of ‘‘Indian tribe’’ ...................................................................................................................................... 300.21(b).
• Early intervening services ......................................................................................................................................... 300.711.
• Payments and use of amounts for:
Æ Education and services for children aged 3 through 5 .................................................................................... 300.712(a).
Æ Education of Indian children ............................................................................................................................. 300.707.
• Plan for coordination of services .............................................................................................................................. 300.713.
• Submission of information by Secretary of Interior ................................................................................................ 300.708.
INDICATORS ................................................................................................................................................................. 300.157(b).
• See ‘‘Performance goals and indicators’’.
INDIVIDUALIZED EDUCATION PROGRAM (See ‘‘IEP’’)
INDIVIDUALIZED FAMILY SERVICE PLAN (See ‘‘IFSP’’)
INFORMED CONSENT (See ‘‘Consent’’)
INITIAL EVALUATION ................................................................................................................................................. 300.301.
• Consent before conducting ........................................................................................................................................ 300.300(a)(1)(i).
Æ For ward of State ................................................................................................................................................ 300.300(a)(2).
Æ Not construed as consent for initial placement ............................................................................................... 300.300(a)(1)(ii).
Æ When not required ............................................................................................................................................. 300.300(a)(2).
• Review of existing evaluation data ........................................................................................................................... 300.305(a).
INSTITUTION OF HIGHER EDUCATION
• Definition .................................................................................................................................................................... 300.26.
INSTRUCTIONAL MATERIALS
• Access to ..................................................................................................................................................................... 300.172.
• Audio-visual materials .............................................................................................................................................. 300.14(b).
• LEA purchase of ......................................................................................................................................................... 300.210.
• NIMAC:
Æ SEA coordination with ....................................................................................................................................... 300.172(c).
Æ SEA rights and responsibilities if not coordinating ......................................................................................... 300.172(b).
INSURANCE
• Community-based waivers (see § 300.154(d)(2)(iii)(D)).
• Financial costs ........................................................................................................................................................... 300.154(f)(2).
• Financial responsibility of LEA/SEA ....................................................................................................................... 300.154(a)(1).
• Out-of-pocket expense ............................................................................................................................................... 300.154(d)(2)(ii).
• Private insurance ....................................................................................................................................................... 300.154(e).
• Public benefits or insurance ...................................................................................................................................... 300.154(d).
• Risk of loss of eligibility (see § 300.154(d)(2)(iii)(D)).
INTERAGENCY AGREEMENTS
• FAPE methods and payments (Joint agreements) .................................................................................................... 300.103(a).
• LRE (Children in public/private institutions) .......................................................................................................... 300.114(a)(2)(i).
• Methods of ensuring services .................................................................................................................................... 300.154(a).
• SEA responsibility for general supervision .............................................................................................................. 300.149.
• Secretary of Interior—with Health and Human Services Secretary ....................................................................... 300.708(i)(1).
Æ Cooperative agreements (BIA and other agencies) ........................................................................................... 300.712(d).
INTERAGENCY COORDINATION (See ‘‘Coordination of services,’’ ‘‘Interagency agreements’’)
INTERAGENCY DISPUTES ........................................................................................................................................... 300.154(a)(3).
INTERAGENCY RESPONSIBILITIES (Transition services) ........................................................................................ 300.320(b).
INTERIM ALTERNATIVE EDUCATIONAL SETTING (See §§ 300.530(b), 300.531, 300.532(b)(2)(ii), 300.533)
INTERPRETING SERVICES
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• As a related service .................................................................................................................................................... 300.34(a).
• Definition .................................................................................................................................................................... 300.34(c)(4).
JOINT ESTABLISHMENT OF ELIGIBILITY (LEAs) .................................................................................................... 300.223.
• See also §§ 300.202(b)(3), 300.224.
JUDICIAL
• Authorities (Referral to) ............................................................................................................................................. 300.535.
• Finding of unreasonableness ..................................................................................................................................... 300.148(d)(3).
• Proceeding (During pendency) .................................................................................................................................. 300.518(a).
• Review ........................................................................................................................................................................ 300.197.
• See also:
Æ Civil action (see §§ 300.504(c)(12), 300.514(d), 300.516).
Æ Court(s) (see §§ 300.102(a)(1), 300.184, 300.148(c), (d)(3), 300.197, 300.516(a), (c), (d), 300.517(a), (c)).
JUVENILE-ADULT CORRECTIONS FACILITIES (See ‘‘Correctional facilities’’)
LAW ENFORCEMENT AND JUDICIAL AUTHORITIES
• Referral to ................................................................................................................................................................... 300.535.
LEA (LOCAL EDUCATIONAL AGENCY) (A–C)
• Allocations to LEAs ................................................................................................................................................... 300.705(b).
Æ Reallocation of funds (If LEA is adequately providing FAPE) ........................................................................ 300.705(c).
• Charter schools and LEAs (See ‘‘Charter schools’’).
• Child count—LEAs:
Æ Parentally-placed private school children with disabilities ............................................................................ 300.133(c).
Æ Procedures for counting all children served (Annual report) ......................................................................... 300.645.
Æ See also ‘‘Child count’’.
• Child find—LEAs:
Æ Parentally-placed private school children with disabilities ............................................................................ 300.131.
Æ See also ‘‘Child find’’.
• Compliance (LEA and State agency) ........................................................................................................................ 300.222.
• Consistency of LEA policies with State policies ..................................................................................................... 300.201.
LEA (D–G)
• Definition of LEA ....................................................................................................................................................... 300.28.
• Developmental delay: Use of term by LEAs (see § 300.111(b)(2) through (b)(4)).
• Direct services by SEA (If LEA is unable or unwilling to serve CWDs, etc.) ........................................................ 300.227.
• Discipline and LEAs (See ‘‘Discipline’’).
• Eligibility of LEA:
Æ Condition of assistance (see §§ 300.200 through 300.213).
Æ Exception for prior local plans. ......................................................................................................................... 300.220.
Æ Ineligibility of LEA (Notice by SEA) ................................................................................................................. 300.221.
Æ SEA hearings on LEA eligibility ........................................................................................................................ 300.155.
• Excess cost requirement—LEA: ................................................................................................................................ 300.202(b).
Æ Use of amounts for excess costs ........................................................................................................................ 300.202(a)(2).
Æ See also ‘‘Excess costs’’.
LEA (H–L)
• Hearings relating to LEA eligibility .......................................................................................................................... 300.155.
• Information for SEA ................................................................................................................................................... 300.211.
• Instructional materials (Purchase of) ........................................................................................................................ 300.210.
• Joint establishment of eligibility (By two or more LEAs) ....................................................................................... 300.202(b)(3).
Æ See also §§ 300.223, 300.224.
• LEA and State agency compliance ........................................................................................................................... 300.222.
• LEA policies (Modification of) .................................................................................................................................. 300.220(b).
Æ See ‘‘LEA eligibility,’’ ‘‘Eligibility of LEA’’.
LEA (M–P)
• Maintenance of effort regarding LEAs (See ‘‘Maintenance of effort’’).
• Methods of ensuring services—LEAs (see § 300.154(a)(1) through (a)(4), (b)).
• Migratory children with disabilities (Linkage with records under ESEA) ............................................................. 300.213.
• Modification of policies by LEA ............................................................................................................................... 300.220(b).
• Noncompliance of LEA (SEA determination) .......................................................................................................... 300.222(a).
• Notice requirement (On LEA) ................................................................................................................................... 300.222(b).
• Purchase of instructional materials .......................................................................................................................... 300.210.
• Personnel shortages (Use of funds to assist LEAs in meeting) ............................................................................... 300.704(b)(4)(vii).
• Public information (By LEA) ..................................................................................................................................... 300.212.
LEA (R–T)
• Reallocation of LEA funds (If LEA is adequately providing FAPE) ....................................................................... 300.705(c).
• Reimbursement of LEAs by other agencies (See ‘‘Methods of ensuring services,’’ § 300.154(a)(2) through
(a)(3), (b)(2)).
• Review and revision of policies ................................................................................................................................ 300.170(b).
• SEA reduction in payments to LEA ......................................................................................................................... 300.222(a).
• SEA use of LEA allocations for direct services ........................................................................................................ 300.227.
• Show cause hearing (By-pass requirement) ............................................................................................................. 300.194.
• State-level nonsupplanting ........................................................................................................................................ 300.162(c).
• Subgrants to LEAs ...................................................................................................................................................... 300.705(a).
• Suspension and expulsion rates—LEAs ................................................................................................................... 300.170(a)(1).
• Transition planning conferences (Part C to B) ......................................................................................................... 300.124(c).
LEA (U–Z)
• Use of amounts (by LEA) .......................................................................................................................................... 300.202.
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Æ (See ‘‘Permissive use of funds’’).
• Use of SEA allocations (Regarding LEAs) ................................................................................................................ 300.704.
Æ For capacity-building, etc. (see § 300.704(b)(4)(viii)).
Æ To assist in meeting personnel shortages (see § 300.704(b)(4)(vii)).
LEA ELIGIBILITY (A–I)
• Adjustment to local fiscal efforts in certain fiscal years ......................................................................................... 300.205.
• Charter schools—public:
Æ Rights of children with disabilities who attend public charter schools ......................................................... 300.209(a).
Æ That are public schools of the LEA ................................................................................................................... 300.209(b).
Æ That are LEAs ..................................................................................................................................................... 300.209(c).
Æ That are not an LEA or a school that is part of an LEA .................................................................................. 300.209(d).
Æ Treatment of charter schools and their students .............................................................................................. 300.209.
Æ See also ‘‘Charter schools’’.
• Condition of assistance .............................................................................................................................................. 300.200.
Æ See §§ 300.201 through 300.213.
• Consistency with State policies ................................................................................................................................ 300.201.
• Information for SEA ................................................................................................................................................... 300.211.
LEA ELIGIBILITY (M–Z)
• Maintenance of effort ................................................................................................................................................. 300.203.
Æ Exception to ........................................................................................................................................................ 300.204.
• Migratory children with disabilities—records regarding ........................................................................................ 300.213.
