[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12405-12454]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov] [DOCID:fr12mr99-12]


[[Page 12405]]

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Part II

Department of Education

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34 CFR Parts 300 and 303

Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities; Final Regulations

[[Page 12406]]

DEPARTMENT OF EDUCATION

34 CFR Parts 300 and 303

RIN 1820-AB40


Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities

AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary issues final regulations for the Assistance
to States for Education of Children with Disabilities program under
Part B of the Individuals with Disabilities Education Act (IDEA;
Part B) and the Early Intervention Program for Infants and Toddlers
with Disabilities under Part C of the Act (Part C). These
regulations are needed to implement changes made to Part B by the
IDEA Amendments of 1997; make other changes to the part B
regulations based on relevant, longstanding policy guidance; and
revise the requirements on State complaint procedures under both
the Part B and Part C programs.

DATES: These regulations take effect on May 11, 1999. However,
compliance with these regulations will not be required until the
date the State receives FY 1999 funding (expected to be available
for obligation to States on July 1, 1999) under the program or
October 1, 1999, whichever is earlier. Affected parties do not have
to comply with the information collection requirements contained in
the regulations listed under the Paperwork Reduction Act of 1995
section of this preamble until the Department publishes in the
Federal Register the control number assigned by the Office of
Management and Budget (OMB) to these information collection
requirements. Publication of the control numbers notifies the
public that OMB has approved these information collection
requirements under the Paperwork Reduction Act of 1995.

FOR FURTHER INFORMATION CONTACT: Thomas Irvin or JoLeta Reynolds
(202) 205-5507. Individuals who use a telecommunications device for
the deaf (TDD) may call (202) 205-5465.
    Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or
computer diskette) on request to Katie Mincey, Director of the
Alternate Formats Center. Telephone: (202) 205-8113.

SUPPLEMENTARY INFORMATION: On October 22, 1997, the Secretary
published a notice of proposed rulemaking (NPRM) in the Federal
Register (62 FR 55026) to amend the regulations governing the
Assistance to States for Education of Children with Disabilities
program (part 300), the Preschool Grants for Children with
Disabilities program (part 301), and the Early Intervention Program
for Infants and Toddlers with Disabilities (part 303). A key
purpose of the NPRM was to implement changes made by the IDEA
Amendments of 1997 (Pub. L. 105-17).     Since that time, the
Department has published final regulations for both the Preschool
Grants program (63 FR 29928, June 1, 1998) and the Early
Intervention program for Infants and Toddlers with Disabilities (63
FR 18297, April 14, 1998), to incorporate the requirements added to
those programs by Pub. L. 105-17. On April 14, 1998, a document was
published in the Federal Register inviting comment on whether the
regulations for the Early Intervention program for Infants and
Toddlers with Disabilities should be further amended (63 FR 18297).
(A subsequent document reopening the comment period was published
on August 14, 1998 (63 FR 43866)).
    The final regulations in this publication are needed to conform
the existing regulations under Part B of the Act to the new
statutory requirements added by Pub. L. 105-17, including (1)
amending requirements under prior law related to areas such as
State and local eligibility, evaluation, and individualized
education programs (IEPs), and (2) incorporating new requirements
in the Act (e.g., those relating to discipline, performance goals
and indicators, participation of children with disabilities in
State and district-wide assessments, procedural safeguards notice,
and mediation).
    The regulations have also been amended to incorporate relevant
longstanding interpretations of the Act that have been addressed in
nonregulatory guidance in the past and are needed to ensure a more
meaningful implementation of the Act and its regulations for
children with disabilities, parents, and public agencies. These
interpretations are based on the statutory provisions of the IDEA
that were in effect prior to the IDEA Amendments of 1997 and that
were not changed by those Amendments. Examples of provisions of the
regulations that incorporate prior Department interpretations of
the statute include:
    Section 300.7(c)(9)--recognizing that some children with
attention deficit disorder (ADD) may be identified under the
category of other health impairment;
    Section 300.19--recognizing that foster parents may, under
certain circumstances and if permitted under State law, qualify as
a ``parent';     Section 300.121(c)--recognizing that if a child's
third birthday is in the summer, the child's IEP team determines
the date when services begin under the child's IEP or IFSP. (The
team must develop the IEP or IFSP by the child's third birthday.);
    Section 300.122(a)(3)--recognizing that graduation with a
regular high school diploma ends the child's eligibility under Part
B;     Section 300.309--recognizing that extended school year
services must be provided if necessary for the provision of a free
appropriate public education to the child; and
    Section 300.519--identifying what constitutes a change of
placement for disciplinary purposes under these regulations.
    In addition, changes have been made to the requirements on
State complaint procedures in the regulations for Part B (Secs.
300.660-300.662), and conforming changes have been made in the Part
C regulations (Secs. 303.510-303.512).

Analysis of Comments and Changes

    In response to the Secretary's invitation to comment on the
NPRM published in the Federal Register on October 22, 1997 (62 FR
55026), about 6,000 individuals, public agencies, and organizations
submitted written or oral comments. An analysis of the public
comments received, including a description of the changes made in
the proposed regulations since publication of the NPRM, is
published as Attachment 1 to these final regulations. The
perspectives of individuals and groups of parents, teachers,
related service providers, State and local officials, individuals
with disabilities and members of Congress were very important in
helping to identify where changes were necessary in the proposed
regulations, and in formulating many of those changes. The
detailed, thoughtful comments of so many individuals and
organizations clearly demonstrated a high level of commitment to
making sure that the IDEA and its regulations make a real
difference in the day-to-day education of our children. In light of
the comments received, a number of significant changes are
reflected in these final regulations.

Effective Date of These Regulations

    These regulations take effect on May 11, 1999. As these
regulations were not in effect at the time Federal fiscal year

[[Page 12407]]

(FY) 1998 funds (funds for use during school year 1998-99) became
available for obligation to States, compliance with the
requirements of these regulations, that are not statutory
requirements or provisions of pre-existing regulations, will not be
mandatory for this grant year. When either the FY 1998 funds that
are unobligated by States and school districts become carryover
funds (October 1, 1999) or, if earlier, the State receives FY 1999
funding (expected to be available for obligation to States July 1,
1999) compliance with these final regulations is required. This
will enable all parties to become familiar with the new regulations
without requiring changes that could interrupt school or program
operations in the middle of a grant year. However, States and
school districts may adopt and use these regulations when they are
effective, and are encouraged, to the greatest extent possible, to
start to implement them as soon as possible during this school
year. In any case, the statutory requirements of the Individuals
with Disabilities Education Act Amendments of 1997 (IDEA Amendments
of 1997) are in effect and must be complied with throughout the
1998-99 school year. In addition, States and school districts must
comply with all requirements of the Part 300 regulations that were
in effect at the beginning of this school year unless inconsistent
with the IDEA Amendments of 1997 or these final regulations.
Applications for grants for FY 1999 funds must be consistent with
the requirements of these final regulations.
    Most of the provisions of the IDEA Amendments of 1997 relating
to Parts B and C of the Act have been in effect since enactment,
June 4, 1997, with a few provisions, such as the new Part B
provisions concerning individualized education programs and the
comprehensive system of personnel development, taking effect on
July 1, 1998. Therefore, States and school districts already are
familiar with the statutory provisions of the IDEA Amendments of
1997 to which they must comply.

Major Changes in the Regulations

    The following is a summary of the major substantive changes
from the NPRM in these final regulations:

1. General Changes

    <bullet> All notes in the NPRM related to the sections or
subparts covered in these final regulations have been removed. The
substance of any note that should be required for proper
implementation of the Act has been added to the text of these final
regulations. Information in notes considered to be directly
relevant to the ``Notice of Interpretation'' on IEP requirements
has been added to the text of that notice in Appendix A to these
final regulations. The substance of any note considered to provide
clarifying information or useful guidance has been incorporated
into the discussion of the applicable comments in the ``Analysis of
Comments and Changes'' (see Attachment 1 to these final
regulations). All other notes have been deleted.
    <bullet> Appendix C in the NPRM (``Notice of Interpretation on
IEPs) has been redesignated as ``Appendix A'' in these final
regulations; and a new Appendix B--Index to IDEA Part B Regulations
has been added.
    <bullet> Three attachments have also been added: Attachment 1--
Analysis of Comments and Changes; Attachment 2--Final Regulatory
Flexibility Analysis; and Attachment 3--Table showing ``Disposition
of NPRM Notes in Final Part 300 and 303 Regulations.'' However,
these attachments will not be codified in the Code of Federal
Regulations.

2. Changes in Subpart A--General

    <bullet> Proposed Sec. 300.2 (Applicability of this part to
State, local, and private agencies) has been revised to include
``public charter schools that are not otherwise included as local
educational agencies (LEAs) or educational service agencies (ESAs)
and are not a school of an LEA or ESA'' and to specify that the
rules of Part 300 apply to all public agencies in the State
providing special education and related services.
    <bullet> Consistent with the general decision to not use notes
in these final regulations, proposed Note 1 immediately preceding
Sec. 300.4 in the NPRM, (which included a list of terms defined in
specific subparts and sections of the regulations) has been deleted
and the terms included as part of an index to these regulations
(see Appendix B).
    <bullet> The proposed definition of ``child with a disability''
(Sec. 300.7(a)) has been revised to clarify that if a child with a
disability needs only a related service and not special education,
the child is not eligible under this part; but if the related
service is considered to be special education under State
standards, the child would be eligible.
    <bullet> The proposed definition of ``other health impairment''
(``OHI''), at Sec. 300.7(c)(9), has been amended to (1) add
``attention deficit disorder'' (ADD) and ``attention deficit
hyperactivity disorder'' (ADHD) to the list of conditions that
could render a child eligible under OHI, and (2) clarify that, with
respect to children with ADD/ADHD, the phrase ``limited strength,
vitality, or alertness'' includes ``a child's heightened alertness
to environmental stimuli that results in limited alertness with
respect to the educational environment.''
    <bullet> The proposed definition of ``Day'' (Sec. 300.9) has
been retitled ``Day; business day; school day,'' and definitions of
``business day'' and ``school day'' have been added.
    <bullet> The proposed definition of ``educational service
agency'' (Sec. 300.10) has been revised to clarify that the term
``[i]ncludes entities that meet the definition of ``intermediate
educational unit'' in section 602(23) of IDEA as in effect prior to
June 4, 1997.''     <bullet> The proposed definition of ``general
curriculum'' in Sec. 300.12 of the NPRM and the explanatory note
following that section have been deleted. The term is explained
where it is used in Sec. 300.347 and in Appendix A regarding IEP
requirements.
    <bullet> The proposed definition of ``local educational
agency'' (Sec. 300.18) has been amended to clarify, consistent with
new statutory language concerning public charter schools, that the
term includes public charter schools that are established as an LEA
under State law.
    <bullet> The proposed definition of ``native language'' (Sec.
300.19) has been amended to specify that (1) in all direct contact
with a child (including evaluation of the child), the native
language is the language normally used by the child in the home or
learning environment, and (2) for an individual with deafness or
blindness, or with no written language, the mode of communication
is that normally used by the individual (such as sign language,
braille, or oral communication).
    <bullet> The proposed definition of ``parent'' has been amended
to (1) add language clarifying that the term means a natural or
adoptive parent of a child and a person acting in the place of a
parent (such as a grandparent or stepparent with whom the child
lives, or a person who is legally responsible for the child's
welfare), and (2) permit States in certain circumstances to use
foster parents as parents under the Act unless prohibited by State
law.
    <bullet> The proposed definition of ``public agency'' (Sec.
300.22) has been amended to add to the list of examples of a public
agency ``public charter schools that are not otherwise included as
LEAs or ESAs and are not a school of an LEA or ESA'', consistent
with new statutory language concerning public charter schools.
    <bullet> The proposed definition of ``parent counseling and
training,'' under the definition of ``related services,''
(Sec. 300.24(b)(7)) has been amended to

[[Page 12408]]

add that the term also means ``helping parents to acquire the
necessary skills that will allow them to support the implementation
of their child's IEP or IFSP.''
    <bullet> The proposed definition of ``special education'' (Sec.
300.26) has been amended to add ``travel training'' as a special
education service and to include a definition of the term.

3. Changes in Subpart B--State and Local Eligibility

State Eligibility
    <bullet> Proposed Sec. 300.110 (Condition of assistance) has
been amended to more explicitly state what is required for
compliance with the State eligibility requirements.
    <bullet> Proposed Sec. 300.121 (FAPE) has been amended to
specify (1) requirements for providing FAPE for children with
disabilities beginning at age 3; (2) that services need not be
provided during periods of removal under Sec. 300.520(a)(1) 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 services are not provided to a child without disabiliities who
has been similarly removed; (3) the standards that are used to
determine appropriate services for children with disabilities who
have been removed from their current placement for more than 10
school days in a school year; (4) that LEAs must ensure that FAPE
is available to any child with a disability who needs special
education and related services, even though the child is advancing
from grade to grade; and (5) that the determination that a child
who is advancing from grade to grade is eligible under this part
must be made on an individual basis by the group within the LEA
responsible for making eligibility determinations.     <bullet>
Proposed Sec. 300.122 (Exception to FAPE for certain ages) has been
amended to (1) specify situations in which the exception to FAPE
for students with disabilities in adult prisons does not apply, and
(2) make clear that graduation from high school with a regular
diploma is a change in placement requiring notice in accordance
with Sec. 300.503. (A related change to Sec. 300.534(c) makes clear
that a reevaluation is not required for graduation with a regular
high school diploma or termination of eligibility for exceeding the
age eligibility for FAPE under State law.)
    <bullet> Proposed Sec. 300.125 (Child find) has been revised to
(1) clarify that the child find requirements apply to highly mobile
children (e.g., migrant and homeless children), and to children who
are suspected of being a child with a disability under this part,
even though they are advancing from grade to grade, and (2) add
needed clarifications of requirements relating to child find for
children from birth through age 2 when the SEA and lead agency for
the Part C program are different.
    <bullet> Proposed Sec. 300.136 (Personnel standards) has been
amended as follows:
    (1) The proposed definition of ``profession or discipline'' in
Sec. 300.136(a)(3) has been revised to clarify that the term
``specific occupational category'' is not limited to traditional
categories.     (2) The policies and procedures in proposed Sec.
300.136(b) have been expanded to provide that (A) each State may
determine the specific occupational categories required in the
State and revise or expand them as needed; (B) nothing in these
regulations requires a State to establish a specific training
standard (e.g., a masters degree); and (C) a State with only one
entry-level academic degree for employment of personnel in a
specific profession or discipline may modify that standard, as
necessary, to ensure the provision of FAPE to all eligible
children.
    (3) Proposed Sec. 300.136(g) (State policy to address shortage
of personnel) has been amended by adding provisions that (A) if a
State has reached its established date for a specific profession or
discipline, it may still exercise the option in redesignated Sec.
300.136(g)(1); and (B) each State must have a mechanism for serving
children with disabilities if instructional needs exceed available
(qualified) personnel, including addressing those shortages in its
comprehensive system of personnel development if the shortages
continue.
    <bullet>  Proposed Sec. 300.138 (Participation in assessments)
has been amended to require appropriate modifications in the
administration of the assessments, if necessary.
    <bullet>  Proposed Sec. 300.142 (Methods of ensuring services)
has been amended as follows:
    (1) Proposed Sec. 300.142(b) (Obligation of noneducational
public agencies) has been revised to specify that those agencies
may not disqualify an eligible service for Medicaid reimbursement
because the service is provided in an educational context.
    (2) Proposed Sec. 300.142(b)(2) (Reimbursement for services by
noneducational public agency) has been revised to require that an
LEA must provide services in a timely manner if a public
noneducational agency fails to provide or pay for the services.
    (3) Proposed Sec. 300.142(e) has been added to make clear that
a public agency may use a child's public insurance to provide or
pay for services required under Part B, with certain limitations.
The public agency (A) may not require parents to sign up for public
insurance in order for the child to receive FAPE, (B) may not
require parents to incur out-of-pocket expenses in order to file
the claim for services under Part B, and (C) may not use the
child's benefits under a public insurance program if that use would
decrease available lifetime coverage or any other insured benefit,
result in the family paying for services that would have been
covered by the public insurance and are required for the child
outside of the time the child is in school, increase premiums or
lead to discontinuation of services or risk loss of eligibility for
home and community-based waivers due to aggregate health-related
expenditures.
    (4) The proposed provisions on children covered by private
insurance have been redesignated as Sec. 300.142(f), and revised to
provide that a public agency (A) may access a parent's private
insurance proceeds only if the parent provides informed consent,
and (B) must obtain consent each time it proposes to access those
proceeds, and inform the parents that their refusal to permit such
access does not relieve the public agency of its responsibility to
provide all required services at no cost to the parents.
    (5) A new Sec. 300.142(g) has been added to permit the use of
part B funds to ensure FAPE for (A) the cost of required services
under these regulations if the parents refuse consent to use public
or private insurance, and (B) the costs of using the parents'
insurance, such as paying deductible or co-pay amounts.
    (6) Proposed Sec. 300.142(f) (Proceeds from public or private
insurance) has been redesignated as paragraph (h), and revised to
clarify that (A) the insurance proceeds received by a public agency
do not have to be returned to the Department or dedicated to the
part B program; and (B) funds expended by a public agency from
reimbursements of Federal funds will not be considered State or
local funds for purposes of State or local maintenance of effort.
    (7) A new Sec. 300.142(i) has been added to specify that
nothing in Part B should be construed to alter the requirements
imposed on a State medicaid agency, or any other agency
administering a public insurance program by Federal statute,
regulations or policy under Title XIX or Title XXI of the Social
Security Act, or any other public insurance program.

[[Page 12409]]

    <bullet> Proposed Sec. 300.148 (Public participation) has been
amended to clarify that a State will be considered to be in
compliance with this section if the State has subjected the policy
or procedure to a public participation process that is required by
the State for other purposes and is comparable to and consistent
with the requirements of Secs. 300.280-300.284.
    <bullet> Proposed Sec. 300.154 (Maintenance of State financial
support) has been amended to clarify that maintenance of State
financial support can be demonstrated on either a total or per-
capita basis.

LEA Eligibility--Specific Conditions

    <bullet> Proposed Sec. 300.231 (Maintenance of effort) has been
amended to set out the standard for meeting the maintenance of
effort requirement.
    <bullet> Proposed Sec. 300.232 (Exception to maintenance of
effort) has been amended to specify that the exception related to
voluntary retirement or resignation of personnel must be in full
conformity with existing school board policies, any applicable
collective bargaining agreement, and applicable State statutes.
    <bullet> Proposed Sec. 300.234 (Schoolwide programs under title
I of the ESEA) has been amended to make clear that an LEA that uses
Part B funds in schoolwide program schools must ensure that
children with disabilities in those schools receive services in
accordance with a properly developed IEP and are afforded all
applicable rights and services guaranteed under the IDEA.

4. Changes in Subpart C--Services

Free Appropriate Public Education
    <bullet> Proposed Sec. 300.300 (Provision of FAPE) has been
amended to specify that the State must ensure that the child find
requirements of Sec. 300.125 are implemented by public agencies
throughout the State. Proposed Sec. 300.300 also has been amended
to specify that (1) the services provided to the child under this
part address all of the child's identified special education and
related services needs, and (2) are based on the child's identified
needs and not the child's disability category.
    <bullet> Proposed Sec. 300.301 (FAPE--methods and payments) has
been amended to add a provision requiring that 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 the special education and related services to the child
is being determined.
    <bullet> Proposed Sec. 300.308 (Assistive technology) has been
amended to clarify that, 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.
    <bullet> Proposed Sec. 300.309 (Extended school year (ESY)
services) has been amended to specify that (1) ESY services must be
provided only if a child's IEP team determines, on an individual
basis, that the services are necessary for the provision of FAPE to
the child, and (2) an LEA may not limit ESY services to particular
categories of disability, or unilaterally limit the type, amount,
or duration of those services.
    <bullet> A new Sec. 300.312 (Children with disabilities in
public charter schools) has been added to (1) specify that these
children and their parents retain all rights under these
regulations, and that compliance with part B is required regardless
of whether a public charter school receives Part B funds; and (2)
address the
responsibilities of the following: public charter schools that are
LEAs; LEAs if the charter school is a school in the LEA; and the
SEA if the charter school is not an LEA or a school of an LEA.
    <bullet> A new Sec. 300.313 (Children experiencing
developmental delays) has been added to (1) clarify the
circumstances under which the designation ``developmental delay''
may be used by a State or an LEA in the State; (2) permit a State
or LEA that elects to use that term to also use one or more of the
disability categories described in Sec. 300.7 for any child aged 3
through 9 who has been determined to have a disability and who, by
reason thereof, needs special education; and (3) permit a State to
adopt a common definition of developmental delay under Parts B and
C of the Act.

Individualized Education Programs (IEPs)

    <bullet> Proposed Sec. 300.341 (retitled ``Responsibility of
SEA and other public agencies for IEPs) has been revised to (1)
consistent with provisions regarding parentally-placed children
with disabilities in religious or other private schools (see
changes to Subpart D), and (2) to clarify that the section also
applies to the SEA if it provides direct services to children with
disabilities as well as other public agencies that provide special
education either directly, by contract, or through other means.
    <bullet> Proposed Sec. 300.342(b) has been revised to provide
that the child's IEP must be accessible to each of the child's
teachers and service providers and that teacher and service
provider with responsibility for its implementation be informed of
his or her specific responsibilities under the IEP and of the
specific accommodations, modifications, and supports that must be
provided for the child under that IEP.
    <bullet> Proposed Sec. 300.342(d) has been revised to state
that all IEPs developed, reviewed, or revised on or after July 1,
1998 must meet the requirements of Secs. 300.340-300.350.
    <bullet> Proposed Sec. 300.343 (IEP meetings) has been revised
to clarify that special education and related services must be
available to the child within a reasonable period of time following
receipt of parent consent to an initial evaluation.
    <bullet> Proposed Sec. 300.344 (IEP Team) has been amended to
(1) clarify that the determination of knowledge or special
expertise of ``other individuals'' under Sec. 300.344(a)(6) is made
by the party who has invited the individual to be a member of the
IEP team; and (2) permit a public agency to designate another
public agency member of the IEP team to also serve as the agency
representative, if the criteria in Sec. 300.344(a)(4) are
satisfied.
    <bullet> Proposed Sec. 300.345 (Parent participation) has been
revised to clarify that (1) the public agency's notice to parents
about the IEP meeting must inform them about the ability of either
party to invite individuals with knowledge or special expertise to
the meeting, consistent with Sec. 300.344(a)(6) and (c); and (2)
the agency must give the parents a copy of their child's IEP.
    <bullet> Proposed Sec. 300.346 (Development, review, and
revision of IEP) has been revised to clarify that, in developing
each child's IEP, the IEP team also must consider ``as appropriate,
the results of the child's performance on any general State or
district-wide assessment programs.
    <bullet> Proposed Sec. 300.347 (Content of IEP) has been
amended to (1) clarify that ``general curriculum'' is the same
curriculum as for nondisabled children, and (2) delete the
requirement that, if the IEP team determines that services are not
needed in one or more of the areas specified in the definition of
transition services (Sec. 300.29), the IEP must include a statement
to that effect and the basis upon which the determination was made.
    <bullet> Proposed Sec. 300.350 (Children with disabilities in
religiously-affiliated or other private schools) has been deleted.
A new Sec. 300.455(c) has been added to specify LEA
responsibilities regarding the development of ``services plans''
for private school children.

[[Page 12410]]

    <bullet> Proposed Sec. 300.351 (IEP--accountability) has been
redesignated as Sec. 300.350, and revised to provide that (1) each
public agency must make a good faith effort to assist the child to
achieve the goals and objectives or benchmarks listed in the IEP;
(2) a State or public agency is not prohibited from establishing
its own accountability systems regarding teacher, school, or agency
performance; and (3) ``[n]othing in this section limits a parent's
right to ask for revisions of the child's IEP or to invoke due
process procedures if the parent feels that efforts required in
paragraph (a) of this section are not being met.''

Direct Services by SEA

    <bullet> Proposed Sec. 300.360 (Use of LEA allocation for
direct services) has been amended to clarify that (1) if an LEA
does not elect to apply for its Part B funds, the SEA must use
those funds to ensure that FAPE is available to all eligible
children residing in the jurisdiction of the LEA; (2) if the local
allotment is not sufficient to ensure FAPE to all eligible children
within the LEA, the SEA must ensure that FAPE is available to those
children; and (3) the SEA may use whatever funding sources are
available in the State to ensure that all eligible children within
each LEA receive FAPE (see Sec. 300.301).     <bullet> Proposed
Sec. 300.370 (Use of SEA allocations) has been amended to clarify
that, of the Part B funds it retains for other than administration,
the SEA may use the funds either directly, or distribute them to
LEAs on a competitive, targeted, or formula basis.

5. Changes in Subpart D--Children in Private Schools

Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
    <bullet> Proposed Sec. 300.401 (``Responsibility of SEA'') has
been revised to provide that a child with a disability placed by a
public agency as the means of providing FAPE to the child must
receive an education that meets the standards that apply to the SEA
and LEA. Children With Disabilities Enrolled by Their Parents in
Private Schools When FAPE Is at Issue
    <bullet> Proposed Sec. 300.403 (``Placement of children by
parent if FAPE is at issue'') has been revised to clarify that (1)
the provisions of Secs. 300.450-300.462 apply to children with
disabilities placed voluntarily in private schools, even though the
public agency made FAPE available to those children; (2) private
school placement by the parents must be appropriate (as determined
by a court or hearing officer) in order to be eligible for
reimbursement, (3) a parental placement does not need to meet State
standards that apply to education provided by the SEA and LEAs in
order to be appropriate; and (4) the reimbursement provisions of
Sec. 300.403 also apply if 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 program.
Children With Disabilities Enrolled by Their Parents in Private
Schools     <bullet> Proposed Sec. 300.451 (``Child find for
private school children with disabilities'') has been revised to
specify that (1) child find activities for those children must be
comparable to child find activities for children with disabilities
in public schools, and (2) LEAs must consult with representatives
of parentally-placed private school students with disabilities on
how to conduct child find activities for that population in a
manner that is comparable to those activities for public school
children.
    <bullet> Proposed Sec. 300.452 (retitled ``Provision of
services--basic requirement'') has been amended to add a new
provision related to the SEA's responsibility for ensuring that a
services plan is developed for each private school child with a
disability who has been designated to receive services under these
regulations.
    <bullet> Proposed Sec. 300.453 (``Expenditures'') has been
revised to specify that (1) each LEA must consult with
representatives of private school children with disabilities to
decide how to conduct the annual count of the number of those
children; (2) the LEA must ensure that the count is conducted by
specified dates, and that the data are used to determine the amount
of Part B funds to be earmarked for private school children in the
next fiscal year; (3) the costs of child find activities for
private school children with disabilities may not be considered in
determining whether the LEA met the expenditures requirement of
this section; and (4) SEAs and LEAs are not prohibited from
providing services to private school children with disabilities
beyond those required by this part, consistent with State law or
local policy.
    <bullet> Proposed Sec. 300.454 (Services determined) has been
revised to specify that each LEA must (1) consult with private
school representatives on where services will be provided; (2)
conduct meetings to develop, review, and revise a ``services
plan,'' in accordance with Sec. 300.455, for each private school
child with a disability who has been designated to receive services
under this part; and (3) ensure that a representative of the
private school participates in the meetings.
    <bullet> Proposed Sec. 300.455 (Services provided) has been
revised to specify that (1) each private school child with a
disability who has been designated to receive Part B services must
have a services plan, and (2) the plan must, to the extent
appropriate, meet the requirements of Sec. 300.347 with respect to
the services provided, and be developed, reviewed and revised
consistent with Secs. 300.342-300.346.     <bullet> Proposed Sec.
300.456 (Location of services) has been revised to make clear that,
while transportation might be provided between a child's home or
private school and a service site if necessary for the child to
benefit from or participate in the services offered, LEAs are not
required to provide transportation between the child's home and
private school.
    <bullet> Proposed Sec. 300.457 (Complaints) has been revised to
specify that the due process procedures under this part apply to
child find activities for private school children with
disabilities, including evaluations.

6. Changes in Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children
    <bullet> Proposed Sec. 300.500 (General responsibility of
public agencies; definitions) has been amended as follows:
    (1) The proposed definition of ``consent'' (300.500(b)(1)) has
been revised to clarify that a revocation of consent does not have
a retroactive effect if the action consented to has already
occurred.     (2) The proposed definition of ``evaluation'' (Sec.
300.500(b)(2)) has been revised by deleting the last sentence of
the definition, to ensure that evaluations may include a review of
a child's performance on a test or procedures used for all children
in a school, grade, or class.
    <bullet> Proposed Sec. 300.501 (Opportunity to examine records;
parent participation in meetings) has been amended to (1) delete
the word ``all'' from Sec. 300.501(a)(2); (2) delete the definition
of ``meetings'' but provide that the term does not include certain
conversations or preparation for a meeting and (3) clarify that
each public agency must ``make reasonable efforts'' related to
parental participation in group

[[Page 12411]]

discussions relating to the educational placements of their child. 
   <bullet> Proposed Sec. 300.502 (Independent educational
evaluation (IEE)) has been amended to (1) add that, upon request
for an IEE, parents must be given information about agency criteria
applicable for IEEs; (2) clarify, in Sec. 300.502(e)(1), that the
criteria under which an IEE is obtained must be the same as that of
the public agency ``to the extent such criteria are consistent with
the parent's right to an IEE,'' and (3) explain that an explanation
of parent disagreement with an agency evaluation may not be
required and the public agency may not delay either providing the
IEE at public expense or, alternatively, initiating a due process
hearing.
    <bullet> Proposed Sec. 300.503 (Prior notice by the public
agency; content of notice) has been amended to delete the provision
in Sec. 300.503(b)(8) (related to informing parents about the State
complaint procedures). (See Sec. 300.504(b).)
    <bullet> Proposed Sec. 300.504 (Procedural safeguards notice)
has been amended to add State complaint procedures under Secs.
300.660-300.662 to the items included in the notice.
    <bullet> Proposed Sec. 300.505 (Parental consent) has been
amended to (1) refer to ``informed parent consent;'' (2) add ``all
reevaluations'' to the list of actions requiring consent (see Sec.
300.505(a)(1)(i)); (3) delete paragraph (a)(1)(iii), and add a new
paragraph (a)(3) to specify that parental consent is not required
before reviewing existing evaluation data as a part of an
evaluation or reevaluation or for administering a test used with
all children unless consent is required of all parents; and (4)
specify, in paragraph (e), that a public agency may not use a
parental refusal to consent to one service or benefit under
paragraphs (a) and (d) to deny the parent or child another service
or benefit.
    <bullet> Proposed Sec. 300.506 (Mediation) has been revised to
(1) add a new Sec. 300.506(b)(2) to specify that the mediator must
be selected from a list of mediators on a random basis (e.g., a
rotation), or that both parties are involved in selecting the
mediator and agree with the selection of the individual who will
mediate; and (2) add a new Sec. 300.506(c)(2) to clarify that
payment for mediation services by the State does not make the
mediator an employee of the State agency for purposes of
impartiality.
    <bullet> Proposed Sec. 300.507 (Impartial due process hearing;
parent notice) has been amended to clarify that, in the content of
the parent notice, the description of the nature of the problem
applies to the action ``refused'' as well as that proposed by the
public agency.     <bullet> Proposed Sec. 300.509 (Hearing rights)
has been revised to clarify that, in paragraph (a)(3), the
disclosure is required at least 5 ``business'' days before the
hearing.
    <bullet> Proposed Sec. 300.510 (Finality of decision;
impartiality of review) has been amended to (1) make the reference
to written findings and decision in Sec. 300.510(b)(2)(vi)
consistent with Sec. 300.509(a)(5), and (2) allow the choice of
``electronic or written findings of fact and decision.''
    <bullet> Proposed Sec. 300.513 (Attorneys' fees) has been
amended to include all of the provisions of section 615(i)(3)(C)-
(G) of the Act.
    <bullet> Proposed Sec. 300.514(c) has been amended to provide
that a decision by a State hearing or review officer that is in
agreement with the parents constitutes an agreement for purposes of
pendency.     <bullet> Proposed Sec. 300.515 (Surrogate parents)
has been revised to permit employees of nonpublic agencies that
have no role in educating a child to serve as surrogate parents.
    Discipline Procedures
    <bullet> A new Sec. 300.519 (Change of placement for
disciplinary removals) has been added regarding change of placement
in the context of removals under Secs. 300.520-300.529.
    <bullet> Proposed Sec. 300.520 (Authority of school personnel)
has been amended as follows:
    (1) Proposed Sec. 300.520(a)(1) has been revised to specify
that to the extent removal would be applied to children without
disabilities, school personnel may order the removal of a child
with a disability from the child's current placement for not more
than 10 consecutive school days and additional removals of not more
than 10 consecutive school days in that same school year for
separate incidents of misconduct as long as they do not constitute
a change in placement under Sec. 300.519, and to make clear that
after a child with a disability has been removed from his or her
current placement for more than 10 school days in the same school
year, during any subsequent days of removal the public agency must
provide services to the extent necessary under Sec. 300.121(d).
    (2) Proposed Sec. 300.520(b) has been revised to replace
``suspension'' with ``removal,'' and to specify that when first
removing a child for more than 10 school days in a school year, or
commencing a removal that constitutes a change of placement, the
LEA must within 10 business days, convene an IEP meeting. If the
agency had not already conducted a functional behavioral assessment
and implemented a behavioral intervention plan for the child the
purpose of the IEP meeting is to develop an assessment plan. As
soon as practicable after completion of the plan, the LEA must then
convene an IEP meeting to develop appropriate behavioral
interventions to address the child's behavior. If a child already
has a behavioral intervention plan, the purpose of the IEP meeting
is to review the plan and its implementation.
    (3) Proposed Sec. 300.520(c) has been deleted and replaced with
a provision that requires that if a child with a disability who has
a behavioral intervention plan and has been removed for more than
10 school days in a school year subsequently is subjected to a
removal that is not a change of placement, the child's IEP team
members shall review the behavioral intervention plan, and meet to
modify it or its implementation if one or more team members think
modifications are needed.
    <bullet> Proposed Sec. 300.521(d) has been modified to make
clear that the hearing officer determines the appropriateness of
the interim alternative educational setting proposed by school
personnel who have consulted with the child's special education
teacher.
    <bullet> Proposed Sec. 300.522 (Determination of setting) has
been amended to (1) specify that the interim alternative
educational setting referred to in Sec. 300.520(a)(2) must be
determined by the IEP team; and (2) clarify that the services and
modifications to address the child's behavior are designed to
prevent the behavior from recurring.     <bullet> Proposed Sec.
300.523 (Manifestation determination review) has been amended as
follows:
    (1) Proposed Sec. 300.523(a) has been revised to (1) specify
that the manifestation determination review is done regarding
behavior described in Secs. 300.520(a)(2) and 300.521, or if a
removal is contemplated that constitutes a change of placement
under Sec. 300.519; and (2) require that parents be provided notice
of procedural safeguards consistent with Sec. 300.504.
    (2) Proposed Sec. 300.523(b) (exception to conducting a
manifestation determination review) has been removed.
    (3) Proposed Sec. 300.523(c) has been redesignated as
Sec. 300.523(b) and revised to specify that the manifestation
determination review is conducted at a meeting.
    (4) Proposed Sec. 300.523(d) and (e) have been redesignated as
Sec. 300.523(c) and (d) and revised by adding ``and other

[[Page 12412]]

qualified personnel'' after ``IEP team'' each time it is used.    
(5) Proposed paragraph (f) has been redesignated as paragraph (e)
and a new paragraph (f) has been added to clarify that if in the
manifestation review deficiencies are identified in the child's IEP
or placement or in their implementation, the public agency must act
to correct those deficiencies.
    <bullet> Proposed Sec. 300.524 (Determination that behavior was
not a manifestation of disability) has been amended to (1) replace,
in paragraph (a), the reference to ``section 612 of the Act'' with
``Sec. 300.121(c);'' and (2) refer, in paragraph (c), to the
placement rules of Sec. 300.526.
    <bullet> Proposed Sec. 300.525 (Parent appeal) has been revised
to refer to any decision regarding placement under Secs.
300.520-300.528.     <bullet> Proposed Sec. 300.526(c)(3) has been
revised to clarify that extensions of 45 day removals by a hearing
officer because returning the child to the child's current
placement would be dangerous, may be repeated, if necessary.
    <bullet> Proposed Sec. 300.527 (Protections for children not
yet eligible for special education and related services) has been
amended as follows:
    (1) Proposed Sec. 300.527(b)(1) has been revised to refer to
not knowing how to write rather than illiteracy in English.
    (2) Proposed Sec. 300.527(b)(2) has been revised to clarify
that the behavior or performance is in relation to the categories
of disability identified in Sec. 300.7.
    (3) Proposed Sec. 300.527(b)(4) has been revised to refer to
other personnel who have responsibilities for child find or special
education referrals in the agency.
    (4) Proposed Sec. 300.527(c) has been redesignated as paragraph
(d), and a new paragraph (c) has been added to provide that if an
agency acts on one of the bases identified in paragraph (b),
determines that the child is not eligible, and provides proper
notice to the parents, and there are no additional bases of
knowledge under paragraph (b) that were not considered, the agency
would not be held to have a basis of knowledge under Sec.
300.527(b).
    (5) Proposed Sec. 300.527(d)(2)(ii) has been revised to clarify
that an educational placement under that provision can include
suspension or expulsion without educational services.
    <bullet> Proposed Sec. 300.528 (Expedited due process hearings)
has been amended as follows:
    (1) Proposed Sec. 300.528(a)(1) (requiring a decision within 10
business days) has been deleted. (Paragraphs (a)(2) and (a)(3) are
redesignated as (a)(1) and (a)(2) and paragraphs (b) and (c) are
redesignated as (c) and (d).)
    (2) A new Sec. 300.528(b) has been added to require that (A)
each State establish a timeline for expedited due process hearings
that results in a written decision being mailed to the parties
within 45 days, with no extensions permitted that result in
decisions being issued more than 45 days after the hearing request
is received by the public agency; and (B) decisions be issued in
the same period of time, whether the hearing is requested by a
parent or an agency.
    (3) Redesignated Sec. 300.528(d) has been revised to specify
that expedited due process hearings are appealable consistent with
the Sec. 300.510.
    <bullet> Proposed Sec. 300.529 (Referral to and action by law
enforcement and judicial authorities) has been amended to make
clear that copies of a child's special education and disciplinary
records may be transmitted only to the extent that such
transmission is permitted under FERPA. (Section 300.571 has been
amended to note the relationship of this section.)
Procedures for Evaluation and Determination of Eligibility
    <bullet> Proposed Sec. 300.532 (Evaluation procedures) has been
amended to (1) require that assessments of children with limited
English proficiency must be selected and administered to ensure
that they measure the extent to which a child has a disability and
needs special education, and do not, instead, measure the child's
English language skills (Sec. 300.532(a)2); (2) provide that the
information gathered include information related to enabling the
child to be involved and progress in the general curriculum or
appropriate activities if the child is a preschool child (Sec.
300.532(b)); (3) provide that if an assessment is not conducted
under standard conditions, information about the extent to which
the assessment varied from standard conditions, such as the
qualifications of the person administering the test or the method
of test administration, must be included in the evaluation report
(Sec. 300.532(c)(2)); and (4) provide that each public agency
ensure that the evaluation of each child with a disability under
Secs. 300.531-300.536 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.
    <bullet> Proposed Sec. 300.533 (Determination of needed
evaluation data) has been revised to clarify that the group
reviewing existing data may conduct that review without a meeting
(Sec. 300.533(b)).     <bullet> Proposed Sec. 300.534
(Determination of eligibility) has been amended to clarify that (1)
children are not eligible if they need specialized instruction
because of limited English proficiency or lack of instruction in
reading or math, but do not need such instruction because of a
disability, as defined in Sec. 300.7; and (2) the evaluation
required in Sec. 300.534(c)(1) is not required before termination
of a child's eligibility under Part B of the Act due to graduation
with a regular high school diploma, or ceasing to meet the age
requirement for FAPE under State law.
    <bullet> Proposed Sec. 300.535 (Procedures for determining
eligibility and placement) has been revised to add ``parent input''
to the variety of sources from which the public agency will draw in
interpreting evaluation data for the purpose of determining a
child's eligibility under this part.
Least Restrictive Environment (LRE)
    <bullet> Proposed Sec. 300.550 (General LRE requirements) has
been amended to add a cross reference to Sec. 300.311(b) and (c),
to clarify that the LRE provisions do not apply to students with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons.
    <bullet> Proposed Sec. 300.552 (Placements) has been amended to
(1) include a reference to preschool children with disabilities in
the introductory paragraph of this section, and (2) to add a new
Sec. 300.552(e) prohibiting the removal of child with a disability
from an age-appropriate regular classroom solely because of needed
modifications in the general curriculum.
Confidentiality of Information
    <bullet> Proposed Sec. 300.562 (Access rights) has been revised
to make it clear that expedited due process hearing procedures
under Secs. 300.521-300.529 are also covered under this section.
    <bullet> Proposed Sec. 300.571 (Consent) has been amended to
permit disclosures without parental consent to the agencies
identified in Sec. 300.529, to the extent permitted under the
Family Educational Rights and Privacy Act (FERPA).
    <bullet> Proposed Sec. 300.574 (Children's rights) has been
revised by incorporating into the regulations the substance of the
two notes following the section (relating to transfer of
educational records to the student at age 18).
Department Procedures
    <bullet> Proposed Sec. 300.589 (Waiver of requirement regarding
supplementing

[[Page 12413]]

and not supplanting with Part B funds) has been revised to conform
to the statutory provision that the Secretary provides a waiver
``in whole or in part.''

7. Changes in Subpart F--State Administration

    <bullet> Proposed Sec. 300.652 (Advisory panel functions) has
been revised to clarify that one of the duties of the advisory
panel is advising the State agency that has general responsibility
for students who have been convicted as adults and incarcerated in
adult prisons.     <bullet> Proposed Sec. 300.653 (Advisory panel
procedures) has been amended to specify that all advisory panel
meetings and agenda items must be ``announced enough in advance of
the meeting to afford interested parties a reasonable opportunity
to attend.''
    <bullet> Proposed Sec. 300.660 (Adoption of State complaint
procedures) has been revised to clarify that if an SEA, in
resolving a complaint, finds a failure to provide appropriate
services to a child with a disability, the SEA must address (1) how
to remediate the denial of those services, including, as
appropriate, the awarding of monetary reimbursement or other
corrective action appropriate to the needs of the child; and (2)
appropriate future provision of services for all children with
disabilities.
    <bullet> Proposed Sec. 300.661 (Minimum State complaint
procedures) has been revised to clarify that (1) if an issue in a
complaint is the subject of a due process hearing, that issue (but
not any issue outside of the hearing) would be set aside until the
conclusion of the hearing, (2) the decision on an issue in a due
process hearing would be binding in a State complaint resolution,
and (3) a public agency's failure to implement a due process
decision would have to be resolved by the SEA.

8. Changes in Subpart G--Allocation of Funds; Reports

    <bullet> Proposed Sec. 300.712 (Allocations to LEAs) has been
revised to clarify that, if LEAs are created, combined, or
otherwise reconfigured subsequent to the base year (i.e. the year
prior to the year in which the appropriation under section 611(j)
of the Act exceeds $4,924,672,200), the State is required to
provide the LEAs involved with revised base allocations calculated
on the basis of the relative numbers of children with disabilities
aged 3 through 21, or 6 through 21, depending on whether the State
serves all children with disabilities aged 3 through 5 currently
provided special education by each of the affected LEAs. The
section also has been expanded to state that, 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.
    <bullet> Proposed Sec. 300.713 (Former Chapter 1 State
agencies) has been revised to clarify that the amount each former
Chapter 1 State agency must receive is the minimum amount.
    <bullet> Proposed Sec. 300.751 (Annual report of children
served) has been revised to clarify that the Secretary may permit
States to collect certain data through sampling.

9. Changes to Part 303

    <bullet> Proposed Sec. 303.510 (Adopting State complaint
procedures) has been revised to clarify that if a lead agency, in
resolving a complaint, finds a failure to provide appropriate
services, it must address (1) how to remediate the denial of those
services, including, as appropriate, the awarding of monetary
reimbursement or other corrective action appropriate to the needs
of the child and the child's family, as well as (2) appropriate
future provision of services for all infants and toddlers with
disabilities and their families.     <bullet> Proposed Sec. 303.512
(Minimum State complaint procedures) has been revised to clarify
that (1) if an issue in a complaint is the subject of a due process
hearing, that issue (but not any issue outside of the hearing)
would be set aside until the conclusion of the hearing, (2) the
decision on an issue in a due process hearing would be binding in
a State complaint resolution, and (3) a public agency's or private
service provider's failure to implement a due process decision must
be resolved by the lead agency.
Role of the Regular Education Teacher on the IEP Team
    The regulations at Secs. 300.344(a)(2) and 300.346(d) repeat
the statutory provisions regarding the role of the regular
education teacher in developing, reviewing, and revising IEPs. The
extent of the regular education teacher's involvement in the IEP
process would be determined on a case by case basis and is
addressed in question 24 in Appendix A.

Discipline for Children With Disabilities

Some Key Changes in the Regulations Regarding Discipline for
Children With Disabilities

    One of the major areas of concern in public comment on the NPRM
was the issue of discipline for children with disabilities under
the Act. The previous list of major changes briefly describes the
major changes from the NPRM that are reflected in these final
regulations regarding discipline under Secs. 300.121(d), and
300.519-529. These changes reflect very serious consideration of
the concerns of school administrators and teachers regarding
preserving school safety and order without unduly burdensome
requirements, while helping schools respond appropriately to a
child's behavior, promoting the use of appropriate behavioral
interventions, and increasing the likelihood of success in school
and school completion for some of our most at-risk students.
    The comments also revealed some confusion about several of the
provisions of the Act and the NPRM regarding discipline.
Limitations in the statute and regulations about the amount of time
that a child can be removed from his or her current placement only
come into play when schools are not able to work out an appropriate
placement with the parents of a child who has violated a school
code of conduct. In many, many cases involving discipline for
children with disabilities, schools and parents are able to reach
an agreement about how to respond to the child's behavior. In
addition, neither the statute or the proposed or final regulations
impose absolute limits on the number of days that a child can be
removed from his or her current placement in a school year. As was
the case in the past, school personnel have the ability to remove
a child for short periods of time as long as the removal does not
constitute a change of placement. To help make this point, the
regulations include a new provision (Sec. 300.519) that reflects
the Department's longstanding definition of what constitutes a
``change of placement'' in the disciplinary context. In this
regulation, a disciplinary ``change of placement'' occurs when a
child is removed for more than 10 consecutive school days or when
the child is subjected to a series of removals that constitute a
pattern because they cumulate to more than 10 school days in a
school year, and because of factors such as the length of the
removal, the total amount of time the child is removed, and the
proximity of the removals to one another.
(Sec. 300.519). Changes also have been made to Sec. 300.520(a)(1)
to make clear that multiple short-term removals (i.e., 10
consecutive days or less) for separate incidents of misconduct are
permitted, to the extent removals would be applied

[[Page 12414]]

to children without disabilities as long as those removals do not
constitute a change of placement, as defined in Sec. 300.519.    
Instead of requiring that services begin on the eleventh day in a
school year that a child is removed from his or her current
educational placement, as was proposed in the NPRM, the regulations
take a more flexible approach. If the removal is pursuant to school
personnel's authority to remove for not more than 10 consecutive
days
(Sec. 300.520(a)(1)) or for behavior that is not a manifestation of
the child's disability, consistent with Sec. 300.524 services must
be provided to the extent necessary to enable the child to continue
to appropriately progress in the general curriculum and
appropriately advance toward the goals in his or her IEP. (Sec.
300.121(d)).     If the removal is by school personnel under their
authority to remove for not more than 10 school days at a time
(Sec. 300.520(a)(1)), school personnel, in consultation with the
child's special education teacher, make the determination regarding
the extent to which services are necessary to meet this standard.
(Sec. 300.121(d)(3)(i)). On the other hand, if the removal
constitutes a change in placement, the child's IEP team must be
involved. If the removal is pursuant to the authority to discipline
a child with a disability to the same extent as a nondisabled child
for behavior that has been determined to not be a manifestation of
the child's disability (Sec. 300.524), the child's IEP team makes
the determination regarding the extent to which services are
necessary to meet this standard. (Sec. 300.121(d)(3)(ii)). If the
child is being placed in an interim alternative educational setting
for up to 45 days because of certain weapon or drug offenses (Sec.
300.520(a)(2)) or because a hearing officer has determined that
there is a substantial likelihood of injury to the child or others
if the child remains in his or her current placement (Sec.
300.521), the services to be provided to the child are determined
based on Sec. 300.522. In these cases, the interim alternative
educational setting must be selected so as to enable the child to
continue to progress in the general curriculum, although in another
setting, and to continue to receive those services and
modifications, including those described in the child's current
IEP, that will enable the child to meet the goals set out in that
IEP and include services and modifications to address the behavior.
(Secs. 300.121(d)(2)(ii) and 300.522).
    Under these regulations, IEP team meetings regarding functional
behavioral assessments and behavioral intervention plans will only
be required within 10 business days of (1) when the child is first
removed for more than 10 school days in a school year, and (2)
whenever the child is subjected to a disciplinary change of
placement.
(Sec. 300.520(b)(1)). In other subsequent removals in a school year
of a child who already has a functional behavioral assessment and
behavioral intervention plan, the IEP team members can review the
behavioral intervention plan and its implementation in light of the
child's behavior, without a meeting, and only meet if one or more
of the team members believe that the plan or its implementation
need modification. (Sec. 300.520(c)).
    These final regulations also provide that manifestation
determinations, and the IEP team meetings to make these
determinations, are only required when a child is subjected to a
disciplinary change of placement. (Sec. 300.523(a)). These changes
should eliminate the need for unnecessary, repetitive IEP team
meetings. The discussion of comments regarding the disciplinary
sections of the regulations in Attachment 1 provides a fuller
explanation of the regulatory provisions regarding discipline.

Answers to Some Commonly Asked Questions About Discipline Under
IDEA

    Prior to the amendments to the Education of the Handicapped Act
(EHA) in 1975, (the EHA is today known as IDEA), the special
educational needs of children with disabilities were not being met.
More than half of the children with disabilities in the United
States did not receive appropriate educational services, and a
million children with disabilities were excluded entirely from the
public school system. All too often, school officials used
disciplinary measures to exclude children with disabilities from
education simply because they were different or more difficult to
educate than nondisabled children.
    It is against that backdrop that Pub. L. 94-142 was developed,
with one of its primary goals being the elimination of any
exclusion of children with disabilities from education. In the IDEA
reauthorization of 1997, Congress recognized that in certain
instances school districts needed increased flexibility to deal
with safety issues while maintaining needed due process protections
in the IDEA. The following questions and answers address: (1) the
proactive requirements of the IDEA designed to ensure that children
with disabilities will be able to adhere to school rules; (2) IDEA
provisions regarding removal of students from their current
placement when their behavior significantly violates school
discipline codes; and (3) the requirement of the IDEA for the
continuation of services for children with disabilities who are
disciplined.
1. Why are there special rules about discipline for children with
disabilities?
    The protections in the IDEA regarding discipline are designed
to prevent the type of often speculative and subjective decision
making by school officials that led to widespread abuses of the
rights of children with disabilities to an appropriate education in
the past. For example, in Mills v. Board of Education of the
District of Columbia (1972) the court recognized that many children
were being excluded entirely from education merely because they had
been identified as having a behavior disorder. It is important to
keep in mind, however, that these protections do not prevent school
officials from maintaining a learning environment that is safe and
conducive to learning for all children. Well run schools that have
good leadership, well-trained teachers and high standards for all
students have fewer discipline problems than schools that do not.
    It is also extremely important to keep in mind that the
provisions of the statute and regulation concerning the amount of
time a child with a disability can be removed from his or her
regular placement for disciplinary reasons are only called into
play if the removal constitutes a change of placement and the
parent objects to proposed action by school officials (or objects
to a refusal by school officials to take an action) and requests a
due process hearing. The discipline rules concerning the amount of
time a child can be removed from his or her current placement
essentially are exceptions to the generally applicable requirement
that a child remains in his or her current placement during the
pendency of due process, and subsequent judicial, proceedings.
(See, section 615(j) of the Act and Sec. 300.514.) If school
officials believe that a child's placement is inappropriate they
can work with the child's parent through the IEP and placement
processes to come up with an appropriate placement for the child
that will meet the needs of the child and result in his or her
improved learning and the learning of others and ensure a safe
environment. In addition to the other measures discussed in the
following questions, the discipline provisions of the IDEA allow
responsible and appropriate changes in placement of children with
disabilities when their parents do not object.

[[Page 12415]]

2. Does IDEA contain provisions that promote proactive up-front
measures that will help prevent discipline problems?
    Yes. Research has shown that if teachers and other school
personnel have the knowledge and expertise to provide appropriate
behavioral interventions, future behavior problems can be greatly
diminished if not totally avoided. Appropriate staff development
activities and improved pre-service training programs at the
university level with emphasis in the area of early identification
of reading and behavior problems and appropriate interventions can
help to ensure that regular and special education teachers and
other school personnel have the needed knowledge and skills.
Changes in the IDEA emphasize the need of State and local
educational agencies to work to ensure that superintendents,
principals, teachers and other school personnel are equipped with
the knowledge and skills that will enable them to appropriately
address behavior problems when they occur.
    In addition, the IDEA includes provisions that focus on
individual children. If a child has behavior problems that
interfere with his or her learning or the learning of others, the
IEP team must consider whether strategies, including positive
behavioral interventions, strategies, and supports are needed to
address the behavior. If the IEP team determines that such services
are needed, they must be added to the IEP and must be provided. The
Department has supported a number of activities such as training
institutes, conferences, clearinghouses and other technical
assistance and research activities on this topic to help school
personnel appropriately address behavioral concerns for children
with disabilities.
3. Can a child with a disability who is experiencing significant
disciplinary problems be removed to another placement?
    Yes. Even when school personnel are appropriately trained and
are proactively addressing children's behavior issues through
positive behavioral intervention supports, interventions, and
strategies, there may be instances when a child must be removed
from his or her current placement. When there is agreement between
school personnel and the child's parents regarding a change in
placement (as there frequently is), there will be no need to bring
into play the discipline provisions of the law. Even if agreement
is not possible, in general, school officials can remove any child
with a disability from his or her regular school placement for up
to 10 school days at a time, even over the parents' objections,
whenever discipline is appropriate and is administered consistent
with the treatment of nondisabled children. Sec. 300.520(a)(1).
However, school officials cannot use this authority to repeatedly
remove a child from his or her current placement if that series of
removals means the child is removed for more than 10 school days in
a school year and factors such as the length of each removal, the
total amount of time that the child is removed, and the proximity
of the removals to one another lead to the conclusion that there
has been a change in placement. Secs. 300.519-300.520(a)(1). There
is no specific limit on the number of days in a school year that a
child with a disability can be removed from his or her current
placement. After a child is removed from his or her current
placement for more than 10 cumulative school days in a school year,
services must be provided to the extent required under Sec.
300.121(d), which concerns the provision of FAPE for children
suspended or expelled from school.
    If the child's parents do not agree to a change of placement,
school authorities can unilaterally remove a child with a
disability from the child's regular placement for up to 45 days at
a time if the child has brought a weapon to school or to a school
function, or knowingly possessed or used illegal drugs or sold or
solicited the sale of controlled substances while at school or a
school function. Sec. 300.520(a)(2). In addition, if school
officials believe that a child with a disability is substantially
likely to injure self or others in the child's regular placement,
they can ask an impartial hearing officer to order that the child
be removed to an interim alternative educational setting for a
period of up to 45 days. Sec. 300.521. If at the end of an interim
alternative educational placement of up to 45 days, school
officials believe that it would be dangerous to return the child to
the regular placement because the child would be substantially
likely to injure self or others in that placement, they can ask an
impartial hearing officer to order that the child remain in an
interim alternative educational setting for an additional 45 days.
Sec. 300.526(c). If necessary, school officials can also request
subsequent extensions of these interim alternative educational
settings for up to 45 days at a time if school officials continue
to believe that the child would be substantially likely to injure
self or others if returned to his or her regular placement. Sec.
300.526(c)(4).
    Additionally, at any time, school officials may seek to obtain
a court order to remove a child with a disability from school or to
change a child's current educational placement if they believe that
maintaining the child in the current educational placement is
substantially likely to result in injury to the child or others.  
  Finally, school officials can report crimes committed by children
with disabilities to appropriate law enforcement authorities to the
same extent as they do for crimes committed by nondisabled
students. Sec. 300.529.
4. Do the IDEA regulations mean that a child with a disability
cannot be removed from his or her current placement for more than
ten school days in a school year?
    No. School authorities may unilaterally suspend a child with a
disability from the child's regular placement for not more than 10
school days at a time for any violation of school rules if
nondisabled children would be subjected to removal for the same
offense. They also may implement additional suspensions of up to
ten school days at a time in that same school year for separate
incidents of misconduct if educational services are provided for
the remainder of the removals, to the extent required under Sec.
300.121(d). (See the next question regarding the provision of
educational services during periods of removal.) However, school
authorities may not remove a child in a series of short-term
suspensions (up to 10 school days at a time), if these suspensions
constitute a pattern that is a change of placement because the
removals cumulate to more than 10 school days in a school year and
because of factors such as the length of each removal, the total
amount of time the child is removed, and the proximity of the
removals to one another. But not all series of removals that
cumulate to more than 10 school days in a school year would
constitute a pattern under Sec. 300.519(b).
    Of course, in the case of less serious infractions, schools can
address the misconduct through appropriate instructional and/or
related services, including conflict management, behavior
management strategies, and measures such as study carrels, time-
outs, and restrictions in privileges, so long as they are not
inconsistent with the child's IEP. If a child's IEP or behavior
intervention plan addresses a particular behavior, it generally
would be inappropriate to utilize some other

[[Page 12416]]

response, such as suspension, to that behavior.
5. What must a school district do when removing a child with a
disability from his or her current placement for the eleventh
cumulative day in a school year?
    Beginning on the eleventh cumulative day in a school year that
a child with a disability is removed from his or her current
placement, the school district must provide those services that
school personnel (for example, the school administrator or other
appropriate school personnel) in consultation with the child's
special education teacher determine to be necessary to enable the
child to appropriately progress in the general curriculum and
appropriately advance toward achieving the goals set out in the
child's IEP. School personnel would determine where those services
would be provided. This means that for the remainder of the removal
that includes the eleventh day, and for any subsequent removals,
services must be provided to the extent determined necessary, while
the removal continues. Sec. 300.121(d)(2) and (3).     Not later
than 10 business days after removing a child with a disability for
more than 10 school days in a school year, the school district must
convene an IEP team meeting to develop a behavioral assessment plan
if the district has not already conducted a functional behavioral
assessment and implemented a behavioral intervention plan for the
child. If a child with a disability who is being removed for the
eleventh cumulative school day in a school year already has a
behavioral intervention plan, the school district must convene the
IEP team (either before or not later than 10 business days after
first removing the child for more than 10 school days in a school
year) to review the plan and its implementation, and modify the
plan and its implementation as necessary to address the behavior.
Sec. 300.520(b).     A manifestation determination would not be
required unless the removal that includes the eleventh cumulative
school day of removal in a school year is a change of placement.
Sec. 300.523(a).
6. Does the IDEA or its regulations mean that a child with a
disability can never be suspended for more than 10 school days at
a time or expelled for behavior that is not a manifestation of his
or her disability?
    No. If the IEP team concludes that the child's behavior was not
a manifestation of the child's disability, the child can be
disciplined in the same manner as nondisabled children, except that
appropriate educational services must be provided. Sec. 300.524(a).
This means that if nondisabled children are long-term suspended or
expelled for a particular violation of school rules, the child with
disabilities may also be long-term suspended or expelled.
Educational services must be provided to the extent the child's IEP
team determines necessary to enable the child to appropriately
progress in the general curriculum and appropriately advance toward
the goals set out in the child's IEP. Sec. 300.121(d)(2).
7. Does the statutory language ``carries a weapon to school or to
a school function'' cover instances in which the child acquires a
weapon at school?
    Yes. Although the statutory language ``carries a weapon to
school or to a school function'' could be viewed as ambiguous on
this point, in light of the clear intent of Congress in the Act to
expand the authority of school personnel to immediately address
school weapons offenses, the Department's opinion is that this
language also covers instances in which the child is found to have
a weapon that he or she obtained while at school.

Goals 2000: Educate America Act

    The Goals 2000: Educate America Act (Goals 2000) focuses the
Nation's education reform efforts on the eight National Education
Goals and provides a framework for meeting them. Goals 2000
promotes new partnerships to strengthen schools and expands the
Department's capacities for helping communities to exchange ideas
and obtain information needed to achieve the goals.
    These final regulations address the following National
Education Goals:
    <bullet> All children in America will start school ready to
learn.     <bullet> The high school graduation rate will increase
to at least 90 percent.
    <bullet> All students will leave grades 4, 8, and 12 having
demonstrated competency in challenging subject matter, including
English, mathematics, science, foreign languages, civics and
government, economics, arts, history, and geography; and every
school in America will ensure that all students learn to use their
minds well, so they may be prepared for responsible citizenship,
further learning, and productive employment in our Nation's modern
economy.
    <bullet> United States students will be first in the world in
mathematics and science achievement.
    <bullet> Every adult American will be literate and will possess
the knowledge and skills necessary to compete in a global economy
and exercise the rights and responsibilities of citizenship.
    <bullet> Every school in the United States will be free of
drugs, violence, and the unauthorized presence of firearms and
alcohol and will offer a disciplined environment conducive to
learning.     <bullet> The Nation's teaching force will have access
to programs for the continued improvement of their professional
skills and the opportunity to acquire the knowledge and skills
needed to instruct and prepare all American students for the next
century.
    <bullet> Every school will promote partnerships that will
increase parental involvement and participation in promoting the
social, emotional, and academic growth of children.

Executive Order 12866

    This is a significant regulatory action under section 3(f)(1)
of Executive Order 12866 and, therefore, these final regulations
have been reviewed by the Office of Management and Budget in
accordance with that order. Because it has been determined that
these regulations are economically significant under the order, the
Department has conducted an economic analysis, which is provided in
Attachment 2. This regulation has also been determined to be a
major rule under the Small Business Regulatory Enforcement Fairness
Act of 1996.
    These final regulations implement changes made to the
Individuals with Disabilities Education Act by the IDEA Amendments
of 1997 and make other changes determined by the Secretary as
necessary for
administering this program effectively and efficiently.
    The IDEA Amendments of 1997 made a number of significant
changes to the law. While retaining the basic rights and
protections that have been in the law since 1975, the amendments
strengthened the focus of the law on improving results for children
with disabilities. The amendments accomplished this through changes
that promote the early identification of, and provision of services
to, children with disabilities, the development of individualized
education programs that enhance the participation of children with
disabilities in the general curriculum, the education of children
with disabilities with nondisabled children, higher expectations
for children with disabilities and accountability for their
educational results, the involvement of parents in their children's
education, and reducing unnecessary paperwork and other burdens to
better direct resources to improved teaching and learning.

[[Page 12417]]

    All of these objectives are reflected in these final
regulations, which largely reflect the changes to the statute made
by IDEA Amendments of 1997.
    In assessing the potential costs and benefits--both
quantitative and qualitative--of these final regulations, the
Secretary has determined that the benefits of these final
regulations justify the costs.
    The Secretary has also determined that this regulatory action
does not unduly interfere with State, local, and tribal governments
in the exercise of their governmental functions.

Paperwork Reduction Act of 1995

    Sections 300.110, 300.121, 300.123-300.130, 300.133, 300.135-
300.137, 300.141-300.145, 300.155-300.156, 300.180, 300.192,
300.220-300.221, 300.240, 300.280-300.281, 300.284, 300.341,
300.343, 300.345, 300.347, 300.380-300.382, 300.402,
300.482-300.483, 300.503-300.504, 300.506, 300.508,
300.510-300.511, 300.532, 300.535, 300.543, 300.561-300.563,
300.565, 300.569, 300.571-300.572, 300.574-300.575, 300.589,
300.600, 300.653, 300.660-300.662, 300.750-300.751, 300.754,
303.403, 303.510-303.512, and 303.520 contain information
collection requirements. As required by the Paperwork Reduction Act
of 1995 (44 U.S.C. 3507(d)), the Department of Education has
submitted a copy of these sections to the Office of Management and
Budget (OMB) for its review.
    Collection of Information: Assistance for Education of All
Children with Disabilities: Complaint Procedures, Secs.
300.600-300.662 and 303.510-303.512. Each SEA is required to adopt
written procedures for resolving any complaint that meets the
requirements in these proposed regulations.
    Annual reporting and recordkeeping burden for this collection
of information is estimated to average 10 hours to issue a written
decision to a complaint. There is an estimated average annual total
of 1079 complaints submitted for processing. Thus, the total annual
reporting and recordkeeping burden for this collection is estimated
to be 10,790 hours.
    Collection of Information: Assistance for Education of All
Children with Disabilities: State Eligibility, Secs. 300.110,
300.121, 300.123-300.130, 300.133, 300.135-300.137,
300.141-300.145, 300.155-300.156, 300.280-300.281, 300.284,
300.380-300.382, 300.402, 300.482-300.483, 300.510-300.511,
300.589, 300.600, 300.653, 303.403, and 303.520. Each State must
have on file with the Secretary policies and procedures to
demonstrate to the satisfaction of the Secretary that the State
meets the specified conditions for assistance under this part. In
the past, States were required to submit State plans every three
years with one-third of the entities submitting plans to the
Secretary each year. With the new statute, States will no longer be
required to submit State plans. Rather, the policies and procedures
currently approved by, and on file with, the Secretary that are not
inconsistent with the IDEA Amendments of 1997 will remain in effect
unless amended.
    Annual reporting and recordkeeping burden for this collection
of information is estimated to average 30 hours for each response
for 58 respondents, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Thus, the total annual reporting and recordkeeping burden for this
collection is estimated to be 1740 hours.
    Collection of Information: Assistance for Education of All
Children with Disabilities: LEA Eligibility, Secs. 300.180,
300.192, 300.220-300.221, 300.240, 300.341, 300.343, 300.345,
300.347, 500.503-300.504, 300.532, 300.535, 300.543,
300.561-300.563, 300.565, 300.569, 300.571-300.572, and
300.574-300.575. Each local educational agency (LEA) and each State
agency must have on file with the State educational agency (SEA)
information to demonstrate that the agency meets the specified
requirements for assistance under this part. In the past, each LEA
was required to submit a periodic application to the SEA in order
to establish its eligibility for assistance under this part. Under
the new statutory changes, LEAs are no longer required to submit
such applications. Rather, the policies and procedures currently
approved by, and on file with, the SEA that are not inconsistent
with the IDEA Amendments of 1997 will remain in effect unless
amended.
    Annual reporting and recordkeeping burden for this collection
of information is estimated to average 2 hours for each response
for 15,376 respondents, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Thus, the total annual reporting and
recordkeeping burden for this collection is estimated to be 30,752
hours. The Secretary invites comment on the estimated time it will
take for LEAs to meet this reporting and recordkeeping requirement.
    Collection of Information: Assistance for Education of All
Children with Disabilities: List of Hearing Officers and Mediators,
Secs. 300.506 and 300.508. Each State must maintain a list of
individuals who are qualified mediators and knowledgeable in laws
and regulations relating to the provision of special education and
related services. Each public agency must, also, keep a list of the
persons who serve as hearing officers.
    Annual reporting and recordkeeping burden for this collection
of information is estimated to average 25 hours for each response
for 58 respondents, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Thus, the total annual reporting and recordkeeping burden for this
collection is estimated to be 3050 hours.
    Collection of Information: Assistance for Education of All
Children with Disabilities: Report of Children and Youth with
Disabilities Receiving Special Education, Secs. 300.750-300.751,
and 300.754. Each SEA must submit an annual report of children
served.
    Annual reporting and recordkeeping burden for this collection
of information is estimated to average 262 hours for each response
for 58 respondents, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Thus, the total annual reporting and recordkeeping burden for this
collection is estimated to be 15,196 hours.
    Organizations and individuals desiring to submit comments on
the information collection requirements should direct them to the
Office of Information and Regulatory Affairs, OMB, room 10235, New
Executive Office Building, Washington, DC 20503; Attention: Desk
Officer for U.S. Department of Education.
    The Department considers comments by the public on these
proposed collections of information in--
    <bullet> Evaluating whether the proposed collections of
information are necessary for the proper performance of the
functions of the Department, including whether the information will
have practical utility;
    <bullet> Evaluating the accuracy of the Department's estimate
of the burden of the proposed collections of information, including
the validity of the methodology and assumptions used;
    <bullet> Enhancing the quality, usefulness, and clarity of the
information to be collected; and

[[Page 12418]]

    <bullet> Minimizing the burden of the collection of information
on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other
technological collection techniques or other forms of information
technology; e.g., permitting electronic submission of responses.
    OMB is required to make a decision concerning the collections
of information contained in these proposed regulations between 30
and 60 days after publication of this document in the Federal
Register. Therefore, a comment to OMB is best assured of having its
full effect if OMB receives it within 30 days of publication. This
does not affect the deadline for the public to comment to the
Department on the proposed regulations.

Regulatory Flexibility Act Certification

    The Secretary certifies that these final regulations will not
have a significant economic impact on a substantial number of small
entities. The small entities that would be affected by these
regulations are small local educational agencies receiving Federal
funds under this program. These regulations would not have a
significant economic impact on the small LEAs affected because
these regulations impose minimal requirements beyond those that
would otherwise be required by the statute. In addition, increased
costs imposed by these regulations on LEAs are expected to be
offset by savings to be realized by LEAs.

Intergovernmental Review

    This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective of the
Executive order is to foster an intergovernmental partnership and
a strengthened federalism by relying on processes developed by
State and local governments for coordination and review of proposed
Federal financial assistance.
    In accordance with the order, this document is intended to
provide early notification of the Department's specific plans and
actions for this program.

Assessment of Educational Impact

    In the NPRM published on October 22, 1997, the Secretary
requested comments on whether the proposed regulations would
require transmission of information that is being gathered by or is
available from any other agency or authority of the United States.
    Based on the response to the NPRM and on its own review, the
Department has determined that the regulations in this document do
not require transmission of information that is being gathered by
or is available from any other agency or authority of the United
States.

Electronic Access to This Document

    Anyone may also view this document, as well as all other
Department of Education documents published in the Federal
Register, in text or portable document format (pdf) on the World
Wide Web at either of the following sites:
http://gcs.ed.gov/fedreg.htm

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

    To use the pdf you must have the Adobe Acrobat Reader Program
with Search, which is available free at either of the previous
sites. If you have questions about using the pdf, call the U.S.
Government Printing Office toll free at 1-888-293-6498.
    Anyone may also view these documents in text copy only on an
electronic bulletin board of the Department. Telephone: (202)
219-1511 or, toll free, 1-800-222-4922. The documents are located
under Option G--Files/Announcements, Bulletins and Press Releases.

    Note: The official version of this document is the document
published in the Federal Register.

List of Subjects

34 CFR Part 300

    Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Equal
educational opportunity, Grant programs-- education, Privacy,
Private schools, Reporting and recordkeeping requirements.

34 CFR Part 303

    Education of individuals with disabilities, Grant programs--
education, Infants and children, Reporting and recordkeeping
requirements.

    Dated: March 4, 1999.
Richard W. Riley,
Secretary of Education.

(Catalog of Federal Domestic Assistance Number: 84.027 Assistance
to States for the Education of Children with Disabilities, and
84.181 Early Intervention Program for Infants and Toddlers with
Disabilities)

    The Secretary amends Title 34 of the Code of Federal
Regulations by revising part 300 and amending part 303 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, Applicability, and Regulations That Apply to This Program

Sec.
300.1 Purposes.
300.2 Applicability of this part to State, local, and private
agencies.

Definitions Used in This Part

300.3  Regulations that apply.
300.4  Act.
300.5  Assistive technology device.
300.6  Assistive technology service.
300.7  Child with a disability.
300.8  Consent.
300.9  Day; business day; school day.
300.10  Educational service agency.
300.11  Equipment.
300.12  Evaluation.
300.13  Free appropriate public education.
300.14  Include.
300.15  Individualized education program.
300.16  Individualized education program team.
300.17  Individualized family service plan.
300.18  Local educational agency.
300.19  Native language.
300.20  Parent.
300.21  Personally identifiable.
300.22  Public agency.
300.23  Qualified personnel.
300.24  Related services.
300.25  Secondary school.
300.26  Special education.
300.27  State.
300.28  Supplementary aids and services.
300.29  Transition services.
300.30  Definitions in EDGAR.

Subpart B--State and Local Eligibility

State Eligibility--General

300.110  Condition of assistance.
300.111  Exception for prior State policies and procedures on file
with the Secretary.
300.112  Amendments to State policies and procedures.
300.113  Approval by the Secretary.
300.114--300.120  [Reserved]

State Eligibility--Specific Conditions

300.121  Free appropriate public education (FAPE).
300.122  Exception to FAPE for certain ages.
300.123  Full educational opportunity goal (FEOG).
300.124  FEOG--timetable.
300.125  Child find.
300.126  Procedures for evaluation and determination of
eligibility. 300.127  Confidentiality of personally identifiable
information. 300.128  Individualized education programs.
300.129  Procedural safeguards.
300.130  Least restrictive environment.
300.131  [Reserved]
300.132  Transition of children from Part C to preschool programs.
300.133  Children in private schools.
300.134  [Reserved]

[[Page 12419]]

300.135  Comprehensive system of personnel development.
300.136  Personnel standards.
300.137  Performance goals and indicators.
300.138  Participation in assessments.
300.139  Reports relating to assessments.
300.140  [Reserved]
300.141  SEA responsibility for general supervision.
300.142  Methods of ensuring services.
300.143  SEA implementation of procedural safeguards.
300.144  Hearings relating to LEA eligibility.
300.145  Recovery of funds for misclassified children.
300.146  Suspension and expulsion rates.
300.147  Additional information if SEA provides direct services.
300.148  Public participation.
300.149  [Reserved]
300.150  State advisory panel.
300.151  [Reserved]
300.152  Prohibition against commingling.
300.153  State-level nonsupplanting.
300.154  Maintenance of State financial support.
300.155  Policies and procedures for use of Part B funds.
300.156  Annual description of use of Part B funds.

LEA and State Agency Eligibility--General

300.180  Condition of assistance.
300.181  Exception for prior LEA or State agency policies and
procedures on file with the SEA.
300.182  Amendments to LEA policies and procedures.
300.183  [Reserved]
300.184  Excess cost requirement.
300.185  Meeting the excess cost requirement.
300.186--300.189  [Reserved]
300.190  Joint establishment of eligibility.
300.191  [Reserved]
300.192  Requirements for establishing eligibility.
300.193  [Reserved]
300.194  State agency eligibility.
300.195  [Reserved]
300.196   Notification of LEA or State agency in case of
ineligibility.
300.197  LEA and State agency compliance.

LEA and State Agency Eligibility--Specific Conditions

300.220  Consistency with State policies.
300.221  Implementation of CSPD.
300.222--300.229  [Reserved]
300.230  Use of amounts.
300.231  Maintenance of effort.
300.232  Exception to maintenance of effort.
300.233  Treatment of federal funds in certain fiscal years.
300.234  Schoolwide programs under title I of the ESEA.
300.235  Permissive use of funds.
300.236--300.239  [Reserved]
300.240  Information for SEA.
300.241  Treatment of charter schools and their students.
300.242  Public information.
300.243  [Reserved]
300.244  Coordinated services system.

School-Based Improvement Plan

300.245  School-based improvement plan.
300.246  Plan requirements.
300.247  Responsibilities of the LEA.
300.248  Limitation.
300.249  Additional requirements.
300.250  Extension of plan.

Secretary of the Interior--Eligibility

300.260  Submission of information.
300.261  Public participation.
300.262  Use of Part B funds.
300.263  Plan for coordination of services.
300.264  Definitions.
300.265  Establishment of advisory board.
300.266  Annual report by advisory board.
300.267  Applicable regulations.

Public Participation

300.280  Public hearings before adopting State policies and
procedures.
300.281  Notice.
300.282  Opportunity to participate; comment period.
300.283  Review of public comments before adopting policies and
procedures.
300.284  Publication and availability of approved policies and
procedures.

Subpart C--Services

Free Appropriate Public Education

300.300  Provision of FAPE.
300.301  FAPE--methods and payments.
300.302  Residential placement.
300.303  Proper functioning of hearing aids.
300.304  Full educational opportunity goal.
300.305  Program options.
300.306  Nonacademic services.
300.307  Physical education.
300.308  Assistive technology.
300.309  Extended school year services.
300.310  [Reserved]
300.311  FAPE requirements for students with disabilities in adult
prisons.
300.312  Children with disabilities in public charter schools.
300.313  Children experiencing developmental delays.

Evaluations and Reevaluations

300.320  Initial evaluations.
300.321   Reevaluations.
300.322--300.324  [Reserved]

Individualized Education Programs

300.340  Definitions related to IEPs.
300.341  Responsibility of SEA and other public agencies for IEPs.
300.342  When IEPs must be in effect.
300.343  IEP Meetings.
300.344  IEP team.
300.345  Parent participation.
300.346  Development, review, and revision of IEP.
300.347  Content of IEP.
300.348  Agency responsibilities for transition services.
300.349  Private school placements by public agencies.
300.350  IEPs--accountability.

Direct Services by the Sea

300.360  Use of LEA allocation for direct services.
300.361  Nature and location of services.
300.362--300.369  [Reserved]
300.370  Use of SEA allocations.
300.371  [Reserved]
300.372  Nonapplicability of requirements that prohibit commingling
and supplanting of funds.

Comprehensive System of Personnel Development (CSPD)

300.380  General CSPD requirements.
300.381  Adequate supply of qualified personnel.
300.382  Improvement strategies.
300.383--300.387  [Reserved]

Subpart D--Children in Private Schools

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

300.400  Applicability of Secs. 300.400-300.402.
300.401  Responsibility of State educational agency.
300.402  Implementation by State educational agency.

Children With Disabilities Enrolled by Their Parents in Private
Schools When FAPE is at Issue

300.403  Placement of children by parents if FAPE is at issue.

Children With Disabilities Enrolled by Their Parents in Private
Schools

300.450  Definition of ``private school children with
disabilities.''
300.451  Child find for private school children with disabilities.
300.452  Provision of services--basic requirement.
300.453  Expenditures.
300.454  Services determined.
300.455  Services provided.
300.456  Location of services; transportation.
300.457  Complaints.
300.458  Separate classes prohibited.
300.459  Requirement that funds not benefit a private school.
300.460  Use of public school personnel.
300.461  Use of private school personnel.
300.462  Requirements concerning property, equipment, and supplies
for the benefit of private school children with disabilities.

Procedures for By-Pass

300.480  By-pass--general.
300.481  Provisions for services under a by-pass.
300.482  Notice of intent to implement a by-pass.
300.483  Request to show cause.
300.484  Show cause hearing.
300.485  Decision.
300.486  Filing requirements.
300.487  Judicial review.

Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children

300.500  General responsibility of public agencies; definitions.
300.501  Opportunity to examine records; parent participation in
meetings.
300.502  Independent educational evaluation.

[[Page 12420]]

300.503  Prior notice by the public agency; content of notice.
300.504  Procedural safeguards notice.
300.505  Parental consent.
300.506  Mediation.
300.507  Impartial due process hearing; parent notice.
300.508  Impartial hearing officer.
300.509  Hearing rights.
300.510  Finality of decision; appeal; impartial review.
300.511  Timelines and convenience of hearings and reviews. 300.512 
Civil action.
300.513  Attorneys' fees.
300.514  Child's status during proceedings.
300.515  Surrogate parents.
300.516  [Reserved]
300.517  Transfer of parental rights at age of majority.

Discipline Procedures

300.519  Change of placement for disciplinary removals.
300.520  Authority of school personnel.
300.521  Authority of hearing officer.
300.522  Determination of setting.
300.523  Manifestation determination review.
300.524  Determination that behavior was not manifestation of
disability.
300.525  Parent appeal.
300.526  Placement during appeals.
300.527  Protections for children not yet eligible for special
education and related services.
300.528  Expedited due process hearings.
300.529  Referral to and action by law enforcement and judicial
authorities.

Procedures for Evaluation and Determination of Eligibility

300.530  General.
300.531  Initial evaluation.
300.532  Evaluation procedures.
300.533  Determination of needed evaluation data.
300.534  Determination of eligibility.
300.535  Procedures for determining eligibility and placement.
300.536  Reevaluation.

Additional Procedures for Evaluating Children With Specific
Learning Disabilities

300.540  Additional team members.
300.541  Criteria for determining the existence of a specific
learning disability.
300.542  Observation.
300.543  Written report.

Least Restrictive Environment (LRE)

300.550  General LRE requirements.
300.551  Continuum of alternative placements.
300.552  Placements.
300.553  Nonacademic settings.
300.554  Children in public or private institutions.
300.555  Technical assistance and training activities.
300.556  Monitoring activities.

Confidentiality of Information

300.560  Definitions.
300.561  Notice to parents.
300.562  Access rights.
300.563  Record of access.
300.564  Records on more than one child.
300.565  List of types and locations of information.
300.566  Fees.
300.567  Amendment of records at parent's request.
300.568  Opportunity for a hearing.
300.569  Result of hearing.
300.570  Hearing procedures.
300.571  Consent.
300.572  Safeguards.
300.573  Destruction of information.
300.574  Children's rights.
300.575  Enforcement.
300.576  Disciplinary information.
300.577  Department use of personally identifiable information.

Department Procedures

300.580  Determination by the Secretary that a State is eligible.
300.581  Notice and hearing before determining that a State is not
eligible.
300.582  Hearing official or panel.
300.583  Hearing procedures.
300.584  Initial decision; final decision.
300.585  Filing requirements.
300.586  Judicial review.
300.587  Enforcement.
300.588  [Reserved]
300.589  Waiver of requirement regarding supplementing and not
supplanting with Part B funds.

Subpart F--State Administration

General

300.600  Responsibility for all educational programs.
300.601  Relation of Part B to other Federal programs.
300.602  State-level activities.

Use of Funds

300.620  Use of funds for State administration.
300.621  Allowable costs.
300.622  Subgrants to LEAs for capacity-building and improvement.
300.623  Amount required for subgrants to LEAs.
300.624  State discretion in awarding subgrants.

State Advisory Panel

300.650  Establishment of advisory panels.
300.651  Membership.
300.652  Advisory panel functions.
300.653  Advisory panel procedures.

State Complaint Procedures

300.660  Adoption of State complaint procedures.
300.661  Minimum State complaint procedures.
300.662  Filing a complaint.

Subpart G--Allocation of Funds; Reports

Allocations

300.700  Special definition of the term ``State.''
300.701  Grants to States.
300.702  Definition.
300.703  Allocations to States.
300.704-300.705  [Reserved]
300.706  Permanent formula.
300.707  Increase in funds.
300.708  Limitation.
300.709  Decrease in funds.
300.710  Allocation for State in which by-pass is implemented for
private school children with disabilities.
300.711  Subgrants to LEAs.
300.712  Allocations to LEAs.
300.713  Former Chapter 1 State agencies.
300.714  Reallocation of LEA funds.
300.715  Payments to the Secretary of the Interior for the
education of Indian children.
300.716  Payments for education and services for Indian children
with disabilities aged 3 through 5.
300.717  Outlying areas and freely associated States.
300.718  Outlying area--definition.
300.719  Limitation for freely associated States.
300.720  Special rule.
300.721  [Reserved]
300.722  Definition.

Reports

300.750  Annual report of children served--report requirement.
300.751  Annual report of children served--information required in
the report.
300.752  Annual report of children served--certification.
300.753  Annual report of children served--criteria for counting
children.
300.754  Annual report of children served--other responsibilities
of the SEA.
300.755  Disproportionality.
300.756  Acquisition of equipment; construction or alteration of
facilities.
Appendix A to Part 300--Notice of Interpretation
Appendix B to Part 300--Index for IDEA--Part B Regulations

    Authority: 20 U.S.C. 1411-1420, unless otherwise noted.

Subpart A--General

Purposes, Applicability, and Regulations That Apply to This Program

Sec. 300.1  Purposes.

    The purposes of this part are--
    (a) To ensure that all children with disabilities have
available to them a free appropriate public education that
emphasizes special education and related services designed to meet
their unique needs and prepare them for employment and independent
living;
    (b) To ensure that the rights of children with disabilities and
their parents are protected;
    (c) To assist States, localities, educational service agencies,
and Federal agencies to provide for the education of all children
with disabilities; and
    (d) To assess and ensure the effectiveness of efforts to
educate children with disabilities.