• Permissive use of funds ............................................................................................................................................. 300.208.
Æ Administrative case management ...................................................................................................................... 300.208(b).
Æ Early intervening services .................................................................................................................................. 300.208(a)(2).
Æ High cost special education and related services ............................................................................................ 300.208(a)(3).
Æ Services and aids that also benefit nondisabled children ............................................................................... 300.208(a)(1).
• Personnel development ............................................................................................................................................. 300.207.
• Records regarding migratory children with disabilities .......................................................................................... 300.213.
• State prohibition (If LEA is unable to establish/maintain programs of FAPE) ...................................................... 300.205(c).
• Treatment of charter schools and their students ..................................................................................................... 300.209.
LEAD POISONING (Other health impairment) ........................................................................................................... 300.8(c)(9)(i).
LEAST RESTRICTIVE ENVIRONMENT (LRE)
• Children in public or private institutions ................................................................................................................ 300.118.
• Continuum of alternative placements ...................................................................................................................... 300.115.
• Educational service agency (Additional requirement regarding LRE) .................................................................... 300.224(c).
• Monitoring activities .................................................................................................................................................. 300.120.
• Nonacademic settings ................................................................................................................................................ 300.117.
• Placements ................................................................................................................................................................ 300.116.
• State eligibility requirements .................................................................................................................................... 300.114.
• Additional requirement: State funding mechanism ................................................................................................ 300.114(b).
• Technical assistance and training ............................................................................................................................. 300.119.
LEISURE EDUCATION (Recreation) ............................................................................................................................. 300.34(c)(11)(iv).
LEP (See ‘‘Limited English proficient’’)
LEUKEMIA (Other health impairment) ........................................................................................................................ 300.8(c)(9)(i).
LIMITED ENGLISH PROFICIENT (LEP)
• Definition of ............................................................................................................................................................... 300.27.
• Determinant factor in eligibility determination ....................................................................................................... 300.306(b)(1)(iii).
• In development, review, and revision of IEP ........................................................................................................... 300.324(a)(2)(ii).
• In ‘‘native language’’ (Definition) ............................................................................................................................. 300.29(a).
• Special rule—LEP not determinant factor ................................................................................................................ 300.306(b)(1)(iii).
LOCAL EDUCATIONAL AGENCY (See ‘‘LEA’’)
LRE (See ‘‘Least restrictive environment’’)
MAINTENANCE OF EFFORT (MOE–LEA) (A–R)
• Amounts in excess (Reduce level) ............................................................................................................................ 300.205(a).
• Exception to ............................................................................................................................................................... 300.204.
• Maintenance of effort and early intervening services (see Appendix D).
• Maintenance of effort—LEA ...................................................................................................................................... 300.203.
• Non-reduction of (State enforcement) ...................................................................................................................... 300.608.
• Public benefits or insurance proceeds are not MOE ............................................................................................... 300.154(g)(2).
Æ See ‘‘Methods of ensuring services’’.
MAINTENANCE OF EFFORT (MOE–LEA) (S–Z)
• SEA flexibility ............................................................................................................................................................ 300.230(a).
• State enforcement (SEA must prohibit LEA from reducing MOE) ......................................................................... 300.608.
MAINTENANCE OF STATE FINANCIAL SUPPORT ................................................................................................. 300.163.
• Reduction of funds for failure to maintain support ................................................................................................ 300.163(b).
• Subsequent years (Regarding a waiver) .................................................................................................................... 300.163(d).
• Waivers: Exceptional or uncontrollable circumstances ........................................................................................... 300.163(c).
MANIFESTATION DETERMINATION (See ‘‘Discipline’’) ......................................................................................... 300.530(e).
McKINNEY-VENTO HOMELESS ASSISTANCE ACT
• In definition of ‘‘Homeless children’’ ....................................................................................................................... 300.19.
• In filing a State complaint ......................................................................................................................................... 300.153(b)(4)(iii).
• SEA responsibility for general supervision (Regarding homeless children) .......................................................... 300.149(a)(3).
• State advisory panel (Membership) .......................................................................................................................... 300.168(a)(5).
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• Surrogate parents (Homeless child’s rights protected ............................................................................................. 300.519(a)(4).
MEDIATION (A–O)
• Benefits of (Meeting to explain) ................................................................................................................................ 300.506(b)(2)(ii).
• Confidential discussions ........................................................................................................................................... 300.506(b)(6)(i).
• Cost of (Borne by State) ............................................................................................................................................. 300.506(b)(4).
• Disinterested party (To meet with parents and schools .......................................................................................... 300.506(b)(2).
• Disputes (Resolve through mediation) ..................................................................................................................... 300.506(a).
• Legally binding agreement ........................................................................................................................................ 300.506(b)(6).
• Mediation procedures (By public agency to allow parties to resolve disputes) .................................................... 300.506(a).
• Mediators:.
Æ Impartiality of ..................................................................................................................................................... 300.506(c).
Æ List of .................................................................................................................................................................. 300.506(b)(3)(i).
Æ Qualified and impartial (see § 300.506(b)(1)(iii)).
• Meeting to explain benefits of .................................................................................................................................. 300.506(b)(2)(ii).
• Not used as evidence in hearing ............................................................................................................................... 300.506(b)(8).
• Not used to deny/delay right to hearing .................................................................................................................. 300.506(b)(1)(ii),
• Opportunity to meet .................................................................................................................................................. 30.506(b)(2).
MEDIATION (P–Z)
• Parent training and information center .................................................................................................................... 300.506(b)(2)(i).
• Procedural safeguards notice .................................................................................................................................... 300.504(c)(6).
• Random selection of mediators ................................................................................................................................. 300.506(b)(3)(ii).
• Use of SEA allocations to establish .......................................................................................................................... 300.704(b)(3)(ii).
• Voluntary .................................................................................................................................................................... 300.506(b)(1)(i).
• Written mediation agreement .................................................................................................................................... 300.506(b)(7).
MEDICAID
• Children covered by public benefits or insurance ................................................................................................... 300.154(d)(1).
• Construction (Nothing alters requirements imposed under Titles XIX or XXI) .................................................... 300.154(h).
• Financial responsibility of each non-educational public agency (e.g., State Medicaid) ....................................... 300.154(a)(1).
• LEA high cost fund (Disbursements not medical assistance under State Medicaid) ............................................ 300.704(c)(8).
• Medicaid reimbursement not disqualified because service in school context ...................................................... 300.154(b)(1)(ii).
• Methods of ensuring services (see § 300.154(a)(1), (b)(1)(ii), (d), (g)(2), (h)).
• Proceeds from public or private insurance .............................................................................................................. 300.154(g)(1).
• Public agency may use Medicaid ............................................................................................................................. 300.154(a)(1).
• State Medicaid, etc., must precede financial responsibility of LEA ...................................................................... 300.154(a)(1).
MEDICAL (A–L)
• Assistance under other Federal programs ................................................................................................................ 300.186.
• Assistive technology device (Does not include a surgically implanted medical device) ..................................... 300.5.
• LEA high cost fund (Disbursements not medical assistance under State Medicaid) ............................................ 300.704(c)(8).
MEDICAL (M–Q)
• Medical services in (‘‘Related services’’):
Æ Audiology (Referral for) ..................................................................................................................................... 300.34(c)(1)(ii).
Æ Definition of ........................................................................................................................................................ 300.34(c)(5).
Æ For diagnostic purposes ..................................................................................................................................... 300.34(a).
Æ Speech-language pathology (Referral for) ......................................................................................................... 300.34(c)(15)(iii).
• Medical supplies, etc. (Memo of agreement between HHS and Interior) .............................................................. 300.708(i)(2).
• Non-medical (Residential placement) ...................................................................................................................... 300.104.
MEDICAL (R–Z)
• Referral for medical services:
Æ Audiology ........................................................................................................................................................... 300.34(c)(1)(ii).
Æ Speech-language pathology services ................................................................................................................. 300.34(c)(15)(iii).
• Related services: Exception; surgically implanted devices (‘‘Cochlear implants’’) ............................................... 300.34(b).
• Routine checking of hearing aids and other devices ............................................................................................... 300.113.
• SLD: Educationally relevant medical findings, if any ............................................................................................. 300.311(a)(4).
MEDICATION
• Prohibition on mandatory medication ..................................................................................................................... 300.174.
MEETING(S)
• Alternative means of meeting participation ............................................................................................................. 300.328.
• Consolidation of IEP Team meetings ........................................................................................................................ 300.324(a)(5).
• Equitable services determined (Parentally-placed private school CWDs) .............................................................. 300.137.
• IEP Team meetings (See ‘‘IEP’’).
• Mediation (Opportunity to meet) .............................................................................................................................. 300.506(b)(2).
• Opportunity to examine records; participation in IEP Team meetings .................................................................. 300.501.
• Parent participation in meetings (see § 300.506(b)(2), (b)(4)).
• Private school placements by public agencies ......................................................................................................... 300.325.
• Reviewing and revising IEPs (Private school placements) ...................................................................................... 300.325(b).
• Services plan for private school children (Meetings) .............................................................................................. 300.137(c)(1).
MENTAL RETARDATION (Definition) ........................................................................................................................ 300.8(c)(6).
METHODS OF ENSURING SERVICES ......................................................................................................................... 300.154.
MIGRANT CHILDREN
• Child find ................................................................................................................................................................... 300.111(c)(2).
• Records regarding migratory children (Linkage with ESEA) .................................................................................. 300.213.
MINIMUM STATE COMPLAINT PROCEDURES ........................................................................................................ 300.152.
• See ‘‘Complaints,’’ ‘‘State complaint procedures’’.
MONITOR; MONITORING ACTIVITIES (A–N)
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• Allowable costs for monitoring ................................................................................................................................. 300.704(b)(3)(i).
• Children placed in private schools by public agencies ........................................................................................... 300.147(a).
• Implementation by SEA ............................................................................................................................................ 300.147(a).
• LRE (SEA monitoring activities) ............................................................................................................................... 300.120.
• Monitoring activities (LRE) ....................................................................................................................................... 300.120.
• Monitoring—Enforcement (Subpart F) ..................................................................................................................... 300.600.
Æ Rule of construction (Use any authority under GEPA to monitor) ................................................................. 300.609.
Æ Secretary’s review and determination regarding State performance .............................................................. 300.603(b)(1).
Æ State exercise of general supervision ................................................................................................................ 300.600(d)(2).
Æ State use of targets and reporting ...................................................................................................................... 300.602(a), (b)(1).
MONITOR; MONITORING ACTIVITIES (O–Z)
• Outlying areas, etc. (see § 300.701(a)(1)(ii)).
• Private school children: SEA monitoring ................................................................................................................. 300.147(a).
• SEA responsibility for general supervision .............................................................................................................. 300.149(b).
• Secretary of the Interior ............................................................................................................................................. 300.708.
• State advisory panel functions (Advise SEA on corrective action plans) .............................................................. 300.169(d).
• Use of SEA allocations for monitoring ..................................................................................................................... 300.704(b)(3)(i).
• Waiver (State’s procedures for monitoring) ............................................................................................................. 300.164(c)(2)(ii)(B).
Æ Summary of monitoring reports ........................................................................................................................ 300.164(c)(3).
MULTIPLE DISABILITIES (Definition) ........................................................................................................................ 300.8(c)(7).
NATIONAL INSTRUCTIONAL MATERIALS ACCESS CENTER (NIMAC) ............................................................... 300.172(e)(1)(ii).
NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY STANDARDS (NIMAS) ......................................... 300.172(e)(1)(iii).
• See also Appendix C.
NATIVE LANGUAGE
• Confidentiality (Notice to parents) ........................................................................................................................... 300.612(a)(1).
• Definition .................................................................................................................................................................... 300.29.
• Definition of ‘‘Consent’’ ............................................................................................................................................. 300.9.
• Evaluation procedures (Tests in native language) ................................................................................................... 300.304(c)(1)(ii).
• Notice to parents: Confidentiality (In native language) ........................................................................................... 300.612(a)(1).
• Prior notice:
Æ Notice in native language .................................................................................................................................. 300.503(c)(1)(ii).
Æ Notice translated orally ...................................................................................................................................... 300.503(c)(2)(i).
Æ Steps if not a written language .......................................................................................................................... 300.503(c)(2).
NATURE/LOCATION OF SERVICES (Direct services by SEA) .................................................................................. 300.227.
NEPHRITIS (In ‘‘Other health impairment’’) ............................................................................................................... 300.8(c)(9)(i).
NIMAC (See ‘‘National Instructional Materials Access Center’’)
NIMAS (See ‘‘National Instructional Materials Accessibility Standard’’)
NONACADEMIC
• Activities: Participate in (IEP content) ..................................................................................................................... 300.320(a)(4)(ii).
• Services and extracurricular activities (Equal opportunity to participate in) ....................................................... 300.107(a).
• Settings ....................................................................................................................................................................... 300.117.
NONCOMMINGLING .................................................................................................................................................... 300.162(b).
NONDISABLED (Children; students) (A–P)
• At no cost (In definition of ‘‘special education’’) .................................................................................................... 300.39(b)(1).
• Disciplinary information ........................................................................................................................................... 300.229(a).
• Excess cost requirement ............................................................................................................................................ 300.202(b).
• IEP (definition) (see § 300.320(a)(1)(i), (a)(4)(iii), (a)(5)).
• LRE (General requirement) ........................................................................................................................................ 300.114.
• Nonacademic settings ................................................................................................................................................ 300.117.
• Placement ................................................................................................................................................................... 300.116.
• Program options ......................................................................................................................................................... 300.110.
NONDISABLED (Children; students) (R–Z)
• Regular physical education ....................................................................................................................................... 300.108(b).
• Services and aids that also benefit nondisabled children ....................................................................................... 300.208(a)(1).
• Special education (Definition: In definition of ‘‘at no cost’’) ................................................................................. 300.39(b)(1).
• Supplementary aids and services ............................................................................................................................. 300.42.
• Suspension and expulsion rates ............................................................................................................................... 300.170(a)(2).
NONEDUCATIONAL (Public agency)
• Medicaid service (May not be disqualified because in school context) ................................................................. 300.154(b)(1)(ii).
• Methods of ensuring services (see § 300.154(a), (b))
• Obligation of ............................................................................................................................................................... 300.154(b).
• Reimbursement for services by ................................................................................................................................. 300.154(b)(2).
NON-MEDICAL CARE (Residential placement) .......................................................................................................... 300.104.
NONSUPPLANTING
• Excess cost requirement (Regarding children aged 3 through 5 and 18 through 21) ............................................ 300.202(b)(1)(ii).
• LEA nonsupplanting .................................................................................................................................................. 300.202(b)(1)(ii).
• SEA flexibility ............................................................................................................................................................ 300.230(a).
• State-level activities (Inapplicability of certain provisions) ................................................................................... 300.704(d).
• State-level nonsupplanting ........................................................................................................................................ 300.162(c).
• Waiver of requirement ............................................................................................................................................... 300.164.
NOTICES: By parents or parties
• Attorneys’ fees: When court reduces fee award regarding due process request notice ........................................ 300.517(c)(4)(iv).
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• Children enrolled by parents in private schools when FAPE is at issue ............................................................... 300.148(d)(1)(i).
• Due process complaint (Notice before a hearing on a complaint) .......................................................................... 300.508(c).
• Private school placement by parents (When FAPE is at issue) .............................................................................. 300.148(d)(1)(i).
NOTICES: Public agency (A–M)
• By-pass (Judicial review) ........................................................................................................................................... 300.197.
• Children’s rights (Transfer of rights) ........................................................................................................................ 300.625(c).
• Confidentiality (Notice to parents) ........................................................................................................................... 300.612.
• Department procedures (Notice to States) ................................................................................................................ 300.179.
Æ See ‘‘Judicial review’’ ......................................................................................................................................... 300.184.
• Discipline (Notification) ............................................................................................................................................ 300.530(h).
• Exception to FAPE (Graduation) ............................................................................................................................... 300.102(a)(3).
• Hearings relating to LEA eligibility .......................................................................................................................... 300.155.
• IEP meetings (Parent participation) .......................................................................................................................... 300.322(b).
• Judicial review: If State dissatisfied with eligibility determination ....................................................................... 300.184.
• LEA and State agency compliance ........................................................................................................................... 300.222.
Æ Notification in case of ineligibility ................................................................................................................... 300.221(b).
NOTICES: Public agency (N–P)
• Notice before a hearing on a due process complaint .............................................................................................. 300.508(c).
• Notice and hearing before State ineligible ............................................................................................................... 300.179.
• Notice in understandable language .......................................................................................................................... 300.503(c).
• Notification of LEA in case of ineligibility .............................................................................................................. 300.221(b).
• Parent participation in meetings ............................................................................................................................... 300.501(b)(2).
• Prior notice by public agency ................................................................................................................................... 300.503.
• Private school placement by parents when FAPE is at issue (Public agency notice) ........................................... 300.148(d)(2).
• Procedural safeguards notice .................................................................................................................................... 300.504.
• Public attention .......................................................................................................................................................... 300.606.
• Public participation (Notice of hearings) ................................................................................................................. 300.165(a).
NOTICES: Public agency (Q–Z)
• Secretary of the Interior (Submission of information) ............................................................................................. 300.708(g).
• Secretary’s review and determination of State performance .................................................................................. 300.603(b)(2).
• Transfer of parental rights ......................................................................................................................................... 300.520(a)(1)(i).
• Use of electronic mail ................................................................................................................................................ 300.505.
• Withholding funds ..................................................................................................................................................... 300.605.
OCCUPATIONAL THERAPY ........................................................................................................................................ 300.34(c)(6).
OPPORTUNITY TO EXAMINE RECORDS ................................................................................................................... 300.501.
ORIENTATION AND MOBILITY SERVICES ............................................................................................................... 300.34(c)(7).
ORTHOPEDIC IMPAIRMENT ....................................................................................................................................... 300.8(c)(8).
OTHER HEALTH IMPAIRMENT .................................................................................................................................. 300.8(c)(9).
OTHER INDIVIDUALS ON IEP TEAM ......................................................................................................................... 300.321(a)(6).
OUTLYING AREAS—FREELY ASSOCIATED STATES
• Allocations to States (General) .................................................................................................................................. 300.703(a).
• Annual description of use of funds .......................................................................................................................... 300.171(c).
• Definitions applicable to allotments, grants and use of funds:
Æ Freely associated States ..................................................................................................................................... 300.717(a).
Æ Outlying areas ..................................................................................................................................................... 300.717(b).
• Definition of ‘‘State’’ (Includes ‘‘Outlying areas’’) ................................................................................................... 300.40.
• Outlying areas and freely associated States ............................................................................................................. 300.701.
• Purpose of grants ....................................................................................................................................................... 300.700(a).
OUT-OF-POCKET EXPENSE (Public benefits or insurance) ...................................................................................... 300.154(d)(2)(ii).
PARAPROFESSIONALS
In ‘‘Personnel qualifications’’ ....................................................................................................................................... 300.156(b).
PARENT (Definition) ..................................................................................................................................................... 300.30.
PARENT: RIGHTS AND PROTECTIONS (A–G)
• Appeal (Manifestation determination) ..................................................................................................................... 300.532.
• Confidentiality (Authority to inspect and review records) ..................................................................................... 300.613(c).
• Consent (See ‘‘Consent’’)
• Counseling and training (Definition) ........................................................................................................................ 300.34(c)(8).
• Definition of ‘‘Parent’’ ............................................................................................................................................... 300.30.
Æ Foster parent ....................................................................................................................................................... 300.30(a)(2).
Æ Grandparent or stepparent ................................................................................................................................. 300.30(a)(4).
Æ Guardian ............................................................................................................................................................. 300.30(a)(3).
PARENT: RIGHTS AND PROTECTIONS (H–N)
• Independent educational evaluation ........................................................................................................................ 300.502.
Æ Parent-initiated evaluations ............................................................................................................................... 300.502(c).