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

[[Page 12421]]

Sec. 300.2  Applicability of this part to State, local, and private
agencies.

    (a) States. This part applies to each State that receives
payments under Part B of the Act.
    (b) Public agencies within the State. The provisions of this
part--    (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); and
    (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.     (c) Private schools and facilities. Each public
agency in the State is responsible for ensuring that the rights and
protections under Part B of the Act are given to children with
disabilities--
    (1) Referred to or placed in private schools and facilities by
that public agency; or
    (2) Placed in private schools by their parents under the
provisions of Sec. 300.403(c).

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

Sec. 300.3  Regulations that apply.

    The following regulations apply to this program:
    (a) 34 CFR part 76 (State-Administered Programs) except for
Secs. 76.125-76.137 and 76.650-76.662.
    (b) 34 CFR part 77 (Definitions).
    (c) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
    (d) 34 CFR part 80 (Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments). 
   (e) 34 CFR part 81 (General Education Provisions Act--
Enforcement).     (f) 34 CFR part 82 (New Restrictions on
Lobbying).
    (g) 34 CFR part 85 (Government-wide Debarment and Suspension
(Nonprocurement) and Government-wide Requirements for Drug-Free
Workplace (Grants)).
    (h) The regulations in this part--34 CFR part 300 (Assistance
for Education of Children with Disabilities).

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

Definitions Used in This Part

Sec. 300.4  Act.

    As used in this part, Act means the Individuals with
Disabilities Education Act (IDEA), as amended.

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

Sec. 300.5  Assistive technology device.

    As used in this part, Assistive technology device means any
item, piece of equipment, or product system, whether acquired
commercially off the shelf, modified, or customized, that is used
to increase, maintain, or improve the functional capabilities of a
child with a disability.

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

Sec. 300.6  Assistive technology service.

    As used in this part, Assistive technology service means any
service that directly assists a child with a disability in the
selection, acquisition, or use of an assistive technology device. 
   The term includes--
    (a) The evaluation of the needs of a child with a disability,
including a functional evaluation of the child in the child's
customary environment;
    (b) Purchasing, leasing, or otherwise providing for the
acquisition of assistive technology devices by children with
disabilities;     (c) Selecting, designing, fitting, customizing,
adapting, applying, maintaining, repairing, or replacing assistive
technology devices;     (d) Coordinating and using other therapies,
interventions, or services with assistive technology devices, such
as those associated with existing education and rehabilitation
plans and programs;     (e) Training or technical assistance for a
child with a disability or, if appropriate, that child's family;
and
    (f) Training or technical assistance for professionals
(including individuals providing education or rehabilitation
services), employers, or other individuals who provide services to,
employ, or are otherwise substantially involved in the major life
functions of that child.

(Authority: 20 U.S.C. 1401(2))

Sec. 300.7  Child with a disability.

    (a) General. (1) As used in this part, the term child with a
disability means a child evaluated in accordance with Secs.
300.530-300.536 as having mental retardation, a hearing impairment
including deafness, a speech or language impairment, a visual
impairment including blindness, serious emotional disturbance
(hereafter referred to as emotional disturbance), an orthopedic
impairment, autism, traumatic brain injury, an other health
impairment, a specific learning disability, deaf-blindness, or
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 Secs. 300.530-300.536, 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 Sec. 300.26(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 3 through 9 experiencing
developmental delays. The term child with a disability for children
aged 3 through 9 may, at the discretion of the State and LEA and in
accordance with
Sec. 300.313, 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 are defined as follows:
    (1)(i) Autism means a developmental disability significantly
affecting verbal and nonverbal communication and social
interaction, generally evident before age 3, that adversely affects
a child's educational performance. Other characteristics often
associated with autism are engagement in repetitive activities and
stereotyped movements, resistance to environmental change or change
in daily routines, and unusual responses to sensory experiences.
The term does not apply if a child's educational performance is
adversely affected primarily because the child has an emotional
disturbance, as defined in paragraph (b)(4) of this section.
    (ii) A child who manifests the characteristics of ``autism''
after age 3 could be diagnosed as having ``autism'' if the criteria
in paragraph (c)(1)(i) of this section are satisfied.

[[Page 12422]]

    (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) Emotional disturbance is defined as follows:
    (i) The term means a condition exhibiting one or more of the
following characteristics over a long period of time and to a
marked degree that adversely affects a child's educational
performance:     (A) An inability to learn that cannot be explained
by intellectual, sensory, or health factors.
    (B) An inability to build or maintain satisfactory
interpersonal relationships with peers and teachers.
    (C) Inappropriate types of behavior or feelings under normal
circumstances.
    (D) A general pervasive mood of unhappiness or depression.    
(E) A tendency to develop physical symptoms or fears associated
with personal or school problems.
    (ii) The term includes schizophrenia. The term does not apply
to children who are socially maladjusted, unless it is determined
that they have an emotional disturbance.
    (5) Hearing impairment means an impairment in hearing, whether
permanent or fluctuating, that adversely affects a child's
educational performance but that is not included under the
definition of deafness in this section.
    (6) Mental retardation means significantly subaverage general
intellectual functioning, existing concurrently with deficits in
adaptive behavior and manifested during the developmental period,
that adversely affects a child's educational performance.
    (7) Multiple disabilities means concomitant impairments (such
as mental retardation-blindness, mental retardation-orthopedic
impairment, etc.), the combination of which causes such severe
educational needs that they cannot be accommodated in special
education programs solely for one of the impairments. The term does
not include deaf-blindness.     (8) Orthopedic impairment means a
severe orthopedic impairment that adversely affects a child's
educational performance. The term includes impairments caused by
congenital anomaly (e.g., clubfoot, absence of some member, etc.),
impairments caused by disease (e.g., poliomyelitis, bone
tuberculosis, etc.), and impairments from other causes (e.g.,
cerebral palsy, amputations, and fractures or burns that cause
contractures).
    (9) Other health impairment means having limited strength,
vitality or alertness, 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, and sickle cell
anemia; and     (ii) Adversely affects a child's educational
performance.     (10) Specific learning disability is defined as
follows:     (i) General. The term means a disorder in one or more
of the basic psychological processes involved in understanding or
in using language, spoken or written, that may manifest itself in
an imperfect ability to listen, think, speak, read, write, spell,
or to do mathematical calculations, including conditions such as
perceptual disabilities, brain injury, minimal brain dysfunction,
dyslexia, and developmental aphasia.
    (ii) Disorders not included. The term does not include learning
problems that are primarily the result of visual, hearing, or motor
disabilities, of mental retardation, of emotional disturbance, or
of environmental, cultural, or economic disadvantage.
    (11) Speech or language impairment means a communication
disorder, such as stuttering, impaired articulation, a language
impairment, or a voice impairment, that adversely affects a child's
educational performance.
    (12) Traumatic brain injury means an acquired injury to the
brain caused by an external physical force, resulting in total or
partial functional disability or psychosocial impairment, or both,
that adversely affects a child's educational performance. The term
applies to open or closed head injuries resulting in impairments in
one or more areas, such as cognition; language; memory; attention;
reasoning; abstract thinking; judgment; problem-solving; sensory,
perceptual, and motor abilities; psychosocial behavior; physical
functions; information processing; and speech. The term does not
apply to brain injuries that are congenital or degenerative, or to
brain injuries induced by birth trauma.
    (13) Visual impairment including blindness means an impairment
in vision that, even with correction, adversely affects a child's
educational performance. The term includes both partial sight and
blindness.

(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))

Sec. 300.8  Consent.

    As used in this part, the term consent has the meaning given
that term in Sec. 300.500(b)(1).

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

Sec. 300.9  Day; business day; school day.

    As used in this part, the term--
    (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 Sec.
300.403(d)(1)(ii)); and     (c)(1) School day means any day,
including a partial day, that children are in attendance at school
for instructional purposes.     (2) The term school day has the
same meaning for all children in school, including children with
and without disabilities.

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

Sec. 300.10  Educational service agency.

    As used in this part, the term educational service agency--   
(a) Means a regional public multiservice agency--
    (1) Authorized by State law to develop, manage, and provide
services or programs to LEAs; and
    (2) Recognized as an administrative agency for purposes of the
provision of special education and related services provided within
public elementary and secondary schools of the State;
    (b) Includes any other public institution or agency having
administrative control and direction over a public elementary or
secondary school; and
    (c) Includes entities that meet the definition of intermediate
educational unit in section 602(23) of IDEA as in effect prior to
June 4, 1997.

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

Sec. 300.11  Equipment.

    As used in this part, the term equipment means--
    (a) Machinery, utilities, and built-in equipment and any
necessary

[[Page 12423]]

enclosures or structures to house the machinery, utilities, or
equipment; and
    (b) All other items necessary for the functioning of a
particular facility as a facility for the provision of educational
services, including items such as instructional equipment and
necessary furniture; printed, published and audio-visual
instructional materials; telecommunications, sensory, and other
technological aids and devices; and books, periodicals, documents,
and other related materials.

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

Sec. 300.12  Evaluation.

    As used in this part, the term evaluation has the meaning given
that term in Sec. 300.500(b)(2).

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

Sec. 300.13  Free appropriate public education.

    As used in this part, the term 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 preschool, elementary school, or secondary school
education in the State; and
    (d) Are provided in conformity with an individualized education
program (IEP) that meets the requirements of Secs. 300.340-300.350.

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

Sec. 300.14  Include.

    As used in this part, the term include means that the items
named are not all of the possible items that are covered, whether
like or unlike the ones named.

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

Sec. 300.15  Individualized education program.

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

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

Sec. 300.16  Individualized education program team.

    As used in this part, the term individualized education program
team or IEP team means a group of individuals described in Sec.
300.344 that is responsible for developing, reviewing, or revising
an IEP for a child with a disability.

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

Sec. 300.17  Individualized family service plan.

    As used in this part, the term individualized family service
plan or IFSP has the meaning given the term in 34 CFR 303.340(b).

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

Sec. 300.18  Local educational agency.

    (a) As used in this part, the term local educational agency
means a public board of education or other public authority legally
constituted within a State for either administrative control or
direction of, or to perform a service function for, public
elementary or secondary schools in a city, county, township, school
district, or other political subdivision of a State, or for a
combination of school districts or counties as are recognized in a
State as an administrative agency for its public elementary or
secondary schools.
    (b) The term includes--
    (1) An educational service agency, as defined in Sec. 300.10; 
   (2) Any other public institution or agency having administrative
control and direction of a public elementary or secondary school,
including a public charter school that is established as an LEA
under State law; and
    (3) An elementary 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 this Act with the smallest student population.

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

Sec. 300.19  Native language.

    (a) As used in this part, the term native language, if used
with reference to an individual of limited English proficiency,
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 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(16))

Sec. 300.20  Parent.

    (a) General. As used in this part, the term parent means--   
(1) A natural or adoptive parent of a child;
    (2) A guardian but not the State if the child is a ward of the
State;
    (3) A person acting in the place of a parent (such as a
grandparent or stepparent with whom the child lives, or a person
who is legally responsible for the child's welfare); or
    (4) A surrogate parent who has been appointed in accordance
with Sec. 300.515.
    (b) Foster parent. Unless State law prohibits a foster parent
from acting as a parent, a State may allow a foster parent to act
as a parent under Part B of the Act if--
    (1) The natural parents' authority to make educational
decisions on the child's behalf has been extinguished under State
law; and     (2) The foster parent--
    (i) Has an ongoing, long-term parental relationship with the
child;     (ii) Is willing to make the educational decisions
required of parents under the Act; and
    (iii) Has no interest that would conflict with the interests of
the child.

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

Sec. 300.21  Personally identifiable

    As used in this part, the term personally identifiable has the
meaning given that term in Sec. 300.500(b)(3).

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

Sec. 300.22  Public agency.

    As used in this part, the term public agency includes the SEA,
LEAs, ESAs, 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)(1)(A), (a)(11))

Sec. 300.23  Qualified personnel.

    As used in this part, the term qualified personnel means
personnel who have met SEA-approved or SEA-recognized
certification, licensing, registration, or other comparable
requirements that apply to the area in which the individuals are
providing special education or related services.

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

Sec. 300.24  Related services.

    (a) General. As used in this part, the term related services
means transportation and such developmental, corrective, and other
supportive services as are required to assist a child with a

[[Page 12424]]

disability to benefit from special education, and includes speech-
language pathology and audiology services, psychological services,
physical and occupational therapy, recreation, including
therapeutic recreation, early identification and assessment of
disabilities in children, counseling services, including
rehabilitation counseling, orientation and mobility services, and
medical services for diagnostic or evaluation purposes. The term
also includes school health services, social work services in
schools, and parent counseling and training.     (b) Individual
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) Medical services means services provided by a licensed
physician to determine a child's medically related disability that
results in the child's need for special education and related
services.     (5) Occupational therapy--
    (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.
    (6) Orientation and mobility services--
    (i) Means services provided to blind or visually impaired
students by qualified personnel to enable those students to attain
systematic orientation to and safe movement within their
environments in school, home, and community; and
    (ii) Includes teaching students 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 to supplement visual travel skills or
as a tool for safely negotiating the environment for students with
no available travel vision;
    (C) To understand and use remaining vision and distance low
vision aids; and
    (D) Other concepts, techniques, and tools.
    (7) Parent counseling and training means--
    (i) 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.     (8) Physical therapy means services provided by a
qualified physical therapist.
    (9) Psychological services includes--
    (i) Administering psychological and educational tests, and
other assessment procedures;
    (ii) Interpreting assessment results;
    (iii) Obtaining, integrating, and interpreting information
about child behavior and conditions relating to learning;
    (iv) Consulting with other staff members in planning school
programs to meet the special needs of children as indicated by
psychological tests, interviews, and behavioral evaluations;    
(v) Planning and managing a program of psychological services,
including psychological counseling for children and parents; and  
  (vi) Assisting in developing positive behavioral intervention
strategies.
    (10) Recreation includes--
    (i) Assessment of leisure function;
    (ii) Therapeutic recreation services;
    (iii) Recreation programs in schools and community agencies;
and     (iv) Leisure education.
    (11) Rehabilitation counseling services means services provided
by qualified personnel in individual or group sessions that focus
specifically on career development, employment preparation,
achieving independence, and integration in the workplace and
community of a student with a disability. The term also includes
vocational rehabilitation services provided to a student with
disabilities by vocational rehabilitation programs funded under the
Rehabilitation Act of 1973, as amended.
    (12) School health services means services provided by a
qualified school nurse or other qualified person.
    (13) Social work services in schools includes--
    (i) Preparing a social or developmental history on a child with
a disability;
    (ii) Group and individual counseling with the child and family; 
   (iii) Working 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.
    (14) Speech-language pathology services includes--
    (i) Identification of children with speech or language
impairments;     (ii) Diagnosis and appraisal of specific speech or
language impairments;
    (iii) Referral for medical or other professional attention
necessary for the habilitation of speech or language impairments; 
   (iv) Provision of speech and language services for the
habilitation or prevention of communicative impairments; and
    (v) Counseling and guidance of parents, children, and teachers
regarding speech and language impairments.
    (15) Transportation includes--
    (i) Travel to and from school and between schools;
    (ii) Travel in and around school buildings; and
    (iii) Specialized equipment (such as special or adapted buses,
lifts, and ramps), if required to provide special transportation
for a child with a disability.

(Authority: 20 U.S.C. 1401(22))

Sec. 300.25  Secondary school.

    As used in this part, the term secondary school means a
nonprofit institutional day or residential school that provides
secondary education, as determined under State law, except that

[[Page 12425]]

it does not include any education beyond grade 12.

(Authority: 20 U.S.C. 1401(23))

Sec. 300.26  Special education.

    (a) General. (1) As used in this part, the term special
education means specially designed instruction, at no cost to the
parents, to meet the unique needs of a child with a disability,
including--    (i) Instruction conducted in the classroom, in the
home, in hospitals and institutions, and in other settings; and
    (ii) Instruction in physical education.
    (2) The term includes each of the following, if it meets 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 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--
    (i) Means the development of--
    (A) Physical and motor fitness;
    (B) Fundamental motor skills and patterns; and
    (C) Skills in aquatics, dance, and individual and group games
and sports (including intramural and lifetime sports); 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 he or she 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 requiring other than a baccalaureate or advanced degree.

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

Sec. 300.27  State.

    As used in this part, the term State means each of the 50
States, the District of Columbia, the Commonwealth of Puerto Rico,
and each of the outlying areas.

(Authority: 20 U.S.C. 1401(27))

Sec. 300.28  Supplementary aids and services.

    As used in this part, the term supplementary aids and services
means, aids, services, and other supports that are provided in
regular education classes or other education-related settings to
enable children with disabilities to be educated with nondisabled
children to the maximum extent appropriate in accordance with Secs.
300.550-300.556.

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

Sec. 300.29  Transition services.

    (a) As used in this part, transition services means a
coordinated set of activities for a student with a disability that-
-
    (1) Is designed within an outcome-oriented process, that
promotes movement from school to post-school activities, including
postsecondary education, vocational training, integrated employment
(including supported employment), continuing and adult education,
adult services, independent living, or community participation;
    (2) Is based on the individual student's needs, taking into
account the student's preferences and interests; and
    (3) 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
functional vocational evaluation.
    (b) Transition services for students with disabilities may be
special education, if provided as specially designed instruction,
or related services, if required to assist a student with a
disability to benefit from special education.

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

Sec. 300.30  Definitions in EDGAR.

    The following terms used in this part are defined in 34 CFR
77.1:

Application
Award
Contract
Department
EDGAR
Elementary school
Fiscal year
Grant
Nonprofit
Project
Secretary
Subgrant
State educational agency

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

Subpart B--State and Local Eligibility

State Eligibility--General

Sec. 300.110  Condition of assistance.

    (a) A State is eligible for assistance under Part B of the Act
for a fiscal year if the State demonstrates to the satisfaction of
the Secretary that the State has in effect policies and procedures
to ensure that it meets the conditions in Secs. 300.121-300.156.  
  (b) To meet the requirement of paragraph (a) of this section, the
State must have on file with the Secretary--
    (1) The information specified in Secs. 300.121-300.156 that the
State uses to implement the requirements of this part; and
    (2) Copies of all applicable State statutes, regulations, and
other State documents that show the basis of that information.

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

Sec. 300.111  Exception for prior State policies and procedures on
file with the Secretary.

    If a State has on file with the Secretary policies and
procedures approved by the Secretary that demonstrate that the
State meets any requirement of Sec. 300.110, including any policies
and procedures filed under Part B of the Act as in effect before
June 4, 1997, the Secretary considers the State to have met the
requirement for purposes of receiving a grant under Part B of the
Act.

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

Sec. 300.112  Amendments to State policies and procedures.

    (a) Modifications made by a State. (1) Subject to paragraph (b)
of this section, policies and procedures submitted by a State in
accordance with this subpart

[[Page 12426]]

remain in effect until the State submits to the Secretary the
modifications that the State decides are necessary.
    (2) The provisions of this subpart apply to a modification to
a State's policies and procedures in the same manner and to the
same extent that they apply to the State's original policies and
procedures.     (b) Modifications required by the Secretary. The
Secretary may require a State to modify its policies and
procedures, but only to the extent necessary to ensure the State's
compliance with this part, if--    (1) After June 4, 1997, the
provisions of the Act or the regulations in this part are amended;
    (2) There is a new interpretation of this Act or regulations by
a Federal court or a State's highest court; or
    (3) There is an official finding of noncompliance with Federal
law or regulations.

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

Sec. 300.113  Approval by the Secretary.

    (a) General. If the Secretary determines that a State is
eligible to receive a grant under Part B of the Act, the Secretary
notifies the State of that determination.
    (b) Notice and hearing before determining a State is not
eligible. The Secretary does not make a final determination that a
State is not eligible to receive a grant under Part B of the Act
until after providing the State reasonable notice and an
opportunity for a hearing in accordance with the procedures in
Secs. 300.581-300.586.

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

Secs. 300.114--300.120  [Reserved]

State Eligibility--Specific Conditions

Sec. 300.121  Free appropriate public education (FAPE).

    (a) General. Each State must have on file with the Secretary
information that shows that, subject to Sec. 300.122, the State has
in effect a policy that ensures that all children with disabilities
aged 3 through 21 residing in the State have the right to FAPE,
including children with disabilities who have been suspended or
expelled from school.
    (b) Required information. The information described in
paragraph (a) of this section must--
    (1) Include a copy of each State statute, court order, State
Attorney General opinion, and other State documents that show the
source of the State's policy relating to FAPE; and
    (2) Show that the policy--
    (i)(A) Applies to all public agencies in the State; and     (B)
Is consistent with the requirements of Secs. 300.300-300.313; and
    (ii) Applies to all children with disabilities, including
children who have been suspended or expelled from school.
    (c) FAPE for children beginning at age 3. (1) Each State shall
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 Sec. 300.342(c).
    (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.
    (d) FAPE for children suspended or expelled from school. (1) A
public agency need not provide services during periods of removal
under Sec. 300.520(a)(1) 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 services are not provided to a child
without disabilities who has been similarly removed.
    (2) In the case of a child with a disability who has been
removed from his or her current placement for more than 10 school
days in that school year, the public agency, for the remainder of
the removals, must--
    (i) Provide services to the extent necessary to enable the
child to appropriately progress in the general curriculum and
appropriately advance toward achieving the goals set out in the
child's IEP, if the removal is--
    (A) Under the school personnel's authority to remove for not
more than 10 consecutive school days as long as that removal does
not constitute a change of placement under Sec. 300.519(b)
(Sec. 300.520((a)(1)); or
    (B) For behavior that is not a manifestation of the child's
disability, consistent with Sec. 300.524; and
    (ii) Provide services consistent with Sec. 300.522, regarding
determination of the appropriate interim alternative educational
setting, if the removal is--
    (A) For drug or weapons offenses under Sec. 300.520(a)(2); or 
   (B) Based on a hearing officer determination that maintaining
the current placement of the child is substantially likely to
result in injury to the child or to others if he or she remains in
the current placement, consistent with Sec. 300.521.
    (3)(i) School personnel, in consultation with the child's
special education teacher, determine the extent to which services
are necessary to enable the child to appropriately progress in the
general curriculum and appropriately advance toward achieving the
goals set out in the child's IEP if the child is removed under the
authority of school personnel to remove for not more than 10
consecutive school days as long as that removal does not constitute
a change of placement under Sec. 300.519 (Sec. 300.520(a)(1)).
    (ii) The child's IEP team determines the extent to which
services are necessary to enable the child to appropriately
progress in the general curriculum and appropriately advance toward
achieving the goals set out in the child's IEP if the child is
removed because of behavior that has been determined not to be a
manifestation of the child's disability, consistent with Sec.
300.524.
    (e) Children advancing from grade to grade. (1) Each State
shall ensure that FAPE is available to any individual child with a
disability who needs special education and related services, even
though the child is advancing from grade to grade.
    (2) The determination that a child described in paragraph
(a)(1) 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 those determinations.

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

Sec. 300.122  Exception to FAPE for certain ages.

    (a) General. The obligation to make FAPE available to all
children with disabilities does not apply with respect to the
following:     (1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a
State to the extent that its application to those children would be
inconsistent with State law or practice, or the order of any court,
respecting the provision of public education to children in one or
more of those age groups.
    (2)(i) Students aged 18 through 21 to the extent that State law
does not require that special education and related services under
Part B of the Act be provided to students with disabilities who, in
the last educational placement prior to their incarceration in an
adult correctional facility--
    (A) Were not actually identified as being a child with a
disability under Sec. 300.7; 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 students with disabilities, aged 18 through 21, who-- 
  (A) Had been identified as a child with disability and had
received services in accordance with an IEP, but

[[Page 12427]]

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 Sec. 300.7.
    (3)(i) Students with disabilities who have graduated from high
school with a regular high school diploma.
    (ii) The exception in paragraph (a)(3)(i) of this section does
not apply to students who have graduated but have not been awarded
a regular high school diploma.
    (iii) Graduation from high school with a regular diploma
constitutes a change in placement, requiring written prior notice
in accordance with Sec. 300.503.
    (b) Documents relating to exceptions. The State must have on
file with the Secretary--
    (1)(i) Information that describes in detail the extent to which
the exception in paragraph (a)(1) of this section applies to the
State; and     (ii) A copy of each State law, court order, and
other documents that provide a basis for the exception; and
    (2) With respect to paragraph (a)(2) of this section, a copy of
the State law that excludes from services under Part B of the Act
certain students who are incarcerated in an adult correctional
facility.

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

Sec. 300.123  Full educational opportunity goal (FEOG).

    The State must have on file with the Secretary detailed
policies and procedures through which the State has established a
goal of providing full educational opportunity to all children with
disabilities aged birth through 21.

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

Sec. 300.124  FEOG--timetable.

    The State must have on file with the Secretary a detailed
timetable for accomplishing the goal of providing full educational
opportunity for all children with disabilities.

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

Sec. 300.125  Child find.

    (a) General requirement. (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 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.
    (2) The requirements of paragraph (a)(1) of this section apply
to--    (i) Highly mobile children with disabilities (such as
migrant and homeless children); and
    (ii) Children who are suspected of being a child with a
disability under Sec. 300.7 and in need of special education, even
though they are advancing from grade to grade.
    (b) Documents relating to child find. The State must have on
file with the Secretary the policies and procedures described in
paragraph (a) of this section, including--
    (1) The name of the State agency (if other than the SEA)
responsible for coordinating the planning and implementation of the
policies and procedures under paragraph (a) of this section;    
(2) The name of each agency that participates in the planning and
implementation of the child find activities and a description of
the nature and extent of its participation;
    (3) A description of how the policies and procedures under
paragraph (a) of this section will be monitored to ensure that the
SEA obtains--
    (i) The number of children with disabilities within each
disability category that have been identified, located, and
evaluated; and     (ii) Information adequate to evaluate the
effectiveness of those policies and procedures; and
    (4) A description of the method the State uses to determine
which children are currently receiving special education and
related services.
    (c) Child find for children from birth through age 2 when the
SEA and lead agency for the Part C program are different. (1) In
States where the SEA and the State's lead agency for the Part C
program are different and the Part C lead agency will be
participating in the child find activities described in paragraph
(a) of this section, a description of the nature and extent of the
Part C lead agency's participation must be included under paragraph
(b)(2) of this section.     (2) With the SEA's agreement, the Part
C lead agency's
participation may include the actual implementation of child find
activities for infants and toddlers with disabilities.
    (3) The use of an interagency agreement or other mechanism for
providing for the Part C lead agency's participation does not alter
or diminish the responsibility of the SEA to ensure compliance with
the requirements of this section.
    (d) Construction. Nothing in the Act requires that children be
classified by their disability so long as each child who has a
disability listed in Sec. 300.7 and who, by reason of that
disability, needs special education and related services is
regarded as a child with a disability under Part B of the Act.
    (e) Confidentiality of child find data. The collection and use
of data to meet the requirements of this section are subject to the
confidentiality requirements of Secs. 300.560-300.577.

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

Sec. 300.126  Procedures for evaluation and determination of
eligibility.

    The State must have on file with the Secretary policies and
procedures that ensure that the requirements of Secs.
300.530-300.536 are met.

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

Sec. 300.127  Confidentiality of personally identifiable
information.

    (a) The State must have on file in detail the policies and
procedures that the State has undertaken to ensure protection of
the confidentiality of any personally identifiable information,
collected, used, or maintained under Part B of the Act.
    (b) The Secretary uses the criteria in Secs. 300.560-300.576 to
evaluate the policies and procedures of the State under paragraph
(a) of this section.

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

Sec. 300.128  Individualized education programs.

    (a) General. The State must have on file with the Secretary
information that shows 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
Secs. 300.340-300.350.
    (b) Required information. The information described in
paragraph (a) of this section must include--
    (1) A copy of each State statute, policy, and standard that
regulates the manner in which IEPs are developed, implemented,
reviewed, and revised; and
    (2) The procedures that the SEA follows in monitoring and
evaluating those IEPs or IFSPs.

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

Sec. 300.129  Procedural safeguards.

    (a) The State must have on file with the Secretary procedural
safeguards that ensure that the requirements of Secs.
300.500-300.529 are met.
    (b) Children with disabilities and their parents must be
afforded the procedural safeguards identified in paragraph (a) of
this section.

[[Page 12428]]

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

Sec. 300.130  Least restrictive environment.

    (a) General. The State must have on file with the Secretary
procedures that ensure that the requirements of Secs.
300.550-300.556 are met, including the provision in Sec. 300.551
requiring a continuum of alternative placements to meet the unique
needs of each child with a disability.
    (b) Additional requirement. (1) If the State uses a funding
mechanism by which the State distributes State funds on the basis
of the type of setting where a child is served, the funding
mechanism may not result in placements that violate the
requirements of paragraph (a) of this section.
    (2) If the State does not have policies and procedures to
ensure compliance with paragraph (b)(1) of this section, the State
must provide the Secretary an assurance that the State will revise
the funding mechanism as soon as feasible to ensure that the
mechanism does not result in placements that violate that
paragraph.

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

Sec. 300.131  [Reserved]

Sec. 300.132  Transition of children from Part C to preschool
programs.

    The State must have on file with the Secretary policies and
procedures to ensure that--
    (a) Children participating in early-intervention programs
assisted under Part C of the Act, and who will participate in
preschool programs assisted under Part B of the Act, experience a
smooth and effective transition to those preschool programs in a
manner consistent with section 637(a)(8) of the Act;
    (b) By the third birthday of a child described in paragraph (a)
of this section, an IEP or, if consistent with Sec. 300.342(c) and
section 636(d) of the Act, an IFSP, has been developed and is being
implemented for the child consistent with Sec. 300.121(c); and
    (c) Each LEA will participate in transition planning
conferences arranged by the designated lead agency under section
637(a)(8) of the Act.

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

Sec. 300.133  Children in private schools.

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

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

Sec. 300.134  [Reserved]

Sec. 300.135  Comprehensive system of personnel development.

    (a) General. The State must have in effect, consistent with the
purposes of this part and with section 635(a)(8) of the Act, a
comprehensive system of personnel development that--
    (1) Is designed to ensure an adequate supply of qualified
special education, regular education, and related services
personnel; and     (2) Meets the requirements for a State
improvement plan relating to personnel development in section
653(b)(2)(B) and (c)(3)(D) of the Act.     (b) Information. The
State must have on file with the Secretary information that shows
that the requirements of paragraph (a) of this section are met.

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

Sec. 300.136  Personnel standards.

    (a) Definitions. As used in this part--
    (1) Appropriate professional requirements in the State means
entry level requirements that--
    (i) Are based on the highest requirements in the State
applicable to the profession or discipline in which a person is
providing special education or related services; and
    (ii) Establish suitable qualifications for personnel providing
special education and related services under Part B of the Act to
children with disabilities who are served by State, local, and
private agencies (see Sec. 300.2);
    (2) Highest requirements in the State applicable to a specific
profession or discipline means the highest entry-level academic
degree needed for any State-approved or -recognized certification,
licensing, registration, or other comparable requirements that
apply to that profession or discipline;
    (3) Profession or discipline means a specific occupational
category that--
    (i) Provides special education and related services to children
with disabilities under Part B of the Act;
    (ii) Has been established or designated by the State;
    (iii) Has a required scope of responsibility and degree of
supervision; and
    (iv) Is not limited to traditional occupational categories; and 
   (4) State-approved or -recognized certification, licensing,
registration, or other comparable requirements means the
requirements that a State legislature either has enacted or has
authorized a State agency to promulgate through rules to establish
the entry-level standards for employment in a specific profession
or discipline in that State.
    (b) Policies and procedures. (1)(i) The State must have on file
with the Secretary policies and procedures relating to the
establishment and maintenance of standards to ensure that personnel
necessary to carry out the purposes of this part are appropriately
and adequately prepared and trained.
    (ii) The policies and procedures required in paragraph
(b)(1)(i) of this section must provide for the establishment and
maintenance of standards that are consistent with any State-
approved or -recognized certification, licensing, registration, or
other comparable requirements that apply to the profession or
discipline in which a person is providing special education or
related services.
    (2) Each State may--
    (i) Determine the specific occupational categories required to
provide special education and related services within the State;
and     (ii) Revise or expand those categories as needed.
    (3) Nothing in this part requires a State to establish a
specified training standard (e.g., a masters degree) for personnel
who provide special education and related services under Part B of
the Act.     (4) A State with only one entry-level academic degree
for employment of personnel in a specific profession or discipline
may modify that standard as necessary to ensure the provision of
FAPE to all children with disabilities in the State without
violating the requirements of this section.
    (c) Steps for retraining or hiring personnel. To the extent
that a State's standards for a profession or discipline, including
standards for temporary or emergency certification, are not based
on the highest requirements in the State applicable to a specific
profession or discipline, the State must provide the steps the
State is taking and the procedures for notifying public agencies
and personnel of those steps and the timelines it has established
for the retraining or hiring of personnel to meet appropriate
professional requirements in the State.
    (d) Status of personnel standards in the State. (1) In meeting
the requirements in paragraphs (b) and (c) of this section, a
determination must be made about the status of personnel standards
in the State. That determination must be based on current
information that accurately describes, for each profession or
discipline in which personnel are providing special education or
related services, whether the applicable standards are consistent
with the highest requirements in the State for that profession or
discipline.
    (2) The information required in paragraph (d)(1) of this
section must be

[[Page 12429]]

on file in the SEA and available to the public.
    (e) Applicability of State statutes and agency rules. In
identifying the highest requirements in the State for purposes of
this section, the requirements of all State statutes and the rules
of all State agencies applicable to serving children with
disabilities must be considered.
    (f) Use of paraprofessionals and assistants. A State may allow
paraprofessionals and assistants who are appropriately trained and
supervised, in accordance with State law, regulations, or written
policy, in meeting the requirements of this part to be used to
assist in the provision of special education and related services
to children with disabilities under Part B of the Act.
    (g) Policy to address shortage of personnel. (1) In
implementing this section, a State may adopt a policy that includes
a requirement that LEAs in the State make an ongoing good faith
effort to recruit and hire appropriately and adequately trained
personnel to provide special education and related services to
children with disabilities, including, in a geographic area of the
State where there is a shortage of personnel that meet these
qualifications, the most qualified individuals available who are
making satisfactory progress toward completing applicable course
work necessary to meet the standards described in paragraph (b)(2)
of this section, consistent with State law and the steps described
in paragraph (c) of this section, within three years.
    (2) If a State has reached its established date under paragraph
(c) of this section, the State may still exercise the option under
paragraph (g)(1) of this section for training or hiring all
personnel in a specific profession or discipline to meet
appropriate professional requirements in the State.
    (3)(i) Each State must have a mechanism for serving children
with disabilities if instructional needs exceed available personnel
who meet appropriate professional requirements in the State for a
specific profession or discipline.
    (ii) A State that continues to experience shortages of
qualified personnel must address those shortages in its
comprehensive system of personnel development under Sec. 300.135.

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

Sec. 300.137  Performance goals and indicators.

    The State must have on file with the Secretary information to
demonstrate that the State--
    (a) Has established goals for the performance of children with
disabilities in the State that--
    (1) Will promote the purposes of this part, as stated in Sec.
300.1; and
    (2) Are consistent, to the maximum extent appropriate, with
other goals and standards for all children established by the
State;     (b) Has established performance indicators that the
State will use to assess progress toward achieving those goals
that, at a minimum, address the performance of children with
disabilities on assessments, drop-out rates, and graduation rates;
    (c) Every two years, will report to the Secretary and the
public on the progress of the State, and of children with
disabilities in the State, toward meeting the goals established
under paragraph (a) of this section; and
    (d) Based on its assessment of that progress, will revise its
State improvement plan under subpart 1 of Part D of the Act as may
be needed to improve its performance, if the State receives
assistance under that subpart.

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

Sec. 300.138  Participation in assessments.

    The State must have on file with the Secretary information to
demonstrate that--
    (a) Children with disabilities are included in general State
and district-wide assessment programs, with appropriate
accommodations and modifications in administration, if necessary;
    (b) As appropriate, the State or LEA--
    (1) Develops guidelines for the participation of children with
disabilities in alternate assessments for those children who cannot
participate in State and district-wide assessment programs;     (2)
Develops alternate assessments in accordance with paragraph (b)(1)
of this section; and
    (3) Beginning not later than, July 1, 2000, conducts the
alternate assessments described in paragraph (b)(2) of this
section.

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

Sec. 300.139  Reports relating to assessments.

    (a) General. In implementing the requirements of Sec. 300.138,
the SEA shall make available to the public, and report to the
public with the same frequency and in the same detail as it reports
on the assessment of nondisabled children, the following
information:     (1) The number of children with disabilities
participating--    (i) In regular assessments; and
    (ii) In alternate assessments.
    (2) The performance results of the children described in
paragraph (a)(1) of this section if doing so would be statistically
sound and would not result in the disclosure of performance results
identifiable to individual children--
    (i) On regular assessments (beginning not later than July 1,
1998); and
    (ii) On alternate assessments (not later than July 1, 2000).  
  (b) Combined reports. Reports to the public under paragraph (a)
of this section must include--
    (1) Aggregated data that include the performance of children
with disabilities together with all other children; and
    (2) Disaggregated data on the performance of children with
disabilities.
    (c) Timeline for disaggregation of data. Data relating to the
performance of children described under paragraph (a)(2) of this
section must be disaggregated--
    (1) For assessments conducted after July 1, 1998; and
    (2) For assessments conducted before July 1, 1998, if the State
is required to disaggregate the data prior to July 1, 1998.

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

Sec. 300.140  [Reserved]

Sec. 300.141  SEA responsibility for general supervision.

    (a) The State must have on file with the Secretary information
that shows that the requirements of Sec. 300.600 are met.
    (b) The information described under paragraph (a) of this
section must include a copy of each State statute, State
regulation, signed agreement between respective agency officials,
and any other documents that show compliance with that paragraph.

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

Sec. 300.142  Methods of ensuring services.

    (a) Establishing responsibility for services. The Chief
Executive Officer or designee of that officer shall ensure that an
interagency agreement or other mechanism for interagency
coordination is in effect between each noneducational public agency
described in paragraph (b) of this section and the SEA, in order to
ensure that all services described in paragraph (b)(1) of this
section that are needed to ensure FAPE 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) Agency financial responsibility. An identification of, or
a method for

[[Page 12430]]

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) Conditions and terms of reimbursement. The conditions,
terms, and procedures under which an LEA must be reimbursed by
other agencies.     (3) Interagency disputes. Procedures for
resolving interagency disputes (including procedures under which
LEAs may initiate proceedings) under the agreement or other
mechanism to secure reimbursement from other agencies or otherwise
implement the provisions of the agreement or mechanism.
    (4) Coordination of services procedures. Policies and
procedures for agencies to determine and identify the interagency
coordination responsibilities of each agency to promote the
coordination and timely and appropriate delivery of services
described in paragraph (b)(1) of this section.
    (b) Obligation of noneducational public agencies. (1) General.
(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 Sec. 300.5 relating to assistive
technology devices, Sec. 300.6 relating to assistive technology
services, Sec. 300.24 relating to related services, Sec. 300.28
relating to supplementary aids and services, and Sec. 300.29
relating to transition services) that are necessary for ensuring
FAPE to children with disabilities within the State, the public
agency shall fulfill that obligation or
responsibility, either directly or through contract or other
arrangement.
    (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) Reimbursement for services by noneducational public agency.
If a public agency other than an educational agency fails to
provide or pay for the special education and related services
described in paragraph (b)(1) of this section, the LEA (or State
agency responsible for developing the child's IEP) shall provide or
pay for these services to the child in a timely manner. The LEA or
State agency may then claim reimbursement for the services from the
noneducational public agency that failed to provide or pay for
these services and that agency shall reimburse the LEA or State
agency in accordance with the terms of the interagency agreement or
other mechanism described in paragraph (a)(1) of this section, and
the agreement described in paragraph (a)(2) of this section.
    (c) Special rule. The requirements of paragraph (a) of this
section may be met through--
    (1) State statute or regulation;
    (2) Signed agreements between respective agency officials that
clearly identify the responsibilities of each agency relating to
the provision of services; or
    (3) Other appropriate written methods as determined by the
Chief Executive Officer of the State or designee of that officer. 
   (d) Information. The State must have on file with the Secretary
information to demonstrate that the requirements of paragraphs (a)
through (c) of this section are met.
    (e) Children with disabilities who are covered by public
insurance. (1) A public agency may use the Medicaid or other public
insurance benefits programs in which a child participates to
provide or pay for services required under this part, as permitted
under the public insurance program, except as provided in paragraph
(e)(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
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 parent otherwise would be required to pay; and
    (iii) May not use a child's benefits under a public insurance
program if that use would--
    (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 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
insurance; or
    (D) Risk loss of eligibility for home and community-based
waivers, based on aggregate health-related expenditures.
    (f) 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 a
parent's private insurance proceeds only if the parent provides
informed consent consistent with Sec. 300.500(b)(1).
    (2) Each time the public agency proposes to access the parent's
private insurance proceeds, it must--
    (i) Obtain parent consent in accordance with paragraph (f)(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.
    (g) Use of Part B funds. (1) If a public agency is unable to
obtain parental consent to use the parent's private insurance, or
public insurance when the parent 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 insurance if the parent
would incur a cost, the public agency may use its Part B funds to
pay the cost the parents otherwise would have to pay to use the
parent's insurance (e.g., the deductible or co-pay amounts).
    (h) Proceeds from public or private insurance. (1) Proceeds
from public 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 Secs. 300.154 and 300.231.
    (i) 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 insurance program by Federal
statute, regulations or policy under title XIX, or title XXI of the
Social Security Act, or any other public insurance program.

(Authority: 20 U.S.C. 1412(a)(12)(A), (B), and (C); 1401(8))

[[Page 12431]]

Sec. 300.143  SEA implementation of procedural safeguards.

    The State must have on file with the Secretary the procedures
that the SEA (and any agency assigned responsibility pursuant to
Sec. 300.600(d)) follows to inform each public agency of its
responsibility for ensuring effective implementation of procedural
safeguards for the children with disabilities served by that public
agency.

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

Sec. 300.144  Hearings relating to LEA eligibility.

    The State must have on file with the Secretary procedures to
ensure that the SEA does not make any final determination that an
LEA is not eligible for assistance under Part B of the Act without
first giving the LEA reasonable notice and an opportunity for a
hearing under 34 CFR 76.401(d).

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

Sec. 300.145  Recovery of funds for misclassified children.

    The State must have on file with the Secretary policies and
procedures that ensure that the State seeks to recover any funds
provided under Part B of the Act for services to a child who is
determined to be erroneously classified as eligible to be counted
under section 611(a) or (d) of the Act.

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

Sec. 300.146  Suspension and expulsion rates.

    The State must have on file with the Secretary information to
demonstrate that the following requirements are met:
    (a) General. The SEA examines data to determine if significant
discrepancies are occurring in the rate of long-term suspensions
and expulsions of children with disabilities--
    (1) Among LEAs in the State; or
    (2) Compared to the rates for nondisabled children within the
agencies.
    (b) Review and revision of policies. If the discrepancies
described in paragraph (a) of this section are occurring, the SEA
reviews and, if appropriate, revises (or requires the affected
State agency or LEA to revise) its policies, procedures, and
practices relating to the development and implementation of IEPs,
the use of behavioral interventions, and procedural safeguards, to
ensure that these policies, procedures, and practices comply with
the Act.

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

Sec. 300.147  Additional information if SEA provides direct
services.

    (a) If the SEA provides FAPE to children with disabilities, or
provides direct services to these children, the agency--
    (1) Shall comply with any additional requirements of Secs.
300.220-300.230(a) and 300.234-300.250 as if the agency were an
LEA; and     (2) May use amounts that are otherwise available to
the agency under Part B of the Act to serve those children without
regard to Sec. 300.184 (relating to excess costs).
    (b) The SEA must have on file with the Secretary information to
demonstrate that it meets the requirements of paragraph (a)(1) of
this section.

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

Sec. 300.148  Public participation.

    (a) General; exception. (1) Subject to paragraph (a)(2) of this
section, each State must ensure that, prior to the adoption of any
policies and procedures needed to comply with this part, there are
public hearings, adequate notice of the hearings, and an
opportunity for comment available to the general public, including
individuals with disabilities and parents of children with
disabilities consistent with Secs. 300.280-300.284.
    (2) A State will be considered to have met paragraph (a)(1) of
this section with regard to a policy or procedure needed to comply
with this part if it can demonstrate that prior to the adoption of
that policy or procedure, the policy or procedure was subjected to
a public review and comment process that is required by the State
for other purposes and is comparable to and consistent with the
requirements of Secs. 300.280-300.284.
    (b) Documentation. The State must have on file with the
Secretary information to demonstrate that the requirements of
paragraph (a) of this section are met.

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

Sec. 300.149  [Reserved]

Sec. 300.150  State advisory panel.

    The State must have on file with the Secretary information to
demonstrate that the State has established and maintains an
advisory panel for the purpose of providing policy guidance with
respect to special education and related services for children with
disabilities in the State in accordance with the requirements of
Secs. 300.650-300.653.

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

Sec. 300.151  [Reserved]

Sec. 300.152  Prohibition against commingling.

    (a) The State must have on file with the Secretary an assurance
satisfactory to the Secretary that the funds under Part B of the
Act are not commingled with State funds.
    (b) The assurance in paragraph (a) of this section is satisfied
by the use of a separate accounting system that includes an audit
trail of the expenditure of the Part B funds. Separate bank
accounts are not required. (See 34 CFR 76.702 (Fiscal control and
fund accounting procedures).)
(Authority: 20 U.S.C. 1412(a)(18)(B))

Sec. 300.153  State-level nonsupplanting.

    (a) General. (1) Except as provided in Sec. 300.230, funds paid
to a State under Part B of the Act must be used to supplement the
level of Federal, State, and local funds (including funds that are
not under the direct control of the SEA or LEAs) expended for
special education and related services provided to children with
disabilities under Part B of the Act and in no case to supplant
these Federal, State, and local funds.
    (2) The State must have on file with the Secretary information
to demonstrate to the satisfaction of the Secretary that the
requirements of paragraph (a)(1) of this section are met.
    (b) Waiver. If the State provides clear and convincing evidence
that all children with disabilities have available to them FAPE,
the Secretary may waive, in whole or in part, the requirements of
paragraph (a) of this section if the Secretary concurs with the
evidence provided by the State under Sec. 300.589.

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

Sec. 300.154  Maintenance of State financial support.

    (a) General. The State must have on file with the Secretary
information to demonstrate, on either a total or per-capita basis,
that the State will not reduce the amount of State financial
support for special education and related services for children
with disabilities, or otherwise made available because of the
excess costs of educating those children, below the amount of that
support for the preceding fiscal year.
    (b) Reduction of funds for failure to maintain support. The
Secretary reduces the allocation of funds under section 611 of the
Act for any fiscal year following the fiscal year in which the
State fails to comply with the requirement of paragraph (a) of this
section by the same amount by which the State fails to meet the
requirement.     (c) Waivers for exceptional or uncontrollable
circumstances. The

[[Page 12432]]

Secretary may waive the requirement of paragraph (a) of this
section for a State, for one fiscal year at a time, if the
Secretary determines that--
    (1) Granting a waiver would be equitable due to exceptional or
uncontrollable circumstances such as a natural disaster or a
precipitous and unforeseen decline in the financial resources of
the State; or
    (2) The State meets the standard in Sec. 300.589 for a waiver
of the requirement to supplement, and not to supplant, funds
received under Part B of the Act.
    (d) Subsequent years. If, for any fiscal year, a State fails to
meet the requirement of paragraph (a) of this section, including
any year for which the State is granted a waiver under paragraph
(c) of this section, the financial support required of the State in
future years under paragraph (a) of this section must be the amount
that would have been required in the absence of that failure and
not the reduced level of the State's support.

(Authority: 20 U.S.C. 1412(a)(19))

Sec. 300.155  Policies and procedures for use of Part B funds.

    The State must have on file with the Secretary policies and
procedures designed to ensure that funds paid to the State under
Part B of the Act are spent in accordance with the provisions of
Part B.

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

Sec. 300.156  Annual description of use of Part B funds.

    (a) In order to receive a grant in any fiscal year a State must
annually describe--
    (1) How amounts retained for State-level activities under Sec.
300.602 will be used to meet the requirements of this part;     (2)
How those amounts will be allocated among the activities described
in Secs. 300.621 and 300.370 to meet State priorities based on
input from LEAs; and
    (3) The percentage of those amounts, if any, that will be
distributed to LEAs by formula.
    (b) If a State's plans for use of its funds under Secs. 300.370
and 300.620 for the forthcoming year do not change from the prior
year, the State may submit a letter to that effect to meet the
requirement in paragraph (a) of this section.

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

LEA and State Agency Eeligibility--General

Sec. 300.180  Condition of assistance.

    An LEA or State agency is eligible for assistance under Part B
of the Act for a fiscal year if the agency demonstrates to the
satisfaction of the SEA that it meets the conditions in Secs.
300.220-300.250.

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

Sec. 300.181  Exception for prior LEA or State agency policies and
procedures on file with the SEA.

    If an LEA or a State agency described in Sec. 300.194 has on
file with the SEA policies and procedures that demonstrate that the
LEA or State agency meets any requirement of Sec. 300.180,
including any policies and procedures filed under Part B of the Act
as in effect before June 4, 1997, the SEA shall consider the LEA or
State agency to have met the requirement for purposes of receiving
assistance under Part B of the Act.

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

Sec. 300.182  Amendments to LEA policies and procedures.

    (a) Modification made by an LEA or a State agency. (1) Subject
to paragraph (b) of this section, policies and procedures submitted
by an LEA or a State agency in accordance with this subpart remain
in effect until it submits to the SEA the modifications that the
LEA or State agency decides are necessary.
    (2) The provisions of this subpart apply to a modification to
an LEA's or State agency's policies and procedures in the same
manner and to the same extent that they apply to the LEA's or State
agency's original policies and procedures.
    (b) Modifications required by the SEA. The SEA may require an
LEA or a State agency to modify its policies and procedures, but
only to the extent necessary to ensure the LEA's or State agency's
compliance with this part, if--
    (1) After June 4, 1997, the provisions of the Act or the
regulations in this part are amended;
    (2) There is a new interpretation of the Act by Federal or
State courts; or
    (3) There is an official finding of noncompliance with Federal
or State law or regulations.

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

Sec. 300.183  [Reserved]

Sec. 300.184  Excess cost requirement.

    (a) General. Amounts provided to an LEA under Part B of the Act
may be used only to pay the excess costs of providing special
education and related services to children with disabilities.
    (b) Definition. As used in this part, the term excess costs
means those costs that are in excess of the average annual per-
student expenditure in an LEA during the preceding school year for
an elementary or secondary school student, as may be appropriate.
Excess costs must be computed after deducting--
    (1) Amounts received--
    (i) Under Part B of the Act;
    (ii) Under Part A of title I of the Elementary and Secondary
Education Act of 1965; or
    (iii) Under Part A of title VII of that Act; and
    (2) Any State or local funds expended for programs that would
qualify for assistance under any of those parts.
    (c) LLimitation on use of Part B funds. (1) The excess cost
requirement prevents an LEA from using funds provided under Part B
of the Act to pay for all of the costs directly attributable to the
education of a child with a disability, subject to paragraph (c)(2)
of this section.
    (2) The excess cost requirement does not prevent an LEA from
using Part B funds to pay for all of the costs directly
attributable to the education of a child with a disability in any
of the ages 3, 4, 5, 18, 19, 20, or 21, if no local or State funds
are available for nondisabled children in that age range. However,
the LEA must comply with the nonsupplanting and other requirements
of this part in providing the education and services for these
children.

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

Sec. 300.185  Meeting the excess cost requirement.

    (a)(1) General. An LEA meets the excess cost requirement if it
has spent at least a minimum average amount for the education of
its children with disabilities before funds under Part B of the Act
are used.
    (2) The amount described in paragraph (a)(1) of this section is
determined using the formula in Sec. 300.184(b). This amount may
not include capital outlay or debt service.
    (b) Joint establishment of eligibility. If two or more LEAs
jointly establish eligibility in accordance with Sec. 300.190, the
minimum average amount is the average of the combined minimum
average amounts determined under Sec. 300.184 in those agencies for
elementary or secondary school students, as the case may be.

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

Secs. 300.186-300.189  [Reserved]

Sec. 300.190  Joint establishment of eligibility.

    (a) General. An SEA may require an LEA to establish its
eligibility jointly

[[Page 12433]]

with another LEA if the SEA determines that the LEA would be
ineligible under this section because the agency would not be able
to establish and maintain programs of sufficient size and scope to
effectively meet the needs of children with disabilities.
    (b) Charter school exception. An SEA may not require a charter
school that is an LEA to jointly establish its eligibility under
paragraph (a) of this section unless it is explicitly permitted to
do so under the State's charter school statute.
    (c) Amount of payments. If an SEA requires the joint
establishment of eligibility under paragraph (a) of this section,
the total amount of funds made available to the affected LEAs must
be equal to the sum of the payments that each LEA would have
received under Secs. 300.711-300.714 if the agencies were eligible
for these payments.

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

Sec. 300.191  [Reserved]

Sec. 300.192  Requirements for establishing eligibility.

    (a) Requirements for LEAs in general. LEAs that establish joint
eligibility under this section must--
    (1) Adopt policies and procedures that are consistent with the
State's policies and procedures under Secs. 300.121-300.156; and  
  (2) Be jointly responsible for implementing programs that receive
assistance under Part B of the Act.
    (b) Requirements for educational service agencies in general.
If an educational service agency is required by State law to carry
out programs under Part B of the Act, the joint responsibilities
given to LEAs under Part B of the Act--
    (1) Do not apply to the administration and disbursement of any
payments received by that educational service agency; and
    (2) Must be carried out only by that educational service
agency.     (c) Additional requirement. Notwithstanding any other
provision of Secs. 300.190-300.192, an educational service agency
shall provide for the education of children with disabilities in
the least restrictive environment, as required by Sec. 300.130.

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

Sec. 300.193  [Reserved]

Sec. 300.194  State agency eligibility.

    Any State agency that desires to receive a subgrant for any
fiscal year under Secs. 300.711-300.714 must demonstrate to the
satisfaction of the SEA that--
    (a) All children with disabilities who are participating in
programs and projects funded under Part B of the Act receive FAPE,
and that those children and their parents are provided all the
rights and procedural safeguards described in this part; and
    (b) The agency meets the other conditions of this subpart that
apply to LEAs.

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

Sec. 300.195  [Reserved]

Sec. 300.196  Notification of LEA or State agency in case of
ineligibility.

    If the SEA determines that an LEA or State agency is not
eligible under Part B of the Act, the SEA shall--
    (a) Notify the LEA or State agency of that determination; and 
   (b) Provide the LEA or State agency with reasonable notice and
an opportunity for a hearing.

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

Sec. 300.197  LEA and State agency compliance.

    (a) General. If the SEA, after reasonable notice and an
opportunity for a hearing, finds that an LEA or State agency that
has been determined to be eligible under this section is failing to
comply with any requirement described in Secs. 300.220-300.250, the
SEA shall reduce or may not provide any further payments to the LEA
or State agency until the SEA is satisfied that the LEA or State
agency is complying with that requirement.
    (b) Notice requirement. Any State agency or LEA in receipt of
a notice described in paragraph (a) of this section shall, by means
of public notice, take the measures necessary to bring the pendency
of an action pursuant to this section to the attention of the
public within the jurisdiction of the agency.
    (c) In carrying out its functions under this section, each SEA
shall consider any decision resulting from a hearing under
Secs. 300.507-300.528 that is adverse to the LEA or State agency
involved in the decision.

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

LEA and State Agency Eligibility--Specific Conditions

Sec. 300.220  Consistency with State policies.

    (a) General. The LEA, in providing for the education of
children with disabilities within its jurisdiction, must have in
effect policies, procedures, and programs that are consistent with
the State policies and procedures established under Secs.
300.121-300.156.     (b) Policies on file with SEA. The LEA must
have on file with the SEA the policies and procedures described in
paragraph (a) of this section.

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

Sec. 300.221  Implementation of CSPD.

    The LEA must have on file with the SEA information to
demonstrate that--
    (a) All personnel necessary to carry out Part B of the Act
within the jurisdiction of the agency are appropriately and
adequately prepared, consistent with the requirements of Secs.
300.380-300.382; and
    (b) To the extent the LEA determines appropriate, it shall
contribute to and use the comprehensive system of personnel
development of the State established under Sec. 300.135.

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

Secs. 300.222-300.229  [Reserved]

Sec. 300.230  Use of amounts.

    The LEA must have on file with the SEA information to
demonstrate that amounts provided to the LEA under Part B of the
Act--
    (a) Will be expended in accordance with the applicable
provisions of this part;
    (b) Will be used only to pay the excess costs of providing
special education and related services to children with
disabilities, consistent with Secs. 300.184-300.185; and
    (c) Will be used to supplement State, local, and other Federal
funds and not to supplant those funds.

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

Sec. 300.231  Maintenance of effort.

    (a) General. Except as provided in Secs. 300.232 and 300.233,
funds provided to an LEA under Part B of the Act may not be used to
reduce the level of expenditures for the education of children with
disabilities made by the LEA from local funds below the level of
those expenditures for the preceding fiscal year.
    (b) Information. The LEA must have on file with the SEA
information to demonstrate that the requirements of paragraph (a)
of this section are met.
    (c) Standard. (1) Except as provided in paragraph (c)(2) of
this section, the SEA determines 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 (c)(1)(i) of this section
for any fiscal year

[[Page 12434]]

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--    (i) The most recent fiscal year for which
information is available, if that year is, or is before, the first
fiscal year beginning on or after July 1, 1997; or
    (ii) If later, the most recent fiscal year for which
information is available and the standard in paragraph (c)(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.

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

Sec. 300.232  Exception to maintenance of effort.

    An LEA may reduce the level of expenditures by the LEA under
Part B of the Act below the level of those expenditures for the
preceding fiscal year if the reduction is attributable to the
following:     (a)(1) The voluntary departure, by retirement or
otherwise, or departure for just cause, of special education or
related services personnel, who are replaced by qualified, lower-
salaried staff.     (2) In order for an LEA to invoke the exception
in paragraph (a)(1) of this section, the LEA must ensure that those
voluntary retirements or resignations and replacements are in full
conformity with:     (i) Existing school board policies in the
agency;
    (ii) The applicable collective bargaining agreement in effect
at that time; and
    (iii) Applicable State statutes.
    (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.

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

Sec. 300.233  Treatment of Federal funds in certain fiscal years.

    (a)(1) Subject to paragraphs (a)(2) and (b) of this section,
for any fiscal year for which amounts appropriated to carry out
section 611 of the Act exceeds $4,100,000,000, an LEA may treat as
local funds up to 20 percent of the amount of funds it receives
under Part B of the Act that exceeds the amount it received under
Part B of the Act for the previous fiscal year.
    (2) The requirements of Secs. 300.230(c) and 300.231 do not
apply with respect to the amount that may be treated as local funds
under paragraph (a)(1) of this section.
    (b) If an SEA determines that an LEA is not meeting the
requirements of this part, the SEA may prohibit the LEA from
treating funds received under Part B of the Act as local funds
under paragraph (a)(1) of this section for any fiscal year, but
only if it is authorized to do so by the State constitution or a
State statute.

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

Sec. 300.234  Schoolwide programs under title I of the ESEA.

    (a) General; limitation on amount of Part B funds used. An LEA
may use funds received under Part B of the Act for any fiscal year
to carry out a schoolwide program under section 1114 of the
Elementary and Secondary Education Act of 1965, except that the
amount used in any schoolwide program may not exceed--
    (1)(i) The amount received by the LEA under Part B for that
fiscal year; divided by
    (ii) The number of children with disabilities in the
jurisdiction of the LEA; 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 Secs. 300.230(b) and (c). 
   (2) The funds may be used without regard to the requirements of
Sec. 300.230(a).
    (c) Meeting other Part B requirements. Except as provided in
paragraph (b) of this section, all other requirements of Part B
must be met by an LEA using Part B funds in accordance with
paragraph (a) of this section, 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 IDEA.

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

Sec. 300.235  Permissive use of funds.

    (a) General. Subject to paragraph (b) of this section, funds
provided to an LEA under Part B of the Act may be used for the
following activities:
    (1) Services and aids that also benefit nondisabled children.
For the costs of special education and related services and
supplementary aids and services provided in a regular class or
other education-related setting to a child with a disability in
accordance with the IEP of the child, even if one or more
nondisabled children benefit from these services.
    (2) Integrated and coordinated services system. To develop and
implement a fully integrated and coordinated services system in
accordance with Sec. 300.244.
    (b) Non-applicability of certain provisions. An LEA does not
violate Secs. 300.152, 300.230, and 300.231 based on its use of
funds provided under Part B of the Act in accordance with
paragraphs (a)(1) and (a)(2) of this section.

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

Secs. 300.236-300.239  [Reserved]

Sec. 300.240  Information for SEA.

    (a) The LEA shall provide the SEA with information necessary to
enable the SEA to carry out its duties under Part B of the Act,
including, with respect to Secs. 300.137 and 300.138, information
relating to the performance of children with disabilities
participating in programs carried out under Part B of the Act.
    (b) The LEA must have on file with the SEA an assurance
satisfactory to the SEA that the LEA will comply with the
requirements of paragraph (a) of this section.

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

Sec. 300.241  Treatment of charter schools and their students.

    The LEA must have on file with the SEA information to
demonstrate that in carrying out this part with respect to charter
schools that are public schools of the LEA, the LEA will--
    (a) Serve children with disabilities attending those schools in
the same

[[Page 12435]]

manner as it serves children with disabilities in its other
schools; and
    (b) Provide funds under Part B of the Act to those schools in
the same manner as it provides those funds to its other schools.

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

Sec. 300.242  Public information.

    The LEA must have on file with the SEA information to
demonstrate to the satisfaction of the SEA that it will make
available to parents of children with disabilities and to the
general public all documents relating to the eligibility of the
agency under Part B of the Act.

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

Sec. 300.243  [Reserved]

Sec. 300.244  Coordinated services system.

    (a) General. An LEA may not use more than 5 percent of the
amount the agency receives under Part B of the Act for any fiscal
year, in combination with other amounts (which must include amounts
other than education funds), to develop and implement a coordinated
services system designed to improve results for children and
families, including children with disabilities and their families.
    (b) Activities. In implementing a coordinated services system
under this section, an LEA may carry out activities that include-- 
  (1) Improving the effectiveness and efficiency of service
delivery, including developing strategies that promote
accountability for results;
    (2) Service coordination and case management that facilitate
the linkage of IEPs under Part B of the Act and IFSPs under Part C
of the Act with individualized service plans under multiple Federal
and State programs, such as title I of the Rehabilitation Act of
1973 (vocational rehabilitation), title XIX of the Social Security
Act (Medicaid), and title XVI of the Social Security Act
(supplemental security income);     (3) Developing and implementing
interagency financing strategies for the provision of education,
health, mental health, and social services, including transition
services and related services under the Act; and
    (4) Interagency personnel development for individuals working
on coordinated services.
    (c) Coordination with certain projects under Elementary and
Secondary Education Act of 1965. If an LEA is carrying out a
coordinated services project under title XI of the Elementary and
Secondary Education Act of 1965 and a coordinated services project
under Part B of the Act in the same schools, the agency shall use
the amounts under Sec. 300.244 in accordance with the requirements
of that title.

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

School-Based Improvement Plan

Sec. 300.245  School-based improvement plan.

    (a) General. Each LEA may, in accordance with paragraph (b) of
this section, use funds made available under Part B of the Act to
permit a public school within the jurisdiction of the LEA to
design, implement, and evaluate a school-based improvement plan
that--
    (1) Is consistent with the purposes described in section 651(b)
of the Act; and
    (2) Is designed to improve educational and transitional results
for all children with disabilities and, as appropriate, for other
children consistent with Sec. 300.235(a) and (b) in that public
school.     (b) Authority. (1) General. An SEA may grant authority
to an LEA to permit a public school described in Sec. 300.245
(through a school-based standing panel established under Sec.
300.247(b)) to design, implement, and evaluate a school-based
improvement plan described in Sec. 300.245 for a period not to
exceed 3 years.
    (2) Responsibility of LEA. If an SEA grants the authority
described in paragraph (b)(1) of this section, an LEA that is
granted this authority must have the sole responsibility of
oversight of all activities relating to the design, implementation,
and evaluation of any school-based improvement plan that a public
school is permitted to design under this section.

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

Sec. 300.246  Plan requirements.

    A school-based improvement plan described in Sec. 300.245 must-
-    (a) Be designed to be consistent with the purposes described
in section 651(b) of the Act and to improve educational and
transitional results for all children with disabilities and, as
appropriate, for other children consistent with Sec. 300.235(a) and
(b), who attend the school for which the plan is designed and
implemented;
    (b) Be designed, evaluated, and, as appropriate, implemented by
a school-based standing panel established in accordance with
Sec. 300.247(b);
    (c) Include goals and measurable indicators to assess the
progress of the public school in meeting these goals; and
    (d) Ensure that all children with disabilities receive the
services described in their IEPs.

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

Sec. 300.247  Responsibilities of the LEA.

    An LEA that is granted authority under Sec. 300.245(b) to
permit a public school to design, implement, and evaluate a school-
based improvement plan shall--
    (a) Select each school under the jurisdiction of the agency
that is eligible to design, implement, and evaluate the plan;
    (b) Require each school selected under paragraph (a) of this
section, in accordance with criteria established by the LEA under
paragraph (c) of this section, to establish a school-based standing
panel to carry out the duties described in Sec. 300.246(b);     (c)
Establish--
    (1) Criteria that must be used by the LEA in the selection of
an eligible school under paragraph (a) of this section;
    (2) Criteria that must be used by a public school selected
under paragraph (a) of this section in the establishment of a
school-based standing panel to carry out the duties described in
Sec. 300.246(b) and that ensure that the membership of the panel
reflects the diversity of the community in which the public school
is located and includes, at a minimum--
    (i) Parents of children with disabilities who attend a public
school, including parents of children with disabilities from
unserved and underserved populations, as appropriate;
    (ii) Special education and general education teachers of public
schools;
    (iii) Special education and general education administrators,
or the designee of those administrators, of those public schools;
and     (iv) Related services providers who are responsible for
providing services to the children with disabilities who attend
those public schools; and
    (3) Criteria that must be used by the LEA with respect to the
distribution of funds under Part B of the Act to carry out this
section;
    (d) Disseminate the criteria established under paragraph (c) of
this section to local school district personnel and local parent
organizations within the jurisdiction of the LEA;
    (e) Require a public school that desires to design, implement,
and evaluate a school-based improvement plan to submit an
application at the time, in the manner and accompanied by the
information, that the LEA shall reasonably require; and
    (f) Establish procedures for approval by the LEA of a school-
based improvement plan designed under Part B of the Act.

[[Page 12436]]

(Authority:1413(g)(4))

Sec. 300.248  Limitation.

    A school-based improvement plan described in Sec. 300.245(a)
may be submitted to an LEA for approval only if a consensus with
respect to any matter relating to the design, implementation, or
evaluation of the goals of the plan is reached by the school-based
standing panel that designed the plan.

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

Sec. 300.249  Additional requirements.

    (a) Parental involvement. In carrying out the requirements of
Secs. 300.245-300.250, an LEA shall ensure that the parents of
children with disabilities are involved in the design, evaluation,
and, if appropriate, implementation of school-based improvement
plans in accordance with this section.
    (b) Plan approval. An LEA may approve a school-based
improvement plan of a public school within the jurisdiction of the
agency for a period of 3 years, if--
    (1) The approval is consistent with the policies, procedures,
and practices established by the LEA and in accordance with Secs.
300.245-300.250; and
    (2) A majority of parents of children who are members of the
school-based standing panel, and a majority of other members of the
school-based standing panel that designed the plan, agree in
writing to the plan.

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

Sec. 300.250  Extension of plan.

    If a public school within the jurisdiction of an LEA meets the
applicable requirements and criteria described in Secs. 300.246 and
300.247 at the expiration of the 3-year approval period described
Sec. 300.249(b), the agency may approve a school-based improvement
plan of the school for an additional 3-year period.

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

Secretary of the Interior--Eligibility

Sec. 300.260  Submission of information.

    The Secretary may provide the Secretary of the Interior amounts
under Sec. 300.715(b) and (c) for a fiscal year only if the
Secretary of the Interior submits to the Secretary information
that--
    (a) Meets the requirements of section 612(a)(1), (3)--(9),
(10)(B), (C), (11)--(12), (14)--(17), (20), (21) and (22) of the
Act (including monitoring and evaluation activities);
    (b) Meets the requirements of section 612(b) and (e) of the
Act;     (c) Meets the requirements of section 613(a)(1),
(2)(A)(i), (6), and (7) of the Act;
    (d) Meets the requirements of this part that implement the
sections of the Act listed in paragraphs (a)-(c) of this section;
    (e) Includes a description of how the Secretary of the Interior
will coordinate the provision of services under Part B of the Act
with LEAs, tribes and tribal organizations, and other private and
Federal service providers;
    (f) Includes an assurance that there are public hearings,
adequate notice of the hearings, and an opportunity for comment
afforded to members of tribes, tribal governing bodies, and
affected local school boards before the adoption of the policies,
programs, and procedures described in paragraph (a) of this
section;
    (g) Includes an assurance that the Secretary of the Interior
will provide the information that the Secretary may require to
comply with section 618 of the Act, including data on the number of
children with disabilities served and the types and amounts of
services provided and needed;
    (h)(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 (if
appropriate) equipment and medical or personal supplies, as needed
for a child with a disability to remain in a school or program; and
    (i) 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 Secs.
300.261-300.267, and any agreements entered into between the
Secretary of the Interior and other entities under Part B of the
Act, and will fulfill its duties under Part B of the Act. Section
616(a) of the Act applies to the information described in this
section.

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

Sec. 300.261  Public participation.

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

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

Sec. 300.262  Use of Part B funds.

    (a) The Department of the Interior may use five percent of its
payment under Sec. 300.715(b) and (c) in any fiscal year, or
$500,000, whichever is greater, for administrative costs in
carrying out the provisions of this part.
    (b) Payments to the Secretary of the Interior under Sec.
300.716 must be used in accordance with that section.

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

Sec. 300.263  Plan for coordination of services.

    (a) The Secretary of the Interior shall develop and implement
a plan for the coordination of services for all Indian children
with disabilities residing on reservations covered under Part B of
the Act.     (b) The plan must provide for the coordination of
services benefiting these children from whatever source, including
tribes, the Indian Health Service, other BIA divisions, and other
Federal agencies.     (c) In developing the plan, the Secretary of
the Interior shall consult with all interested and involved
parties.
    (d) The plan must be based on the needs of the children and the
system best suited for meeting those needs, and may involve the
establishment of cooperative agreements between the BIA, other
Federal agencies, and other entities.
    (e) The plan also must be distributed upon request to States,
SEAs and LEAs, and other agencies providing services to infants,
toddlers, and children with disabilities, to tribes, and to other
interested parties.

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

Sec. 300.264  Definitions.

    (a) Indian. As used in this part, the term Indian means an
individual who is a member of an Indian tribe.
    (b) Indian tribe. As used in this part, the term Indian tribe
means any Federal or State Indian tribe, band, rancheria, pueblo,
colony, or community, including any Alaska Native village or
regional village corporation (as defined in or established under
the Alaska Native Claims Settlement Act).

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

Sec. 300.265  Establishment of advisory board.

    (a) To meet the requirements of section 612(a)(21) of the Act,
the Secretary of the Interior shall establish, not later than
December 4, 1997 under

[[Page 12437]]

the BIA, an advisory board composed of individuals involved in or
concerned with the education and provision of services to Indian
infants, toddlers, and children with disabilities, including
Indians with disabilities, Indian parents of the children,
teachers, service providers, State and local educational officials,
representatives of tribes or tribal organizations, representatives
from State Interagency Coordinating Councils under section 641 of
the Act in States having reservations, and other members
representing the various divisions and entities of the BIA. The
chairperson must be selected by the Secretary of the Interior.
    (b) The advisory board shall--
    (1) Assist in the coordination of services within the BIA and
with other local, State, and Federal agencies in the provision of
education for infants, toddlers, and children with disabilities;
    (2) Advise and assist the Secretary of the Interior in the
performance of the Secretary's responsibilities described in
section 611(i) of the Act;
    (3) Develop and recommend policies concerning effective inter-
and intra-agency collaboration, including modifications to
regulations, and the elimination of barriers to inter- and intra-
agency programs and activities;
    (4) Provide assistance and disseminate information on best
practices, effective program coordination strategies, and
recommendations for improved educational programming for Indian
infants, toddlers, and children with disabilities; and
    (5) Provide assistance in the preparation of information
required under Sec. 300.260(g).

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

Sec. 300.266  Annual report by advisory board.

    (a) General. The advisory board established under Sec. 300.265
shall prepare and submit to the Secretary of the Interior and to
the Congress an annual report containing a description of the
activities of the advisory board for the preceding year.
    (b) Report to the Secretary. The Secretary of the Interior
shall make available to the Secretary the report described in
paragraph (a) of this section.

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

Sec. 300.267  Applicable regulations.

    The Secretary of the Interior shall comply with the
requirements of Secs. 300.301-300.303, 300.305-300.309,
300.340-300.348, 300.351, 300.360-300.382, 300.400-300.402,
300.500-300.586, 300.600-300.621, and 300.660-300.662.

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

Public Participation

Sec. 300.280  Public hearings before adopting State policies and
procedures.

    Prior to its adoption of State policies and procedures related
to this part, the SEA shall--
    (a) Make the policies and procedures available to the general
public;
    (b) Hold public hearings; and
    (c) Provide an opportunity for comment by the general public on
the policies and procedures.

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

Sec. 300.281  Notice.

    (a) The SEA shall provide adequate notice to the general public
of the public hearings.
    (b) The notice must be in sufficient detail to inform the
general public about--
    (1) The purpose and scope of the State policies and procedures
and their relation to Part B of the Act;
    (2) The availability of the State policies and procedures;    
(3) The date, time, and location of each public hearing;     (4)
The procedures for submitting written comments about the policies
and procedures; and
    (5) The timetable for submitting the policies and procedures to
the Secretary for approval.
    (c) The notice must be published or announced--
    (1) In newspapers or other media, or both, with circulation
adequate to notify the general public about the hearings; and    
(2) Enough in advance of the date of the hearings to afford
interested parties throughout the State a reasonable opportunity to
participate.

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

Sec. 300.282  Opportunity to participate; comment period.

    (a) The SEA shall conduct the public hearings at times and
places that afford interested parties throughout the State a
reasonable opportunity to participate.
    (b) The policies and procedures must be available for comment
for a period of at least 30 days following the date of the notice
under Sec. 300.281.

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

Sec. 300.283  Review of public comments before adopting policies
and procedures.

    Before adopting the policies and procedures, the SEA shall--  
 (a) Review and consider all public comments; and
    (b) Make any necessary modifications in those policies and
procedures.

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

Sec. 300.284  Publication and availability of approved policies and
procedures.

    After the Secretary approves a State's policies and procedures,
the SEA shall give notice in newspapers or other media, or both,
that the policies and procedures are approved. The notice must name
places throughout the State where the policies and procedures are
available for access by any interested person.

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

Subpart C--Services

Free Appropriate Public Education

Sec. 300.300  Provision of FAPE.

    (a) General. (1) Subject to paragraphs (b) and (c) of this
section and Sec. 300.311, each State receiving assistance under
this part shall ensure that FAPE is available to all children with
disabilities, aged 3 through 21, residing in the State, including
children with disabilities who have been suspended or expelled from
school.
    (2) As a part of its obligation under paragraph (a)(1) of this
section, each State must ensure that the requirements of Sec.
300.125 (to identify, locate, and evaluate all children with
disabilities) are implemented by public agencies throughout the
State.
    (3)(i) The services provided to the child under this part
address all of the child's identified special education and related
services needs described in paragraph (a) of this section.
    (ii) The services and placement needed by each child with a
disability to receive FAPE must be based on the child's unique
needs and not on the child's disability.
    (b) Exception for age ranges 3-5 and 18-21. This paragraph
provides the rules for applying the requirements in paragraph (a)
of this section to children with disabilities aged 3, 4, 5, 18, 19,
20, and 21 within the State:
    (1) If State law or a court order requires the State to provide
education for children with disabilities in any disability category
in any of these age groups, the State must make FAPE available to
all children with disabilities of the same age who have that
disability.     (2) If a public agency provides education to
nondisabled children in any of these age groups, it must make FAPE
available to at least a proportionate number of children with
disabilities of the same age.     (3) If a public agency provides
education to 50 percent or more of its

[[Page 12438]]

children with disabilities in any disability category in any of
these age groups, it must make FAPE available to all its children
with disabilities of the same age who have that disability. This
provision does not apply to children aged 3 through 5 for any
fiscal year for which the State receives a grant under section
619(a)(1) of the Act.     (4) If a public agency provides education
to a child with a disability in any of these age groups, it must
make FAPE available to that child and provide that child and his or
her parents all of the rights under Part B of the Act and this
part.
    (5) A State is not required to make FAPE available to a child
with a disability in one of these age groups if--
    (i) State law expressly prohibits, or does not authorize, the
expenditure of public funds to provide education to nondisabled
children in that age group; or
    (ii) The requirement is inconsistent with a court order that
governs the provision of free public education to children with
disabilities in that State.
    (c) Children aged 3 through 21 on Indian reservations. With the
exception of children identified in Sec. 300.715(b) and (c), the
SEA shall ensure that all of the requirements of Part B of the Act
are implemented for all children with disabilities aged 3 through
21 on reservations.

(Authority: 20 U.S.C. 1412(a)(1), 1411(i)(1)(C), S. Rep. No. 94--
168, p. 19 (1975))

Sec. 300.301  FAPE--methods and payments.

    (a) Each State may use whatever State, local, Federal, and
private sources of support are available in the State to meet the
requirements of this part. For example, if it is necessary to place
a child with a disability in a residential facility, a State could
use joint agreements between the agencies involved for sharing the
cost of that placement.
    (b) Nothing in this part relieves an insurer or similar third
party from an otherwise valid obligation to provide or to pay for
services provided to a child with a disability.
    (c) Consistent with Secs. 300.342(b)(2) and 300.343(b), 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.

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

Sec. 300.302  Residential placement.

    If placement in a public or private residential program is
necessary to provide special education and related services to a
child with a disability, the program, including non-medical care
and room and board, must be at no cost to the parents of the child.

(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))

Sec. 300.303  Proper functioning of hearing aids.

    Each public agency shall ensure that the hearing aids worn in
school by children with hearing impairments, including deafness,
are functioning properly.

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

Sec. 300.304  Full educational opportunity goal.

    Each SEA shall ensure that each public agency establishes and
implements a goal of providing full educational opportunity to all
children with disabilities in the area served by the public agency.

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

Sec. 300.305  Program options.

    Each public agency shall take steps to ensure that its children
with disabilities have available to them the variety of educational
programs and services available to nondisabled children in the area
served by the agency, including art, music, industrial arts,
consumer and homemaking education, and vocational education.

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

Sec. 300.306  Nonacademic services.

    (a) Each public agency shall take steps 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.

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

Sec. 300.307  Physical education.

    (a) General. Physical education services, specially designed if
necessary, must be made available to every child with a disability
receiving FAPE.
    (b) Regular physical education. Each child with a disability
must be afforded the opportunity to participate in the regular
physical education program available to nondisabled children
unless--    (1) The child is enrolled full time in a separate
facility; or     (2) The child needs specially designed physical
education, as prescribed in the child's IEP.
    (c) Special physical education. If specially designed physical
education is prescribed in a child's IEP, the public agency
responsible for the education of that child shall provide the
services directly or make arrangements for those services to be
provided through other public or private programs.
    (d) Education in separate facilities. The public agency
responsible for the education of a child with a disability who is
enrolled in a separate facility shall ensure that the child
receives appropriate physical education services in compliance with
paragraphs (a) and (c) of this section.

(Authority: 20 U.S.C. 1412(a)(25), 1412(a)(5)(A))

Sec. 300.308  Assistive technology.

    (a) Each public agency shall ensure that assistive technology
devices or assistive technology services, or both, as those terms
are defined in Secs. 300.5-300.6, are made available to a child
with a disability if required as a part of the child's--
    (1) Special education under Sec. 300.26;
    (2) Related services under Sec. 300.24; or
    (3) Supplementary aids and services under Secs. 300.28 and
300.550(b)(2).
    (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.

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

Sec. 300.309  Extended school year services.

    (a) General. (1) Each public agency shall 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 Secs. 300.340-300.350, 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.

[[Page 12439]]

    (b) Definition. As used in this section, the term extended
school year services means special education and related services
that--    (1) Are provided to a child with a disability--
    (i) Beyond the normal school year of the public agency;    
(ii) In accordance with the child's IEP; and
    (iii) At no cost to the parents of the child; and
    (2) Meet the standards of the SEA.

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

Sec. 300.310  [Reserved]

Sec. 300.311  FAPE requirements for students with disabilities in
adult prisons.

    (a) Exception to FAPE for certain students. Except as provided
in Sec. 300.122(a)(2)(ii), the obligation to make FAPE available to
all children with disabilities does not apply with respect to
students aged 18 through 21 to the extent that State law does not
require that special education and related services under Part B of
the Act be provided to students with disabilities who, in the last
educational placement prior to their incarceration in an adult
correctional facility--
    (1) Were not actually identified as being a child with a
disability under Sec. 300.7; and
    (2) Did not have an IEP under Part B of the Act.
    (b) Requirements that do not apply. The following requirements
do not apply to students with disabilities who are convicted as
adults under State law and incarcerated in adult prisons:
    (1) The requirements contained in Sec. 300.138 and
Sec. 300.347(a)(5)(i) (relating to participation of children with
disabilities in general assessments).
    (2) The requirements in Sec. 300.347(b) (relating to transition
planning and transition services), with respect to the students
whose eligibility under Part B of the Act will end, because of
their age, before they will be eligible to be released from prison
based on consideration of their sentence and eligibility for early
release.     (c) Modifications of IEP or placement. (1) Subject to
paragraph (c)(2) of this section, the IEP team of a student with a
disability, who is convicted as an adult under State law and
incarcerated in an adult prison, may modify the student's IEP or
placement if the State has demonstrated a bona fide security or
compelling penological interest that cannot otherwise be
accommodated.
    (2) The requirements of Secs. 300.340(a) and 300.347(a)
relating to IEPs, and 300.550(b) relating to LRE, do not apply with
respect to the modifications described in paragraph (c)(1) of this
section.

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

Sec. 300.312  Children with disabilities in public charter schools.

    (a) Children with disabilities who attend public charter
schools and their parents retain all rights under this part.
    (b) If the public charter school is an LEA, consistent with
Sec. 300.17, that receives funding under Secs. 300.711-300.714,
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.
    (c) If the public charter school is a school of an LEA that
receives funding under Secs. 300.711-300.714 and includes other
public schools--
    (1) 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
    (2) The LEA must meet the requirements of Sec. 300.241.    
(d)(1) If the public charter school is not an LEA receiving funding
under Secs. 300.711-300.714, or a school that is part of an LEA
receiving funding under Secs. 300.711-300.714, 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 Sec. 300.600.

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

Sec. 300.313  Children experiencing developmental delays.

    (a) Use of term developmental delay. (1) A State that adopts
the term developmental delay under Sec. 300.7(b) determines whether
it applies to children aged 3 through 9, or to a subset of that age
range (e.g., ages 3 through 5).
    (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 Sec. 300.7(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.
    (b) Use of individual disability categories. (1) Any State or
LEA that elects to use the term developmental delay for children
aged 3 through 9 may also use one or more of the disability
categories described in Sec. 300.7 for any child within that age
range if it is determined, through the evaluation conducted under
Secs. 300.530-300.536, that the child has an impairment described
in Sec. 300.7, and because of that impairment needs special
education and related services.
    (2) The State or LEA shall ensure that all of the child's
special education and related services needs that have been
identified through the evaluation described in paragraph (b)(1) of
this section are appropriately addressed.
    (c) Common definition of developmental delay. A State may adopt
a common definition of developmental delay for use in programs
under Parts B and C of the Act.

(Authority: 20 U.S.C. 1401(3)(A) and (B))

Evaluations and Reevaluations

Sec. 300.320  Initial evaluations.

    (a) Each public agency shall ensure that a full and individual
evaluation is conducted for each child being considered for special
education and related services under Part B of the Act--
    (1) To determine if the child is a ``child with a disability''
under Sec. 300.7; and
    (2) To determine the educational needs of the child.
    (b) In implementing the requirements of paragraph (a) of this
section, the public agency shall ensure that--
    (1) The evaluation is conducted in accordance with the
procedures described in Secs. 300.530-300.535; and
    (2) The results of the evaluation are used by the child's IEP
team in meeting the requirements of Secs. 300.340-300.350.