Æ Parent right to evaluation at public expense .................................................................................................... 300.502(b).
• IEP and parent involvement:
Æ Copy of child’s IEP ............................................................................................................................................. 300.322(f).
Æ Informed of child’s progress .............................................................................................................................. 300.320(a)(3)(ii).
Æ Option to invite other individuals .................................................................................................................... 300.321(a)(6).
Æ Participation in meetings ................................................................................................................................... 300.322.
Æ Team member ..................................................................................................................................................... 300.321(a)(1).
• Informed consent (Accessing private insurance) ..................................................................................................... 300.154(e)(1).
• Involvement in placement decisions ........................................................................................................................ 300.501(c).
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• Meetings (Participation in) ........................................................................................................................................ 300.501(b).
• Notice to public agency:
Æ Before a hearing on a due process complaint .................................................................................................. 300.508(c).
Æ Before removing child from public school ....................................................................................................... 300.148(d)(1)(ii).
Æ Timeline for requesting a hearing ..................................................................................................................... 300.511(e).
• Exceptions to timeline ................................................................................................................................ 300.511(f).
Æ Opportunity to examine records ....................................................................................................................... 300.501(a).
PARENT: RIGHTS AND PROTECTIONS (O–Z)
• Parent counseling and training ................................................................................................................................. 300.34(c)(8).
• Placement decisions (Involvement in) ..................................................................................................................... 300.501(c).
• Request for hearing (Discipline) ............................................................................................................................... 300.532(a).
• Right to an independent educational evaluation ..................................................................................................... 300.502(b).
PARENTAL CONSENT (See ‘‘Consent’’)
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (A–E)
• Annual count of the number of ................................................................................................................................ 300.133(c).
• Bypass (see §§ 300.190 through 300.198)
• Child find for ............................................................................................................................................................. 300.131.
• Calculating proportionate amount ............................................................................................................................ 300.133(b).
• Compliance ................................................................................................................................................................. 300.136.
• Consultation with private schools ............................................................................................................................ 300.134.
• Written affirmation .................................................................................................................................................... 300.135.
• Definition of ............................................................................................................................................................... 300.130.
• Due process complaints and State complaints ........................................................................................................ 300.140.
• Equitable services determined .................................................................................................................................. 300.137.
Æ Equitable services provided ............................................................................................................................... 300.138.
• Expenditures .............................................................................................................................................................. 300.133.
Æ Formula ............................................................................................................................................................... 300.133(a).
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (F–R)
• No individual right to special education and related services ............................................................................... 300.137(a).
• Property, equipment, and supplies ........................................................................................................................... 300.144.
• Proportionate share of funds ..................................................................................................................................... 300.134(b).
Æ See ‘‘Appendix B—Proportionate Share Calculation’’
• Provision of equitable services ................................................................................................................................. 300.138(c).
• Religious schools (see §§ 300.131(a), 300.137(c), 300.139(a))
• Requirement that funds not benefit a private school .............................................................................................. 300.141.
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (S–T)
• Separate classes prohibited ....................................................................................................................................... 300.143.
• Services on private school premises ........................................................................................................................ 300.139(a).
• Services plan (Definition) .......................................................................................................................................... 300.37.
Æ For each child served under §§ 300.130 through 300.144 ............................................................................... 300.137(c).
Æ See also §§ 300.132(b), 300.138(b), 300.140(a)
• State eligibility requirement ...................................................................................................................................... 300.129.
• Transportation (Cost of) ............................................................................................................................................. 300.139(b)(2).
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (U–Z)
• Use of personnel:
Æ Private school personnel .................................................................................................................................... 300.142(b).
Æ Public school personnel ..................................................................................................................................... 300.142(a).
• Written affirmation .................................................................................................................................................... 300.135.
• Written explanation by LEA regarding services ...................................................................................................... 300.134(e).
PARTICIPATING AGENCY
• Confidentiality provisions:
Æ Definition of participating agency ..................................................................................................................... 300.611(c).
Æ See also §§ 300.613(c), 300.614, 300.616, 300.618, 300.623
• IEP requirements (Transition services) ..................................................................................................................... 300.324(c).
PENDENCY (Stay put)
• Child’s status during due process proceedings ........................................................................................................ 300.518.
• Placement during appeals (Discipline) ..................................................................................................................... 300.533.
• Procedural safeguards notice .................................................................................................................................... 300.504(c)(7).
PERFORMANCE GOALS AND INDICATORS
• Assess progress toward achieving goals ................................................................................................................... 300.157(c).
• Establishment of goals ............................................................................................................................................... 300.157.
• Other State level activities ........................................................................................................................................ 300.814(c).
• Performance goals and indicators ............................................................................................................................. 300.157.
• State monitoring and enforcement ........................................................................................................................... 300.600(c).
• State performance plans and data collection ........................................................................................................... 300.601.
PERFORMANCE; PERFORMANCE PLANS (STATE)
• Enforcement ............................................................................................................................................................... 300.604.
• Public reporting and privacy .................................................................................................................................... 300.602(b).
• Secretary’s review and determination regarding State performance ...................................................................... 300.603.
• State performance plans and data collection ........................................................................................................... 300.601.
• State performance report ........................................................................................................................................... 300.602(b)(2).
• State use of targets and reporting ............................................................................................................................. 300.602.
Æ Public reporting .................................................................................................................................................. 300.602(b)(1).
Æ State performance report .................................................................................................................................... 300.602(b)(2).
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PERMISSIVE USE OF FUNDS (LEAs)
• Administrative case management ............................................................................................................................. 300.208(b).
• Early intervening services ......................................................................................................................................... 300.208(a)(2).
• High cost education and related services ................................................................................................................. 300.208(a)(3).
• Permissive use of funds ............................................................................................................................................. 300.208.
• Services and aids that also benefit nondisabled children ....................................................................................... 300.208(a)(1).
PERSONALLY IDENTIFIABLE (PI) INFORMATION (A–H)
• Confidentiality of (State eligibility requirement) ..................................................................................................... 300.123.
• Consent (confidentiality) ........................................................................................................................................... 300.622(a).
• Data collection (State performance plans) ............................................................................................................... 300.601(b)(3).
• Definition of ‘‘personally identifiable’’ .................................................................................................................... 300.32.
• Department use of information ................................................................................................................................. 300.627.
• Destruction:
Æ Definition of ........................................................................................................................................................ 300.611(a).
Æ Destruction of information ................................................................................................................................. 300.624.
• Hearing decisions to advisory panel and the public ............................................................................................... 300.513(d).
PERSONALLY IDENTIFIABLE (PI) INFORMATION (I–Z)
• Notice to parents (Confidentiality):
Æ Children on whom PI information is maintained ............................................................................................ 300.612(a)(2).
Æ Policies and procedures regarding disclosure to third parties, etc ................................................................. 300.612(a)(3).
• Participating agency (Definition) .............................................................................................................................. 300.611(c).
• Protection of PI information ...................................................................................................................................... 300.642(a).
• See also § 300.610.
• Safeguards (Protect PI information) .......................................................................................................................... 300.623.
PERSONNEL QUALIFICATIONS ................................................................................................................................. 300.156.
PERSONNEL SHORTAGES
• Use of SEA allocations to meet ................................................................................................................................. 300.704(b)(4)(vii).
PHYSICAL EDUCATION.
• Definition .................................................................................................................................................................... 300.39(b)(2).
• State eligibility requirement ...................................................................................................................................... 300.108.
PHYSICAL THERAPY (Definition) ............................................................................................................................... 300.34(c)(9).
PLACEMENT(S) (A–Co)
• Adult prisons (CWDs in):
Æ Last educational placement before incarceration ............................................................................................. 300.102(a)(2)(i).
Æ Modifications to IEPs and placements .............................................................................................................. 300.324(d)(2).
• Alternative means of meeting participation (Regarding ‘‘Placement meetings’’) .................................................. 300.328.
• Change in placement: Graduation ............................................................................................................................ 300.102(a)(3)(iii).
• Child’s placement during pendency of any complaint ........................................................................................... 300.504(c)(7).
Æ See also ‘‘Pendency’’ (Child’s status during proceedings) .............................................................................. 300.518.
• Children with disabilities in adult prisons: Placements regarding (see §§ 300.102(a)(2)(i), 300.324(d)(2)).
• Continuum of alternative placements (Continuum—LRE) ...................................................................................... 300.115.
PLACEMENT(S) (Cu–L)
• Current placement (see § 300.530(b)((2), (d) )
• Current ‘‘Educational placement:’’
Æ Change of placements because of disciplinary removals ................................................................................ 300.536.
Æ Child’s status during proceedings ..................................................................................................................... 300.518(a).
• Disciplinary changes in placement ........................................................................................................................... 300.530(c).
• Discipline procedures and placements (see §§ 300.530 through 300.536).
• Educational placements (Parents in any group that makes placement decisions) ................................................ 300.327.
• Graduation: A change in placement (Exception to FAPE) ...................................................................................... 300.102(a)(3)(iii).
• Last educational placement (Before incarceration) .................................................................................................. 300.102(a)(2)(i).
• Least restrictive environment (LRE) (see §§ 300.114 through 300.120)
• Notification: LEA must notify parents of decision to change placement .............................................................. 300.530(h).
PLACEMENT(S) (O–Z)
• Pendency (Child’s status during proceedings) ......................................................................................................... 300.518.
Placement of children by parents if FAPE is at issue ................................................................................................. 300.148.
• Placements (LRE) ....................................................................................................................................................... 300.116.
• Requirements for unilateral placement by parents of CWDs in private schools (In ‘‘Procedural safeguards no-
tice’’).
300.504(c)(9).
• State funding mechanism (Must not result in placements that violate LRE) ........................................................ 300.114(b)(1).
POLICY: POLICIES AND PROCEDURES
• Condition of assistance (LEA eligibility) .................................................................................................................. 300.200.
Æ Consistency with State policies ......................................................................................................................... 300.201.
Æ See also §§ 300.200 through 300.213
• Eligibility for assistance (State) ................................................................................................................................. 300.100.
• Exception for prior policies on file:
Æ With the SEA ...................................................................................................................................................... 300.220.
Æ With the Secretary .............................................................................................................................................. 300.176(a).
• FAPE policy ............................................................................................................................................................... 300.101(a).
• Joint establishment of eligibility (Requirements) ..................................................................................................... 300.223.
• Modifications of:
Æ LEA or State agency policies ............................................................................................................................. 300.220(b).
Æ Required by Secretary ........................................................................................................................................ 300.176(c).
Æ State policies (By a State) .................................................................................................................................. 300.176(b).
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• Public participation ................................................................................................................................................... 300.165.
• Secretary of the Interior ............................................................................................................................................. 300.708.
Æ Public participation ............................................................................................................................................ 300.709.
Æ Submission of information ................................................................................................................................ 300.708.
PREPONDERANCE OF EVIDENCE
• Civil action ................................................................................................................................................................. 300.516(c)(3).
PRESCHOOL GRANTS
• Allocations to LEAs ................................................................................................................................................... 300.816.
Æ Subgrants to LEAs .............................................................................................................................................. 300.815.
• Other State-level activities ........................................................................................................................................ 300.814.
Æ Provide early intervention services in accordance with Part C of the Act .................................................... 300.814(e).
Æ Service coordination or case management ....................................................................................................... 300.814(f).
• State administration ................................................................................................................................................... 300.813.
• Use of funds for administration of Part C ................................................................................................................ 300.813(b).
PRIOR NOTICE
• By public agency ........................................................................................................................................................ 300.503.
• Notice required before a hearing on a due process complaint ............................................................................... 300.508(c).
• Procedural safeguards notice .................................................................................................................................... 300.504.
PRISONS (See ‘‘Adult prisons’’)
PRIVATE INSURANCE
• Children with disabilities who are covered by ........................................................................................................ 300.154(e).
Æ Proceeds from public benefits or insurance or private insurance .................................................................. 300.154(g).
Æ Use of Part B funds ............................................................................................................................................ 300.154(f).
PRIVATE SCHOOLS AND FACILITIES
• Applicability of this part to State and local agencies:
Æ CWDs placed in private schools by parents under § 300.148 ......................................................................... 300.2(c)(2).
Æ CWDs referred to or placed in private schools by public agency ................................................................... 300.2(c)(1).
PRIVATE SCHOOL CHILDREN ENROLLED BY THEIR PARENTS
• Placement of children by parents when FAPE is at issue ...................................................................................... 300.148.
• See ‘‘Parentally-placed private school children with disabilities’’
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (A–D)
• Applicability of this part to private schools ............................................................................................................ 300.2(c)(1).
• Applicable standards (SEA to disseminate to private schools involved) .............................................................. 300.147(b).
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (E–Z)
• Implementation by SEA (Must monitor, provide standards, etc.) .......................................................................... 300.147.
• Monitor compliance ................................................................................................................................................... 300.147(a).
• Input by private schools (Provide for) ...................................................................................................................... 300.147(c).
• Responsibility of SEA ................................................................................................................................................ 300.146.
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (A–C)
• Additional disclosure of information (5 business days before hearing) ................................................................ 300.512(b).
• Agency responsible for conducting hearing ............................................................................................................. 300.511(b).
• Appeal of hearing decisions; impartial review ........................................................................................................ 300.514(b).
• Attorneys’ fees ............................................................................................................................................................ 300.517.
• Child’s status during proceedings ............................................................................................................................ 300.518.
• Civil action ................................................................................................................................................................. 300.516.
• Consent (Definition) ................................................................................................................................................... 300.9.
• Court (See ‘‘Court(s)’’)
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (D–H)
• Electronic mail (Parent may elect to receive notices by) ........................................................................................ 300.505.
• Evaluation (Definition) .............................................................................................................................................. 300.15.
• Evaluations: Hearing officer requests for ................................................................................................................. 300.502(d).
• Finality of decision; appeal; impartial review ......................................................................................................... 300.514.
• Findings and decision to advisory panel and public .............................................................................................. 300.513(d).
• Hearing rights ............................................................................................................................................................. 300.512.
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (I–Pa)
• Impartial due process hearing ................................................................................................................................... 300.511.
• Impartial hearing officer ............................................................................................................................................ 300.511(c).
• Impartiality of mediator ............................................................................................................................................ 300.506(c).
• Independent educational evaluation ........................................................................................................................ 300.502.
Æ Definition ............................................................................................................................................................ 300.502(a)(3)(i).
• Jurisdiction of district courts .................................................................................................................................... 300.516(d).
Æ See ‘‘Court(s)’’
• Mediation ................................................................................................................................................................... 300.506.
Æ Opportunity to meet with a disinterested party ............................................................................................... 300.506(b)(2).
• Model form to assist parties in filing a due process or State complaint ............................................................... 300.509.
• Notice required before a hearing on a due process complaint ............................................................................... 300.508(c).
• Opportunity to examine records ............................................................................................................................... 300.501(a).
• Parental consent ......................................................................................................................................................... 300.300.
• Parent-initiated evaluations ...................................................................................................................................... 300.502(c).
• Parent involvement in placement decisions ............................................................................................................ 300.501(c).
• Parent participation in meetings ............................................................................................................................... 300.501(b).
• Parental rights at hearings ......................................................................................................................................... 300.512(c).
• Parent right to evaluation at public expense ........................................................................................................... 300.502(b).
Æ Public expense (Definition) ............................................................................................................................... 300.502(a)(3)(ii).
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PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (Pe–Z)
• Pendency .................................................................................................................................................................... 300.518.
• Personally identifiable (Definition) .......................................................................................................................... 300.32.
• Prior notice by public agency ................................................................................................................................... 300.503.
• Procedural safeguards notice .................................................................................................................................... 300.504.
• Prohibition on introduction of undisclosed evidence 5 business days before hearing ........................................ 300.512(a)(3).
• Record of hearing ....................................................................................................................................................... 300.512(a)(4).
• Resolution process ..................................................................................................................................................... 300.510.
• SEA implementation of ............................................................................................................................................. 300.150.
• See ‘‘Civil Action Proceedings,’’ ‘‘Court(s),’’ ‘‘Hearing Officer(s),’’ ‘‘Timelines’’
• Surrogate parents ....................................................................................................................................................... 300.519.
• Timelines and convenience of hearings ................................................................................................................... 300.515.
• Transfer of parental rights at age of majority ........................................................................................................... 300.520.
PROCEDURAL SAFEGUARDS NOTICE ...................................................................................................................... 300.504.
• Internet Web site (Notice on) .................................................................................................................................... 300.504(b).
PROCEEDS FROM PUBLIC BENEFITS OR INSURANCE OR PRIVATE INSURANCE ............................................. 300.154(g).
PROGRAM INCOME (Not treated as proceeds from insurance) ................................................................................ 300.154(g.)
PROGRAM MODIFICATIONS OR SUPPORTS (IEP content) ..................................................................................... 300.320(a)(4).
PROPORTIONATE SHARE CALCULATION (See Appendix B)
PROTECTIONS FOR CHILDREN NOT DETERMINED ELIGIBLE (Discipline) .......................................................... 300.534.
PSYCHOLOGICAL SERVICES (Definition) .................................................................................................................. 300.34(c)(10).
PUBLIC AGENCY (Definition) ...................................................................................................................................... 300.33.
PUBLIC BENEFITS OR INSURANCE ........................................................................................................................... 300.154(d).
PUBLIC BENEFITS OR INSURANCE OR PRIVATE INSURANCE (Proceeds from) ................................................. 300.154(g).
PUBLIC CHARTER SCHOOLS (See ‘‘Charter schools’’)
PUBLIC EXPENSE (Definition under IEE) ................................................................................................................... 300.502(a)(3)(ii).
PUBLIC HEARINGS (On policies)
• State eligibility ........................................................................................................................................................... 300.165(a).
• Secretary of the Interior ............................................................................................................................................. 300.708(g).
PUBLIC INFORMATION (LEA) .................................................................................................................................... 300.212.
PUBLIC NOTICE
• LEA and State agency compliance ........................................................................................................................... 300.222(b).
• Public attention (If State has received a notice under § 300.603) .......................................................................... 300.606.
PURPOSES (Of this Part 300) ....................................................................................................................................... 300.1.
QUALIFIED PERSONNEL ............................................................................................................................................. 300.156.
• Related services definitions (see § 300.34(c)(2), (c)(5), (c)(6), (c)(7), (c)(9), (c)(12), (c)(13)).
RATE OF INFLATION (In the Consumer Price Index for All Urban Consumers) (see §§ 300.702(b),
300.704(a)(2)(ii), 300.704(b)(2), 300.812(b)(2)).
REALLOCATION OF LEA FUNDS (If SEA determines LEA adequately providing FAPE) (see §§ 300.705(c),
300.817)).
RECORDS (A–D)
• Access rights (Parents’ right to inspect) ................................................................................................................... 300.613.
Æ Fees for records .................................................................................................................................................. 300.617.
Æ Records on more than one child ....................................................................................................................... 300.615.
• Civil action (Court shall receive records) ................................................................................................................. 300.516(c)(1).
• Conducting IEP Team meetings without parents (Records of attempts to convince parents) .............................. 300.322(d).
Confidentiality (See ‘‘Confidentiality’’)
• Consent to release records ......................................................................................................................................... 300.622(b).
Disciplinary records:
Æ Determination that behavior not manifestation ................................................................................................ 300.530(e).
Æ Disciplinary information .................................................................................................................................... 300.229(c).
Æ Referral to and action by law enforcement and judicial authorities .............................................................. 300.535.
RECORDS (E–Z)
• Education records (Definition) .................................................................................................................................. 300.611(b).
• Of parentally-placed private school CWDs (LEA to SEA) ....................................................................................... 300.132(c).
• Opportunity to examine records ............................................................................................................................... 300.501(a).
• Procedural safeguards notice (Access to education records) .................................................................................. 300.504(c)(4).
• Record of access ......................................................................................................................................................... 300.614.