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

Sec. 300.321  Reevaluations.

    Each public agency shall ensure that--
    (a) A reevaluation of each child with a disability is conducted
in accordance with Sec. 300.536; and
    (b) The results of any reevaluations are addressed by the
child's IEP team under Secs. 300.340-300.349 in reviewing and, as
appropriate, revising the child's IEP.

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

[[Page 12440]]

Secs. 300.322-300.324  [Reserved]

Individualized Education Programs

Sec. 300.340  Definitions related to IEPs.

    (a) Individualized education program. As used in this part, the
term individualized education program or IEP means a written
statement for a child with a disability that is developed,
reviewed, and revised in a meeting in accordance with Secs.
300.341-300.350.
    (b) Participating agency. As used in Sec. 300.348,
participating agency means a State or local agency, other than the
public agency responsible for a student's education, that is
financially and legally responsible for providing transition
services to the student.

(Authority: 20 U.S.C. 1401(11), 1412(a)(10)(B))

Sec. 300.341  Responsibility of SEA and other public agencies for
IEPs.

    (a) The SEA shall ensure that each public agency--
    (1) Except as provided in Secs. 300.450-300.462, develops and
implements an IEP for each child with a disability served by that
agency; and
    (2) Ensures that an IEP is developed and implemented for each
eligible child placed in or referred to a private school or
facility by the public agency.
    (b) Paragraph (a) of this section applies to--
    (1) The SEA, if it is involved in providing direct services to
children with disabilities, in accordance with Sec. 300.370(a) and
(b)(1); and
    (2) Except as provided in Sec. 300.600(d), the other public
agencies described in Sec. 300.2, including LEAs and other State
agencies that provide special education and related services either
directly, by contract, or through other arrangements.

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

Sec. 300.342  When IEPs must be in effect.

    (a) General. At the beginning of each school year, each public
agency shall have an IEP in effect for each child with a disability
within its jurisdiction.
    (b) Implementation of IEPs. Each public agency shall ensure
that--    (1) An IEP--
    (i) Is in effect before special education and related services
are provided to an eligible child under this part; and
    (ii) Is implemented as soon as possible following the meetings
described under Sec. 300.343;
    (2) The child's IEP is accessible to each regular education
teacher, special education teacher, related service provider, and
other service provider who is responsible for its implementation;
and     (3) Each teacher and provider described in paragraph (b)(2)
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.
    (c) IEP or IFSP for children aged 3 through 5. (1) In the case
of a child with a disability aged 3 through 5 (or, at the
discretion of the SEA a 2-year-old child with a disability who will
turn age 3 during the school year), an IFSP that contains the
material described in section 636 of the Act, and that is developed
in accordance with Secs. 300.341-300.346 and Secs. 300.349-300.350,
may serve as the IEP of the child if using that plan as the IEP is-
-
    (i) Consistent with State policy; and
    (ii) Agreed to by the agency and the child's parents.
    (2) In implementing the requirements of paragraph (c)(1) of
this section, the public agency shall--
    (i) Provide to the child's parents a detailed explanation of
the differences between an IFSP and an IEP; and
    (ii) If the parents choose an IFSP, obtain written informed
consent from the parents.
    (d) Effective date for new requirements. All IEPs developed,
reviewed, or revised on or after July 1, 1998 must meet the
requirements of Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1414(d)(2)(A) and (B), Pub. L. 105-17, sec.
201(a)(2)(A), (C)

Sec. 300.343  IEP meetings.

    (a) General. Each public agency is responsible for initiating
and conducting meetings for the purpose of developing, reviewing,
and revising the IEP of a child with a disability (or, if
consistent with Sec. 300.342(c), an IFSP).
    (b) Initial IEPs; provision of services. (1) Each public agency
shall ensure that within a reasonable period of time following the
agency's receipt of parent consent to an initial evaluation of a
child--
    (i) The child is evaluated; and
    (ii) If determined eligible under this part, special education
and related services are made available to the child in accordance
with an IEP.
    (2) In meeting the requirement in paragraph (b)(1) of this
section, a meeting to develop an IEP for the child must be
conducted within 30-days of a determination that the child needs
special education and related services.
    (c) Review and revision of IEPs. Each public agency shall
ensure that the IEP team--
    (1) Reviews the child's IEP periodically, but not less than
annually, to determine whether the annual goals for the child are
being achieved; and
    (2) Revises the IEP as appropriate to address--
    (i) Any lack of expected progress toward the annual goals
described in Sec. 300.347(a), and in the general curriculum, if
appropriate;     (ii) The results of any reevaluation conducted
under Sec. 300.536;     (iii) Information about the child provided
to, or by, the parents, as described in Sec. 300.533(a)(1);
    (iv) The child's anticipated needs; or
    (v) Other matters.

(Authority: 20 U.S.C. 1413(a)(1), 1414(d)(4)(A))

Sec. 300.344  IEP team.

    (a) General. The public agency shall ensure that the IEP team
for each child with a disability includes--
    (1) The parents of the child;
    (2) At least one regular education teacher of the child (if the
child is, or may be, participating in the regular education
environment);
    (3) At least one special education teacher of the child, or if
appropriate, at least 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 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 (6) of this section;
    (6) At the discretion of the parent or the agency, other
individuals who have knowledge or special expertise regarding the
child, including related services personnel as appropriate; and   
 (7) If appropriate, the child.
    (b) Transition services participants. (1) Under paragraph
(a)(7) of this section, the public agency shall invite a student
with a disability of any age to attend his or her IEP meeting if a
purpose of the meeting will be the consideration of--
    (i) The student's transition services needs under
Sec. 300.347(b)(1);
    (ii) The needed transition services for the student under Sec.
300.347(b)(2); or
    (iii) Both.
    (2) If the student does not attend the IEP meeting, the public
agency shall

[[Page 12441]]

take other steps to ensure that the student's preferences and
interests are considered.
    (3)(i) In implementing the requirements of Sec. 300.347(b)(2),
the public agency also shall invite a representative of any other
agency that is likely to be responsible for providing or paying for
transition services.
    (ii) If an agency invited to send a representative to a meeting
does not do so, the public agency shall take other steps to obtain
participation of the other agency in the planning of any transition
services.
    (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 shall be
made by the party (parents or public agency) who invited the
individual to be a member of the IEP.
    (d) Designating a public agency representative. A public agency
may designate another 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.

(Authority: 20 U.S.C. 1401(30), 1414(d)(1)(A)(7), (B))

Sec. 300.345  Parent participation.

    (a) Public agency responsibility--general. Each public agency
shall take steps to ensure that one or both of the parents of a
child with a disability are present at each IEP meeting or are
afforded the opportunity to participate, including--
    (1) Notifying parents of the meeting early enough to ensure
that they will have an opportunity to attend; and
    (2) Scheduling the meeting at a mutually agreed on time and
place.     (b) 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 Sec. 300.344(a)(6)
and (c) (relating to the participation of other individuals on the
IEP team who have knowledge or special expertise about the child).
    (2) For a student with a disability beginning at age 14, or
younger, if appropriate, the notice must also--
    (i) Indicate that a purpose of the meeting will be the
development of a statement of the transition services needs of the
student required in Sec. 300.347(b)(1); and
    (ii) Indicate that the agency will invite the student.
    (3) For a student with a disability beginning at age 16, or
younger, if appropriate, the notice must--
    (i) Indicate that a purpose of the meeting is the consideration
of needed transition services for the student required in
Sec. 300.347(b)(2);
    (ii) Indicate that the agency will invite the student; and    
(iii) Identify any other agency that will be invited to send a
representative.
    (c) Other methods to ensure parent participation. If neither
parent can attend, the public agency shall use other methods to
ensure parent participation, including individual or conference
telephone calls.     (d) Conducting an IEP 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 have
a record of its attempts to arrange a mutually agreed on time and
place, such as--
    (1) Detailed records of telephone calls made or attempted and
the results of those calls;
    (2) Copies of correspondence sent to the parents and any
responses received; and
    (3) Detailed records of visits made to the parent's home or
place of employment and the results of those visits.
    (e) Use of interpreters or other action, as appropriate. The
public agency shall take whatever action is necessary to ensure
that the parent understands the proceedings at the IEP 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 shall 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))

Sec. 300.346  Development, review, and revision of IEP.

    (a) Development of IEP. (1) General. In developing each child's
IEP, the IEP team, shall consider--
    (i) The strengths of the child and the concerns of the parents
for enhancing the education of their child;
    (ii) The results of the initial or most recent evaluation of
the child; and
    (iii) As appropriate, the results of the child's performance on
any general State or district-wide assessment programs.
    (2) Consideration of special factors. The IEP team also shall-- 
  (i) In the case of a child whose behavior impedes his or her
learning or that of others, consider, if appropriate, strategies,
including positive behavioral interventions, strategies, and
supports to address that behavior;
    (ii) In the case of a child with limited English proficiency,
consider the language needs of the child as 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 requires assistive technology
devices and services.
    (b) Review and Revision of IEP. In conducting a meeting to
review, and, if appropriate, revise a child's IEP, the IEP team
shall consider the factors described in paragraph (a) of this
section.
    (c) Statement in IEP. If, in considering the special factors
described in paragraphs (a)(1) and (2) of this section, the IEP
team determines that a child needs a particular device or service
(including an intervention, accommodation, or other program
modification) in order for the child to receive FAPE, the IEP team
must include a statement to that effect in the child's IEP.
    (d) Requirement with respect to regular education teacher. The
regular education teacher of a child with a disability, as a member
of the IEP team, must, to the extent appropriate, participate in
the development, review, and revision of the child's IEP, including
assisting in the determination of--
    (1) Appropriate positive behavioral interventions and
strategies for the child; and
    (2) Supplementary aids and services, program modifications or
supports for school personnel that will be provided for the child,
consistent with Sec. 300.347(a)(3).

[[Page 12442]]

    (e) Construction. Nothing in this section shall be construed to
require the IEP team to include information under one component of
a child's IEP that is already contained under another component of
the child's IEP.

(Authority: 20 U.S.C. 1414(d)(3) and (4)(B) and (e))

Sec. 300.347  Content of IEP.

    (a) General. The IEP for each child with a disability must
include--
    (1) A statement of the child's present levels of educational
performance, including--
    (i) How the child's disability affects the child's involvement
and progress in the general curriculum (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) A statement of measurable annual goals, including benchmarks or
short-term objectives, related to--
    (i) Meeting the child's needs that result from the child's
disability to enable the child to be involved in and progress in
the general curriculum (i.e., the same curriculum as for
nondisabled children), or for preschool children, as appropriate,
to participate in appropriate activities; and
    (ii) Meeting each of the child's other educational needs that
result from the child's disability;
    (3) A statement of the special education and related services
and supplementary aids and services to be provided to the child, or
on behalf of the child, and a statement of the program
modifications or supports for school personnel that will be
provided for the child--    (i) To advance appropriately toward
attaining the annual goals;     (ii) To be involved and progress in
the general curriculum in accordance with paragraph (a)(1) of this
section and to participate in extracurricular and other nonacademic
activities; and
    (iii) To be educated and participate with other children with
disabilities and nondisabled children in the activities described
in this section;
    (4) An explanation of the extent, if any, to which the child
will not participate with nondisabled children in the regular class
and in the activities described in paragraph (a)(3) of this
section;     (5)(i) A statement of any individual modifications in
the administration of State or district-wide assessments of student
achievement that are needed in order for the child to participate
in the assessment; and
    (ii) If the IEP team determines that the child will not
participate in a particular State or district-wide assessment of
student achievement (or part of an assessment), a statement of--
    (A) Why that assessment is not appropriate for the child; and 
   (B) How the child will be assessed;
    (6) The projected date for the beginning of the services and
modifications described in paragraph (a)(3) of this section, and
the anticipated frequency, location, and duration of those services
and modifications; and
    (7) A statement of--
    (i) How the child's progress toward the annual goals described
in paragraph (a)(2) of this section will be measured; and
    (ii) How the child's parents will be regularly informed
(through such means as periodic report cards), at least as often as
parents are informed of their nondisabled children's progress, of--
    (A) Their child's progress toward the annual goals; and     (B)
The extent to which that progress is sufficient to enable the child
to achieve the goals by the end of the year.
    (b) Transition services. The IEP must include--
    (1) For each student with a disability beginning at age 14 (or
younger, if determined appropriate by the IEP team), and updated
annually, a statement of the transition service needs of the
student under the applicable components of the student's IEP that
focuses on the student's courses of study (such as participation in
advanced-placement courses or a vocational education program); and
    (2) For each student beginning at age 16 (or younger, if
determined appropriate by the IEP team), a statement of needed
transition services for the student, including, if appropriate, a
statement of the interagency responsibilities or any needed
linkages.
    (c) Transfer of rights. In a State that transfers rights at the
age majority, beginning at least one year before a student reaches
the age of majority under State law, the student's IEP must include
a statement that the student has been informed of his or her rights
under Part B of the Act, if any, that will transfer to the student
on reaching the age of majority, consistent with Sec. 300.517.
    (d) Students with disabilities convicted as adults and
incarcerated in adult prisons. Special rules concerning the content
of IEPs for students with disabilities convicted as adults and
incarcerated in adult prisons are contained in Sec. 300.311(b) and
(c).

(Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii))

Sec. 300.348  Agency responsibilities for transition services.

    (a) If a participating agency, other than the public agency,
fails to provide the transition services described in the IEP in
accordance with Sec. 300.347(b)(1), the public agency shall
reconvene the IEP team to identify alternative strategies to meet
the transition objectives for the student set out in the IEP.
    (b) Nothing in this part relieves any participating agency,
including a State vocational rehabilitation agency, of the
responsibility to provide or pay for any transition service that
the agency would otherwise provide to students with disabilities
who meet the eligibility criteria of that agency.

(Authority: 20 U.S.C. 1414(d)(5); 1414(d)(1)(A)(vii))

Sec. 300.349  Private school placements by public agencies.

    (a) Developing 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 shall initiate and conduct a meeting to
develop an IEP for the child in accordance with Secs. 300.346 and
300.347.
    (2) The agency shall ensure that a representative of the
private school or facility attends the meeting. If the
representative cannot attend, the agency shall use other methods to
ensure participation by the private school or facility, including
individual or conference telephone calls.
    (b) Reviewing and revising 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 shall ensure that the
parents and an agency representative--
    (i) Are involved in any decision about the child's IEP; and   
 (ii) Agree to any proposed changes in the 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))

Sec. 300.350  IEP--accountability.

    (a) Provision of services. Subject to paragraph (b) of this
section, each public agency must--

[[Page 12443]]

    (1) Provide special education and related services to a child
with a disability in accordance with the child's IEP; and
    (2) Make a good faith effort to assist the child to achieve the
goals and objectives or benchmarks listed in the IEP.
    (b) Accountability. Part B of the Act does not require that any
agency, teacher, or other person be held accountable if a child
does not achieve the growth projected in the annual goals and
benchmarks or objectives. However, the Act does not prohibit a
State or public agency from establishing its own accountability
systems regarding teacher, school, or agency performance.
    (c) Construction--parent rights. Nothing in this section limits
a parent's right to ask for revisions of the child's IEP or to
invoke due process procedures if the parent feels that the efforts
required in paragraph (a) of this section are not being made.

(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed.,
July 21, 1975))

Direct Services by the Sea

Sec. 300.360  Use of LEA allocation for direct services.

    (a) General. An SEA shall use the payments that would otherwise
have been available to an LEA or to a State agency to provide
special education and related services directly to children with
disabilities residing in the area served by that local agency, or
for whom that State agency is responsible, if the SEA determines
that the LEA or State agency--
    (1) Has not provided the information needed to establish the
eligibility of the agency under Part B of the Act;
    (2) Is unable to establish and maintain programs of FAPE that
meet the requirements of this part;
    (3) Is unable or unwilling to be consolidated with one or more
LEAs in order to establish and maintain the programs; or
    (4) Has one or more children with disabilities who can best be
served by a regional or State program or service-delivery system
designed to meet the needs of these children.
    (b) SEA responsibility if an LEA does not apply for Part B
funds. (1) If an LEA elects not to apply for its Part B allotment,
the SEA must use those funds to ensure that FAPE is available to
all eligible children residing in the jurisdiction of the LEA.
    (2)(i) If the local allotment is not sufficient to meet the
purpose described in paragraph (b)(1) of this section, the SEA must
ensure compliance with Secs. 300.121(a) and 300.300(a).
    (ii) Consistent with Sec. 300.301(a), the [State; SEA] may use
whatever funding sources are available in the State to implement
paragraph (b)(2)(i) of this section.
    (c) SEA administrative procedures. (1) In meeting the
requirements in paragraph (a) of this section, the SEA may provide
special education and related services directly, by contract, or
through other arrangements.
    (2) The excess cost requirements of Secs. 300.184 and 300.185
do not apply to the SEA.

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

Sec. 300.361  Nature and location of services.

    The SEA may provide special education and related services
under Sec. 300.360(a) in the manner and at the location it
considers appropriate (including regional and State centers).
However, the manner in which the education and services are
provided must be consistent with the requirements of this part
(including the LRE provisions of Secs. 300.550-300.556).

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

Secs. 300.362-300.369  [Reserved]

Sec. 300.370  Use of SEA allocations.

    (a) Each State shall use any funds it retains under Sec.
300.602 and does not use for administration under Sec. 300.620 for
any of the following:
    (1) Support and direct services, including technical assistance
and personnel development and training.
    (2) Administrative costs of monitoring and complaint
investigation, but only to the extent that those costs exceed the
costs incurred for those activities during fiscal year 1985.
    (3) To establish and implement the mediation process required
by Sec. 300.506, including providing for the costs of mediators and
support personnel.
    (4) To assist LEAs in meeting personnel shortages.
    (5) To develop a State Improvement Plan under subpart 1 of Part
D of the Act.
    (6) Activities at the State and local levels to meet the
performance goals established by the State under Sec. 300.137 and
to support implementation of the State Improvement Plan under
subpart 1 of Part D of the Act if the State receives funds under
that subpart.     (7) To supplement other amounts used to develop
and implement a Statewide coordinated services system designed to
improve results for children and families, including children with
disabilities and their families, but not to exceed one percent of
the amount received by the State under section 611 of the Act. This
system must be coordinated with and, to the extent appropriate,
build on the system of coordinated services developed by the State
under Part C of the Act.
    (8) For subgrants to LEAs for the purposes described in Sec.
300.622 (local capacity building).
    (b) For the purposes of paragraph (a) of this section--
    (1) Direct services means services provided to a child with a
disability by the State directly, by contract, or through other
arrangements; and
    (2) Support services includes implementing the comprehensive
system of personnel development under Secs. 300.380-300.382,
recruitment and training of mediators, hearing officers, and
surrogate parents, and public information and parent training
activities relating to FAPE for children with disabilities.
    (c) Of the funds an SEA retains under paragraph (a) of this
section, the SEA may use the funds directly, or distribute them to
LEAs on a competitive, targeted, or formula basis.

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

Sec. 300.371  [Reserved]

Sec. 300.372  Nonapplicability of requirements that prohibit
commingling and supplanting of funds.

    A State may use funds it retains under Sec. 300.602 without
regard to--
    (a) The prohibition on commingling of funds in Sec. 300.152;
and     (b) The prohibition on supplanting other funds in Sec.
300.153.

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

Comprehensive System of Personnel Development (CSPD)

Sec. 300.380  General CSPD requirements.

    (a) Each State shall develop and implement a comprehensive
system of personnel development that--
    (1) Is consistent with the purposes of this part and with
section 635(a)(8) of the Act;
    (2) Is designed to ensure an adequate supply of qualified
special education, regular education, and related services
personnel;     (3) Meets the requirements of Secs. 300.381 and
300.382; and     (4) Is updated at least every five years.
    (b) A State that has a State improvement grant has met the
requirements of paragraph (a) of this section.

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

Sec. 300.381  Adequate supply of qualified personnel.

    Each State must include, at least, an analysis of State and
local needs for

[[Page 12444]]

professional development for personnel to serve children with
disabilities that includes, at a minimum--
    (a) The number of personnel providing special education and
related services; and
    (b) Relevant information on current and anticipated personnel
vacancies and shortages (including the number of individuals
described in paragraph (a) of this section with temporary
certification), and on the extent of certification or retraining
necessary to eliminate these shortages, that is based, to the
maximum extent possible, on existing assessments of personnel
needs.

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

Sec. 300.382  Improvement strategies.

    Each State must describe the strategies the State will use to
address the needs identified under Sec. 300.381. These strategies
must include how the State will address the identified needs for
in-service and pre-service preparation to ensure that all personnel
who work with children with disabilities (including both
professional and paraprofessional personnel who provide special
education, general education, related services, or early
intervention services) have the skills and knowledge necessary to
meet the needs of children with disabilities. The plan must include
a description of how the State will--
    (a) Prepare general and special education personnel with the
content knowledge and collaborative skills needed to meet the needs
of children with disabilities including how the State will work
with other States on common certification criteria;
    (b) Prepare professionals and paraprofessionals in the area of
early intervention with the content knowledge and collaborative
skills needed to meet the needs of infants and toddlers with
disabilities;     (c) Work with institutions of higher education
and other entities that (on both a pre-service and an in-service
basis) prepare personnel who work with children with disabilities
to ensure that those institutions and entities develop the capacity
to support quality professional development programs that meet
State and local needs;     (d) Work to develop collaborative
agreements with other States for the joint support and development
of programs to prepare personnel for which there is not sufficient
demand within a single State to justify support or development of
a program of preparation;
    (e) Work in collaboration with other States, particularly
neighboring States, to address the lack of uniformity and
reciprocity in credentialing of teachers and other personnel;
    (f) Enhance the ability of teachers and others to use
strategies, such as behavioral interventions, to address the
conduct of children with disabilities that impedes the learning of
children with disabilities and others;
    (g) Acquire and disseminate, to teachers, administrators,
school board members, and related services personnel, significant
knowledge derived from educational research and other sources, and
how the State will, if appropriate, adopt promising practices,
materials, and technology;
    (h) Recruit, prepare, and retain qualified personnel, including
personnel with disabilities and personnel from groups that are
under-represented in the fields of regular education, special
education, and related services;
    (i) Insure that the plan is integrated, to the maximum extent
possible, with other professional development plans and activities,
including plans and activities developed and carried out under
other Federal and State laws that address personnel recruitment and
training; and
    (j) Provide for the joint training of parents and special
education, related services, and general education personnel.

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

Secs. 300.383-300.387  [Reserved]

Subpart D--Children in Private Schools

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

Sec. 300.400  Applicability of Secs. 300.400-300.402.

    Sections 300.401-300.402 apply only to children with
disabilities who are or have been placed in or referred to a
private school or facility by a public agency as a means of
providing special education and related services.

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

Sec. 300.401  Responsibility of State educational agency.

    Each SEA shall ensure that a child with a disability who is
placed in or referred to a private school or facility by a public
agency--    (a) Is provided special education and related services-
-    (1) In conformance with an IEP that meets the requirements of
Secs. 300.340-300.350; 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); and
    (c) Has all of the rights of a child with a disability who is
served by a public agency.

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

Sec. 300.402  Implementation by State educational agency.

    In implementing Sec. 300.401, the SEA shall--
    (a) Monitor compliance through procedures such as written
reports, on-site visits, and parent questionnaires;
    (b) Disseminate copies of applicable standards to each private
school and facility to which a public agency has referred or placed
a child with a disability; and
    (c) Provide an opportunity for those private schools and
facilities to participate in the development and revision of State
standards that apply to them.

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

Children With Disabilities Enrolled by Their Parents in Private
Schools When FAPE Is at Issue

Sec. 300.403  Placement of children by parents if 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 shall include that child in the
population whose needs are addressed consistent with Secs.
300.450-300.462.
    (b) Disagreements about FAPE. Disagreements between a parent
and a public agency regarding the availability of a program
appropriate for the child, and the question of financial
responsibility, are subject to the due process procedures of Secs.
300.500-300.517.
    (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, 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

[[Page 12445]]

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 meeting that the parents attended
prior to removal of the child from the public school, the parents
did not inform the IEP team that they were rejecting the placement
proposed by the public agency to provide FAPE to their child,
including stating their concerns and their intent to enroll their
child in a private school at public expense; or
    (ii) At least ten (10) business days (including any holidays
that occur on a business day) prior to the removal of the child
from the public school, the parents did not give written notice to
the public agency of the information described in paragraph
(d)(1)(i) of this section;
    (2) If, prior to the parents' removal of the child from the
public school, the public agency informed the parents, through the
notice requirements described in Sec. 300.503(a)(1), of its intent
to evaluate the child (including a statement of the purpose of the
evaluation that was appropriate and reasonable), but the parents
did not make the child available for the evaluation; or
    (3) Upon a judicial finding of unreasonableness with respect to
actions taken by the parents.
    (e) Exception. Notwithstanding the notice requirement in
paragraph (d)(1) of this section, the cost of reimbursement may not
be reduced or denied for failure to provide the notice if--
    (1) The parent is illiterate and cannot write in English;    
(2) Compliance with paragraph (d)(1) of this section would likely
result in physical or serious emotional harm to the child;
    (3) The school prevented the parent from providing the notice;
or     (4) The parents had not received notice, pursuant to section
615 of the Act, of the notice requirement in paragraph (d)(1) of
this section.

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

Children With Disabilities Enrolled by Their Parents in Private
Schools

Sec. 300.450  Definition of ``private school children with
disabilities.''

    As used in this part, private school children with disabilities
means children with disabilities enrolled by their parents in
private schools or facilities other than children with disabilities
covered under Secs. 300.400-300.402.

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

Sec. 300.451  Child find for private school children with
disabilities.

    (a) Each LEA shall locate, identify, and evaluate all private
school children with disabilities, including religious-school
children residing in the jurisdiction of the LEA, in accordance
with Secs. 300.125 and 300.220. The activities undertaken to carry
out this responsibility for private school children with
disabilities must be comparable to activities undertaken for
children with disabilities in public schools.
    (b) Each LEA shall consult with appropriate representatives of
private school children with disabilities on how to carry out the
activities described in paragraph (a) of this section.

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

Sec. 300.452  Provision of services--basic requirement.

    (a) General. To the extent consistent with their number and
location in the State, provision must be made for the participation
of private school children with disabilities in the program
assisted or carried out under Part B of the Act by providing them
with special education and related services in accordance with
Secs. 300.453-300.462.
    (b) SEA Responsibility--services plan. Each SEA shall ensure
that, in accordance with paragraph (a) of this section and Secs.
300.454-300.456, a services plan is developed and implemented for
each private school child with a disability who has been designated
to receive special education and related services under this part.

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

Sec. 300.453  Expenditures.

    (a) Formula. To meet the requirement of Sec. 300.452(a), each
LEA must spend on providing special education and related services
to 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(g) of the
Act as the number of private school children with disabilities aged
3 through 21 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 21;
and     (2) For children aged 3 through 5, an amount that is the
same proportion of the LEA's total subgrant under section 619(g) of
the Act as the number of private school children with disabilities
aged 3 through 5 residing in its jurisdiction is to the total
number of children with disabilities in its jurisdiction aged 3
through 5.     (b) Child count. (1) Each LEA shall--
    (i) Consult with representatives of private school children in
deciding how to conduct the annual count of the number of private
school children with disabilities; and
    (ii) Ensure that the count is conducted on December 1 or the
last Friday of October of each year.
    (2) The child count must be used to determine the amount that
the LEA must spend on providing special education and related
services to private school children with disabilities in the next
subsequent fiscal year.
    (c) Expenditures for child find may not be considered.
Expenditures for child find activities described in Sec. 300.451
may not be considered in determining whether the LEA has met the
requirements of paragraph (a) of this section.
    (d) Additional services permissible. State and local
educational agencies are not prohibited from providing services to
private school children with disabilities in excess of those
required by this part, consistent with State law or local policy.

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

Sec. 300.454  Services determined.

    (a) No individual right to special education and related
services. (1) No private school child with a disability has an
individual right to receive some or all of the special education
and related services that the child would receive if enrolled in a
public school.     (2) Decisions about the services that will be
provided to private school children with disabilities under Secs.
300.452-300.462, must be made in accordance with paragraphs (b),
and (c) of this section.     (b) Consultation with representatives
of private school children with disabilities. (1) General. Each LEA
shall consult, in a timely and meaningful way, with appropriate
representatives of private school children with disabilities in
light of the funding under Sec. 300.453, the number of private
school children with disabilities, the needs of private school
children with disabilities, and their location to decide--
    (i) Which children will receive services under Sec. 300.452;  
  (ii) What services will be provided;
    (iii) How and where the services will be provided; and
    (iv) How the services provided will be evaluated.

[[Page 12446]]

    (2) Genuine opportunity. Each LEA shall give appropriate
representatives of private school children with disabilities a
genuine opportunity to express their views regarding each matter
that is subject to the consultation requirements in this section.
    (3) Timing. The consultation required by paragraph (b)(1) of
this section must occur before the LEA makes any decision that
affects the opportunities of private school children with
disabilities to participate in services under Secs.
300.452-300.462.
    (4) Decisions. The LEA shall make the final decisions with
respect to the services to be provided to eligible private school
children.     (c) Services plan for each child served under Secs.
300.450-300.462. If a child with a disability is enrolled in a
religious or other private school and will receive special
education or related services from an LEA, the LEA shall--
    (1) Initiate and conduct meetings to develop, review, and
revise a services plan for the child, in accordance with Sec.
300.455(b); and     (2) Ensure that a representative of the
religious or other private school attends each meeting. If the
representative cannot attend, the LEA shall use other methods to
ensure participation by the private school, including individual or
conference telephone calls.

(Authority: 1412(a)(10)(A))

Sec. 300.455  Services provided.

    (a) General. (1) The services provided to private school
children with disabilities must be provided by personnel meeting
the same standards as personnel providing services in the public
schools.     (2) Private school children with disabilities may
receive a different amount of services than children with
disabilities in public schools.
    (3) No private school child with a disability is entitled to
any service or to any amount of a service the child would receive
if enrolled in a public school.
    (b) Services provided in accordance with a services plan. (1)
Each private school child with a disability who has been designated
to receive services under Sec. 300.452 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 Secs.
300.453-300.454, it will make available to private school children
with disabilities.     (2) The services plan must, to the extent
appropriate--
    (i) Meet the requirements of Sec. 300.347, with respect to the
services provided; and
    (ii) Be developed, reviewed, and revised consistent with Secs.
300.342-300.346.

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

Sec. 300.456  Location of services; transportation.

    (a) On-site. Services provided to 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.  
  (b) Transportation. (1) General. (i) If necessary for the child
to benefit from or participate in the services provided under this
part, a 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 Sec.
300.453.

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

Sec. 300.457  Complaints.

    (a) Due process inapplicable. The procedures in Secs. 300.504-
300.515 do not apply to complaints that an LEA has failed to meet
the requirements of Secs. 300.452-300.462, including the provision
of services indicated on the child's services plan.
    (b) Due process applicable. The procedures in Secs.
300.504-300.515 do apply to complaints that an LEA has failed to
meet the requirements of Sec. 300.451, including the requirements
of Secs. 300.530-300.543.     (c) State complaints. Complaints that
an SEA or LEA has failed to meet the requirements of Secs.
300.451-300.462 may be filed under the procedures in Secs.
300.660-300.662.

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

Sec. 300.458  Separate classes prohibited.

    An LEA may not use funds available under section 611 or 619 of
the Act for classes that are organized separately on the basis of
school enrollment or religion of the students if--
    (a) The classes are at the same site; and
    (b) The classes include students enrolled in public schools and
students enrolled in private schools.

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

Sec. 300.459  Requirement that funds not benefit a private school.

    (a) An LEA may not use funds provided under section 611 or 619
of the Act to finance the existing level of instruction in a
private school or to otherwise benefit the private school.
    (b) The LEA shall use funds provided under Part B of the Act to
meet the special education and related services needs of students
enrolled in private schools, but not for--
    (1) The needs of a private school; or
    (2) The general needs of the students enrolled in the private
school.

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

Sec. 300.460  Use of public school personnel.

    An LEA may use funds available under sections 611 and 619 of
the Act to make public school personnel available in other than
public facilities--
    (a) To the extent necessary to provide services under
Secs. 300.450-300.462 for private school children with
disabilities; and
    (b) If those services are not normally provided by the private
school.

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

Sec. 300.461  Use of private school personnel.

    An LEA may use funds available under section 611 or 619 of the
Act to pay for the services of an employee of a private school to
provide services under Secs. 300.450-300.462 if--
    (a) The employee performs the services outside of his or her
regular hours of duty; and
    (b) The employee performs the services under public supervision
and control.

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

Sec. 300.462  Requirements concerning property, equipment, and
supplies for the benefit of private school children with
disabilities.

    (a) A public agency must keep title to and exercise continuing
administrative control of all property, equipment, and supplies
that the public agency acquires with funds under section 611 or 619
of the Act for the benefit of private school children with
disabilities.     (b) The public agency may place equipment and
supplies in a private school for the period of time needed for the
program.
    (c) The public agency shall ensure that the equipment and
supplies placed in a private school--

[[Page 12447]]

    (1) Are used only for Part B purposes; and
    (2) Can be removed from the private school without remodeling
the private school facility.
    (d) The public agency shall remove equipment and supplies from
a private school if--
    (1) The equipment and supplies are no longer needed for Part B
purposes; or
    (2) Removal is necessary to avoid unauthorized use of the
equipment and supplies for other than Part B purposes.
    (e) No funds under Part B of the Act may be used for repairs,
minor remodeling, or construction of private school facilities.

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

Procedures for By-Pass

Sec. 300.480  By-pass--general.

    (a) The Secretary implements a by-pass if an SEA is, and was on
December 2, 1983, prohibited by law from providing for the
participation of private school children with disabilities in the
program assisted or carried out under Part B of the Act, as
required by section 612(a)(10)(A) of the Act and by Secs.
300.452-300.462.     (b) The Secretary waives the requirement of
section 612(a)(10)(A) of the Act and of Secs. 300.452-300.462 if
the Secretary implements a by-pass.

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

Sec. 300.481  Provisions for services under a by-pass.

    (a) Before implementing a by-pass, the Secretary consults with
appropriate public and private school officials, including SEA
officials, in the affected State to consider matters such as--   
(1) The prohibition imposed by State law that results in the need
for a by-pass;
    (2) The scope and nature of the services required by private
school children with disabilities in the State, and the number of
children to be served under the by-pass; and
    (3) The establishment of policies and procedures to ensure that
private school children with disabilities receive services
consistent with the requirements of section 612(a)(10)(A) of the
Act and Secs. 300.452-300.462.
    (b) After determining that a by-pass is required, the Secretary
arranges for the provision of services to private school children
with disabilities in the State in a manner consistent with the
requirements of section 612(a)(10)(A) of the Act and Secs.
300.452-300.462 by providing services through one or more
agreements with appropriate parties.
    (c) For any fiscal year that a by-pass is implemented, the
Secretary determines the maximum amount to be paid to the providers
of services by multiplying--
    (1) A per child amount that may not exceed the amount per child
provided by the Secretary under Part B of the Act for all children
with disabilities in the State for the preceding fiscal year; by  
  (2) The number of private school children with disabilities (as
defined by Secs. 300.7(a) and 300.450) in the State, as determined
by the Secretary on the basis of the most recent satisfactory data
available, which may include an estimate of the number of those
children with disabilities.
    (d) The Secretary deducts from the State's allocation under
Part B of the Act the amount the Secretary determines is necessary
to implement a by-pass and pays that amount to the provider of
services. The Secretary may withhold this amount from the State's
allocation pending final resolution of any investigation or
complaint that could result in a determination that a by-pass must
be implemented.

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

Sec. 300.482  Notice of intent to implement a by-pass.

    (a) Before taking any final action to implement a by-pass, the
Secretary provides the affected SEA with written notice.
    (b) In the written notice, the Secretary--
    (1) States the reasons for the proposed by-pass in sufficient
detail to allow the SEA to respond; and
    (2) Advises the SEA that it has a specific period of time (at
least 45 days) from receipt of the written notice to submit written
objections to the proposed by-pass and that it may request in
writing the opportunity for a hearing to show cause why a by-pass
should not be implemented.
    (c) The Secretary sends the notice to the SEA by certified mail
with return receipt requested.

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

Sec. 300.483  Request to show cause.

    An SEA seeking an opportunity to show cause why a by-pass
should not be implemented shall submit a written request for a show
cause hearing to the Secretary.

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

Sec. 300.484  Show cause hearing.

    (a) If a show cause hearing is requested, the Secretary--   
(1) Notifies the SEA and other appropriate public and private
school officials of the time and place for the hearing; and     (2)
Designates a person to conduct the show cause hearing. The designee
must not have had any responsibility for the matter brought for a
hearing.
    (b) At the show cause hearing, the designee considers matters
such as--
    (1) The necessity for implementing a by-pass;
    (2) Possible factual errors in the written notice of intent to
implement a by-pass; and
    (3) The objections raised by public and private school
representatives.
    (c) The designee may regulate the course of the proceedings and
the conduct of parties during the pendency of the proceedings. The
designee takes all steps necessary to conduct a fair and impartial
proceeding, to avoid delay, and to maintain order.
    (d) The designee may interpret applicable statutes and
regulations, but may not waive them or rule on their validity.
    (e) The designee arranges for the preparation, retention, and,
if appropriate, dissemination of the record of the hearing.

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

Sec. 300.485  Decision.

    (a) The designee who conducts the show cause hearing--
    (1) Issues a written decision that includes a statement of
findings; and
    (2) Submits a copy of the decision to the Secretary and sends
a copy to each party by certified mail with return receipt
requested.     (b) Each party may submit comments and
recommendations on the designee's decision to the Secretary within
15 days of the date the party receives the designee's decision.
    (c) The Secretary adopts, reverses, or modifies the designee's
decision and notifies the SEA of the Secretary's final action. That
notice is sent by certified mail with return receipt requested.

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

Sec. 300.486  Filing requirements.

    (a) Any written submission under Secs. 300.482-300.485 must be
filed by hand-delivery, by mail, or by facsimile transmission. The
Secretary discourages the use of facsimile transmission for
documents longer than five pages.
    (b) The filing date under paragraph (a) of this section is the
date the document is--
    (1) Hand-delivered;
    (2) Mailed; or
    (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was
received by the Department.

[[Page 12448]]

    (d) If a document is filed by facsimile transmission, the
Secretary or the hearing officer, as applicable, may require the
filing of a follow-up hard copy by hand-delivery or by mail within
a reasonable period of time.
    (e) If agreed upon by the parties, service of a document may be
made upon the other party by facsimile transmission.

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

Sec. 300.487  Judicial review.

    If dissatisfied with the Secretary's final action, the SEA may,
within 60 days after notice of that action, file a petition for
review with the United States Court of Appeals for the circuit in
which the State is located. The procedures for judicial review are
described in section 612(f)(3)(B)-(D) of the Act.

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

Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children

Sec. 300.500  General responsibility of public agencies;
definitions.

    (a) Responsibility of SEA and other public agencies. Each SEA
shall ensure that each public agency establishes, maintains, and
implements procedural safeguards that meet the requirements of
Secs. 300.500-300.529.
    (b) Definitions of ``consent,'' ``evaluation,'' and
``personally identifiable.'' As used in this part --
    (1) Consent means that --
    (i) The parent has been fully informed of all information
relevant to the activity for which consent is sought, in his or her
native language, or other mode of communication;
    (ii) The parent understands and agrees in writing to the
carrying out of the activity for which his or her consent is
sought, and the consent describes that activity and lists the
records (if any) that will be released and to whom; and
    (iii)(A) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at anytime. 
   (B) 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).
    (2) Evaluation means procedures used in accordance with Secs.
300.530-300.536 to determine whether a child has a disability and
the nature and extent of the special education and related services
that the child needs; and
    (3) Personally identifiable means that information includes-- 
  (i) The name of the child, the child's parent, or other family
member;
    (ii) The address of the child;
    (iii) A personal identifier, such as the child's social
security number or student number; or
    (iv) A list of personal characteristics or other information
that would make it possible to identify the child with reasonable
certainty.

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

Sec. 300.501  Opportunity to examine records; parent participation
in meetings.

    (a) General. The parents of a child with a disability must be
afforded, in accordance with the procedures of Secs.
300.562-300.569, an opportunity to--
    (1) Inspect and review all education records with respect to-- 
  (i) The identification, evaluation, and educational placement of
the child; and
    (ii) The provision of FAPE to the child; and
    (2) Participate in meetings with respect to --
    (i) The identification, evaluation, and educational placement
of the child; and
    (ii) The provision of FAPE to the child.
    (b) Parent participation in meetings. (1) Each public agency
shall provide notice consistent with Sec. 300.345(a)(1) and (b)(1)
to ensure that parents of children with disabilities have the
opportunity to participate in meetings described in paragraph
(a)(2) of this section.     (2) 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 if those issues are not addressed
in the child's IEP. 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 shall ensure that the parents of each child with a
disability are members of any group that makes decisions on the
educational placement of their child.
    (2) In implementing the requirements of paragraph (c)(1) of
this section, the public agency shall use procedures consistent
with the procedures described in Sec. 300.345(a) through (b)(1).
    (3) If neither parent can participate in a meeting in which a
decision is to be made relating to the educational placement of
their child, the public agency shall use other methods to ensure
their participation, including individual or conference telephone
calls, or video conferencing.
    (4) A placement decision may be made by a group without the
involvement of the parents, if the public agency is unable to
obtain the parents' participation in the decision. In this case,
the public agency must have a record of its attempt to ensure their
involvement, including information that is consistent with the
requirements of Sec. 300.345(d).
    (5) The public agency shall make reasonable efforts to ensure
that the parents understand, and are able to participate in, any
group discussions relating to the educational placement of their
child, including arranging for an interpreter for parents with
deafness, or whose native language is other than English.

(Authority: 20 U.S.C. 1414(f), 1415(b)(1))

Sec. 300.502  Independent educational evaluation.

    (a) General. (1) The parents of a child with a disability have
the right under this part to obtain an independent educational
evaluation of the child, subject to paragraphs (b) through (e) of
this section.     (2) Each public agency shall provide to parents,
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 part--
    (i) Independent educational evaluation means an evaluation
conducted by a qualified examiner who is not employed by the public
agency responsible for the education of the child in question; and 
   (ii) Public expense means that the public agency either pays for
the full cost of the evaluation or ensures that the evaluation is
otherwise provided at no cost to the parent, consistent with Sec.
300.301.
    (b) Parent right to evaluation at public expense. (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.     (2) If a parent requests an independent
educational evaluation at public expense, the public agency must,
without unnecessary delay, either--
    (i) Initiate a hearing under Sec. 300.507 to show that its
evaluation is appropriate; or
    (ii) Ensure that an independent educational evaluation is
provided at public expense, unless the agency

[[Page 12449]]

demonstrates in a hearing under Sec. 300.507 that the evaluation
obtained by the parent did not meet agency criteria.
    (3) If the public agency initiates a hearing and the final
decision is that the agency's evaluation is appropriate, the parent
still has the right to an independent educational evaluation, but
not at public expense.
    (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 explanation by the
parent may not be required and the public agency may not
unreasonably delay either providing the independent educational
evaluation at public expense or initiating a due process hearing to
defend the public evaluation.     (c) Parent-initiated evaluations.
If the parent obtains an independent educational evaluation at
private expense, the results of the evaluation--
    (1) Must be considered by the public agency, if it meets agency
criteria, in any decision made with respect to the provision of
FAPE to the child; and
    (2) May be presented as evidence at a hearing under this
subpart regarding that child.
    (d) Requests for evaluations by hearing officers. If a hearing
officer requests an independent educational evaluation as part of
a hearing, the cost of the evaluation must be at public expense.  
  (e) Agency criteria. (1) If an independent educational evaluation
is at public expense, the criteria under which the evaluation is
obtained, including the location of the evaluation and the
qualifications of the examiner, must be the same as the criteria
that the public agency uses when it initiates an evaluation, 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))

Sec. 300.503  Prior notice by the public agency; content of notice.

    (a) Notice. (1) Written notice that meets the requirements of
paragraph (b) of this section must be given to the parents of a
child with a disability a reasonable time before the public agency-
-    (i) Proposes to initiate or change the identification,
evaluation, or educational placement of the child or the provision
of FAPE to the child; or
    (ii) Refuses to initiate or change the identification,
evaluation, or educational placement of the child or the provision
of FAPE to the child.
    (2) If the notice described under paragraph (a)(1) of this
section relates to an action proposed by the public agency that
also requires parental consent under Sec. 300.505, the agency may
give notice at the same time it requests parent consent.
    (b) Content of notice. The notice required under paragraph (a)
of this section must include--
    (1) A description of the action proposed or refused by the
agency;     (2) An explanation of why the agency proposes or
refuses to take the action;
    (3) A description of any other options that the agency
considered and the reasons why those options were rejected;
    (4) A description of each evaluation procedure, test, record,
or report the agency used as a basis for the proposed or refused
action;     (5) A description of any other factors that are
relevant to the agency's proposal or refusal;
    (6) A statement that the parents of a child with a disability
have protection under the procedural safeguards of this part and,
if this notice is not an initial referral for evaluation, the means
by which a copy of a description of the procedural safeguards can
be obtained; and     (7) Sources for parents to contact to obtain
assistance in understanding the provisions of this part.
    (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 shall take
steps to ensure--
    (i) That the notice is translated orally or by other means to
the parent in his or her native language or other mode of
communication;     (ii) That the parent understands the content of
the notice; and     (iii) That there is written evidence that the
requirements in paragraphs (c)(2) (i) and (ii) of this section have
been met.

(Authority: 20 U.S.C. 1415(b)(3), (4) and (c), 1414(b)(1))

Sec. 300.504  Procedural safeguards notice.

    (a) General. A copy of the procedural safeguards available to
the parents of a child with a disability must be given to the
parents, at a minimum--
    (1) Upon initial referral for evaluation;
    (2) Upon each notification of an IEP meeting;
    (3) Upon reevaluation of the child; and
    (4) Upon receipt of a request for due process under Sec.
300.507.     (b) Contents. The procedural safeguards notice must
include a full explanation of all of the procedural safeguards
available under Secs. 300.403, 300.500-300.529, and
300.560-300.577, and the State complaint procedures available under
Secs. 300.660-300.662 relating to--
    (1) Independent educational evaluation;
    (2) Prior written notice;
    (3) Parental consent;
    (4) Access to educational records;
    (5) Opportunity to present complaints to initiate due process
hearings;
    (6) The child's placement during pendency of due process
proceedings;
    (7) Procedures for students who are subject to placement in an
interim alternative educational setting;
    (8) Requirements for unilateral placement by parents of
children in private schools at public expense;
    (9) Mediation;
    (10) Due process hearings, including requirements for
disclosure of evaluation results and recommendations;
    (11) State-level appeals (if applicable in that State);    
(12) Civil actions;
    (13) Attorneys' fees; and
    (14) The State complaint procedures under Secs.
300.660-300.662, including a description of how to file a complaint
and the timelines under those procedures.
    (c) Notice in understandable language. The notice required
under paragraph (a) of this section must meet the requirements of
Sec. 300.503(c).

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

Sec. 300.505  Parental consent.

    (a) General. (1) Subject to paragraphs (a)(3), (b) and (c) of
this section, informed parent consent must be obtained before--
    (i) Conducting an initial evaluation or reevaluation; and    
(ii) Initial provision of special education and related services to
a child with a disability.
    (2) Consent for initial evaluation may not be construed as
consent for initial placement described in paragraph (a)(1)(ii) of
this section.

[[Page 12450]]

    (3) 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. 
   (b) Refusal. If the parents of a child with a disability refuse
consent for initial evaluation or a reevaluation, the agency may
continue to pursue those evaluations by using the due process
procedures under Secs. 300.507-300.509, or the mediation procedures
under Sec. 300.506 if appropriate, except to the extent
inconsistent with State law relating to parental consent.
    (c) Failure to respond to request for reevaluation. (1)
Informed parental consent need not be obtained for reevaluation if
the public agency can demonstrate that it has taken reasonable
measures to obtain that consent, and the child's parent has failed
to respond.     (2) To meet the reasonable measures requirement in
paragraph (c)(1) of this section, the public agency must use
procedures consistent with those in Sec. 300.345(d).
    (d) Additional State consent requirements. In addition to the
parental consent requirements described in paragraph (a) of this
section, a State may require parental consent for other services
and activities under this part if it ensures that each public
agency in the State establishes and implements effective procedures
to ensure that a parent's refusal to consent does not result in a
failure to provide the child with FAPE.
    (e) Limitation. A public agency may not use a parent's refusal
to consent to one service or activity under paragraphs (a) and (d)
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.

(Authority: 20 U.S.C. 1415(b)(3); 1414(a)(1)(C) and (c)(3))

Sec. 300.506  Mediation.

    (a) General. Each public agency shall ensure that procedures
are established and implemented to allow parties to disputes
involving any matter described in Sec. 300.503(a)(1) to resolve the
disputes through a mediation process that, at a minimum, must be
available whenever a hearing is requested under Secs. 300.507 or
300.520-300.528.     (b) Requirements. The procedures must meet the
following requirements:
    (1) The procedures must ensure that the mediation process--   
(i) Is voluntary on the part of the parties;
    (ii) Is not used to deny or delay a parent's right to a due
process hearing under Sec. 300.507, 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)(i) The State shall maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations
relating to the provision of special education and related
services.     (ii) If a mediator is not selected on a random (e.g.,
a rotation) basis from the list described in paragraph (b)(2)(i) of
this section, both parties must be involved in selecting the
mediator and agree with the selection of the individual who will
mediate.
    (3) The State shall bear the cost of the mediation process,
including the costs of meetings described in paragraph (d) of this
section.
    (4) Each session in the mediation process must be scheduled in
a timely manner and must be held in a location that is convenient
to the parties to the dispute.
    (5) An agreement reached by the parties to the dispute in the
mediation process must be set forth in a written mediation
agreement.     (6) Discussions that occur during the mediation
process must be confidential and may not be used as evidence in any
subsequent due process hearings or civil proceedings, and the
parties to the mediation process may be required to sign a
confidentiality pledge prior to the commencement of the process.
    (c) Impartiality of mediator. (1) An individual who serves as
a mediator under this part--
    (i) May not be an employee of--
    (A) Any LEA or any State agency described under Sec. 300.194;
or     (B) An SEA that is providing direct services to a child who
is the subject of the mediation process; and
    (ii) Must not have a personal or professional conflict of
interest.     (2) A person who otherwise qualifies as a mediator is
not an employee of an LEA or State agency described under Sec.
300.194 solely because he or she is paid by the agency to serve as
a mediator.     (d) Meeting to encourage mediation. (1) A public
agency may establish procedures to require parents who elect not to
use the mediation process to meet, at a time and location
convenient to the parents, with a disinterested party--
    (i) Who is under contract with a parent training and
information center or community parent resource center in the State
established under section 682 or 683 of the Act, or an appropriate
alternative dispute resolution entity; and
    (ii) Who would explain the benefits of the mediation process,
and encourage the parents to use the process.
    (2) A public agency may not deny or delay a parent's right to
a due process hearing under Sec. 300.507 if the parent fails to
participate in the meeting described in paragraph (d)(1) of this
section.

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

Sec. 300.507  Impartial due process hearing; parent notice.

    (a) General. (1) A parent or a public agency may initiate a
hearing on any of the matters described in Sec. 300.503(a)(1) and
(2) (relating to the identification, evaluation or educational
placement of a child with a disability, or the provision of FAPE to
the child).
    (2) When a hearing is initiated under paragraph (a)(1) of this
section, the public agency shall inform the parents of the
availability of mediation described in Sec. 300.506.
    (3) The public agency shall inform the parent of any free or
low-cost legal and other relevant services available in the area
if--    (i) The parent requests the information; or
    (ii) The parent or the agency initiates a hearing under this
section.
    (b) Agency responsible for conducting hearing. The hearing
described in paragraph (a) of this section must be conducted by the
SEA or the public agency directly responsible for the education of
the child, as determined under State statute, State regulation, or
a written policy of the SEA.
    (c) Parent notice to the public agency. (1) General. The public
agency must have procedures that require the parent of a child with
a disability or the attorney representing the child, to provide
notice (which must remain confidential) to the public agency in a
request for a hearing under paragraph (a)(1) of this section.
    (2) Content of parent notice. The notice required in paragraph
(c)(1) of this section must include--
    (i) The name of the child;
    (ii) The address of the residence of the child;
    (iii) The name of the school the child is attending;
    (iv) A description of the nature of the problem of the child
relating to the proposed or refused initiation or change, including
facts relating to the problem; and
    (v) A proposed resolution of the problem to the extent known
and available to the parents at the time.

[[Page 12451]]

    (3) Model form to assist parents. Each SEA shall develop a
model form to assist parents in filing a request for due process
that includes the information required in paragraphs (c)(1) and (2)
of this section.
    (4) Right to due process hearing. A public agency may not deny
or delay a parent's right to a due process hearing for failure to
provide the notice required in paragraphs (c)(1) and (2) of this
section.

(Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7), (b)(8), (e)(1)
and (f)(1))

Sec. 300.508  Impartial hearing officer.

    (a) A hearing may not be conducted--
    (1) By a person who is an employee of the State agency or the
LEA that is involved in the education or care of the child; or
    (2) By any person having a personal or professional interest
that would conflict with his or her objectivity in the hearing.
    (b) A person who otherwise qualifies to conduct a hearing under
paragraph (a) of this section is not an employee of the agency
solely because he or she is paid by the agency to serve as a
hearing officer.     (c) Each public agency shall keep a list of
the persons who serve as hearing officers. The list must include a
statement of the qualifications of each of those persons.

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

Sec. 300.509  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to Secs.
300.507 or 300.520-300.528, or an appeal conducted pursuant to Sec.
300.510, has the right to--
    (1) Be accompanied and advised by counsel and by individuals
with special knowledge or training with respect to the problems of
children with disabilities;
    (2) Present evidence and confront, cross-examine, and compel
the attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing
that has not been disclosed to that party at least 5 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 5
business days prior to a hearing conducted pursuant to Sec.
300.507(a), each party shall disclose to all other parties all
evaluations completed by that date and recommendations based on the
offering party's evaluations that the party intends to use at the
hearing.
    (2) A hearing officer may bar any party that fails to comply
with paragraph (b)(1) of this section from introducing the relevant
evaluation or recommendation at the hearing without the consent of
the other party.
    (c) Parental rights at hearings. (1) Parents involved in
hearings must be given the right to--
    (i) Have the child who is the subject of the hearing present;
and     (ii) Open the hearing to the public.
    (2) The record of the hearing and the findings of fact and
decisions described in paragraphs (a)(4) and (a)(5) of this section
must be provided at no cost to parents.
    (d) Findings and decision to advisory panel and general public.
The public agency, after deleting any personally identifiable
information, shall --
    (1) Transmit the findings and decisions referred to in
paragraph (a)(5) of this section to the State advisory panel
established under Sec. 300.650; and
    (2) Make those findings and decisions available to the public.

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

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

    (a) Finality of decision. A decision made in a hearing
conducted pursuant to Secs. 300.507 or 300.520-300.528 is final,
except that any party involved in the hearing may appeal the
decision under the provisions of paragraph (b) of this section and
Sec. 300.512.

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

    (b) Appeal of decisions; impartial review. (1) General. If the
hearing required by Sec. 300.507 is conducted by a public agency
other than the SEA, any party aggrieved by the findings and
decision in the hearing may appeal to the SEA.
    (2) SEA responsibility for review. If there is an appeal, the
SEA shall conduct an impartial review of the hearing. The official
conducting the review shall--
    (i) Examine the entire hearing record;
    (ii) Ensure that the procedures at the hearing were consistent
with the requirements of due process;
    (iii) Seek additional evidence if necessary. If a hearing is
held to receive additional evidence, the rights in Sec. 300.509
apply;     (iv) Afford the parties an opportunity for oral or
written argument, or both, at the discretion of the reviewing
official;     (v) Make an independent decision on completion of the
review; and     (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,
shall--    (1) Transmit the findings and decisions referred to in
paragraph (b)(2)(vi) of this section to the State advisory panel
established under Sec. 300.650; and
    (2) Make those findings and decisions available to the public. 
   (d) Finality of review decision. The decision made by the
reviewing official is final unless a party brings a civil action
under Sec. 300.512.

(Authority: 20 U.S.C. 1415(g); H. R. Rep. No. 94-664, at p. 49
(1975))

Sec. 300.511  Timelines and convenience of hearings and reviews.

    (a) The public agency shall ensure that not later than 45 days
after the receipt of a request for a hearing--
    (1) A final decision is reached in the hearing; and
    (2) A copy of the decision is mailed to each of the parties.  
  (b) The SEA shall ensure that not later than 30 days after the
receipt of a request for a review--
    (1) A final decision is reached in the review; and
    (2) A copy of the decision is mailed to each of the parties.  
  (c) A hearing or reviewing officer may grant specific extensions
of time beyond the periods set out in paragraphs (a) and (b) of
this section at the request of either party.
    (d) Each hearing and each review involving oral arguments must
be conducted at a time and place that is reasonably convenient to
the parents and child involved.

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

Sec. 300.512  Civil action.

    (a) General. Any party aggrieved by the findings and decision
made under Secs. 300.507 or 300.520-300.528 who does not have the
right to an appeal under Sec. 300.510(b), and any party aggrieved
by the findings and decision under Sec. 300.510(b), has the right
to bring a civil action with respect to the complaint presented
pursuant to Sec. 300.507. The action may be brought in any State
court of competent jurisdiction or in a district court of the
United States without regard to the amount in controversy.
    (b) Additional requirements. In any action brought under
paragraph (a) of this section, the court--
    (1) Shall receive the records of the administrative
proceedings;     (2) Shall hear additional evidence at the request
of a party; and

[[Page 12452]]

    (3) Basing its decision on the preponderance of the evidence,
shall grant the relief that the court determines to be appropriate. 
   (c) Jurisdiction of district courts. The district courts of the
United States have jurisdiction of actions brought under section
615 of the Act without regard to the amount in controversy.
    (d) Rule of construction. Nothing in this part restricts or
limits the rights, procedures, and remedies available under the
Constitution, the Americans with Disabilities Act of 1990, title V
of the Rehabilitation Act of 1973, or other Federal laws protecting
the rights of children with disabilities, except that before the
filing of a civil action under these laws seeking relief that is
also available under section 615 of the Act, the procedures under
Secs. 300.507 and 300.510 must be exhausted to the same extent as
would be required had the action been brought under section 615 of
the Act.

(Authority: 20 U.S.C. 1415(i)(2), (i)(3)(A), and 1415(l))

Sec. 300.513  Attorneys' fees.

    (a) In any action or proceeding brought under section 615 of
the Act, the court, in its discretion, may award reasonable
attorneys' fees as part of the costs to the parents of a child with
a disability who is the prevailing party.
    (b)(1) Funds under Part B of the Act may not be used to pay
attorneys' fees or costs of a party related to an 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) A court awards reasonable attorney's fees under section
615(i)(3) of the Act consistent with the following:
    (1) Determination of amount of attorneys' fees. 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
subsection.
    (2) Prohibition of attorneys' fees and related costs for
certain services. (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 Sec. 300.506 that is
conducted prior to the filing of a request for due process under
Secs. 300.507 or 300.520-300.528.
    (3) Exception to prohibition on attorneys' fees and related
costs. 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) Reduction of amount of attorneys' fees. 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, 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 school district the appropriate information in the due process
complaint in accordance with Sec. 300.507(c).
    (5) Exception to reduction in amount of attorneys' fees. 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))

Sec. 300.514  Child's status during proceedings.

    (a) Except as provided in Sec. 300.526, during the pendency of
any administrative or judicial proceeding regarding a complaint
under Sec. 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 decision of a 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 or local agency and the parents for
purposes of paragraph (a) of this section.

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

Sec. 300.515  Surrogate parents.

    (a) General. Each public agency shall ensure that the rights of
a child are protected if--
    (1) No parent (as defined in Sec. 300.20) can be identified;  
  (2) The public agency, after reasonable efforts, cannot discover
the whereabouts of a parent; or
    (3) The child is a ward of the State under the laws of that
State.     (b) Duty of public agency. The duty of a public agency
under paragraph (a) of this section includes the assignment of an
individual to act as a surrogate for the parents. This must include
a method--    (1) For determining whether a child needs a surrogate
parent; and     (2) For assigning a surrogate parent to the child.
    (c) Criteria for selection of surrogates. (1) The public agency
may select a surrogate parent in any way permitted under State law. 
   (2) Except as provided in paragraph (c)(3) of this section,
public agencies shall ensure that a person selected as a surrogate-
-    (i) Is not an employee of the SEA, the LEA, or any other
agency that is involved in the education or care of the child;
    (ii) Has no interest that conflicts with the interest of the
child he or she represents; and
    (iii) Has knowledge and skills that ensure adequate
representation of the child.
    (3) A public agency may select as a surrogate a person who is
an employee of a nonpublic agency that only provides non-
educational care for the child and who meets the standards in

[[Page 12453]]

paragraphs (c)(2)(ii) and (iii) of this section.
    (d) Non-employee requirement; compensation. A person who
otherwise qualifies to be a surrogate parent under paragraph (c) of
this section is not an employee of the agency solely because he or
she is paid by the agency to serve as a surrogate parent.
    (e) Responsibilities. The surrogate parent may represent the
child in all matters relating to--
    (1) The identification, evaluation, and educational placement
of the child; and
    (2) The provision of FAPE to the child.

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

Sec. 300.516  [Reserved].

Sec. 300.517  Transfer of parental rights at age of majority.

    (a) General. A State may provide that, when a student with a
disability reaches the age of majority under State law that applies
to all students (except for a student with a disability who has
been determined to be incompetent under State law)--
    (1)(i) The public agency shall provide any notice required by
this part to both the individual and the parents; and
    (ii) All other rights accorded to parents under Part B of the
Act transfer to the student; and
    (2) All rights accorded to parents under Part B of the Act
transfer to students who are incarcerated in an adult or juvenile,
State or local correctional institution.
    (3) Whenever a State transfers rights under this part pursuant
to paragraph (a)(1) or (a)(2) of this section, the agency shall
notify the individual and the parents of the transfer of rights.
    (b) Special rule. If, under State law, a State has a mechanism
to determine that a student with a disability, who has reached the
age of majority under State law that applies to all children and
has not been determined incompetent under State law, does not have
the ability to provide informed consent with respect to his or her
educational program, the State shall establish procedures for
appointing the parent, or, if the parent is not available another
appropriate individual, to represent the educational interests of
the student throughout the student's eligibility under Part B of
the Act.

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

Discipline Procedures

Sec. 300.519  Change of placement for disciplinary removals.

    For purposes of removals of a child with a disability from the
child's current educational placement under Secs. 300.520-300.529,
a change of placement occurs if--
    (a) The removal is for more than 10 consecutive school days; or 
   (b) The child is subjected to a series of removals that
constitute a pattern because they cumulate to more than 10 school
days in a school year, and because of factors such as the length of
each removal, the total amount of time the child is removed, and
the proximity of the removals to one another.

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

Sec. 300.520  Authority of school personnel.

    (a) School personnel may order--
    (1)(i) To the extent removal would be applied to children
without disabilities, the removal of a child with a disability from
the child's current placement for not more than 10 consecutive
school days for any violation of school rules, and 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 Sec.
300.519(b));
    (ii) After a child with a disability has been removed from his
or her current placement for more than 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 Sec.
300.121(d); and     (2) A change in placement of a child with a
disability to an appropriate interim alternative educational
setting for the same amount of time that a child without a
disability would be subject to discipline, but for not more than 45
days, if--
    (i) The child carries a weapon to school or to a school
function under the jurisdiction of a State or a local educational
agency; or     (ii) The child knowingly possesses or uses illegal
drugs or sells or solicits the sale of a controlled substance while
at school or a school function under the jurisdiction of a State or
local educational agency.
    (b)(1) Either before or not later than 10 business days after
either first removing the child for more than 10 school days in a
school year or commencing a removal that constitutes a change of
placement under Sec. 300.519, including the action described in
paragraph (a)(2) of this section--
    (i) If the LEA did not conduct a functional behavioral
assessment and implement a behavioral intervention plan for the
child before the behavior that resulted in the removal described in
paragraph (a) of this section, the agency shall convene an IEP
meeting to develop an assessment plan.
    (ii) If the child already has a behavioral intervention plan,
the IEP team shall meet to review the plan and its implementation,
and, modify the plan and its implementation as necessary, to
address the behavior.
    (2) As soon as practicable after developing the plan described
in paragraph (b)(1)(i) of this section, and completing the
assessments required by the plan, the LEA shall convene an IEP
meeting to develop appropriate behavioral interventions to address
that behavior and shall implement those interventions.
    (c)(1) If subsequently, a child with a disability who has a
behavioral intervention plan and who has been removed from the
child's current educational placement for more than 10 school days
in a school year is subjected to a removal that does not constitute
a change of placement under Sec. 300.519, the IEP team members
shall review the behavioral intervention plan and its
implementation to determine if modifications are necessary.
    (2) If one or more of the team members believe that
modifications are needed, the team shall meet to modify the plan
and its
implementation, to the extent the team determines necessary.    
(d) For purposes of this section, the following definitions apply: 
   (1) Controlled substance means a drug or other substance
identified under schedules I, II, III, IV, or V in section 202(c)
of the Controlled Substances Act (21 U.S.C. 812(c)).
    (2) Illegal drug--
    (i) Means a controlled substance; but
    (ii) Does not include a 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) Weapon has the meaning given the term ``dangerous weapon''
under paragraph (2) of the first subsection (g) of section 930 of
title 18, United States Code.

(Authority: 20 U.S.C. 1415(k)(1), (10))

Sec. 300.521  Authority of hearing officer.

    A hearing officer under section 615 of the Act may order a
change in the placement of a child with a disability to an
appropriate interim alternative educational setting for not more
than 45 days if the hearing officer, in an expedited due process
hearing--
    (a) Determines that the public agency has demonstrated by
substantial evidence that maintaining the current placement of the
child is substantially likely to result in injury to the child or
to others;

[[Page 12454]]

    (b) Considers the appropriateness of the child's current
placement;     (c) Considers whether the public agency has made
reasonable efforts to minimize the risk of harm in the child's
current placement, including the use of supplementary aids and
services; and
    (d) Determines that the interim alternative educational setting
that is proposed by school personnel who have consulted with the
child's special education teacher, meets the requirements of Sec.
300.522(b).
    (e) As used in this section, the term substantial evidence
means beyond a preponderance of the evidence.

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

Sec. 300.522  Determination of setting.

    (a) General. The interim alternative educational setting
referred to in Sec. 300.520(a)(2) must be determined by the IEP
team.     (b) Additional requirements. Any interim alternative
educational setting in which a child is placed under Secs.
300.520(a)(2) or 300.521 must--
    (1) Be selected so as to enable the child to continue to
progress in the general curriculum, although in another setting,
and to continue to receive those services and modifications,
including those described in the child's current IEP, that will
enable the child to meet the goals set out in that IEP; and
    (2) Include services and modifications to address the behavior
described in Secs. 300.520(a)(2) or 300.521, that are designed to
prevent the behavior from recurring.

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

Sec. 300.523  Manifestation determination review.

    (a) General. If an action is contemplated regarding behavior
described in Secs. 300.520(a)(2) or 300.521, or involving a removal
that constitutes a change of placement under Sec. 300.519 for a
child with a disability who has engaged in other behavior that
violated any rule or code of conduct of the LEA that applies to all
children--    (1) Not later than the date on which the decision to
take that action is made, the parents must be notified of that
decision and provided the procedural safeguards notice described in
Sec. 300.504; and
    (2) Immediately, if possible, but in no case later than 10
school days after the date on which the decision to take that
action is made, a review must be conducted of the relationship
between the child's disability and the behavior subject to the
disciplinary action.     (b) Individuals to carry out review. A
review described in paragraph (a) of this section must be conducted
by the IEP team and other qualified personnel in a meeting.
    (c) Conduct of review. In carrying out a review described in
paragraph (a) of this section, the IEP team and other qualified
personnel may determine that the behavior of the child was not a
manifestation of the child's disability only if the IEP team and
other qualified personnel--
    (1) First consider, in terms of the behavior subject to
disciplinary action, all relevant information, including --
    (i) Evaluation and diagnostic results, including the results or
other relevant information supplied by the parents of the child;  
  (ii) Observations of the child; and
    (iii) The child's IEP and placement; and
    (2) Then determine that--
    (i) In relationship to the behavior subject to disciplinary
action, the child's IEP and placement were appropriate and the
special education services, supplementary aids and services, and
behavior intervention strategies were provided consistent with the
child's IEP and placement;
    (ii) The child's disability did not impair the ability of the
child to understand the impact and consequences of the behavior
subject to disciplinary action; and
    (iii) The child's disability did not impair the ability of the
child to control the behavior subject to disciplinary action.    
(d) Decision. If the IEP team and other qualified personnel
determine that any of the standards in paragraph (c)(2) of this
section were not met, the behavior must be considered a
manifestation of the child's disability.
    (e) Meeting. The review described in paragraph (a) of this
section may be conducted at the same IEP meeting that is convened
under Sec. 300.520(b).
    (f) Deficiencies in IEP or placement. If, in the review in
paragraphs (b) and (c) of this section, a public agency identifies
deficiencies in the child's IEP or placement or in their
implementation, it must take immediate steps to remedy those
deficiencies.

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

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

    (a) General. If the result of the review described in Sec.
300.523 is a determination, consistent with Sec. 300.523(d), that
the behavior of the child with a disability was not a manifestation
of the child's disability, the relevant disciplinary procedures
applicable to children without disabilities may be applied to the
child in the same manner in which they would be applied to children
without disabilities, except as provided in Sec. 300.121(d).
    (b) Additional requirement. If the public agency initiates
disciplinary procedures applicable to all children, the agency
shall ensure that the special education and disciplinary records of
the child with a disability are transmitted for consideration by
the person or persons making the final determination regarding the
disciplinary action.
    (c) Child's status during due process proceedings. Except as
provided in Sec. 300.526, Sec. 300.514 applies if a parent requests
a hearing to challenge a determination, made through the review
described in Sec. 300.523, that the behavior of the child was not
a manifestation of the child's disability.

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

Sec. 300.525  Parent appeal.

    (a) General. (1) If the child's parent disagrees with a
determination that the child's behavior was not a manifestation of
the child's disability or with any decision regarding placement
under Secs. 300.520-300.528, the parent may request a hearing.
    (2) The State or local educational agency shall arrange for an
expedited hearing in any case described in paragraph (a)(1) of this
section if a hearing is requested by a parent.
    (b) Review of decision. (1) In reviewing a decision with
respect to the manifestation determination, the hearing officer
shall determine whether the public agency has demonstrated that the
child's behavior was not a manifestation of the child's disability
consistent with the requirements of Sec. 300.523(d).
    (2) In reviewing a decision under Sec. 300.520(a)(2) to place
the child in an interim alternative educational setting, the
hearing officer shall apply the standards in Sec. 300.521.

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

Sec. 300.526  Placement during appeals.

    (a) General. If a parent requests a hearing or an appeal
regarding a disciplinary action described in Sec. 300.520(a)(2) or
300.521 to challenge the interim alternative educational setting or
the manifestation determination, the child must remain in the
interim alternative educational setting pending the decision of the
hearing officer or until the expiration of the time period provided
for in Sec. 300.520(a)(2) or 300.521, whichever occurs first,
unless the parent and the State agency or local educational agency
agree otherwise.

[[Continued on page 12455]]

[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12455-12504]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov] [DOCID:fr12mr99-13]

[[pp. 12455-12504]] Assistance to States for the Education of
Children With Disabilities and the Early Intervention Program for
Infants and Toddlers With Disabilities

[[Continued from page 12454]]

[[Page 12455]]

    (b) Current placement. If a child is placed in an interim
alternative educational setting pursuant to Sec. 300.520(a)(2) or
300.521 and school personnel propose to change the child's
placement after expiration of the interim alternative placement,
during the pendency of any proceeding to challenge the proposed
change in placement the child must remain in the current placement
(the child's placement prior to the interim alternative educational
setting), except as provided in paragraph (c) of this section.
    (c) Expedited hearing. (1) If school personnel maintain that it
is dangerous for the child to be in the current placement
(placement prior to removal to the interim alternative education
setting) during the pendency of the due process proceedings, the
LEA may request an expedited due process hearing.
    (2) In determining whether the child may be placed in the
alternative educational setting or in another appropriate placement
ordered by the hearing officer, the hearing officer shall apply the
standards in Sec. 300.521.
    (3) A placement ordered pursuant to paragraph (c)(2) of this
section may not be longer than 45 days.
    (4) The procedure in paragraph (c) of this section may be
repeated, as necessary.

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

Sec. 300.527  Protections for children not yet eligible for special
education and related services.

    (a) General. A child who has not been determined to be eligible
for special education and related services under this part and who
has engaged in behavior that violated any rule or code of conduct
of the local educational agency, including any behavior described
in Secs. 300.520 or 300.521, may assert any of the protections
provided for in this part if the LEA had knowledge (as determined
in accordance with 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. An LEA must be deemed to have knowledge
that a child is a child with a disability if--
    (1) The parent of the child has expressed concern in writing
(or orally if the parent does not know how to write or has a
disability that prevents a written statement) to personnel of the
appropriate educational agency that the child is in need of special
education and related services;
    (2) The behavior or performance of the child demonstrates the
need for these services, in accordance with Sec. 300.7;
    (3) The parent of the child has requested an evaluation of the
child pursuant to Secs. 300.530-300.536; or
    (4) The teacher of the child, or other personnel of the local
educational agency, has expressed concern about the behavior or
performance of the child to the director of special education of
the agency or to other personnel in accordance with the agency's
established child find or special education referral system.    
(c) Exception. A public agency would not be deemed to have
knowledge under paragraph (b) of this section if, as a result of
receiving the information specified in that paragraph, the agency-- 
  (1) Either--
    (i) Conducted an evaluation under Secs. 300.530-300.536, and
determined that the child was not a child with a disability under
this part; or
    (ii) Determined that an evaluation was not necessary; and    
(2) Provided notice to the child's parents of its determination
under paragraph (c)(1) of this section, consistent with Sec.
300.503.     (d) Conditions that apply if no basis of knowledge.
(1) General. If an LEA does not have knowledge that a child is a
child with a disability (in accordance with paragraphs (b) and (c)
of this section) prior to taking disciplinary measures against the
child, the child may be subjected to the same disciplinary measures
as measures applied to children without disabilities who engaged in
comparable behaviors consistent with paragraph (d)(2) of this
section.
    (2) Limitations. (i) If a request is made for an evaluation of
a child during the time period in which the child is subjected to
disciplinary measures under Sec. 300.520 or 300.521, the evaluation
must be conducted in an expedited manner.
    (ii) Until the evaluation is completed, the child remains in
the educational placement determined by school authorities, 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 shall provide special education and related
services in accordance with the provisions of this part, including
the requirements of Secs. 300.520-300.529 and section 612(a)(1)(A)
of the Act.

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

Sec. 300.528  Expedited due process hearings.

    (a) Expedited due process hearings under Secs. 300.521-300.526
must--
    (1) Meet the requirements of Sec. 300.509, except that a State
may provide that the time periods identified in Secs. 300.509(a)(3)
and Sec. 300.509(b) for purposes of expedited due process hearings
under Secs. 300.521-300.526 are not less than two business days;
and     (2) Be conducted by a due process hearing officer who
satisfies the requirements of Sec. 300.508.
    (b)(1) Each State shall establish a timeline for expedited due
process hearings that results in a written decision being mailed to
the parties within 45 days of the public agency's receipt of the
request for the hearing, without exceptions or extensions.
    (2) The timeline established under paragraph (b)(1) of this
section must be the same for hearings requested by parents or
public agencies.     (c) A State may establish different procedural
rules for expedited hearings under Secs. 300.521-300.526 than it
has established for due process hearings under Sec. 300.507.
    (d) The decisions on expedited due process hearings are
appealable consistent with Sec. 300.510.

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

Sec. 300.529  Referral to and action by law enforcement and
judicial authorities.

    (a) Nothing in this part prohibits an agency from reporting a
crime committed by a child with a disability to appropriate
authorities or to prevent State law enforcement and judicial
authorities from exercising their responsibilities with regard to
the application of Federal and State law to crimes committed by a
child with a disability.     (b)(1) An agency reporting a crime
committed by a child with a disability shall ensure that copies of
the special education and disciplinary records of the child are
transmitted for consideration by the appropriate authorities to
whom it reports the crime.
    (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)(9))

Procedures for Evaluation and Determination of Eligibility

Sec. 300.530  General.

    Each SEA shall ensure that each public agency establishes and

[[Page 12456]]

implements procedures that meet the requirements of Secs. 300.531-
300.536.

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

Sec. 300.531  Initial evaluation.

    Each public agency shall conduct a full and individual initial
evaluation, in accordance with Secs. 300.532 and 300.533, before
the initial provision of special education and related services to
a child with a disability under Part B of the Act.

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

Sec. 300.532  Evaluation procedures.

    Each public agency shall ensure, at a minimum, that the
following requirements are met:
    (a)(1) Tests and other evaluation materials used to assess a
child under Part B of the Act--
    (i) Are selected and administered so as not to be
discriminatory on a racial or cultural basis; and
    (ii) Are provided and administered in the child's native
language or other mode of communication, unless it is clearly not
feasible to do so; and
    (2) Materials and procedures used to assess a child with
limited English proficiency are selected and administered to ensure
that they measure the extent to which the child has a disability
and needs special education, rather than measuring the child's
English language skills.
    (b) A variety of assessment tools and strategies are used to
gather relevant functional and developmental information about the
child, including information provided by the parent, and
information related to enabling the child to be involved in and
progress in the general curriculum (or for a preschool child, to
participate in appropriate activities), that may assist in
determining--
    (1) Whether the child is a child with a disability under Sec.
300.7; and
    (2) The content of the child's IEP.
    (c)(1) Any standardized tests that are given to a child--   
(i) Have been validated for the specific purpose for which they are
used; and
    (ii) Are administered by trained and knowledgeable personnel in
accordance with any instructions provided by the producer of the
tests.     (2) If an assessment is not conducted under standard
conditions, a description of the extent to which it varied from
standard conditions (e.g., the qualifications of the person
administering the test, or the method of test administration) must
be included in the evaluation report.
    (d) Tests and other evaluation materials include those tailored
to assess specific areas of educational need and not merely those
that are designed to provide a single general intelligence
quotient.     (e) Tests are selected and administered so as best to
ensure that if a test is administered to a child with impaired
sensory, manual, or speaking skills, the test results accurately
reflect the child's aptitude or achievement level or whatever other
factors the test purports to measure, rather than reflecting the
child's impaired sensory, manual, or speaking skills (unless those
skills are the factors that the test purports to measure).
    (f) No single procedure is used as the sole criterion for
determining whether a child is a child with a disability and for
determining an appropriate educational program for the child.    
(g) The child is assessed in all areas related to the suspected
disability, including, if appropriate, health, vision, hearing,
social and emotional status, general intelligence, academic
performance, communicative status, and motor abilities.
    (h) In evaluating each child with a disability under Secs.
300.531-300.536, 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.
    (i) The public agency uses technically sound instruments that
may assess the relative contribution of cognitive and behavioral
factors, in addition to physical or developmental factors.
    (j) The public agency uses assessment tools and strategies that
provide relevant information that directly assists persons in
determining the educational needs of the child.

(Authority: 20 U.S.C. 1412(a)(6)(B), 1414(b)(2) and (3))

Sec. 300.533  Determination of needed evaluation data.

    (a) Review of existing evaluation data. As part of an initial
evaluation (if appropriate) and as part of any reevaluation under
Part B of the Act, a group that includes the individuals described
in Sec. 300.344, and other qualified professionals, as appropriate,
shall--
    (1) Review existing evaluation data on the child, including-- 
  (i) Evaluations and information provided by the parents of the
child;
    (ii) Current classroom-based assessments and observations; and 
   (iii) Observations by teachers and related services providers;
and     (2) On the basis of that review, and input from the child's
parents, identify what additional data, if any, are needed to
determine--
    (i) Whether the child has a particular category of disability,
as described in Sec. 300.7, or, in case of a reevaluation of a
child, whether the child continues to have such a disability;
    (ii) The present levels of performance and educational needs of
the child;
    (iii) Whether the child needs special education and related
services, or in the case of a reevaluation of a child, whether the
child continues to need special education and related services; and 
   (iv) Whether any additions or modifications to the special
education and related services are needed to enable the child to
meet the measurable annual goals set out in the IEP of the child
and to participate, as appropriate, in the general curriculum.
    (b) Conduct of review. The group described in paragraph (a) of
this section may conduct its review without a meeting.
    (c) Need for additional data. The public agency shall
administer tests and other evaluation materials as may be needed to
produce the data identified under paragraph (a) of this section.
    (d) Requirements if additional data are not needed. (1) If the
determination under paragraph (a) of this section is that no
additional data are needed to determine whether the child continues
to be a child with a disability, the public agency shall notify the
child's parents--    (i) Of that determination and the reasons for
it; and
    (ii) Of the right of the parents to request an assessment to
determine whether, for purposes of services under this part, the
child continues to be a child with a disability.
    (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.

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

Sec. 300.534  Determination of eligibility

    (a) Upon completing the administration of tests and other
evaluation materials--
    (1) A group of qualified professionals and the parent of the
child must determine whether the child is a child with a
disability, as defined in Sec. 300.7; and
    (2) The public agency must provide a copy of the evaluation
report and the documentation of determination of eligibility to the
parent.     (b) A child may not be determined to be eligible under
this part if--
    (1) The determinant factor for that eligibility determination
is--
[[Page 12457]]

    (i) Lack of instruction in reading or math; or
    (ii) Limited English proficiency; and
    (2) The child does not otherwise meet the eligibility criteria
under Sec. 300.7(a).
    (c)(1) A public agency must evaluate a child with a disability
in accordance with Secs. 300.532 and 300.533 before determining
that the child is no longer a child with a disability.
    (2) The evaluation described in paragraph (c)(1) of this
section is not required before the termination of a student's
eligibility under Part B of the Act due to graduation with a
regular high school diploma, or exceeding the age eligibility for
FAPE under State law.

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

Sec. 300.535  Procedures for determining eligibility and placement.

    (a) In interpreting evaluation data for the purpose of
determining if a child is a child with a disability under Sec.
300.7, and the educational needs of the child, each public agency
shall--
    (1) Draw upon information from a variety of sources, including
aptitude and achievement tests, parent input, teacher
recommendations, physical condition, social or cultural background,
and adaptive behavior; and
    (2) Ensure that information obtained from all of these sources
is documented and carefully considered.
    (b) If a determination is made that a child has a disability
and needs special education and related services, an IEP must be
developed for the child in accordance with Secs. 300.340-300.350.

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

Sec. 300.536  Reevaluation.

    Each public agency shall ensure--
    (a) That the IEP of each child with a disability is reviewed in
accordance with Secs. 300.340-300.350; and
    (b) That a reevaluation of each child, in accordance with Secs.
300.532-300.535, is conducted if conditions warrant a reevaluation,
or if the child's parent or teacher requests a reevaluation, but at
least once every three years.

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

Additional Procedures for Evaluating Children With Specific
Learning Disabilities

Sec. 300.540  Additional team members.

    The determination of whether a child suspected of having a
specific learning disability is a child with a disability as
defined in Sec. 300.7, must be made by the child's parents and a
team of qualified professionals which must include--
    (a)(1) The child's regular teacher; or
    (2) If the child does not have a regular teacher, a regular
classroom teacher qualified to teach a child of his or her age; or 
   (3) For a child of less than school age, an individual qualified
by the SEA to teach a child of his or her age; and
    (b) At least one person qualified to conduct individual
diagnostic examinations of children, such as a school psychologist,
speech-language pathologist, or remedial reading teacher.

(Authority: Sec. 5(b), Pub. L. 94-142)

Sec. 300.541  Criteria for determining the existence of a specific
learning disability.

    (a) A team may determine that a child has a specific learning
disability if--
    (1) The child does not achieve commensurate with his or her age
and ability levels in one or more of the areas listed in paragraph
(a)(2) of this section, if provided with learning experiences
appropriate for the child's age and ability levels; and
    (2) The team finds that a child has a severe discrepancy
between achievement and intellectual ability in one or more of the
following areas:
    (i) Oral expression.
    (ii) Listening comprehension.
    (iii) Written expression.
    (iv) Basic reading skill.
    (v) Reading comprehension.
    (vi) Mathematics calculation.
    (vii) Mathematics reasoning.
    (b) The team may not identify a child as having a specific
learning disability if the severe discrepancy between ability and
achievement is primarily the result of--
    (1) A visual, hearing, or motor impairment;
    (2) Mental retardation;
    (3) Emotional disturbance; or
    (4) Environmental, cultural or economic disadvantage.