• See also ‘‘Transfer during academic year’’
RECREATION (Definition) ............................................................................................................................................ 300.34(c)(11).
REDUCTION OF FUNDS FOR FAILURE TO MAINTAIN SUPPORT ........................................................................ 300.163(b).
REEVALUATION
• Frequency of occurrence ........................................................................................................................................... 300.303(b).
• Parental consent required before conducting .......................................................................................................... 300.300(c)(1).
Æ If parent fails to consent .................................................................................................................................... 300.300(c)(1)(ii).
• Parental consent not required for:
Æ Administering a test that all children take ....................................................................................................... 300.300(d)(1)(ii).
Æ Reviewing existing data ..................................................................................................................................... 300.300(d)(1)(i).
• Parent refusal to consent ........................................................................................................................................... 300.300(c)(1)(ii).
• Review of existing evaluation data ........................................................................................................................... 300.305(a).
• Revision of IEP (To address reevaluation) ............................................................................................................... 300.324(b)(1)(ii).
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REFERRAL (A–M)
• Discipline:
Æ Referral to and action by law enforcement and judicial authorities .............................................................. 300.535.
Æ Protections for children not determined eligible ............................................................................................. 300.534.
• Enforcement (Referral for) ......................................................................................................................................... 300.604(b)(2)(vi).
• Indian children (Referral for services or further diagnosis) .................................................................................... 300.712(d)(2).
• Medical attention (Referral for):
Æ Audiology ........................................................................................................................................................... 300.34(c)(1)(ii).
Æ Speech-language pathology services ................................................................................................................. 300.34(c)(15)(iii).
REFERRAL (N–Z)
• Nonacademic and extracurricular services (Referral to agencies regarding assistance to individuals with dis-
abilities).
300.107(b).
• Prior notice (If not initial referral for evaluation) .................................................................................................... 300.503(b)(4).
• Private school placement when FAPE is at issue (Reimbursement when no referral by public agency) ............ 300.148(c).
• Procedural safeguards notice (Upon initial referral for evaluation) ....................................................................... 300.504(a)(1).
• Referral to and action by law enforcement and judicial authorities ...................................................................... 300.535.
REGULAR EDUCATION TEACHER
• Access to IEP .............................................................................................................................................................. 300.323(d).
• IEP Team member ...................................................................................................................................................... 300.321(a)(2).
• Participate in IEP development ................................................................................................................................ 300.324(a)(3).
Æ Behavioral interventions .................................................................................................................................... 300.324(a)(3)(i).
Æ Supplementary aids and services ...................................................................................................................... 300.324(a)(3)(ii).
REGULATIONS
• Applicable regulations (Secretary of the Interior) ................................................................................................... 300.716.
• Applicability of this part to State, local, and private agencies ............................................................................... 300.2.
REHABILITATION
• Assistive technology service (see § 300.6(d), (f))
• Rehabilitation Act of 1973 (see §§ 300.34(c)(12), 300.516(e))
• Rehabilitation counseling services:
Æ Definition ............................................................................................................................................................ 300.34(c)(12).
Æ In vocational rehabilitation (VR) programs ...................................................................................................... 300.34(c)(12).
• Transition services (State VR agency responsibility) .............................................................................................. 300.324(c)(2).
REHABILITATION COUNSELING SERVICES ............................................................................................................. 300.34(c)(12).
REIMBURSEMENT
• Methods of ensuring services (see § 300.154(a)(3), (b)(1)(ii), (b)(2), (g)(2))
• Private school placement when FAPE is at issue:
Æ Limitation on reimbursement ............................................................................................................................ 300.148(d).
Æ Reimbursement for private school placement .................................................................................................. 300.148(c).
Æ Subject to due process procedures .................................................................................................................... 300.148(b).
• Reimbursement by non-educational public agency ................................................................................................. 300.154(b)(2).
• Reimbursement by SEA to LEA ................................................................................................................................ 300.704(c)(7).
RELATED SERVICES
• Definition .................................................................................................................................................................... 300.34.
• Observations by teachers and related services providers regarding existing evaluation data .............................. 300.305(a)(1)(iii).
RELATION OF PART B TO OTHER FEDERAL PROGRAMS ..................................................................................... 300.186.
RELIGIOUS SCHOOLS
• Child find for parentally-placed private school children ....................................................................................... 300.131(a).
• Child find for out-of-State children .......................................................................................................................... 300.131(f).
• Formula for LEA expenditures on ............................................................................................................................ 300.133(a).
• See ‘‘Parentally-placed private school children with disabilities’’
• Services plan for each child served .......................................................................................................................... 300.137(c).
• Services provided on-site .......................................................................................................................................... 300.139(a).
REMEDIES FOR DENIAL OF APPROPRIATE SERVICES ........................................................................................... 300.151(b).
REPORTS (A–C)
• Annual report of children served ............................................................................................................................. 300.640.
Æ See also §§ 300.641 through 300.646
• Annual report to Secretary of Interior by advisory board on Indian children ...................................................... 300.715(a).
• Biennial report (Indian tribes) .................................................................................................................................. 300.712(e).
• Child count (Annual report of children served) ...................................................................................................... 300.641.
REPORTS (D–Z)
• Evaluation reports to parents .................................................................................................................................... 300.306(a)(2).
• Monitoring compliance of publicly placed children in private schools (e.g., written reports) ............................ 300.147(a).
• Monitoring reports (Waiver of nonsupplanting requirement) ................................................................................. 300.164(c)(3).
• Performance goals (Progress reports) ........................................................................................................................ 300.157(c).
• Secretary’s report to States regarding 25% of funds ............................................................................................... 300.812(b).
REPORT CARDS ............................................................................................................................................................ 300.320(a)(3)(ii).
REPORTING A CRIME to law enforcement and judicial authorities ......................................................................... 300.535.
RESIDENTIAL PLACEMENTS ...................................................................................................................................... 300.104.
REVOKE CONSENT AT ANY TIME (In definition of ‘‘Consent’’) ............................................................................. 300.9(c)(1).
RHEUMATIC FEVER ..................................................................................................................................................... 300.8(c)(9)(i).
RISK OF LOSS OF ELIGIBILITY FOR INSURANCE ................................................................................................... 300.154(d)(2)(iii)(D).
SCHOOL DAY
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• Definition .................................................................................................................................................................... 300.11(c).
• See ‘‘Timelines,’’ ‘‘Timelines—Discipline’’
SCHOOL HEALTH SERVICES AND SCHOOL NURSE SERVICES ............................................................................ 300.34(c)(13).
SCHOOL PERSONNEL
• Content of IEP ............................................................................................................................................................ 300.320(a)(4).
• Development, review, and revision of IEP ............................................................................................................... 300.324(a)(4).
• Disciplinary authority ................................................................................................................................................ 300.530.
• Use of private school personnel ............................................................................................................................... 300.142(b).
• Use of public school personnel ................................................................................................................................ 300.142(a).
SCHOOLWIDE PROGRAMS ......................................................................................................................................... 300.206.
SEA RESPONSIBILITY
• For all education programs ....................................................................................................................................... 300.149.
• For direct services ...................................................................................................................................................... 300.227.
• For each parentally-placed private school child designated to receive services ................................................... 300.132(b).
• For impartial review .................................................................................................................................................. 300.514(b)(2).
• Prohibition of LEA from reducing maintenance of effort ....................................................................................... 300.608.
SECRETARY
• Determination that a State is eligible ....................................................................................................................... 300.178.
• Notice and hearing before determining that a State is not eligible ........................................................................ 300.179.
• Waiver of nonsupplanting requirement ................................................................................................................... 300.164.
SECRETARY OF THE INTERIOR
• Advisory board establishment .................................................................................................................................. 300.714.
Æ Annual report by advisory board ...................................................................................................................... 300.715.
• Biennial report (By tribe or tribal organization) ...................................................................................................... 300.712(e).
• Eligibility (see §§ 300.708 through 300.716)
• Payments for:
Æ Children aged 3 through 5 ................................................................................................................................. 300.712.
Æ Child find and screening ................................................................................................................................... 300.712(d).
• Plan for coordination of services .............................................................................................................................. 300.713.
• Use of funds for early intervening services .............................................................................................................. 300.711.
SEPARATION—DIVORCE (Authority to review records) ........................................................................................... 300.613(c).
SERVICES PLAN for parentally-placed private school children (see §§ 300.132(b), 300.137(c) 300.138(b))
SERVICES THAT ALSO BENEFIT NONDISABLED CHILDREN ................................................................................ 300.208(a)(1).
SHORTAGE OF PERSONNEL (Policy to address) ....................................................................................................... 300.704(b)(4)(vii).
SHORT TERM OBJECTIVES OR BENCHMARKS ........................................................................................................ 300.320(a)(2)(ii).
SHOULD HAVE KNOWN (Regarding due process complaint) .................................................................................. 300.511(e).
SHOW CAUSE HEARING ............................................................................................................................................. 300.194.
• Decision ...................................................................................................................................................................... 300.195.
• Implementation of by-pass (see §§ 300.192(b)(2), 300.193)
• Right to legal counsel ................................................................................................................................................ 300.194(a)(3).
SICKLE CELL ANEMIA ................................................................................................................................................. 300.8(c)(9)(i).
SLD (See ‘‘Specific Learning Disability’’)
SOCIAL WORK SERVICES IN SCHOOLS (Definition) ............................................................................................... 300.34(b)(14).
SPECIAL FACTORS (IEP Team) ................................................................................................................................... 300.324(a)(2).
SPECIAL EDUCATION (Definition) ............................................................................................................................. 300.39.
SPECIAL EDUCATION PROVIDER .............................................................................................................................. 300.321(a)(3).
SPECIAL EDUCATION TEACHER
• IEP accessible to ......................................................................................................................................................... 300.323(d).
• On IEP Team .............................................................................................................................................................. 300.321(a)(3).
• Requirements regarding highly qualified ................................................................................................................. 300.18.
SPECIAL RULE
• Adjustments to local efforts ...................................................................................................................................... 300.205(d).
• For child’s eligibility determination ......................................................................................................................... 300.306(b).