(Authority: Sec. 5(b), Pub. L. 94-142)

Sec. 300.542  Observation.

    (a) At least one team member other than the child's regular
teacher shall observe the child's academic performance in the
regular classroom setting.
    (b) In the case of a child of less than school age or out of
school, a team member shall observe the child in an environment
appropriate for a child of that age.

(Authority: Sec. 5(b), Pub. L. 94-142)

Sec. 300.543  Written report.

    (a) For a child suspected of having a specific learning
disability, the documentation of the team's determination of
eligibility, as required by Sec. 300.534(a)(2), must include a
statement of--    (1) Whether the child has a specific learning
disability;     (2) The basis for making the determination;
    (3) The relevant behavior noted during the observation of the
child;
    (4) The relationship of that behavior to the child's academic
functioning;
    (5) The educationally relevant medical findings, if any;    
(6) Whether there is a severe discrepancy between achievement and
ability that is not correctable without special education and
related services; and
    (7) The determination of the team concerning the effects of
environmental, cultural, or economic disadvantage.
    (b) Each team member shall certify in writing whether the
report reflects his or her conclusion. If it does not reflect his
or her conclusion, the team member must submit a separate statement
presenting his or her conclusions.

(Authority: Sec. 5(b), Pub. L. 94-142)

Least Restrictive Environment (LRE)

Sec. 300.550  General LRE requirements.

    (a) Except as provided in Sec. 300.311(b) and (c), a State
shall demonstrate to the satisfaction of the Secretary that the
State has in effect policies and procedures to ensure that it meets
the requirements of Secs. 300.550-300.556.
    (b) Each public agency shall ensure--
    (1) That to the maximum extent appropriate, children with
disabilities, including children in public or private institutions
or other care facilities, are educated with children who are
nondisabled; and
    (2) That special classes, separate schooling or other removal
of children with disabilities from the regular educational
environment occurs only if the nature or severity of the disability
is such that education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily.

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

Sec. 300.551  Continuum of alternative placements.

    (a) Each public agency shall ensure that a continuum of
alternative placements is available to meet the needs of children
with disabilities for special education and related services.
    (b) The continuum required in paragraph (a) of this section
must--    (1) Include the alternative placements listed in the
definition of special education under Sec. 300.26 (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

[[Page 12458]]

itinerant instruction) to be provided in conjunction with regular
class placement.

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

Sec. 300.552  Placements.

    In determining the educational placement of a child with a
disability, including a preschool child with a disability, each
public agency shall ensure that--
    (a) The placement decision--
    (1) Is made by a group of persons, including the parents, and
other persons knowledgeable about the child, the meaning of the
evaluation data, and the placement options; and
    (2) Is made in conformity with the LRE provisions of this
subpart, including Secs. 300.550-300.554;
    (b) The child's placement--
    (1) Is determined at least annually;
    (2) Is based on the child's IEP; and
    (3) Is as close as possible to the child's home;
    (c) Unless the IEP of a child with a disability requires some
other arrangement, the child is educated in the school that he or
she would attend if nondisabled;
    (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 curriculum.

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

Sec. 300.553  Nonacademic settings.

    In providing or arranging for the provision of nonacademic and
extracurricular services and activities, including meals, recess
periods, and the services and activities set forth in Sec. 300.306,
each public agency shall ensure that each child with a disability
participates with nondisabled children in those services and
activities to the maximum extent appropriate to the needs of that
child.

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

Sec. 300.554  Children in public or private institutions.

    Except as provided in Sec. 300.600(d), an SEA must ensure that
Sec. 300.550 is effectively implemented, including, if necessary,
making arrangements with public and private institutions (such as
a memorandum of agreement or special implementation procedures).

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

Sec. 300.555  Technical assistance and training activities.

    Each SEA shall carry out activities to ensure that teachers and
administrators in all public agencies--
    (a) Are fully informed about their responsibilities for
implementing Sec. 300.550; and
    (b) Are provided with technical assistance and training
necessary to assist them in this effort.

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

Sec. 300.556  Monitoring activities.

    (a) The SEA shall carry out activities to ensure that Sec.
300.550 is implemented by each public agency.
    (b) If there is evidence that a public agency makes placements
that are inconsistent with Sec. 300.550, the SEA shall--
    (1) Review the public agency's justification for its actions;
and     (2) Assist in planning and implementing any necessary
corrective action.

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

Confidentiality of Information

Sec. 300.560   Definitions.

    As used in Secs. 300.560-300.577--
    (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).     (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))

Sec. 300.561  Notice to parents.

    (a) The SEA shall give notice that is adequate to fully inform
parents about the requirements of Sec. 300.127, including--
    (1) A description of the extent that the notice is given in the
native languages of the various population groups in the State;   
 (2) A description of the children on whom personally identifiable
information is maintained, the types of information sought, the
methods the State intends to use in gathering the information
(including the sources from whom information is gathered), and the
uses to be made of the information;
    (3) A summary of the policies and procedures that participating
agencies must follow regarding storage, disclosure to third
parties, retention, and destruction of personally identifiable
information; and     (4) A description of all of the rights of
parents and children regarding this information, including the
rights under the Family Educational Rights and Privacy Act of 1974
and implementing regulations in 34 CFR part 99.
    (b) Before any major identification, location, or evaluation
activity, the notice must be published or announced in newspapers
or other media, or both, with circulation adequate to notify
parents throughout the State of the activity.

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

Sec. 300.562  Access rights.

    (a) Each participating agency shall permit parents to inspect
and review any education records relating to their children that
are collected, maintained, or used by the agency under this part.
The agency shall comply with a request without unnecessary delay
and before any meeting regarding an IEP, or any hearing pursuant to
Secs. 300.507 and 300.521-300.528, and in no case more than 45 days
after the request has been made.
    (b) The right to inspect and review education records under
this section includes--
    (1) The right to a response from the participating agency to
reasonable requests for explanations and interpretations of the
records;
    (2) The right to request that the agency provide copies of the
records containing the information if failure to provide those
copies would effectively prevent the parent from exercising the
right to inspect and review the records; and
    (3) The right to have a representative of the parent inspect
and review the records.
    (c) An agency may presume that the parent has authority to
inspect and review records relating to his or her child unless the
agency has been advised that the parent does not have the authority
under applicable State law governing such matters as guardianship,
separation, and divorce.

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

Sec. 300.563  Record of access.

    Each participating agency shall keep a record of parties
obtaining access to education records collected, maintained, or
used under Part B of the Act (except access by parents and
authorized employees of the

[[Page 12459]]

participating agency), including the name of the party, the date
access was given, and the purpose for which the party is authorized
to use the records.

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

Sec. 300.564  Records on more than one child.

    If any education record includes information on more than one
child, the parents of those children have the right to inspect and
review only the information relating to their child or to be
informed of that specific information.

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

Sec. 300.565  List of types and locations of information.

    Each participating agency shall provide parents on request a
list of the types and locations of education records collected,
maintained, or used by the agency.

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

Sec. 300.566  Fees.

    (a) Each participating agency may charge a fee for copies of
records that are made for parents under this part if the fee does
not effectively prevent the parents from exercising their right to
inspect and review those records.
    (b) A participating agency may not charge a fee to search for
or to retrieve information under this part.

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

Sec. 300.567  Amendment of records at parent's request.

    (a) A parent who believes that information in the education
records collected, maintained, or used under this part is
inaccurate or misleading or violates the privacy or other rights of
the child may request the participating agency that maintains the
information to amend the information.
    (b) The agency shall decide whether to amend the information in
accordance with the request within a reasonable period of time of
receipt of the request.
    (c) If the agency decides to refuse to amend the information in
accordance with the request, it shall inform the parent of the
refusal and advise the parent of the right to a hearing under Sec.
300.568.

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

Sec. 300.568  Opportunity for a hearing.

    The agency shall, on request, provide an opportunity for a
hearing to challenge information in education records to ensure
that it is not inaccurate, misleading, or otherwise in violation of
the privacy or other rights of the child.

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

Sec. 300.569  Result of hearing.

    (a) If, as a result of the hearing, the agency decides that the
information is inaccurate, misleading or otherwise in violation of
the privacy or other rights of the child, it shall amend the
information accordingly and so inform the parent in writing.
    (b) If, as a result of the hearing, the agency decides that the
information is not inaccurate, misleading, or otherwise in
violation of the privacy or other rights of the child, it shall
inform the parent of the right to place in the records it maintains
on the child a statement commenting on the information or setting
forth any reasons for disagreeing with the decision of the agency.
    (c) Any explanation placed in the records of the child under
this section must--
    (1) Be maintained by the agency as part of the records of the
child as long as the record or contested portion is maintained by
the agency; and
    (2) If the records of the child or the contested portion is
disclosed by the agency to any party, the explanation must also be
disclosed to the party.

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

Sec. 300.570  Hearing procedures.

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

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

Sec. 300.571  Consent.

    (a) Except as to disclosures addressed in Sec. 300.529(b) for
which parental consent is not required by Part 99, parental consent
must be obtained before personally identifiable information is--
    (1) Disclosed to anyone other than officials of participating
agencies collecting or using the information under this part,
subject to paragraph (b) of this section; or
    (2) Used for any purpose other than meeting a requirement of
this part.
    (b) An educational agency or institution subject to 34 CFR part
99 may not release information from education records to
participating agencies without parental consent unless authorized
to do so under part 99.
    (c) The SEA shall provide policies and procedures that are used
in the event that a parent refuses to provide consent under this
section.

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

Sec. 300.572  Safeguards.

    (a) Each participating agency shall protect the confidentiality
of personally identifiable information at collection, storage,
disclosure, and destruction stages.
    (b) One official at each participating agency shall assume
responsibility for ensuring the confidentiality of any personally
identifiable information.
    (c) All persons collecting or using personally identifiable
information must receive training or instruction regarding the
State's policies and procedures under Sec. 300.127 and 34 CFR part
99.     (d) Each participating agency shall maintain, for public
inspection, a current listing of the names and positions of those
employees within the agency who may have access to personally
identifiable information.

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

Sec. 300.573  Destruction of information.

    (a) The public agency shall inform parents when personally
identifiable information collected, maintained, or used under this
part is no longer needed to provide educational services to the
child.     (b) The information must be destroyed at the request of
the parents. However, a permanent record of a student's name,
address, and phone number, his or her grades, attendance record,
classes attended, grade level completed, and year completed may be
maintained without time limitation.

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

Sec. 300.574  Children's rights.

    (a) The SEA shall provide policies and procedures regarding the
extent to which children are afforded rights of privacy similar to
those afforded to parents, taking into consideration the age of the
child and type or severity of disability.
    (b) Under the regulations for the Family Educational Rights and
Privacy Act of 1974 (34 CFR 99.5(a)), the rights of parents
regarding education records are transferred to the student at age
18.     (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 Sec. 300.517, the rights regarding educational
records in Secs. 300.562-300.573 must also be transferred to the
student. However, the public agency must provide any notice
required under section 615 of the Act to the student and the
parents.

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

Sec. 300.575  Enforcement.

    The SEA shall provide the policies and procedures, including
sanctions, that the State uses to ensure that its policies and
procedures are followed and that the requirements of the Act and
the regulations in this part are met.

[[Page 12460]]

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

Sec. 300.576  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 individualized
education program and any statement of current or previous
disciplinary action that has been taken against the child.

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

Sec. 300.577  Department use of personally identifiable
information.

    If the Department or its authorized representatives collect any
personally identifiable information regarding children with
disabilities that is not subject to 5 U.S.C. 552a (the Privacy Act
of 1974), the Secretary applies the requirements of 5 U.S.C. 552a
(b)(1)-(2), (4)-(11); (c); (d); (e)(1), (2), (3)(A), (B), and (D),
(5)-(10); (h); (m); and (n); and the regulations implementing those
provisions in 34 CFR part 5b.

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

Department Procedures

Sec. 300.580  Determination by the Secretary that a State is
eligible.

    If the Secretary determines that a State is eligible to receive
a grant under Part B of the Act, the Secretary notifies the State
of that determination.

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

Sec. 300.581  Notice and hearing before determining that a State is
not eligible.

    (a) General. (1) The Secretary does not make a final
determination that a State is not eligible to receive a grant under
Part B of the Act until providing the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) In implementing paragraph (a)(1)(i) of this section, the
Secretary sends a written notice to the SEA by certified mail with
return receipt requested.
    (b) Content of notice. In the written notice described in
paragraph (a)(2) of this section, the Secretary--
    (1) States the basis on which the Secretary proposes to make a
final determination that the State is not eligible;
    (2) May describe possible options for resolving the issues;   
 (3) Advises the SEA that it may request a hearing and that the
request for a hearing must be made not later than 30 days after it
receives the notice of the proposed final determination that the
State is not eligible; and
    (4) Provides information about the procedures followed for a
hearing.

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

Sec. 300.582  Hearing official or panel.

    (a) If the SEA requests a hearing, the Secretary designates one
or more individuals, either from the Department or elsewhere, not
responsible for or connected with the administration of this
program, to conduct a hearing.
    (b) If more than one individual is designated, the Secretary
designates one of those individuals as the Chief Hearing Official
of the Hearing Panel. If one individual is designated, that
individual is the Hearing Official.

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

Sec. 300.583  Hearing procedures.

    (a) As used in Secs. 300.581-300.586 the term party or parties
means the following:
    (1) An SEA that requests a hearing regarding the proposed
disapproval of 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 Panel.    
(b) Within 15 days after receiving a request for a hearing, the
Secretary designates a Hearing Official or Panel and notifies the
parties.
    (c) The Hearing Official or Panel may regulate the course of
proceedings and the conduct of the parties during the proceedings.
The Hearing Official or Panel takes all steps necessary to conduct
a fair and impartial proceeding, to avoid delay, and to maintain
order, including the following:
    (1) The Hearing Official or Panel may hold conferences or other
types of appropriate proceedings to clarify, simplify, or define
the issues or to consider other matters that may aid in the
disposition of the case.
    (2) The Hearing Official or Panel may schedule a prehearing
conference of the Hearing Official or Panel and parties.
    (3) Any party may request the Hearing Official or Panel to
schedule a prehearing or other conference. The Hearing Official or
Panel decides whether a conference is necessary and notifies all
parties.     (4) At a prehearing or other conference, the Hearing
Official or Panel and the parties may consider subjects such as--
    (i) Narrowing and clarifying issues;
    (ii) Assisting the parties in reaching agreements and
stipulations;     (iii) Clarifying the positions of the parties;
    (iv) Determining whether an evidentiary hearing or oral
argument should be held; and
    (v) Setting dates for--
    (A) The exchange of written documents;
    (B) The receipt of comments from the parties on the need for
oral argument or evidentiary hearing;
    (C) Further proceedings before the Hearing Official or Panel
(including an evidentiary hearing or oral argument, if either is
scheduled);
    (D) Requesting the names of witnesses each party wishes to
present at an evidentiary hearing and estimation of time for each
presentation; or
    (E) Completion of the review and the initial decision of the
Hearing Official or Panel.
    (5) A prehearing or other conference held under paragraph
(b)(4) of this section may be conducted by telephone conference
call.     (6) At a prehearing or other conference, the parties
shall be prepared to discuss the subjects listed in paragraph
(b)(4) of this section.
    (7) Following a prehearing or other conference the Hearing
Official or Panel may issue a written statement describing the
issues raised, the action taken, and the stipulations and
agreements reached by the parties.
    (d) The Hearing Official or Panel may require parties to state
their positions and to provide all or part of the evidence in
writing.     (e) The Hearing Official or Panel may require parties
to present testimony through affidavits and to conduct cross-
examination through interrogatories.
    (f) The Hearing Official or Panel may direct the parties to
exchange relevant documents or information and lists of witnesses,
and to send copies to the Hearing Official or Panel.
    (g) The Hearing Official or Panel may receive, rule on,
exclude, or limit evidence at any stage of the proceedings.

[[Page 12461]]

    (h) The Hearing Official or Panel may rule on motions and other
issues at any stage of the proceedings.
    (i) The Hearing Official or Panel may examine witnesses.    
(j) The Hearing Official or Panel may set reasonable time limits
for submission of written documents.
    (k) The Hearing Official or Panel may refuse to consider
documents or other submissions if they are not submitted in a
timely manner unless good cause is shown.
    (l) The Hearing Official or Panel may interpret applicable
statutes and regulations but may not waive them or rule on their
validity.     (m)(1) The parties shall present their positions
through briefs and the submission of other documents and may
request an oral argument or evidentiary hearing. The Hearing
Official or Panel shall determine whether an oral argument or an
evidentiary hearing is needed to clarify the positions of the
parties.
    (2) The Hearing Official or Panel gives each party an
opportunity to be represented by counsel.
    (n) If the Hearing Official or Panel determines that an
evidentiary hearing would materially assist the resolution of the
matter, the Hearing Official or Panel gives each party, in addition
to the opportunity to be represented by counse--
    (1) An opportunity to present witnesses on the party's behalf;
and     (2) An opportunity to cross-examine witnesses either orally
or with written questions.
    (o) The Hearing Official or Panel accepts any evidence that it
finds is relevant and material to the proceedings and is not unduly
repetitious.
    (p)(1) The Hearing Official or Panel--
    (i) Arranges for the preparation of a transcript of each
hearing;     (ii) Retains the original transcript as part of the
record of the hearing; and
    (iii) Provides one copy of the transcript to each party.    
(2) Additional copies of the transcript are available on request
and with payment of the reproduction fee.
    (q) Each party shall file with the Hearing Official or Panel
all written motions, briefs, and other documents and shall at the
same time provide a copy to the other parties to the proceedings.

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

Sec. 300.584  Initial decision; final decision.

    (a) The Hearing Official or Panel prepares an initial written
decision that addresses each of the points in the notice sent by
the Secretary to the SEA under Sec. 300.581.
    (b) The initial decision of a Panel is made by a majority of
Panel members.
    (c) The Hearing Official or Panel mails by certified mail with
return receipt requested a copy of the initial decision to each
party (or to the party's counsel) and to the Secretary, with a
notice stating that each party has an opportunity to submit written
comments regarding the decision to the Secretary.
    (d) Each party may file comments and recommendations on the
initial decision with the Hearing Official or Panel within 15 days
of the date the party receives the Panel's decision.
    (e) The Hearing Official or Panel sends a copy of a party's
initial comments and recommendations to the other parties by
certified mail with return receipt requested. Each party may file
responsive comments and recommendations with the Hearing Official
or Panel within seven days of the date the party receives the
initial comments and recommendations.
    (f) The Hearing Official or Panel forwards the parties' initial
and responsive comments on the initial decision to the Secretary
who reviews the initial decision and issues a final decision.
    (g) The initial decision of the Hearing Official or Panel
becomes the final decision of the Secretary unless, within 25 days
after the end of the time for receipt of written comments, the
Secretary informs the Hearing Official or Panel and the parties to
a hearing in writing that the decision is being further reviewed
for possible modification.     (h) The Secretary may reject or
modify the initial decision of the Hearing Official or Panel if the
Secretary finds that it is clearly erroneous.
    (i) The Secretary conducts the review based on the initial
decision, the written record, the Hearing Official's or Panel's
proceedings, and written comments. The Secretary may remand the
matter for further proceedings.
    (j) The Secretary issues the final decision within 30 days
after notifying the Hearing Official or Panel that the initial
decision is being further reviewed.

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

Sec. 300.585  Filing requirements.

    (a) Any written submission under Secs. 300.581-300.585 must be
filed by hand-delivery, by mail, or by facsimile transmission. The
Secretary discourages the use of facsimile transmission for
documents longer than five pages.
    (b) The filing date under paragraph (a) of this section is the
date the document is--
    (1) Hand-delivered;
    (2) Mailed; or (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was
received by the Department.
    (d) If a document is filed by facsimile transmission, the
Secretary, the Hearing Official, or the Panel, as applicable, may
require the filing of a follow-up hard copy by hand-delivery or by
mail within a reasonable period of time.
    (e) If agreed upon by the parties, service of a document may be
made upon the other party by facsimile transmission.

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

Sec. 300.586  Judicial review.

    If a State is dissatisfied with the Secretary's final action
with respect to the eligibility of the State under section 612 of
the Act, the State may, not later than 60 days after notice of that
action, file with the United States Court of Appeals for the
circuit in which that State is located a petition for review of
that action. A copy of the petition must be forthwith transmitted
by the clerk of the court to the Secretary. The Secretary then
files in the court the record of the proceedings upon which the
Secretary's action was based, as provided in section 2112 of title
28, United States Code.

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

Sec. 300.587  Enforcement.

    (a) General. The Secretary initiates an action described in
paragraph (b) of this section if the Secretary finds--
    (1) That there has been a failure by the State to comply
substantially with any provision of Part B of the Act, this part,
or 34 CFR part 301; or
    (2) That there is a failure to comply with any condition of an
LEA's or SEA's eligibility under Part B of the Act, this part or 34
CFR part 301, including the terms of any agreement to achieve
compliance with Part B of the Act, this part, or Part 301 within
the timelines specified in the agreement.
    (b) Types of action. The Secretary, after notifying the SEA
(and any LEA or State agency affected by a failure described in
paragraph (a)(2) of this section)--
    (1) Withholds in whole or in part any further payments to the
State under Part B of the Act;
    (2) Refers the matter to the Department of Justice for
enforcement; or
    (3) Takes any other enforcement action authorized by law.    
(c) Nature of withholding. (1) If the Secretary determines that it
is

[[Page 12462]]

appropriate to withhold further payments under paragraph (b)(1) of
this section, the Secretary may determine that the withholding will
be limited to programs or projects, or portions thereof, affected
by the failure, or that the SEA shall not make further payments
under Part B of the Act to specified LEA or State agencies affected
by the failure.     (2) Until the Secretary is satisfied that there
is no longer any failure to comply with the provisions of Part B of
the Act, this part, or 34 CFR part 301, as specified in paragraph
(a) of this section, payments to the State under Part B of the Act
are withheld in whole or in part, or payments by the SEA under Part
B of the Act are limited to local educational agencies and State
agencies whose actions did not cause or were not involved in the
failure, as the case may be.     (3) Any SEA, LEA, or other State
agency that has received notice under paragraph (a) of this section
shall, by means of a public notice, take such measures as may be
necessary to bring the pendency of an action pursuant to this
subsection to the attention of the public within the jurisdiction
of that agency.
    (4) Before withholding under paragraph (b)(1) of this section,
the Secretary provides notice and a hearing pursuant to the
procedures in Secs. 300.581-300.586.
    (d) Referral for appropriate enforcement. (1) Before the
Secretary makes a referral under paragraph (b)(2) of this section
for enforcement, or takes any other enforcement action authorized
by law under paragraph (b)(3), the Secretary provides the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) The hearing described in paragraph (d)(1)(ii) of this
section consists of an opportunity to meet with the Assistant
Secretary for the Office of Special Education and Rehabilitative
Services to demonstrate why the Department should not make a
referral for enforcement.     (e) Divided State agency
responsibility. For purposes of this part, if responsibility for
ensuring that the requirements of this part are met with respect to
children with disabilities who are convicted as adults under State
law and incarcerated in adult prisons is assigned to a public
agency other than the SEA pursuant to Sec. 300.600(d), and if the
Secretary finds that the failure to comply substantially with the
provisions of Part B of the Act or this part are related to a
failure by the public agency, the Secretary takes one of the
enforcement actions described in paragraph (b) of this section to
ensure compliance with Part B of the Act and this part, except--
    (1) Any reduction or withholding of payments to the State under
paragraph (b)(1) of this section is proportionate to the total
funds allotted under section 611 of the Act to the State as the
number of eligible children with disabilities in adult prisons
under the supervision of the other public agency is proportionate
to the number of eligible individuals with disabilities in the
State under the supervision of the State educational agency; and
    (2) Any withholding of funds under paragraph (e)(1) of this
section is limited to the specific agency responsible for the
failure to comply with Part B of the Act or this part.

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

Secs. 300.588  [Reserved]

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

    (a) Except as provided under Secs. 300.232-300.235, funds paid
to a State under Part B of the Act must be used to supplement and
increase the level of Federal, State, and local funds (including
funds that are not under the direct control of SEAs or LEAs)
expended for special education and related services provided to
children with disabilities under Part B of the Act and in no case
to supplant those Federal, State, and local funds. A State may use
funds it retains under Sec. 300.602 without regard to the
prohibition on supplanting other funds (see Sec. 300.372).
    (b) If a State provides clear and convincing evidence that all
eligible children with disabilities throughout the State have FAPE
available to them, the Secretary may waive for a period of one year
in whole or in part the requirement under Sec. 300.153 (regarding
State-level nonsupplanting) if the Secretary concurs with the
evidence provided by the State.
    (c) If a State wishes to request a waiver under this section,
it must submit to the Secretary a written request that includes-- 
  (1) An assurance that FAPE is currently available, and will
remain available throughout the period that a waiver would be in
effect, to all eligible children with disabilities throughout the
State, regardless of the public agency that is responsible for
providing FAPE to them. The assurance must be signed by an official
who has the authority to provide that assurance as it applies to
all eligible children with disabilities in the State;
    (2) All evidence that the State wishes the Secretary to
consider in determining whether all eligible children with
disabilities have FAPE available to them, setting forth in detail--
    (i) The basis on which the State has concluded that FAPE is
available to all eligible children in the State; and
    (ii) The procedures that the State will implement to ensure
that FAPE remains available to all eligible children in the State,
which must include--
    (A) The State's procedures under Sec. 300.125 for ensuring that
all eligible children are identified, located and evaluated;
    (B) The State's procedures for monitoring public agencies to
ensure that they comply with all requirements of this part;
    (C) The State's complaint procedures under Secs.
300.660-300.662; and
    (D) The State's hearing procedures under Secs. 300.507-300.511
and 300.520-300.528;
    (3) A summary of all State and Federal monitoring reports, and
State complaint decisions (see Secs. 300.660-300.662) and hearing
decisions (see Secs. 300.507-300.511 and 300.520-300.528), issued
within three years prior to the date of the State's request for a
waiver under this section, that includes any finding that FAPE has
not been available to one or more eligible children, and evidence
that FAPE is now available to all children addressed in those
reports or decisions; and
    (4) Evidence that the State, in determining that FAPE is
currently available to all eligible children with disabilities in
the State, has consulted with the State advisory panel under Sec.
300.650, the State's parent training and information center or
centers, the State's protection and advocacy organization, and
other organizations representing the interests of children with
disabilities and their parents, and a summary of the input of these
organizations.     (d) If the Secretary determines that the request
and supporting evidence submitted by the State makes a prima facie
showing that FAPE is, and will remain, available to all eligible
children with disabilities in the State, the Secretary, after
notice to the public throughout the State, conducts a public
hearing at which all interested persons and organizations may
present evidence regarding the following issues:
    (1) Whether FAPE is currently available to all eligible
children with disabilities in the State.
    (2) Whether the State will be able to ensure that FAPE remains
available to all eligible children with disabilities in

[[Page 12463]]

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)(19)(A) and Sec. 300.154(a) 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.

(Authority: 20 U.S.C. 1412(a)(18)(C), (19)(C)(ii) and (E))

Subpart F--State Administration

General

Sec. 300.600  Responsibility for all educational programs.

    (a) The SEA is responsible for ensuring--
    (1) That the requirements of this part are carried out; and   
 (2) That each educational program for children with disabilities
administered within the State, including each program administered
by any other State or local agency--
    (i) Is under the general supervision of the persons responsible
for educational programs for children with disabilities in the SEA;
and     (ii) Meets the education standards of the SEA (including
the requirements of this part).
    (b) The State must comply with paragraph (a) of this section
through State statute, State regulation, signed agreement between
respective agency officials, or other documents.
    (c) Part B of the Act does not limit the responsibility of
agencies other than educational agencies for providing or paying
some or all of the costs of FAPE to children with disabilities in
the State.     (d) Notwithstanding paragraph (a) of this section,
the Governor (or another individual pursuant to State law) may
assign to any public agency in the State the responsibility of
ensuring that the requirements of Part B of the Act are met with
respect to students with disabilities who are convicted as adults
under State law and incarcerated in adult prisons.

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

Sec. 300.601  Relation of Part B to other Federal programs.

    Part B of the Act may not be construed to permit a State to
reduce medical and other assistance available to children with
disabilities, or to alter the eligibility of a child with a
disability, under title V (Maternal and Child Health) or title XIX
(Medicaid) of the Social Security Act, to receive services that are
also part of FAPE.

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

Sec. 300.602  State-level activities.

    (a) Each State may retain not more than the amount described in
paragraph (b) of this section for administration in accordance with
Secs. 300.620 and 300.621 and other State-level activities in
accordance with Sec. 300.370.
    (b) For each fiscal year, the Secretary determines and reports
to the SEA an amount that is 25 percent of the amount the State
received under this section for fiscal year 1997, cumulatively
adjusted by the Secretary for each succeeding fiscal year by the
lesser of--    (1) The percentage increase, if any, from the
preceding fiscal year in the State's allocation under section 611
of the Act; or
    (2) The rate of inflation, as measured by the percentage
increase, if any, from the preceding fiscal year in the Consumer
Price Index For All Urban Consumers, published by the Bureau of
Labor Statistics of the Department of Labor.

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

Use of Funds

Sec. 300.620  Use of funds for State administration.

    (a) For the purpose of administering Part B of the Act,
including section 619 of the Act (including the coordination of
activities under Part B of the Act with, and providing technical
assistance to, other programs that provide services to children
with disabilities)--    (1) Each State may use not more than twenty
percent of the maximum amount it may retain under Sec. 300.602(a)
for any fiscal year or $500,000 (adjusted by the cumulative rate of
inflation since fiscal year 1998, as measured by the percentage
increase, if any, in the Consumer Price Index For All Urban
Consumers, published by the Bureau of Labor Statistics of the
Department of Labor), whichever is greater; and
    (2) Each outlying area may use up to five percent of the amount
it receives under this section for any fiscal year or $35,000,
whichever is greater.
    (b) Funds described in paragraph (a) of this section may also
be used for the administration of Part C of the Act, if the SEA is
the lead agency for the State under that part.

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

Sec. 300.621  Allowable costs.

    (a) The SEA may use funds under Sec. 300.620 for--
    (1) Administration of State activities under Part B of the Act
and for planning at the State level, including planning, or
assisting in the planning, of programs or projects for the
education of children with disabilities;
    (2) Approval, supervision, monitoring, and evaluation of the
effectiveness of local programs and projects for the education of
children with disabilities;
    (3) Technical assistance to LEAs with respect to the
requirements of Part B of the Act;
    (4) Leadership services for the program supervision and
management of special education activities for children with
disabilities; and     (5) Other State leadership activities and
consultative services.     (b) The SEA shall use the remainder of
its funds under Sec. 300.620 in accordance with Sec. 300.370.

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

Sec. 300.622  Subgrants to LEAs for capacity-building and
improvement.

    In any fiscal year in which the percentage increase in the
State's allocation under 611 of the Act exceeds the rate of
inflation (as measured by the percentage increase, if any, from the
preceding fiscal year in the Consumer Price Index For All Urban
Consumers, published by the Bureau of Labor Statistics of the
Department of Labor), each State shall reserve, from its allocation
under 611 of the Act, the amount described in Sec. 300.623 to make
subgrants to LEAs, unless that amount is less than $100,000, to
assist them in providing direct services and in making systemic
change to improve results for children with disabilities through
one or more of the following:
    (a) Direct services, including alternative programming for
children who have been expelled from school, and services for
children in correctional facilities, children enrolled in State-
operated or State-supported schools, and children in charter
schools.
    (b) Addressing needs or carrying out improvement strategies
identified in the

[[Page 12464]]

State's Improvement Plan under subpart 1 of Part D of the Act.    
(c) Adopting promising practices, materials, and technology, based
on knowledge derived from education research and other sources.   
 (d) Establishing, expanding, or implementing interagency
agreements and arrangements between LEAs and other agencies or
organizations concerning the provision of services to children with
disabilities and their families.
    (e) Increasing cooperative problem-solving between parents and
school personnel and promoting the use of alternative dispute
resolution.

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

Sec. 300.623  Amount required for subgrants to LEAs.

    For each fiscal year, the amount referred to in Sec. 300.622
is--    (a) The maximum amount the State was allowed to retain
under Sec. 300.602(a) for the prior fiscal year, or, for fiscal
year 1998, 25 percent of the State's allocation for fiscal year
1997 under section 611; multiplied by
    (b) The difference between the percentage increase in the
State's allocation under this section and the rate of inflation, as
measured by the percentage increase, if any, from the preceding
fiscal year in the Consumer Price Index For All Urban Consumers,
published by the Bureau of Labor Statistics of the Department of
Labor.

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

Sec. 300.624  State discretion in awarding subgrants.

    The State may establish priorities in awarding subgrants under
Sec. 300.622 to LEAs competitively or on a targeted basis.

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

State Advisory Panel

Sec. 300.650  Establishment of advisory panels.

    (a) Each State shall establish and maintain, in accordance with
Secs. 300.650-300.653, a State advisory panel on the education of
children with disabilities.
    (b) The advisory panel must be appointed by the Governor or any
other official authorized under State law to make those
appointments.     (c) If a State has an existing advisory panel
that can perform the functions in Sec. 300.652, the State may
modify the existing panel so that it fulfills all of the
requirements of Secs. 300.650-300.653, instead of establishing a
new advisory panel.

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

Sec. 300.651  Membership.

    (a) General. The membership of the State advisory panel must
consist of members appointed by the Governor, or any other official
authorized under State law to make these appointments, that is
representative of the State population and that is composed of
individuals involved in, or concerned with the education of
children with disabilities, including--
    (1) Parents of children with disabilities;
    (2) Individuals with disabilities;
    (3) Teachers;
    (4) Representatives of institutions of higher education that
prepare special education and related services personnel;
    (5) State and local education officials;
    (6) Administrators of programs for children with disabilities; 
   (7) Representatives of other State agencies involved in the
financing or delivery of related services to children with
disabilities;
    (8) Representatives of private schools and public charter
schools;     (9) At least one representative of a vocational,
community, or business organization concerned with the provision of
transition services to children with disabilities; and
    (10) Representatives from the State juvenile and adult
corrections agencies.
    (b) Special rule. A majority of the members of the panel must
be individuals with disabilities or parents of children with
disabilities.

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

Sec. 300.652  Advisory panel functions.

    (a) General. The State advisory panel shall--
    (1) Advise the SEA of unmet needs within the State in the
education of children with disabilities;
    (2) Comment publicly on any rules or regulations proposed by
the State regarding the education of children with disabilities;  
  (3) Advise the SEA in developing evaluations and reporting on
data to the Secretary under section 618 of the Act;
    (4) Advise the SEA in developing corrective action plans to
address findings identified in Federal monitoring reports under
Part B of the Act; and
    (5) Advise the SEA in developing and implementing policies
relating to the coordination of services for children with
disabilities.     (b) Advising on eligible students with
disabilities in adult prisons. The advisory panel also shall advise
on the education of eligible students with disabilities who have
been convicted as adults and incarcerated in adult prisons, even
if, consistent with Sec. 300.600(d), a State assigns general
supervision responsibility for those students to a public agency
other than an SEA.

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

Sec. 300.653  Advisory panel procedures.

    (a) The advisory panel shall meet as often as necessary to
conduct its business.
    (b) By July 1 of each year, the advisory panel shall submit an
annual report of panel activities and suggestions to the SEA. This
report must be made available to the public in a manner consistent
with other public reporting requirements of Part B of the Act.
    (c) Official minutes must be kept on all panel meetings and
must be made available to the public on request.
    (d) All advisory panel meetings and agenda items must be
announced enough in advance of the meeting to afford interested
parties a reasonable opportunity to attend. Meetings must be open
to the public.     (e) Interpreters and other necessary services
must be provided at panel meetings for panel members or
participants. The State may pay for these services from funds under
Sec. 300.620.
    (f) The advisory panel shall serve without compensation but the
State must reimburse the panel for reasonable and necessary
expenses for attending meetings and performing duties. The State
may use funds under Sec. 300.620 for this purpose.

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

State Complaint Procedures

Sec. 300.660  Adoption of State complaint procedures.

    (a) General. Each SEA shall 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 Sec. 300.662 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's procedures under Secs.
300.660-300.662.
    (b) Remedies for denial of appropriate services. In resolving
a complaint in

[[Page 12465]]

which it 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) How to remediate the denial of those services, including,
as appropriate, the awarding of monetary reimbursement or other
corrective action appropriate to the needs of the child; and
    (2) Appropriate future provision of services for all children
with disabilities.

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

Sec. 300.661  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each SEA shall include in
its complaint procedures a time limit of 60 days after a complaint
is filed under Sec. 300.660(a) to--
    (1) Carry out an independent on-site investigation, if the SEA
determines that an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in
the complaint;
    (3) Review all relevant information and make an independent
determination as to whether the public agency is violating a
requirement of Part B of the Act or of this part; and
    (4) Issue a written decision to the complainant that addresses
each allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the SEA's final decision.
    (b) 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 exceptional circumstances exist with respect
to a particular complaint; 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 Secs. 300.507 and 300.520-300.528. (1) If a written
complaint is received that is also the subject of a due process
hearing under Sec. 300.507 or Secs. 300.520-300.528, 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 is raised in a complaint filed under this
section that has previously been decided in a due process hearing
involving the same parties--
    (i) The hearing decision is binding; 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 decision must be resolved by the SEA.

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

Sec. 300.662  Filing a complaint.

    (a) An organization or individual may file a signed written
complaint under the procedures described in Secs. 300.660-300.661. 
   (b) The complaint must include--
    (1) A statement that a public agency has violated a requirement
of Part B of the Act or of this part; and
    (2) The facts on which the statement is based.
    (c) The complaint must allege a violation that occurred not
more than one year prior to the date that the complaint is received
in accordance with Sec. 300.660(a) unless a longer period is
reasonable because the violation is continuing, or the complainant
is requesting compensatory services for a violation that occurred
not more than three years prior to the date the complaint is
received under
Sec. 300.660(a).

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

Subpart G--Allocation of Funds; Reports

Allocations

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

    For the purposes of Secs. 300.701, and 300.703-300.714, the
term State means each of the 50 States, the District of Columbia,
and the Commonwealth of Puerto Rico.

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

Sec. 300.701  Grants to States.

    (a) Purpose of grants. The Secretary makes grants to States and
the outlying areas and provides funds to the Secretary of the
Interior, to assist them to provide special education and related
services to children with disabilities in accordance with Part B of
the Act.     (b) Maximum amounts. The maximum amount of the grant
a State may receive under section 611 of the Act for any fiscal
year is--    (1) The number of children with disabilities in the
State who are receiving special education and related services--
    (i) Aged 3 through 5 if the State is eligible for a grant under
section 619 of the Act; and
    (ii) Aged 6 through 21; multiplied by--
    (2) Forty (40) percent of the average per-pupil expenditure in
public elementary and secondary schools in the United States.

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

Sec. 300.702  Definition.

    For the purposes of this section the term average per-pupil
expenditure in public elementary and secondary schools in the
United States means--
    (a) Without regard to the source of funds--
    (1) The aggregate current expenditures, during the second
fiscal year preceding the fiscal year for which the determination
is made (or, if satisfactory data for that year are not available,
during the most recent preceding fiscal year for which satisfactory
data are available) of all LEAs in the 50 States and the District
of Columbia); plus     (2) Any direct expenditures by the State for
the operation of those agencies; divided by
    (b) The aggregate number of children in average daily
attendance to whom those agencies provided free public education
during that preceding year.

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

Sec. 300.703  Allocations to States.

    (a) General. After reserving funds for studies and evaluations
under section 674(e) of the Act, and for payments to the outlying
areas, the freely associated States, and the Secretary of the
Interior under Secs. 300.715 and 300.717-300.719, the Secretary
allocates the remaining amount among the States in accordance with
paragraph (b) of this section and Secs. 300.706-300.709.
    (b) Interim formula. Except as provided in Secs.
300.706-300.709, the Secretary allocates the amount described in
paragraph (a) of this section among the States in accordance with
section 611(a)(3), (4), (5) and (b)(1), (2) and (3) of the Act, as
in effect prior to June 4, 1997, except that the determination of
the number of children with disabilities receiving special
education and related services under section 611(a)(3) of the Act
(as then in effect) may be calculated as of December 1, or, at the
State's discretion, the last

[[Page 12466]]

Friday in October, of the fiscal year for which the funds were
appropriated.

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

Secs. 300.704-300.705  [Reserved]

Sec. 300.706  Permanent formula.

    (a) Establishment of base year. The Secretary allocates the
amount described in Sec. 300.703(a) among the States in accordance
with Secs. 300.706-300.709 for each fiscal year beginning with the
first fiscal year for which the amount appropriated under 611(j) of
the Act is more than $4,924,672,200.
    (b) Use of base year. (1) Definition. As used in this section,
the term base year means the fiscal year preceding the first fiscal
year in which this section applies.
    (2) Special rule for use of base year amount. If a State
received any funds under section 611 of the Act for the base year
on the basis of children aged 3 through 5, but does not make FAPE
available to all children with disabilities aged 3 through 5 in the
State in any subsequent fiscal year, the Secretary computes the
State's base year amount, solely for the purpose of calculating the
State's allocation in that subsequent year under Secs.
300.707-300.709, by subtracting the amount allocated to the State
for the base year on the basis of those children.

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

Sec. 300.707  Increase in funds.

    If the amount available for allocations to States under Sec.
300.706 is equal to or greater than the amount allocated to the
States under section 611 of the Act for the preceding fiscal year,
those allocations are calculated as follows:
    (a) Except as provided in Sec. 300.708, the Secretary--
    (1) Allocates to each State the amount it received for the base
year;
    (2) Allocates 85 percent of any remaining funds to States on
the basis of their relative populations of children aged 3 through
21 who are of the same age as children with disabilities for whom
the State ensures the availability of FAPE under Part B of the Act;
and     (3) Allocates 15 percent of those remaining funds to States
on the basis of their relative populations of children described in
paragraph (a)(2) of this section who are living in poverty.
    (b) For the purpose of making grants under this section, the
Secretary uses the most recent population data, including data on
children living in poverty, that are available and satisfactory to
the Secretary.

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

Sec. 300.708  Limitation.

    (a) Allocations under Sec. 300.707 are subject to the
following:     (1) No State's allocation may be less than its
allocation for the preceding fiscal year.
    (2) No State's allocation may be less than the greatest of--  
 (i) The sum of--
    (A) The amount it received for the base year; and
    (B) One-third of one percent of the amount by which the amount
appropriated under section 611(j) of the Act exceeds the amount
appropriated under section 611 of the Act for the base year; or   
 (ii) The sum of--
    (A) The amount it received for the preceding fiscal year; and 
   (B) That amount multiplied by the percentage by which the
increase in the funds appropriated from the preceding fiscal year
exceeds 1.5 percent; or
    (iii) The sum of--
    (A) The amount it received for the preceding fiscal year; and 
   (B) That amount multiplied by 90 percent of the percentage
increase in the amount appropriated from the preceding fiscal year.
    (b) Notwithstanding paragraph (a)(2) of this section, no
State's allocation under Sec. 300.707 may exceed the sum of--
    (1) The amount it received for the preceding fiscal year; and 
   (2) That amount multiplied by the sum of 1.5 percent and the
percentage increase in the amount appropriated.
    (c) If the amount available for allocations to States under
Sec. 300.703 and paragraphs (a) and (b) of this section is
insufficient to pay those allocations in full those allocations are
ratably reduced, subject to paragraph (a)(1) of this section.

(Authority: 20 U.S.C. 1411(e)(3)(B) and (C))

Sec. 300.709  Decrease in funds.

    If the amount available for allocations to States under Sec.
300.706 is less than the amount allocated to the States under
section 611 of the Act for the preceding fiscal year, those
allocations are calculated as follows:
    (a) If the amount available for allocations is greater than the
amount allocated to the States for the base year, each State is
allocated the sum of--
    (1) The amount it received for the base year; and
    (2) An amount that bears the same relation to any remaining
funds as the increase the State received for the preceding fiscal
year over the base year bears to the total of those increases for
all States.     (b)(1) If the amount available for allocations is
equal to or less than the amount allocated to the States for the
base year, each State is allocated the amount it received for the
base year.
    (2) If the amount available is insufficient to make the
allocations described in paragraph (b)(1) of this section, those
allocations are ratably reduced.

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

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

    In determining the allocation under Secs. 300.700-300.709 of a
State in which the Secretary will implement a by-pass for private
school children with disabilities under Secs. 300.451-300.487, the
Secretary includes in the State's child count--
    (a) For the first year of a by-pass, the actual or estimated
number of private school children with disabilities (as defined in
Secs. 300.7(a) and 300.450) in the State, as of the preceding
December 1; and
    (b) For succeeding years of a by-pass, the number of private
school children with disabilities who received special education
and related services under the by-pass in the preceding year.

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

Sec. 300.711  Subgrants to LEAs.

    Each State that receives a grant under section 611 of the Act
for any fiscal year shall distribute in accordance with Sec.
300.712 any funds it does not retain under Sec. 300.602 and is not
required to distribute under Secs. 300.622 and 300.623 to LEAs in
the State that have established their eligibility under section 613
of the Act, and to State agencies that received funds under section
614A(a) of the Act for fiscal year 1997, as then in effect, and
have established their eligibility under section 613 of the Act,
for use in accordance with Part B of the Act.

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

Sec. 300.712  Allocations to LEAs.

    (a) Interim procedure. For each fiscal year for which funds are
allocated to States under Sec. 300.703(b) each State shall allocate
funds under Sec. 300.711 in accordance with section 611(d) of the
Act, as in effect prior to June 4, 1997.
    (b) Permanent procedure. For each fiscal year for which funds
are allocated to States under Secs. 300.706-300.709, each State
shall allocate funds under Sec. 300.711 as follows:
    (1) Base payments. The State first shall award each agency
described in Sec. 300.711 the amount that agency would have
received under this section for the

[[Page 12467]]

base year, as defined in Sec. 300.706(b)(1), if the State had
distributed 75 percent of its grant for that year under section
Sec. 300.703(b).
    (2) Base payment adjustments. For any fiscal year after the
base year fiscal year--
    (i) If a new LEA is created, the State shall divide the base
allocation 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 Sec. 300.706(b)(2), currently
provided special education by each of the LEAs;
    (ii) If one or more LEAs are combined into a single new LEA,
the State shall 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 shall 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
Sec. 300.706(b)(2), currently provided special education by each
affected LEA.
    (3) Allocation of remaining funds. The State then shall--   
(i) Allocate 85 percent of any remaining funds to those agencies on
the basis of the relative numbers of children enrolled in public
and private elementary and secondary schools within each agency's
jurisdiction; and
    (ii) Allocate 15 percent of those remaining funds to those
agencies in accordance with their relative numbers of children
living in poverty, as determined by the SEA.
    (iii) For the purposes 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. 1411(g)(2))

Sec. 300.713  Former Chapter 1 State agencies.

    (a) To the extent necessary, the State--
    (1) Shall use funds that are available under Sec. 300.602(a) to
ensure that each State agency that received fiscal year 1994 funds
under subpart 2 of Part D of chapter 1 of title I of the Elementary
and Secondary Education Act of 1965 (as in effect in fiscal year
1994) receives, from the combination of funds under Sec. 300.602(a)
and funds provided under Sec. 300.711, an amount no less than--
    (i) The number of children with disabilities, aged 6 through
21, to whom the agency was providing special education and related
services on December 1, or, at the State's discretion, the last
Friday in October, of the fiscal year for which the funds were
appropriated, subject to the limitation in paragraph (b) of this
section; multiplied by     (ii) The per-child amount provided under
that subpart for fiscal year 1994; and
    (2) May use funds under Sec. 300.602(a) to ensure that each LEA
that received fiscal year 1994 funds under that subpart for
children who had transferred from a State-operated or State-
supported school or program assisted under that subpart receives,
from the combination of funds available under Sec. 300.602(a) and
funds provided under Sec. 300.711, an amount for each child, aged
3 through 21 to whom the agency was providing special education and
related services on December 1, or, at the State's discretion, the
last Friday in October, of the fiscal year for which the funds were
appropriated, equal to the per-child amount the agency received
under that subpart for fiscal year 1994.
    (b) The number of children counted under paragraph (a)(1)(i) of
this section may not exceed the number of children aged 3 through
21 for whom the agency received fiscal year 1994 funds under
subpart 2 of Part D of chapter 1 of title I of the Elementary and
Secondary Education Act of 1965 (as in effect in fiscal year 1994).

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

Sec. 300.714  Reallocation of LEA funds.

    If 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 Part B of the Act that are not needed by
that local agency to provide FAPE to other LEAs in the State that
are not adequately providing special education and related services
to all children with disabilities residing in the areas they serve.

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

Sec. 300.715  Payments to the Secretary of the Interior for the
education of Indian children.

    (a) Reserved amounts for Secretary of Interior. From the amount
appropriated for any fiscal year under 611(j) of the Act, the
Secretary reserves 1.226 percent to provide assistance to the
Secretary of the Interior in accordance with this section and Sec.
300.716.
    (b) Provision of amounts for assistance. The Secretary provides
amounts to the Secretary of the Interior to meet the need for
assistance for the education of children with disabilities on
reservations aged 5 to 21, inclusive, enrolled in elementary and
secondary schools for Indian children operated or funded by the
Secretary of the Interior. The amount of the payment for any fiscal
year is equal to 80 percent of the amount allotted under paragraph
(a) of this section for that fiscal year.
    (c) Calculation of number of children. In the case of Indian
students aged 3 to 5, inclusive, who are enrolled in programs
affiliated with the Bureau of Indian Affairs (BIA) schools and that
are required by the States in which these schools are located to
attain or maintain State accreditation, and which schools have this
accreditation prior to the date of enactment of the Individuals
with Disabilities Education Act Amendments of 1991, the school may
count those children for the purpose of distribution of the funds
provided under this section to the Secretary of the Interior.
    (d) Responsibility for meeting the requirements of Part B. The
Secretary of the Interior shall meet all of the requirements of
Part B of the Act for the children described in paragraphs (b) and
(c) of this section, in accordance with Sec. 300.260.

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

Sec. 300.716  Payments for education and services for Indian
children with disabilities aged 3 through 5.

    (a) General. With funds appropriated under 611(j) of the Act,
the Secretary makes payments to the Secretary of the Interior to be
distributed to tribes or tribal organizations (as defined under
section 4 of the Indian Self-Determination and Education Assistance
Act) or consortia of those tribes or tribal organizations to
provide for the coordination of assistance for special education
and related services for children with disabilities aged 3 through
5 on reservations served by elementary and secondary schools for
Indian children operated or funded by the Department of the
Interior. The amount of the payments under paragraph (b) of this
section for any fiscal year is equal to 20 percent of the amount
allotted under Sec. 300.715(a).
    (b) Distribution of funds. The Secretary of the Interior shall
distribute the total amount of the payment under

[[Page 12468]]

paragraph (a) of this section by allocating to each tribe or tribal
organization an amount based on the number of children with
disabilities ages 3 through 5 residing on reservations as reported
annually, divided by the total of those children served by all
tribes or tribal organizations.
    (c) Submission of information. To receive a payment under this
section, the tribe or tribal organization shall submit the figures
to the Secretary of the Interior as required to determine the
amounts to be allocated under paragraph (b) of this section. This
information must be compiled and submitted to the Secretary.
    (d) Use of funds. (1) The funds received by a tribe or tribal
organization must be used to assist in child find, screening, and
other procedures for the early identification of children aged 3
through 5, parent training, and the provision of direct services.
These activities may be carried out directly or through contracts
or cooperative agreements with the BIA, LEAs, and other public or
private nonprofit organizations. The tribe or tribal organization
is encouraged to involve Indian parents in the development and
implementation of these activities.
    (2) The entities shall, as appropriate, make referrals to
local, State, or Federal entities for the provision of services or
further diagnosis.
    (e) Biennial report. To be eligible to receive a grant pursuant
to paragraph (a) of this section, the tribe or tribal organization
shall provide to the Secretary of the Interior a biennial report of
activities undertaken under this paragraph, including the number of
contracts and cooperative agreements entered into, the number of
children contacted and receiving services for each year, and the
estimated number of children needing services during the two years
following the one in which the report is made. The Secretary of the
Interior shall include a summary of this information on a biennial
basis in the report to the Secretary required under section 611(i)
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(i)(3))

Sec. 300.717  Outlying areas and freely associated States.

    From the amount appropriated for any fiscal year under section
611(j) of the Act, the Secretary reserves not more than one
percent, which must be used--
    (a) To provide assistance to the outlying areas in accordance
with their respective populations of individuals aged 3 through 21;
and     (b) For fiscal years 1998 through 2001, to carry out the
competition described in Sec. 300.719, except that the amount
reserved to carry out that competition may not exceed the amount
reserved for fiscal year 1996 for the competition under Part B of
the Act described under the heading ``SPECIAL EDUCATION'' in Public
Law 104-134.

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

Sec. 300.718  Outlying area--definition.

    As used in this part, the term outlying area means the United
States Virgin Islands, Guam, American Samoa, and the Commonwealth
of the Northern Mariana Islands.

(Authority: 20 U.S.C. 1402(18))

Sec. 300.719  Limitation for freely associated States.

    (a) Competitive grants. The Secretary uses funds described in
Sec. 300.717(b) to award grants, on a competitive basis, to Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands,
and the freely associated States to carry out the purposes of this
part.     (b) Award basis. The Secretary awards grants under
paragraph (a) of this section on a competitive basis, pursuant to
the recommendations of the Pacific Region Educational Laboratory in
Honolulu, Hawaii. Those recommendations must be made by experts in
the field of special education and related services.
    (c) Assistance requirements. Any freely associated State that
wishes to receive funds under Part B of the Act shall include, in
its application for assistance--
    (1) Information demonstrating that it will meet all conditions
that apply to States under Part B of the Act;
    (2) 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;
    (3) The identity of the source and amount of funds, in addition
to funds under Part B of the Act, that it will make available to
ensure that FAPE is available to all children with disabilities
within its jurisdiction; and
    (4) Such other information and assurances as the Secretary may
require.
    (d) Termination of eligibility. Notwithstanding any other
provision of law, the freely associated States may not receive any
funds under Part B of the Act for any program year that begins
after September 30, 2001.
    (e) Administrative costs. The Secretary may provide not more
than five percent of the amount reserved for grants under this
section to pay the administrative costs of the Pacific Region
Educational Laboratory under paragraph (b) of this section.
    (f) Eligibility for award. An outlying area is not eligible for
a competitive award under Sec. 300.719 unless it receives
assistance under Sec. 300.717(a).

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

Sec. 300.720  Special rule.

    The provisions of Public Law 95-134, permitting the
consolidation of grants by the outlying areas, do not apply to
funds provided to those areas or to the freely associated States
under Part B of the Act.

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

Sec. 300.721  [Reserved]

Sec. 300.722  Definition.

    As used in this part, the term freely associated States means
the Republic of the Marshall Islands, the Federated States of
Micronesia, and the Republic of Palau.

(Authority: 20 U.S.C. 1411(b)(6))

Reports

Sec. 300.750  Annual report of children served--report requirement.

    (a) The SEA shall report to the Secretary no later than
February 1 of each year the number of children with disabilities
aged 3 through 21 residing in the State who are receiving special
education and related services.
    (b) The SEA shall submit the report on forms provided by the
Secretary.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a))

Sec. 300.751  Annual report of children served--information
required in the report.

    (a) For any year the SEA shall include in its report a table
that shows the number of children with disabilities receiving
special education and related services on December 1, or at the
State's discretion on the last Friday in October, of that school
year--    (1) Aged 3 through 5;
    (2) Aged 6 through 17; and
    (3) Aged 18 through 21.
    (b) For the purpose of this part, a child's age is the child's
actual age on the date of the child count: December 1, or, at the
State's discretion, the last Friday in October.

[[Page 12469]]

    (c) Reports must also include the number of those children with
disabilities aged 3 through 21 for each year of age (3, 4, 5, etc.)
within each disability category, as defined in the definition of
``children with disabilities'' in Sec. 300.7; and
    (d) The Secretary may permit the collection of the data in
paragraph (c) of this section through sampling.
    (e) The SEA may not report a child under paragraph (c) of this
section under more than one disability category.
    (f) If a child with a disability has more than one disability,
the SEA shall report that child under paragraph (c) of this section
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''.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a) and (b))

Sec. 300.752  Annual report of children served--certification.

    The SEA shall include in its report a certification signed by
an authorized official of the agency that the information provided
under Sec. 300.751(a) is an accurate and unduplicated count of
children with disabilities receiving special education and related
services on the dates in question.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))

Sec. 300.753  Annual report of children served--criteria for
counting children.

    (a) The SEA may include in its report children with
disabilities who are enrolled in a school or program that is
operated or supported by a public agency, and that--
    (1) Provides them with both special education and related
services that meet State standards;
    (2) Provides them only with special education, if a related
service is not required, that meets State standards; or
    (3) In the case of children with disabilities enrolled by their
parents in private schools, provides them with special education or
related services under Secs. 300.452-300.462 that meet State
standards.     (b) The SEA may not include children with
disabilities in its report who are receiving special education
funded solely by the Federal Government, including children served
by the Department of Interior, the Department of Defense, or the
Department of Education. However, the State may count children
covered under Sec. 300.184(c)(2).

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))

Sec. 300.754  Annual report of children served--other
responsibilities of the SEA.

    In addition to meeting the other requirements of Secs. 300.750-
300.753, the SEA shall--
    (a) Establish procedures to be used by LEAs and other
educational institutions in counting the number of children with
disabilities receiving special education and related services;
    (b) Set dates by which those agencies and institutions must
report to the SEA to ensure that the State complies with Sec.
300.750(a);     (c) Obtain certification from each agency and
institution that an unduplicated and accurate count has been made;
    (d) Aggregate the data from the count obtained from each agency
and institution, and prepare the reports required under Secs.
300.750-300.753; and
    (e) Ensure that documentation is maintained that enables the
State and the Secretary to audit the accuracy of the count.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))

Sec. 300.755  Disproportionality.

    (a) General. Each State that receives assistance under Part B
of the Act, and the Secretary of the Interior, shall provide for
the collection and examination of data to determine if significant
disproportionality based on race is occurring in the State or in
the schools operated by the Secretary of the Interior with respect
to--    (1) The identification of children as children with
disabilities, including the identification of children as children
with disabilities in accordance with a particular impairment
described in section 602(3) of the Act; and
    (2) The placement in particular educational settings of these
children.
    (b) Review and revision of policies, practices, and procedures.
In the case of a determination of significant disproportionality
with respect to the identification of children as children with
disabilities, or the placement in particular educational settings
of these children, in accordance with paragraph (a) of this
section, the State or the Secretary of the Interior shall provide
for the review and, if appropriate revision of the policies,
procedures, and practices used in the identification or placement
to ensure that the policies, procedures, and practices comply with
the requirements of Part B of the Act.

(Authority: 20 U.S.C. 1418(c))

Sec. 300.756  Acquisition of equipment; construction or alteration
of facilities.

    (a) General. If the Secretary determines that a program
authorized under Part B of the Act would be improved by permitting
program funds to be used to acquire appropriate equipment, or to
construct new facilities or alter existing facilities, the
Secretary may allow the use of those funds for those purposes.
    (b) Compliance with certain regulations. Any construction of
new facilities or alteration of existing 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 Guidelines for Buildings and Facilities''); or
    (2) Appendix A of part 101-19.6 of title 41, Code of Federal
Regulations (commonly known as the ``Uniform Federal Accessibility
Standards'').

(Authority: 20 U.S.C. 1405)

Appendix A to Part 300--Notice of Interpretation

I. Involvement and Progress of Each Child With a Disability in the
General Curriculum

    1. What are the major Part B IEP requirements that govern the
involvement and progress of children with disabilities in the
general curriculum?
    2. Must a child's IEP address his or her involvement in the
general curriculum, regardless of the nature and severity of the
child's disability and the setting in which the child is educated? 
   3. What must public agencies do to meet the requirements at
Secs. 300.344(a)(2) and 300.346(d) regarding the participation of
a ``regular education teacher'' in the development review, and
revision of the IEPs, for children age 3 through 5 who are
receiving special education and related services?
    4. Must the measurable annual goals in a child's IEP address
all areas of the general curriculum, or only those areas in which
the child's involvement and progress are affected by the child's
disability?

II. Involvement of Parents and Students

    5. What is the role of the parents, including surrogate
parents, in decisions regarding the educational program of their
children?     6. What are the Part B requirements regarding the
participation of a student (child) with a disability in an IEP
meeting?
    7. Must the public agency inform the parents of who will be at
the IEP meeting?
    8. Do parents have the right to a copy of their child's IEP?  
  9. What is a public agency's responsibility if it is not possible
to reach consensus on what services should be included in a child's
IEP?

[[Page 12470]]

    10. Does Part B require that public agencies inform parents
regarding the educational progress of their children with
disabilities?

III. Preparing Students With Disabilities for Employment and Other
Post-School Experiences

    11. What must the IEP team do to meet the requirements that the
IEP include a statement of ``transition service needs'' beginning
at age 14 (Sec. 300.347(b)(1), and a statement of ``needed
transition services'' beginning at age 16 (Sec. 300.347(b)(2)?
    12. Must the IEP for each student with a disability, beginning
no later than age 16, include all ``needed transition services,''
as identified by the IEP team and consistent with the definition at
Sec. 300.29, even if an agency other than the public agency will
provide those services? What is the public agency's responsibility
if another agency fails to provide agreed-upon transition services? 
   13. Under what circumstances must a public agency invite
representatives from other agencies to an IEP meeting at which a
child's need for transition services will be considered?

IV. Other Questions Regarding Implementation of Idea

    14. For a child with a disability receiving special education
for the first time, when must an IEP be developed--before placement
or after placement?
    15. Who is responsible for ensuring the development of IEPs for
children with disabilities served by a public agency other than an
LEA?
    16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving
State responsible for the child's IEP?
    17. If a disabled child has been receiving special education
from one public agency and transfers to another public agency in
the same State, must the new public agency develop an IEP before
the child can be placed in a special education program?
    18. What timelines apply to the development and implementation
of an initial IEP for a child with a disability?
    19. Must a public agency hold separate meetings to determine a
child's eligibility for special education and related services,
develop the child's IEP, and determine the child's placement, or
may the agency meet all of these requirements in a single meeting? 
   20. How frequently must a public agency conduct meetings to
review, and if appropriate revise, the IEP for each child with a
disability?
    21. May IEP meetings be audio or video-tape-recorded?
    22. Who can serve as the representative of the public agency at
an IEP meeting?
    23. For a child with a disability being considered for initial
placement in special education, which teacher or teachers should
attend the IEP meeting?
    24. What is the role of a regular education teacher in the
development, review, and revision of the IEP for a child who is, or
may be, participating in the regular education environment?     25.
If a child with a disability attends several regular classes, must
all of the child's regular education teachers be members of the
child's IEP team?
    26. How should a public agency determine which regular
education teacher and special education teacher will members of the
IEP team for a particular child with a disability?
    27. For a child whose primary disability is a speech
impairment, may a public agency meet its responsibility under Sec.
300.344(a)(3) to ensure that the IEP team includes ``at least one
special education teacher, or, if appropriate, at least one special
education provider of the child'' by including a speech-language
pathologist on the IEP team?
    28. Do public agencies and parents have the option of having
any individual of their choice attend a child's IEP meeting as
participants on their child's IEP team?
    29. Can parents or public agencies bring their attorneys to IEP
meetings, and, if so under what circumstances? Are attorney's fees
available for parents' attorneys if the parents are prevailing
parties in actions or proceedings brought under Part B?
    30. Must related services personnel attend IEP meetings?    
31. Must the public agency ensure that all services specified in a
child's IEP are provided?
    32. Is it permissible for an agency to have the IEP completed
before the IEP meeting begins?
    33. Must a public agency include transportation in a child's
IEP as a related service?
    34. Must a public agency provide related services that are
required to assist a child with a disability to benefit from
special education, whether or not those services are included in
the list of related services in Sec. 300.24?
    35. Must the IEP specify the amount of services or may it
simply list the services to be provided?
    36. Under what circumstances is a public agency required to
permit a child with a disability to use a school-purchased
assistive technology device in the child's home or in another
setting?     37. Can the IEP team also function as the group making
the placement decision for a child with a disability?
    38. If a child's IEP includes behavioral strategies to address
a particular behavior, can a child ever be suspended for engaging
in that behavior?
    39. If a child's behavior in the regular classroom, even with
appropriate interventions, would significantly impair the learning
of others, can the group that makes the placement decision
determine that placement in the regular classroom is inappropriate
for that child?
    40. May school personnel during a school year implement more
than one short-term removal of a child with disabilities from his
or her classroom or school for misconduct?
    Authority: Part B of the Individuals with Disabilities
Education Act (20 U.S.C. 1401, et seq.), unless otherwise noted.

Individualized Education Programs (IEPS) and Other Selected
ImplementatioN Issues

    Interpretation of IEP and Other selected Requirements under
Part B of the Individuals with Disabilities Education Act (IDEA;
Part B)

Introduction

    The IEP requirements under Part B of the IDEA emphasize the
importance of three core concepts: (1) the involvement and progress
of each child with a disability in the general curriculum including
addressing the unique needs that arise out of the child's
disability; (2) the involvement of parents and students, together
with regular and special education personnel, in making individual
decisions to support each student's (child's) educational success,
and (3) the preparation of students with disabilities for
employment and other post-school activities.
    The first three sections of this Appendix (I-III) provide
guidance regarding the IEP requirements as they relate to the three
core concepts described above. Section IV addresses other questions
regarding the development and content of IEPs, including questions
about the timelines and responsibility for developing and
implementing IEPs, participation in IEP meetings, and IEP content.
Section IV also addresses questions on other selected requirements
under IDEA.

I. Involvement and Progress of Each Child With a Disability in the
General Curriculum

    In enacting the IDEA Amendments of 1997, the Congress found
that research, demonstration, and practice over the past 20 years
in special education and related disciplines have demonstrated that
an effective educational system now and in the future must maintain
high academic standards and clear performance goals for children
with disabilities, consistent with the standards and expectations
for all students in the educational system, and provide for
appropriate and effective strategies and methods to ensure that
students who are children with disabilities have maximum
opportunities to achieve those standards and goals. [Section
651(a)(6)(A) of the Act.]
    Accordingly, the evaluation and IEP provisions of Part B place
great emphasis on the involvement and progress of children with
disabilities in the general curriculum. (The term ``general
curriculum,'' as used in these regulations, including this
Appendix, refers to the curriculum that is used with nondisabled
children.)     While the Act and regulations recognize that IEP
teams must make individualized decisions about the special
education and related services, and supplementary aids and
services, provided to each child with a disability, they are driven
by IDEA's strong preference that, to the maximum extent
appropriate, children with disabilities be educated in regular
classes with their nondisabled peers with appropriate supplementary
aids and services.
    In many cases, children with disabilities will need appropriate
supports in order to successfully progress in the general
curriculum, participate in State and district-wide assessment
programs, achieve the measurable goals in their IEPs, and be
educated together with their nondisabled peers. Accordingly, the
Act requires the IEP team to determine, and the public agency to

[[Page 12471]]

provide, the accommodations, modifications, supports, and
supplementary aids and services, needed by each child with a
disability to successfully be involved in and progress in the
general curriculum achieve the goals of the IEP, and successfully
demonstrate his or her competencies in State and district-wide
assessments.
    1. What are the major Part B IEP requirements that govern the
involvement and progress of children with disabilities in the
general curriculum?

Present Levels of Educational Performance

    Section 300.347(a)(1) requires that the IEP for each child with
a disability include ``* * * a statement of the child's present
levels of educational performance, including--(i) how the child's
disability affects the child's involvement and progress in the
general curriculum; or (ii) for preschool children, as appropriate,
how the child's disability affects the child's participation in
appropriate activities * * *'' (``Appropriate activities'' in this
context refers to age-relevant developmental abilities or
milestones that typically developing children of the same age would
be performing or would have achieved.)
    The IEP team's determination of how each child's disability
affects the child's involvement and progress in the general
curriculum is a primary consideration in the development of the
child's IEP. In assessing children with disabilities, school
districts may use a variety of assessment techniques to determine
the extent to which these children can be involved and progress in
the general curriculum, such as criterion-referenced tests,
standard achievement tests, diagnostic tests, other tests, or any
combination of the above.
    The purpose of using these assessments is to determine the
child's present levels of educational performance and areas of need
arising from the child's disability so that approaches for ensuring
the child's involvement and progress in the general curriculum and
any needed adaptations or modifications to that curriculum can be
identified.
    Measurable Annual Goals, including Benchmarks or Short-term
ojectives
    Measurable annual goals, including benchmarks or short-term
objectives, are critical to the strategic planning process used to
develop and implement the IEP for each child with a disability.
Once the IEP team has developed measurable annual goals for a
child, the team (1) can develop strategies that will be most
effective in realizing those goals and (2) must develop either
measurable, intermediate steps (short-term objectives) or major
milestones (benchmarks) that will enable parents, students, and
educators to monitor progress during the year, and, if appropriate,
to revise the IEP consistent with the student's instructional
needs.
    The strong emphasis in Part B on linking the educational
program of children with disabilities to the general curriculum is
reflected in Sec. 300.347(a)(2), which requires that the IEP
include:

a statement of measurable annual goals, including benchmarks or
short-term objectives, related to--(i) meeting the child's needs
that result from the child's disability to enable the child to be
involved in and progress in the general curriculum; and (ii)
meeting each of the child's other educational needs that result
from the child's disability.
    As noted above, each annual goal must include either short-term
objectives or benchmarks. The purpose of both is to enable a
child's teacher(s), parents, and others involved in developing and
implementing the child's IEP, to gauge, at intermediate times
during the year, how well the child is progressing toward
achievement of the annual goal. IEP teams may continue to develop
short-term instructional objectives, that generally break the
skills described in the annual goal down into discrete components.
The revised statute and regulations also provide that, as an
alternative, IEP teams may develop benchmarks, which can be thought
of as describing the amount of progress the child is expected to
make within specified segments of the year. Generally, benchmarks
establish expected performance levels that allow for regular checks
of progress that coincide with the reporting periods for informing
parents of their child's progress toward achieving the annual
goals. An IEP team may use either short term objectives or
benchmarks or a combination of the two depending on the nature of
the annual goals and the needs of the child.

Special Education and Related Services and Supplementary Aids and
Services

    The requirements regarding services provided to address a
child's present levels of educational performance and to make
progress toward the identified goals reinforce the emphasis on
progress in the general curriculum, as well as maximizing the
extent to which children with disabilities are educated with
nondisabled children. Section 300.347(a)(3) requires that the IEP
include:

a statement of the special education and related services and
supplementary aids and services to be provided to the child, or on
behalf of the child, and a statement of the program modifications
or supports for school personnel that will be provided for the
child--(i) to advance appropriately toward attaining the annual
goals; (ii) to be involved and progress in the general curriculum
* * * and to participate in extracurricular and other nonacademic
activities; and (iii) to be educated and participate with other
children with disabilities and nondisabled children in
[extracurricular and other nonacademic activities] * * * [Italics
added.]

Extent to Which Child Will Participate With Nondisabled Children

    Section 300.347(a)(4) requires that each child's IEP include
``An explanation of the extent, if any, to which the child will not
participate with nondisabled children in the regular class and in
[extracurricular and other nonacademic] activities * * *'' This is
consistent with the least restrictive environment (LRE) provisions
at Secs. 300.550-300.553, which include requirements that:
    (1) each child with a disability be educated with nondisabled
children to the maximum extent appropriate (Sec. 300.550(b)(1));  
  (2) each child with a disability be removed from the regular
educational environment only when the nature or severity of the
child's disability is such that education in regular classes with
the use of supplementary aids and services cannot be achieved
satisfactorily (Sec. 300.550(b)(1)); and
    (3) to the maximum extent appropriate to the child's needs,
each child with a disability participates with nondisabled children
in nonacademic and extracurricular services and activities
(Sec. 300.553).
    All services and educational placements under Part B must be
individually determined in light of each child's unique abilities
and needs, to reasonably promote the child's educational success.
Placing children with disabilities in this manner should enable
each disabled child to meet high expectations in the future.
    Although Part B requires that a child with a disability not be
removed from the regular educational environment if the child's
education can be achieved satisfactorily in regular classes with
the use of supplementary aids and services, Part B's LRE principle
is intended to ensure that a child with a disability is served in
a setting where the child can be educated successfully. Even though
IDEA does not mandate regular class placement for every disabled
student, IDEA presumes that the first placement option considered
for each disabled student by the student's placement team, which
must include the parent, is the school the child would attend if
not disabled, with appropriate supplementary aids and services to
facilitate such placement. Thus, before a disabled child can be
placed outside of the regular educational environment, the full
range of supplementary aids and services that if provided would
facilitate the student's placement in the regular classroom setting
must be considered. Following that consideration, if a
determination is made that particular disabled student cannot be
educated satisfactorily in the regular educational environment,
even with the provision of appropriate supplementary aids and
services, that student then could be placed in a setting other than
the regular classroom. Later, if it becomes apparent that the
child's IEP can be carried out in a less restrictive setting, with
the provision of appropriate supplementary aids and services, if
needed, Part B would require that the child's placement be changed
from the more restrictive setting to a less restrictive setting. In
all cases, placement decisions must be individually determined on
the basis of each child's abilities and needs, and not solely on
factors such as category of disability, significance of disability,
availability of special education and related services,
configuration of the service delivery system, availability of
space, or administrative
convenience. Rather, each student's IEP forms the basis for the
placement decision.
    Further, a student need not fail in the regular classroom
before another placement can be considered. Conversely, IDEA does
not require that a student demonstrate achievement of a specific
performance level as a prerequisite for placement into a regular
classroom.

[[Page 12472]]

Participation in State or District-Wide Assessments of Student
Achievement

    Consistent with Sec. 300.138(a), which sets forth a presumption
that children with disabilities will be included in general State
and district-wide assessment programs, and provided with
appropriate accommodations if necessary, Sec. 300.347(a)(5)
requires that the IEP for each student with a disability include:
``(i) a statement of any individual modifications in the
administration of State or district-wide assessments of student
achievement that are needed in order for the child to participate
in the assessment; and (ii) if the IEP team determines that the
child will not participate in a particular State or district-wide
assessment of student achievement (or part of an assessment of
student achievement), a statement of--(A) Why that assessment is
not appropriate for the child; and (B) How the child will be
assessed.''

Regular Education Teacher Participation in the Development, Review,
and Revision of IEPs

    Very often, regular education teachers play a central role in
the education of children with disabilities (H. Rep. No. 105-95, p.
103 (1997); S. Rep. No. 105-17, p. 23 (1997)) and have important
expertise regarding the general curriculum and the general
education environment. Further, with the emphasis on involvement
and progress in the general curriculum added by the IDEA Amendments
of 1997, regular education teachers have an increasingly critical
role (together with special education and related services
personnel) in implementing the program of FAPE for most children
with
disabilities, as described in their IEPs.
    Accordingly, the IDEA Amendments of 1997 added a requirement
that each child's IEP team must include at least one regular
education teacher of the child, if the child is, or may be,
participating in the regular education environment (see
Sec. 300.344(a)(2)). (See also Secs. 300.346(d) on the role of a
regular education teacher in the development, review and revision
of IEPs.)
    2. Must a child's IEP address his or her involvement in the
general curriculum, regardless of the nature and severity of the
child's disability and the setting in which the child is educated? 
   Yes. The IEP for each child with a disability (including
children who are educated in separate classrooms or schools) must
address how the child will be involved and progress in the general
curriculum. However, the Part B regulations recognize that some
children have other educational needs resulting from their
disability that also must be met, even though those needs are not
directly linked to participation in the general curriculum.    
Accordingly, Sec. 300.347(a)(1)(2) requires that each child's IEP
include:
    A statement of measurable annual goals, including benchmarks or
short-term objectives related to--(i) Meeting the child's needs
that result from the child's disability to enable the child to be
involved in and progress in the general curriculum; and (ii)
meeting each of the child's other educational needs that result
from the child's disability. [Italics added.]
    Thus, the IEP team for each child with a disability must make
an individualized determination regarding (1) how the child will be
involved and progress in the general curriculum and what needs that
result from the child's disability must be met to facilitate that
participation; (2) whether the child has any other educational
needs resulting from his or her disability that also must be met;
and (3) what special education and other services and supports must
be described in the child's IEP to address both sets of needs
(consistent with Sec. 300.347(a)). For example, if the IEP team
determines that in order for a child who is deaf to participate in
the general curriculum he or she needs sign language and materials
which reflect his or her language development, those needs
(relating to the child's participation in the general curriculum)
must be addressed in the child's IEP. In addition, if the team
determines that the child also needs to expand his or her
vocabulary in sign language that service must also be addressed in
the applicable components of the child's IEP. The IEP team may also
wish to consider whether there is a need for members of the child's
family to receive training in sign language in order for the child
to receive FAPE.
    3. What must public agencies do to meet the requirements at
Secs. 300.344(a)(2) and 300.346(d) regarding the participation of
a ``regular education teacher'' in the development, review, and
revision of IEPs, for children aged 3 through 5 who are receiving
preschool special education services?
    If a public agency provides ``regular education'' preschool
services to non-disabled children, then the requirements of Secs.
300.344(a)(2) and 300.346(d) apply as they do in the case of older
children with disabilities. If a public agency makes
kindergarten available to nondisabled children, then a regular
education kindergarten teacher could appropriately be the regular
education teacher who would be a member of the IEP team, and, as
appropriate, participate in IEP meetings, for a kindergarten-aged
child who is, or may be, participating in the regular education
environment.
    If a public agency does not provide regular preschool education
services to nondisabled children, the agency could designate an
individual who, under State standards, is qualified to serve
nondisabled children of the same age.
    4. Must the measurable annual goals in a child's IEP address
all areas of the general curriculum, or only those areas in which
the child's involvement and progress are affected by the child's
disability?
    Section 300.347(a)(2) requires that each child's IEP include
``A statement of measurable annual goals, including benchmarks or
short-term objectives, related to--(i) meeting the child's needs
that result from the child's disability to enable the child to be
involved in and progress in the general curriculum * * *; and (ii)
meeting each of the child's other educational needs that result
from the child's disability. . . .'' (Italics added).
    Thus, a public agency is not required to include in an IEP
annual goals that relate to areas of the general curriculum in
which the child's disability does not affect the child's ability to
be involved in and progress in the general curriculum. If a child
with a disability needs only modifications or accommodations in
order to progress in an area of the general curriculum, the IEP
does not need to include a goal for that area; however, the IEP
would need to specify those modifications or accommodations.
    Public agencies often require all children, including children
with disabilities, to demonstrate mastery in a given area of the
general curriculum before allowing them to progress to the next
level or grade in that area. Thus, in order to ensure that each
child with a disability can effectively demonstrate competencies in
an applicable area of the general curriculum, it is important for
the IEP team to consider the accommodations and modifications that
the child needs to assist him or her in demonstrating progress in
that area.

II. Involvement of Parents and Students

    The Congressional Committee Reports on the IDEA Amendments of
1997 express the view that the Amendments provide an opportunity
for strengthening the role of parents, and emphasize that one of
the purposes of the Amendments is to expand opportunities for
parents and key public agency staff (e.g., special education,
related services, regular education, and early intervention service
providers, and other personnel) to work in new partnerships at both
the State and local levels (H. Rep. 105-95, p. 82 (1997); S. Rep.
No. 105-17, p. 4 and 5 (1997)). Accordingly, the IDEA Amendments of
1997 require that parents have an opportunity to participate in
meetings with respect to the identification, evaluation, and
educational placement of the child, and the provision of FAPE to
the child. (Sec. 300.501(a)(2)). Thus, parents must now be part of:
(1) the group that determines what additional data are needed as
part of an evaluation of their child (Sec. 300.533(a)(1)); (2) the
team that determines their child's eligibility (Sec.
300.534(a)(1)); and (3) the group that makes decisions on the
educational placement of their child (Sec. 300.501(c)).
    In addition, the concerns of parents and the information that
they provide regarding their children must be considered in
developing and reviewing their children's IEPs
(Secs. 300.343(c)(iii) and 300.346(a)(1)(i) and (b)); and the
requirements for keeping parents informed about the educational
progress of their children, particularly as it relates to their
progress in the general curriculum, have been strengthened
(Sec. 300.347(a)(7)).
    The IDEA Amendments of 1997 also contain provisions that
greatly strengthen the involvement of students with disabilities in
decisions regarding their own futures, to facilitate movement from
school to post-school activities. For example, those amendments (1)
retained, essentially verbatim, the ``transition services''
requirements from the IDEA Amendments of 1990 (which provide that
a statement of needed transition services must be in the IEP of
each student with a disability, beginning no later than age 16);
and (2) significantly

[[Page 12473]]

expanded those provisions by adding a new annual requirement for
the IEP to include ``transition planning'' activities for students
beginning at age 14. (See section IV of this appendix for a
description of the transition services requirements and
definition.)     With respect to student involvement in decisions
regarding transition services, Sec. 300.344(b) provides that (1)
``the public agency shall invite a student with a disability of any
age to attend his or her IEP meeting if a purpose of the meeting
will be the consideration of--(i) The student's transition services
needs under Sec. 300.347(b)(1); or (ii) The needed transition
services for the student under Sec. 300.347(b)(2); or (iii) Both;''
and (2) ``If the student does not attend the IEP meeting, the
public agency shall take other steps to ensure that the student's
preferences and interests are considered.'' (Sec. 300.344(b)(2)).
    The IDEA Amendments of 1997 also give States the authority to
elect to transfer the rights accorded to parents under Part B to
each student with a disability upon reaching the age of majority
under State law (if the student has not been determined incompetent
under State law) (Sec. 300.517). (Part B requires that if the
rights transfer to the student, the public agency must provide any
notice required under Part B to both the student and the parents.)
If the State elects to provide for the transfer of rights from the
parents to the student at the age of majority, the IEP must,
beginning at least one year before a student reaches the age of
majority under State law, include a statement that the student has
been informed of any rights that will transfer to him or her upon
reaching the age of majority. (Sec. 300.347(c)).
    The IDEA Amendments of 1997 also permit, but do not require,
States to establish a procedure for appointing the parent, or
another appropriate individual if the parent is not available, to
represent the educational interests of a student with a disability
who has reached the age of majority under State law and has not
been determined to be incompetent, but who is determined not to
have the ability to provide informed consent with respect to his or
her educational program.
    5. What is the role of the parents, including surrogate
parents, in decisions regarding the educational program of their
children?     The parents of a child with a disability are expected
to be equal participants along with school personnel, in
developing, reviewing, and revising the IEP for their child. This
is an active role in which the parents (1) provide critical
information regarding the strengths of their child and express
their concerns for enhancing the education of their child; (2)
participate in
discussions about the child's need for special education and
related services and supplementary aids and services; and (3) join
with the other participants in deciding how the child will be
involved and progress in the general curriculum and participate in
State and district-wide assessments, and what services the agency
will provide to the child and in what setting.
    As previously noted in the introduction to section II of this
Appendix, Part B specifically provides that parents of children
with disabilities--
    <bullet> Have an opportunity to participate in meetings with
respect to the identification, evaluation, and educational
placement of their child, and the provision of FAPE to the child
(including IEP meetings) (Secs. 300.501(b), 300.344(a)(1), and
300.517;     <bullet> Be part of the groups that determine what
additional data are needed as part of an evaluation of their child
(Sec. 300.533(a)(1)), and determine their child's eligibility (Sec.
300.534(a)(1)) and educational placement (Sec. 300.501(c));    
<bullet> Have their concerns and the information that they provide
regarding their child considered in developing and reviewing their
child's IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1)(i) and (b));
and
    <bullet> Be regularly informed (by such means as periodic
report cards), as specified in their child's IEP, at least as often
as parents are informed of their nondisabled children's progress,
of their child's progress toward the annual goals in the IEP and
the extent to which that progress is sufficient to enable the child
to achieve the goals by the end of the year (Sec. 300.347(a)(7)). 
   A surrogate parent is a person appointed to represent the
interests of a child with a disability in the educational decision-
making process when no parent (as defined at Sec. 300.20) is known,
the agency, after reasonable efforts, cannot locate the child's
parents, or the child is a ward of the State under the laws of the
State. A surrogate parent has all of the rights and
responsibilities of a parent under Part B (Sec. 300.515.)
    6. What are the Part B requirements regarding the participation
of a student (child) with a disability in an IEP meeting?
    If a purpose of an IEP meeting for a student with a disability
will be the consideration of the student's transition services
needs or needed transition services under Sec. 300.347(b)(1) or
(2), or both, the public agency must invite the student and, as
part of the notification to the parents of the IEP meeting, inform
the parents that the agency will invite the student to the IEP
meeting.     If the student does not attend, the public agency must
take other steps to ensure that the student's preferences and
interests are considered. (See Sec. 300.344(b)).
    Section Sec. 300.517 permits, but does not require, States to
transfer procedural rights under Part B from the parents to
students with disabilities who reach the age of majority under
State law, if they have not been determined to be incompetent under
State law. If those rights are to be transferred from the parents
to the student, the public agency would be required to ensure that
the student has the right to participate in IEP meetings set forth
for parents in Sec. 300.345. However, at the discretion of the
student or the public agency, the parents also could attend IEP
meetings as ``* * * individuals who have knowledge or special
expertise regarding the child * * *'' (see Sec. 300.344(a)(6)).
    In other circumstances, a child with a disability may attend
``if appropriate.'' (Sec. 300.344(a)(7)). Generally, a child with
a disability should attend the IEP meeting if the parent decides
that it is appropriate for the child to do so. If possible, the
agency and parents should discuss the appropriateness of the
child's participation before a decision is made, in order to help
the parents determine whether or not the child's attendance would
be (1) helpful in developing the IEP or (2) directly beneficial to
the child or both. The agency should inform the parents before each
IEP meeting--as part of notification under Sec. 300.345(a)(1)--that
they may invite their child to participate.
    7. Must the public agency inform the parents of who will be at
the IEP meeting?
    Yes. In notifying parents about the meeting, the agency ``must
indicate the purpose, time, and location of the meeting, and who
will be in attendance.'' (Sec. 300.345(b), italics added.) In
addition, if a purpose of the IEP meeting will be the consideration
of a student's transition services needs or needed transition
services under Sec. 300.347(b)(1) or (2) or both, the notice must
also inform the parents that the agency is inviting the student,
and identify any other agency that will be invited to send a
representative.
    The public agency also must inform the parents of the right of
the parents and the agency to invite other individuals who have
knowledge or special expertise regarding the child, including
related services personnel as appropriate to be members of the IEP
team. (Sec. 300.345(b)(1)(ii).)
    It also may be appropriate for the agency to ask the parents to
inform the agency of any individuals the parents will be bringing
to the meeting. Parents are encouraged to let the agency know whom
they intend to bring. Such cooperation can facilitate arrangements
for the meeting, and help ensure a productive, child-centered
meeting.     8. Do parents have the right to a copy of their
child's IEP?     Yes. Section 300.345(f) states that the public
agency shall give the parent a copy of the IEP at no cost to the
parent.
    9. What is a public agency's responsibility if it is not
possible to reach consensus on what services should be included in
a child's IEP?
    The IEP meeting serves as a communication vehicle between
parents and school personnel, and enables them, as equal
participants, to make joint, informed decisions regarding the (1)
child's needs and appropriate goals; (2) extent to which the child
will be involved in the general curriculum and participate in the
regular education environment and State and district-wide
assessments; and (3) services needed to support that involvement
and participation and to achieve agreed-upon goals. Parents are
considered equal partners with school personnel in making these
decisions, and the IEP team must consider the parents' concerns and
the information that they provide regarding their child in
developing, reviewing, and revising IEPs (Secs. 300.343(c)(iii) and
300.346(a)(1) and (b)).
    The IEP team should work toward consensus, but the public
agency has ultimate responsibility to ensure that the IEP includes
the services that the child needs in order to receive FAPE. It is
not appropriate to make IEP decisions based upon a majority
``vote.'' If the team cannot reach consensus, the public agency
must provide the parents

[[Page 12474]]

with prior written notice of the agency's proposals or refusals, or
both, regarding the child's educational program, and the parents
have the right to seek resolution of any disagreements by
initiating an impartial due process hearing.
    Every effort should be made to resolve differences between
parents and school staff through voluntary mediation or some other
informal step, without resort to a due process hearing. However,
mediation or other informal procedures may not be used to deny or
delay a parent's right to a due process hearing, or to deny any
other rights afforded under Part B.
    10. Does Part B require that public agencies inform parents
regarding the educational progress of their children with
disabilities?
    Yes. The Part B statute and regulations include a number of
provisions to help ensure that parents are involved in decisions
regarding, and are informed about, their child's educational
progress, including the child's progress in the general curriculum.
First, the parents will be informed regarding their child's present
levels of educational performance through the development of the
IEP. Section 300.347(a)(1) requires that each IEP include:
    * * * A statement of the child's present levels of educational
performance, including--(i) how the child's disability affects the
child's involvement and progress in the general curriculum; or (ii)
for preschool children, as appropriate, how the disability affects
the child's participation in appropriate activities * * *
    Further, Sec. 300.347(a)(7) sets forth new requirements for
regularly informing parents about their child's educational
progress, as regularly as parents of nondisabled children are
informed of their child's progress. That section requires that the
IEP include:
    A statement of--(i) How the child's progress toward the annual
goals * * * will be measured; and (ii) how the child's parents will
be regularly informed (by such means as periodic report cards), at
least as often as parents are informed of their nondisabled
children's progress, of--(A) their child's progress toward the
annual goals; and (B) the extent to which that progress is
sufficient to enable the child to achieve the goals by the end of
the year.
    One method that public agencies could use in meeting this
requirement would be to provide periodic report cards to the
parents of students with disabilities that include both (1) the
grading information provided for all children in the agency at the
same intervals; and (2) the specific information required by
Sec. 300.347(a)(7)(ii)(A) and (B).
    Finally, the parents, as part of the IEP team, will participate
at least once every 12 months in a review of their child's
educational progress. Section 300.343(c) requires that a public
agency initiate and conduct a meeting, at which the IEP team:    
* * * (1) Reviews the child's IEP periodically, but not less than
annually to determine whether the annual goals for the child are
being achieved; and (2) revises the IEP as appropriate to address--
(i) any lack of expected progress toward the annual goals * * * and
in the general curriculum, if appropriate; (ii) The results of any
reevaluation * * *; (iii) Information about the child provided to,
or by, the parents * * *; (iv) The child's anticipated needs; or
(v) Other matters.

III. Preparing Students With Disabilities for Employment and Other
Post-School Experiences

    One of the primary purposes of the IDEA is to ``* * * ensure
that all children with disabilities have available to them a free
appropriate public education that emphasizes special education and
related services designed to meet their unique needs and prepare
them for employment and independent living * * *'' (Sec. 300.1(a)).
Section 701 of the Rehabilitation Act of 1973 describes the
philosophy of independent living as including a philosophy of
consumer control, peer support, self-help, self-determination,
equal access, and individual and system advocacy, in order to
maximize the leadership, empowerment, independence, and
productivity of
individuals with disabilities, and the integration and full
inclusion of individuals with disabilities into the mainstream of
American society. Because many students receiving services under
IDEA will also receive services under the Rehabilitation Act, it is
important, in planning for their future, to consider the impact of
both statutes.
    Similarly, one of the key purposes of the IDEA Amendments of
1997 was to ``promote improved educational results for children
with disabilities through early intervention, preschool, and
educational experiences that prepare them for later educational
challenges and employment.'' (H. Rep. No. 105-95, p. 82 (1997); S.
Rep. No. 105-17, p. 4 (1997)).
    Thus, throughout their preschool, elementary, and secondary
education, the IEPs for children with disabilities must, to the
extent appropriate for each individual child, focus on providing
instruction and experiences that enable the child to prepare
himself or herself for later educational experiences and for post-
school activities, including formal education, if appropriate,
employment, and independent living. Many students with disabilities
will obtain services through State vocational rehabilitation
programs to ensure that their educational goals are effectively
implemented in post-school activities. Services available through
rehabilitation programs are consistent with the underlying purpose
of IDEA.     Although preparation for adult life is a key component
of FAPE throughout the educational experiences of students with
disabilities, Part B sets forth specific requirements related to
transition planning and transition services that must be
implemented no later than ages 14 and 16, respectively, and which
require an intensified focus on that preparation as these students
begin and prepare to complete their secondary education.
    11. What must the IEP team do to meet the requirements that the
IEP include ``a statement of * * * transition service needs''
beginning at age 14 (Sec. 300.347(b)(1)(i)),'' and a statement of
needed transition services'' no later than age 16
(Sec. 300.347(b)(2)?
    Section 300.347(b)(1) requires that, beginning no later than
age 14, each student's IEP include specific transition-related
content, and, beginning no later than age 16, a statement of needed
transition services:
    Beginning at age 14 and younger if appropriate, and updated
annually, each student's IEP must include:

    ``* * * a statement of the transition service needs of the
student under the applicable components of the student's IEP that
focuses on the student's courses of study (such as participation in
advanced-placement courses or a vocational education program)''
(Sec. 300.347(b)(1)(i)).
    Beginning at age 16 (or younger, if determined appropriate by
the IEP team), each student's IEP must include:

``* * * a statement of needed transition services for the student,
including, if appropriate, a statement of the interagency
responsibilities or any needed linkages.'' (Sec. 300.347(b)(2)).  
  The Committee Reports on the IDEA Amendments of 1997 make clear
that the requirement added to the statute in 1997 that beginning at
age 14, and updated annually, the IEP include ``a statement of the
transition service needs'' is ``* * * designed to augment, and not
replace,'' the separate, preexisting requirement that the IEP
include, ``* * * beginning at age 16 (or younger, if determined
appropriate by the IEP team), a statement of needed transition
services * * *'' (H. Rep. No. 105-95, p. 102 (1997); S. Rep. No.
105-17, p. 22 (1997)). As clarified by the Reports, ``The purpose
of [the requirement in Sec. 300.347(b)(1)(i)] is to focus attention
on how the child's educational program can be planned to help the
child make a successful transition to his or her goals for life
after secondary school.'' (H. Rep. No. 105-95, pp. 101-102 (1997);
S. Rep. No. 105-17, p. 22 (1997)). The Reports further explain that
``[F]or example, for a child whose transition goal is a job, a
transition service could be teaching the child how to get to the
job site on public transportation.'' (H. Rep. No. 105-95, p. 102
(1997); S. Rep. No. 105-17, p. 22 (1997)).
    Thus, beginning at age 14, the IEP team, in determining
appropriate measurable annual goals (including benchmarks or short-
term objectives) and services for a student, must determine what
instruction and educational experiences will assist the student to
prepare for transition from secondary education to post-secondary
life.
    The statement of transition service needs should relate
directly to the student's goals beyond secondary education, and
show how planned studies are linked to these goals. For example, a
student interested in exploring a career in computer science may
have a statement of transition services needs connected to
technology course work, while another student's statement of
transition services needs could describe why public bus
transportation training is important for future independence in the
community.
    Although the focus of the transition planning process may shift
as the student approaches graduation, the IEP team must discuss
specific areas beginning at least at the age of 14 years and review
these areas annually. As noted in the Committee Reports, a
disproportionate number of students with disabilities drop out of
school before they

[[Page 12475]]

complete their secondary education: ``Too many students with
disabilities are failing courses and dropping out of school. Almost
twice as many students with disabilities drop out as compared to
students without disabilities.'' (H. Rep. No. 105-95, p. 85 (1997),
S. Rep. No. 105-17, p. 5 (1997).)
    To help reduce the number of students with disabilities that
drop out, it is important that the IEP team work with each student
with a disability and the student's family to select courses of
study that will be meaningful to the student's future and motivate
the student to complete his or her education.
    This requirement is distinct from the requirement, at
Sec. 300.347(b)(2), that the IEP include:

* * * beginning at age 16 (or younger, if determined appropriate by
the IEP team), a statement of needed transition services for the
child, including, if appropriate, a statement of the interagency
responsibilities or any needed linkages.
    The term ``transition services'' is defined at Sec. 300.29 to
mean:

* * * a coordinated set of activities for a student with a
disability that--(1) Is designed within an outcome-oriented
process, that promotes movement from school to post-school
activities, including postsecondary education, vocational training,
integrated employment (including supported employment), continuing
and adult education, adult services, independent living, or
community participation; (2) Is based on the individual student's
needs, taking into account the student's preferences and interests;
and (3) 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 functional vocational
evaluation.     Thus, while Sec. 300.347(b)(1) requires that the
IEP team begin by age 14 to address the student's need for
instruction that will assist the student to prepare for transition,
the IEP must include by age 16 a statement of needed transition
services under
Sec. 300.347(b)(2) that includes a ``coordinated set of activities
* * *, designed within an outcome-oriented process, that promotes
movement from school to post-school activities * * *.''
(Sec. 300.29) Section 300.344(b)(3) further requires that, in
implementing Sec. 300.347(b)(1), public agencies (in addition to
required participants for all IEP meetings), must also invite a
representative of any other agency that is likely to be responsible
for providing or paying for transition services. Thus,
Sec. 300.347(b)(2) requires a broader focus on coordination of
services across, and linkages between, agencies beyond the SEA and
LEA.
    12. Must the IEP for each student with a disability, beginning
no later than age 16, include all ``needed transition services,''
as identified by the IEP team and consistent with the definition at
Sec. 300.29, even if an agency other than the public agency will
provide those services? What is the public agency's responsibility
if another agency fails to provide agreed-upon transition services? 
   Section 300.347(b)(2) requires that the IEP for each child with
a disability, beginning no later than age 16, or younger if
determined appropriate by the IEP team, include all ``needed
transition services,'' as identified by the IEP team and consistent
with the definition at Sec. 300.29, regardless of whether the
public agency or some other agency will provide those services.
Section 300.347(b)(2) specifically requires that the statement of
needed transition services include, ``* * * if appropriate, a
statement of the interagency responsibilities or any needed
linkages.''
    Further, the IDEA Amendments of 1997 also permit an LEA to use
up to five percent of the Part B funds it receives in any fiscal
year in combination with other amounts, which must include amounts
other than education funds, to develop and implement a coordinated
services system. These funds may be used for activities such as:
(1) linking IEPs under Part B and Individualized Family Service
Plans (IFSPs) under Part C, with Individualized Service Plans
developed under multiple Federal and State programs, such as Title
I of the Rehabilitation Act; and (2) developing and implementing
interagency financing strategies for the provision of services,
including transition services under Part B.
    The need to include, as part of a student's IEP, transition
services to be provided by agencies other than the public agency is
contemplated by Sec. 300.348(a), which specifies what the public
agency must do if another agency participating in the development
of the statement of needed transition services fails to provide a
needed transition service that it had agreed to provide.
    If an agreed-upon service by another agency is not provided,
the public agency responsible for the student's education must
implement alternative strategies to meet the student's needs. This
requires that the public agency provide the services, or convene an
IEP meeting as soon as possible to identify alternative strategies
to meet the transition services objectives, and to revise the IEP
accordingly.
    Alternative strategies might include the identification of
another funding source, referral to another agency, the public
agency's identification of other district-wide or community
resources that it can use to meet the student's identified needs
appropriately, or a combination of these strategies. As emphasized
by Sec. 300.348(b), however:
    Nothing in [Part B] relieves any participating agency,
including a State vocational rehabilitation agency, of the
responsibility to provide or pay for any transition service that
the agency would otherwise provide to students with disabilities
who meet the eligibility criteria of that agency.
    However, the fact that an agency other than the public agency
does not fulfill its responsibility does not relieve the public
agency of its responsibility to ensure that FAPE is available to
each student with a disability. (Section 300.142(b)(2) specifically
requires that if an agency other than the LEA fails to provide or
pay for a special education or related service (which could include
a transition service), the LEA must, without delay, provide or pay
for the service, and may then claim reimbursement from the agency
that failed to provide or pay for the service.)
    13. Under what circumstances must a public agency invite
representatives from other agencies to an IEP meeting at which a
child's need for transition services will be considered?
    Section 300.344 requires that, ``In implementing the
requirements of [Sec. 300.347(b)(1)(ii) requiring a statement of
needed transition services], the public agency shall also invite a
representative of any other agency that is likely to be responsible
for providing or paying for transition services.'' To meet this
requirement, the public agency must identify all agencies that are
``likely to be responsible for providing or paying for transition
services'' for each student addressed by Sec. 300.347(b)(1), and
must invite each of those agencies to the IEP meeting; and if an
agency invited to send a representative to a meeting does not do
so, the public agency must take other steps to obtain the
participation of that agency in the planning of any transition
services.
    If, during the course of an IEP meeting, the team identifies
additional agencies that are ``likely to be responsible for
providing or paying for transition services'' for the student, the
public agency must determine how it will meet the requirements of
Sec. 300.344.

IV. Other Questions Regarding the Development and Content of IEPS

    14. For a child with a disability receiving special education
for the first time, when must an IEP be developed--before or after
the child begins to receive special education and related services? 
   Section 300.342(b)(1) requires that an IEP be ``in effect before
special education and related services are provided to an eligible
child * * *'' (Italics added.)
    The appropriate placement for a particular child with a
disability cannot be determined until after decisions have been
made about the child's needs and the services that the public
agency will provide to meet those needs. These decisions must be
made at the IEP meeting, and it would not be permissible first to
place the child and then develop the IEP. Therefore, the IEP must
be developed before placement. (Further, the child's placement must
be based, among other factors, on the child's IEP.)
    This requirement does not preclude temporarily placing an
eligible child with a disability in a program as part of the
evaluation process--before the IEP is finalized--to assist a public
agency in determining the appropriate placement for the child.
However, it is essential that the temporary placement not become
the final placement before the IEP is finalized. In order to ensure
that this does not happen, the State might consider requiring LEAs
to take the following actions:
    a. Develop an interim IEP for the child that sets out the
specific conditions and timelines for the trial placement. (See
paragraph c, following.)
    b. Ensure that the parents agree to the interim placement
before it is carried out, and that they are involved throughout the

[[Page 12476]]

process of developing, reviewing, and revising the child's IEP.   
 c. Set a specific timeline (e.g., 30 days) for completing the
evaluation, finalizing the IEP, and determining the appropriate
placement for the child.
    d. Conduct an IEP meeting at the end of the trial period in
order to finalize the child's IEP.
    15. Who is responsible for ensuring the development of IEPs for
children with disabilities served by a public agency other than an
LEA?
    The answer as to which public agency has direct responsibility
for ensuring the development of IEPs for children with disabilities
served by a public agency other than an LEA will vary from State to
State, depending upon State law, policy, or practice. The SEA is
ultimately responsible for ensuring that all Part B requirements,
including the IEP requirements, are met for eligible children
within the State, including those children served by a public
agency other than an LEA. Thus, the SEA must ensure that every
eligible child with a disability in the State has FAPE available,
regardless of which State or local agency is responsible for
educating the child. (The only exception to this responsibility is
that the SEA is not responsible for ensuring that FAPE is made
available to children with disabilities who are convicted as adults
under State law and incarcerated in adult prisons, if the State has
assigned that responsibility to a public agency other than the SEA.
(See
Sec. 300.600(d)).
    Although the SEA has flexibility in deciding the best means to
meet this obligation (e.g., through interagency agreements), the
SEA must ensure that no eligible child with a disability is denied
FAPE due to jurisdictional disputes among agencies.
    When an LEA is responsible for the education of a child with a
disability, the LEA remains responsible for developing the child's
IEP, regardless of the public or private school setting into which
it places the child.
    16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving
State responsible for the child's IEP?
    Regardless of the reason for the placement, the ``placing''
State is responsible for ensuring that the child's IEP is developed
and that it is implemented. The determination of the specific
agency in the placing State that is responsible for the child's IEP
would be based on State law, policy, or practice. However, the SEA
in the placing State is ultimately responsible for ensuring that
the child has FAPE available.
    17. If a disabled child has been receiving special education
from one public agency and transfers to another public agency in
the same State, must the new public agency develop an IEP before
the child can be placed in a special education program?
    If a child with a disability moves from one public agency to
another in the same State, the State and its public agencies have
an ongoing responsibility to ensure that FAPE is made available to
that child. This means that if a child moves to another public
agency the new agency is responsible for ensuring that the child
has available special education and related services in conformity
with an IEP.     The new public agency must ensure that the child
has an IEP in effect before the agency can provide special
education and related services. The new public agency may meet this
responsibility by either adopting the IEP the former public agency
developed for the child or by developing a new IEP for the child.
(The new public agency is strongly encouraged to continue
implementing the IEP developed by the former public agency, if
appropriate, especially if the parents believe their child was
progressing appropriately under that IEP.)
    Before the child's IEP is finalized, the new public agency may
provide interim services agreed to by both the parents and the new
public agency. If the parents and the new public agency are unable
to agree on an interim IEP and placement, the new public agency
must implement the old IEP to the extent possible until a new IEP
is developed and implemented.
    In general, while the new public agency must conduct an IEP
meeting, it would not be necessary if: (1) A copy of the child's
current IEP is available; (2) the parents indicate that they are
satisfied with the current IEP; and (3) the new public agency
determines that the current IEP is appropriate and can be
implemented as written.
    If the child's current IEP is not available, or if either the
new public agency or the parent believes that it is not
appropriate, the new public agency must develop a new IEP through
appropriate procedures within a short time after the child enrolls
in the new public agency (normally, within one week).
    18. What timelines apply to the development and implementation
of an initial IEP for a child with a disability?
    Section 300.343(b) requires each public agency to ensure that
within a reasonable period of time following the agency's receipt
of parent consent to an initial evaluation of a child, the child is
evaluated and, if determined eligible, special education and
related services are made available to the child in accordance with
an IEP. The section further requires the agency to conduct a
meeting to develop an IEP for the child within 30 days of
determining that the child needs special education and related
services.
    Section 300.342(b)(2) provides that an IEP must be implemented
as soon as possible following the meeting in which the IEP is
developed.
    19. Must a public agency hold separate meetings to determine a
child's eligibility for special education and related services,
develop the child's IEP, and determine the child's placement, or
may the agency meet all of these requirements in a single meeting? 
   A public agency may, after a child is determined by ``a group of
qualified professionals and the parent'' (see Sec. 300.534(a)(1))
to be a child with a disability, continue in the same meeting to
develop an IEP for the child and then to determine the child's
placement. However, the public agency must ensure that it meets:
(1) the requirements of Sec. 300.535 regarding eligibility
decisions; (2) all of the Part B requirements regarding meetings to
develop IEPs (including providing appropriate notification to the
parents, consistent with the requirements of Secs. 300.345,
300.503, and 300.504, and ensuring that all the required team
members participate in the development of the IEP, consistent with
the requirements of Sec. 300.344;) and (3) ensuring that the
placement is made by the required individuals, including the
parent, as required by
Secs. 300.552 and 300.501(c).
    20. How frequently must a public agency conduct meetings to
review, and, if appropriate, revise the IEP for each child with a
disability?
    A public agency must initiate and conduct meetings
periodically, but at least once every twelve months, to review each
child's IEP, in order to determine whether the annual goals for the
child are being achieved, and to revise the IEP, as appropriate, to
address: (a) Any lack of expected progress toward the annual goals
and in the general curriculum, if appropriate; (b) the results of
any
reevaluation; (c) information about the child provided to, or by,
the parents; (d) the child's anticipated needs; or (e) other
matters (Sec. 300.343(c)).
    A public agency also must ensure that an IEP is in effect for
each child at the beginning of each school year (Sec. 300.342(a)).
It may conduct IEP meetings at any time during the year. However,
if the agency conducts the IEP meeting prior to the beginning of
the next school year, it must ensure that the IEP contains the
necessary special education and related services and supplementary
aids and services to ensure that the student's IEP can be
appropriately implemented during the next school year. Otherwise,
it would be necessary for the public agency to conduct another IEP
meeting.     Although the public agency is responsible for
determining when it is necessary to conduct an IEP meeting, the
parents of a child with a disability have the right to request an
IEP meeting at any time. For example, if the parents believe that
the child is not progressing satisfactorily or that there is a
problem with the child's current IEP, it would be appropriate for
the parents to request an IEP meeting.
    If a child's teacher feels that the child's IEP or placement is
not appropriate for the child, the teacher should follow agency
procedures with respect to: (1) calling or meeting with the parents
or (2) requesting the agency to hold another IEP meeting to review
the child's IEP.
    The legislative history of Public Law 94-142 makes it clear
that there should be as many meetings a year as any one child may
need (121 Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator
Stafford)). Public agencies should grant any reasonable parent
request for an IEP meeting. For example, if the parents question
the adequacy of services that are provided while their child is
suspended for short periods of time, it would be appropriate to
convene an IEP meeting.
    In general, if either a parent or a public agency believes that
a required component of the student's IEP should be changed, the
public agency must conduct an IEP meeting if it believes that a
change in the IEP may be necessary to ensure the provision of FAPE. 
   If a parent requests an IEP meeting because the parent believes
that a change is needed

[[Page 12477]]

in the provision of FAPE to the child or the educational placement
of the child, and the agency refuses to convene an IEP meeting to
determine whether such a change is needed, the agency must provide
written notice to the parents of the refusal, including an
explanation of why the agency has determined that conducting the
meeting is not necessary to ensure the provision of FAPE to the
student.
    Under Sec. 300.507(a), the parents or agency may initiate a due
process hearing at any time regarding any proposal or refusal
regarding the identification, evaluation, or educational placement
of the child, or the provision of FAPE to the child, and the public
agency must inform parents about the availability of mediation.   
 21. May IEP meetings be audio- or video-tape-recorded?
    Part B does not address the use of audio or video recording
devices at IEP meetings, and no other Federal statute either
authorizes or prohibits the recording of an IEP meeting by either
a parent or a school official. Therefore, an SEA or public agency
has the option to require, prohibit, limit, or otherwise regulate
the use of recording devices at IEP meetings.
    If a public agency has a policy that prohibits or limits the
use of recording devices at IEP meetings, that policy must provide
for exceptions if they are necessary to ensure that the parent
understands the IEP or the IEP process or to implement other
parental rights guaranteed under Part B. An SEA or school district
that adopts a rule regulating the tape recording of IEP meetings
also should ensure that it is uniformly applied.
    Any recording of an IEP meeting that is maintained by the
public agency is an ``education record,'' within the meaning of the
Family Educational Rights and Privacy Act (``FERPA''; 20 U.S.C.
1232g), and would, therefore, be subject to the confidentiality
requirements of the regulations under both FERPA (34 CFR part 99)
and part B (Secs. 300.560-300.575).
    Parents wishing to use audio or video recording devices at IEP
meetings should consult State or local policies for further
guidance.
    22. Who can serve as the representative of the public agency at
an IEP meeting?
    The IEP team must include a representative of the public agency
who: (a) Is qualified to provide, or supervise the provision of,
specially designed instruction to meet the unique needs of children
with disabilities; (b) is knowledgeable about the general
curriculum; and (c) is knowledgeable about the availability of
resources of the public agency (Sec. 300.344(a)(4)).
    Each public agency may determine which specific staff member
will serve as the agency representative in a particular IEP
meeting, so long as the individual meets these 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 set out in the IEP will actually be provided.
    A public agency may designate another public agency member of
the IEP team to also serve as the agency representative, so long as
that individual meets the requirements of Sec. 300.344(a)(4).    
23. For a child with a disability being considered for initial
provision of special education and related services, which teacher
or teachers should attend the IEP meeting?
    A child's IEP team must include at least one of the child's
regular education teachers (if the child is, or may be
participating in the regular education environment) and at least
one of the child's special education teachers, or, if appropriate,
at least one of the child's special education providers (Sec.
300.344(a)(2) and (3)).
    Each IEP must include a statement of the present levels of
educational performance, including a statement of how the child's
disability affects the child's involvement and progress in the
general curriculum (Sec. 300.347(a)(1)). At least one regular
education teacher is a required member of the IEP team of a child
who is, or may be, participating in the regular educational
environment, regardless of the extent of that participation.    
The requirements of Sec. 300.344(a)(3) can be met by either: (1) a
special education teacher of the child; or (2) another special
education provider of the child, such as a speech pathologist,
physical or occupational therapist, etc., if the related service
consists of specially designed instruction and is considered
special education under applicable State standards.
    Sometimes more than one meeting is necessary in order to
finalize a child's IEP. In this process, if the special education
teacher or special education provider who will be working with the
child is identified, it would be useful to have that teacher or
provider participate in the meeting with the parents and other
members of the IEP team in finalizing the IEP. If this is not
possible, the public agency must ensure that the teacher or
provider has access to the child's IEP as soon as possible after it
is finalized and before beginning to work with the child.
    Further, (consistent with Sec. 300.342(b)), the public agency
must ensure that each regular education teacher, special education
teacher, related services provider and other service provider of an
eligible child under this part (1) has access to the child's IEP,
and (2) is informed of his or her specific responsibilities related
to implementing the IEP, and of the specific accommodations,
modifications, and supports that must be provided to the child in
accordance with the IEP. This requirement is crucial to ensuring
that each child receives FAPE in accordance with his or her IEP,
and that the IEP is appropriately and effectively implemented.
    24. What is the role of a regular education teacher in the
development, review and revision of the IEP for a child who is, or
may be, participating in the regular education environment?     As
required by Sec. 300.344(a)(2), the IEP team for a child with a
disability must include at least one regular education teacher of
the child if the child is, or may be, participating in the regular
education environment. Section 300.346(d) further specifies that
the regular education teacher of a child with a disability, as a
member of the IEP team, must, to the extent appropriate,
participate in the development, review, and revision of the child's
IEP, including assisting in--(1) the determination of appropriate
positive behavioral interventions and strategies for the child; and
(2) the determination of supplementary aids and services, program
modifications, and supports for school personnel that will be
provided for the child, consistent with 300.347(a)(3)
(Sec. 300.344(d)).
    Thus, while a regular education teacher must be a member of the
IEP team if the child is, or may be, participating in the regular
education environment, the teacher need not (depending upon the
child's needs and the purpose of the specific IEP team meeting) be
required to participate in all decisions made as part of the
meeting or to be present throughout the entire meeting or attend
every meeting. For example, the regular education teacher who is a
member of the IEP team must participate in discussions and
decisions about how to modify the general curriculum in the regular
classroom to ensure the child's involvement and progress in the
general
curriculum and participation in the regular education environment. 
   Depending upon the specific circumstances, however, it may not
be necessary for the regular education teacher to participate in
discussions and decisions regarding, for example, the physical
therapy needs of the child, if the teacher is not responsible for
implementing that portion of the child's IEP.
    In determining the extent of the regular education teacher's
participation at IEP meetings, public agencies and parents should
discuss and try to reach agreement on whether the child's regular
education teacher that is a member of the IEP team should be
present at a particular IEP meeting and, if so, for what period of
time. The extent to which it would be appropriate for the regular
education teacher member of the IEP team to participate in IEP
meetings must be decided on a case-by-case basis.
    25. If a child with a disability attends several regular
classes, must all of the child's regular education teachers be
members of the child's IEP team?
    No. The IEP team need not include more than one regular
education teacher of the child. If the participation of more than
one regular education teacher would be beneficial to the child's
success in school (e.g., in terms of enhancing the child's
participation in the general curriculum), it would be appropriate
for them to attend the meeting.
    26. How should a public agency determine which regular
education teacher and special education teacher will be members of
the IEP team for a particular child with a disability?
    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 teach 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 IEP team
member(s), taking into account the best interest of the child.    
In a situation in which not all of the child's regular education
teachers are members of

[[Page 12478]]

the child's IEP team, the LEA is strongly encouraged to seek input
from the teachers who will not be attending. In addition,
(consistent with Sec. 300.342(b)), the LEA must ensure that each
regular education teacher (as well as each special education
teacher, related services provider, and other service provider) of
an eligible child under this part (1) has access to the child's
IEP, and (2) is informed of his or her specific responsibilities
related to implementing the IEP, and of the specific
accommodations, modifications and supports that must be provided to
the child in accordance with the IEP.
    In the case of a child whose behavior impedes the learning of
the child or others, the LEA is encouraged to have a regular
education teacher or other person knowledgeable about positive
behavior strategies at the IEP meeting. This is especially
important if the regular education teacher is expected to carry out
portions of the IEP.
    Similarly, the special education teacher or provider of the
child who is a member of the child's IEP team should be the person
who is, or will be, responsible for implementing the IEP. If, for
example, the child's disability is a speech impairment, the special
education teacher on the IEP team could be the speech-language
pathologist.
    27. For a child whose primary disability is a speech
impairment, may a public agency meet its responsibility under Sec.
300.344(a)(3) to ensure that the IEP team includes ``at least one
special education teacher, or, if appropriate, at least one special
education provider of the child'' by including a speech-language
pathologist on the IEP team?
    Yes, if speech is considered special education under State
standards. As with other children with disabilities, the IEP team
must also include at least one of the child's regular education
teachers if the child is, or may be, participating in the regular
education environment.
    28. Do parents and public agencies have the option of inviting
any individual of their choice be participants on their child's IEP
team?
    The IEP team may, at the discretion of the parent or the
agency, include ``other individuals who have knowledge or special
expertise regarding the child * * *'' (Sec. 300.344(a)(6), italics
added). Under Sec. 300.344(a)(6), these individuals are members of
the IEP team. This is a change from prior law, which provided,
without qualification, that parents or agencies could have other
individuals as members of the IEP team at the discretion of the
parents or agency.
    Under Sec. 300.344(c), the determination as to whether an
individual has knowledge or special expertise, within the meaning
of Sec. 300.344(a)(6), shall be made by the parent or public agency
who has invited the individual to be a member of the IEP team.
    Part B does not provide for including individuals such as
representatives of teacher organizations as part of an IEP team,
unless they are included because of knowledge or special expertise
regarding the child. (Because a representative of a teacher
organization would generally be concerned with the interests of the
teacher rather than the interests of the child, and generally would
not possess knowledge or expertise regarding the child, it
generally would be inappropriate for such an official to be a
member of the IEP team or to otherwise participate in an IEP
meeting.)
    29. Can parents or public agencies bring their attorneys to IEP
meetings, and, if so under what circumstances? Are attorney's fees
available for parents' attorneys if the parents are prevailing
parties in actions or proceedings brought under Part B?
    Section 300.344(a)(6) authorizes the addition to the IEP team
of other individuals at the discretion of the parent or the public
agency only if those other individuals have knowledge or special
expertise regarding the child. The determination of whether an
attorney possesses knowledge or special expertise regarding the
child would have to be made on a case-by-case basis by the parent
or public agency inviting the attorney to be a member of the team. 
   The presence of the agency's attorney could contribute to a
potentially adversarial atmosphere at the meeting. The same is true
with regard to the presence of an attorney accompanying the parents
at the IEP meeting. Even if the attorney possessed knowledge or
special expertise regarding the child (Sec. 300.344(a)(6)), an
attorney's presence would have the potential for creating an
adversarial atmosphere that would not necessarily be in the best
interests of the child.
    Therefore, the attendance of attorneys at IEP meetings should
be strongly discouraged. Further, as specified in Section
615(i)(3)(D)(ii) of the Act and Sec. 300.513(c)(2)(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 conducted prior to the request for a due process
hearing.
    30. Must related services personnel attend IEP meetings?    
Although Part B does not expressly require that the IEP team
include related services personnel as part of the IEP team
(Sec. 300.344(a)), it is appropriate for those persons to be
included if a particular related service is to be discussed as part
of the IEP meeting. Section 300.344(a)(6) provides that the IEP
team also includes ``at the discretion of the parent or the agency,
other individuals who have knowledge or special expertise regarding
the child, including related services personnel as appropriate. *
* *'' (Italics added.)
    Further, Sec. 300.344(a)(3) requires that the IEP team for each
child with a disability include ``at least one special education
teacher, or, if appropriate, at least one special education
provider of the child * * *'' This requirement can be met by the
participation of either (1) a special education teacher of the
child, or (2) another special education provider such as a speech-
language pathologist, physical or occupational therapist, etc., if
the related service consists of specially designed instruction and
is considered special education under the applicable State
standard.     If a child with a disability has an identified need
for related services, it would be appropriate for the related
services personnel to attend the meeting or otherwise be involved
in developing the IEP. As explained in the Committee Reports on the
IDEA Amendments of 1997, ``Related services personnel should be
included on the team when a particular related service will be
discussed at the request of the child's parents or the school.''
(H. Rep. No. 105-95, p. 103 (1997); S. Rep. No. 105-17, p. 23
(1997)). For example, if the child's evaluation indicates the need
for a specific related service (e.g., physical therapy,
occupational therapy, special
transportation services, school social work services, school health
services, or counseling), the agency should ensure that a qualified
provider of that service either (1) attends the IEP meeting, or (2)
provides a written recommendation concerning the nature, frequency,
and amount of service to be provided to the child. This written
recommendation could be a part of the evaluation report.
    A public agency must ensure that all individuals who are
necessary to develop an IEP that will meet the child's unique
needs, and ensure the provision of FAPE to the child, participate
in the child's IEP meeting.
    31. Must the public agency ensure that all services specified
in a child's IEP are provided?
    Yes. The public agency must ensure that all services set forth
in the child's IEP are provided, consistent with the child's needs
as identified in the IEP. The agency may provide each of those
services directly, through its own staff resources; indirectly, by
contracting with another public or private agency; or through other
arrangements. In providing the services, the agency may use
whatever State, local, Federal, and private sources of support are
available for those purposes (see Sec. 300.301(a)); but the
services must be at no cost to the parents, and the public agency
remains responsible for ensuring that the IEP services are provided
in a manner that appropriately meets the student's needs as
specified in the IEP. The SEA and responsible public agency may not
allow the failure of another agency to provide service(s) described
in the child's IEP to deny or delay the provision of FAPE to the
child. (See Sec. 300.142, Methods of ensuring services.)
    32. Is it permissible for an agency to have the IEP completed
before the IEP meeting begins?
    No. Agency staff may come to an IEP meeting prepared with
evaluation findings and proposed recommendations regarding IEP
content, but the agency must make it clear to the parents at the
outset of the meeting that the services proposed by the agency are
only recommendations for review and discussion with the parents.
Parents have the right to bring questions, concerns, and
recommendations to an IEP meeting as part of a full discussion, of
the child's needs and the services to be provided to meet those
needs before the IEP is finalized.
    Public agencies must ensure that, if agency personnel bring
drafts of some or all of the IEP content to the IEP meeting, there
is a full discussion with the child's parents, before

[[Page 12479]]

the child's IEP is finalized, regarding drafted content and the
child's needs and the services to be provided to meet those needs. 
   33. Must a public agency include transportation in a child's IEP
as a related service?
    As with other related services, a public agency must provide
transportation as a related service if it is required to assist the
disabled child to benefit from special education. (This includes
transporting a preschool-aged child to the site at which the public
agency provides special education and related services to the
child, if that site is different from the site at which the child
receives other preschool or day care services.)
    In determining whether to include transportation in a child's
IEP, and whether the child needs to receive transportation as a
related service, it would be appropriate to have at the IEP meeting
a person with expertise in that area. In making this determination,
the IEP team must consider how the child's disability affects the
child's need for transportation, including determining whether the
child's disability prevents the child from using the same
transportation provided to nondisabled children, or from getting to
school in the same manner as nondisabled children.
    The public agency must ensure that any transportation service
included in a child's IEP as a related service is provided at
public expense and at no cost to the parents, and that the child's
IEP describes the transportation arrangement.
    Even if a child's IEP team determines that the child does not
require transportation as a related service, Section 504 of the
Rehabilitation Act of 1973, as amended, requires that the child
receive the same transportation provided to nondisabled children.
If a public agency transports nondisabled children, it must
transport disabled children under the same terms and conditions.
However, if a child's IEP team determines that the child does not
need
transportation as a related service, and the public agency
transports only those children whose IEPs specify transportation as
a related service, and does not transport nondisabled children, the
public agency would not be required to provide transportation to a
disabled child.
    It should be assumed that most children with disabilities
receive the same transportation services as nondisabled children.
For some children with disabilities, integrated transportation may
be achieved by providing needed accommodations such as lifts and
other equipment adaptations on regular school transportation
vehicles.
    34. Must a public agency provide related services that are
required to assist a child with a disability to benefit from
special education, whether or not those services are included in
the list of related services in Sec. 300.24?
    The list of related services is not exhaustive and may include
other developmental, corrective, or supportive services if they are
required to assist a child with a disability to benefit from
special education. This could, depending upon the unique needs of
a child, include such services as nutritional services or service
coordination.
    These determinations must be made on an individual basis by
each child's IEP team.
    35. Must the IEP specify the amount of services or may it
simply list the services to be provided?
    The amount of services to be provided must be stated in the
IEP, so that the level of the agency's commitment of resources will
be clear to parents and other IEP team members (Sec.
300.347(a)(6)). The amount of time to be committed to each of the
various services to be provided must be (1) appropriate to the
specific service, and (2) stated in the IEP in a manner that is
clear to all who are involved in both the development and
implementation of the IEP.     The amount of a special education or
related service to be provided to a child may be stated in the IEP
as a range (e.g., speech therapy to be provided three times per
week for 30-45 minutes per session) only if the IEP team determines
that stating the amount of services as a range is necessary to meet
the unique needs of the child. For example, it would be appropriate
for the IEP to specify, based upon the IEP team's determination of
the student's unique needs, that particular services are needed
only under specific circumstances, such as the occurrence of a
seizure or of a
particular behavior. A range may not be used because of personnel
shortages or uncertainty regarding the availability of staff.    
36. Under what circumstances is a public agency required to permit
a child with a disability to use a school-purchased assistive
technology device in the child's home or in another setting?    
Each child's IEP team must consider the child's need for assistive
technology (AT) in the development of the child's IEP (Sec.
300.346(a)(2)(v)); and the nature and extent of the AT devices and
services to be provided to the child must be reflected in the
child's IEP (Sec. 300.346(c)).
    A public agency must permit a child to use school-purchased
assistive technology devices at home or in other settings, if the
IEP team determines that the child needs access to those devices in
nonschool settings in order to receive FAPE (to complete homework,
for example).
    Any assistive technology devices that are necessary to ensure
FAPE must be provided at no cost to the parents, and the parents
cannot be charged for normal use, wear and tear. However, while
ownership of the devices in these circumstances would remain with
the public agency, State law, rather than Part B, generally would
govern whether parents are liable for loss, theft, or damage due to
negligence or misuse of publicly owned equipment used at home or in
other settings in accordance with a child's IEP.
    37. Can the IEP team also function as the group making the
placement decision for a child with a disability?
    Yes, a public agency may use the IEP team to make the placement
decision for a child, so long as the group making the placement
decision meets the requirements of Secs. 300.552 and 300.501(c),
which requires that the placement decision be 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.
    38. If a child's IEP includes behavioral strategies to address
a particular behavior, can a child ever be suspended for engaging
in that behavior?
    If a child's behavior impedes his or her learning or that of
others, the IEP team, in developing the child's IEP, must consider,
if appropriate, development of strategies, including positive
behavioral interventions, strategies and supports to address that
behavior, consistent with Sec. 300.346(a)(2)(i). This means that in
most cases in which a child's behavior that impedes his or her
learning or that of others is, or can be readily anticipated to be,
repetitive, proper development of the child's IEP will include the
development of strategies, including positive behavioral
interventions, strategies and supports to address that behavior.
See Sec. 300.346(c). This includes behavior that could violate a
school code of conduct. A failure to, if appropriate, consider and
address these behaviors in developing and implementing the child's
IEP would constitute a denial of FAPE to the child. Of course, in
appropriate circumstances, the IEP team, which includes the child's
parents, might determine that the child's behavioral intervention
plan includes specific regular or alternative disciplinary
measures, such as denial of certain privileges or short
suspensions, that would result from particular infractions of
school rules, along with positive behavior intervention strategies
and supports, as a part of a comprehensive plan to address the
child's behavior. Of course, if short suspensions that are included
in a child's IEP are being implemented in a manner that denies the
child access to the ability to progress in the educational program,
the child would be denied FAPE.
    Whether other disciplinary measures, including suspension, are
ever appropriate for behavior that is addressed in a child's IEP
will have to be determined on a case by case basis in light of the
particular circumstances of that incident. However, school
personnel may not use their ability to suspend a child for 10 days
or less at a time on multiple occasions in a school year as a means
of avoiding appropriately considering and addressing the child's
behavior as a part of providing FAPE to the child.
    39. If a child's behavior in the regular classroom, even with
appropriate interventions, would significantly impair the learning
of others, can the group that makes the placement decision
determine that placement in the regular classroom is inappropriate
for that child?
    The IEP team, in developing the IEP, is required to consider,
when appropriate, strategies, including positive behavioral
interventions, strategies and supports to address the behavior of
a child with a disability whose behavior impedes his or her
learning or that of others. If the IEP team determines that such
supports, strategies or interventions are necessary to address the
behavior of the child, those services must be included in the
child's IEP. These provisions are designed to foster increased
participation of children with disabilities in regular

[[Page 12480]]

education environments or other less restrictive environments, not
to serve as a basis for placing children with disabilities in more
restrictive settings.
    The determination of appropriate placement for a child whose
behavior is interfering with the education of others requires
careful consideration of whether the child can appropriately
function in the regular classroom if provided appropriate
behavioral supports, strategies and interventions. If the child can
appropriately function in the regular classroom with appropriate
behavioral supports, strategies or interventions, placement in a
more restrictive environment would be inconsistent with the least
restrictive environment provisions of the IDEA. If the child's
behavior in the regular classroom, even with the provision of
appropriate behavioral supports, strategies or interventions, would
significantly impair the learning of others, that placement would
not meet his or her needs and would not be appropriate for that
child.
    40. May school personnel during a school year implement more
than one short-term removal of a child with disabilities from his
or her classroom or school for misconduct?
    Yes. Under Sec. 300.520(a)(1), school personnel may order
removal of a child with a disability from the child's current
placement for not more than 10 consecutive school days for any
violation of school rules, and additional removals of not more than
10 consecutive school days in that same school year for separate
incidents of misconduct, as long as these removals do not
constitute a change of placement under Sec. 300.519(b). However,
these removals are permitted only to the extent they are consistent
with discipline that is applied to children without disabilities.
Also, school personnel should be aware of constitutional due
process protections that apply to suspensions of all children. Goss
v. Lopez, 419 U.S. 565 (1975). Section 300.121(d) addresses the
extent of the
obligation to provide services after a child with a disability has
been removed from his or her current placement for more than 10
school days in the same school year.

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[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]               
[Page 12505-12554]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov]
[DOCID:fr12mr99-14]
 
[[pp. 12505-12554]] Assistance to States for the Education of
Children With 
Disabilities and the Early Intervention Program for Infants and 
Toddlers With Disabilities

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BILLING CODE 4000-01-C

PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH 
DISABILITIES

    2. The authority citation for part 303 continues to read as 
follows:

    Authority: 20 U.S.C. 1431-1445, unless otherwise noted.


Sec. 303.1  [Amended]

    3. Section 303.1 is amended by removing the word ``program'' in

paragraph (a), and adding, in its place, ``system.''


Sec. 303.4  [Amended]

    4. Section 303.4 is amended by revising the authority citation
to 
read as follows:

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

    5. Section 303.5 is amended by adding ``, and'' at the end of 
paragraph (a)(1)(vi), by revising paragraph (a)(3), and by revising
the 
authority citation to read as follows:


Sec. 303.5  Applicable regulations.

* * * * *
    (a) * * *
    (3) The following regulations in 34 CFR part 300 (Assistance to

States for the Education of Children with Disabilities Program): 
Secs. 300.560-300.577, and Secs. 300.580-300.585.
* * * * *
(Authority: 20 U.S.C. 1401, 1416, 1417)


Secs. 303.6, 303.12, and 303.18  [Amended]