• For increasing funds .................................................................................................................................................. 300.704(e).
• Methods of ensuring services .................................................................................................................................. 300.154(c).
• LEA high cost fund .................................................................................................................................................... 300.704(c).
• Regarding outlying areas and freely associated States ............................................................................................ 300.701(a)(3).
• Regarding transfer of rights ....................................................................................................................................... 300.520(b).
• Regarding use of FY 1999 amount ............................................................................................................................ 300.703(b).
• State advisory panel (Parent members) .................................................................................................................... 300.168(b).
SPECIFIC LEARNING DISABILITY
• Definition .................................................................................................................................................................... 300.8(c)(10).
• Evaluation requirements and report (see §§ 300.306(a), 300.307 through 300.311)
• Other alternative research-based procedures ........................................................................................................... 300.307(a)(3).
• Response to scientific, research-based intervention (see §§ 300.307(a)(2), 300.309(a)(2)(i), 300.311(a)(7))
• Scientifically based research:
Æ Definition ............................................................................................................................................................ 300.35.
Æ Enforcement ........................................................................................................................................................ 300.604(a)(1)(ii).
• Severe discrepancy .................................................................................................................................................... 300.307(a)(1).
SPEECH-LANGUAGE PATHOLOGY SERVICES
• Definition .................................................................................................................................................................... 300.34(b)(15).
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• Speech or language impairment (Definition) ........................................................................................................... 300.8(c)(11).
STATE
• Definition .................................................................................................................................................................... 300.40.
• Special definition for grants ...................................................................................................................................... 300.717(c).
• Sovereign immunity .................................................................................................................................................. 300.177.
STATE ADMINISTRATION (Use of funds for) (see §§ 300.704(a), 300.812(a)).
STATE ADVISORY PANEL .......................................................................................................................................... 300.167
• Due process hearings (Findings and decisions to State advisory panel) (see §§ 300.513(d)(1), 300.514(c)(1))
• Duties .......................................................................................................................................................................... 300.169.
• Establishment ............................................................................................................................................................. 300.167.
• Membership ................................................................................................................................................................ 300.168.
• Waiver of nonsupplant requirement (State has consulted with advisory panel regarding provision of FAPE) 300.164(c)(4).
STATE AGENCIES
• Applicability of Part B to other State agencies ........................................................................................................ 300.2(b)(1)(iii).
• Compliance (LEA and State agency) ........................................................................................................................ 300.222.
• Eligibility (LEA and State agency):
Æ General conditions (see §§ 300.200 through 300.213)
• Notification of LEA or State agency in case of ineligibility .................................................................................... 300.221.
• State advisory panel (Membership) .......................................................................................................................... 300.168.
• State agency eligibility .............................................................................................................................................. 300.228.
• State Medicaid agency ............................................................................................................................................... 300.154(a)(1), (h).
STATE COMPLAINT PROCEDURES (see §§ 300.151 through 300.153)
• See ‘‘Complaint(s): State complaint procedures’’
STATE ELIGIBILITY
• Condition of assistance .............................................................................................................................................. 300.100.
• Department procedures (see §§ 300.178 through 300.186)
• Determination of eligibility (By the Secretary) ........................................................................................................ 300.178.
• General conditions ..................................................................................................................................................... 300.100.
• Notice and hearing before determining that a State is not eligible ........................................................................ 300.179.
• Specific conditions (see §§ 300.101 through 300.176)
STATE JUVENILE AND ADULT CORRECTIONAL FACILITIES ............................................................................... 300.2(b)(1)(iv).
• See also ‘‘Correctional facilities,’’ ‘‘Adult prisons’’
STATE-LEVEL ACTIVITIES (With Part B funds) ........................................................................................................ 300.704.
STATE-LEVEL NONSUPPLANTING ............................................................................................................................ 300.162(c).
• Waiver by Secretary ................................................................................................................................................... 300.162(c)(2).
• Waiver of requirement ............................................................................................................................................... 300.164.
STATE MAINTENANCE OF EFFORT .......................................................................................................................... 300.163.
SUBGRANT(S)
• State agency eligibility .............................................................................................................................................. 300.228.
• To LEAs ...................................................................................................................................................................... 300.705(a).
STATE MEDICAID AGENCY
• Methods of ensuring services .................................................................................................................................... 300.154(a)(1).
• See also ‘‘Medicaid’’
STATE SCHOOLS
• Applicability of this part to schools for children with deafness or blindness ...................................................... 300.2(b)(1)(iii).
STATE VOCATIONAL REHABILITATION AGENCY (See ‘‘Rehabilitation’’)
STATES’ SOVEREIGN IMMUNITY .............................................................................................................................. 300.177.
STAY-PUT (Child’s status during proceedings) .......................................................................................................... 300.518.
• See also ‘‘Pendency’’
SUBSTANTIAL LIKELIHOOD OF INJURY (Discipline) ............................................................................................. 300.532(a).
SUPPLEMENTARY AIDS AND SERVICES
• Definition .................................................................................................................................................................... 300.42.
• IEP content ................................................................................................................................................................. 300.320(a)(4).
• In ‘‘assistive technology’’ .......................................................................................................................................... 300.105(a)(3).
• LRE requirements ....................................................................................................................................................... 300.114(a)(2)(ii).
• Methods of ensuring services .................................................................................................................................... 300.154(b).
• Requirement regarding regular education teacher (IEP) .......................................................................................... 300.324(a)(3)(ii).
• Services that also benefit nondisabled children ...................................................................................................... 300.208(a)(1).
SUPPLEMENT—NOT SUPPLANT
• LEA requirement ........................................................................................................................................................ 300.202(a)(3).
• State level nonsupplanting ........................................................................................................................................ 300.162(c).
• See ‘‘Nonsupplanting’’
SUPPORT SERVICES (see §§ 300.704(b)(4)(i)), 300.814(a))
SURGICALLY IMPLANTED MEDICAL DEVICE (see §§ 300.5, 300.34(b), 300.113(b))
SURROGATE PARENTS ............................................................................................................................................... 300.519.
• Appointed for homeless youth ................................................................................................................................. 300.519(f).
• In definition of ‘‘Parent’’ ........................................................................................................................................... 300.30(a)(5).
• Timeline for assignment ............................................................................................................................................ 300.519(h).
SUSPENSION (EXPULSION)
• Alternative programming for children expelled ...................................................................................................... 300.704(b)(4)(ix).
• Provision of FAPE ...................................................................................................................................................... 300.101(a).
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• Suspension and expulsion rates ............................................................................................................................... 300.170(a).
• Suspension or expulsion without services ............................................................................................................... 300.534(d)(2)(ii).
TEACHERS
See ‘‘Regular education teacher’’
See ‘‘Special education teacher’’
TECHNICAL ASSISTANCE (Amounts to support) ..................................................................................................... 300.702.
TECHNICALLY SOUND INSTRUMENTS (Evaluation) .............................................................................................. 300.304(b)(3).
TERMINATION OF AGENCY OBLIGATION to provide special education to a particular child (Exception to
MOE).
300.204(c).
THERAPEUTIC RECREATION ...................................................................................................................................... 300.34(b)(11)(ii).
TIMELINES (A–D)
• Access rights (Confidentiality: 45 days) ................................................................................................................... 300.613(a).
• Annual report of children served (Between Oct. 1 and Dec. 1) ............................................................................. 300.641(a).
• Annual count of parentally-placed private school children (Between Oct. 1 and Dec. 1) ................................... 300.133(c).
• Assignment of surrogate parent (Not more than 30 days) ....................................................................................... 300.519(h).
• Attorneys’ fees (10 days prohibition) ....................................................................................................................... 300.517(c)(2)(i).
• Complaint procedures (State: 60 days) ..................................................................................................................... 300.152(a).
• Department hearing procedures (30 days) ............................................................................................................... 300.179(b)(3).
Æ See also §§ 300.181 through 300.184
• Due process hearings and reviews (see §§ 300.510(b)(2), 300.511(e), (f)):
Æ Conducted within 20 school days; decision within 10 school days .............................................................. 300.532(c)(2).
Æ Decision within 45 days after expiration of 30 day period ............................................................................. 300.515(a).
Æ Disclose evaluations before hearings (5 business days) ................................................................................... 300.512(a)(3).
TIMELINES (E–H)
• Hearing procedures (State eligibility: 30 days) ........................................................................................................ 300.179(b)(3).
• Hearing rights:
Æ Disclosure of evaluations (At least 5 business days before hearing) .............................................................. 300.512(b)(1).
Æ Prohibit introduction of evidence not disclosed (At least 5 business days before hearing) ......................... 300.512(a)(3).
Æ Reviews (Decision not later than 30 days) ....................................................................................................... 300.515(b).
TIMELINES (I–Z)
• IEP (Initial meeting: 30 days) .................................................................................................................................... 300.323(c)(1).
• Initial evaluation (60 days) ....................................................................................................................................... 300.301(c)(1).
• Parent notice before private placement (At least 10 business days) ...................................................................... 300.148(d)(2).
• Show cause hearing ................................................................................................................................................... 300.194(g).
• Decision ...................................................................................................................................................................... 300.195(a)(1).
• State eligibility: Department hearing procedures (see §§ 300.179(b)(3), 300.181(b), 300.182(d), (e), (g), (k),
300.184)
• Timelines and convenience of hearings and reviews .............................................................................................. 300.515.
TIMELINES—DISCIPLINE (A–P)
• Authority of hearing officer (May order change of placement for not more than 45 school days) ...................... 300.532(b)(2)(ii).
• Authority of school personnel:
Æ Change of placement for not more than 45 consecutive days for weapons or drugs .................................... 300.530(g).
Æ Removal of a child for not more than 10 school days ..................................................................................... 300.530(b).
• Change of placement for disciplinary removals:
Æ Of more than 10 consecutive school days ........................................................................................................ 300.536(a)(1).
Æ Because series of removals total more than 10 school days ............................................................................ 300.536(a)(2)(i).
• Due process hearing request ..................................................................................................................................... 300.507(a)(2).