    6. The note preceding Sec. 303.6 and following the heading 
``Definitions'' is amended by removing the phrase ``'natural 
environments'' in Sec. 303.12(b)(2)'' and adding, in its place, 
```natural environments' in Sec. 303.18''.
    7. Section 303.10 is revised to read as follows:


Sec. 303.10  Developmental delay.

    As used in this part, ``developmental delay,'' when used with 
respect to an individual residing in a State, has the meaning given
to 
that term under Sec. 303.300.

(Authority: 20 U.S.C. 1432(3))


Sec. 303.12  [Amended]

    8. Section 303.12(d)(11) is amended by removing the reference
to 
``Sec. 303.22'' and by adding in its place ``Sec. 303.23''.
    9. Section 303.19 is revised to read as follows:


Sec. 303.19  Parent.

    (a) General. As used in this part, ``parent'' means--
    (1) A natural or adoptive parent of a child;
    (2) A guardian;
    (3) A person acting in the place of a parent (such as a
grandparent 
or stepparent with whom the child lives, or a person who is legally

responsible for the child's welfare); or
    (4) A surrogate parent who has been assigned in accordance with

Sec. 303.406.
    (b) Foster parent. Unless State law prohibits a foster parent
from 
acting as a parent, a State may allow a foster parent to act as a 
parent under Part C of the Act if--
    (1) The natural parents' authority to make the decisions
required 
of parents under the Act has been extinguished under State law; and
    (2) The foster parent--
    (i) Has an ongoing, long-term parental relationship with the
child;
    (ii) Is willing to make the decisions required of parents under
the 
Act; and
    (iii) Has no interest that would conflict with the interests of
the 
child.

(Authority: 20 U.S.C. 1401(19), 1431-1445)

    10. Section 303.100 is amended by revising paragraph (d)(2) to
read 
as follows:


Sec. 303.100  Conditions of assistance.

* * * * *
    (d) * * *
    (2) A new interpretation is made of the Act by a Federal court
or 
the State's highest court; or
* * * * *


Sec. 303.140  [Amended]

    11. In Sec. 303.140 paragraph (b) is amended by adding the
words, 
``in the State'' after ``services are available to all infants and 
toddlers with disabilities''.


Sec. 303.145  [Amended]

    12. Section 303.145 is amended by revising the heading for 
paragraph (c) to

[[Page 12536]]

read ``Maintenance and implementation activities''; and by removing
the 
words ``planning, developing'' in paragraph (c)(1), and adding, in 
their place, ``maintaining''. 3. Section 303.344 is amended by
adding 
``and'' after ``Sec. 303.12(b)'' in paragraph (d)(1)(ii), and by 
revising paragraph (h)(1) to read as follows:


Sec. 303.344  Content of an IFSP.

* * * * *
    (h) Transition from Part C services. (1) The IFSP must include
the 
steps to be taken to support the transition of the child, in
accordance 
with Sec. 303.148, to--
    (i) Preschool services under Part B of the Act, to the extent
that 
those services are appropriate; or
    (ii) Other services that may be available, if appropriate.
* * * * *
    14. Section 303.403 is amended by removing the word ``and'' at
the 
end of paragraph (b)(2); by revising paragraph (b)(3); by adding a
new 
paragraph (b)(4); and by revising the authority citation to read as

follows:


Sec. 303.403  Prior notice; native language.

* * * * *
    (b) * * *
    (3) All procedural safeguards that are available under 
Secs. 303.401-303.460 of this part; and
    (4) The State complaint procedures under Secs. 303.510-303.512,

including a description of how to file a complaint and the
timelines 
under those procedures.
* * * * *
(Authority: 20 U.S.C. 1439(a)(6) and (7))

    15. Section 303.510 is revised to read as follows:


Sec. 303.510  Adopting complaint procedures.

    (a) General. Each lead agency shall adopt written procedures
for--
    (1) Resolving any complaint, including a complaint filed by an 
organization or individual from another State, that any public
agency 
or private service provider is violating a requirement of Part C of
the 
Act or this Part by--
    (i) Providing for the filing of a complaint with the lead
agency; 
and
    (ii) At the lead agency's discretion, providing for the filing
of a 
complaint with a public agency and the right to have the lead
agency 
review the public agency's decision on the complaint; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training centers, protection and
advocacy 
agencies, independent living centers, and other appropriate
entities, 
the State's procedures under Secs. 303.510-303.512.
    (b) Remedies for denial of appropriate services. In resolving
a 
complaint in which it finds a failure to provide appropriate
services, 
a lead agency, pursuant to its general supervisory authority under
Part 
C of the Act, must address:
    (1) How to remediate the denial of those services, including,
as 
appropriate, the awarding of monetary reimbursement or other
corrective 
action appropriate to the needs of the child and the child's
family; 
and
    (2) Appropriate future provision of services for all infants
and 
toddlers with disabilities and their families.

(Authority: 20 U.S.C. 1435(a)(10))

    16. Section 303.511 is revised to read as follows:


Sec. 303.511  An organization or individual may file a complaint.

    (a) General. An individual or organization may file a written 
signed complaint under Sec. 303.510. The complaint must include--
    (1) A statement that the State has violated a requirement of
part C 
of the Act or the regulations in this part; and
    (2) The facts on which the complaint is based.
    (b) Limitations. The alleged violation must have occurred not
more 
than one year before the date that the complaint is received by the

public agency unless a longer period is reasonable because--
    (1) The alleged violation continues for that child or other 
children; or
    (2) The complainant is requesting reimbursement or corrective 
action for a violation that occurred not more than three years
before 
the date on which the complaint is received by the public agency.

(Authority: 20 U.S.C. 1435(a)(10))

    17. Section 303.512 is revised to read as follows:


Sec. 303.512  Minimum State complaint procedures.

    (a) Time limit, minimum procedures. Each lead agency shall
include 
in its complaint procedures a time limit of 60 calendar days after
a 
complaint is filed under Sec. 303.510(a) to--
    (1) Carry out an independent on-site investigation, if the lead

agency determines that such an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional 
information, either orally or in writing, about the allegations in
the 
complaint;
    (3) Review all relevant information and make an independent 
determination as to whether the public agency is violating a 
requirement of Part C of the Act or of this Part; and
    (4) Issue a written decision to the complainant that addresses
each 
allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the lead agency's final decision.
    (b) Time extension; final decisions; implementation. The lead 
agency'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 exceptional circumstances exist with respect
to a 
particular complaint; and
    (2) Include procedures for effective implementation of the lead

agency'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 Sec. 303.420. (1) If a written complaint is received that is
also 
the subject of a due process hearing under Sec. 303.420, or
contains 
multiple issues, of which one or more 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 within the 60-calendar-day timeline

using the complaint procedures described in paragraphs (a) and (b)
of 
this section.
    (2) If an issue is raised in a complaint filed under this
section 
that has previously been decided in a due process hearing involving
the 
same parties--
    (i) The hearing decision is binding; and
    (ii) The lead agency must inform the complainant to that
effect.
    (3) A complaint alleging a public agency's or private service 
provider's failure to implement a due process decision must be
resolved 
by the lead agency.

(Authority: 20 U.S.C. 1435(a)(10))

    18. Section 303.520 is amended by adding a new paragraph (d);
and 
revising the authority citation to read as follows:


Sec. 303.520  Policies related to payment for services.

* * * * *
    (d) Proceeds from public or private insurance. (1) Proceeds
from 
public or

[[Page 12537]]

private insurance are not 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 are not 
considered State or local funds for purposes of the provisions 
contained in Sec. 303.124.

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10))

(Note: This attachment will not be codified in the Code of Federal 
Regulations.)

Attachment 1--Analysis of Comments and Changes

    The following is an analysis of the significant issues raised
by 
the public comments received on the NPRM published on October 22,
1997 
(62 FR 55026), and a description of the changes made in the
proposed 
regulations since publication of the NPRM.
    Except for relevant general comments relating to the overall
NPRM, 
which are discussed at the beginning of this analysis, specific 
substantive issues are discussed under the subpart and section of
the 
regulations to which they pertain. References to subparts and
section 
numbers in this attachment are to those contained in the final 
regulations.
    This 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;
    (c) The organizational structure of these regulations and the 
extent to which statutory language is used; and
    (d) 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 lie within the purview of
State 
and local decision-makers.

General Comments

    Comment: Some commenters stated that the notes in the
regulations 
are extremely important because they provide additional information
and 
clarification. Other commenters expressed concerns about the
extensive 
use of notes throughout the NPRM and raised questions about their
legal 
status. Several of the commenters stated that the number of notes 
should be dramatically reduced because they go well beyond 
clarification, creating a new interpretation that differs from the 
statutory language.
    Many of the commenters stated that any note that is intended to
be 
a requirement should be incorporated into the text of the
regulations. 
Some of the commenters felt that all other notes that are not 
requirements should be deleted or otherwise moved to a
nonregulatory 
format, such as a technical assistance document. Other commenters 
indicated that notes should be used only for guidance and examples,
or 
clarifying information, including appropriate references to recent 
legislative history.
    Discussion: In light of the comments received, certain changes
with 
respect to notes in these final regulations are appropriate and
should 
be made. The Department does not regulate by notes. Therefore, the 
substance of any note that should be a requirement should be 
incorporated into the text of the regulations. Information that was

contained in a note that provides meaningful guidance is reflected
in 
the discussion of the relevant section of these regulations in this

Attachment so that the public will have access to the information. 
Information in any note that is not considered to be useful should 
simply be removed.
    Changes: Consistent with the above discussion, all notes have
been 
removed as notes from these final regulations. The substance of any

note considered to be a requirement has been added to the text of
the 
regulations. Information in any note considered to provide
clarifying 
information or useful guidance has been incorporated into the 
discussion of the applicable comments in this Attachment or, as 
appropriate, in Appendix A (Notice of Interpretation on IEPs).
Notes 
that are no longer relevant have simply been deleted. A table is 
included in attachment 3 that describes the disposition of all
notes in 
the NPRM.
    Comment: A few commenters stated that the NPRM should have
focused 
only on implementing the IDEA Amendments of 1997, and expressed
concern 
that it was used to regulate on subjects addressed in previous
policy 
letters that should be published separately for public comment.
These 
commenters stated that the attempt to bring forward in the NPRM
policy 
letters that interpret prior law is inappropriate because the new
law 
has a goal of including children with disabilities in the general 
curriculum and improving results for these children, in contrast to
the 
focus in prior law of simply providing disabled children access to 
public schools.
    Discussion: Publishing a separate NPRM on longstanding policy 
letters is not in the best interests of the general public because
it 
would impose an added burden on the reviewers and would be
inefficient, 
ineffective, and very costly. In fact, by incorporating the
positions 
taken in these policy letters into the NPRM, they already have been

subjected to the public comment process. It also would be confusing

both to parents and public agencies if the longstanding policy 
interpretations were not included in these final regulations,
because 
it would imply that the provisions were no longer in effect.
Moreover, 
it is important for parents, public agency staff, and others to be
able 
to review all proposed changes to the regulations at one time and
in a 
single context.
    Although the new amendments place greater emphasis on the 
participation of disabled children in the general curriculum and on

ensuring better results for these children, the essential rights
and 
protections in prior law, including the concept of the least 
restrictive environment have been retained under the IDEA
Amendments of 
1997, and, in many respects, have been strengthened. Many of the 
interpretations of prior law--including those relating to the
rights 
and protections afforded under the law--continue to be relevant to 
implementing Part B. Therefore, it would be inappropriate to
exclude 
them from the final regulations.
    Changes: None.
    Comment: Some commenters stated that, in the preamble to the
NPRM, 
the characterization of prior law as focusing simply on ensuring
access 
to education is a misstatement and should be deleted. The
commenters 
indicated that the courts have traditionally acknowledged that
disabled 
children were entitled to participate fully in all educational
programs 
and services available to all other students, and added that a
correct 
interpretation of prior law is necessary because of pending and new

court cases.
    Discussion: The broader interpretation of prior law raised by 
commenters is the correct one. That characterization is reflected
in 
the definition of FAPE (that, among other things, FAPE includes 
preschool, elementary, or secondary school education in the State),
and 
in the provisions under Secs. 300.304 (Full educational opportunity

goal) and 300.305 (Program options). The statement in the preamble,

however, was reflective of the status of the education of disabled 
children prior to 1975--in which approximately one million of those

children were excluded from public education, and of the evolution
of 
the program over a 22-year period.
    Experience and research over that period have demonstrated
that, as 
reflected in the statutory findings, the education of disabled
children 
can be

[[Page 12538]]

more effective by having higher expectations for those children,
and 
ensuring their access to the general curriculum, as well as other 
findings (see section 601(c)(5) of the Act). Therefore, it is
correct 
to state that the 1997 amendments place greater emphasis on a
results-
oriented approach related to improving educational results for
disabled 
children than was true under prior law.
    Changes: None.
    Comment: Commenters requested clarification relating to the 
``reserved'' sections in the regulations, and indicated that if 
regulatory language is inserted into those reserved sections, the 
inserted language should be subjected to the same field input
process 
that was used for the rest of the regulations.
    Discussion: The reserved sections are simply placeholders for 
future regulations, if further regulations become necessary. Any 
regulations that would be added to those reserved sections in the 
future would be subject to notice and comment in accordance with
the 
Department's rulemaking procedures. These procedures include a 90-
day 
public comment period as required by section 607(a) of the Act.
    Changes: None.

Subpart A

Purposes (Sec. 300.1)

    Comment: Some commenters requested that Sec. 300.1 be amended
to 
include the new purposes under sections 601(d)(2) of the Act
(relating 
to the early intervention program for infants and toddlers with 
disabilities under Part C of the Act), and 601(d)(3) (relating to 
ensuring that educators and parents have the tools necessary to
improve 
educational results for children with disabilities).
    Some commenters expressed their support of the emphasis on 
independent living and preparation for employment in the Act and 
regulations. A few commenters stated that the note following Sec.
300.1 
(that includes the definition of ``independent living'' from the 
Rehabilitation Act of 1973), sets forth the spirit of these 
regulations. Other commenters requested that the note be revised to

clarify that the purpose of the note is not to disturb the
longstanding 
understanding of FAPE for children with disabilities, and that 
maximization of educational services is not required under Part B.
    Several commenters recommended that the note be deleted. Some
of 
these commenters stated that it is misleading and confusing to
include 
the purposes of other statutes in these regulations, that it
implies 
that school districts are responsible for some rehabilitation
services, 
and that ``independent living'' is a term of art, and not just an 
educational enterprise.
    Discussion: Section 300.1 includes the statutory purposes that
are 
specifically related to the Assistance for Education of All
Children 
with Disabilities Program under Part B of the Act and to these 
regulations, which are codified at 34 CFR Part 300. Therefore, the
list 
of statutory purposes contained in Sec. 300.1 should be retained.
    Although statutory purposes relating to Part C have not been 
included in these regulations, these purposes were included as part
of 
the regulations in 34 CFR Part 303 implementing Part C published in
the 
Federal Register on April 14, 1998 (63 FR 18289). In addition,
although 
the second purpose in section 601(d)(3) of the Act is relevant to
the 
successful implementation of these regulations, (i.e., ensuring
that 
educators and parents have the tools necessary to improve
educational 
results for children with disabilities) this statutory purpose is 
directed at the discretionary programs under Part D of the Act, and
not 
to the requirements under Part B.
    Independent living is an important concept in the education of 
children with disabilities, as set forth in Sec. 300.1(a). However,

because the note goes beyond the stated purposes of these
regulations 
and focuses on a provision from another law, it is confusing, and
the 
note should be deleted.
    Changes: The note following Sec. 300.1 has been deleted. A 
discussion of independent living has been incorporated into
Appendix A 
with respect to transition services.

Applicability to State, Local, and Private Agencies (Sec. 300.2)

    Comment: A few commenters recommended that charter schools be 
included in the list of public agencies to which these regulations 
apply, because these schools are sometimes treated by State law as 
political subdivisions, and, thus, would be subject to the
requirements 
of these regulations. Other commenters emphasized the importance of

clarifying the formal obligations of agencies other than
educational 
agencies, particularly with respect to mental health services.
    Discussion: Because of the increasing attention that charter 
schools are receiving, it is appropriate to specifically clarify
that 
under the statute public charter schools that are not otherwise
already 
included as LEAs or ESAs and are not a school of an LEA or ESA in
the 
list of political subdivisions that are subject to the requirements
of 
these regulations. Charter schools are also addressed in other
sections 
of these regulations (see analysis of comments under Secs. 300.18, 
300.22, 300.241, and 300.312).
    A change is not necessary to address responsibility of an
agency 
other than an educational agency for services necessary for
ensuring a 
free appropriate public education including mental health services.

Section 300.142 addresses interagency agreements and the
requirements 
of section 612(a)(12) of the Act regarding methods of ensuring 
services. See discussion of Sec. 300.142 in this Analysis.
    In light of the general decision to remove all notes from these

final regulations, the note following this section of the NPRM
should 
be deleted. The substance of this note, regarding the applicability
of 
these regulations to each public agency that has direct or
delegated 
authority to provide special education and related services in a
State 
receiving Part B funds, regardless of that agency's receipt of Part
B 
funds, should be incorporated into the text of this regulation.
    Changes: Section 300.2 has been amended by redesignating the 
existing paragraph (b) as paragraph (b)(1), by adding public
charter 
schools that are not otherwise included as LEAs or ESAs and are not
a 
school of an LEA or ESA to the list of entities to which these 
regulations apply, and by removing the note to this section of the
NPRM 
and adding the substance of that note as paragraph (b)(2) of this 
section.

Definitions--General Comments

    Comment: Commenters recommended that the final regulations
should 
(1) include a master list of all terms used in these regulations
and 
the specific section in which each term is defined; (2) add other 
relevant statutory terms in the IDEA that were omitted from the
NPRM 
(e.g., institution of higher education, nonprofit, parent
organization, 
parent training and information center, and SEA etc.); (3) update 
Sec. 300.28 to add ``elementary school,'' ``nonprofit,'' and
``SEA'' to 
the list of relevant terms defined in the Education Department
General 
Administrative Regulations (EDGAR); (4) define terms used in two or

more subparts of these regulations, such as consent, direct
services, 
evaluation, personally identifiable, private school children with 
disabilities, and public expense; and (5) that the master list of 
definitions in note 1 to this section of the NPRM was not complete 
because it omitted the definitions of the thirteen terms defined
within 
the definition of

[[Page 12539]]

``child with a disability,'' the fifteen terms defined within the 
definition of ``related services,'' and the four terms defined
within 
the definition of ``special education.''
    Some commenters requested that the following definitions be 
deleted: ``comparable services'' (Sec. 300.455); ``extended school 
year'' (Sec. 300.309); ``meetings'' (Sec. 300.501); and ``financial

costs'' (Sec. 300.142(e)), because none of the terms is defined in
the 
statute, and the regulations should not exceed the statute. Other 
commenters recommended adding definitions of ``change of
placement;'' 
``competent eighteen year old;'' ``developmental delay;'' ``school 
day;'' ``extra curricular activities;'' ``functional behavioral 
assessment;'' ``impeding behavior;'' ``other agency personnel;'' 
``paraprofessional;'' ``positive behavior support or intervention 
plan;'' and ``positive behavioral intervention strategies.''
    A few commenters expressed concern with the use of ``adversely 
affects educational performance'' throughout Sec. 300.7(b) as 
potentially limiting the services that are provided to disabled 
children, especially those children who are academically gifted but
who 
still need transition services to postsecondary education, and 
recommended that a definition of this term be added to the
regulations.
    Discussion: It would make the regulations more useful to
parents 
and others by: (1) Adding to Subpart A the definitions of terms of 
general applicability (e.g., consent, evaluation, and personally 
identifiable) that are used in two or more subparts of these final 
regulations, and (2) adding to Sec. 300.30, previously Sec. 300.28
of 
the NPRM, relevant terms used in these regulations that are defined
in 
EDGAR (e.g., elementary school, secondary school, nonprofit, and
State 
educational agency).
    It also would make the regulations more useful to include an 
alphabetical master list of the definitions of terms used in this
part, 
and the specific section in which each term is defined, including
terms 
of general applicability (e.g., FAPE and IEP), terms used in a
single 
section or subpart (e.g., ``illegal drug'' and ``weapon''), and 
individual terms used in the definitions of ``child with a 
disability,'' ``related services,'' and ``special education.''
These 
regulations should include an index that identifies the key terms
used 
in the regulations and lists the specific section in which each
term is 
used; and the master list of definitions of the terms should be 
included in the index.
    A definition of the term ``parent training and information
center'' 
should not be added, but the statutory definition of that term in 
section 602(21) of the Act is referenced in the sections of these 
regulations that use the term (Sec. 300.506(d)(1)(i) (relating to 
mediation) and Sec. 300.589(c)(4) (relating to waiver of the 
nonsupplanting requirement)), and the term ``parent training
centers'', 
which has been dropped from Sec. 300.660(b), would be replaced by
a 
reference to the statutory term.
    The disposition of the terms defined in Secs. 300.142(e),
300.309, 
300.455, and 300.501 of the NPRM is addressed in each of the
pertinent 
sections of this attachment.
    With respect to the term ``adversely affects educational 
performance,'' in order for a child to be eligible for services
under 
Part B, the child must meet the two-pronged test established under 
Sec. 300.7(a), which reflects the statutory definition in section 
602(3) of the Act. This means that the child has one of the listed 
conditions that adversely affects educational performance, and who,

because of that condition, needs special education and related 
services. Revising this language in the manner suggested by
commenters 
could result in an unwarranted expansion of eligibility under Part
B. 
It should be pointed out that a child who is academically gifted
but 
who may not be progressing at the rate desired is not automatically

eligible under Part B. Neither is the child automatically
ineligible. 
Rather, determinations as to a child's eligibility for services
under 
Part B must be made on a case-by-case basis in accordance with 
applicable evaluation procedures.
    In light of the general decision to remove all notes from these

final regulations, Notes 1 and 2 following the subheading 
``Definitions'' and immediately preceding Sec. 300.5 in the NPRM
should 
be deleted. Note 1 listed the terms defined in specific sections of
the 
NPRM. As stated earlier in this discussion, those terms should be 
included in a master list of definitions in a newly-created index
to 
these final regulations. Note 2 contained abbreviations of common
terms 
used in these regulations (e.g. the use of ``FAPE'' for ``free 
appropriate public education''). In lieu of listing those
abbreviations 
in a note, each term should be included parenthetically in the text
of 
the regulations as that term appears; and, thereafter, either the 
abbreviation or the full term may be used interchangeably,
depending on 
the context in which it is used.
    Changes: References to the terms defined in Sec. 300.500--
``consent,'' ``evaluation,'' and ``personally identifiable''--have
been 
added as Secs. 300.8, 300.12, and 300.21 of these final
regulations. 
Relevant terms from EDGAR referenced throughout these regulations
have 
been added to Sec. 300.30. Notes 1 and 2 immediately preceding 
Sec. 300.5 have been removed. An index to these regulations have
been 
added as a new Appendix B, and a master list of the definitions of
all 
terms used in this part has been included in the index under the 
heading ``Definitions of terms used under this part.'' The 
abbreviations listed in Note 2 have been included in the text of
the 
regulations, as described in the above discussion.

Assistive Technology Devices and Services (Secs. 300.5 and 300.6)

    Comment: Some commenters recommended that assistive technology 
devices and services be listed as a related service under Sec.
300.22, 
as well as defined separately under Secs. 300.5 and 300.6. Some 
commenters also recommended changes that would alter the statutory 
definitions of these terms. A few commenters requested that Secs.
300.5 
and 300.6 be amended to add language clarifying that assistive 
technology devices and services are only required for a disabled
child 
if necessary for the child to benefit from special education. A few

commenters stated that the regulations should clarify public agency

responsibility for providing personal devices, such as eyeglasses, 
hearing aids, braces and medication, while other commenters
recommended 
that the regulations make explicit that public agencies are not 
responsible for providing personally-prescribed devices under these

regulations. Commenters also requested that the regulations include

examples of assistive technology devices for children, including a 
range of high to low technology devices, such as postural supports,

mobility aids, and positioning equipment. Commenters also requested

clarification on how school districts draw distinctions between a 
child's need for an assistive technology device and a parent's
desire 
for the child to have the newest and best device on the market.
    Discussion: As stated in the note following Sec. 300.6 of the
NPRM, 
the definitions of ``Assistive technology device'' and ``Assistive 
technology service'' in sections 602(1) and 602(2) of the Act are 
substantially identical to the definitions of those terms used in
the 
Technology-Related Assistance for Individuals with Disabilities Act
of 
1988, as amended (Tech Act). Since

[[Page 12540]]

Sec. Sec. 300.5-300.6 essentially adopt the statutory definitions
of 
these terms, no changes to these statutory definitions should be
made 
in these final regulations. However, consistent with Part B, the
words 
``child with a disability'' were substituted for the statutory 
reference to individual with a disability found in the definitions 
contained in the Tech Act. In addition, in light of the general 
decision not to use notes in these final regulations, the note to 
Sec. 300.6 of the NPRM should be removed.
    Section 300.308 of these regulations specifies that an
assistive 
technology device or service is only required if it is determined, 
through the IEP process, to be (1) special education, as defined in

Sec. 300.26, (2) related services, as defined in Sec. 300.24, or
(3) 
supplementary aids and services, as defined in Sec. 300.28. No
further 
clarification should be provided, and references to Sec. 300.308
should 
not be included in the definitions of ``related services'' under 
Sec. 300.24 or ``special education'' under Sec. 300.26. Section
300.308 
is sufficient to explain how a determination about a child's need
for 
an assistive technology device or service is made.
    As a general matter, public agencies are not responsible for 
providing personal devices, such as eyeglasses or hearing aids or 
braces, that a disabled child requires regardless of whether he or
she 
is attending school. However, if a child's IEP team specifies that
a 
child requires a personal device in order to receive FAPE, the
public 
agency must provide the device at no cost to the child's parents. 
Consistent with section 612(a)(12) of the Act, public agencies that
are 
otherwise obligated under Federal or State law or assigned 
responsibility under State policy or interagency agreement or other

mechanisms to provide or pay for any services that are also
considered 
special education or related services, including devices that are 
necessary for ensuring FAPE, must fulfill that obligation or 
responsibility, either directly or through contract or other 
arrangement.
    Regarding responsibilities relative to medication under Sec.
300.5, 
medication is an excluded ``medical service,'' and is not the 
responsibility of a public agency under these regulations;
therefore, 
the change suggested by commenters is not warranted.
    Further examples of assistive technology are not necessary
within 
these regulations. Because the definitions of assistive technology 
devices and services have been included in these regulations for
over 
five years and have been included in the Tech Act since 1988, most 
public agencies should be informed about those devices and services
for 
purposes of implementing these regulations. Examples of assistive 
technology devices and services and other relevant information may
be 
available through one of the technical assistance providers funded
by 
the National Institute on Disability and Rehabilitation Research in
the 
Office of Special Education and Rehabilitative Services (OSERS) or 
other technical assistance providers funded by OSERS.
    Changes: The note following Sec. 300.6 has been removed.
    Comment: Some commenters asked for clarification that (1) the 
statutory provision encompasses both a child's own assistive
technology 
needs (e.g., electronic note takers, cassette recorders, and speech

synthesizers), as well as access to general technology used by all 
students, (2) a child with a disability may take assistive
technology 
devices home for use on homework and other assignments, as well as
for 
use in the community, and (3) school districts have continuing 
responsibility for installation, repair, and maintenance of
devices. 
These commenters added that in order to fully benefit from
assistive 
technology, children with disabilities must be able to use it on
all 
school-work assignments, whether done in the classroom or at home
or in 
the community; and LEAs must ensure that children, their teachers,
and 
other personnel receive the necessary in-service instruction on the

operation and maintenance of technology. Other commenters requested

that the final regulations specify in the text of the regulations
or in 
a note (1) the right of children with disabilities to take devices
home 
or to other settings, as needed, and (2) the issue of ownership and

responsibility.
    Discussion: The provision of assistive technology devices and 
services is limited to those situations in which they are required
in 
order for a disabled child to receive FAPE. However, subject to
this 
limitation, commenters are correct that (1) ``assistive
technology'' 
encompasses both a disabled child's own personal needs for
assistive 
technology devices (e.g., electronic note-takers, cassette
recorders, 
etc), as well as access to general technology devices used by all 
students, and (2) if an eligible child is unable, without a
specific 
accommodation, to use a technology device used by all students, the

agency must ensure that the necessary accommodation is provided. 
Further, commenters are correct that LEAs must ensure that
students, 
their teachers, and other personnel receive the necessary in-
service 
instruction on the operation and maintenance of technology.
    Finally, Sec. 300.308 of these final regulations should be
amended 
to clarify that, 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 to

have access to those devices in order to receive FAPE. The
assistive 
technology devices that are necessary to ensure FAPE must be
provided 
at no cost to the parents, and the parents cannot be charged for
normal 
use, and wear and tear. However, while ownership of the device in
these 
circumstances would remain with the public agency, State law,
rather 
than Part B, generally would govern whether parents are liable for 
loss, theft, or damage due to negligence or misuse of publicly
owned 
equipment used at home or in other settings in accordance with a 
child's IEP.
    Changes: No change has been made to this section in response to

these comments. However, Sec. 300.308 has been amended, consistent
with 
the above discussion.

Child With a Disability (Sec. 300.7)

    Comment: A number of commenters requested that the definition
of 
developmental delay be consistent across both Part B and the early 
intervention program under Part C. The commenters stated that
defining 
the term consistently across all age ranges will help to avoid 
confusion, enhance transition, and conform to diagnostic
procedures. 
Other commenters requested that States not be allowed to establish 
their own definitions of developmental delay because of the risk of

inequitable services across State lines.
    Several commenters requested that children with sensory 
disabilities (such as deafness or blindness) not be included under
the 
developmental delay designation, because a sensory disability is a 
permanent condition and not a delay. Some commenters requested that

LEAs be required to justify, through assessment and elimination of 
specific disabilities, why a child is identified as developmentally

delayed. One of the commenters stated that LEAs must be required to

include assessment of uneven patterns of development as part of the

determination of developmental delay, and added that developmental 
delay should be utilized for individual cases where the child's 
disability cannot be identified, although delays are manifested in
the 
child.

[[Page 12541]]

    A few commenters recommended that the regulations make clear
that 
(1) the broad definition of developmental delay must not be used to

deny proper evaluations, and (2) a full, comprehensive evaluation
of 
each child must be conducted in all areas of suspected disability
so 
that the child's particular educational and other disability-
related 
needs can be effectively addressed.
    Some commenters disagreed with the language in Note 2
prohibiting 
States that have adopted developmental delay from requiring LEAs to

also adopt the provision, since LEAs, as agents of the State, may
be 
directed by the State to enforce what the State has adopted. Other 
commenters recommended that the regulations make clear that an LEA
is 
not required to indicate why a child is in a developmental delay 
category rather than in a disability category, and that an LEA is
not 
required to categorize the child as having one of the thirteen 
disabilities before using the developmental delay designation.
    Discussion: The term ``developmental delay'' is a statutory
term 
that is included in both Parts B and C of the Act. A definition of 
developmental delay, substantially similar to the definition in 
Sec. 300.7(a)(2) of the NPRM, should be retained in these final 
regulations. Because of the numerous questions raised by commenters

about the application of this definition, it is determined that a
new 
paragraph describing requirements governing the use of the 
developmental delay designation should be added to these final 
regulations as Sec. 300.313. In light of these changes, the
definition 
of ``developmental delay'' would be placed in paragraph (b) of 
Sec. 300.7 of these final regulations, and paragraph (b) of this 
section of the NPRM would be redesignated as a new paragraph (c).
    Also, in light of the general decision not to use notes in
these 
final regulations, Notes 2 and 3 following this section of the NPRM

should be removed, and the substance of these notes would be 
incorporated into the new Sec. 300.313. This new section will (1)
set 
out the requirements for States and LEAs in using the developmental

delay designation; (2) clarify that States and LEAs may use the 
developmental delay designation for any child who has an
identifiable 
disability, provided all of the child's identified needs are
addressed; 
and (3) clarify that a State may, but is not required to, adopt a 
common definition of developmental delay for Parts B and C.
    States electing to adopt the term developmental delay are not 
prohibited from also continuing to use the disability categories in

Sec. 300.7(a) and (c) for those children who have been evaluated in

accordance with Secs. 300.530-300.536 as having one of the listed 
disabilities and who because of that disability need special
education 
and related services. Although States traditionally have had the 
authority to require LEAs to adopt State policies, new section 
602(3)(B) of the Act, unlike the provision in prior law, provides
that 
implementation of the provision related to serving children under
the 
developmental delay designation is at the discretion of both the
State 
and the LEA. New Sec. 300.313 reflects this statutory change.
    Under the statute, States also have the discretion to apply the

term developmental delay to children who have an identified sensory

disability (such as deafness or blindness) or any other permanent 
condition (such as a significant cognitive disability), or to use
the 
specific categories. However, States must ensure that children with

sensory impairments or other permanent conditions are evaluated in
all 
areas of suspected disability, and that the educational and other 
disability-related needs of these children identified through 
applicable evaluation procedures are appropriately addressed.
    It is important to ensure that the broad definition of 
developmental delay is not used to deny children proper
evaluations. In 
all cases, evaluations must be sufficiently comprehensive to ensure

that children's needs are appropriately identified. The provisions
in 
Secs. 300.530-300.536 of these regulations should ensure that 
evaluations of children in States and LEAs that use the
developmental 
delay designation are sufficiently comprehensive to address the
full 
range of these children's needs. It would not be appropriate to
require 
public agencies to justify why a child is identified as
developmental 
delay rather than under one of the other disability designations in

these regulations.
    Changes: Section 300.7 has been amended by adding a new
paragraph 
(a)(2) to clarify that if a child has one of the disabilities
listed in 
paragraph (a) of this section but only needs a related service and
not 
special education that child is not a child with a disability under

this part, unless the related service is considered special
education 
rather than a related service under State standards. Paragraph
(a)(2) 
of the NPRM has been redesignated as paragraph (b) of these final 
regulations, entitled ``children aged three through nine
experiencing 
developmental delays,'' which incorporates the definition in 
Sec. 300.7(a)(2)(i) and (ii) of the NPRM; and a new Sec. 300.313
has 
been added that clarifies the circumstances under which the DD 
designation is used, reflecting the substance of proposed 
Sec. 300.7(a)(2)(iii) and Notes 2 and 3 to this section of the
NPRM. 
Notes 2 and 3 to this section of the NPRM have been deleted.
Paragraph 
(b) of the NPRM has been redesignated as paragraph (c) in these
final 
regulations.
    Comment: A variety of comments proposing various changes in 
definitions was received regarding the terms ``deaf-blindness,'' 
``emotional disturbance,'' ``hearing impairment,'' ``multiple 
disability,'' ``speech or language impairment,'' ``mental 
retardation,'' ``orthopedic impairment,'' ``specific learning 
disability,'' ``traumatic brain injury,'' and ``visual impairment 
including blindness.'' Other commenters supported the existing 
definitions but suggested some modifications. Some commenters
stated 
that the term deaf-blindness, as defined in the NPRM, mistakenly
labels 
these children's disability as causing educational problems as if
the 
child is a burden to the system. These commenters requested that
the 
definition be amended to replace ``problems'' with ``needs''. The 
commenters made the same statement with respect to the term
``multiple 
disability.''
    Discussion: In light of the general decision not to use notes
in 
these final regulations, Note 1 to this section of the NPRM should
be 
removed. While the characteristics of ``autism'' are generally
evident 
before age three, a child who manifests characteristics of the
category 
``autism'' after age three still can be evaluated as having autism,
if 
the criteria in the definition are satisfied. Because of the
importance 
of this clarification, the definition of autism in Sec. 300.7(c)(1)

should be amended to incorporate the substance of Note 1 to this 
section of the NPRM. While there is merit to many of the proposed 
changes to definitions and terms, modifications to the substance of

existing definitions should be subject to further review and
discussion 
before changes are proposed. For example, as indicated in the
preamble 
to the NPRM (62 FR 55026-55048 (Oct 22, 1997)), the Department
plans to 
carefully review research findings, expert opinion, and practical 
knowledge over the next several years to determine whether changes 
should be proposed to the procedures for evaluating children
suspected 
of having specific learning disabilities. Any changes to the
definition 
of this term should also be considered in light of that review.

[[Page 12542]]

    As indicated in the NPRM, no substantive changes are made to
the 
definition of the term ``emotional disturbance'' in Sec.
300.7(c)(4). 
With respect to the use of the term ``emotional disturbance''
instead 
of ``serious emotional disturbance,'' the Senate and House
committee 
reports on Pub. L. No. 105-17 include the following statement:

    The Committee wants to make clear that changing the terminology

from ``serious emotional disturbance'' to ``serious emotional 
disturbance [hereinafter referred to as `emotional disturbance']'' 
in the definition of a ``child with a disability'' is intended to 
have no substantive or legal significance. It is intended strictly 
to eliminate the pejorative connotation of the term ``serious.'' It

should in no circumstances be construed to change the existing 
meaning of the term under 34 CFR Sec. 300.7(b)(9) as promulgated 
September 29, 1992. (S. Rep. No. 105-17, p. 7; H.R. Rep. No.
105-95, 
p. 86 (1997).)

    In light of the general decision not to use notes in these
final 
regulations, Note 4 to this section of the NPRM should be removed.
In 
response to suggestions of commenters, the definitions of deaf-
blindness and multiple disability should be revised to eliminate
the 
negative connotation of the language in the current definitions,
and 
the word ``needs'' should replace the word ``problems.'' However,
these 
changes, in no way, are intended to alter which children are
considered 
eligible under these categories.
    Changes: Note 1 to this section of the NPRM has been removed,
and 
the definition of ``autism'' in Sec. 300.7(c)(1) of these final 
regulations has been amended to specify that if a child manifests 
characteristics of ``autism'' after age three, the child could be 
diagnosed as having ``autism'' if the criteria in the definition of

``autism'' are satisfied. The definitions of deaf-blindness and 
multiple disability have been revised to replace ``problems'' with 
``needs.''
    Note 4 to this section of the NPRM has been removed, and the 
substance of Note 4 is reflected in the above discussion.
    Comment: A large number of commenters expressed support for 
retaining Note 5, and agreed with the clarification that attention 
deficit disorder (ADD) and attention deficit hyperactivity disorder

(ADHD) are conditions that may make a child eligible under Sec.
300.7. 
As an alternative, these and other commenters suggested that
ADD/ADHD 
be listed as examples of conditions that could make a child
eligible 
under the ``other health impairment'' category at Sec. 300.7(c)(9).
A 
few commenters requested that ADD/ADHD be specified as a separate 
disability category under these regulations. Many of these
commenters, 
parents of children with ADD/ADHD, described the tremendous
problems 
they have had, and are having, in obtaining appropriate services
for 
their children. Of particular concern to these commenters was that
ADD/
ADHD is not expressly listed in the regulations; additionally, 
commenters were concerned that discussing ADD/ADHD in a note would
not 
be adequate. One commenter noted that the regulations should
clarify 
that a disabled child needs only one, not two, disabilities in
order to 
be eligible under these regulations. A few commenters recommended
that 
schools not require an additional evaluation for a child with
ADD/ADHD 
under other health impairment once the child has been diagnosed and
has 
qualified under another disability category, noting that schools
have 
placed burdens on children and their families by requesting that
ADD/
ADHD be re-diagnosed by using different procedural qualification 
requirements when the child with ADD/ADHD moves from one qualifying

category (such as learning disabilities or emotional disturbance)
to 
the other health impairment category.
    Other commenters requested that Note 5 be deleted because it 
exceeds statutory authority and would increase the regulatory
burden on 
LEAs by giving the false impression that children with ADD/ADHD are

automatically protected by the IDEA Amendments of 1997. Some of
these 
commenters stated that children with ADD/ADHD may be eligible for 
services under the Act, and, if they are eligible, are receiving 
services, but added that it is not appropriate to enumerate in the
Act 
or regulations all conditions, e.g., Tourette's Syndrome, that may 
qualify children for special education and related services. Other 
commenters indicated that the definition of ADD/ADHD is so vague it

fits all children, and added that the most damaging potential abuse

comes from over-identification of poor and minority children who
will 
get the label and the reduced expectations that accompany it. Some 
commenters stated that the discussion in Note 5 of ``limited 
alertness'' as ``heightened alertness'' is exceptionally loose and 
could result in the largest expansion of eligible children in IDEA 
history.
    Several commenters stated that the diagnosis of ADHD/ADHD does
not 
require a medical evaluation if the disability is diagnosed by a
school 
or licensed psychologist, and the need for special education is 
determined through the eligibility process in Secs.
300.534-300.535. A 
suggestion was made by commenters that the regulations emphasize
that 
educational impact must be the basis for determining eligibility of

those children for special education because, according to
commenters, 
at least 25 percent of the children referred for evaluation, who
had 
been diagnosed medically as ADD/ADHD, were experiencing few, if
any, 
educational problems at the time of their referrals.
    Discussion: Note 5 following Sec. 300.7 was included in the
NPRM to 
reflect the Department's longstanding policy memorandum relating to
the 
eligibility of children with ADD/ADHD. However, although some of
the 
commenters who favor deleting Note 5 indicate that some children
with 
ADD/ADHD are receiving services under these regulations, experience
and 
the numerous comments received have demonstrated that the
Department's 
policy is not being fully and effectively implemented.
    It is important to take steps to ensure that children with
ADD/ADHD 
who meet the criteria under Part B receive special education and 
related services in the same timely manner as other children with 
disabilities. Therefore, the definition of ``other health
impairment'' 
at Sec. 300.7(c)(9) of these final regulations should be amended to
add 
ADD/ADHD to the list of conditions that could render a child
eligible 
under this definition, and the list of conditions in Sec.
300.7(c)(9) 
should be rearranged in alphabetical order. Following the phrase 
``limited strength, vitality or alertness,'' and prior to the
phrase, 
``that adversely affects educational performance,'' the words 
``including a child's heightened alertness to environmental stimuli

that results in limited alertness with respect to the educational 
environment'' should be added.
    These changes are needed to clarify the applicability of the 
``other health impairment'' definition to children with ADD/ADHD.
The 
clarification with respect to ``limited strength, vitality, or 
alertness'' is essential because many children with ADD/ADHD
actually 
experience heightened alertness to environmental stimuli, which
results 
in limited alertness with respect to their educational environment.
In 
light of these regulatory changes, Note 5 to this section of the
NPRM 
should be removed as a note, and other portions of Note 5 are
reflected 
in the following discussion. A child with ADD/ADHD may be eligible 
under Part B if the child's condition meets one of the disability 
categories described in Sec. 300.7, and because of that disability,
the 
child needs special education and related services. Children with
ADD/

[[Page 12543]]

ADHD are a very diverse group; some children with ADD/ADHD who are 
eligible under Part B meet the criteria for ``other health 
impairments.'' Those children would be classified as eligible for 
services under the ``other health impairments'' category if (1) the

ADD/ADHD is determined to be a chronic health problem that results
in 
limited alertness, that adversely affects educational performance,
and 
(2) special education and related services are needed because of
the 
ADD/ADHD. All children with ADD/ADHD clearly are not eligible to 
receive special education and related services under these
regulations, 
just as all children who have one of the other conditions listed
under 
the other health impairment category are not necessarily eligible 
(e.g., children with a heart condition, asthma, diabetes, and
rheumatic 
fever).
    Some children with ADD/ADHD may be eligible under other
categories, 
such as ``emotional disturbance'' (Sec. 300.7(c)(4)) or ``specific 
learning disability'' (Sec. 300.7(c)(10)) if they meet the criteria

under those categories. Regardless of what disability designation
is 
attached, children with ADD/ADHD meeting the criteria for any of
the 
listed disabilities under these regulations must receive the 
specialized instruction and related services designed to address
their 
individualized needs arising from the ADD/ADHD. No child is
eligible 
for services under the Act merely because the child is identified
as 
being in a particular disability category. Children identified as
ADD/
ADHD are no different, and are eligible for services only if they
meet 
the criteria of one of the disability categories in Part B, and
because 
of their impairment, need special education and related services.
    Other children with ADD/ADHD may have a diagnosed medical
condition 
(and need medication) but may not require any special education or 
otherwise be eligible under these regulations. These children may
be 
covered by the requirements of section 504 of the Rehabilitation
Act of 
1973 (Section 504) and its implementing regulation in 34 CFR Part
104.
    With respect to commenters' suggestions that the diagnosis of
ADD/
ADHD does not require a medical evaluation if the disability is 
diagnosed by a school or licensed psychologist, a change is not
needed 
in these regulations. Also, it would not be appropriate to make a 
change to respond to commenters' suggestion that a medical
evaluation 
is required for a child with ADD/ADHD to establish eligibility
under 
the other health impairment category. Part B does not require that
a 
particular type of evaluation be conducted to establish any child's

eligibility under these regulations; rather, the evaluation 
requirements in Secs. 300.530-300.536 are sufficiently
comprehensive to 
support individualized evaluations on a case-by-case basis,
including 
the use of professional staff appropriately qualified to conduct
the 
evaluations deemed necessary for each child.
    In accordance with these procedures, if a determination is made

that a medical evaluation is required in order to determine whether
a 
child with ADD/ADHD is eligible for services under Part B, such an 
evaluation must be conducted at no cost to the parents. In all 
instances, as is true for all children who may be eligible for
services 
under Part B, each child with ADD/ADHD who is suspected of having
a 
disability must be 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. (Sec. 300.532(g)).
    There is no requirement under these regulations that a medical 
evaluation be conducted to accomplish these assessments. Even if a 
State requires that a medical evaluation be included as part of all

evaluations to determine eligibility for the other health
impairment 
category, it must also ensure that any necessary evaluations by
other 
professionals, such as psychologists, are conducted and considered
as 
part of the eligibility determination process. Whether or not
public 
agencies will be required to conduct an additional evaluation for
a 
child with ADD/ADHD under other health impairment once the child
has 
been evaluated and has qualified under another disability category
will 
depend on whether sufficient evaluation information exists to
enable 
school district officials to ensure, consistent with Sec.
300.532(g), 
that each child is assessed in all areas of suspected disability.
    Because these determinations will necessarily depend on the 
individual needs of the child and the circumstances surrounding the

evaluation, a change is not needed.
    With respect to the concern of commenters that the most
damaging 
potential abuse from the definition will be the over-identification
of 
poor and minority children, there is no indication that children
from 
minority backgrounds have been disproportionately identified as
ADD/
ADHD even as the numbers of children in this category have
increased. 
Further, the definition of ADD/ADHD is not so loose that it could 
result in the largest expansion of eligible children in IDEA
history. 
As previously stated, many children with ADD/ADHD are not eligible 
under Part B. If appropriate evaluations are conducted in
accordance 
with Secs. 300.530-300.536, the result of the evaluations should be
the 
inclusion of only those children with ADD/ADHD who are eligible
for, 
and have an entitlement to, special education and related services 
under Part B.
    Changes: The definition of ``other health impairment'' at 
Sec. 300.7(c)(9) has been amended to add ADD/ADHD to the list of 
conditions that could render a child eligible under this
definition, 
and the list of conditions in Sec. 300.7(c)(9) has been rearranged
in 
alphabetical order. Following the phrase ``limited strength,
vitality, 
or alertness,'' and prior to the phrase, ``that adversely affects 
educational performance,'' the words ``including a child's
heightened 
alertness to environmental stimuli that results in limited
alertness 
with respect to the educational environment'' have been added to 
clarify the applicability of the other health impairment definition
to 
children with ADD/ADHD. Note 5 to this section of the NPRM has been

removed.

Day; Business Day; School Day (Sec. 300.9)

    Comment: Some commenters indicated support for the definition
of 
``day'' as written. Many commenters requested that the term be
revised 
to define ``school day'' and ``business day,'' since these are key 
terms that are used throughout the Act and regulations. Some of the

commenters recommended similar definitions of the terms, ``school
day'' 
and ``business day'' (e.g., ``school day'' means days when children
are 
attending school and ``business day'' means days when a school is
open 
for business and administrative personnel are working). One
definition 
proposed by commenters included staff development day as a school
day. 
Several commenters asked when a partial day might be considered a 
``day,'' if inservice or staff development days are considered
business 
days, and what holidays are to be used, as school districts and
States 
vary in this regard. Other commenters requested that there be no 
reference to ``calendar day'' or ``day,'' but that instead the 
definitions of ``school day'' and ``business day'' be incorporated
into 
these regulations. Some of the commenters indicated that the use of

``calendar day'' can place an impractical time standard on school 
systems when

[[Page 12544]]

actions are required and a school may not be open for business.
    Discussion: It is necessary, to avoid confusion and ensure
clarity, 
to amend the definition of ``day'' to include definitions of both 
``school day'' and ``business day.'' Both ``school day'' and
``business 
day'' are used to implement new provisions added by Pub. L. 105-17:
The 
term ``school day'' is used only with respect to discipline
procedures 
and appears in Secs. 300.121(c)(1) and (c)(2), and 300.520(a)(1)
and 
(c). The term ``business day'' is used in Secs. 300.509(b)
(Additional 
disclosure of information requirement); 300.520(b) (Authority of
school 
personnel); and 300.528(a)(1) (Expedited due process hearing). In 
addition, the phrase ``business days (including holidays that fall
on a 
business day)'' is used in Sec. 300.403(d)(1)(ii) (Placement of 
children by parents in a private school or facility if FAPE is at 
issue.)
    ``School day'' means any 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 Christmas or summer vacation) that day would be considered
to be 
a school day. However, it is expected that the term ``school day,''

including partial school day, has the same meaning for all children
in 
school, including children with and without disabilities.
    The term ``business day'' is used in the statute and
regulations in 
relation to actions by school personnel and parents. While school 
personnel could reasonably be expected to know when administrative 
staff are working, very often this information is not readily
available 
to parents, nor is it likely to be consistent from one LEA to
another, 
or from the SEA to an LEA. If ``business day'' were interpreted to
be 
days when school offices are open and administrative staff are
working, 
it could actually be impossible for parents to know with any
certainty 
the date in advance of a due process hearing on which they would
have 
to share evidence to be introduced at the hearing with the other
party 
to the hearing (see Sec. 300.509). Therefore, this term is
interpreted 
to be a commonly understood measure of time, Monday through Friday 
except for Federal and State holidays, unless holidays are
specifically 
included, as in Sec. 300.403(d)(1)(ii).
    Including definitions of ``school day'' and ``business day''
will 
reduce confusion about the meaning of these terms and should
facilitate 
meeting the various timelines in the Act and regulations.
    The definition of ``day,'' while that term was not previously 
defined in the regulations, represents the Department's
longstanding 
interpretation that the term ``day'' means calendar day. (See,
e.g., 
NPRM published August 4, 1982, 47 FR 33836-33840 describing the 30-
day 
time line from determination of eligibility to initial IEP meeting
as 
``30 calendar days.'') This interpretation is consistent with 
generally-recognized authority on statutory interpretation. (See 
Sutherland Stat. Const. Sec. 33.12 (5th Ed.)). In addition, the
statute 
itself uses three different terms, ``day,'' ``business day,'' and 
``school day,'' so it would be inappropriate to interpret ``day''
to be 
the same as either ``business day'' or ``school day.''
    Finally, altering the interpretation of ``day'' from the 
longstanding interpretation as ``calendar day'' would raise
significant 
concerns about compliance with the terms of section 607(b) of the
Act, 
especially as to timelines that affect the rights of parents and 
children with disabilities such as (1) the timeline in Sec. 300.343

(relating to holding an initial IEP meeting for a child), and (2)
the 
procedural safeguards in Subpart E, including Sec. 300.509(a)(3) 
(hearing rights--timeline for disclosure of evidence); Sec.
300.511(a) 
and (b) (timelines for hearings and reviews); and Sec. 300.562(a) 
(access rights relating to records).
    There also are other provisions in these regulations that
include 
timelines that have always been interpreted to be calendar day 
timelines--including the (1) 30-day public comment period in 
Sec. 300.282, (2) by-pass procedures under Subpart D, (3) notice
and 
hearing procedures in Secs. 300.581-300.586 that the Department
uses 
before determining that a State is not eligible under Part B, and
(4) 
60-day timeline under the State complaint procedures in Sec.
300.661. 
The majority of those timelines have been in effect since 1977,
and, in 
light of the clear distinction in the IDEA Amendments of 1997
between 
days, school days, and business days, there is no basis for
changing 
other timelines in the regulations.
    Changes: The name of the section in the NPRM has been changed
to 
``Day; business day; school day'' in these final regulations. 
Definitions of ``school day'' and ``business day'' have been added
to 
reflect the above discussion.

Educational Service Agency (Sec. 300.10)

    Comment: None.
    Discussion: The definition of ``educational service agency'' in

Sec. 300.10 of these final regulations adopts the statutory
definition 
of this term in section 602(4) of the Act. This definition replaces
the 
definition of the term ``intermediate educational unit'' (IEU) in 
Sec. 300.8 of the current regulations. The use of the term 
``educational service agency'' was not intended to exclude those 
entities that were considered IEUs under prior law. This
interpretation 
is supported by the legislative history, which makes explicit that
most 
definitions in prior law have been retained, and, where
appropriate, 
updated. S. Rep. No. 105-17 at 6., and H.R. Rep. No. 105-95 at 86.
With 
respect to ``educational service agency,'' the Reports explain that

this definition has been updated ``to reflect the more contemporary

understanding of the broad and varied functions of such agencies.''
Id.
    Although there were no comments regarding this definition, the 
application of the term ``educational service agency'' to entities 
covered under the definition of IEU in prior law has been
questioned. 
The definition of IEU did not refer explicitly to public elementary
and 
secondary schools. However, the definition of ``educational service

agency'' makes specific references to an entity's administrative 
control over public elementary and secondary school. This
definition 
could be misinterpreted as excluding from the educational service 
agency definition those entities in States that serve preschool-
aged 
children with disabilities but do not have administrative control
and 
direction over a public elementary or secondary school. Therefore,
to 
avoid any confusion about the use of this new terminology, a
statement 
should be added to the definition to clarify that the term 
``educational service agency'' includes entities that meet the 
definition of IEU in section 602(23) of IDEA as in effect prior to
June 
4, 1997.
    Changes: Consistent with the above discussion, a statement has
been 
added at the end of the definition to clarify that the definition
of 
``educational service agency'' includes entities that meet the 
definition of IEU in section 602(23) of IDEA as in effect prior to
June 
4, 1997.

Equipment (Sec. 300.11)

    Comment: One comment stated that the reference to ``books, 
periodicals, documents, and other related materials'' be deleted
from 
Sec. 300.10(b) because materials and equipment are accounted for 
differently in the budget. A few commenters recommended that the 
definition of ``equipment'' be amended to add that (1) any 
instructional or related materials be provided in accessible
formats, 
as appropriate; and

[[Page 12545]]

(2) any technological aids and services be accessible.
    Discussion: The definition of ``equipment'' is a standard
statutory 
definition that is used in most elementary and secondary education 
programs funded by the Department. Therefore, efficient
administration 
of Federal programs would not be served by revising the definition
in 
the ways suggested by the commenters. In appropriate situations,
public 
agencies are required by section 504 of the Rehabilitation Act of
1973 
and title II of the Americans with Disabilities Act (ADA) to ensure

that instructional or related materials are provided in accessible 
formats and that technological aids and services are accessible to 
students with disabilities or can be made accessible, to afford 
students with disabilities an equal opportunity to participate in
their 
programs.
    Changes: None.

General Curriculum

    Comment: Several commenters indicated support for the
definition of 
``general curriculum,'' and for the note clarifying that the term 
relates to the content of the curriculum and not the setting in
which 
it is used. Some commenters stated that, as written, the definition

should preclude any likelihood of the ``general curriculum'' being 
identified with the ``low'' track.
    Some commenters recommended that the substance of the note be 
integrated into the definition or made other suggestions to
strengthen 
the idea that the general curriculum applies to children with 
disabilities wherever they are educated. Other commenters disputed
that 
there is a ``general curriculum,'' pointing to the variety of
common 
courses offered by many school districts, the need of some children
for 
a functional life-skills curriculum or the needs of students in 
alternative programs (e.g., moderate disabilities, significant or 
profound, autism, etc.) who may be pursuing an alternative
certificate 
rather than a diploma. Other commenters requested that the
definition 
be dropped from the final regulations, because it (1) sets a
dangerous 
precedent for the Federal government to dictate what the general 
curriculum should be in each school, and (2) violates the General 
Education Provisions Act.
    Discussion: The concept of ``general curriculum'' in these 
regulations plays a crucial role in meeting the requirements of the

Act. The IDEA Amendments of 1997 place significant emphasis on the 
participation of children with disabilities in the general
curriculum 
as a key factor in ensuring better results for these children.
    The definition in Sec. 300.12 would not have imposed a national

curriculum, but only clarified what the statutory term ``general 
curriculum'' means. As the term is used throughout the Act and 
congressional report language, the clear implication is that, in
each 
State or school district, there is a ``general curriculum'' that is

applicable to all children. A major focus of the Act--especially
with 
respect to the new IEP provisions--is ensuring that children with 
disabilities are able to be involved in and progress in the
``general 
curriculum.'' For example, the Senate and House committee reports
on 
Pub. L. No. 105-17 state that--

    [t]he new focus is intended to produce attention to the 
accommodations and adjustments necessary for disabled children to 
have access to the general education curriculum and the special 
services which may be necessary for appropriate participation in 
particular areas of the curriculum due to the nature of the 
disability. (S. Rep. No. 105-17, p. 20; H.R. Rep. No. 105-95, p.
100 
(1997)).

    Even as school systems offer more choices to students, there
still 
is a common core of subjects and curriculum areas that is adopted
by 
each LEA or schools within the LEA, or, where applicable, the SEA,
that 
applies to all children within each general age grouping from
preschool 
through secondary school. Appropriate access to the general
curriculum 
must be provided. The development and implementation of IEPs for
each 
child with a disability must be based on having high, not low, 
expectations for the child.
    In light of the concerns of the commenters and the principle of

regulating only to the extent necessary, proposed Sec. 300.12
should be 
removed from the final regulations. Instead the regulations should 
emphasize the importance of the ``general curriculum'' concept in
the 
IEP provision under which the term is used.
    Changes: The definition of ``general curriculum'' in Sec.
300.12 of 
the NPRM and the note following that section of the NPRM have been 
deleted. The term is explained where it is used in Sec. 300.347 and
in 
Appendix A regarding IEP requirements.

Individualized Education Program Team (Sec. 300.16)

    Comment: None.
    Discussion: In light of the general decision not to use notes
in 
these final regulations, the note following this section of the
NPRM 
should be removed. However, it is important to clarify that the IEP

team may also serve as the placement team.
    Changes: The note following this section of the NPRM has been 
removed.

Local Educational Agency (Sec. 300.18)

    Comment: A number of commenters expressed concern about the
note on 
public charter schools following Sec. 300.17 of the NPRM, stating
that 
it provides an inadequate and too limited explanation of the 
responsibilities of those schools under these regulations (i.e., it

focuses only on public charter schools that are ``LEAs'' under
State 
law and excludes public charter schools that are defined by State
law 
as being part of an LEA).
    Some of the commenters requested that the note be modified to 
clarify that public charter schools must comply with these
regulations 
whether or not they receive Part B funds. Commenters believe that
this 
clarification is particularly important because, according to the 
commenters, services to disabled children in some public charter 
schools have been dismantled, and parents have been asked to waive 
their children's rights under Part B as a condition of enrollment
in 
the schools.
    Other commenters requested that the note be dropped and that 
Sec. 300.241 (Treatment of public charter schools and their
students) 
clarify that all charter schools must comply with the requirements
of 
Part B of the Act. The commenters added that this action would 
consolidate all public charter school requirements into one
regulatory 
provision. A few commenters requested that the regulations include
a 
provision requiring that LEAs in which charter schools are
physically 
located describe to the State how they will ensure that children
with 
disabilities receive special education and related services under
this 
part, even when the charter school is not otherwise under the 
jurisdiction of the LEA.
    Discussion: In light of the general decision not to use notes
in 
these final regulations, the note following Sec. 300.17 of the NPRM

should be removed. However, it should be pointed out that the
proposed 
note was inadequate and did not provide a full explanation of the 
responsibilities of public charter schools under these regulations.
    In light of concerns raised about how public charter schools
could 
meet their obligations to disabled students under Part B and obtain

access to Part B funds for disabled students enrolled in their
schools, 
two important provisions were included in the IDEA Amendments of
1997 
at section 613(a)(5) and (e)(1)(B).
    Some public charter schools can be LEAs if, under State law,
they 
meet the

[[Page 12546]]

Part B definition of LEA. As a result of section 613(e)(1)(B) of
the 
Act, public charter schools that are LEAs may not be required to
apply 
for Part B funds jointly with other LEAs, unless explicitly
permitted 
to do so under the State charter school statute. However, in many 
instances, charter schools are schools within LEAs. If this is so, 
section 613(a)(5) of the Act provides that the LEA of which the
public 
charter school is a part must serve those disabled students
attending 
public charter schools in the same manner as it serves students
with 
disabilities in its other public schools and must provide Part B
funds 
to charter schools in the same manner that it provides Part B funds
to 
other public schools.
    Still, in other instances, due to the provisions in States'
charter 
school statutes, some public charter schools are not considered
LEAs or 
a school within an LEA. In such instances, the SEA would have
ultimate 
responsibility for ensuring that Part B requirements are met. 
Regardless of whether a public charter school receives Part B
funds, 
the requirements of Part B are fully applicable to disabled
students 
attending those schools. The legislative history of the IDEA
Amendments 
of 1997 makes explicit that Congress ``expects that public charter 
schools will be in full compliance with Part B.'' See S. Rep. No.
105-
17 at 17; H.R. Rep. No. 105-95 at 97.
    Therefore, based on the concerns expressed by commenters and
for 
the reasons clarified in the above discussion, it is determined
that 
(1) the definition of LEA should be amended to clarify that the
term 
``LEA'' includes a public charter school established as an LEA
under 
State law; (2) the provision in Sec. 300.241 (Treatment of charter 
schools and their students) should be retained in these final 
regulations; and (3) a new Sec. 300.312, entitled ``Children with 
disabilities in public charter schools,'' should be added to these 
final regulations.
    The new section makes clear that children with disabilities and

their parents retain all rights under these regulations and that 
compliance with Part B is required regardless of whether a public 
charter school receives Part B funds. Thus, charter school
personnel, 
for example, may not ask parents to waive their disabled child's
right 
to FAPE in order to enroll their child in the charter school. This
new 
section also would address the responsibilities of (1) public
charter 
schools that are LEAs, (2) LEAs if a charter school is a school in
the 
LEA, and (3) the SEA if a charter school is not an LEA or a school
in 
an LEA.
    Changes: The note has been removed. The definition of LEA has
been 
amended by adding after ``secondary school'' the words ``including
a 
public charter school that is established as an LEA under State
law.'' 
A new Sec. 300.312 has been added to further address the treatment
of 
charter schools.

Native Language (Sec. 300.19)

    Comment: Some commenters requested that, in item (1) under the 
note, the Department change ``child'' to ``student''; add
``combination 
of languages'' used by the student; and add ``in the home and
learning 
environments.'' A few commenters requested additional specificity
in 
item 2 to clarify that the mode of communication used should be
that 
used by the individual.
    Discussion: In light of the general decision not to use notes
in 
these final regulations, the note following Sec. 300.18 of the NPRM

should be removed. However, it is critical that public agencies
take 
the necessary steps to ensure that the needs of disabled children
with 
limited English proficiency (LEP) are adequately addressed. The
term 
``native language'' is used in the prior notice, procedural
safeguards 
notice, and evaluation sections: Secs. 300.503(c), 300.504(c), and 
300.532(a)(1)(ii).
    In light of concerns of commenters and the need to ensure that
the 
full range of the needs of children with disabilities whose native 
language is other than English is appropriately addressed, the 
definition of ``native language'' in the NPRM should be expanded in

these final regulations to clarify that (1) in all direct contact
with 
the child (including evaluation of the child), communication would
be 
in the language normally used by the child and not that of the
parents, 
if there is a difference between the two; and (2) for individuals
with 
deafness or blindness, or for individuals with no written language,
the 
mode of communication would be that normally used by the individual

(such as sign language, Braille, or oral communication).
    These changes to the regulatory definition of ``native
language'' 
should enhance the chances of school personnel being able to 
communicate effectively with a LEP child in all direct contact with
the 
child, including evaluation of the child.
    Changes: The definition of ``native language'' in the NPRM has
been 
amended to reflect the concepts contained in the note following
that 
definition, and the note has been removed.

Parent (Sec. 300.20)

    Comment: Several commenters indicated that (1) based on the 
definition of ``parent'' in the NPRM, States would be required to 
change their laws to include foster parents under the State
definition 
of ``parent,'' and (2) language should be added to the NPRM so that

foster parents can serve as parents, unless prohibited from doing
so 
under State law.
    These and other commenters also requested that
    (1) the language in the note be included in the text of the 
regulations;
    (2) a provision be added to the effect that the public agency
must 
continue to afford the natural parents all protections of this part
if 
their rights to make educational decisions have not been
extinguished, 
even if the child does not live with the natural parents and even
if 
other persons appear to be acting as the child's parents;
    (3) the legal parent have the authority, not a grandparent or
other 
person, unless parental authority is extinguished;
    (4) ``legal'' be added in front of ``guardian''; and
    (5) all references to ``parent'' in these regulations be
changed to 
``the child's parent.'' Some commenters felt that the note created
a 
problem for school districts because a situation often arises where
a 
child is living with a person acting as a parent, while the natural

parents are still involved and have not had their rights
terminated, 
and requested clarification for school districts in these
situations.
    Discussion: States should not have to amend their laws relating
to 
parents in order to treat ``foster parents'' as parents. Therefore,

conditional language in this regard is necessary if State law
prohibits 
a foster parent from acting as a parent. This change would
accomplish 
the intended effect of the provision (i.e., acknowledging that in
some 
instances foster parents may be recognized as ``parents'' under the

Act) without adding any burden to individual States whose State 
statutory provisions relating to parents expressly exclude foster 
parents.
    In light of the general decision not to use notes in these
final 
regulations, the note following this section of the NPRM should be 
removed, but the substance of the note on foster parents should be 
added to the text of the regulations. Under these regulations, the
term 
``parent'' is defined to include persons acting in the place of a 
parent, such as a grandparent or stepparent with whom the child
lives, 
as well as persons who are legally responsible for a child's

[[Page 12547]]

welfare, and, at the discretion of the State, a foster parent who
meets 
the requirements in paragraph (b) of this section. Commenters'
concerns 
related to ensuring that the rights of natural parents are
protected in 
a case in which a disabled child is living with a person acting as
a 
parent, or providing that the parent retain authority even if a
child 
is living with a grandparent, raise questions that the Department
has 
traditionally held best to be left to each State to decide as a
matter 
of family law.
    It is not necessary to add ``legal'' before the word
``guardian'' 
since the statute regarding the term ``parent'' at section
602(19)(A) 
merely notes that it includes a legal guardian. A legal guardian
would 
be considered to meet the regulatory definition of ``parent''. The 
regulatory definition of ``parent'' has always included more than
just 
the term identified in the statute. An inclusive definition of
parent 
benefits public agencies by reducing the instances in which the
agency 
will have to bear the expense of providing and appointing a
surrogate 
parent (see Sec. 300.515) and benefits children with disabilities
by 
enhancing the possibility that a person with ongoing day-to-day 
involvement in the life of the child and personal concerns for the 
child's interests and well-being will be able to act to advance the

child's interests under the Act.
    Regarding the use of the reference to the child's parent, no
change 
is needed since it is implicit that the rights under Part B are 
afforded to a child with a disability and his or her parents, as 
defined under these regulations.
    Changes: The note following the definition of ``parent'' in the

NPRM has been removed; and the substance of the note has been
reflected 
in the above discussion. The definition of ``Parent'' in these
final 
regulations has been amended to permit States in certain
circumstances 
to use foster parents as parents under the Act without amending 
relevant State statutes.

Public Agency (Sec. 300.22)

    Comment: Some commenters requested that the definition of
``public 
agency'' be amended to include ``charter schools'' that are created

under State law and are the recipients of public funds, because as 
proposed, a public agency would not include any charter school that
is 
not an LEA or most of the nation's existing charter schools. Other 
commenters stated that, in order to support the provision on
assistive 
technology under Sec. 300.308, the definition of ``public agency''
must 
be amended to include other State agencies, since the proposed 
definition of ``public agency'' includes only the SEA, not other
State 
agencies which arguably could be used to try to circumvent
financial 
responsibility based on this omission.
    Discussion: Public charter schools that are not otherwise
included 
as LEAs or ESAs and are not a school of an LEA or ESA should be
added 
to the definition of ``public agencies'' in order to ensure that
all 
public entities responsible for providing education to children
with 
disabilities are covered. However, the definition of ``public
agency'' 
should not be amended to address financial responsibility for
assistive 
technology. If another State agency is responsible for providing 
education to children with disabilities, it is already included in
the 
definition of ``public agency.'' Other State agencies, not
responsible 
for educating children with disabilities, should not be held to the

requirements imposed on public agencies by these regulations
because 
they are not agencies with educational responsibilities.
    Changes: Public charter schools as discussed previously has
been 
added to the list of examples of a ``public agency'' in Sec.
300.22.

Qualified Personnel (Sec. 300.23)

    Comment: Numerous commenters stated that the definition of 
``qualified'' should be renamed ``qualified personnel,'' updated to
the 
highest standard, and should be cross-referenced to the exception
to 
the maintenance of effort provision'' in the regulations. Some 
commenters requested that the definition be changed to link the
term 
``qualified'' to the statutory and regulatory provisions on
personnel 
standards, i.e., the SEA standards that are consistent with any
State 
approved or recognized certification, licensing, registration, or
other 
comparable requirements based on the highest requirements in the
State 
applicable to the profession or discipline in which a person is 
providing special education or related services. These commenters
also 
stated that the more detailed definition is important to ensure
that, 
under the exception to maintenance of effort in Sec. 300.232,
qualified 
lower-salaried staff who replace higher-salaried staff have met the

highest requirements in the State consistent with Sec. 300.136.
    Other commenters, with similar recommendations, requested that
the 
name of the section be changed to ``Qualified professionals and 
qualified personnel,'' and that a note be added to explain the
basis 
and importance of qualified professionals. Several commenters
requested 
that the definition be amended to require that personnel providing 
services to limited English proficient students meet SEA
requirements 
for bilingual specialists in the language of the child or student.
    Some commenters requested that the regulations be clarified to 
address qualifications for interpreters serving children who are
deaf 
or have hearing impairments.
    Discussion: It is appropriate to change the title of this
section 
of these final regulations to ``qualified personnel.'' This change
is 
consistent with the importance of ensuring that all providers of 
special education and related services, including interpreters,
meet 
State standards and Part B requirements.
    In order for interpreters to provide appropriate instruction or

services to children with disabilities who require an interpreter
in 
order to receive FAPE, States must ensure that these individuals
meet 
appropriate State qualification standards.
    It is not necessary to refer to Sec. 300.136, as the definition

already specifies that the person must meet State-approved or 
recognized requirements. Section 300.232 (exception to maintenance
of 
effort), uses the term ``qualified'' in referring to the
replacement of 
higher-salaried personnel by qualified lower-salaried personnel. 
Therefore it would be unnecessary and redundant to include a
reference 
to that section.
    The definition of ``qualified personnel'' is sufficiently broad
to 
encompass the qualifications of bilingual specialists, and no
further 
changes are required in this definition.
    Changes: The name of this section has been changed to
``Qualified 
personnel,'' and a corresponding reference to ``qualified
personnel'' 
has been included in the text of the definition.

Related Services (Sec. 300.24)

    Comment: A number of comments were received relating to the
general 
definition of ``related services'' under Sec. 300.22(a) of the
NPRM, 
and to Note 1 following that section of the NPRM. These comments 
included revising Sec. 300.22(a) consistent with the definition in
the 
statute, and adding services to the definition of related services;
for 
example, assistive technology devices and services, school nursing 
services, travel training, and educational interpreter services.
Some 
of these commenters stated that interpreter services are of utmost 
importance for deaf students to succeed in the educational setting
and 
are essential for hearing impaired students to function in the 
mainstream. A few

[[Page 12548]]

commenters requested that ``qualified sign language interpreting''
be 
added, including the definition of the term from the ADA.
    One commenter stated that a note should be added that related 
services not only can be used to ameliorate the disability but also
to 
work toward independence and employability.
    Several commenters recommended that changes be made in Note 1.
Some 
of the commenters expressed concern about adding additional
services 
(travel training, nutrition services, and independent living
services) 
to an already lengthy list of services. Some commenters requested
that 
the note be deleted because it is too expansive, or that the 
parenthetical phrase in the first paragraph be dropped because the 
listing is confusing without some further explanation or
clarification. 
One comment stated that the menu of related services suggests that
a 
disabled child might need all of the listed services. Other
commenters 
stated that inclusion of terms such as dance therapy and nutrition
is 
confusing, and that further clarification is needed as to how they
are 
``related'' to the student's access to special education and to
making 
progress in the general curriculum.
    Some commenters requested that ``artistic and cultural
programs'' 
be deleted from the parenthetical statement in Note 1, stating (for

example) that (1) these programs are areas of the curriculum and
not 
related services (i.e., they are not necessary for a child to
benefit 
from special education), and (2) ensuring that disabled children
have 
an equal opportunity to participate in the type of cultural
activities 
available to all children is different than considering those
programs 
to be a related service ``therapy'' that implies specific
certification 
requirements in many sectors.
    A number of commenters requested that the statement that 
psychological testing might be done by qualified psychological 
examiners, psychometrists, or psychologists depending on State 
standards be deleted from the second paragraph of Note 1. One
comment 
stated that there is no national standard for this role, and thus
it 
conflicts with evaluation requirements and personnel standards.
Other 
commenters recommended that the third paragraph in Note 1 be
amended to 
provide that the activities do not act to reduce the amount of the 
service specified by any child's IEP as necessary for FAPE.
    Discussion: In light of the general decision not to use notes
in 
these final regulations, Note 1 following this section of the NPRM 
should be removed, but the substance of the note is reflected in
the 
following discussion. All related services may not be required for
each 
individual child. As under prior law, the list of related services
is 
not exhaustive and may include other developmental, corrective, or 
supportive services (such as artistic and cultural programs, art, 
music, and dance therapy) if they are required to assist a child
with a 
disability to benefit from special education in order for the child
to 
receive FAPE. Therefore, if it is determined through the Act's 
evaluation and IEP requirements that a child with a disability
requires 
a particular supportive service in order to receive FAPE,
regardless of 
whether that service is included in these regulations, that service
can 
be considered a related service under these regulations, and must
be 
provided at no cost to the parents.
    The IEP process in Secs. 300.340-300.350, and the evaluation 
requirements in Secs. 300.530-300.536, are designed to ensure that
each 
eligible child under Part B receives only those related services
that 
are necessary to assist the child to benefit from special
education, 
and there is nothing in these regulations that would require every 
disabled child to receive all related services identified in the 
regulations, as suggested by some commenters.
    Commenters' suggestions that the second paragraph of Note 1 to
this 
section of the NPRM is no longer needed should be addressed. The 
statement in Note 1--that ``psychological testing might be done by 
qualified psychological examiners, psychometrists, or psychologists

depending on State standards''--should not be retained, since
States 
must establish their own qualification standards for persons
providing 
special education and related services. Therefore, State standards 
would govern which individuals should administer these tests, 
consistent with Part B evaluation requirements.
    As stated in the discussion under Secs. 300.5 and 300.6 of this

analysis, assistive technology devices and services may already be 
considered a related service. Therefore, it is not necessary to add

assistive technology devices and services to the list of related 
services defined in this section. Second, because ``school health 
services'' is currently defined as services provided by a
``qualified 
school nurse'' or other qualified person, there is no reason to
address 
further the issue of ``school nurses'' or school nursing services. 
Third, although interpreter services for children with hearing 
impairments are not specifically mentioned in the definition of
related 
services, those services have been provided under these regulations

since the initial regulations for Part B were issued in 1977. (See
also 
discussion under Qualified personnel).
    Regarding commenters' suggestions that related services are 
required not only to ameliorate the disability but to provide 
preparation for employment, a change is not needed. The Act's 
transition services requirements are sufficiently broad to
facilitate 
effective movement from school to post-school activities, and if
deemed 
appropriate by the IEP team, these transition services could be 
identified as related services for an individual student.
    Changes: Note 1 following the definition of ``related
services'' in 
the NPRM has been removed.
    Comment: A number of commenters requested changes in the 
definitions of specific terms defined in the definition of
``related 
services,'' as follows:
    Some commenters recommended that the definition of
``audiology'' be 
modified to include functions that are not contained in the current

definition. Some commenters requested that the definition of 
``occupational therapy'' be amended to add language to ensure that 
occupational therapy services are provided by qualified
occupational 
therapists or occupational therapy assistants to ensure that those 
services can assist children to participate in the general
curriculum, 
and achieve IEP/IFSP goals.
    A number of commenters recommended that the final regulations 
clarify that orientation and mobility services may be required by 
children with other disabilities, and that the services may be
provided 
by personnel with different qualifications other than those serving

persons who are blind or visually impaired. Other commenters
requested 
that (1) the term ``qualified personnel'' should be deleted because

using this term in this definition creates personnel problems for
rural 
areas and for many urban settings, that orientation and mobility 
personnel are not used for all purposes listed, and not every State
has 
a classification called orientation and mobility specialist; and
(2) 
the option of providing orientation and mobility services in a 
student's home would apply to students who may not be home-schooled
and 
would violate the least restrictive environment requirements of the

Act.
    Several comments were also received on Note 2 (relating to 
orientation and mobility services and travel training). Some
commenters 
requested that travel training be added as a separate related
service 
with its own definition. The definition would be based on, or

[[Page 12549]]

incorporate, the language from Note 2 relating to travel training. 
Other commenters suggested that it would be more accurate to refer
to 
this type of training as mobility training.
    A number of commenters requested that Note 2 be deleted because
it 
was too expansive. Other commenters stated that (1) all references
to 
travel training be dropped, since the term is not defined or even 
mentioned in the statute; (2) Note 2 expands services beyond the 
statute and will make orientation and mobility services extremely 
expensive and adversarial by requiring new personnel that are not 
available in rural areas and many urban areas; (3) Note 2 should
not 
require a deliverable standard against which a school system might
be 
held liable; and (4) travel training may be appropriate for other 
children with disabilities, but orientation and mobility
specialists 
are not the personnel to provide these services.
    With respect to parent counseling and training, commenters 
recommended that (1) the title be changed to ``Parental training'' 
because the definition describes training, and schools cannot
counsel 
parents as a related service; and (2) a training element be added
at 
the end of the definition, to provide for assisting parents to
acquire 
the necessary skills to help support the implementation of their 
child's IEP or IFSP. Other commenters proposed a specific
definition of 
parent counseling and training that would emphasize helping parents
to 
acquire the necessary skills to support the implementation of their

child's IEP or IFSP. Another commenter recommended adding a note
that 
training may include training in sign language or other forms of 
communication.
    Several commenters requested that the definition of ``school
health 
services'' at Sec. 300.22(b)(12) of the NPRM be expanded to 
specifically include health care services that are not curative or 
treatment oriented, such as suctioning, gastronomy, tube feeding,
blood 
sugar testing, catheterization, and administration of medication.
    A few commenters requested that the definition of ``school
health 
services'' be amended to add the three-part test adopted by the
United 
States Supreme Court in Irving Independent School District v.
Tatro, 
484 U.S. 883 (1984). In Tatro, the Court stated that services
affecting 
both the educational and health needs of a child must be provided
under 
IDEA if: (1) The child is disabled so as to require special
education; 
(2) the service is necessary to assist a disabled child to benefit
from 
special education (thus, services which could be provided outside
the 
school day need not be provided by the school, regardless of how
easily 
a school could provide them); and (3) a nurse or other qualified
person 
who is not a physician can provide the service. The commenters
believe 
that by stating the Tatro holding in the regulation, longstanding 
Department policy would be formalized and litigation would
decrease. 
Other commenters requested that the regulations clarify that 
specialized school health services should not be improperly or 
dangerously performed by individuals who lack the requisite
training 
and supervision.
    Discussion: The definition of ``audiology'' should not be
amended 
since the changes suggested by commenters are more than technical 
changes, and thus would require further study and regulatory
review. 
However, in response to suggestions of commenters, it is
appropriate to 
modify the definition of ``occupational therapy'' to make it clear
that 
this term encompasses services provided by a qualified occupational

therapist. This makes the definition generally consistent with the 
other related service definitions. It is not necessary to
incorporate 
the term ``certified occupational therapy assistant,'' because the 
option of using paraprofessionals and assistants to assist in the 
provision of services under these regulations is addressed in 
Sec. 300.136(f).
    As stated by the commenters, some children with disabilities
other 
than visual impairments need travel training if they are to safely
and 
effectively move within and outside their school environment, but
these 
students (e.g., children with significant cognitive disabilities)
do 
not need orientation and mobility services as that term is defined
in 
these regulations. ``Orientation and mobility services'' is a term
of 
art that is expressly related to children with visual impairments,
and 
includes services that must be provided by qualified personnel who
are 
trained to work with those children. No further changes to the 
definition of ``orientation and mobility services'' are needed,
since 
the definition as written does not conflict with the Act's least 
restrictive environment requirements.
    For some children with disabilities, such as children with 
significant cognitive disabilities, ``travel training'' is often an

integral part of their special educational program in order for
them to 
receive FAPE and be prepared for post-school activities such as 
employment and independent living. Travel training is important to 
enable students to attain systematic orientation to and safe
movement 
within their environment in school, home, at work and in the
community. 
Therefore, the definition of ``special education'' should be
amended to 
include a provision relating to the teaching of travel training, as

appropriate, to children with significant cognitive disabilities,
and 
any other disabled children who require such services. The
regulations 
should not substitute the term ``mobility training,'' since the 
legislative history (S. Rep. No. 105-17, p. 6; H.R. Rep. No.
105-95, p. 
86) recognizes that ``orientation and mobility'' services are
generally 
recognized as for blind children while children with other
disabilities 
may need travel training. In light of this regulatory change, Note
2 
following this section of the NPRM should be removed.
    The definition of ``parent counseling and training'' should be 
changed to recognize the more active role acknowledged for parents 
under the IDEA Amendments of 1997 as participants in the education
of 
their children. Parents of children with disabilities are very 
important participants in the education process for their children.

Helping them gain the skills that will enable them to help their 
children meet the goals and objectives of their IEP or IFSP will be
a 
positive change for parents, will assist in furthering the
education of 
their children, and will aid the schools as it will create 
opportunities to build reinforcing relationships between each
child's 
educational program and out-of-school learning.
    For these reasons, the definition of ``parent counseling and 
training'' should be changed to include helping parents to acquire
the 
necessary skills that will allow them to support the implementation
of 
their child's IEP or IFSP. This change is in no way intended to 
diminish the services that were available to parents under the
prior 
definition in these regulations.
    It is not necessary to modify the definition of ``school health

services'' in the NPRM to add more specificity because the current 
definition requires provision of health services, including those 
addressed by the comments, if they can be provided by a qualified
nurse 
or other qualified individual who is not a physician, and the IEP
team 
determines that any or all of the services are necessary for a
child 
with a disability to receive FAPE. The commenters' description of
the 
holding in the Tatro decision is consistent with the Department's 
longstanding interpretation regarding school health services.

[[Page 12550]]

    In any case, the list of examples of related services in 
Sec. 300.22 is not exhaustive, and other types of services not 
specifically mentioned may be required related services based on
the 
needs of an individual child. The only type of service specifically

excluded from ``related services'' are medical services that are
not 
for diagnostic and evaluation purposes. ``Medical services,'' has 
always been defined by the regulations as services provided by a 
physician. The regulations already make clear that providers of
school 
health services, as is the case for providers of special education
and 
related services in general, must be qualified consistent with 
Secs. 300.23 and 300.136 of these regulations.
    Changes: Consistent with the above discussion, the definitions
of 
``occupational therapy'' at Sec. 300.24(b)(5) of these final 
regulations and ``parent counseling and training'' at Sec.
300.24(b)(7) 
of these final regulations have been revised; Note 2 has been
deleted; 
and a reference to travel training has been added under Sec. 300.26

(Special education).
    Comment: Numerous comments were received relating to 
``psychological services.'' Many of these comments addressed the
role 
of school psychologists under this part (e.g., stating that a 
psychologist should be a member of the evaluation team, be involved
in 
IEP meetings, and conduct behavioral assessments). A few commenters

recommended that ``other mental health services'' be added at the
end 
of proposed Sec. 300.22(b)(9)(v), stating that this would ensure
that 
schools use, and families have access to, a variety of strategies
and 
interventions that go beyond psychological counseling. The
commenters 
added that children and families have been denied these necessary 
mental health services because these services are not specifically 
stated.
    Some commenters expressed concern about the provision in the
NPRM 
that designated school psychologists and school social workers as
the 
personnel responsible for assisting in the development of positive 
behavioral interventions and strategies for IEP goal development.
These 
commenters stated that, although psychologists and school social 
workers may participate in actions relating to student behavior,
this 
function is too critical to be listed under a specific category of 
related services. A few of these commenters stated that
specifically 
linking development of positive behavioral interventions and
strategies 
could be interpreted narrowly and result in excluding a broad array
of 
other professionals (such as school counselors and teachers) who
may 
know the students best. A number of commenters favored retaining
the 
provision in the NPRM. One commenter recommended that the
regulations 
be clarified to include an explicit ban on the use of aversive
behavior 
management strategies under this part.
    A few commenters requested that the definition of
``recreation'' in 
proposed Sec. 300.22(b)(10) be eliminated. One commenter indicated
that 
the definition will overreach the intent of IDEA. Others stated
that 
(1) the services listed would add costs to IDEA as well as 
administrative burden because those services would be difficult to 
arrange and schedule, and (2) participation in community-based 
recreation is a family responsibility. A few commenters requested
that 
the definition of rehabilitation counseling be amended to add that 
counseling should be provided on the basis of individual need and
not 
on a specific disability category. The commenters stated that
because 
vocational rehabilitation was provided under the transition grants
for 
students with significant disabilities, some school systems
consider 
vocational rehabilitation for these students only.
    Some commenters also recommended that the definition of
``social 
work services in schools'' be broadened to include individual and
group 
counseling and other mental health services. A few commenters
requested 
that proposed Sec. 300.22(b)(13)(iii) be revised to require that
school 
social work services include working in partnership with parents on

those problems in a child's living situation (home, school and 
community) that affect the child's adjustment in school. Other 
commenters requested that a new paragraph (vi) be added to the list
of 
functions relating to working with classrooms of children to help 
students with disabilities develop or improve social skills, self 
esteem, and self confidence. (See also the comment and discussion
under 
``psychological services'' related to the role of psychologists and

social workers in the development of positive behavioral
interventions 
and strategies for IEP goal development.)
    One commenter recommended that the function ``Provision of
speech 
and language services for the habilitation or prevention of 
communication impairments'' be deleted from proposed 
Sec. 300.22(b)(14)(iv), because it includes vague language, making
the 
program more litigious and more difficult to administer.
    Discussion: The definition of ``psychological services'' in the

NPRM is sufficiently broad to enable psychologists to be involved
in 
the majority of activities described by commenters, and, therefore,
the 
definition should not be revised to add other, more specific
functions.
    Nor is there a need to make substantive changes to the
definition 
of ``social work services in schools.'' Although psychologists (and

school social workers) may be involved in assisting in the
development 
of positive behavioral interventions, there are many other
appropriate 
professionals in a school district who might also play a role in
that 
activity. The standards for personnel who assist in the development
of 
positive behavioral interventions will vary depending on the 
requirements of the State. Including the development of positive 
behavioral interventions in the descriptions of potential
activities 
under social work services in schools and psychological services 
provide examples of the types of personnel who assist in this
activity. 
These examples of personnel who may assist in this activity are not

intended to imply either that school psychologists and social
workers 
are automatically qualified to perform these duties or to prohibit 
other qualified personnel from serving in this role, consistent
with 
State requirements.
    Regarding the comment requesting clarification to impose a ban
on 
aversive behavior under this part, the new requirements in section 
614(d)(3)(B)(i) of the Act are sufficient to address this concern
by 
strengthening the ability of the IEP team to address the need for 
positive behavioral interventions in appropriate situations. Under 
these new requirements, the IEP team must ``consider, if
appropriate, 
including in the IEP of a student whose behavior impedes his or her

learning or that of others, strategies, including positive
behavioral 
interventions, strategies, and supports to address that behavior.''

These new requirements are sufficiently broad to address the 
commenter's concerns. In meeting their obligations under section 
614(d)(3)(B)(i) of the Act, public agencies must ensure that
qualified 
personnel are used, and may select from a variety of staff for this

purpose.
    The definition of ``social work services in schools'' should
not be 
expanded to include group counseling and other mental health
services, 
since under the definition as written, social workers could provide

these services if doing so would be consistent with State standards
and 
the students required such services in order to receive FAPE.
However, 
the technical change in Sec. 300.22(b)(13)(iii) should be made to 
clarify that school social workers work

[[Page 12551]]

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. The current definition is sufficiently broad
to 
enable school social workers to help disabled students work on
social 
skills.
    Recreation should not be deleted from the list of related
services. 
This is a statutory provision that has been defined in the
regulations 
since 1977.
    The commenters' request relating to ``rehabilitation
counseling'' 
(i.e., to add clarification that it should be provided based on 
individual need) is generally the case with all related services. 
Adding a specific limitation to rehabilitation counseling could 
inappropriately suggest that other services are to be provided
without 
regard to individual need.
    The definition of ``speech-language pathology services'' should
not 
be revised. This is a longstanding definition that is useful to 
qualified speech-language pathologists who provide services to
children 
with disabilities under these regulations.
    Changes: A technical change has been made to the definition of 
``social work services in schools.''
    Comment: A few commenters supported Note 3 (relating to the use
of 
paraprofessionals). Some commenters recommended that the note be 
amended by requiring proper training and supervision in the areas
in 
which paraprofessionals are providing services.
    Commenters also stated that the regulations must (1) ensure
parents 
know which services are provided by paraprofessionals; (2) clarify
the 
service limitations of paraprofessionals; (3) prohibit any
independent 
development, substantive modification or unapproved provision of 
services independent of the supervising related services
professional; 
(4) ensure that paraprofessionals are not used for IEP decision-
making 
activities or development or revisions of the child's interventions
or 
IEP; and (5) ensure these precautions are part of the policy 
requirements of Sec. 300.136(f).
    Other commenters requested that paraprofessionals who assist in

providing speech-language pathology services must be supervised by
a 
person who meets the highest requirements in the State for that 
discipline.
    Discussion: In light of the general decision not to use notes
in 
these final regulations, Note 3 following this section should be 
removed. When paraprofessionals are used to assist in the provision
of 
special education and related services under these regulations,
they 
must be appropriately trained and supervised in accordance with
State 
standards. Since concerns raised by commenters about the use of 
paraprofessionals and assistants are addressed in the analysis of 
comments under Sec. 300.136(f) of this attachment, it is not
necessary 
to make further changes to this section.
    Changes: Note 3 to this section of the NPRM has been removed.
    Comment: Several comments were received on Note 4 relating to
the 
definition of ``transportation.'' Some commenters recommended that
the 
note be revised to include accommodations to achieve integrated 
transportation, including providing appropriate training to 
transportation providers, such as bus drivers, and including the
use of 
aids.
    A few commenters stated that the second sentence in Note 4
implies 
that there is no limit to the adaptations that a school must make
to 
bus equipment to afford a disabled child an opportunity to ride the

regular bus. The commenters added that (1) the IEP team must retain
the 
authority to determine the appropriate mode of transportation based
on 
child's needs and financial and logistical burdens of various
options, 
and (2) as with other related services, transportation must only be

provided to assist a child with disabilities to benefit from
special 
education.
    A number of commenters stated that transportation
accommodations 
are an LRE issue and, as such, should be determined by each child's
IEP 
team. These commenters added that accommodations also should be 
addressed through section 504 and the ADA, and recommended that the

note be deleted. Another commenter recommended the need to clarify 
public agency responsibility to provide necessary transportation to

disabled children even if that transportation is not provided to 
nondisabled children.
    Other commenters also recommended that Note 4 be deleted. One 
commenter stated that the note goes beyond the statute and adds
costs 
in an outrageous extension of Federal authority. Another commenter 
stated that the note could lead school districts to conclude that
they 
had to buy specialized equipment (e.g., lifts) for even more of
their 
buses in order to provide integrated transportation, a concept
found 
nowhere in the Act.
    Discussion: In light of the general decision not to use notes
in 
these final regulations, Note 4 to this section of the NPRM should
be 
deleted. In response to concerns of commenters, each disabled
child's 
IEP team must be able to determine the appropriate mode of 
transportation for a child based on the child's needs. That team
makes 
all other decisions relating to the provision of special education
and 
related services; and transportation is a specific statutory
service 
listed in the definition of related services.
    It is assumed that most children with disabilities will receive
the 
same transportation provided to nondisabled children, unless the
IEP 
team determines otherwise. However, for some children with 
disabilities, integrated transportation may not be achieved unless 
needed accommodations are provided to address each child's unique 
needs. If the IEP team determines that a disabled child requires 
transportation as a related service in order to receive FAPE, or 
requires accommodations or modifications to participate in
integrated 
transportation with nondisabled children, the child must receive
the 
necessary transportation or accommodations at no cost to the
parents. 
This is so, even if no transportation is provided to nondisabled 
children.
    As with other provisions in these regulations relating to
qualified 
personnel, all personnel who provide required services under this
part, 
including bus drivers, must be appropriately trained.
    Changes: Note 4 to this section of the NPRM has been removed,
the 
substance of Note 4 is reflected in the above discussion, and it is

further discussed in Appendix A of these final regulations.

Special Education (Sec. 300.26)

    Comment: Some commenters requested that, in implementing the
IEP 
for disabled students in school-funded placements outside of the
school 
district, the cost of trips, phone calls, and other expenses
incurred 
by parents should be covered. Some commenters stated that they are
not 
reimbursed for official long-distance phone calls made regarding
their 
child's needs or for trips to attend special IEP meetings.
According to 
a commenter, one district will pay for the cost of driving the
student 
to school, but not for the cost of the return trip of the parents.
    Several commenters requested that the definition of ``physical 
education'' in proposed Sec. 300.24(b)(2)(ii) be amended to change 
``adaptive'' to ``adapted,'' because the term was used in the
original 
regulations, and no rationale has been provided for changing it.
    Some commenters expressed support for the definition of
``specially 
designed instruction'' as written, while other

[[Page 12552]]

commenters expressed support with modification. Other commenters
took 
exception to the definition, characterizing it as overly
prescriptive. 
Other commenters recommended dropping the reference to methodology,

citing case law and the legislative history in support of their
view 
that methodology should not be included in this definition.
    A few commenters stated that the definition of ``vocational 
education'' in proposed Sec. 300.24(a)(3) was not complete, and 
requested that it be amended to comply with the definition in the
Carl 
D. Perkins Vocational and Applied Technology Education Act. Other 
commenters objected to including ``vocational education'' within
the 
definition of ``special education,'' asserting that there is no 
statutory authority to do so. Other commenters recommended that
some 
minor modifications be made to the current definition.
    A few commenters requested that the regulations clarify the 
difference between accommodations that do not change the content of
the 
curriculum and modifications that do change it. Other commenters 
requested that access to the general curriculum be to the maximum 
extent appropriate for the child. A few commenters recommended
adding 
clarifying language to accommodate the distinction between
providing 
disabled students with a meaningful opportunity to meet the
standards 
and actually meeting the standards, and stated that the Act
recognizes 
this distinction by referencing involvement and progress in the
general 
curriculum.
    Some commenters supported the note to proposed Sec. 300.24
(that a 
related services provider may be a provider of specially designed 
instruction if State law permits). Other commenters stated that the

note should be deleted to eliminate the possibility that
individuals 
may interpret it to mean that the term ``child with a disability,''
as 
defined under proposed Sec. 300.7, might include children who need
only 
a related service.
    Discussion: It is not necessary to revise the definition of
``at no 
cost'' under paragraph (b)(1) of this section, since that
definition 
already addresses the comment relating to the cost of trips, phone 
calls, and other expenses incurred by parents of disabled children
when 
those children are placed outside the school district by a public 
agency. If the school district places the child, and the IEP team 
determines that the costs of phone calls and trips are relevant to
the 
student's receipt of FAPE, the public agency placing the child
would be 
expected to pay for such expenses.
    Paragraph (b)(2) concerning ``physical education'' should be 
amended to substitute the word ``adapted'' for the word
``adaptive,'' 
since this is the term that was in the original regulations.
    With regard to the definition of ``specially designed 
instruction,'' some changes should be made. The committee reports
to 
Pub. L. 105-17 make clear that specific day-to-day adjustments in 
instructional methods and approaches are not normally the sort of 
change that would require action by an IEP team. Requiring an IEP
to 
include such a level of detail would be overly-prescriptive, impose

considerable unnecessary administrative burden, and quite possibly
be 
seen as encouraging disputes and litigation about rather small and 
unimportant changes in instruction. There is, however, a reasonable

distinction to be drawn between a mode of instruction, such as cued

speech, which would be the basis for the goals, objectives, and
other 
elements of an individual student's IEP and should be reflected in
that 
student's IEP, and a day-to-day teaching approach, i.e., a lesson
plan, 
which would not be intended to be included in a student's IEP.
    Case law recognizes that instructional methodology can be an 
important consideration in the context of what constitutes an 
appropriate education for a child with a disability. At the same
time, 
these courts have indicated that they will not substitute a
parentally-
preferred methodology for sound educational programs developed by 
school personnel in accordance with the procedural requirements of
the 
IDEA to meet the educational needs of an individual child with a 
disability.
    In light of the legislative history and case law, it is clear
that 
in developing an individualized education there are circumstances
in 
which the particular teaching methodology that will be used is an 
integral part of what is ``individualized'' about a student's
education 
and, in those circumstances will need to be discussed at the IEP 
meeting and incorporated into the student's IEP. For example, for
a 
child with a learning disability who has not learned to read using 
traditional instructional methods, an appropriate education may
require 
some other instructional strategy.
    Other students' IEPs may not need to address the instructional 
method to be used because specificity about methodology is not 
necessary to enable those students to receive an appropriate
education. 
There is nothing in the definition of ``specially designed 
instruction'' that would require instructional methodology to be 
addressed in the IEPs of students who do not need a particular 
instructional methodology in order to receive educational benefit.
In 
all cases, whether methodology would be addressed in an IEP would
be an 
IEP team decision.
    Other changes to the definition of ``specially designed 
instruction'' are not needed. The distinction between
accommodations 
that change the general curriculum and those that do not, as one 
commenter requests, would be difficult to make because of the 
individualized nature of these determinations. Regardless of the 
reasons for the accommodation or modification, it must be provided
if 
necessary to address the special educational needs of an individual

student.
    The words ``maximum extent appropriate'' should not follow the 
reference to participation in the general curriculum, because such
a 
qualification would conflict with the Act's IEP requirements and
the 
unequivocal emphasis on involvement and progress of students with 
disabilities in the general curriculum, regardless of the nature or

significance of the disability.
    The term ``vocational education'' in paragraph (b)(5) should
not be 
amended to conform to the definition in the Carl D. Perkins
Vocational 
and Applied Technology Education Act. The definition of
``vocational 
education'' in the proposed regulations should be retained in these

final regulations since it reflects the definition of that term 
contained in the original regulations for this program published in

1977. While the regulatory definition includes all of the
activities in 
the Perkins Act definition, the substitution of the definition from
the 
Perkins Act would be too limiting since that definition would not 
encompass those activities included in the current definition. The 
inclusion of ``vocational education'' in the definition of
``special 
education'' is needed to ensure that students with disabilities
receive 
appropriate, individually-designed vocational educational services
to 
facilitate transition from school to post-school activities.
    In light of the general decision not to use notes in these
final 
regulations, the note following this section of the NPRM should be 
removed. The removal of this note, however, should not be construed
as 
altering eligibility requirements under these regulations--namely
(1) a 
child is an eligible child with a disability under Part B if the
child 
has a covered impairment and requires special education by reason
of 
the

[[Page 12553]]

impairment; and (2) a child with a disability can receive a related

service only if that service is required to assist the child to
benefit 
from special education. However, consistent with Sec. 300.26(a)(2),
any 
related service that is considered special education rather than a 
related service under State standards may be considered as special 
education. A provision has been added under the definition of
``child 
with a disability'' to reflect this concept.
    Changes: Paragraph (a)(2) has been amended to add travel
training 
to the elements contained in the definition of ``special
education,'' 
and a separate definition of travel training has been added to 
paragraph (b)(4) as discussed in this attachment under Sec. 300.24.

Paragraph (b)(2) concerning physical education has been revised to 
substitute the word ``adapted'' for the word ``adaptive.''
Paragraph 
(b)(3) has been revised to make clear that adaptations to
instruction, 
in the form of specially designed instruction, are made as
appropriate 
to the needs of the child. The note following this section of the
NPRM 
has been removed, and the substance of the note is reflected in the

above discussion.

Supplementary Aids and Services (Sec. 300.28)

    Comment: A few commenters supported the definition of 
``supplementary aids and services,'' as written. Some commenters 
requested that the regulations define the term ``educationally
related 
setting,'' and that examples of supplementary aids and services be 
included. Another commenter recommended that the definition be
amended 
to state that related services could be considered supplementary
aids 
and services. Other commenters recommended that assistive
technology be 
considered in the same context as supplementary aids and services.
    Discussion: It is not necessary to define the terms used in
this 
definition. As stated in the analysis of comments relating to 
Secs. 300.5 and 300.6 (assistive technology devices and services), 
assistive technology devices and services are already recognized as

supplementary aids and services. Under IDEA, aids, supports and 
services would be considered during the IEP meeting and if
determined 
appropriate by the IEP team would be integrated under the
appropriate 
components of the IEP. Further, with respect to the language about 
``related services,'' a change is not needed. If a disabled child 
requires a related service in the regular classroom, that related 
service must be provided, and there is no reason to identify that 
service as a supplementary aid or service.
    Changes: None.

Transition Services (Sec. 300.29)

    Comment: Many commenters supported the transition services 
definition in these regulations, but recommended that the
definition be 
amended to include, in paragraph (1)(c)(vi), self-advocacy, career 
planning, and career guidance. This comment also emphasized the
need 
for coordination between this provision and the Perkins Act to
ensure 
that students with disabilities in middle schools will be able to 
access vocational education funds.
    One commenter recommended that the definition of ``transition 
services'' either be narrowed to post-school transition or that
other 
transitions, such as transition from Part C to Part B, be defined 
elsewhere in these regulations.
    Discussion: The Act's ``transition services'' definition should
be 
retained as written. In light of the general decision not to use
notes 
in these final regulations, the note following this section of the
NPRM 
should be removed. It is important to clarify that transition
services 
for students with disabilities may be special education if they are

provided as specially designed instruction, or related services, if

they are required to assist a student with a disability to benefit
from 
special education, and that the list of activities in the
definition is 
not intended to be exhaustive.
    Additional examples of transition services are not needed
because 
the current definition is sufficiently broad to encompass these 
activities. Nor is it necessary to amend the definition to
reference 
the Perkins Act, since, under current law, students with
disabilities, 
including those in middle schools, can participate in these
Federally-
funded programs, and must be provided necessary accommodations to 
ensure their meaningful participation.
    Further, the definition of ``transition services'' should not
be 
narrowed or expanded to include other transitions, because to do so

could be inconsistent with congressional intent that public
agencies 
provide students with disabilities the types of needed services to 
facilitate transition from school to post-school activities.
    Changes: The note following this section of the NPRM has been 
removed, and the substance of the note has been added as a new 
paragraph (b).

Subpart B

Condition of Assistance (Sec. 300.110)

    Comment: A few commenters stated that the proposed regulations
at 
Secs. 300.110-300.113, as written, would not ensure that States
meet 
the requirements of section 612(a) and (c) of the Act.
    Discussion: It is appropriate to amend Sec. 300.110 to more 
explicitly state what is required for compliance with these
provisions.
    Changes: Section 300.110 has been amended, as noted in the
above 
discussion.

Free Appropriate Public Education (Sec. 300.121)

(For a brief overview of the changes made regarding the discipline 
sections of these regulations, please refer to the preamble.)

    Comment: A few commenters asked that the regulations be amended
to 
adopt a ``no cessation of services'' policy, under which students
with 
disabilities would be entitled to receive FAPE even during periods
of 
less than ten days of suspension in a given school year. Some of
these 
commenters stated that there is no basis to assume that Congress
did 
not mean what is explicitly stated in section 612(a)(1)(A) of the
Act--
that all children are entitled to FAPE, including children who have

been suspended or expelled from school.
    A few commenters expressed support for the proposed language
which 
defines the term ``children with disabilities who have been
suspended 
or expelled from school'' as meaning children with disabilities who

have been removed from their current educational placement for more

than 10 school days in a given school year, but asked that the 
regulations clarify that the 10 school days are cumulative, not 
consecutive.
    Several commenters recommended deleting the phrase ``in a given

school year,'' stating that the statute allows school personnel to 
suspend a disabled child for not more than ten consecutive school
days 
without the provision of educational services, and that there is no

statutory basis for defining 10 school days to be within a given
year. 
A number of commenters supported the proposed ``11th day'' rule
(i.e., 
that the right to FAPE for disabled children who have been
suspended or 
expelled begins on the eleventh school day in a school year that
they 
are removed from their current educational placement). Other
commenters 
recommended deleting proposed Sec. 300.121(c)(2). Some of these 
commenters stated that they agreed with the Supreme Court decision
in 
Honig versus Doe and with the Department's

[[Page 12554]]

long-standing interpretation of the Act--that a pattern of
suspensions 
would constitute a change in placement, but objected to the
regulations 
defining when the ``11th day'' occurs.
    One commenter asked whether the provisions of proposed 
Sec. 300.121(c) would apply if a child's disability is not related
to 
the behavior in question. Some commenters were concerned that the 
standard from Sec. 300.522 would be unwieldy for short-term
suspensions 
or should be modified to permit different services for children 
suspended or expelled for behavior determined not to be a
manifestation 
of their disability. Another commenter recommended strengthening
the 
language of Sec. 300.121 to ensure that the SEA is responsible for 
ensuring the provision of FAPE for children who are suspended or 
expelled.
    Discussion: Section 612(a)(1)(A) of the Act now makes explicit
that 
FAPE must be available to children with disabilities who are
suspended 
or expelled, in light of the adverse impact a cessation of
educational 
services can have on a child with disabilities ability to achieve
in 
school and to become a self-supporting adult who is contributing to
our 
society. The Act, however, should not be read to always require the

provision of services when a child is removed from school for just
a 
few days. School officials need some reasonable degree of
flexibility 
when dealing with children with disabilities who violate school
conduct 
rules, and 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 disabilities right to FAPE.
    On the other hand, at some point repeated exclusions of a child

with disabilities from the educational process will have a
deleterious 
effect on the child's ability to succeed in school and to become a 
contributing member of society. The law ensures that even children
with 
disabilities who are engaged in what objectively can be identified
as 
dangerous acts, such as carrying a weapon to school, must receive 
appropriate services. (See sections 615(k)(1)(A)(ii) and
615(k)(2)).
    Therefore, it is reasonable that children with disabilities who

have been repeatedly suspended for more minor violations of school 
codes not suffer greater consequences from exclusions from school
than 
children who have committed the most significant offenses. For
these 
reasons, once a child with a disability has been removed from
school 
for more than 10 school days in a school year, it is reasonable for

appropriate school personnel (if the child is to be removed for 10 
school days or less, or the child's IEP team, if the child is to be

suspended or expelled for behavior that is not a manifestation of
the 
child's disability) to make informed educational decisions about 
whether and the extent to which services are needed to enable the
child 
to make appropriate educational progress in the general curriculum
and 
toward the goals of the child's IEP.
    The change of placement rules referred to in the Supreme
Court's 
decision in Honig v. Doe, which is based on the Department's long-
standing interpretation of what is now section 615(j) of the Act,
are 
addressed in the discussion of comments received under Sec. 300.520
in 
this attachment, and changes are made in these final regulations as
a 
result of those comments. However, determining whether a change of 
placement has occurred does not answer the question of at what
point 
exclusion from educational services constitutes a denial of FAPE
under 
section 612(a)(1)(A) of the Act.
    With regard to the standard for services that must be provided
to 
children with disabilities who have been suspended or expelled from

school, the statute at section 615(k)(3) specifically addresses
only 
the services to be provided to children who have been placed in
interim 
alternative educational settings under sections 615(k)(1)(A)(ii)
and 
615(k)(2) (Secs. 300.520(a)(2) and 300.521), which contemplate 
situations in which children are removed for up to 45 days, without

regard to whether the behavior is or is not a manifestation of the 
child's disabilities.
    In light of the comments received, the regulation would be
revised 
to recognize that the extent to which services would need to be 
provided and the amount of service that would be necessary to
enable a 
child with a disability to meet the same general standard of 
appropriately progressing in the general curriculum and advancing 
toward achieving the goals on the child's IEP may be different if
the 
child is going to be out of his or her regular placement for a
short 
period of time. For example, a one or two day removal of a child
who is 
performing at grade level may not need the same kind and amount of 
service to meet this standard as a child who is out of his or her 
regular placement for 45 days under Sec. 300.520(a)(2) or Sec.
300.521. 
Similarly, if the child is suspended or expelled for behavior that
is 
not a manifestation of his or her disability, it may not make sense
to 
provide services in the same way as when the child is in an interim

alternative educational setting.
    As part of its general supervision responsibility under 
Sec. 300.600, each SEA must ensure compliance with all Part B 
requirements, including the requirements of Sec. 300.121(d)
regarding 
FAPE for children who are removed from their current educational 
placement for more than ten school days in a given school year.
    Changes: The regulation has been revised to provide that when
a 
child with a disability who has been removed from his or her
current 
educational placement for more than 10 school days in a school year
is 
subjected to a subsequent removal for not more than 10 school days
at a 
time and when a child with a disability is suspended or expelled
for 
behavior that is not a manifestation of the child's disability, the

public agency must provide services to the extent necessary to
enable 
the child to appropriately progress in the general curriculum and 
appropriately advance toward achieving the goals in the child's
IEP.
    In the case of a child who is removed pursuant to 
Sec. 300.520(a)(1) for 10 school days or less at a time, this 
determination is made by school personnel, in consultation with the

child's special education teacher. In the case of a child whose
removal 
constitutes a change of placement for behavior that is not a 
manifestation of the child's disability pursuant to Sec. 300.524,
this 
determination is made by the child's IEP team.
    The regulation has also been revised to clarify that if a child
is 
removed by school personnel for a weapon or drug offense under 
Sec. 300.520(a)(2) or by a hearing officer based on a determination
of 
substantial likelihood of injury under Sec. 300.521, the public
agency 
provides services as specified in Sec. 300.522.
    Comment: Some commenters expressed support for Note 1 (which 
clarifies the responsibility of public agencies to make FAPE
available 
to children with disabilities beginning no later than their third 
birthday) and recommended that the substance of the note be 
incorporated into the text of the regulations. A few commenters 
suggested revising Note 1 to clarify that children with
disabilities 
whose third birthday occurs during the summer are not entitled to 
receive special education and related services until school starts
for 
the fall term.
    Discussion: The responsibility of public agencies to make FAPE 
available to children with disabilities beginning no later than
their 
third birthday means that an IEP (or an IFSP consistent with 
Sec. 300.342) has been developed and is


[[Continued on page 12555]]

[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12555-12604]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov] [DOCID:fr12mr99-15]

[[pp. 12555-12604]] Assistance to States for the Education of
Children With Disabilities and the Early Intervention Program for
Infants and Toddlers With Disabilities

[[Continued from page 12554]]

[[Page 12555]]

being implemented for the child by that date, with the IEP
specifying the special education and related services that are
needed in order to ensure that the child receives FAPE, including
any extended school year services, if appropriate. (Section
612(a)(9) of the Act). If a child with a disability is determined
eligible to receive Part B services, the public agency must convene
a meeting and develop an IEP by the child's third birthday, and
must in developing the IEP determine when services will be
initiated. For 2-year olds served under Part C, the public agency
must meet with the Part C lead agency and the family to discuss the
child's transition to Part B services at least 90 days (and, at the
discretion of the parties, up to 6 months) before the child turns
3. (See section 637 (a)(8)) of the Act). In order to ensure a
smooth transition for children served under Part C who turn 3
during the summer months, a lead agency under Part C may use Part
C funds to provide FAPE to children from their third birthday to
the beginning of the following school year. (See section 638 of the
Act).
    Children with disabilities who have their third birthday during
the summer months are not automatically entitled to receive special
education and related services during the summer, and the public
agency must provide such services during the summer only if the IEP
team determines that the child needs extended school year services
at that time in order to receive FAPE. The substance of Note 1
should be incorporated into the text of the regulation, because it
sets forth long-standing requirements that are based on the statute
(see analysis of ``General Comments'' relating to the use of notes
under this part).     Changes: The substance of Note 1 has been
added to the text of the regulations, and the note has been
deleted.
    Comment: Some commenters expressed support for Note 2
(regarding the determination of eligibility for children advancing
from grade to grade), and recommended that the substance of the
note be incorporated into the text of the regulations. A few of the
commenters suggested deleting the second sentence of Note 2
(relating to the IEP team) before making the note a regulation.
Other commenters recommended that Note 2 be deleted, as it confuses
the IEP team with the team that determines eligibility.
    Discussion: The revised IEP requirements at Sec. 300.347
require public agencies to provide special education and related
services to enable students with disabilities 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. The group determining the eligibility of a child
who has a disability and who is progressing from grade-to-grade
must make an individualized determination as to whether,
notwithstanding the child's progress from grade-to-grade, he or she
needs special education and related services. The substance of Note
2, as revised, should be incorporated into the text of the
regulation, because it sets forth long-standing requirements that
are based on the statute (see analysis of ``General Comments''
relating to the use of notes under this part).
    Changes: Section 300.121 has been revised to incorporate the
substance of Note 2, and the note deleted.
    Comment: None.
    Discussion: To ensure that children with disabilities have
available FAPE, consistent with the requirements of this part, it
is important for the Department to be able to verify that each
State's policies are consistent with their responsibilities
regarding important aspects of their obligation to make FAPE
available. Therefore, Sec. 300.121(b) should be revised to provide
that each State's policy regarding the right to FAPE of all
children with disabilities must be consistent with the requirements
of Secs. 300.300-300.313.
    Changes: Section 300.121(b) has been revised to provide that
the States' policies concerning the provision of FAPE must be
consistent with the requirements of Secs. 300.300-300.313.

Exception to FAPE for Certain Ages (Sec. 300.122)

    Comment: Some commenters expressed support for Sec.
300.122(a)(2), which sets forth an exception to the FAPE
requirement for certain youth who are incarcerated in adult
correctional facilities, and Note 2 which includes clarifying
language from the House Committee Report. A few commenters wanted
the regulation to clarify the responsibility of a State where
reasonable efforts to obtain prior records from the last reported
educational placement have been made, but no records are available.
The commenter also requested adding a note to clarify that, even if
State law does not require the provision of FAPE to students with
disabilities, ages 18 through 21, who, in the last educational
placement prior to their incarceration in an adult correctional
facility were not identified as a child with a disability and did
not have an IEP under Part B of the Act, the State may choose to
serve some individuals who fit within that exception and include
those individuals within its Part B child count.
    Discussion: Before determining that an individual is not
eligible under this part to receive Part B services, the State must
make reasonable efforts to obtain and review whatever information
is needed to determine that the incarcerated individual had not
been identified as a child with a disability and did not have an
IEP in his or her last educational placement prior to incarceration
in an adult correctional facility. The steps a State takes to
obtain such information may include a review of records, and
interviewing the incarcerated individual and his or her parents.
    A State may include in its Part B child count an eligible
incarcerated student with a disability to whom it provides FAPE,
even if the State is permitted under Sec. 300.122(a)(2) and State
law to exclude that individual from eligibility. It is not
necessary to provide additional clarification regarding these
issues in the regulations.
    Proposed Note 2 quoted from the House Committee Report on Pub.
L. 105-17 which, with respect to paragraph (a)(2) of this section
(relating to certain students with disabilities in adult prisons),
stated that:

    The bill provides that a State may also opt not to serve
individuals who, in the educational placement prior to their
incarceration in adult correctional facilities, were not actually
identified as a child with a disability under section 602(3) or did
not have an IEP under Part B of the Act. The Committee means to* *
*make clear that services need not be provided to all children who
were at one time determined to be eligible under Part B of the Act.
The Committee does not intend to permit the exclusion from services
under part B of children who had been identified as children with
disabilities and had received services under an IEP, but who had
left school prior to their incarceration. In other words, if a
child had an IEP in his or her last educational placement, the
child has an IEP for purposes of this provision. The Committee
added language to make clear that children with disabilities aged
18 through 21, who did not have an IEP in their last educational
setting but who had actually been identified should not be excluded
from services. (H. R. Rep. No. 105-95, p. 91 (1997))

    The concepts in this note are important in the implementation
of this program. Appropriate substantive portions of the note
should be clarified and included in the regulations. Consistent
with the decision to not include notes in these final regulations,
the note should be removed.

[[Page 12556]]

    Changes: Section 300.122(a)(2) has been revised by adding
appropriate substantive portions of Note 2 to the text of the
regulation, to specify situations in which the exception to FAPE
for students with disabilities in adult prisons does not apply.   
 Comment: Some commenters expressed support for Sec. 300.122(a)(3)
(which provides that the obligation to make FAPE available does not
apply to students with disabilities who have graduated from high
school with a regular high school diploma), and Note 1 (which
clarifies that graduation with a regular high school diploma is a
change of placement requiring notice and reevaluation), and
recommended that the substance of the note be included in the text
of the regulation. Other commenters requested that Sec.
300.122(a)(3) and Note 1 be deleted because there is no statutory
basis for these regulatory interpretations. Several commenters
stated that, in most States, graduation is dependent on a student's
having met specific standards (State, local, or both).     A few
commenters stated that some States have developed procedures for
disabled students to graduate with a diploma based on the IEP, and
recommended that the term ``regular'' be deleted from
Sec. 300.122(a)(3). Other commenters recommended deleting the
language about graduating with a regular high school diploma, and
added that many States have, with public input, established
multiple graduation diplomas and certificates. Other commenters
recommended deleting the provision, and added that some States are
shifting from diplomas to certificates of mastery based on what
students know. A few commenters stated that receipt of a diploma or
age 21 is the only reason for termination of eligibility, and,
therefore, the requirement is redundant and should be deleted.
    Many commenters recommended deleting Note 1, stating that
graduation is not a change of placement, and that reevaluation is
not necessary and should not be required. These commenters stated
the basis for their recommendation by adding that: (1) With the
addition of the new IEP requirements such as benchmarks, reporting
to parents, and examination of transition needs at age 14, the
reevaluation requirement becomes redundant; (2) if the parents and
student are provided notice of the impending graduation and the IEP
team concurs, the additional step of reviewing current data and
determining the nature and scope of a reevaluation is unnecessary
and will consume staff time and resources; and (3) if parents
believe their child should not graduate, they have procedural
avenues available to contest the graduation.     A few commenters
stated that Sec. 300.122(a)(3) should not be interpreted as
prohibiting a State from using Part B funds to serve students aged
18 through 21 who have attained a regular diploma but who are still
in the State-mandated age range.
    Discussion: Because the rights afforded children with
disabilities under IDEA are important, the termination of a child's
eligibility under Part B is equally important. When public agencies
make the determination as to whether the Part B eligibility of a
student with a disability should be terminated because the student
has met the requirements for a regular high school diploma or that
the student's eligibility should continue until he or she is no
longer within the State-mandated age of eligibility, it is
important to ensure that the student's rights under the Act are not
denied.
    As the comment notes, a number of the new IEP requirements
focus increased attention on how children with disabilities can
achieve to the same level as nondisabled children. In implementing
these new requirements, it is important that the parents,
participating in decisions made in developing their child's IEP--
including decisions about their child's educational program (e.g.,
the types of courses the child will take) and the child's
participation in State and district-wide high stakes assessments--
understand the implications of those decisions for their child's
future eligibility for graduation with a regular diploma.
    The commenters persuasively point out that, there is a less
burdensome way to protect the interests of students with
disabilities under the Act whose eligibility for services is ending
because of graduation with a regular diploma or because they are no
longer age eligible. If an eligibility change is the result of the
student's aging out or receipt of a regular high school diploma,
the statutory requirement for reevaluation before a change in a
student's eligibility under section 614(c)(5) should not be read to
apply.
    Graduation with a regular high school diploma ends a student's
eligibility for Part B services, and is, therefore, a change in
placement requiring notice under Sec. 300.503 a reasonable time
before the public agency proposes to graduate the student. The new
requirements for transition planning and for reporting to parents
regarding the progress of their child, together with the notice to
them regarding proposed graduation, are sufficient to ensure that
parents are appropriately informed to protect the rights of their
child. The parents would have the option, as with any public agency
proposal to change the educational program or placement of a child
with a disability, to seek to resolve a disagreement with the
proposal to graduate the student through all appropriate means,
including mediation and due process hearing proceedings.
    Exiting or graduating a student with a disability with a
credential that is different from the diploma granted to students
who do not have disabilities does not end an individual's
eligibility for Part B services, and is not a change in placement
requiring notice under Sec. 300.503. The second paragraph of
proposed Note 1 clarified that if a high school awards a student
with a disability a certificate of attendance or other certificate
of graduation instead of a regular high school diploma, the student
would still be entitled to FAPE until the student reaches the age
at which eligibility ceases under the age requirements within the
State or has earned a regular high school diploma. This
clarification is consistent with the statute and final regulations.
However, consistent with the decision to not include notes in the
final regulations, the note should be deleted.
    An SEA or LEA may elect to use Part B funds for services for a
student with a disability who has graduated with a regular high
school diploma but who is still within the State-mandated age range
for Part B eligibility, but may not include the student in its Part
B child count. For children aged 19 through 21, eligibility for
services is a matter of State discretion.
    Changes: Section 300.122(a)(3) has been revised to make clear
that graduation from high school with a regular diploma is a change
in placement requiring notice in accordance with Sec. 300.503.
Section 300.534(c), also has been revised to clarify that a
reevaluation is not required before the termination of a student's
Part B eligibility due to graduation with a regular high school
diploma, or ceasing to be age-eligible under State law. Note 1 has
been removed.

Child Find (Sec. 300.125)

    Comment: A few commenters expressed support for the statutory
provision reflected in Sec. 300.125(c), which states that nothing
in the Act requires that children be classified by their
disability. Some commenters believed that Sec. 300.125(c) is
inconsistent with Sec. 300.125(b)(3), which requires a

[[Page 12557]]

description of the policies and procedures that the State will use
to obtain the number of children by disability category, and Sec.
300.751, which requires the reporting of data by disability
category.     Some commenters recommended that Note 2 (which states
that the services and placement needed by each child with a
disability must be based upon the child's unique needs and may not
be determined or limited based upon a category of disability) be
incorporated into the regulations. Other commenters recommended
deleting the phrase ``and may not be determined or limited based
upon a category of disability,'' so as not to conflict with Sec.
300.346(a)(2)(iii) (consideration of special factors relating to
children who are blind or visually impaired). Other commenters
stated that Note 2 should be deleted because it deals with services
and placements, rather than child find.     A few commenters
requested that the regulations clarify the child find requirements
for children birth through age 3, because the requirements under
Parts B and C are different, and it is not clear which must be
followed. One commenter recommended that Note 3 (which describes
the link between child find under Parts B and C) be incorporated
into the regulations because it promotes interagency coordination.
Other commenters stated that Note 3 is unnecessary and should be
deleted because the text of Sec. 300.125 sufficiently covers the
statutory requirement.
    Some commenters expressed support for Note 4 (relating to
highly mobile children, such as the homeless and migrant children).
A few commenters requested more guidance related to a State's
obligation to migrant children. Other commenters stated that States
are already doing their best to find these children, but added that
it is (1) virtually impossible to meet fully an obligation to
ensure that all of these children are found, and (2) extremely
difficult to obtain accurate data on these populations.
    Discussion: Section 300.125(c), which clarifies that the Act
does not require public agencies to label children by disability,
is not inconsistent with the data reporting requirements in
Secs. 300.125(b)(3) and 300.751. The statement in Note 2--that the
services and placement needed by each child with a disability may
not be determined or limited based upon a category of disability--
is crucial in implementing both the child find and FAPE
requirements. Thus, the substance of the note has been included in
this discussion, and has been incorporated in the text of the
regulations at Sec. 300.300(a)(3)(ii). Specifying that services and
placement not be determined or limited based on category of
disability is not incompatible with the special considerations
related to children who are blind and visually impaired.
    It is clear, without the need for further clarification in the
regulations, that the child find and evaluation procedures under
Part C must be followed when the purpose is to locate, identify and
evaluate infants and toddlers with disabilities who may be eligible
for early intervention services under that Part, and that the child
find and evaluation procedures under Part B must be followed when
the purpose is to locate, identify and evaluate children with
disabilities who may be eligible for special education and related
services under that part.     Note 3 provided needed clarification
of long-standing statutory requirements, under Parts B and C
regarding the respective
responsibilities of the SEA and Part C lead agency for child find
activities. In States in which the SEA and Part C lead agency are
different, each agency remains responsible for ensuring that the
child find responsibilities under its program are met, even if the
agencies, through an interagency agreement, delegate to one agency
the primary role in child find for the birth through two
population. When different, the SEA and Part C lead agency are
encouraged to cooperate to avoid duplication and ensure
comprehensive child find efforts for the birth through two
population. The substance of the note should be incorporated into
the text of the regulation.
    Although it is difficult to locate, identify, and evaluate
highly mobile children with disabilities, it is important to stress
that the States' child find responsibilities under Sec. 300.125
apply equally to such children and that the substance of Note 4
should be added to the text of Sec. 300.125(a).
    Changes: The substance of Notes 1, 3, and 4 has been added to
the text of the Sec. 300.125; the substance of Note 2 has been
added to the text of Sec. 300.300(a)(3)(ii); and the four notes
have been deleted.

Procedures for Evaluation and Determination of Eligibility
(Sec. 300.126)

    Comment: A few commenters requested that the regulation specify
best practices for evaluation and the determination of eligibility. 
   Discussion: The use of best practices in all educational
programs and activities in order to help ensure that all children,
including children with disabilities, are prepared to meet high
standards is, of course, strongly encouraged, and the Department
funds many programs to identify and disseminate best practices.
Section 300.126, however, addresses the eligibility requirements
relating to evaluation and the determination of eligibility that
States must meet, rather than best practices.
    Changes: None.

Confidentiality of Personally Identifiable Information (Sec.
300.127)

    Comment: None.
    Discussion: In the NPRM, Sec. 300.127 included a note that
contained a reference to the Family Education Rights and Privacy
Act (FERPA) in 34 CFR Part 99. There is a clear relationship
between the confidentiality requirements in IDEA and those in
FERPA. The regulations in Secs. 300.560--300.577 are drawn directly
from the FERPA regulations.
    Changes: Consistent with the decision to eliminate notes from
the final regulations, the note following this section has been
removed.

Least Restrictive Environment (Sec. 300.130)

    Comment: A few commenters requested that ``State-approved
private schools and facilities'' be added to the list of placement
options included in the continuum, as set forth in the note
following Sec. 300.130.
    A few commenters were concerned that the proposed regulations
did not include the State eligibility requirement, set forth in the
prior regulations at Sec. 300.132(b), that each State include in
its State plan the number of children within each disability
category who are participating in regular education programs, and
the number of children with disabilities who are in separate
classes or separate school facilities or otherwise removed from the
regular education environment.     A few commenters stated that the
note and Sec. 300.551 should be deleted; they assert that there is
no requirement in the statute for a continuum, and that the note
and the regulation are inconsistent with the statute's strengthened
requirement that children with disabilities be integrated.
    Discussion: As described in Sec. 300.551(b)(1), the continuum
includes the placement option of ``special schools.'' The requested
revision regarding State-approved private schools and facilities
is, therefore, not necessary. State-approved private schools and
facilities are already covered by the continuum.

[[Page 12558]]

    The requirement in the prior regulations at Sec. 300.132(b),
that each State include in its State plan the number of children
within each disability category who are participating in regular
education programs, and the number of children with disabilities
who are in separate classes or separate school facilities or
otherwise removed from the regular education environment, was based
upon an express provision in the prior statute at section 612(5)(B)
that was removed from the statute by the IDEA Amendments of 1997.
Those amendments also eliminated the requirement that each State
submit a State plan, instead requiring that each State demonstrate
eligibility under Part B by having specified policies and
procedures on file with the Secretary. The Department will,
however, continue to collect data regarding placement in the LRE
under section 618 of the Act.
    The statute, at section 607(b), prohibits the Secretary from
implementing or publishing regulations implementing IDEA that would
procedurally or substantively lessen the protections provided to
children with disabilities, as set forth in the Part B regulations
as in effect on July 20, 1983, including those relating to
placement in the least restrictive environment, except to the
extent that the revised regulation reflects the clear and
unequivocal intent of the Congress in legislation. The provisions
of Sec. 300.551 in the NPRM were included in the regulations as in
effect on July 20, 1983. Therefore, those provisions must,
consistent with section 607(b) of the Act, be retained in the
regulations. In fact, the Senate and House Committee Reports on
Pub. L. 105-17 support the continuing importance of the continuum
provision:

    The committee supports the longstanding policy of a continuum
of alternative placements designed to meet the unique needs of each
child with a disability. Placement options available include
instruction in regular classes, special classes, special schools,
home instruction, and instruction in hospitals and institutions.
For disabled children placed in regular classes, supplementary aids
and services and resource room services or itinerant instruction
must also be offered as needed. (S. Rep. No. 105-17, p. 11; H. R.
Rep. No. 105-95, p. 91 (1997))

    The substance of the note is helpful in implementing the LRE
requirements, and should be included in the text of the
regulations.     Changes: Consistent with the decision to delete
notes from the final regulations, the note following Sec. 300.130
in the NPRM has been removed. The substance of the note has been
incorporated into paragraph (a) of this section.
    Comment: A number of commenters expressed concerns about the
provisions of Sec. 300.130(b), regarding the steps that a State
must take if it distributes State funds on the basis of the type of
setting in which a child is served. Some commenters were concerned
that this provision not be implemented in a way that would
negatively impact State funding formulas for State schools for the
deaf. Other commenters requested that the regulations provide clear
guidance as to what a State must do to determine whether its
funding mechanism is resulting in placements that violate the least
restrictive environment requirements of the Act.
    A few commenters asked that the regulations make clear that
individual needs, rather than a State's finding mechanism must
drive placement decisions, but that a State is not required to
change the way in which it distributes State funds to public
agencies unless the funding mechanism results in placement
decisions that violate Part B's LRE requirements. Other commenters
requested that the regulations be revised to require that a State's
assurance under Sec. 300.130(b)(2) must specify the steps the State
will take by a date certain (no later than the end of the following
fiscal year) to revise its funding mechanism.
    Discussion: The provisions of Sec. 300.130(b) are unchanged
from section 612(a)(5)(B) of the Act. A State is not required to
revise a funding mechanism by which the State distributes State
funds on the basis of the type of setting in which a child is
served, unless it is determined that the State does not have
policies and procedures to ensure that the funding mechanism does
not result in placements that violate the LRE requirements of Secs.
300.550-300.556. The Senate and House Committee Reports on Pub. L.
105-17 emphasize the importance of section 615(a)(5)(B), stating
that:

    The bill amends the provisions on least restrictive environment
* * * to ensure that the state's funding formula does not result in
placements that violate the requirement.
    The committee supports the long standing policy that to the
maximum extent appropriate, children with disabilities are educated
with children who are nondisabled and that special 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 services cannot be
achieved satisfactorily. (S. Rep. No. 105-17, p. 11; H. R. Rep. No.
105-95, p. 91 (1997)) Further clarification in the regulation is
not needed.

Changes: None.

Transition of Children From Part C to Preschool Programs (Sec.
300.132)

    Comment: A few commenters expressed concern regarding the cost
of home visits, especially in large geographic areas, that would be
needed to implement the transition requirements of Sec. 300.132.
    Discussion: The provisions of Sec. 300.132 are drawn from the
statutory requirements at section 612(a)(9), and do not set forth
any additional requirements. While Sec. 300.132(c) requires that
each LEA participate in transition planning conferences arranged by
the designated lead agency under section 637(a)(8) (which requires
the lead agency to convene such a conference), Sec. 300.132 does
not require any home visits. Therefore, no revision is necessary.
    Changes: None.
    Comment: A few commenters requested that the regulation be
revised to make clear that the pendency provisions of Sec. 300.514
apply to children transitioning from early intervention services
under Part C to preschool special education and related services
under Part B.     Discussion: The pendency provision at Sec.
300.514(a) does not apply when a child is transitioning from a
program developed under Part C to provide appropriate early
intervention services into a program developed under Part B to
provide FAPE. Under Sec. 300.514(b), if the complaint requesting
due process involves the child's initial admission to public
school, the public agency responsible for providing FAPE to the
child must place that child, with the consent of the parent, into
a public preschool program if the public agency offers preschool
services directly or through contract or other arrangement to
nondisabled preschool-aged children until the completion of
authorized review proceedings.
    Changes: None.
    Comment: One commenter expressed concern that Sec. 300.132(b)
suggests that a program of special education and related services
be in place for each child with a disability on his or her third
birthday, even if the birthday occurs during the summer and the
child does not need extended school year services.
    Discussion: Section 612(a)(9) of the Act requires that, by the
third birthday of a child with a disability participating in early
intervention programs assisted under Part C who will participate in
preschool programs assisted under Part B, an IEP or, if consistent
with Sec. 300.342(c) and section 636(d) of the

[[Page 12559]]

Act, an IFSP, has been developed and must be implemented for the
child. This means that if a child with a disability is determined
eligible to receive Part B services, the public agency must convene
a meeting and develop an IEP by the child's third birthday, and
must, in developing the IEP, determine when services will be
initiated. Children with disabilities who have their third birthday
during the summer months are not automatically entitled to receive
special education and related services during the summer, and the
public agency must provide such services during the summer only if
the IEP team determines that the child needs extended school year
services during the summer in order to receive FAPE.
    Changes: The regulation has been revised to clarify that
decisions about summer services for children who turn three in the
summer are made by the IEP team.
    Comment: A few commenters requested that the regulation be
revised to clarify that representation of an LEA in the transition
planning process would most appropriately include all members of
the IEP team, in order to further ``smooth'' the transition process
and ensure appropriate attention to the child's needs.
    Discussion: Section 612(a)(9) of the Act leaves to each LEA the
responsibility to determine who will most appropriately represent
the agency in transition planning conferences. The requested
revision goes beyond the requirements of the Act.
    Changes: None.
    Comment: A few commenters requested that a definition of the
term ``effective'' be included in the regulations.
    Discussion: It is not necessary to provide a definition of the
term ``effective,'' and doing so would restrict the flexibility
needed to implement the Act for a very heterogeneous group of
children.     Changes: None.
    Comment: A few commenters requested that the regulations be
revised to require that: (1) the transition planning conference be
incorporated into the required timelines under Part B of the Act
for determining eligibility and developing an IEP; and (2) LEAs
acknowledge and consider existing documentation related to
eligibility and service planning prior to conducting an individual
evaluation of a child referred from the Part C system.
    Discussion: The Part C regulations require, at Sec.
303.148(b)(2), that the lead agency convene, with family approval,
a transition planning conference at least 90 days, and at the
discretion of the parties, up to 6 months before the third birthday
of a toddler receiving early intervention services. The Part B
regulations require that an IEP be developed and implemented for
children with disabilities by their third birthday. It is
inappropriate to specify further timelines in Sec. 300.132. Section
300.533 permits an LEA, if appropriate, to review existing data
regarding a child with a disability (including a child who has been
referred by the lead agency) as part of an initial evaluation.
    Changes: None.
    Comment: A few commenters requested that the regulation be
revised to emphasize the responsibility of the lead agency to
ensure that the LEA receive advance notice of any transition
planning conference at which the participation of the LEA is
required.
    Discussion: The Part C regulations require at Sec. 303.148(b)
that the lead agency notify the local educational agency in which
a child with a disability resides when the child is approaching the
age of three, and convene, with family approval, a transition
planning conference which includes the lead agency, the family and
the LEA at least 90 days, and at the discretion of the parties, up
to 6 months before the child's third birthday. Implicit in these
requirements is the requirement that the lead agency inform the LEA
early enough so that the LEA can arrange to participate in the
conference. Additional clarification in the Part B regulations is
not necessary.
    Changes: None.

Private Schools (Sec. 300.133)

    Comment: A few commenters requested that the regulations be
revised to require each State to include, as part of the policies
and procedures that it must have on file with the Secretary in
order to establish eligibility under Part B of the Act, the
policies and procedures that the State has established to comply
with the provisions of Sec. 300.454(b), which requires that each
LEA consult with representatives of private school children with
disabilities in making determinations regarding the provision of
special education and related services to children with
disabilities who have been placed by their parents in private
schools.
    Discussion: Section 300.133 specifically requires that each
State ``have on file with the Secretary policies and procedures
that ensure that the requirements of Secs. 300.400-300.403 and
Secs. 300.450-300.462 are met.'' Thus, the regulation already
requires that the procedures required by Sec. 300.454(b) be
included in the policies and procedures that each State must have
on file to establish eligibility.     Changes: None.

Comprehensive System of Personnel Development (Sec. 300.135)

    Comment: A few commenters requested that the regulation be
revised to require that each State, in developing its comprehensive
system of personnel development, consider the need for bilingual
special education and assistive technology instructors. Other
commenters requested that the regulations be revised to require
that special education, regular education, and related services
personnel be trained regarding the use of home instruction and the
circumstances under which such instruction is appropriate. Other
commenters requested that the regulation be revised to require that
each State have on file with the Secretary policies and procedures
on the equitable participation of private school personnel in staff
development, inservice, etc.     Discussion: The CSPD provisions in
Secs. 300.380-300.382 require each State to develop and implement
a CSPD to ensure ``an adequate supply of qualified special
education, regular education, and related services personnel''
(Sec. 300.380(a)(2)), and that ``all personnel who work with
children with disabilities * * * have the skills and knowledge
necessary to meet the needs of children with disabilities'' (Sec.
300.382). This would include, for example, consideration of the
needs of personnel serving limited English proficient students and
students who need assistive technology services and devices. The
Act and regulations leave to each State the flexibility to
determine the specific personnel development needs in the State.
    Matters related to the participation of private school staff in
inservice training and other personnel development activities are
decisions left to the discretion of each State and LEA, and,
therefore, should not be addressed under this part.
    Changes: None.
    Comment: None.
    Discussion: The Senate and House committee reports on Pub. L.
105-17, in reference to the CSPD requirements of this section state
that:

    Section 612, as [in] current law, requires that a State have in
effect a Comprehensive System of Personnel Development (CSPD) that
is designed to ensure an adequate supply of qualified personnel,
including the establishment of procedures for acquiring and
disseminating significant knowledge derived from educational
research and for adopting, where appropriate, promising

[[Page 12560]]

practices, materials, and technology. (S. Rep. No. 105-17, p. ; H.
R. Rep. No. 105-95, p. 93 (1997))

    The States will be able to use the information provided to meet
the requirement in Sec. 300.135(a)(2) as a part of their State
Improvement Plan under section 653 of the Act, if they choose to do
so.     Changes: Consistent with the decision to not include notes
in the final regulations, the note following this section has been
deleted.

Personnel Standards (Sec. 300.136)

    Comment: Commenters made a number of suggestions regarding
general modifications to this section. Some commenters expressed
concern that in no case should children with disabilities receive
services from individuals who do not meet the highest requirements
applicable to their professions. Commenters recommended
clarification requiring LEAs to ensure that all personnel are
adequately trained to meet all the requirements of the IDEA, with
emphasis on any requirement on which the LEA has been found by the
SEA to be out of compliance, such as the failure to provide
necessary assistive technology devices and services.     Some
commenters recommended that the definition of ``appropriate
professional requirements in the State'' in Sec. 300.136(a)(1) be
amended to include an explicit reference to ``professionally-
recognized'' entry level requirements. Other commenters requested
additional clarification regarding the term ``highest requirements
in the State.'' Those commenters who interpreted the term as
imposing the maximum standard recommended that the definition be
amended to specify that every provider of special education and
related services must have a doctorate. Some commenters recommended
clarification that highest requirements in the State are the
minimum requirements established by a State which must be met by
personnel providing special education and related services to
children with disabilities under Part B.     Numerous comments were
received regarding Note 1 to this section of the NPRM, and
regarding Note 3 as it relates to paragraphs (b) and (c) of this
section. A number of commenters indicated that they had found Note
1 to be extremely useful in understanding the scope of this
section; however, other commenters recommended that Note 1 either
be deleted entirely, or that the substance of the note be
incorporated into the text of Sec. 300.136. While many commenters
recommended that Note 3 either be retained as a note or
incorporated into the regulations, other commenters recommended
that Note 3 be deleted because it would ``nullify'' the
requirements of this section.     Discussion: The substance of Sec.
300.136 of the NPRM has been retained in these final regulations,
but the notes have been removed. Section 300.136 incorporates the
provisions on personnel standards contained in Sec. 300.153 of the
current regulations, with the addition of the new statutory
amendments in section 612(a)(15)(B)(iii) and (C) of the Act.
    The IDEA Amendments of 1997 do not alter States'
responsibilities to (1) establish policies and procedures relating
to the establishment and maintenance of standards for ensuring that
personnel necessary to carry out the purposes of this part are
appropriately and adequately prepared and trained, (2) establish
their own minimum standards for entry-level employment of personnel
in a specific profession or discipline providing special education
and related services to children with disabilities under these
regulations based on the highest requirements in the State across
all State agencies serving children and youth with disabilities,
and (3) if State standards are not based on the highest
requirements in the State applicable to a specific profession or
discipline, take specific steps to upgrade all personnel in that
profession to appropriate State qualification standards by a
specified date in the future.
    Contrary to the suggestion made by commenters, the Act's
personnel standards provisions are not intended to be a mechanism
for addressing problems that result from the denial of special
educational services to children with disabilities under Part B. If
an SEA finds that any of its public agencies are out of compliance
with the requirements of Part B, the SEA, in accordance with the
general supervision requirements of section 612(a)(11) of the Act
and Sec. 300.600 of these regulations, must take whatever steps it
determines are necessary to ensure the provision of FAPE to
children with disabilities who are eligible for services under Part
B. In addition, through the comprehensive system of personnel
development (CSPD), an SEA must conduct a needs assessment and
identify areas of personnel shortages, as well as describe the
strategies it will use to address its identified needs for
preparation and training of additional personnel necessary to carry
out the purposes of Part B.
    There is no need to clarify the regulatory definitions of
``appropriate professional requirements in the State'' in
Sec. 300.136(a)(1) or ``highest requirements in the State
applicable to a specific profession or discipline'' in Sec.
300.136(a)(2). Section 300.136 incorporates verbatim the
definitions of these terms contained in the current regulations
implementing the Act's personnel standards provisions, which were
added to Part B by the Education of the Handicapped Act Amendments
of 1986, Pub. L. 99-457.
    These definitions are consistent with the congressional intent
that all personnel in a specific profession or discipline meet the
same standards across all State agencies; nevertheless, they still
afford States flexibility in determining the steps that must be
taken to upgrade all personnel in a specific profession or
discipline to meet applicable State qualification standards if the
SEA's standard is not based on the highest requirements in the
State applicable to the profession. The definition of ``highest
requirements in the State'' is based on the highest entry-level
academic degree required for employment in a specific profession or
discipline across all State agencies.
    As explained in Note 1 to this section of the NPRM, these
regulations require a State to use its own existing requirements to
determine the standards appropriate to personnel who provide
special education and related services under Part B of the Act, and
nothing in Part B requires that all providers of special education
and related services attain a doctorate or any other specified
academic degree, unless the State standard requires this academic
degree for entry-level employment in that profession or discipline.
    While States may consider professionally-recognized standards
in deciding what are ``appropriate professional requirements in the
State,'' there is nothing in the statute that requires States to do
so. Rather, these matters appropriately are left to States.
Therefore, to clarify the extent of flexibility afforded to States
in meeting the Act's personnel standards requirements, a new
paragraph (b)(3) should be added to these final regulations, and
provides, in accordance with Note 1 to this section, that nothing
in these regulations requires States to set any specified training
standard, such as a master's degree, for entry-level employment of
personnel who provide special education and related services under
Part B of the Act.
    States also have the flexibility to determine the specific
occupational categories required to provide special education and
related services and to revise or expand those categories as

[[Page 12561]]

needed. Therefore, the clarification regarding this issue contained
in the note to the current regulation should be incorporated as
part of paragraph (a)(3) in the definition of ``specific profession
or discipline.''
    Despite commenters' concerns that Note 3 would ``nullify'' the
requirements of this section, experience in administering the Act's
personnel standards provisions has demonstrated that there is a
need to afford States that have only one entry-level academic
degree for employment of personnel in a particular profession or
discipline the ability to modify that standard if the State
determines that modification of the standard is necessary to ensure
the provision of FAPE to all children with disabilities in the
State. Therefore, the substance of Note 3 should be incorporated
into this section as paragraph (b)(4).
    Changes: Note 1 has been removed as a note and incorporated, as
appropriate, both into the above discussion and into Sec. 300.136.
Note 2 has been removed as a note, and, as discussed later in this
attachment, the substantive portion of Note 2 has been incorporated
into Sec. 300.136(g) of these final regulations. Note 3 has been
removed as a note and has been incorporated into Sec. 300.136, as
explained below.
    Paragraph (a)(3) has been amended by adding a new paragraph
(iv), which states that the definition is not limited to
traditional occupational categories.
    New paragraphs (b)(3) and (b)(4) have been added, which provide
that (1) nothing in this part requires a State to establish a
specified training standard (e.g., a masters degree) for personnel
who provide special education and related services under Part B of
the Act, and (2) a State with only one entry-level academic degree
for employment of personnel in a specific profession or discipline,
may modify that standard without violating the other requirements
of this section.     Comment: Numerous comments were received
regarding the role of paraprofessionals and assistants under Part
B. Some commenters strongly cautioned against additional regulation
since determinations regarding the definitions of paraprofessionals
and assistants and the scope of their responsibilities will vary
widely from State to State and across disciplines. These commenters
also pointed out that Congress chose to provide only minimal
guidance in this area. Other commenters made a number of specific
suggestions for regulatory changes. Some commenters recommended
that the language in paragraph (f) be changed from ``may'' to
``shall'' to make it mandatory for States to use paraprofessionals
and assistants. Other commenters, who did not support the use of
paraprofessionals and assistants to assist in the provision of
services under Part B, recommended regulations prohibiting their
use.     Many commenters recommended that the regulations clarify
that paraprofessionals and assistants who assist in the provision
of speech pathology and audiology services under these regulations
must be supervised by an individual who meets the highest entry-
level academic degree requirement applicable to that profession.
Similarly, commenters requested clarification that all
paraprofessionals and assistants assisting in the provision of
special education and related services under Part B must meet their
profession's or discipline's highest entry-level academic degree
requirement.
    Some commenters recommended that the terms
``paraprofessionals'' and ``assistants'' be defined separately, and
that the roles and responsibilities and training be set out in the
regulations so that all States could have the same definitions,
since differences in definitions and responsibilities among States
could interfere with the rights of children with disabilities to
receive appropriate services under Part B. These commenters also
provided suggested definitions to address these concerns.
    Commenters also suggested specific language that (1) only those
paraprofessionals and assistants who are appropriately trained and
supervised are allowed to assist in the provision of services under
Part B in accordance with State law, regulations, written policy,
and accepted standards of professional practice, and only assist in
the provision of services with the consent of their supervisors;
(2) para-professional and assistant services must be delivered
under the direct, ongoing and regular supervision of a qualified
professional with competency in the technique(s) employed by the
paraprofessional or assistant; (3) paraprofessionals and assistants
may not develop, modify, or provide services independent of or
without such supervision, and may report findings but not make
diagnostic or treatment recommendations to special education
decision making teams; (4) the roles, supervision and training of
paraprofessionals and assistants must be consistent with the
professional standards of the different areas in which they work;
(5) paraprofessionals and assistants, at a minimum, must receive
organized in-service training under the direct, ongoing and regular
supervision of a qualified professional with competency in the
technique being employed by the paraprofessional or assistant; and
(6) the State must have information on file with the Secretary that
demonstrates that the State has laws, regulations, or written
policies related to the training, use, and supervision of
paraprofessionals and assistants.
    Some commenters recommended that Sec. 300.136 be amended to
expand services that paraprofessionals and assistants could assist
in providing under Part B. Other commenters maintained that the use
of paraprofessionals and assistants to assist in the provision of
some special education and related services should be prohibited.
For example, some commenters recommended that the regulations be
clarified to specify that paraprofessionals may not assist in the
provision of mental health services, while other commenters
recommended
clarification indicating that paraprofessionals and assistants
could assist in the provision of psychological services, including
evaluation and treatment services, only under the supervision of a
school psychologist.
    Other commenters requested clarification regarding whether
paraprofessionals could ever be used in lieu of special education
teachers. A few commenters stated that in no case should medical
procedures be provided by untrained individuals, and requested
clarification to this effect.
    A number of commenters recommended that parents must be
notified whenever paraprofessionals or assistants are assigned to
assist in the provision of services. Other commenters recommended
that this type of notice is necessary whenever students with
disabilities receive services from an individual who does not meet
the highest requirement applicable to their professions, and that
parents should have the right to challenge this issue through the
IEP process.
    Discussion: Section 300.136(f) tracks the statutory requirement
in section 612(a)(15)(B)(iii), which permits, but does not require,
the use of paraprofessionals and assistants who are appropriately
trained and supervised, in accordance with State law, regulations,
or written policy, to assist in the provision of special education
and related services under Part B. Since the statute affords a
State the option of using paraprofessionals and assistants to
assist in the provision of special education and related services
to children with disabilities, it would be inappropriate to
regulate in a manner

[[Page 12562]]

that would either require or prohibit the use of paraprofessionals
and assistants under Part B.
    The statute makes clear that the use of paraprofessionals and
assistants who are appropriately trained and supervised must be
contingent on State law, regulation, or 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, and, if so, to what
extent their use would be permissible. Therefore, there is no need
to provide definitions of the terms ``paraprofessionals'' and
``assistants'' in these regulations, since States have the
flexibility to determine the scope of their responsibilities.
    Section 300.382 of these regulations requires States to include
in their CSPD a plan for the inservice and preservice preparation
of professionals and paraprofessionals. Appropriate training and
supervision are prerequisites for use of paraprofessionals and
assistants under Part B, and determinations of what constitutes
``appropriate'' training and supervision are matters for each State
to decide, based on factors relevant to each profession or
discipline. Because these regulations do not specify any particular
standard for persons providing special education and related
services, but instead leave such determinations to States, there
also is no need to specify any particular standards for
paraprofessionals and assistants or their supervisors in these
regulations.
    No regulatory changes are necessary regarding information that
a State that uses paraprofessionals and assistants to assist in the
provision of special education and related services must have on
file with the Secretary, since this information already would be
part of the personnel standards portion of the State's Part B State
plan. If a State chose to adopt a policy regarding the use of
paraprofessionals and assistants, the State would be required to
submit its policy to the Department only if that policy constitutes
a change from the information contained in the State's prior year
Part B State submission, under section 612(c) of the Act.
    In addition, there is no need to specify whether
paraprofessionals and assistants can assist in the provision of
psychological services, including mental health services, under
these regulations, or to what extent they can participate in the
testing process, since State laws, regulations, and written
policies, not Part B requirements, would govern these
determinations. With respect to ``medical services,'' however, it
should be noted that only those medical services that are for
diagnostic and evaluation purposes are eligible related services
under Part B. Another category of ``related services,'' ``school
health services,'' may be provided by a school nurse or other
qualified person in accordance with applicable State qualification
standards. It is critical that States that use paraprofessionals
and assistants do so in a manner that is consistent with the rights
of children with disabilities to FAPE under Part B. Since the Act
provides that paraprofessionals and assistants may assist in the
provision of special education and related services, their use as
teachers would be inconsistent with a State's duty to ensure that
personnel necessary to carry out the purposes of Part B are
appropriately and adequately prepared and trained.
    Part B does not require that public agencies give parents
information on how paraprofessionals and assistants are assisting
in the provision of services to their children. However, public
agencies are encouraged to inform parents about whether
paraprofessionals are assisting in the provision of special
education and related services to their children, including the
extent that these individuals are being supervised by appropriately
trained and qualified staff.
    No clarification has been provided regarding which services are
being provided by individuals who do not meet the ``highest entry-
level requirements'' applicable to their profession. The Act's
personnel standards provisions and these regulations at Sec.
300.136(c) make it permissible for States to use individuals who do
not meet the highest entry-level academic degree requirement
applicable to their profession, provided that the State is taking
steps to upgrade all personnel in that profession to appropriate
professional requirements in the State by a specified date in the
future. IDEA allows State the discretion to determine the
``specified date'' and does not prevent a State from making changes
to that date. Thus a State is not prohibited from extending its
timeline for retraining or hiring of personnel to meet appropriate
professional requirements in the State.
    Changes: None.
    Comment: A number of comments were received regarding
Sec. 300.136(g). These commenters requested definitions of ``most
qualified individuals available,'' ``good faith efforts,''
``geographic area,'' ``satisfactory progress,'' and ``shortages of
personnel,'' or the clarification of these terms.
    Numerous commenters objected to allowing States that have
upgraded all personnel in a specific profession or discipline to
appropriate professional requirements in the State to use personnel
who did not meet those standards if they were experiencing
personnel shortages. These commenters regarded this provision as
permitting these States to waive applicable personnel standards.
Some of these commenters advocated not allowing States to have a
policy that would extend the three-year time frame for individual
applicants who are hired under the ``waiver provision'' to become
fully qualified. Other commenters requested clarification to ensure
that paragraph (g) not be applied on a system-wide basis but
instead be applied to individuals on a case-by-case basis.
    Other commenters believed that paragraph (g) and Note 2 must be
deleted because under no circumstances should States that have
achieved the goal of upgrading all personnel in the State to meet
appropriate professional requirements have the option of employing
personnel, even temporarily, who do not meet applicable State
personnel standards.     Commenters requested specific
clarification that a State may exercise the option under paragraph
(g) of this section even though the State has reached its
established date, under paragraph (c) of this section, for training
or hiring all personnel in a specific profession or discipline to
meet appropriate professional requirements in the State.
    While some commenters recommended that Note 2 either be
retained or incorporated into the regulations, many commenters
believed that Note 2 should be deleted because it encourages
protracted delays in attaining the highest requirement in the State
applicable to specific professions or disciplines.
    Discussion: Section 300.136(g) of the NPRM incorporates
essentially verbatim the new statutory provision at section
612(a)(15)(C) of the Act. Section 300.136(g) affords States the
necessary flexibility to serve children with disabilities if
instructional needs exceed available personnel who meet appropriate
State personnel qualification standards, even though the State has
satisfied the requirements of paragraph (c) of this section for
personnel in a specific profession or discipline. However, a
State's ability to permit its LEAs to utilize this option is
conditioned on a number of factors.
    Under Sec. 300.136(g), States are given the option of adopting
a policy of allowing LEAs in the State, that have made a good faith
effort to recruit and hire appropriately and adequately

[[Page 12563]]

trained personnel, in a geographic area of the State where there is
a shortage of personnel that meet applicable State qualification
standards, of using the most qualified personnel available who are
making satisfactory progress toward completion of applicable course
work necessary to meet applicable State qualification standards
within a three-year period.
    Therefore, in order for Sec. 300.136(g) to be invoked, the
State must have made good faith efforts to recruit and hire
appropriately and adequately trained personnel. However, before
other personnel can be utilized, there must be a shortage of
qualified personnel as determined by the State, in a geographic
area as defined by the State, to meet instructional needs. The
personnel who are utilized under these circumstances also must be
making satisfactory progress toward completion of applicable course
work within a three-year period.     While a State's decision to
invoke the policy under Sec. 300.136(g) depends on a variety of
State-specific factors, the statute does not restrict the State's
ability to invoke this policy if the conditions in Sec. 300.136(g)
are present. However, it is expected that the circumstances in
which the policy under paragraph (g) of this section will be
invoked will prove to be the exception rather than the rule.    
The information provided by commenters does not provide a
sufficient basis for restricting to only one three-year period a
State's ability to invoke Sec. 300.136(g). Therefore, to avoid
confusion, and consistent with the determination explained in Note
2 to this section in the NPRM, the portion of Note 2 that explains
that this section can be invoked even if a State has reached its
established date for a specific profession or discipline under
paragraph (c) of this section should be incorporated into the
regulations. Also, the clarification from Note 2 that a State that
continues to experience shortages of personnel meeting appropriate
professional requirements in the State must address those shortages
in its comprehensive system of personnel development should be
incorporated into the regulations.     Changes: Paragraph (g) of
this section of the NPRM has been designated as paragraph (g)(1) of
these regulations. New paragraphs (g)(2) and (g)(3) have been
added, and provide that (1) a State that has met its established
goal for a specific profession or discipline under paragraph (c) of
this section is not prohibited from invoking paragraph (g)(1); and
(2) each State must have a mechanism for serving children with
disabilities if instructional needs exceed available personnel, and
if a State continues to experience shortages of qualified
personnel, it must address those shortages in its comprehensive
system of personnel development.
    Comment: Some commenters requested that clarification be
provided to ensure that personnel with disabilities were hired. One
comment requested that a new paragraph (h) be added to the
regulations to specify that States not utilize standards that ``may
screen out or tend to screen out individuals with disabilities.''
Some commenters requested clarification regarding the applicability
of the personnel standards provisions to private school staff
serving children with disabilities parentally-placed in private
schools, and recommended that this be a part of the consultation
process.
    Other commenters recommended that these regulations require
that students who are deaf or hearing impaired receive appropriate
instruction in their native language, including sign language, and
that sign language interpreters meet particular qualification
standards.     Discussion: For the most part, the issues raised by
these commenters have been addressed elsewhere in these regulations
or through other statutory requirements; therefore, no further
clarification has been provided in this section. If State standards
screen out individuals with disabilities from providing special
education and related services under these regulations, they could
violate Federal civil rights laws that prohibit discrimination on
the basis of disability.
    In addition, as required by Section 427 of the General
Education Provisions Act (GEPA), each State must have on file with
its Part B application to the Secretary a description of the steps
the State is taking to ensure equitable access to, and
participation in programs and activities assisted with Part B funds
and must have identified the barriers to equitable participation
and developed strategies to address those barrier.
    The Part B CSPD provisions require each State to develop a plan
for the in-service and preservice preparation of professionals and
paraprofessionals who work with children with disabilities under
these regulations. One of the strategies that must be included in
this plan in accordance with Sec. 300.382(h) is how a State will
[r]ecruit, prepare, and retain qualified personnel, including
personnel with disabilities and personnel from groups that are
under-represented in the fields of regular education, special
education, and related services.''
    Therefore, in meeting their obligations under Part B and GEPA,
States are required to take steps to ensure equitable access of
individuals with disabilities to their programs and must take steps
to remove barriers which prevent such access. It is expected that
States that determine through their CSPD that they have employed an
insufficient number of individuals with disabilities will identify
and remove barriers to the employment of individuals with
disabilities in the State. This will ensure that qualified
individuals with disabilities are recruited and hired to provide
special education and related services to children with
disabilities under these regulations.     While sign language
interpreters must be able to provide appropriate instruction and
services to children who are deaf or hearing impaired, no
clarification is necessary, since States must establish and
maintain standards for all personnel who are providers of special
education and related services, including sign language
interpreters. See discussion of Sec. 300.23 (qualified personnel)
in Subpart A of this Attachment. In addition, section
614(d)(3)(B)(iv) of the Act requires the IEP team to consider the
language and
communication needs of children who are deaf or hard of hearing. To
ensure that this occurs, Sec. 300.136 would require each State to
ensure that the necessary personnel are appropriately and
adequately prepared and trained.
    The personnel standards provisions of these regulations are
applicable to persons providing services to children with
disabilities who are publicly placed in private schools and to
persons providing special education and related services to
parentally-placed private school children the LEA, after
consultation with representatives of private schools, has chosen to
serve.
    Changes: None.

Performance Goals and Indicators (Sec. 300.137)

    Comment: Some commenters requested that the regulations be
revised to clarify the responsibility of a State to establish
performance goals and indicators for children with disabilities if
the State has not established performance goals and indicators for
general education students. They also requested clarification of
States' responsibility to report to the Secretary and the public
regarding progress toward achieving the performance goals.
    Discussion: Further clarification is not required. As set forth
in Sec. 300.137(a),

[[Page 12564]]

each State is required to demonstrate that it has established
performance goals that are ``consistent, to the maximum extent
appropriate, with other goals standards for all children
established by the State.'' However, regardless of whether a State
has established goals for all children, it must establish goals for
the performance of children with disabilities, and must establish
indicators that the State will use to assess progress toward
achieving those goals that, at a minimum, address the performance
of children with disabilities on assessments, drop-out rates, and
graduation rates (Sec. 300.137(a) and (b)).
    The regulation also specifies that each State report every two
years 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 Sec. 300.137(a). The requested revisions
are not necessary.
    Changes: None.
    Comment: Some commenters requested that the regulation be
revised to require that, prior to each State's reporting to the
Secretary and the public every two years, as required by Sec.
300.137(c), the State conduct widely publicized forums at which
students, parents, and concerned citizens can comment on a draft
report, and that the State include the comments it receives as part
of its final report to the Secretary and the public. Other
commenters requested that the regulation be revised to require that
each State establish its goals for the performance of children with
disabilities with the cooperation and input of parents and children
with disabilities, teachers, and members of the community.
    Discussion: The Act requires that each State report every two
years to the Secretary and the public on the progress of the State
and of children with disabilities in the State toward meeting the
State's performance goals, but neither requires nor prohibits
States from implementing procedures to allow the public the
opportunity to comment on draft reports. It is appropriate to leave
the use of such procedures to the discretion of the States, and no
additional procedures regarding the reports are needed.
    In demonstrating eligibility under Part B, States are required
to submit information to the Department demonstrating that they
meet the requirements of this section of the regulations. Before
submitting that information to the Department, the States' proposal
will be subjected to public comment and involvement consistent with
the public participation provisions of Secs. 300.280-300.284. These
provisions include public notice and public hearings, and an
opportunity for the public to participate before that information
is submitted to the Department. The process applies to the initial
submission as well as any subsequent substantive provisions.
    Changes: None.

Participation in assessments (Sec. 300.138)

    Comment: A number of commenters raised concerns regarding the
note following Sec. 300.138, which states that it is assumed that
only a small percentage of children with disabilities will need
alternative assessments; some commenters requested that the
language of the note be incorporated into the regulation itself,
while others requested that the note be deleted, and further
commenters requested clarification regarding the meaning of 'small
percentage' in the note and who would enforce that requirement.
    Other commenters asked that the regulation clarify that the IEP
team must make the determination that a child will participate in
an alternate assessment. Others asked that the regulation be
revised to include criteria or guidelines in the regulation for
determining if an alternate assessment can be used for a child,
while others requested that the regulations require that each State
provide such guidance for IEP teams. Some commenters said that the
use of the term ``alternate assessment'' in the regulation and the
use of the term ``alternative assessment'' in the note caused
confusion, and asked that ``alternate assessment'' be defined.
Other commenters stated that costs of alternate assessments would
be prohibitive. Some commenters expressed concerns regarding the
use of accommodations. Some commenters were concerned that the use
of accommodations might affect test validity and standardization,
while others requested further guidance as to who has the authority
to determine whether a particular accommodation is necessary and
how that determination must be made. Some of the commenters
requested that the regulation specify that accommodations should
address students' specific needs and afford maximum
independence, while others said that a student's needs should be
accommodated by tools or assistive technology that he or she uses
on a daily basis or with which he or she is most familiar.
    Other commenters asked that a note be added to reaffirm the
State's responsibility to ensure that children are provided the
accommodations they need so that they can participate in State and
district-wide assessments. Some commenters requested clarification
as to whether students should participate in assessments according
to their performance level or the grade they are in based upon
their chronological age. Some commenters requested clarification as
to whether participation in alternate assessments was not required
until July 1, 2000. A few commenters requested a note to state that
assessment practices appropriate for children in grades 4 and older
might not be appropriate for younger children.
    Discussion: State and district-wide assessment programs are
closely aligned with State and local accountability-based reform
and restructuring initiatives. Therefore, it is important to allow
the flexibility needed for State and local school districts to
appropriately include disabled children in State and district-wide
assessment programs. Only minimum requirements are included in
these regulations for how public agencies provide for the
participation of children with disabilities in State and district-
wide assessments. The Department will be working with State and
local education personnel, parents, experts in the field of
assessment and others interested in the area of assessment to
identify best practice that could serve as the basis for a
technical assistance document. As provided in Sec. 300.347(a)(5),
the IEP team must determine whether a child with a disability will
participate in a particular State or district-wide assessment of
student achievement, and if the child will not, the IEP must
include a statement of why that assessment is not appropriate for
the child and how the child will be assessed. If IEP teams properly
make individualized decisions about the participation of each child
with a disability in general State or district-wide assessments,
including the use of appropriate accommodations, and modifications
in administration (including individual modifications, as
appropriate), it should be necessary to use alternate assessments
for a relatively small percentage of children with disabilities.
Consistent with the decision to not include notes in these final
regulations, the note is deleted.     Section 300.138 requires the
State or LEAs, as appropriate, to develop alternate assessments and
guidelines for the participation of children with disabilities in
alternate assessments for those children who cannot participate in
State and district-wide assessment programs. Alternate assessments
need to be aligned with the general curriculum standards set for
all students and should

[[Page 12565]]

not be assumed appropriate only for those student with significant
cognitive impairments.
    Section 300.347(a)(5) requires that the IEP team have the
responsibility and the authority to determine what, if any,
individual modifications in the administration of State or
district-wide assessments are needed in order for a particular
child with a disability to participate in the assessment. Section
300.138(a) should be revised to reflect the requirement that
modifications in administration of State or district-wide
assessments must be provided if necessary to ensure the
participation of children with disabilities in those assessments.
As part of each State's general supervision responsibility under
Sec. 300.600, it must ensure the appropriate use of modifications
in the administration of State and district-wide assessments.
    Test validity is an important variable and the Department has
invested discretionary funds in providing assistance to States
regarding appropriate modifications. The determination of what
level of an assessment is appropriate for a particular child is to
be made by the IEP team. It should be noted, however, that out of
level testing will be considered a modified administration of a
test rather than an alternative test and as such should be reported
as performance at the grade level at which the child is placed
unless such reporting would be statistically inappropriate.
    Although SEAs and LEAs are not required by Sec. 300.138 to
conduct alternate assessments until July 1, 2000, each SEA and LEA
is required to ensure, beginning July 1, 1998, that, if a child
will not participate in the general assessment, his or her IEP
documents how the child will be assessed.
    Changes: Paragraph (a) has been revised to acknowledge that,
for some children with disabilities, participation in State and
district-wide assessments may require appropriate modifications in
administration of the assessments as well as appropriate
accommodations. The note has been removed.

Reports Relating to Assessments (Sec. 300.139)

    Comment: Several commenters noted that the requirement in Sec.
300.139(b)(1) that each State's reports to the public include
``aggregated data that include the performance of children with
disabilities together with all other children'' exceeds the
requirements of the Act at section 612(a)(17)(B), and should be
deleted from the regulations. Other commenters requested
clarification as to whether States are required to aggregate data
regarding children who take alternate assessments with results for
students who take the general assessment. Other commenters
requested that the regulations require or suggest that States
disaggregate assessment results by disability category in reporting
results to the public. A few commenters requested that ``public
agency'' be replaced with ``SEA'' in the note following Sec.
300.139.
    Discussion: In order to ensure that students with disabilities
are fully included in the accountability benefits of State and
district-wide assessments, it is important that the State include
results for children with disabilities whenever the State reports
results for other children. When a State reports data about State
or district-wide assessments at the district or school level for
nondisabled children, it also must do the same for children with
disabilities. Section 300.139 requires that each State aggregate
the results of children who participate in alternate assessments
with results for children who participate in the general
assessment, unless it would be inappropriate to aggregate such
scores.
    Section 300.139 and the Act neither require nor prohibit States
from disaggregating assessment results by disability category in
reporting results to the public; this is a matter that should be
left to the discretion of each State. The text of Sec. 300.139
tracks the statute, which addresses reporting requirements of the
SEA.     The proposed note clarified that Sec. 300.139(b) requires
a public agency to report aggregated data that include children
with disabilities, but that a public agency is not precluded from
also analyzing and reporting data in other ways (such as,
maintaining a trendline that was established prior to including
children with disabilities in those assessments).
    Changes: Consistent with the decision to not include notes in
the final regulations, the note following Sec. 300.139 of the NPRM
has been removed.

Methods of ensuring services (Sec. 300.142)

    Comment: Commenters emphasized that a child's right to FAPE
should not be adversely affected because the child is eligible for
services under Title XIX of the Social Security Act (Medicaid). For
example, commenters recommended adding clarification prohibiting a
State Medicaid agency or a Medicaid managed care organization from
refusing to pay for or provide a service for which it would
otherwise be responsible under Medicaid because the service is part
of FAPE for a child.
    Some commenters recommended that Sec. 300.142(a)(4) be amended
to incorporate Senate language about use of Medicaid funds to
finance the cost of services provided in a school setting in
accordance with a child's IEP to ensure that Medicaid-funded
services are provided in the LRE and not in accordance with a
medical model. However, some commenters were concerned that
Medicaid funding would only be available for services for children
with disabilities in school settings, and that reimbursement for
services for children in other settings, such as the home, in
accordance with their IEPs, would be denied.
    Although many commenters acknowledged that Medicaid has been an
effective funding source for services in children's IEPs,
clarification was requested to ensure that there was not a delay in
or denial of services or alteration in types of services provided
to children with disabilities under these regulations, based on the
rules of some other provider or contractor.
    Many commenters noted that some LEAs will delay initiating a
service until Medicaid payments are made, and requested that Sec.
300.142(d) be amended to specify (1) a timeline to ensure that
services are not delayed until payment is received from another
agency; (2) a requirement that the LEA must provide the service and
seek reimbursement from the entity that is ultimately found to be
financially responsible; (3) a timeline for entering into
interagency agreements; and (4) a timeline for the prompt provision
of
noneducational services specified in a child's IEP. Some commenters
recommended that clarification be provided to specify that State
interagency agreements are binding on contractors and managed care
organizations.
    Other commenters recommended a specific enforcement mechanism
to make State IDEA grants contingent upon the existence and
effective operation of an interagency agreement that complies with
IDEA. Alternatively, the commenters' recommendation was that the
regulations be amended to provide a mechanism for school districts
to seek legal redress through the Department of Education or the
judiciary against any State agency which fails to act in accordance
with an existing legally-appropriate interagency agreement.
    While many commenters found the explanation in Note 1 to this
section of the NPRM useful in understanding the intent of these
requirements and therefore recommended that the note either be
retained or incorporated into the regulation, other commenters

[[Page 12566]]

recommended that Note 1 be removed because it exceeded the statute. 
   Discussion: While the concerns expressed by these commenters are
very significant, most of them either already are addressed in this
section or elsewhere in these regulations. However, in light of the
general decision to remove notes from these final regulations, Note
1 should be removed as a note, but pertinent portions are
incorporated in this discussion. Regarding the concern that a
child's entitlement to FAPE not be construed as relieving a
Medicaid provider or other public insurer of its responsibility to
pay for required services under these regulations, Sec. 300.601
implements the statutory provision at section 612(e) of the Act,
which provides that Part B does not permit a State to reduce
medical or other assistance 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. Section
612(a)(12) of the Act, which is implemented by Sec. 300.142,
reinforces this important principle. This new statutory provision
emphasizes the obligation for interagency coordination between
educational and noneducational public agencies to ensure that all
services necessary to ensure FAPE are provided to children with
disabilities, and that the financial responsibility of the State
Medicaid agency or other public insurer shall precede that of the
LEA or State agency responsible for developing the child's IEP.
    However, there is nothing in this provision that alters who is
eligible for, or covered services under Medicaid or other public
insurance programs. Therefore, the regulations should make clear
that the coverage of or service requirements for Title XIX or Title
XXI of the Social Security Act as defined in Federal statute,
regulation or policy or the coverage of or service requirements for
any other public insurance program are not affected by the IDEA
regulation.
    With regard to the concern that services paid for with Medicaid
funds must be provided in the LRE, and, if appropriate, at home,
payment for services cannot be conditioned solely on the setting in
which necessary services are provided. Regardless of whether
services are paid for with Part B or with Medicaid funds, all
special educational services for children with disabilities under
Part B must be individually-determined and provided in the least
restrictive setting in which the disabled child's IEP can be
implemented.     In response to the suggestions of commenters, the
concept explained in the Senate and House Committee Reports on Pub.
L. 105-17 which had been incorporated into Note 1 to this section
of the NPRM, should be added to paragraph (b)(1) of these
regulations to emphasize that health services provided to children
with disabilities who are Medicaid-eligible and meet the standards
applicable to Medicaid, may not be disqualified from Medicaid
reimbursement because they are services provided in a school
context in accordance with a child's IEP. However, if a public
agency is billing a State Medicaid agency or other public insurance
program for services provided under this part, the public agency
must ensure that the services and the personnel providing those
services meet applicable requirements under statute, regulation or
policy applying to that other program.
    Similarly, if the IEP team determines that a child needs to
receive a particular service at home in order to receive FAPE, that
service would not be disqualified from Medicaid reimbursement under
the terms of these regulations, and States must address such
concerns in the context of their interagency agreements under the
terms of paragraph (a) of this section.
    In response to numerous comments requesting clarification on
the issue of timely delivery of services paid for by noneducational
public agencies, it is particularly important to ensure that there
are no undue delays in the provision of required services due to
the failure of a noneducational public agency to reimburse the
educational public agency for required services for which the
noneducational public agency is responsible. Such delays could
effectively nullify the requirements for interagency coordination
in section 612(a)(12) of the Act.     Although paragraph (a)(4) of
this section already includes a requirement that agencies have
procedures that promote the
coordination, timely, and appropriate delivery of services under
these regulations, in response to concerns of commenters, the
concept from the language in the Senate and House Committee Reports
on Pub. L. 105-17, which is restated in Note 1 to this section of
the NPRM, is important to clarify understanding of these final
regulations. Paragraph (b)(2) of this section should be revised to
clarify that the provision of services under this section must be
provided in a timely manner.
    No specific timelines have been included in these regulations.
However, States are required to take the necessary steps to enter
into appropriate interagency agreements between educational and
noneducational public agencies, including ensuring the prompt
resolution of interagency disputes. Effective interagency
coordination should facilitate the timely delivery of special
educational services as well as minimize any undue delays in the
delivery of such services financed by noneducational public
agencies.
    Despite suggestions of commenters, no provision has been added
regarding the responsibilities of contractors, since the
noneducational public agency, not the contractor, is the party to
the agreement.     No enforcement mechanism has been specified in
these regulations. Under paragraph (a) of this section, the SEA
must develop a mechanism for resolving disputes between respective
agencies regarding financial responsibility for required services,
and must ensure that all services needed to ensure the provision of
FAPE are provided, including during the pendency of any interagency
dispute.
    Because a mechanism for interagency coordination is a condition
of eligibility for assistance under Part B, a State that fails to
develop an effective mechanism for resolving interagency disputes
and ensuring the provision of required services during the pendency
of such disputes could jeopardize its continued eligibility for
IDEA funding.     Further, under section 613(a)(1) of the Act, in
order for an LEA to be eligible for Part B funds from the State for
any fiscal year, the LEA must have in effect policies, procedures,
and programs that are consistent with the State policies and
procedures established under section 612 of the Act. This would
include the requirement in section 612(a)(12) relating to methods
of ensuring services.
    Changes: Section 300.142 has been amended by adding language to
paragraph (b)(1) to specify that a noneducational public agency may
not disqualify an eligible service for Medicaid reimbursement
because that service is provided in an educational context.
Paragraph (b)(2) has been amended to indicate that services must be
provided in a timely manner, by the LEA (or State agency
responsible for developing the child's IEP). Note 1 to this section
of the NPRM has been removed. A new paragraph (i) has been added to
this section to clarify that nothing in this part should be
construed to alter the requirements imposed on a State Medicaid
agency, or any other agency administering a public insurance
program under Federal statute, regulations or policy for Title XIX
or

[[Page 12567]]

Title XXI of the Social Security Act, or any other public insurance
program.
    Comment: Commenters recommended that a statement be added to
Sec. 300.142(a)(4) to specify that services financed as a result of
interagency coordination are to supplement, not supplant, services
provided by the LEA. Other commenters asked that Sec. 300.142(a)(4)
be amended to specify that school-employed personnel must be the
first resource for providing related services. In addition,
commenters also recommended that clarification be added to specify
that the use of contract personnel or other arrangements should not
supersede or supplant the use of school based personnel, with very
limited exceptions.
    Discussion: The requirement in section 612(a)(12)(A) of the
Act, also reflected in paragraph (a)(1) of this section (which
specifies that the financial responsibility of the State Medicaid
agency or other public insurer of children with disabilities must
precede that of the LEA or State agency responsible for the
provision of FAPE) should not be construed to mean that Medicaid-
funded services are supplemental to the basic services provided
under these regulations. Regardless of the source of payment, the
public agency responsible for educating the disabled child still
must ensure that the child receives all required services at no
cost to the parents. Therefore, if Medicaid funds only a portion of
required services based on service caps, the public agency
responsible for the provision of FAPE must ensure that any
remaining necessary services are provided at no cost to the
parents. However, a public agency may not make decisions regarding
the provision of required services to children with disabilities
under these regulations based solely on availability of Medicaid
funding. To the contrary, if a public agency determines that
particular services are necessary to ensure the provision of FAPE
to children with disabilities, those services must be provided at
no cost to the parents, regardless of whether Medicaid funds the
service.
    No clarification has been provided regarding selection of
personnel to provide required services under these regulations. In
ensuring the provision of FAPE, public agencies may use any
personnel that meet applicable State standards in accordance with
Secs. 300.136 and 300.23 of these regulations. However, as noted
above, if a public insurance program is billed for services
provided under this part, those services must meet the requirements
of that program, including personnel standards that apply to that
program, in addition to conforming with the requirements of this
part. Once determinations about personnel qualifications have been
made, Part B does not govern the manner in which necessary
personnel are selected to meet instructional needs under these
regulations.
    Changes: None.
    Comment: Commenters recommended clarification to specify that
all services must be free from direct and indirect costs to
parents. A principal concern of commenters was that even in
circumstances where it is highly probable that future financial
costs will result, parents feel constrained to permit public
agencies to access their insurance because of the fear of losing
necessary services for their disabled children.
    Many commenters believe that there is always a cost associated
with using private insurance, i.e., exhaustion of lifetime caps,
decreased benefits, increased co-pays and costs, risk of future
uninsurability with another insurance carrier, and possible
termination of health insurance. These commenters recommended that
a new paragraph be added to this section, which would require
public agencies to inform parents that voluntary use of their
private insurance could entail these risks, that parents have no
obligation to permit access to their insurance payments, and have
the right to say no. These commenters also recommended that Note 2
to this section of the NPRM be deleted.     Some commenters also
objected that Sec. 300.142(e) does not support the concept of
obtaining parental permission for use of public insurance, and
recommended that the regulation specify that parents must give
informed consent to use of their public or private insurance which
(1) must be voluntary on the part of parents, (2) renewed at least
annually, (3) can be revoked at any time, and (4) must include a
written description of ``potential financial costs'' associated
with using their insurance. Other commenters agreed with proposed
paragraph (e)(1) and Note 2 and urged that they be retained in the
final regulations.
    Discussion: Proposed paragraph (e)(1) of this section of the
NPRM incorporated the interpretation of the requirements of Part B
and Section 504 contained in the Notice of Interpretation (Notice)
on use of parents' insurance proceeds, published on December 30,
1980 (45 FR 86390). Under the interpretation in the Notice, public
agencies may not access private insurance if parents would incur a
financial cost, and use of parent's insurance proceeds, if parents
would incur a financial cost, must be voluntary on the part of the
parent.
    In light of the concerns of numerous commenters that the use of
private insurance always involves a current or future financial
cost to the parents, and the Department's experience in
administering Part B, the regulations regarding use of private
insurance should be revised. As numerous commenters have indicated,
parents who permit use of their private insurance often experience
unanticipated financial
consequences. These parents often act without full knowledge of the
future impact of their decision. Public agencies should be
permitted to access a parent's private insurance proceeds only if
the parent provides informed consent to use.
    Consistent with the definition of ``consent'' in these
regulations, such consent must fully inform parents that they could
incur financial consequences from the use of their private
insurance to pay for services that the school district is required
to provide under the IDEA, such as surpassing a cap on benefits,
which could leave them uninsured for subsequent services, and that
the parents should check with their private insurance provider so
that they understand the foreseeable future financial costs to
themselves before they give consent. This consent should be
obtained each time a public agency attempts to access private
insurance, and be voluntary on the part of the parents.
    In addition, parents need to be informed that their refusal to
permit a 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. However,
the suggestion of commenters that parents be informed that they
have the right to refuse use of their private insurance because of
future risks of financial consequences has not been adopted because
it is unnecessary, in light of the new requirement that public
agencies obtain parental consent to use a parent's private
insurance.     Changes: A new paragraph (f) has been added to
clarify the circumstances under which public agencies may access
parent's private insurance to pay for required services under these
regulations. Note 2 to this section of the NPRM has been removed.
    Comment: The majority of commenters urged regulations on the
use of public insurance that would parallel those governing use of
private insurance. Commenters recommended that regulations clarify
that the same protections available to parents when

[[Page 12568]]

public agencies access private insurance are available to parents
when public agencies access public insurance. These commenters also
disagreed with the statement on page 55036 of the preamble to the
NPRM that suggested that regulation on this issue was not necessary
because there is no financial loss to parents under current public
assistance programs such as Medicaid.
    Examples of financial costs cited by commenters resulting from
Medicaid use were (1) limitation or decrease in public insurance
benefits available to children with disabilities and their families
for non-school needs; (2) a requirement that private insurance
initially be used before Medicaid funds are made available; (3)
limitations on amounts of services that can be reimbursed with
Medicaid funds; and (4) premiums or co-pays resulting from use of
Medicaid funding.     Commenters also requested that the definition
of ``financial cost'' be expanded to include costs such as a risk
of losing eligibility for home and community-based waivers based
upon aggregate health-related expenditure, and costs associated
with Medicaid buy-ins. These commenters also recommended that the
regulations clarify that parental consent must be obtained before
a public agency can access Medicaid or other public insurance
benefits available to the parent.
    Some commenters urged the elimination of definitions or terms
not included in the statute, such as the definition of financial
cost. Other commenters recommended that changes not be made and
agreed with the statement in the preamble to the NPRM that there is
no financial cost to parents who access Medicaid or other public
insurance benefits. These commenters believed that the regulation
should state that parental permission need not be obtained before
accessing public insurance. Some of these commenters also
recommended further observation and study of current State
practices to ensure that the regulations do not have an adverse
impact on currently existing and effective financial systems. These
commenters also recommended additional guidance to allow States
maximum flexibility to utilize all available resources.
    Some commenters recommended that Note 3 be retained as a note
or that pertinent portions be incorporated into the regulation,
while others requested that Note 3 be deleted.
    Discussion: As numerous commenters pointed out, the statutory
basis of the 1980 Notice of Interpretation governing use of private
insurance proceeds also applies to children with disabilities who
have public insurance. In both instances services under Part B must
be at no cost to parents. In view of the comments received, it
appears that the statement contained on page 55036 of the preamble
to the NPRM, which indicates that there is no risk of financial
cost to parents if public agencies use Medicaid or other Federal,
State or local public insurance programs, is not entirely accurate.
    While it is essential that public agencies have the ability to
access all available public sources of support to pay for required
services under these regulations, services must be provided at no
cost to parents. However, in the majority of cases, use of Federal,
State or local public insurance programs by a public educational
agency to provide or pay for a service to a child will not result
in a current or foreseeable future cost to the family or child. For
example, under the Early Periodic Screening, Diagnosis and
Treatment (EPSDT) program of Medicaid, potentially available
benefits are only limited based on what the Medicaid agency
determines to be medically necessary for the child and are not
otherwise limited or capped. Currently, approximately 90 percent of
the school-aged children who are eligible for public insurance
programs are eligible for services under the EPSDT program. Where
there is no cost to the family or the child, public educational
agencies are encouraged to use the public insurance benefits to the
extent possible. It also should be noted that a public educational
agency is required to provide a service that is needed by a child
and has been included on his or her IEP but that is not considered
medically necessary under EPSDT or other public insurance program.
As is the case for any other service required by a child's IEP, if
a service on a child's IEP is provided by a public insurance
program at a site that is separate from the child's school, the
public educational agency is responsible for ensuring that the
transportation is at no cost to the child or family.
    There are some situations, however, that should be addressed by
the regulation to ensure that use of public insurance does not
result to a cost to the child or family. In some public insurance
programs, families are required to pay premiums or co-pay amounts
in order to be covered by or use the public insurance. Parents of
children with disabilities under Part B should not be required to
assume those costs so that a school district can use the child's
public insurance to cover services required under Part B. While
these regulations do not affect the requirement under Medicaid that
the State Medicaid agency pursue liable third party payers such as
private insurance providers, for the reportedly relatively small
number of children and families who are covered by both private and
public insurance, under IDEA parents may not be required to assume
costs incurred through use of private insurance so that the school
can get reimbursement from the public insurer for services in the
child's IEP. Under IDEA, if a Medicaid-enrolled child also is
covered by private insurance, the public agency must choose one of
two options--either obtain the parent's consent to use the private
insurance, or not use Medicaid to provide the service. One way a
public agency might be able to obtain that consent would be to
offer to cover the costs that would normally, under Medicaid, be
assessed against the private insurer. Similarly, if under Medicaid
a parent or family normally would incur an out-of-pocket expense
such as a co-pay or deductible, a public agency may not require
parents to incur that cost in order for their child to receive
services required under the IDEA. In such a case, again, the public
agency must choose one of two options--either cover the out-of-
pocket expense so that the parent does not incur a cost, or not use
Medicaid to provide the service. The regulations should make clear
that a public agency is able to use Part B funds to pay the cost
that under Medicaid requirements would otherwise be covered by a
third party payer.
    Public insurance limits of the amounts of services that will be
covered based on the public insurer's determination of what is
medically necessary for the child are not prohibited by Part B.
However, a public educational agency's use of a child's benefits
under a public insurance program should not result in the family
having to pay for services that are required for the child outside
of the school day and that could be covered by the public insurance
program. For example, if a public insurer were to determine that
eight hours of nursing services were medically necessary for a
child whose medical devices needed constant trained supervision, a
school district's use of six of those hours during the school day
would mean that family would have to assume the financial
responsibility for those services throughout the night. In such a
case, the family would be incurring a cost due to the school
district's use of the public insurance benefit. Risk of loss

[[Page 12569]]

of eligibility for home and community-based waivers, based in
aggregate health-related expenditures could also constitute a cost
to a family for those few children with very extensive health
related needs.     A public agency may not require a parent to sign
up for Medicaid or other public insurance benefits as a condition
for the child's receipt of FAPE under Part B. A child's entitlement
to FAPE under Part B exists whether or not a parent refuses to
consent to the use of their Medicaid or public insurance benefits
or is unwilling to sign up for Medicaid or other public insurance
benefits. Children with disabilities are entitled to services under
Part B, regardless of parents' personal choices to access Medicaid
or other public insurance benefits.     Although section 612(a)(12)
of the Act makes clear States' obligations to ensure that available
public sources of support precede responsibilities of public
agencies under these regulations, Medicaid or other public
insurance benefits cannot be considered available public sources of
support when parents decline to access those public benefits.
However, there is nothing in these regulations that would prohibit
a public agency from requesting that a parent sign up for Medicaid
or other public insurance benefits. Furthermore, a public agency
would not be precluded from using a child's public insurance, even
if parents incur a financial cost, so long as the public agency's
use of a child's public insurance is voluntary on the part of the
parent.
    In order to ensure that children with disabilities are afforded
a free appropriate public education at no cost to their parents,
the regulation should be amended to address children with
disabilities who are covered by public insurance by specifying that
a public agency may use Medicaid or other public insurance benefits
programs in which a child participates with certain exceptions.
Those exceptions would be that a public agency may not require
parents to sign up for public insurance in order for their child to
receive FAPE under Part B of the Act; require parents to incur out-
of-pocket expenses related to filing a public insurance claim for
Part B services; and may not use the public insurance if the use
would decrease coverage or benefits, increase premiums, lead to
discontinuation of insurance, result in the family paying for
services that otherwise would be covered by the public insurance
and that are required by the child outside of the time the child is
in school, or risk loss of eligibility for home and community-based
waivers. However, unlike the rule related to private insurance,
Part B would not require the public agency to obtain parent consent
each time it uses the public insurance. Under the terms of the
public insurance program, consent may be required before a public
educational agency may use a child or family's public insurance
benefits.
    In light of the importance of the issues addressed in Note 3 to
this section of the NPRM, Note 3 should be removed as a note, and
a new paragraph (g), regarding use of Part B funds, should be added
to this regulation. This paragraph would permit use of Part B funds
for (1) the cost of those required services under these
regulations, if parents refuse consent to use public or private
insurance; and (2) the costs of accessing parent's insurance, such
as paying deductible or co-pay amounts.
    Changes: Paragraph (e) has been amended to address
circumstances under which a public agency can access a parent's
Medicaid or other public insurance benefits to pay for required
services under these regulations. The definition of financial costs
in the NPRM has been deleted. Note 3 to this section of the NPRM
has been removed, and the substance of Note 3 has been incorporated
into a new paragraph (g) of this section.
    Comment: Several commenters were concerned that Sec. 300.142(f)
of the NPRM makes it permissible for public agencies not to use
funds reimbursed from another agency to provide special education
and related services to children with disabilities. Suggestions
made by commenters were that this paragraph either be deleted or
changed to require that these reimbursed funds must be used in this
program.
    Commenters recommended that Note 4 be deleted since it gives
public agencies the option of dedicating these funds to the Part B
program only if they choose to do so. These commenters believe that
this change is necessary for this regulation to be consistent with
the purpose of section 612(a)(12) of the Act, which places
financial responsibility for the provision of special education and
related services on agencies other than schools. Other commenters
recommended that Note 4 be deleted because it is redundant of Sec.
300.3, which provides that the regulations in 34 CFR part 80 apply
to this program.
    Discussion: In response to concerns of commenters, Note 4
should be removed, but pertinent portions of Note 4 should be
incorporated into the text of the final regulations. This section
should clarify that, if a public agency receives funds from public
or private insurance for services under these regulations, the
public agency is not required to return those funds to the
Department or to dedicate those funds for use in the Part B
program, which is how program income must be used, although a
public agency retains the option of using those funds in this
program if it chooses to do so. Reimbursements are similar to
refunds, credits, and discounts which are specifically excluded
from program income in 34 CFR 80.25(a).
    In addition, the regulations should clarify that funds expended
by a public agency from reimbursements of Federal funds will not be
considered State or local funds for purposes of Secs. 300.154 and
300.231. If Federal reimbursements were considered State and local
funds for purposes of the maintenance of effort provisions in Secs.
300.154 and 300.231 of these regulations, SEAs and LEAs would
experience an artificial increase in their base year amounts and
would then be required to maintain a higher, overstated level of
fiscal effort in the succeeding fiscal year.
    Changes: Section 300.142(f) has been redesignated as
Sec. 300.142(h) and revised to clarify that (1) A public agency
that receives proceeds from public or private insurance for
services under these regulations is not required to return those
funds to the Department or to dedicate those funds to this program
because they will not be treated as program income under 34 CFR
80.25; and (2) funds expended by a public agency from
reimbursements of Federal funds will not be considered State or
local funds for purposes of Secs. 300.154 and 300.231 of these
regulations. Note 4 to this section of the NPRM has been removed.

Recovery of Funds for Misclassified Children (Sec. 300.145)

    Comment: Some commenters requested that the regulation be
revised to provide a State the opportunity for a hearing before a
student is declared ineligible for Part B funding.
    Discussion: Section 300.145 requires that each State have on
file with the Secretary policies and procedures that ensure that
the State seeks to recover any funds it provided to a public agency
under Part B of the Act for services to a child who is determined
to be erroneously classified as eligible to be counted under
section 611(a) or (d) of the Act. There is no need to revise the
regulation to provide for administrative review of a decision by
this Department that Part B funds should be recovered from a State
because of an erroneous child count. The Department uses the
administrative appeal procedures set out at 34 CFR Part 81 in
recovering funds because of an erroneous child

[[Page 12570]]

count for cases where the Department is attempting to recover grant
funds, including Part B funds.
    Changes: None.

Suspension and Expulsion Rates (Sec. 300.146)

    Comment: Some commenters requested the regulation be revised to
permit States to use sampling procedures to obtain the data that
they will examine pursuant to Sec. 300.146(a).
    Discussion: Obtaining complete and accurate data on suspension
and expulsion is too critical to be collected on a sampling basis. 
   Changes: None.
    Comment: Some commenters requested that Sec. 300.146(b) be
revised to require that a State review and if appropriate revise
its comprehensive system of personnel development, if the State
finds that significant discrepancies are occurring in the rate of
long-term suspensions and expulsions of children with disabilities
among LEAs in the State or compared to the rates for nondisabled
children within LEAs.
    Discussion: Section 300.146(b) requires that, if an SEA finds
that significant discrepancies are occurring in the rate of long-
term suspensions and expulsions of children with disabilities among
LEAs in the State or compared to the rates for nondisabled children
within LEAs, the SEA must, 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 behavioral interventions, and procedural
safeguards, to ensure that these policies, procedures, and
practices comply with the Act.     Among the policies that a State
would review and if necessary revise are its CSPD policies and
procedures related to ensuring that personnel are adequately
prepared to meet their responsibilities under the Act. Further,