• Expedited due process hearings:
Æ Conducted within 20 days ................................................................................................................................. 300.532(c)(2).
Æ Decision within 10 days .................................................................................................................................... 300.532(c)(3)(i).
• Hearing officer (Order change of placement for not more than 45 days) .............................................................. 300.532(b)(2)(ii).
• Manifestation determination review (Conducted in no more than 10 school days) ............................................. 300.530(e).
• Placement during appeals (Not longer than 45 days) .............................................................................................. 300.532(b)(2)(ii).
TIMELINES—DISCIPLINE (Q–Z)
• Removals for not more than:
Æ 10 school days (By school personnel) ............................................................................................................. 300.530(b).
Æ 45 days (To interim alternative educational setting) ...................................................................................... 300.532(b)(2)(ii).
By hearing officer (For substantial likelihood of injury to child or others) ................................................ 300.532(b)(2)(ii).
By school personnel (For weapons or drugs) (see § 300.530(g)(1), (g)(2))
TIMETABLE: Full educational opportunity goal (FEOG) ........................................................................................... 300.109.
TRAINING
• Assistive technology services (see § 300.6(e), (f))
• Confidentiality procedures (Personnel using personally identifiable information must receive training) .......... 300.623(c).
• Parent counseling and training ................................................................................................................................. 300.34(b)(8).
• Technical assistance and training for teachers and administrators ........................................................................ 300.119.
• Travel training (see § 300.39(a)(2)(ii), (b)(4))
TRANSFER DURING ACADEMIC YEAR
• Assessments coordinated between public agencies ................................................................................................. 300.304(c)(5).
• New school district responsibilities (see § 300.323(e), (f))
• Transmittal of records ............................................................................................................................................... 300.323(g).
TRANSFER OF PARENTAL RIGHTS ........................................................................................................................... 300.520.
• IEP requirement ......................................................................................................................................................... 300.320(c).
• Special rule ................................................................................................................................................................ 300.520(b).
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• To children in correctional institutions ................................................................................................................... 300.520(a)(2).
TRANSITION FROM PART C TO PART B .................................................................................................................. 300.124.
TRANSITION SERVICES (NEEDS)
• Agency responsibilities for (see §§ 300.321(b)(3), 300.324(c)(2))
• Alternative strategies ................................................................................................................................................. 300.324(c)(1).
• Child participation in IEP Team meetings ............................................................................................................... 300.321(b)(1).
• Definition .................................................................................................................................................................... 300.43.
• IEP requirement (Statement of)
Æ Transition service needs .................................................................................................................................... 300.320(b).
Æ Needed transition services ................................................................................................................................. 300.43(b).
• State rehabilitation agency ........................................................................................................................................ 300.324(c)(2).
TRANSMITTAL OF RECORDS TO LAW ENFORCEMENT AND JUDICIAL AUTHORITIES .................................. 300.535(b).
TRANSPORTATION
• Definition .................................................................................................................................................................... 300.34(c)(16).
• Nonacademic services ............................................................................................................................................... 300.107(b).
• Of private school children ........................................................................................................................................ 300.139(b).
TRAUMATIC BRAIN INJURY (Definition) .................................................................................................................. 300.8(c)(12).
TRAVEL TRAINING (see § 300.39(a)(2)(ii), (b)(4))
• Definition .................................................................................................................................................................... 300.39(b)(4).
TREATMENT OF CHARTER SCHOOLS AND THEIR STUDENTS ........................................................................... 300.209.
TREATMENT OF FEDERAL FUNDS IN CERTAIN YEARS ....................................................................................... 300.205.
UNIVERSAL DESIGN
• Definition .................................................................................................................................................................... 300.44.
• Support technology with universal design principles ............................................................................................ 300.704(b)(4)(v).
USE OF AMOUNTS (LEA) ............................................................................................................................................ 300.202.
USE OF FUNDS BY LEAs
• Coordinated services system ..................................................................................................................................... 300.208(a)(2).
• For school-wide programs ......................................................................................................................................... 300.206.
• For services and aids that also benefit nondisabled children ................................................................................ 300.208(a)(1).
• For use in accordance with Part B ........................................................................................................................... 300.705.
USE OF FUNDS BY STATES (SEAs) (A–C)
• Administering Part B State activities ....................................................................................................................... 300.704(a)(1).
• Administering Part C (If SEA is Lead Agency) ........................................................................................................ 300.704(a)(4).
• Administrative costs of monitoring and complaint investigations ......................................................................... 300.704(b)(3)(i).
• Allowable costs .......................................................................................................................................................... 300.704(b)(3).
• Amount for State administration .............................................................................................................................. 300.704(a)
• Annual description of use of Part B funds ............................................................................................................... 300.171.
• Assist LEAs in meeting personnel shortages ........................................................................................................... 300.704(b)(4)(vii).
• Complaint investigations ........................................................................................................................................... 300.704(b)(3)(i).
• Coordination of activities with other programs ....................................................................................................... 300.704(b)(1).
USE OF FUNDS BY STATES (SEAs) (D–Z)
• Direct and support services ....................................................................................................................................... 300.704(b)(4)(i).
• High cost fund ............................................................................................................................................................ 300.704(c).
• Mediation process ...................................................................................................................................................... 300.704(b)(3)(ii).
• Monitoring .................................................................................................................................................................. 300.704(b)(3)(i).
• Personnel preparation, professional development and training (see § 300.704(b)(4)(i), (b)(4)(xi)).
• State plan .................................................................................................................................................................... 300.704(c)(3)(i).
• Statewide coordinated services system .................................................................................................................... 300.814(d).
• Support and direct services ...................................................................................................................................... 300.704(b)(4)(i).
• Technical assistance:
Æ To LEAs .............................................................................................................................................................. 300.704(b)(4)(xi).
Æ To other programs that provide services .......................................................................................................... 300.704(a)(1).
USE OF FUNDS BY SECRETARY OF THE INTERIOR (see §§ 300.707 through 300.716)
• By Indian tribes:
Æ For child find for children aged 3 throught 5 .................................................................................................. 300.712(d).
Æ For coordination of assistance for services ....................................................................................................... 300.712(a).
• For administrative costs ............................................................................................................................................ 300.710(a).
USE OF SEA ALLOCATIONS ....................................................................................................................................... 300.704.
• Inapplicability of requirements that prohibit commingling and supplanting of funds ........................................ 300.704(d).
VISUAL IMPAIRMENT INCLUDING BLINDNESS (Definition) ................................................................................. 300.8(c)(13).
VOCATIONAL EDUCATION
• Definition .................................................................................................................................................................... 300.39(b)(5).
• In definition of ‘‘Special education’’ ........................................................................................................................ 300.39(a)(2)(iii).
• Program options ......................................................................................................................................................... 300.110.
• Transition services ..................................................................................................................................................... 300.320(b)(1).
VOCATIONAL REHABILITATION (See ‘‘Rehabilitation’’)
VOLUNTARY DEPARTURE OF PERSONNEL
(Exception to LEA maintenance of effort) .................................................................................................................... 300.204(a).
WAIVER(S)
• For exceptional and uncontrollable circumstances (State maintenance of effort) ................................................ 300.163(c).
• ‘‘In whole or in part’’ ................................................................................................................................................. 300.164(e).
• Public benefits or insurance (Risk of loss of eligibility for home and community-based waivers) ..................... 300.154(d)(2)(iii)(D).
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• State-level nonsupplanting ........................................................................................................................................ 300.162(c).
• State maintenance of effort ....................................................................................................................................... 300.163.
• State’s procedures for monitoring ............................................................................................................................. 300.164(c)(2)(ii)(B).
• Waiver procedures ..................................................................................................................................................... 300.164.
WARD OF THE STATE
• Appointment of surrogate parent .............................................................................................................................. 300.519(c).
• Definition .................................................................................................................................................................... 300.45.
• See definition of ‘‘Parent’’ ......................................................................................................................................... 300.30(a)(3).
• See ‘‘Surrogate parents’’ ............................................................................................................................................ 300.519(a)(3).
WEAPON (Definition) ................................................................................................................................................... 300.530(i)(4).
WHEN IEPS MUST BE IN EFFECT .............................................................................................................................. 300.323.
PART 301—[REMOVED]
2. Remove part 301.
[FR Doc. 06–6656 Filed 8–3–06; 8:45 am]
BILLING CODE 4000–01–P
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
BETH and DAVID PETIT, in their )
individual capacities and as next friends )
to their minor son, H.P., )
12 Emery Lane )
Stratham, NH 03885 )
)
and )
)
NICOLE and BENNIE UNDERWOOD, )
in their individual capacities and as )
next friends to their minor daughter, )
A.U. )
9936 Castle Lane )
Knoxville, TN 37922 )
Plaintiffs, )
)
v. ) Civ. No. 1:07CV01583(RMU)
)
UNITED STATES DEPARTMENT )
OF EDUCATION, )
400 Maryland Ave, SW )
Washington, DC 20202 )
)
and )
)
MARGARET SPELLINGS, in her official )
capacity as Secretary of the )
United States Department of Education )
400 Maryland Ave, SW )
Washington, DC 20202 )
Defendants. )
__________________________________________)
PROPOSED ORDER
Upon consideration of Defendants’ Motion to Dismiss, or Alternatively for Summary
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2
Judgment, the opposition thereto, and the complete record in this case, it is hereby
ORDERED that Defendants’ Motion is GRANTED, Plaintiffs’ claim under the
Individuals with Disabilities Education Act (“IDEA”) is dismissed with prejudice, and judgment
is entered in favor of Defendants on Plaintiffs’ Administrative Procedures Act (“APA”) claim.
SO ORDERED.
Dated:______________________ __________________________________
UNITED STATES DISTRICT JUDGE
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I certify that on this 13th day of December 2007, I caused a copy of the foregoing
Defendants’ Motion to Dismiss Or Alternatively, For Summary Judgment and attachments hereto
to be filed with the Clerk of the Court via the CM/ECF system, causing them to be served
electronically. The documents are available for viewing and downloading from the ECF system.
/s/ Tamra T. Moore
Tamra T. Moore
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