Sec. 300.382 specifically requires each State to develop strategies
to ensure that all personnel who work with children with
disabilities (including both professional and paraprofessional
personnel who provide special education, general education, related
services, or early intervention services) have the skills and
knowledge necessary to meet the needs of children with
disabilities; and these strategies must include how the State will
``* * * enhance the ability of teachers and others to use
strategies, such as behavioral interventions, to address the
conduct of children with disabilities that impedes the learning of
children with disabilities and others'' (Sec. 300.382(f)). Further
guidance is not needed.
    Changes: None.

Public Participation (Sec. 300.148)

    Comment: None.
    Discussion: Section 300.148 requires each State to ensure that,
prior to the adoption of any policies and procedures needed to
comply with this part, there are public hearings, adequate notice
of the hearings, and an opportunity for comment available to the
general public, including individuals with disabilities and parents
of children with disabilities consistent with Secs.
300.280-300.284.
    In the past, a number of States have indicated that certain
State special education policies that are also required under this
part had previously been subjected to public review and comment
under the State's own public participation process, and the States
have expressed concern about having to repeat the process for those
policies under Secs. 300.280-300.284.
    The need for an effective public participation process is
critical to the adoption and implementation of policies and
procedures that comply with the requirements under this part.
However, if a State, in adopting State special education policies
had previously submitted those policies through a public
participation process that is comparable to and consistent with the
requirements of Secs. 300.280-300.284, it would be unnecessary and
burdensome to require the State to repeat the process.
    Therefore, a provision would be added to Sec. 300.148 to
clarify that a State will be considered to be in compliance with
this provision if the State has subjected the policy or procedure
to a public review and comment process that is required by the
State for other purposes and that State public participation
process with respect to factors such as the number of public
hearings, content of the notice of hearings, and length of the
comment period, is comparable to and consistent with the
requirements of Secs. 300.280-300.284.
    Changes: Section 300.148 has been amended to include the
provision described in the above discussion.

Prohibition Against Commingling (Sec. 300.152)

    Comment: None.
    Discussion: The proposed note clarified that the assurance
required by Sec. 300.152 is satisfied by the use of a separate
accounting system that includes an audit trail of the expenditure
of the Part B funds and that separate bank accounts are not
required, and referred the reader to 34 CFR Sec. 76.702 in EDGAR,
regarding Fiscal control and fund accounting procedures. Because
this information provides useful guidance to States, it should be
incorporated into the regulations.     Changes: The substance of
the note is incorporated into the text of the regulation.

Maintenance of State Financial Support (Sec. 300.154)

    Comment: None.
    Discussion: States should be able to demonstrate that they have
not reduced the amount of State financial support for special
education and related services for children with disabilities,
whether made directly available for those services or otherwise
made available in recognition of the excess costs of educating
children with disabilities on either a total or per child basis. A
number of States, for example, have State funding formulas that are
based on enrollment which could result in a decrease in the total
amount of State financial support if enrollment declines.
    Changes: Paragraph (a) of this section has been revised to
clarify that either a total or per child level of State financial
support is acceptable.

Annual Description of Use of Part B Funds (Sec. 300.156)

    Comment: Some commenters requested that the regulation be made
consistent with the statutory provision at section 611(f)(5) of the
Act by deleting Sec. 300.156(b).
    Discussion: It is reasonable and appropriate to permit a State,
if the information which it would submit pursuant to Sec.
300.156(a) for a given fiscal year is the same as the information
that it submitted for the prior fiscal year, to submit a letter to
that effect rather than resubmitting information that it has
previously submitted.
    Changes: None.

Excess Cost Requirement (Sec. 300.184)

    Comment: Some commenters asked that the regulation be revised
to require regular financial audits to ensure compliance with the
excess cost requirements.
    Discussion: Each SEA, as part of its general supervision
responsibility under Sec. 300.600, must ensure that LEAs comply
with all requirements of Part B, including the requirements of Sec.
300.184 regarding excess cost. Each SEA may meet this requirement
through a variety of methods, including monitoring and financial
audits.     Changes: None.

[[Page 12571]]

Meeting the Excess Cost Requirement (Sec. 300.185)

    Comment: None.
    Discussion: The proposed note clarified the Department's
longstanding position that: (1) The excess cost requirement means
that the LEA must spend a certain minimum amount for the education
of its children with disabilities before Part B funds are used,
ensuring that children served with Part B funds have at least the
same average amount spent on them, from sources other than Part B,
as do the children in the school district in elementary or
secondary school as the case may be; (2) excess costs are those
costs of special education and related services that exceed the
minimum amount; (3) if an LEA can show that it has (on the average)
spent the minimum amount for the education of each of its children
with disabilities, it has met the excess cost requirement, and all
additional costs are excess costs; and (4) Part B funds can then be
used to pay for these additional costs. However, several commenters
requested that the substance of all Notes be incorporated into the
text of the regulations or the Notes deleted.     Changes: The note
has been deleted.

Requirements for Establishing Eligibility (Sec. 300.192)

    Comment: Section 300.192(c) requires that, ``Notwithstanding
any other provision of Secs. 300.190-300.192, an educational
service agency shall provide for the education of children with
disabilities in the least restrictive environment, as required by
Sec. 300.130.'' Some commenters requested that the regulation be
revised to emphasize the appropriateness of children's educational
programs as strongly as placement in the least restrictive
environment.
    Discussion: Section 300.192(c) clarifies that notwithstanding
whether an LEA establishes Part B eligibility as a single LEA or
jointly with other LEAs, it must ensure compliance with the LRE
requirements of the Act. This provision does not in any way
diminish an LEA's responsibility to ensure that FAPE is made
available to all eligible children with disabilities.
    Changes: None.

LEA and State Agency Compliance (Sec. 300.197)

    Comment: Some commenters requested that the regulations be
revised to require that each SEA conduct sufficient monitoring
activities in each LEA and State agency, at least once every three
years, to enable the SEA to make findings regarding the extent to
which the agency is in compliance. Other commenters requested that
Sec. 300.197(a) be revised to reduce or cease to provide further
payments under Part B to an LEA or State agency if SEA finds that
the agency is engaging in a pattern of noncompliance or has failed
promptly to remedy any individual instance of noncompliance.
    Section 300.197(c) requires that an SEA consider any decision
resulting from a hearing under Secs. 300.507-300.528 that is
adverse to the LEA or State agency involved in the decision in
carrying out its functions under Sec. 300.197. Some commenters
requested that the regulation be revised to require that the SEA
also consider adverse decisions on complaints filed under Secs.
300.660-300.662.
    Discussion: Each SEA, as part of its general supervision
responsibility under Sec. 300.600, must ensure that all public
agencies meet the educational standards of the SEA, including the
requirements of Part B; and the General Education Provisions Act
requires that each SEA use effective monitoring methods to identify
and correct noncompliance with Part B requirements. In implementing
this requirement, each SEA must determine: (1) the frequency with
which it must monitor each of the public agencies in the State in
order to ensure compliance; and (2) whether a single act or pattern
of noncompliance demonstrates substantial noncompliance
necessitating the SEA to pursue financial sanctions.
    Unlike hearings that are resolved by impartial due process
hearing officers who are not SEA employees, all complaints under
the State complaint procedures alleging a violation of Part B are
resolved directly by the SEA, which must also ensure correction of
any violations it identifies in response to such complaints.
Therefore, the SEA will, as part of its general supervision
responsibilities, consider any adverse complaint decisions in
meeting its responsibilities under Sec. 300.197, and the requested
revision is not necessary.
    Changes: None.

Maintenance of Effort (Sec. 300.231)

    Comment: Some commenters expressed concern that the provision
on local maintenance of effort (MOE) would mean that even in years
when State legislatures increased State appropriations to offset
financial expenditures of LEAs, those funds could not be included
in making determinations as to whether the maintenance of effort
provision had been met.
    Discussion: The statutory LEA-level maintenance of effort
provision requires that LEAs do not use the funds they are awarded
under the IDEA to reduce the level of expenditures that they make
from local funds below the level of those expenditures for the
preceding year (except as provided in Secs. 300.232 and 300.233).
The statutory provision replaces a prior regulatory provision that
had required LEAs to maintain the same total or per capita
expenditures from State and local funds as in prior years, which
was viewed as financially burdensome by LEAs when they were
required, because of this prior regulatory provision, to replace
out of local funds any amount by which a State reduced the amount
of State funds going to an LEA.
    Therefore, in recognition of this change, the regulation would
allow a comparison of local funding in the grant year to local
funding in a prior year. If a State assumes more responsibility for
funding these services, such as when a State increases the State
share of funding for special education to reduce the fiscal burden
on local government, an LEA may not need to continue to put the
same amount of local funds toward expenditures for special
education and related services in order to demonstrate that it is
not using IDEA funds to replace prior expenditures from local
funds.
    On the other hand, an LEA should not be able to replace local
funds with State funds when the combination of local and State
funding is not at least equal to a base amount from the same
sources, as this would result in reductions in expenditures not
contemplated by the statute. Since those Federal funds for which
accountability is not required to a Federal or State agency are
expended at the discretion of an LEA, they may be included in
computations of local funds budgeted and expended for special
education and related services for children with disabilities.
    In determining whether an LEA could receive a subgrant in any
year, an SEA should compare the amount of funds from appropriate
sources budgeted for the grant year to the amount actually expended
from those sources in the most recent fiscal year for which data
are available. Reductions in the amount budgeted would be
permissible for the conditions described in Secs. 300.232 and
300.233, if applicable. An LEA that did not expend in a grant year
from those sources at least as much as it had in the year on which
the maintenance of effort comparison for that year is based, would
be liable in an audit for repayment of the amount by which it
failed to expend to equal the prior year's expenditures,

[[Page 12572]]

up to the total amount of the LEA's grant.
    Changes: A new paragraph has been added to clarify the
maintenance of effort provision.

Exception to Maintenance of effort (Sec. 300.232)

    Comment: Some commenters requested that the regulation be
revised to specifically require that lower-salaried staff who
replace special education and related services personnel, who
depart voluntarily or for just cause, meet entry-level academic
degree requirements that are based on the highest requirements in
the State for the relevant profession or discipline. Other
commenters requested retention of the provision in Sec. 300.233(a)
that an LEA may reduce its expenditures from one year to the next
if the reduction is attributable to the voluntary departure, by
retirement or otherwise, or departure for just cause, of special
education or related services personnel, but that the language
specifying that these personnel must be replaced by qualified,
lower-salaried staff and the note following this regulation be
deleted.     Discussion: The requirements of Sec. 300.136 regarding
personnel standards apply to personnel who replace special
education and related services personnel, who depart voluntarily or
for just cause. It is important to make clear in the regulation
that all staff providing special education and related services
must be qualified.
    The Senate and House committee reports on Pub. L. 105-17, with
respect to the voluntary departure of special education personnel
described in Sec. 300.232(a), clarify that the intended focus of
this exception is on special education personnel who are paid at or
near the top of the salary schedule, and sets out guidelines under
which this exception may be invoked by an LEA. These guidelines
(which provide that the agency must ensure that such voluntary
retirement or resignation and replacement are in full conformity
with existing school board policies in the agency, with the
applicable collective bargaining agreement in effect at that time,
and with applicable State statutes) are important in the
implementation of this section and, therefore, should be added to
the regulation. (S. Rep. No. 105-17, p. 16, H. R. Rep. No. 105-95,
p. 96 (1997)).
    Changes: Paragraph (a) has been amended to include the
substance of the note, consistent with the above discussion, and
the note has been removed.
    Comment: Some commenters requested that Sec. 300.232(c)(3) be
revised to specify that an LEA may reduce its expenditures from one
year to the next if the reduction is attributable to the
termination of the LEA's obligation to provide a program of special
education to a child with a disability that is an exceptionally
costly program, as determined by the SEA, because the child no
longer needs the program of special education, as determined in
accordance with the IEP requirements at Secs. 300.346 and 300.347.
    Discussion: Because any change in the special education and
related services provided to a child with a disability must be made
in accordance with the IEP requirements, the requested revision is
not necessary. The circumstances under which an LEA may reduce
effort because it no longer needs to provide an exceptionally
costly program are addressed by the regulations at Sec. 300.232(c).
    Changes: None.
    Comment: Some commenters requested that the regulation be
revised to require an LEA to submit to the SEA an assurance that
all students with disabilities in the LEA are receiving a free
appropriate public education, before the LEA would be permitted to
reduce its
expenditures.
    Discussion: As part of its general supervision responsibility
under Sec. 300.600, each SEA is required to ensure that all public
agencies in the State are complying with the requirement that they
make FAPE available to all eligible children in their respective
jurisdictions. Therefore, the requested revision is not necessary.
    Changes: None.

Schoolwide Programs Under Title 1 of the ESEA (Sec. 300.234)

    Comment: A commenter requested that, in Sec. 300.234(b), the
reference to Sec. 300.230(a) be changed to also include Sec.
300.230(b) or Sec. 300.231(a). Another commenter asked if an LEA
can use its State and local special education funds in a schoolwide
program without accounting for expenditures of those funds for
special education and related services, and added that if such use
is allowable, could the State and local funds be considered in the
LEA's maintenance of effort calculation.
    Discussion: The reference in Sec. 300.234 to Sec. 300.230(a) in
the NPRM should be changed to Sec. 300.230(b). If Part B funds are
used in accordance with Sec. 300.234, the funds would not be
limited to the provision of special education and related services.
They could also be used for other school-wide program activities.
However, children with disabilities in school-wide programs must
still receive special education and related services in accordance
with properly developed IEPs and must still be afforded all the
rights and services guaranteed under the IDEA.
    The use of IDEA funds in a school-wide program does not change
the LEA's obligation to meet the maintenance of effort requirement
in Sec. 300.231.
    Consistent with the general decision regarding the disposition
of notes, the note following Sec. 300.234 would be removed.
However, the note includes important guidance related to ensuring
that children with disabilities in schoolwide program schools still
receive services in accordance with a properly developed IEP, and
still be afforded all of the rights and services guaranteed to
children with disabilities under the IDEA. Therefore, this guidance
should be added to the text of the regulation as a specific
provision.
    It should be pointed out that the use of funds under Part B of
the Act in accordance with Sec. 300.234 is beneficial to children
with disabilities, and, contrary to informal concerns that have
been raised, the use of the Part B funds in schoolwide programs
does not deplete resources for children with disabilities. Rather,
it helps to ensure effective inclusion of those children into the
regular education environment with nondisabled children.
    Changes: Paragraphs (b), (c), and (d) have been reorganized as
paragraph (b) and (c) and revised to include the substance of the
note. The note has been deleted.

Permissive Use of Funds (Sec. 300.235)

    Comment: Some commenters requested clarification as to whether
LEAs are still required to maintain ``time and effort'' or other
records to document that Part B funds have been expended only on
allowable costs. Other commenters expressed their concern that,
with no limitation on the number of children who do not have
disabilities who may benefit from special education and related
services, the needs of children with disabilities will not be met.
Some commenters asked that the regulation be revised to require
regular financial audits to ensure compliance with the excess cost
requirements.
    Discussion: Section Sec. 300.235 sets forth circumstances under
which an LEA may use Part B funds to pay 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 and to develop and implement a fully
integrated and coordinated services system; this

[[Page 12573]]

section does not impact the documentation requirements where an LEA
uses a particular individual to provide special education or
related services during one portion of the day or week and to
perform other functions at other times for which the LEA cannot pay
using Part B funds.
    Although Sec. 300.235 makes clear that Part B does not prohibit
benefit to nondisabled children, it does not permit Part B funds to
be expended in a regular class except for special education and
related services and supplementary aids and services to a child
with a disability in accordance with the child's IEP. If special
education and related services are being provided to meet the
requirements of the IEP for a child with a disability, this
provision permits other children to benefit, and in such
circumstances no time and effort records are required under Federal
law, thus reducing unnecessary paperwork.     This provision does
not in any way diminish an SEA or other public agency's
responsibilities under Part B to ensure that FAPE is made available
to each eligible child with a disability. Each SEA must, as part of
its general supervision responsibility under Sec. 300.600, ensure
compliance with the requirements of Sec. 300.235; the methods that
the SEA uses to ensure compliance may include monitoring and
financial audits of LEAs. Under the Single State Audit Act, SEAs
are required to ensure that periodic audits are conducted, and the
General Education Provisions Act requires periodic monitoring.
    Changes: None.

Treatment of Charter Schools and Their Students (Sec. 300.241)

    Comment: None.
    Discussion: The proposed note clarified that the provisions of
this part that apply to other public schools also apply to public
charter schools, and, therefore, children with disabilities who
attend public charter schools and their parents retain all rights
under this part. The Senate and House Committee Reports on Pub. L.
105-17, which, in reference to this provision states:

    The Committee expects that charter schools will be in full
compliance with Part B. (S. Rep. No. 105-17, p 17, H. R. Rep. No.
105-95, p. 97 (1997))

    Thus, to ensure the protections of the rights of children with
disabilities and their parents, this concept should be incorporated
into the regulations.
    Changes: The substance of the note has been incorporated into
the discussion under Sec. 300.18, and in the regulations under
Sec. 300.312. The note has been deleted.

Subpart C

Provision of FAPE (Sec. 300.300)

    Comment: Some commenters expressed support for a seamless
system of services for disabled children from birth through age 21,
and recommended that Note 3 under Sec. 300.300 be added to the
regulation to highlight the need for States to plan their child
find and other activities to meet the age range for FAPE. A few
commenters stated their understanding that the exemption to the
``50% rule'' in Sec. 300.300 (related to FAPE for disabled children
aged 3 through 5 in States receiving a Preschool grant) was
temporary, and asked if the exemption would continue in effect.
    Discussion: In light of the previous discussion regarding the
disposition of notes under this part (see ``General Comments''),
Note 3, which provides only clarifying information to explain why
the age range for child find (birth through age 21) is greater than
the age range for providing FAPE, should be deleted and not moved
into the regulation. Further, Note 1 (FAPE applies to children in
school and those with less severe disabilities) is no longer
relevant as the statute now is commonly understood to apply to all
children with disabilities, not just those out of school or with
severe disabilities, and should be deleted. The substance of Note
2 (importance of child find to the FAPE requirement) should be
incorporated into the text of the regulation at Sec. 300.300(a)(2)
because of the crucial role that an effective child find system
plays as part of a State's obligation of ensuring that FAPE is
available all children with disabilities.     The provision in Sec.
300.300(b)(4) clarifies that if a State receives a Preschool Grant
under section 619 of the Act, the ``50% rule'' does not apply with
respect to disabled children aged 3 through 5 years, because the
State must ensure that FAPE is available to ``all'' disabled
children in that age range within the State--as a condition of
receiving such a grant. (See Secs. 301.10 and 301.12) Therefore,
this provision should be included, without change, in these final
regulations.
    Changes: The substance of Note 2 has been added as a new
paragraph (a)(2). Notes 1--3 have been removed.

FAPE--Methods and Payment (Sec. 300.301)

    Comment: One commenter stated that there is no authority in
Federal law to permit a State to use unlimited local resources to
meet the State's requirement for FAPE, and recommended that the
statement in Sec. 300.301(a) related to using whatever State,
local, or private sources of support be replaced by providing that
a State may use all of its State funds to ensure FAPE. Some
commenters requested that a new paragraph (c) be added to clarify
that there can be no delay in the provision of FAPE while the SEA
determines the payment source for IEP services.
    Discussion: Section 300.301 is a long-standing provision that
was included, without change, in the NPRM. The section merely
clarifies that each State may use other sources of support for
meeting the requirements of this part, in addition to State
education funds or Part B funds.
    It would be appropriate to add a new paragraph to Sec. 300.301
to clarify that there can be no delay in implementing a child's IEP
in any case in which the payment source for providing or paying for
special education and related services to the child is being
determined. Section 300.142 also addresses the role of the public
agency in ensuring that special education and related services are
provided if a noneducational agency fails to meet its
responsibility and specifies that services must be provided in a
timely manner, while the payment source for services is being
determined. Further, because Secs. 300.342 and 300.343 also address
the timely development and implementation of a child's IEP, it is
appropriate to include a reference to those sections in Sec.
300.301.
    Changes: A new paragraph (c) has been added to ensure,
consistent with the above discussion, that there is no delay in
providing services while the payment source is being determined.

Residential Placement (Sec. 300.302)

    Comment: A few commenters requested that the regulations
clarify that costs for residential placements include the expenses
incurred by parents' travel to and from the program and the cost of
telephone calls to the placement. One commenter stated that the LEA
should be responsible for the educational costs if the system
cannot meet the needs of the student, and that other appropriate
related service agencies should assume the cost of care and
treatment.
    Discussion: Section 300.302 is a long-standing provision that
applies to placements that are made by public agencies in public
and private institutions for educational purposes. The note
following this section should be deleted in light of the general
decision to remove all notes from these final regulations.

[[Page 12574]]

    A statement clarifying that costs for residential placements
include the expenses incurred by parents' travel to and from the
program and the cost of telephone calls to the placement is
included in the analysis of comments on the definition of ``special
education'' (see Sec. 300.26). The regulations already address the
respective responsibilities of the SEA, LEAs, and noneducational
agencies under this part (see, for example, Secs. 300.121, 300.142,
and 300.220).     Changes: The note has been deleted.

Proper Functioning of Hearing Aids (Sec. 300.303)

    Comment: Comments received on Sec. 300.303 included requests
to: (1) clarify that LEAs cannot ensure proper functioning of
hearing aids unless students report non-working devices, especially
students who are in private or out-of-school placements (because it
is beyond the LEAs' capability to monitor whether devices are
working); (2) provide that LEAs are not responsible for hearing
aids damaged by misuse within non-school environments; (3) revise
the section to address other AT devices; (4) ensure the provision
is consistently met, using qualified persons who check aids on a
regular basis, and (5) delete the note because it reflects 20 year-
old appropriations committee report language, and, therefore, is no
longer relevant. Other comments expressed concern that the section
adds unnecessary paperwork and an unfair financial burden.
    Discussion: Section 300.303 has been included in the Part B
regulations since they were initially published in 1977. The note
following Sec. 300.303, which incorporated language from a House
Committee Report on the 1978 appropriation bill, served as the
basis for the requirement in Sec. 300.303. That report referred to
a study done at that time that showed that up to one-third of the
hearing aids for public school children were malfunctioning; and
the report stated that the [Department] must ensure that hearing
impaired school children are receiving adequate professional
assessment, follow-up, and services.
    Section 300.303 was added to address that Congressional
directive, and has been implemented since 1977. The Department has
routinely monitored Sec. 300.303; and when a violation has been
identified, appropriate corrective action has been taken. Although
it is important that Sec. 300.303 be retained in the final
regulations, the note is no longer relevant, and should be deleted.
    Questions relating to damage of hearing aids are addressed in
the analysis of comments on the definitions of assistive technology
devices and services (see Secs. 300.5 and 300.6).

Changes: The note following Sec. 300.303 has been deleted.

Full Educational Opportunity Goal (Sec. 300.304)

    Comment: Some commenters expressed support for Sec. 300.304.
One commenter stated that SEAs and LEAs should be required to
improve the general quality of education in ways that will benefit
the disabled, including submitting plans and timetables relating to
such
improvements. Another commenter recommended updating the note to
use ``people first'' language consistent with the IDEA, as amended
in 1990, and to make reference to quality education programs. Other
commenters recommended that the note be deleted.
    Discussion: The requirement that there be a goal of ensuring
full educational opportunity to all children with disabilities
predates the FAPE requirement in Pub L. 94-142. The IDEA Amendments
of 1997 are sufficiently clear to not require an elaboration of the
full educational opportunity goal. Further, in light of the general
tenor of comments received on this section, and the comments and
discussion relating to the disposition of notes (see analysis of
general comments), it is clear that there would not be sufficient
benefit gained to justify updating or retaining the note.
    Changes: The note following Sec. 300.304 has been deleted.

Program Options (Sec. 300.305)

    Comment: Some commenters expressed support for this section,
stating that disabled children must have the same opportunities as
their nondisabled peers. One commenter stated that Secs. 300.305
and 300.306 go beyond the new statute and are made moot by the
provisions about including students in the regular curriculum as
much as possible. Another commenter requested that the section be
amended to make it clear that the list of items is not exhaustive.
    Discussion: The provisions of Secs. 300.305 and 300.306 do not
go beyond the requirements of Part B of the Act. These are long-
standing regulatory provisions that were included, unchanged, in
the NPRM, and have been reinforced by the IDEA Amendments of 1997,
through provisions requiring that children with disabilities be
included in the general curriculum, and enabling them to meet State
standards. The definition of the term ``include'' in Sec. 300.13
makes it clear that the list of programs and services is not
exhaustive. Therefore, the note following Sec. 300.305 is
unnecessary.
    Changes: The note following Sec. 300.305 has been deleted.

Nonacademic Services (Sec. 300.306)

    Comment: One commenter stated that this section will require
documenting an array of non-academic and extracurricular services
and activities, and that it should be rephrased so that it will not
lead to more unnecessary paperwork. Another commenter requested
that the section be amended to clarify that participation in
extracurricular activities is not a component of a disabled child's
program.     Discussion: Section 300.306, as well as Sec. 300.553
(``Nonacademic settings'') are long-standing provisions that were
included, without change, in the NPRM. There is no basis for
assuming that the provisions in these sections will result in any
unnecessary or increased paperwork.
    Changes: None.

Physical Education (Sec. 300.307)

    Comment: Several commenters requested that the regulations
clarify that each public agency is responsible for making sure that
special physical education (PE) (including adapted PE) is provided
by qualified personnel, and not by classroom teachers, aides,
related services personnel, or other unqualified personnel. One
commenter stated that Sec. 300.307(b) should replace ``available to
nondisabled children'' with the phrase ``to the extent available to
all children.''     Discussion: Section 300.307(b), which provides
that each child with a disability has the opportunity to
participate in the regular PE program available to nondisabled
children, is clear as written, and there is no basis for making the
change recommended by the commenters. It is not necessary to amend
Sec. 300.307 to state that specially designed PE must be provided
by qualified personnel because SEAs are already required under Sec.
300.136 to determine what standards must be met for all special
education and related services personnel within the State. The note
following Sec. 300.307, which provided important guidance in the
original regulations under this part, is no longer necessary, in
light of the comments relating to the disposition of notes.
    Changes: The note following Sec. 300.307 has been deleted.

[[Page 12575]]

Assistive Technology (300.308)

    Comment: Some commenters expressed support for Sec. 300.308,
stating that disabled students must have the tools they need to
succeed. A few commenters requested that a note be added to
describe what assistive technology (AT) devices would be available
for children with hearing impairments, including deafness. One of
the commenters requested listing specific devices (e.g.,
captioning, computer software, FM systems, and hearing aids).
    Discussion: The AT devices for children with hearing
impairments identified by the commenters are appropriate AT devices
under this part. However, it is not necessary to list such devices
in these regulations. Moreover, it would be inappropriate to list
AT devices for one disability category without listing such devices
for other disability categories. This position is consistent with
the previously stated position related to including examples of AT
devices in these regulations (see analysis of comments under Secs.
300.5 and 300.6). Some examples of AT devices include word
prediction software, adapted keyboards, voice recognition and
synthesis software, head pointers, and enlarged print.
    Under Section 504 of the Rehabilitation Act of 1973, 34 CFR
Part 104, and the Title II of the Americans with Disabilities Act
of 1990, 28 CFR Part 35, local educational agencies are responsible
for providing a free appropriate public education to qualified
students with disabilities who are within their jurisdiction. To
the extent that assistive technology devices are required to meet
the obligation to provide FAPE for an individual student, the
devices must be provided at no cost to the student or his or her
parents or guardians.
    Changes: No change has been made to this section in response to
these comments. See discussion under Sec. 300.6 regarding a change
to Sec. 300.308.

Extended School Year Services (Sec. 300.309)

    Comment: A number of commenters expressed support for this
regulation. Because Notes 1 and 2 following Sec. 300.309 provide
important clarification regarding criteria for providing extended
school year (ESY) services, some commenters recommended that these
notes be added to the regulations.
    Other commenters requested that Sec. 300.309 be deleted because
it has no statutory base, and could be interpreted to require ESY
services for all disabled children regardless of what the child's
IEP indicates is appropriate for the child. One comment noted that
responsibility for providing ESY services will be extremely costly
and likely will require large expenditures of local dollars.
    Several commenters requested that both notes be deleted because
Note 1 is ambiguous and unnecessary since the regulation is
sufficiently clear, and Note 2 is not appropriate because all
children regress in the summer.
    Numerous comments were received regarding the standards
referenced in Note 2 that States can establish for use in
determining a child's eligibility for ESY services. One comment
urged the adoption of a Federal standard and formula for
determining unacceptable rates of recoupment. One recommendation
was that while Note 2 should be added to the regulation, it should
be changed to clarify that the list of factors is not exhaustive.
    Another comment stated that ``regression/recoupment'' is a
minimum standard that should be used in determining a child's
eligibility for ESY services. Other commenters indicated that
regression/recoupment is too narrow a standard, and recommended
adding to the regulations additional criteria that courts have used
to determine eligibility (e.g., whether the child has emerging
skills, the nature or severity of the disability, and special
circumstances, such as prolonged absence or other serious blocks to
learning progress, which in the view of the IEP team could be
addressed by ESY services).
    Another comment recommended that the list of factors be revised
to specify ``evidence or likely indication of significant
regression and recoupment.'' One comment recommended that the
reference to ``predictive data'' be expanded to ``predictive data
and other information based on the opinion of parents and
professionals.''     Another comment stated that, although the
regulation should incorporate Note 2 and permit States to establish
standards for determining ESY eligibility, public agencies also
should be required to make these standards available to parents
either at IEP meetings or on request.
    One comment recommended deleting Note 2 because it is too
narrow and inconsistent with case law. According to the comment,
the ESY standard should be flexible and permit consideration of a
variety of factors (e.g., whether the child's current level of
performance indicates that the child will not make ``meaningful
progress'' during the regular school year in the general curriculum
or in other areas pertinent to child's disability-related needs).
    Several comments recommended other specific changes to
Sec. 300.309, such as the following: (1) Section 300.309(a)(2)
should be revised to state that the determination of whether a
child needs ESY services, including the type and amount of
services, must be made by the IEP team and should be specified in
the child's IEP; (2) the regulation should specify a timeline for
determining eligibility for ESY services to enable the parents to
take appropriate steps to challenge the denial of services; (3) the
regulation should clarify whether ESY services are limited only to
summer programming or to other breaks in the school calendar; and
(4) no one factor can be the sole criterion for determining whether
a child receives ESY services.     Another comment requested that
clarification be added to specify that ESY services must be
provided in the least restrictive environment, and that to ensure
that this occurs, students with disabilities may have to receive
ESY services in noneducational settings.
    One comment requested that a note be added to clarify that the
process for determining the length of a preschool child's school
year must be individualized and described in the child's IEP/IFSP,
and added that the decision is not necessarily based on school-aged
ESY practices or formulas, which may be inappropriate for younger
children, and that if a child turns three during the summer, the
child should receive ESY services if specified in the IEP or IFSP.
    Other comments requested that the regulations: add a new
paragraph (c) to address the needs of disabled children enrolled in
private facilities and include additional guidance relating to an
LEA's obligation to conduct necessary evaluations during the summer
when a child arrives in an LEA in the summer with an IEP from
another LEA that requires ESY services.
    Discussion: The regulation and notes related to ESY services
were not intended to create new legal standards, but to codify
well-established case law in this area (and, thus, ensure that the
requirements are all in one place). Since the requirement to
provide ESY services to children with disabilities under this part
who require such services in order to receive FAPE is not a new
requirement, but merely reflects the longstanding interpretation of
the IDEA by the courts and the Department, including it in these
regulations will not impose any additional financial burden on
school districts.     On reflection and in view of the comments, it
has been determined that

[[Page 12576]]

this regulation should be retained, and that Note 1 following Sec.
300.309, with some modifications, should be incorporated into the
text of the regulation. Section 300.309 and accompanying notes
clarify the obligations of public agencies to ensure that students
with disabilities who require ESY services in order to receive FAPE
have necessary services available to them, and that individualized
determinations about each disabled child's need for ESY services
are made through the IEP process. The right of an individual
disabled child to ESY services is based on that child's entitlement
to FAPE. Some disabled children may not receive FAPE unless they
receive necessary services during time periods when other children,
both disabled and nondisabled, normally would not be served. Both
parents and educators have raised issues for many years about how
determinations about ESY services can be made consistent with the
requirements of Part B.     The clarification provided in Note 1 in
the NPRM is essential to ensuring that public agencies do not limit
eligibility for ESY services to children in particular disability
categories, or the duration of these necessary services. Since
these issues are key to ensuring that each disabled child who
requires ESY services receives necessary services in order to
receive FAPE, this concept from Note 1 should be incorporated into
this regulation.
    In the past, the Department has declined to establish standards
for States to use in determining whether disabled children should
receive ESY services. Instead, the Department has said that States
may establish State standards for use in making these
determinations so long as the State's standards ensure that FAPE is
provided consistent with the individually-oriented focus of the Act
and the other requirements of Part B and do not limit eligibility
for ESY services to children in particular disability categories.
These regulations continue this approach.
    Within the broad constraints of ensuring FAPE, States should
have flexibility in determining eligibility for ESY services, and
a Federal standard for determining eligibility for ESY services is
not needed. As is true for other decisions regarding types and
amounts of services to be provided to disabled children under Part
B, individual
determinations must be made in accordance with the IEP and
placement requirements in Part B.
    Regarding State standards for determining eligibility for ESY
services, Note 2 was not intended to provide an exhaustive list of
such standards. Rather, the examples of standards that were
included in Note 2 (e.g., likelihood of regression, slow
recoupment, and predictive data based on the opinion of
professionals) are derived from well-established judicial
precedents and have formed the basis for many standards that States
have used in making these determinations. See, e.g., Johnson v.
Bixby ISD 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). It also should be pointed out that nothing in
this part is intended to limit the ability of States to use
variations of any or all of the standards listed in Note 2.
Whatever standard a State uses must be consistent with the
individually-oriented focus of the Act and may not constitute a
limitation on eligibility for ESY services to children in
particular disability categories.
    To ensure that children with disabilities who require ESY
services receive the services that they need, a high priority is
being placed on monitoring States' implementation of this
regulation in the next several years to ensure that State standards
are not being applied in a manner that denies children with
disabilities who require ESY services in order to receive FAPE
access to necessary services. However, to give States needed
flexibility in this area, the regulations should clarify that
States may establish their own standards for determining
eligibility for ESY services consistent with the requirements of
this part.
    To respond to a concern expressed in the comments that this
regulation could require the provision of ESY services to every
disabled child, regardless of individual need, paragraph (a)(2) has
been revised to make clear that ESY services must be provided only
if a child's IEP team determines, on an individual basis, in
accordance with Secs. 300.340-300.350, that the services are
necessary for the provision of FAPE to the child.
    Although it is important that States inform parents about
standards for determining eligibility for ESY services, a
regulatory change is not necessary. Since this matter is relevant
to the provision of FAPE, it already would be included in the
information contained in the written prior notice to parents
provided under this part for children for whom ESY services are an
issue.
    There is no need to incorporate the IEP team's responsibility
to specify the types and amount of ESY services. Section
300.309(a)(2) already specifies that the determination of whether
a child with a disability needs ESY services must be made on an
individual basis by the IEP team in accordance with Secs.
300.340-300.350. These IEP requirements include specifying the
types and amounts of services consistent with the individual
disabled child's right to FAPE.     The determination of whether an
individual disabled child needs ESY services must be made by the
participants on the child's IEP team. In most cases, a multi-
factored determination would be appropriate, but for some children,
it may be appropriate to make the determination of whether the
child is eligible for ESY services based only on one criterion or
factor. In all instances, the child's IEP team must decide the
appropriate manner for determining whether a child is eligible for
ESY services in accordance with applicable State standards and Part
B requirements. Therefore, no requirements have been added to the
regulation regarding this issue.
    There is no need to specify a timeline for determining whether
a child should receive ESY services. Public agencies are expected
to ensure that these determinations are made in a timely manner so
that children with disabilities who require ESY services in order
to receive FAPE can receive the necessary services.
    No further clarification has been provided regarding the times
when ESY services can be offered. Section 300.309(b)(1)(i)
specifies that ESY services are provided to a child with a
disability ``[b]eyond the normal school year of the public
agency.'' For most public agencies, the normal school year is 180
school days. Typically, ESY services would be provided during the
summer months. However, there is nothing in the definition of ESY
services in Sec. 300.309(b) that would limit the ability of a
public agency to provide ESY services to a student with a
disability during times other than the summer, when school is not
in session, if the IEP team determines that the child requires ESY
services during these time periods in order to receive FAPE.    
There is no need to provide clarification regarding the comment
that public agencies may wish to use different standards in
determining eligibility of preschool-aged children with
disabilities for ESY services from those used for school-aged
children. Since Part B does not prescribe standards for determining
eligibility for ESY services, regardless of the child's age, the
issue of whether a State should establish a different standard for
school-aged and preschool-aged children is a matter for State and
local educational authorities to decide.

[[Page 12577]]

    The IEP or IFSP will specify whether services must be initiated
on the child's third birthday for children with disabilities who
transition from the Part C to the Part B program, if the child
turns three during the summer. This means that ESY services would
be provided in the summer if the IEP or IFSP of a child with a
disability specifies that the child must receive ESY services
during the summer. In any case, the IEP or IFSP must be developed
and implemented in accordance with the terms of those documents by
the child's third birthday. These responsibilities are clarified
elsewhere in these regulations.     No additional clarification is
being provided in this portion of the regulations as to whether
parentally-placed disabled students can receive ESY services. As is
true for determinations regarding services for children with
disabilities placed in private schools by their parents,
determinations regarding the services to be provided, including the
types and amounts of such services and which children will be
served, are made through a process of consultation between
representatives of public agencies and representatives of students
enrolled by their parents in private schools. Through consultation,
if a determination is made that ESY services are one of the
services that a public agency will offer one or more of its
parentally-placed disabled children, Part B funds could be used for
this purpose.     No regulatory change has been made regarding the
application of LRE requirements to ESY services. While ESY services
must be provided in the LRE, public agencies are not required to
create new programs as a means of providing ESY services to
students with disabilities in integrated settings if the public
agency does not provide services at that time for its nondisabled
children. However, consistent with its obligation to ensure that
each disabled child receives necessary ESY services in order to
receive FAPE, nothing in this part would prohibit a public agency
from providing ESY services to an individual disabled student in a
noneducational setting if the student's IEP team determines that
the student could receive necessary ESY services in that setting.
No further clarification is needed regarding the comment about
requirements for evaluating students who move into LEAs during the
summer to determine eligibility for ESY services. Requirements for
child find are addressed elsewhere in these regulations.
    Changes: Consistent with the above discussion, paragraph (a)(2)
of Sec. 300.309 has been revised, and a new paragraph (a)(3) has
been added to this section to specify that (1) ESY services must be
provided only if a child's IEP team determines the services are
necessary for the provision of FAPE to the child; and (2) Public
agencies may not limit eligibility for ESY services based on
category of disability, and may not unilaterally limit types and
amounts of ESY services. Notes 1 and 2 have been removed.

FAPE Requirements for Students With Disabilities in Adult Prisons
(Sec. 300.311)

    Comment: Several commenters requested that the regulation
include a definition of ``bona fide security or compelling
penological interest that cannot otherwise be accommodated.''
Several commenters requested a definition that would clarify that
this exception is to be used only in unique situations. These
commenters requested that the definition specifically exclude
routine issues of prison administration and convenience, cost-
reduction measures, and policies to promote discipline or
rehabilitation through systematic withholding of educational
services which are otherwise required. Another commenter requested
that the terms be defined to include prudent correctional
administration, and physical or mental health determinations by
prison health officials.
    One commenter stated that the regulation should include
guidance as to when an IEP or placement can be modified under the
stated exception for modifications. Another commenter requested
that the regulations clarify that modifications to IEP or placement
may only be made by the IEP team and these changes are covered by
the notice requirements of the Act.
    Another commenter opposed services to students alleged to have
committed heinous crimes and requested that a free appropriate
public education be limited to those students who would otherwise
be denied access to education services by virtue of their
incarceration.     One commenter requested a definition of the term
``last educational placement'' to clarify that this means a public
or private school placement.
    Another commenter requested that a student's ``potential''
eligibility for early release be considered in determining
eligibility for transition services.
    Discussion: The requirement that the student's IEP team make an
individualized determination regarding modifications to IEP or
placement are clearly stated in the regulations. This requirement
ensures that a team of professionals with knowledge about the
student will be able to weigh the request of the State and make an
individualized determination as to whether the State has
demonstrated a bona fide security or compelling penological
interest. In addition, the IEP team would need to consider possible
accommodations of these interests and only decide to modify the IEP
or placement in situations where accommodations are not possible.
This provision also allows the State to address any issues specific
to persons alleged of committing heinous crimes.
    This provision does not impact an individual's eligibility for
services, rather it allows the IEP team to make temporary
modifications to the IEP or placement. These modifications are to
be reviewed whenever there is a change in the State's bona fide
security or compelling penological interest and at least on a
yearly basis when the IEP is reviewed.
    A definition of the terms ``bona fide security or compelling
penological interest'' is not appropriate, given the individualized
nature of the determination and the countless variables that may
impact on the determination. Further, a State's interest in not
spending any funds on the provision of special education and
related services or in administrative convenience will not rise to
the level of a compelling penological interest that cannot
otherwise be accommodated, because States must accommodate the
costs and administrative requirements of educating all eligible
individuals with disabilities.
    Further, since a modification to the IEP or placement is a
change in the placement or in the provision of a free appropriate
public education, the notice requirements under the Act would
clearly be invoked.
    There is no need to define the term ``last educational
placement'' because the term is sufficiently clear.
    Finally, there is no need to further clarify eligibility for
transition services. Since consideration for transition services is
also part of the IEP process, eligibility determinations should be
addressed by the IEP team based upon the State's sentencing and
parole policies, which may include potential eligibility for early
release.     Changes: None.

Children With Disabilities in Public Charter Schools (Sec. 300.312)

    See comments, discussion, and changes under Sec. 300.18.

[[Page 12578]]

Children Experiencing Developmental Delays (Sec. 300.313)

    See comments, discussion, and changes under Sec. 300.7.

Initial Evaluations (Sec. 300.320)

    Comment: A few commenters requested that the regulation be
amended to require that initial evaluations be comprehensive so
that each child is tested in all areas of possible disability, not
just areas of suspected disability (e.g., a child who is having
behavior problems may be acting out of frustration over
unrecognized learning disabilities). Another commenter expressed
concern that terms such as ``in all areas of suspected disability''
and the requirement to conduct evaluations in the native language
do not appear in the NPRM, although they were in prior regulation
and in Appendix A. Another commenter recommended that at least
three diagnosticians from different disciplines actually evaluate
a child, and added that this helps ensure that the evaluation is
broad-based, nondiscriminatory, and relies on more than one method
to determine eligibility.
    One commenter recommended that Sec. 300.320(a) repeat the
language of the statute (i.e., that the LEA ``shall conduct''
initial evaluations, rather than ``shall ensure that initial
evaluations are conducted''); that the reference to applicable
sections under Secs. 300.530-300.536 be revised; and that other
technical and conforming changes be made. A few commenters
recommended amending Sec. 300.320(b)(2) to add a provision
requiring the IEP team to provide copies of all evaluations to the
parents and all team members sufficiently in advance of the meeting
at which they will be reviewed so that all have time to review the
results prior to the meeting.     Discussion: The general
requirement to conduct evaluations and reevaluations was added to
Subpart C (Secs. 300.320-300.321) in the NPRM to sequentially place
evaluations as a preliminary step in determining a child's
eligibility before convening an IEP team to develop the child's
IEP. However, the specific evaluation requirements are included in
Subpart E (Secs. 300.530-300.536). Those requirements, especially
the ones in Sec. 300.532, are long-standing provisions that require
the evaluations to be multifactored and administered in the child's
native language or other mode of communication, unless it is
clearly not feasible to do so. Section 300.532(g) makes clear that
the evaluation must include ``all areas related to the suspected
disability.''
    If public agencies are in full compliance with these evaluation
requirements, the initial evaluations will be sufficiently
comprehensive to identify any disability that an individual child
may have, including any disability that was not initially
suspected. Further, the failure to provide such an evaluation is an
implementation issue and not a regulatory issue. Therefore, no
change is needed in this provision.
    Section 300.320(a) of the NPRM states that each public agency
``shall ensure that'' a full and individual evaluation is conducted
for each child with a disability. It is not necessary to substitute
``shall conduct'' for the language in the NPRM. The term used in
the NPRM and in these final regulations places the burden squarely
on the public agency to implement the evaluation requirements
either directly, by using public agency staff to conduct the
evaluations, or by contracting with other agencies or individuals
to do so.
    Technical and conforming changes that have been recommended
should be reflected in these final regulations to the extent that
they are determined to be relevant. For example, contrary to the
commenter's recommendation, Sec. 300.533 (determination of needed
evaluation data) may be germane to initial evaluations as well as
reevaluations, and, therefore should be included in the listed
sections under
Sec. 300.320(b)(ii).
    To the extent feasible, the results of evaluations conducted
under this part should be provided to parents and appropriate
school personnel before any meeting to discuss the identification,
evaluation, or educational placement of the child, or the provision
of FAPE to the child. However, this is an implementation matter
that should be left to the discretion of individual public
agencies. In administering the Part B program over the past 22
years, concerns about evaluation teams not having timely access to
evaluation results have seldom been raised with the Department.
    Changes: The authority citation for the section has been
revised to add a reference to section 614(c) of the Act.

Reevaluations (Sec. 300.321)

    Comment: Some commenters expressed support for Sec. 300.321,
and stated that the importance of sharing the evaluation
information with the IEP team is vital. One commenter recommended
that a wording change be made in Sec. 300.321(b); that the
reference to applicable sections under Secs. 300.530-300.536 be
revised; and that other technical and conforming changes be made.
    Discussion: Technical and conforming changes as recommended by
the commenter should be reflected in these final regulations, if
relevant.     Changes: Paragraph (a) of Sec. 300.321 has been
amended to delete ``Secs. 300.530-300.536'' from the list of
applicable sections and replace it with ``Sec. 300.536.'' Paragraph
(b) has been revised to replace the term ``used'' with
``addressed.''

Definitions Related to IEPs (Sec. 300.340)

    Comment: None.
    Discussion: To clarify that IEPs are developed, reviewed, and
revised at IEP meetings, a change would be made to paragraph (a) of
this section. However, as the Committee reports to the Act noted: 
   Specific day to day adjustments in instructional methods and
approaches that are made by either a regular or special education
teacher to assist a disabled child to achieve his or her annual
goals would not normally require action by the child's IEP team.
However, if changes are contemplated in the child's measurable
annual goals, benchmarks, or short-term objectives, or in any of
the services or program modifications, or other components
described in the child's IEP, the LEA must ensure that the child's
IEP team is reconvened in a timely manner to address those changes.
(S. Rep. No. 105-17, p. 5 (1997); H. Rep. No. 105-95, pp. 100-101
(1997))

SEA Responsibility for IEPs(Sec. 300.341)

    Comment: A few commenters stated that the manner in which the
term ``that agency'' is used in Sec. 300.341 is confusing because
it is not always clear whether the term is applying to the SEA or
to other agencies described in the section and in Note 1, and
requested that appropriate changes be made. One commenter stated
that additional language is needed in the section to expand on the
State's ultimate obligation to ensure district compliance with all
IDEA requirements.     Several comments were received relating to
Sec. 300.341(b). One commenter stated that ``religiously-
affiliated'' may be broader than parochial, but it inadvertently
excludes private schools with a religious focus that are not
affiliated but rather are freestanding, and recommended using
``religiously-oriented'' instead. Another commenter recommended
using only ``private school,'' and deleting ``religiously
affiliated,'' stating that there is no basis for using that term.

[[Page 12579]]

    Some commenters stated that the term ``IEP'' has an explicit
meaning in IDEA--as an inherent component of FAPE, and recommended
that another term other than ``IEP'' be used with respect to
children in private schools, who are not entitled to FAPE. Another
commenter recommended that the statement requiring that an IEP is
developed and implemented be revised to include a reference to the
proportionate expenditure requirements in Subpart D.
    One commenter recommended that the statement in
Sec. 300.341(b)(2)(ii) regarding ``special education or related
services'' be amended to replace ``or'' with ``and'' in order to
avoid any implication that a child may receive only related
services. Another commenter suggested deleting the entire reference
to related services.     One commenter recommended requiring that
(1) any nonpublic school that is licensed by the SEA or receives
any other tax or benefit from the State must develop an IEP for
each disabled student, and (2) LEAs provide the student with a
supplemental IEP showing the additional services that the LEA will
provide.
    Discussion: The language of this section, and especially the
note, should be modified to ensure that the term ``SEA'' is used
consistently, to avoid the confusion identified by the commenters.
This can best be accomplished, and the section strengthened, by
moving the substance of the note into the text of the regulation.
The comment related to ensuring compliance with all provisions of
IDEA is addressed by Sec. 300.600, which provides that the SEA is
responsible for ensuring such compliance.
    In drafting the NPRM the term ``religiously-affiliated'' was
adopted instead of the statutory term ``parochial,'' based on the
assumption that Congress intended that all religious schools be
included, not just those organized on a parish basis. The intent
was for the broadest possible coverage. However, in light of the
comment related to this matter, the term ``religiously-affiliated''
does not account for other religious schools that are not
affiliated. The term should be replaced with the more comprehensive
term ``religious schools.'' That term will be used throughout these
regulations to replace ``religiously-affiliated.''
    Another term other than ``IEP'' should be used with respect to
disabled children who are enrolled by their parents in private
schools. As noted by the commenters, (1) ``IEP'' is an inherent
component of, and an explicit term used in, the statutory
definition of ``FAPE'', and (2) the private school provisions in
the IDEA Amendments of 1997 and Sec. 300.454(a) make it clear that
these children have no individual right to receive some or all
special education and related services that they would be entitled
to if enrolled in a public school.     Therefore, if it is
determined, in accordance with Sec. 300.454(b) (Consultation with
representatives of private school children with disabilities), that
a given child is to receive special education and related services
under this part, the document used to denote those services should
have a different name. The term ``services plan'' has been adopted
as an appropriate term for use with these children.     Further, in
light of the comments related to this section, and the discussion
in the preceding paragraph, all provisions related to parentally-
placed children in religious or other private schools (including
the provisions in proposed Secs. 300.341(b)(2) and 300.350) should
be incorporated, in revised form, under Subpart D (Children in
Private Schools).
    The statute does not require a private school to unilaterally
develop an IEP for each disabled child enrolled in the school, or
to require a supplemental IEP for additional services that the LEA
will provide.
    Changes: The name of Sec. 300.341 has been changed to
``Responsibility of SEA and other public agencies for IEPs.'' The
paragraph headings have been deleted, and Sec. 300.341 has been
revised consistent with provisions in Subpart D regarding
parentally-placed children with disabilities in religious or other
private schools. A new paragraph (b) incorporates the substance of
the note following Sec. 300.341, to clarify that the provisions of
the section (related to public agencies) also apply to the SEA, if
the SEA provides direct services under Sec. 300.370(a) and (b)(1).
The note has been deleted. The section has been further revised by
making other technical and conforming changes. A new paragraph has
been added to Sec. 300.452(b) related to the SEA's responsibility
for eligible children enrolled in religious schools.
When IEPs Must Be in Effect (Sec. 300.342)
    Comment: Some commenters stated that, as used in Sec.
300.342(b)(2) and Note 1, the terms ``as soon as possible'' and
``undue delay'' are not meaningful and should be defined or
clarified. The commenters recommended that an outside timeline
(e.g., 15 days following the IEP meetings described in Sec.
300.343) be established for implementing IEPs. Other commenters
requested that Note 1 be deleted. A few commenters indicated that
the statement in Note 1 (regarding services not being provided
during the summer or a vacation period unless the child requires
such services) does not adequately identify LEAs' obligations.
    Discussion: It would not be appropriate to add an outside
timeline under Sec. 300.342(b) for implementing IEPs, especially
when there is not a specific statutory basis to do so. However,
with very limited exceptions, IEPs for most children with
disabilities should be implemented without undue delay following
the IEP meetings described in Sec. 300.342(b)(2).
    There may be exceptions in certain situations. It may be
appropriate to have a short delay (e.g., (1) when the IEP meetings
occur at the end of the school year or during the summer, and the
IEP team determines that the child does not need special education
and related services until the next school year begins); or (2)
when there are circumstances that require a short delay in the
provision of services (e.g., finding a qualified service provider,
or making transportation arrangements for the child).
    If it is determined, through the monitoring efforts of the
Department, that there is a pattern of practice within a given
State of not making services available within a reasonable period
of time (e.g., within a week or two following the meetings
described in
Sec. 300.343(b)), this could raise a question as to whether the
State is in compliance with that provision, unless one of the
exceptions noted above applies.
    Changes: Paragraph (b) of this section is amended (consistent
with the discussion under Sec. 300.344(a)(2) and (3) of this
Analysis) to require that each public agency must ensure that (1)
a 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; and (2)
each of the child's teachers and providers is informed of his or
her specific
responsibilities related to implementing the child's IEP, and of
the specific accommodations, modifications, and supported that must
be provided for the child in accordance with the IEP. Note 1 has
been deleted. Note 2 (related to a 1997 date certain for certain
requirements regarding students with disabilities incarcerated in
adult prisons) also has been deleted. Subject headings have been
added to each paragraph in the section.
    Comment: Several commenters expressed concern about Sec.
300.342(c) and Note 3 (related to using an IFSP for a child aged 3
through 5), and some of

[[Page 12580]]

the commenters recommended deleting paragraph (c)(2) and the
reference to it in Note 3. The commenters stated (for example) that
(1) IFSPs should be used for children under age 3, and IEPs for
older children, and parents should not have a choice; (2) an IFSP
may not be appropriate in the educational setting; (3) the
requirement is inconsistent with OSEP policy letters; (4) the use
of an IFSP or IEP requires only the two factors in Sec.
300.342(c)(1) (i.e., it is consistent with State policy, and agreed
to by the parents and the agency); and (5) because Note 3 and the
preamble to the NPRM indicate a clear preference for an IEP rather
than IFSP, a specific rationale should be given.
    One commenter requested that Note 3, or Appendix A, be amended
to underscore that special care must be taken by LEAs in agreeing
to continue children's IFSPs when they become eligible for an IEP--
especially if the IFSP does not have an educational component,
because research has shown a significant positive difference in
school readiness for kindergarten when children whose
(prekindergarten) program included an educational component, as
compared to those who attend custodial day care without an
educational component. Another commenter requested that Sec.
300.342(c) be revised to allow use of IFSPs for children aged 3 and
above without meeting the requirements in paragraph (b)(2).
    Discussion: It is important to retain in these final
regulations the general thrust of Sec. 300.342(c) from the NPRM
(related to requiring parental consent to using an IFSP in lieu of
an IEP for a child who moves from the Early Intervention Program
under Part C of the Act to preschool services under Part B of the
Act). As a result of the IDEA Amendments of 1997, there have been
significant changes in the statute, including an increased emphasis
on the participation of children with disabilities in the general
curriculum, and on ensuring better results for children with
disabilities. Because of the importance of the IEP as the statutory
vehicle for ensuring FAPE to a child with a disability, paragraph
(c)(2) of this section provides that the parents' agreement to use
an IFSP for the child instead of an IEP requires written informed
consent by the parents that is based on an explanation of the
differences between an IFSP and an IEP.
    As noted by at least one commenter, research has shown a
significant positive difference in school readiness for
kindergarten if children's ``prekindergarten'' programs included an
educational component, compared to those who attend custodial day
care without an educational component. In addition, the provisions
related to the IFSP under Part C can generally be replicated under
Part B. Because of the definition of ``FAPE,'' services that are
determined necessary for a child to benefit from special education
must be provided without fees and without cost to the parents.
    Changes: Note 3 has been deleted.
    Comment: Some commenters expressed support for Sec. 300.342(d)
in the NPRM (i.e., that all IEPs in effect on July 1, 1998 must
meet the new requirements in Secs. 300.340-300.351), stating that
public agencies have had since June 4, 1997 to prepare for changes
in the IEP requirements, many of which have already been in use in
some agencies. A few of the commenters requested that all IEPs
developed during the spring and summer of 1998 be in full
compliance with the new requirements.
    A large number of commenters expressed concern about
Sec. 300.342(d), stating (for example) that it (1) is inconsistent
with section 201(a)(2)(A) of the Act; (2) will result in massive
national noncompliance and public financial liability; and (3)
force pro forma IEPs that will result in frustration and resentment
on the part of parents and local providers. The commenters
requested that the requirements be changed to provide that IEPs
written on or after July 1, 1998 must meet the new requirements.
    Discussion: It is appropriate to amend Sec. 300.342(d) to
provide that IEPs developed, reviewed, or revised on or after July
1, 1998 must comply with the requirements in section 614(d) of the
Act and Secs. 300.340-300.350 of these final regulations. While we
commend the many public agencies that began as soon as the IDEA
Amendments of 1997 was enacted to implement the new statutory
requirements and already have in place IEPs that meet these
requirements, other public agencies argued compellingly that they
simply did not have the wherewithal to ensure that, on July 1,
1998, all IEPs would fully comply with the new IEP requirements,
and that a phase-in period should be adopted in which the
anniversary date for each child's IEP meeting would be the basis
for revising the child's IEP to comply with the new requirements. 
   Requiring IEPs developed on or after July 1, 1998 to meet the
new requirements should result in more meaningful IEPs that focus
on effective implementation, consistent with the purposes of the
IDEA Amendments of 1997. At the same time, public agencies are
strongly encouraged to grant any reasonable requests from parents
for an IEP meeting to address the new IEP provisions. Public
agencies are also encouraged to inform parents of the important
changes resulting from the new IEP requirements so that they may be
effective partners in the education of their children.
    Changes: Section 300.342(d) has been revised to state that all
IEPs developed, reviewed, or revised on or after July 1, 1998 must
meet the requirements of Secs. 300.340-300.350.

IEP Meetings (Sec. 300.343)

    Comment: One commenter stated that, as written, Sec.
300.343(b)(1) implies that an LEA is required to make an offer of
services in accordance with an IEP whether or not the child
qualifies (i.e., before the child is evaluated), and requested
clarification of the provision. Other commenters stated that the
requirement should begin with referral, not consent, and
``services'' should be referenced as ``special education and
related services.''
    Some commenters expressed support for the 30 day timeline in
Sec. 300.343(b)(2) (i.e., that an IEP meeting is conducted within
30 days of determining that a child needs special education). A few
commenters requested changing the provision to 30 ``school days.''
One commenter recommended amending the provision to recognize that
regular education teachers are not available in the summer, because
to the extent participation of a regular education teacher is
required at the IEP meeting, the meeting would have to wait until
teachers return.     A number of comments were received relating to
Sec. 300.343(c)(1) (Review and revision of IEPs). One commenter
requested that paragraph (c)(1) be amended to clarify that a
child's IEP is reviewed periodically if warranted, or requested by
the child's parent or teacher, and to include additional language
related to determining if the child is making meaningful progress
toward attaining the goals and standards for all children as well
as goals and short term objectives or benchmarks. Other commenters
recommended requiring that a review meeting be held when requested
by an IEP team member, and that LEAs honor ``reasonable'' requests
from parents for timely IEP review meetings.
    One commenter requested amending paragraph (c)(2)(i) (related
to revising a child's IEP to address any lack of progress in the
annual goals) by adding benchmarks or short term objectives to the
statement related to annual goals. A

[[Page 12581]]

few commenters recommended deleting the reference to ``Other
matters'' in Sec. 300.343(c)(2)(v) as the language is redundant and
confusing.     A few commenters requested that a new Sec.
300.343(d) be added to incorporate the statutory requirement in
section 614(c)(4) (i.e., procedures to follow when the IEP team
determines that no additional data are needed to determine whether
the child continues to be a child with a disability). One commenter
felt that an additional note should be added to encourage combining
the eligibility meeting with the initial IEP meeting.
    Discussion: There is potential for confusion with the language
in Sec. 300.343(b)(1) of the NPRM regarding whether a child must be
evaluated before the offer of services is made. It also would be
more appropriate to refer to ``special education and related
services'' rather than referring simply to ``services.''
    While the basic position taken in the NPRM with respect to Sec.
300.343(b)(1) has been retained (i.e., an offer of services will be
made to parents within a reasonable period of time from the public
agency's receipt of parent consent to initial evaluation), the
concept of ``making services available'' to a child with a
disability seems more relevant to these final regulations than
``offer of services'' in ensuring that FAPE is available to a child
with a disability in a timely manner.
    Therefore, the regulations should be amended to clarify that,
within a reasonable period of time following consent to an initial
evaluation, the evaluation is conducted; and if the child is
determined eligible under this part, special education and related
services are made available to the child, in accordance with an
IEP.
    It would not be appropriate to change the reference to
Sec. 300.343(b)(1) from ``parent consent'' to ``referral'' because
informed consent of the parents is a necessary step in ensuring
that the evaluation will be conducted.
    It also would not be appropriate to change the 30 day timeline
in Sec. 300.343(b)(2) to 30 ``school days.'' That timeline is a
long-standing provision that has been appropriately implemented
since the inception of the regulations under this part, and there
is no basis to make such a change.
    A provision is not necessary to clarify that public agencies
will honor ``reasonable'' requests by parents for a meeting to
review their child's IEP. Public agencies are required under the
statute and these final regulations to be responsive to parental
requests for such reviews. If a public agency believes that the
frequency or nature of the parents' requests for such reviews is
unreasonable, the agency may (consistent with the prior notice
requirements in Sec. 300.503) refuse to conduct such a review, and
inform the parents of their right to request a due process hearing
under Sec. 300.507. It should be noted, however, that as a general
matter, when a child is not making meaningful progress toward
attaining goals and standards applicable to all children, it would
be appropriate to reconvene the IEP team to review the progress.
    It is inappropriate and unnecessary to add ``benchmarks or
short-term objectives'' to the statement on annual goals in
Sec. 300.343(c)(2)(i). The language in that paragraph, which
incorporates the language from the statute, refers to ``the annual
goals described in Sec. 300.347(a).'' Section 300.347(a) states
that each child's IEP must include ``A statement of measurable
annual goals, including benchmarks or short-term objectives * *
*''. Therefore, benchmarks or short-term objectives are inherent in
Sec. 300.343(c)(2)(i), and do not need to be repeated.
    It is not necessary to include a note encouraging public
agencies to combine the eligibility and initial IEP meetings. This
is an individual State option that many States have unilaterally
elected to follow in implementing Part B of the Act over the past
22 years, while other States have determined that the better course
is to hold separate meetings.
    Changes: The title of Sec. 300.343(b) has been changed from
``Timelines'' to ``Initial IEPs; provision of services.'' Paragraph
(b)(1) has been amended to (1) clarify that, within a reasonable
period of time from the agency's receipt of consent to an initial
evaluation, ``the evaluation is conducted'', and (2) clarify the
timing issue by replacing ``offer of services * * * is made to
parents'' with ``special education and related services are made
available to the child * * *''. Paragraph (b)(2) has been changed
by replacing the phrase ``In meeting the timeline in paragraph
(b)(1)'' with ``In meeting the requirement in paragraph (b)(1).''
In the title to Sec. 300.343(c), the term ``IEP'' has been changed
to ``IEPs.'' Paragraph (c)(2)(ii) has been revised to correctly
cite Sec. 300.536. The authority cite has been changed from
``1414(d)(3)'' to ``1414(d)(4)(A).''
    Comment: A number of comments were received on the note
following proposed Sec. 300.343 (regarding the offer of services
within 60 days of parent consent to initial evaluation). Some
commenters expressed support for the 60 day time frame, stating
that (1) many LEAs experience significant delays in completing
evaluations, especially during the summer, and delay providing FAPE
for a very long time, and (2) if LEAs respond to requests for
evaluation in a timely manner, 60 days is reasonable. Many of these
commenters recommended that the note be added to the regulation.
    Other commenters recommended deleting the 60 day timetable in
the note, stating that (1) the timeline is not a reflection of the
statute, and Federal guidance is not necessary because most States
have set reasonable, child-friendly timetables for the initial
provision of services; (2) it is unrealistic, unreasonable, and
ambiguous (3) it would override time frames set by States, (4) the
Department could continue to monitor the issue of reasonableness in
each State without the timeline; and (5) while IEPs generally can
be implemented within 60 days, this non-statutory requirement
should not become the standard for all cases.
    Some commenters recommended changing the length of the
timelines (e.g., to 75 days, 80 days, 90 days, or 120 days), or
using the designation of ``school days'' or ``operational days,''
or adding a caveat exempting school breaks and holidays from the 60
day timeline. One commenter requested a clarification of timelines
when the initial evaluation occurs with less than sixty days
remaining in the school year.
    Discussion: While it is critical that each public agency make
FAPE available in accordance with an IEP within a reasonable period
of time after the agency's receipt of parent consent to an initial
evaluation, imposing specific timelines could result in the
timelines being implemented only in a compliance sense, without
regard to meeting the spirit of the requirement, and this may not
always serve the best interests of the children involved.
    Moreover, as indicated by some of the commenters, most States
are able to meet a timeline of 60 days. The Department considers
this to be reasonable, and will not make a finding of noncompliance
when monitoring a State that is meeting the 60 day timeline for
most children.
    It is recognized, however, that it may, for some children, take
longer, and for some, it could be done in a shorter period of time.
Therefore, the note following Sec. 300.343 should be deleted, and
no timelines should be added to the final regulations relating to
the concept of ``within a reasonable period of time.'' Although no
specific timeline is given, implementation should be done with all
due haste.     Changes: The note following Sec. 300.343 has been
removed.

[[Page 12582]]

IEP Team (Sec. 300.344)

    Comment: A wide variety of general comments was received
regarding this section. Some commenters believe that anyone
expected to implement the IEP should attend the IEP meeting.
Numerous comments were received regarding the note to this section
of the NPRM. Some commenters believed that the note should be
deleted in its entirety because it went beyond the statute, while
other commenters recommended that only portions be deleted, or that
the note be included in the regulations instead. Other commenters
requested a limitation on the number of people that could attend
IEP meetings, with provision for an exception when necessary.
    Other commenters suggested that there should be a requirement
that an appropriate member of the IEP team meet with every teacher
that works with a student to explain goals and objectives contained
in the IEP and accommodations and modifications required by the
teachers.     Discussion: In response to commenters'
recommendations and in light of the general decision not to use
notes in these final regulations, the note following this section
of the NPRM should be removed as a note. However, substantive
portions should be incorporated, as appropriate, into pertinent
provisions of this section, reflected in questions and answers on
IEP requirements that are contained in Appendix A to these
regulations, or addressed in the discussion of comments regarding
this section.
    No limitation on the number of individuals who can attend IEP
meetings should be imposed, as requested by commenters, since these
determinations are left to parents and public agencies, based on
the requirements of this section. These requirements are sufficient
to ensure that membership on the IEP team is limited to individuals
who have particular knowledge or expertise to bring to the meeting.
No clarification is needed here with regard to accommodations and
modifications for all personnel who implement a child's IEP, since
that requirement is addressed under Sec. 300.346(d)(2) of these
regulations.     Changes: The note following this section of the
NPRM has been removed.
    Comment: Some commenters recommended that this regulation be
amended to specify that parents can bring ``advocates of their
choice'' to their child's IEP meetings. Other commenters
recommended that the regulation be clarified to state that parent
support personnel can attend IEP meetings if requested by the
parent, and that if the district disagrees with the attendance of
a person invited by the parent, they may file a complaint but must
not prohibit that person from attending the meeting.
    Commenters also requested clarification regarding how the
public agency would document that it has ensured that the parent
actually has been given the opportunity to participate meaningfully
at their child's IEP meeting.
    Discussion: As numerous commenters emphasized, it is essential
that parents are given the opportunity to participate meaningfully
as members of their child's IEP team. In many situations, an IEP
meeting can be a very intimidating experience for many parents,
even if the LEA encourages their active participation. Frequently,
as commenters have suggested, parents would be assisted greatly at
their child's IEP meetings if another person could accompany them.
It is important to point out that under IDEA and the original
regulations for this program, parents always have been afforded the
opportunity to bring a friend or neighbor to accompany them at
their child's IEP meeting. Question 26 in the Notice of
Interpretation on IEP requirements, published as Appendix A to 34
CFR part 300, in 1981, stated in a note that, in some instances,
parents might elect to bring another participant to the meeting,
e.g., a friend or neighbor, someone outside of the agency who is
familiar with applicable laws and with the child's needs, or a
specialist who conducted an independent evaluation of the child.
    Many parents traditionally have brought other individuals to
accompany them to their child's IEP meeting as a way of ensuring
their meaningful participation. Therefore, in response to
commenters' suggestions and to ensure that meaningful parent
participation at their child's IEP meeting is preserved, a new
paragraph (c) should be added to this section.
    Changes: Section 300.344 has been amended by adding a new
paragraph (c) to clarify that ``[T]he determination of the
knowledge or special expertise of any individual described in
paragraph (a)(6) of this section shall be made by the party (the
parents or the public agency) who invited the individual to be a
member of the IEP team.''     Comment: Numerous commenters
addressed the requirement in proposed Sec. 300.344(a)(2) and the
pertinent portions of the note regarding the role of the regular
education teacher as a member of the child's IEP team if the child
is, or may be, participating in the regular educational
environment. Some commenters were supportive of the participation
of the regular education teacher at an IEP meeting, agreeing that
at least one regular education teacher of the child should be an
IEP team member. Some commenters also pointed out that problems
surrounding placement of a child with a disability in the regular
classroom cannot be addressed without adequate preparation or
participation of teachers of those classes in the IEP meeting.    
Those commenters opposed to the requirement cited potential costs.
Some commenters also pointed out that, for children with
disabilities taking a number of subjects, it will be impossible to
bring all teachers together, while a single teacher will not have
the requisite expertise on a variety of subjects.
    Other commenters who were supportive of the regular education
teacher's participation in principle, and acknowledged the
importance of obtaining input from a regular education teacher,
recommended a more flexible approach. These commenters felt that a
requirement that a regular education teacher be present at every
IEP meeting would interfere with the ability of regular education
teachers to provide the necessary instruction to all children in
their classrooms, both with and without disabilities. Specific
recommendations that commenters made for regulatory changes were
(1) the reference to regular educational environment in Sec.
300.344(a)(2) should be replaced with language such as, if the
child is, or may be, participating in a non-special education
classroom; (2) the reference to regular education teacher should be
replaced with general education teacher or person knowledgeable
about the general education curriculum at the child's grade level;
(3) the participation of a regular education teacher is required
only if issues arise regarding behavior or socialization, making
the input necessary; and (4) a regular education teacher must
attend if the child with a disability is, or may be, receiving
instruction from a regular education teacher during the period of
time covered by the proposed IEP.
    Commenters made a number of other suggestions concerning which
IEP meetings the regular education teacher needs to attend and how
those determinations could be made, such as, (1) the regular
education teacher must attend only the annual IEP review meeting,
but that attendance at other meetings should be on an as-needed
basis; (2) there should be no requirement that the regular
education

[[Page 12583]]

teacher be physically present at the IEP meeting, but must be given
the opportunity to provide oral or written input about the child
and appropriate instructional strategies; (3) the regular education
teacher must attend to the extent appropriate; (4) the IEP team
must consult with the regular education teacher to the extent
appropriate, and determine whether it is necessary for the regular
education teacher to attend all or part of the meeting; and (5)
attendance is at the option of the regular education teacher, who
also can appoint an individual of his or her choice who has had
experience with the child and/or has had adequate pre-planning time
with special education personnel.     Other commenters asked
whether other individuals could be substituted for the regular
education teacher's participation at IEP meetings, such as, (1) a
special education teacher who is knowledgeable about the general
curriculum; (2) a school counselor, particularly for high school
students; (3) an individual certified as a regular education
teacher, regardless of whether that individual is currently working
with the child; and (4) for children who are receiving only speech-
language services, a regular education teacher need not
participate.
    Commenters also requested that the regulations be clarified to
state that school officials will not be deemed to have
predetermined placement solely because a regular education teacher
is not present at an IEP meeting. In the event that a regular
education teacher does not attend, commenters asked if that regular
education teacher would be required to provide input regarding the
regular curriculum, and, if so, how this would be accomplished and
documented.
    Numerous commenters expressed concerns regarding
confidentiality of IEPs if regular education teachers who did not
attend the meeting are provided copies. Some commenters suggested
that there be a central location for all IEPs, and the regulation
make explicit that there are limitations on redisclosure of
information in IEPs to others.     Discussion: Based on careful
consideration of comments as well as applicable statutory
requirements, Sec. 300.344(a)(2) should be retained in these final
regulations, but additional clarification should be provided in
Appendix A and in Sec. 300.342(b) of these regulations.
    Section 614(d)(1)(B)(ii) of the Act specifies that the IEP team
must include ``at least one regular education teacher of such child
(if the child is, or may be, participating in the regular education
environment).'' This statutory provision therefore prescribes that
for any child who is, or may be participating in the regular
educational environment, that child's regular education teacher
must be a member of the child's IEP team. The child's regular
education teacher's membership on the IEP team is particularly
important to meeting the statutory requirement in section
614(d)(1)(A)(ii)(I) of the Act that the IEP explain how the child's
needs will be met so that the child can be involved in and progress
in the general curriculum.
    In implementing the requirement for membership of a regular
education teacher on the IEP team, the public agency will determine
which teacher or teachers of the child will fulfill that function
to ensure participation of at least one regular education teacher
in the development, review, and revision of the child's IEP, to the
extent appropriate, in accordance with section 614(d)(3)(C) of the
Act. (See discussion of Sec. 300.346(d) of these regulations).
    In addition, it would be highly beneficial to the education of
children with disabilities to ensure that those regular education
teachers and other service providers of the child who are not
members of the child's IEP team are informed about the contents of
a child's IEP to ensure that the IEP is appropriately implemented.
    Whether the child's regular education teacher must be
physically present at an IEP meeting, and to what extent that
individual must participate in all phases of the IEP process, are
matters that must (1) be determined on a case-by-case basis by the
public agency, the parents, and other members of the IEP team, and
(2) be based on a variety of factors. This issue is discussed in
more detail in a question and answer contained in Appendix A to
these final regulations. Since the statutory language is
incorporated into this regulation verbatim, no changes should be
made regarding the use of the term ``regular education teacher,''
or the statutory language regarding the regular educational
environment.
    It is important to point out that the statute specifies that at
least one regular education teacher of the child is a member of the
IEP team. Therefore, the suggestions of commenters that other
individuals could participate in lieu of the child's regular
education teacher as the regular education teacher member of the
child's IEP team should not be adopted; however, as stated in the
note to this section in the NPRM, the regular education teacher
participating in a child's IEP meeting should be the teacher who
is, or may be, responsible for implementing the IEP, so that the
teacher can participate in discussions about how best to teach the
child.
    If the child has more than one regular education teacher, the
LEA may designate which teacher or teachers of the child will
participate on the IEP team. While all regular education teachers
of the child need not attend the child's IEP meeting, their input
should be sought, regardless of whether they attend. In addition,
each public agency must ensure that (1) the child's IEP is
accessible to each regular education teacher (and to each special
education teacher, related services provider and other service
provider) who is responsible for its implementation, and (2) each
of the child's teachers and providers is informed of his or her
specific responsibilities related to implementing the child's IEP,
and of the specific accommodations, modifications, and supports
that must be provided to the child in accordance with the IEP. This
provision 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 left to the discretion
of the agency.
    It is expected that the circumstances will be rare in which a
regular education teacher would not be required to be a member of
the child's IEP team. However, there may be situations in which a
child is placed in a separate school and participates only in
meals, recess periods, transportation, and extracurricular
activities with nondisabled children and is not otherwise
participating in the regular educational environment, and no change
in that degree of participation is anticipated during the next
twelve months. In these instances, since there would be no current
or anticipated regular education teacher for a child during the
period of the IEP, it would not be necessary for a regular
education teacher to be a member of the child's IEP team.     No
further clarification should be provided in response to commenters'
concerns about the potential for violation of requirements
regarding confidentiality of information if copies of a child's IEP
are distributed to regular education teachers or other school
personnel who did not attend the IEP meeting. These regulations
contain
confidentiality requirements at Secs. 300.560-300.577 that are
modeled after those in the Family Educational Rights and Privacy
Act of 1974 (FERPA), 20 U.S.C. Sec. 1232(g), which also applies to
this program.

[[Page 12584]]

    While FERPA does not protect the confidentiality of information
in general, it prohibits the improper disclosure of information
from education records and generally protects parents' and
students' privacy interests in ``education records.'' Records
regarding an individual student's disability maintained by an
educational agency or institution or by a party acting for the
agency or institution are education records under FERPA. Therefore,
a child's IEP is an ``education record'' which is subject to FERPA.
    Under FERPA and Part B, the prior written consent of the
student's parent or of the eligible student must be obtained for
disclosure of personally identifiable information in education
records, unless one of the authorized exceptions to the prior
written consent requirement is applicable. (34 CFR 99.30 and
300.571 (a)(2) and (b)).
    Under 34 CFR 99.31(a)(1), educational agencies or institutions,
under certain circumstances, may disclose personally identifiable
information in education records without prior written consent to
school officials with legitimate educational interests. Each
educational agency or institution must provide annual notification
regarding how it meets the requirements of FERPA. This annual
notification under FERPA must include a statement indicating that
the parent or eligible student has a right to consent to disclosure
of personally identifiable information, and the exception
permitting nonconsensual disclosures to school officials with
legitimate educational interests must be described.
    The criteria for determining which parties are school officials
and what the agency or institution considers to be a legitimate
educational interest also must be specified in this annual
notification. (34 CFR 99.7(a)(3)). Accordingly, an educational
agency or institution may disclose information from education
records to teachers and other school officials who meet the
criteria set forth in the agency's or institution's notice and must
restrict access by other school employees who do not fall within an
exception, unless consent to the disclosures is obtained. Although
regular education teachers who fall within this exception also may
disclose education records to other school officials with
legitimate educational interests, those officials are subject to
the restrictions on redisclosure in 34 CFR 99.33.
    Public agencies also may find it practical to store education
records in one central location to limit access to those
individuals to whom the agency or institution is permitted to
disclose personally identifiable information without prior consent.
    Changes: Section 300.342(b) has been amended, consistent with
the above discussion.
    Comment: Commenters requested that ``special education
provider'' be defined and that clarification be provided to
indicate when a special education provider could attend an IEP
meeting in lieu of a special education teacher. Other commenters
asked if a paraprofessional could attend an IEP meeting in lieu of
a special education teacher or special education provider. Some
commenters recommended that the regulations clarify that it would
not be permissible for a
paraprofessional to be substituted for a qualified special
education teacher or provider as an IEP team member.
    Commenters also recommended clarification that parents should
be informed about the qualifications of the IEP team members and
degree to which the IEP is being implemented by what commenters
referred to as ``non-qualified personnel.''
    Discussion: Section 300.344(a)(3) of these final regulations
implements section 614(d)(1)(B)(iii) of the Act, which gives the
public agency the flexibility to determine whether the child's
special education teacher or special education provider should be
a member of the child's IEP team. 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.     While there is no statutory
requirement that public agencies inform parents of the
qualifications of members of the IEP team, there is nothing in
these regulations that would preclude public agencies from
providing parents with this type of information. Public agencies
are encouraged to grant reasonable requests from parents for such
information.
    Changes: None.
    Comment: Numerous commenters requested that language from
Appendix A about the public agency's ability to commit agency
resources be added to the regulation. Commenters emphasized that it
was especially important that the individual attending an IEP
meeting in the capacity of public agency representative must be an
individual such as an LEA administrator who is qualified to develop
specially designed instruction and have authority to make decisions
regarding LEA resources.
    To give LEAs flexibility in their representation, some
commenters suggested that the public agency representative should
be an individual who can interpret the instructional implications
of evaluation results and may be a member previously described.
Other commenters emphasized that the requirement for participation
of a public agency
representative could be burdensome for rural States, and
recommended that the regulations be clarified to indicate that IEP
team members could fulfill dual functions so that responsibility of
the public agency representative could be delegated to another team
member.     Some commenters requested that the regulation be
amended to provide that if particular services are not available in
the district, lack of availability does not relieve the school
district of its obligation either to provide needed services to a
disabled child, or to include those services on a child's IEP.
    Discussion: The three criteria enumerated in the statute at
section 614(d)(1)(B)(iv) describing the representative of the
public agency who is a member of the IEP team are incorporated into
Sec. 300.344(a)(4) of these final regulations. The statute should
not be read to prohibit the public agency from designating another
member of the IEP team to act as the public agency representative,
if that individual meets the specified criteria for each role.
Therefore, a new paragraph (d) should be added to Sec. 300.344
regarding a public agency's authority to designate another IEP team
member as the public agency representative member of the IEP team,
so long as the criteria in Sec. 300.344(a)(4) are satisfied.
    Changes: Section 300.344 has been amended by adding a new
paragraph (d), which authorizes a public agency to designate
another IEP team member as the public agency representative,
provided the criteria in Sec. 300.344(a)(4) are satisfied.
    Comment: Many commenters emphasized the need to link the IEP
and evaluation processes to ensure that participants on the IEP
team were knowledgeable about the deliberations during the
evaluation process and eligibility determination. Some commenters
believed that the language about interpretation of evaluation
results needs to be modified to specify that the individual in this
capacity had contributed to the evaluation process. Many commenters
requested that the regulation should specify that the initial IEP
team must include a member of the eligibility team who is qualified
to interpret the instructional implications

[[Page 12585]]

of the evaluation results. Some commenters favored having such an
individual present at all IEP meetings.
    Discussion: Section 300.344(a)(5) essentially reflects the
statutory requirement at section 614(d)(1)(B)(v), which requires
the participation of an individual who is knowledgeable about the
instructional implications of evaluation results, who may be
another member of the IEP team. No further clarification should be
provided since the statute specifically affords public agencies the
flexibility to select another member of the IEP team to fulfill the
requirement of Sec. 300.344(a)(5), provided that individual is
knowledgeable about the instructional implications of evaluation
results.
    Although commenters requested that the regulation be amended to
require the participation of a member of the eligibility team who
is knowledgeable about evaluation results to fulfill the
requirement of Sec. 300.344(a)(5), there is no statutory authority
to impose such a requirement, either for initial or subsequent IEP
meetings. However, it is expected that public agencies will find it
helpful to have members of the eligibility team as IEP team members
for initial and subsequent meetings to develop a child's IEP.
    Changes: None.
    Comment: Numerous comments were received regarding the
participation of related services personnel at IEP meetings. Some
commenters believed that any time a child is receiving a related
service, or whenever a related service is reflected in the child's
goals and objectives, the relevant related services personnel must
attend the IEP meeting. Other commenters requested that the
clarification in Appendix A regarding related services personnel
who have special knowledge and expertise regarding the child be
included in the regulations as well.
    Many commenters requested a regulatory change to specify that
related services personnel must attend IEP meetings, if
appropriate, and need not be invited by the LEA. Other commenters
recommended that to assist parents, clarification should be
provided that related services personnel and the parents always
must be notified of the IEP meeting whenever the child's need for
a related service is being discussed. Other commenters recommended
that Sec. 300.344(a)(6) be changed to other individuals with
special knowledge and expertise regarding the child, the child's
disability and unique needs, and that criteria for attending the
IEP meeting should include persons who can contribute to the
quality of the final document.
    Many commenters recommended that the regulations specify which
related services personnel must attend IEP meetings. Several
commenters recommended that IEP teams always must include school
psychologists who are knowledgeable about clinical testing
administration, particularly when evaluation results are being used
to determine IEP goals, behavior impedes learning, reevaluations
are required or are being determined, and functional behavioral
assessments and reviews of behavioral interventions are necessary.
    A number of comments were received regarding making the school
nurse or other qualified provider of school health services a
required participant on the IEP team. Some commenters limited this
recommendation to situations in which the child has medical
concerns or specialized health needs, and urged the participation
of these individuals to the greatest extent practical, and when
appropriate on the IEP team.
    Many commenters were concerned that paragraph (a)(6) of this
section was too restrictive, because it (1) could prevent parents
from bringing support personnel, representatives of PTIs and other
parent organizations, and other advocates to their child's IEP
meetings, and (2) could place an unreasonable burden on the parent
to prove the individual's ``special knowledge or expertise''
regarding their child.     Several commenters requested that the
regulations list the conditions under which speech-language
pathologists and audiologists will or may serve on the IEP team.
Some commenters recommended that the regulations be amended to make
the participation of the speech-language pathologist at the IEP
meeting mandatory, while other commenters suggested that the number
of individuals required to be on IEP teams for students for whom
speech is the only special education service was excessive.
    Some commenters recommended that the regulations specify that
a person knowledgeable about the language and communication needs
of deaf children must be present for their IEP meetings. Numerous
commenters favored including in the regulation the portion of the
note regarding the attendance of persons knowledgeable about
positive behavior interventions and strategies at IEP meetings, if
the student's behavior impedes the learning of the student or
others. Some of these commenters recommended that the reference be
changed to a person trained in the design and use of effective
positive behavior support strategies.     Several comments were
received regarding an attorney's
participation at IEP meetings, and a recommendation was made that
the discussion regarding the attorney's role at IEP meetings in
Appendix A should be incorporated into the regulations. Another
commenter recommended that the regulation should state that
attorneys should never be in attendance at IEP meetings unless such
a meeting is convened as a result of an administrative proceeding
or judicial review. Other commenters suggested that adults with
disabilities should be required members of the IEP team.
    Discussion: Section 300.344(a)(6) adopts verbatim the statutory
language at section 614(d)(1)(B)(vi) of the Act. Under this
section, parents and public agencies have the discretion to bring
to IEP meetings as IEP team members other individuals who have
knowledge or special expertise regarding the child, including
related services personnel, as appropriate. Under this statutory
provision, the parent's and public agency's right to bring other
individuals to the IEP meeting at their discretion must be
exercised in a manner that ensures that all members of the IEP team
have the knowledge or special expertise regarding the child to
contribute meaningfully to the IEP team.     Individuals with
knowledge about the child could include neighbors or friends of the
parents, or advocates, who, in the judgement of the parents, are
able to advise or assist them at the meeting. Individuals with
special expertise could include professionals in evaluation or
special education and related services who have been directly
involved with the child, as well as those who do not know the child
personally, but who have expertise in (for example) an
instructional method or procedure, or in the provision of a related
service that the parents or agency believe can be of assistance in
developing an appropriate IEP for the child.
    There is no need to make the participation of school nurses on
the IEP team mandatory, as requested by commenters. As providers of
the related service ``school health services,'' their participation
would be subject to the requirements of this section, and they
could be members of the IEP team at the discretion of the parents
or public agency, provided that they possess the requisite
knowledge and special expertise regarding the child. The same is
true of providers of speech-language and audiology services and
individuals knowledgeable about the communication needs of students
who are deaf or hard of hearing. In the case of a child whose
behavior impedes the

[[Page 12586]]

learning of the child or that of others, the public agency is
encouraged to have a person with special expertise in positive
behavior interventions and strategies on the IEP team at the IEP
meeting.     Individuals such as representatives of PTIs may, at
the parent's discretion, serve as members of the IEP team, provided
they possess the requisite knowledge or expertise regarding the
child.
    Regarding attorneys participation at IEP meetings, it is
important to note that a new statutory provision at section
615(i)(3)(D)(ii) provides that attorneys' fees may not be awarded
for an IEP team meeting unless the meeting is convened as the
result of an
administrative proceeding or judicial action, or at the discretion
of the State, for a mediation conducted prior to initiating a due
process hearing under the Act. Issues raised related to attorneys'
fees regarding IEP meetings are also addressed under Sec. 300.513
of this attachment and in Appendix A.
    It is not necessary to require the participation of adults with
disabilities on the IEP team. As is true of other related services
personnel, as well as other individuals selected as IEP team
members at the parent's or agency's discretion, an adult with a
disability could be a member of an IEP team at the parent's or
public agency's discretion if that individual possesses the
requisite knowledge and expertise regarding the child.
    Changes: A new Sec. 300.344(c) has been added to clarify that
``The determination of the knowledge or special expertise of any
individual described in paragraph (a)(6) of this section shall be
made by the parents or public agency who invited the individual to
be a member of the IEP team.''
    Comment: Commenters recommended that the word ``appropriate''
be deleted from Sec. 300.344(a)(7), since a student always should
be permitted to be at his or her IEP meeting, and that students
eighteen years of age and older always should be considered members
of the IEP team.
    Commenters also recommended that language be added to the
regulation to clarify that students under age 14 be included on the
IEP team on an as-appropriate basis, and that students 14 and older
be included as members of the team. Other commenters recommended
clarification that the decision as to when it is ``appropriate''
for a child to attend his or her IEP meeting rests with the child
and his or her parents.
    Other commenters expressed a concern that students could be
coerced into accepting instructional plans and that the IEP
provisions should be amended to require that an advocate employed
by the LEA must be present at every consultation involving teachers
and students regarding IEP or implementation.
    Discussion: Section 300.344(a)(7) of these regulations adopts
verbatim the statutory requirement at section 614(d)(1)(B)(vii) of
the Act regarding the child's participation as a member of his or
her IEP team, as appropriate. Consistent with this statutory
requirement, public agencies must invite students to attend IEP
meetings in appropriate situations.
    No regulatory change deleting the reference to ``if
appropriate'' should be made, as requested by commenters, since to
do so would alter the explicit statutory provision limiting the
student's participation in IEP meetings to appropriate situations.
However, if a purpose of the meeting will be the consideration of
a student's transition services needs or needed transition services
or both, Sec. 300.344(b)(1) of these regulations would provide that
the student must be invited to attend, because it is important to
afford students an opportunity to participate and have a voice in
planning for their transition from school to post-school
activities, including postsecondary education and employment.
    The change requested by commenters regarding the participation
of a student over eighteen years of age as a member of their IEP
team should not be made. Even if, under section 615(m) of the Act,
all rights accorded parents under Part B transfer to students who
have reached the age of majority under State law, ages of majority
differ among States, and not all States regard age eighteen as the
age at which parental rights transfer to children. In addition,
under section 615(m) of the Act, there are circumstances in which
parental rights accorded under Part B may not be transferred, even
in a State that transfers rights at the State age of majority.
    No change should be made regarding the commenters' concerns
that students would be coerced into accepting instructional plans.
It would be more appropriate to address these implementation issues
at the State and local levels.
    Changes: None.
    Comment: Commenters requested that this section be revised to
require SEAs and LEAs to enter into interagency agreements with
non-school agencies that include participation by non-school
agencies in transition meetings. Other suggestions made by
commenters were that a statement be added to the regulations to
require the attendance of an advocate or staff member from an
independent living center and a transition coordinator at an IEP
meeting whenever transition services are discussed. Other
commenters requested additional information about boundaries and
parameters for enlisting the involvement of other agency personnel
in transition meetings.
    Some commenters suggested that not only the public agency
should have the ability to invite representatives of other
agencies, but so should the parents. If a student is unable to
attend an IEP meeting, other commenters asked what steps will be
taken to ensure that the student's preferences and interests are
being considered, especially if transition services are being
discussed.
    Discussion: Section 300.344(b)(1) of these regulations would
require that a student of any age be invited to an IEP meeting if
a purpose of the meeting is to meet a requirement of Sec.
300.347(b)(1) (transition services) of these regulations. If the
student cannot attend, the public agency must take whatever steps
are necessary to ensure that the student's preferences and
interests are being considered. No further clarification should be
provided since these steps necessarily will vary based on a variety
of factors, including the needs of the student.
    There is no need for clarification regarding interagency
agreements, since Sec. 300.142 of these regulations already
contains a requirement that agreements be in place between
educational and noneducational public agencies to govern the
provision and financing of all required services under these
regulations, including transition services. There is no need to
require the participation of advocates and transition coordinators
at IEP meetings at which transition services needs or the statement
of needed transition services is being discussed.
    Changes: None.

Parent participation (Sec. 300.345)

    Comment: A number of comments were received on the notice
requirement in Sec. 300.345(a), including comments requesting that
(1) the regulations require that the notice be in a format and in
language that is usable by parents; (2) because of the prior
written notice requirement in the statute, public agencies should
not have the option to provide verbal notice (i.e, by telephone);
(3) LEAs generally should not be allowed to reject a parent's
proposal for a time and place of the meeting, and meetings should
be held at times that accommodate parents' work schedules; (4) the
term ``early enough'' in
Sec. 300.345(a)(1) be replaced with a

[[Page 12587]]

specific number of days; and (5) a draft IEP be given to parents
not less than 10 days before the meeting.
    Discussion: The ``notice'' requirement in Sec. 300.345(a) of
these final regulations implements provisions under prior
regulations that were not changed by the IDEA Amendments of 1997,
and, therefore, does not need to be revised with respect to the
comments received. This requirement is a long-standing provision
that is intended mainly to inform parents about the IEP meeting and
provide them with relevant information about it (e.g., the purpose,
time, and place of the meeting, and who will be in attendance). The
requirement is not the same as the prior notice provision in Sec.
300.503 (which requires written notice to parents whenever 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).
    In implementing Sec. 300.345(a), some LEAs elect to contact
parents by telephone or to send less formal notes about IEP meeting
arrangements than would be required under Sec. 300.503. These
approaches are consistent with the long-standing regulatory
requirement. With respect to Sec. 300.345(a)(1) (i.e., notifying
parents early enough of the meeting to ensure that they will have
an opportunity to attend), there is no information to justify
replacing the term ``early enough'' with a specified timeline.
Because communicating with parents about IEP meeting arrangements
is generally a less formal process than the procedures required by
certain other provisions in this part, the use of timelines could
have a negative effect.
    The key factor in Sec. 300.345(a) is that public agencies
effectively communicate with parents about the up-coming IEP
meeting, and attempt to arrange a mutually agreed upon time and
place for the meeting. This process should accommodate the parents'
work schedules to ensure that one or both parents are afforded the
opportunity to participate.
    The commenter's request that the public agency provide parents
with a copy of the IEP 10 days before the meeting is inconsistent
with the requirements of this part, which requires that the IEP be
developed at the IEP meeting. However, to the extent that
preliminary information is available in the agency that may affect
discussions and decisions at the meeting related to their child's
IEP, it is expected that the information would be provided to the
parents sufficiently in advance of the meeting so that they can
participate meaningfully in those discussions and decisions on an
equal footing with other members of the IEP team. It is not
necessary to set out a specific timeline for this information to be
provided.
    Changes: None.
    Comment: A number of comments were received requesting that the
first sentence of the note following Sec. 300.345 (related to
informing parents of their right to bring other people to the IEP
meeting) be added to the regulation, and specifically to Sec.
300.345(b) to ensure that this would be a specific requirement.
Other commenters recommended deleting the note, stating that it is
misleading, and will confuse parents and school staff and lead to
unneeded difficulties.     Discussion: It is important for parents
of children with disabilities to be aware that, under the
provisions of
Sec. 300.344(a)(6) and (c), other individuals may be included on
their child's IEP team, provided that the individuals have
knowledge or special expertise regarding the child (see discussion
under Sec. 300.344 of this analysis). To ensure that parents know
about those provisions, public agencies should be required to
include information about the provisions in the notice of IEP
meetings specified under Sec. 300.345(a)(1) and (b)(1)(ii).
    Changes: Section 300.345(b) has been amended to provide that
the notice required under Sec. 300.345(b) must ``Inform the parents
of the provisions in Sec. 300.344(a)(6) and (c) (relating to the
participation of other individuals on the IEP team who have
knowledge or special expertise about the child).''
    Comment: A few comments were received on Sec. 300.345(d)
(related to holding an IEP meeting without the parents if the LEA
is unable to convince them to participate). The commenters stated
that the term ``convince'' should be replaced because it connotes
an adversarial situation between the LEA and the parents, and
suggested other terms. Some commenters requested that Sec.
300.345(d)(3) (related to visits to a parent's home or place of
employment) be deleted, stating (for example) that such a provision
is overly intrusive, invasive, and could anger employers, and could
cause some parents to be negatively impacted or insulted; and that
the remaining methods in Sec. 300.345(d)(3) are sufficient.
    Another commenter suggested replacing the language in this
paragraph with language that would require LEAs to demonstrate what
they have done in attempting to involve parents.
    Discussion: Section 300.345(d) is a longstanding provision that
is intended to enable a public agency to proceed to conduct an IEP
meeting if neither parent elects to attend, after repeated attempts
by the public agency to ensure their participation. In
administering and monitoring the provisions of this part over the
past 22 years, few, if any, questions or concerns have been
identified, or raised, with respect to the implementation of Sec.
300.345(d), and there is no information to justify amending the
paragraph at this time, either with respect to the word
``convince'' or the reference to maintaining records of efforts to
involve the parents.
    The regulation makes it clear that paragraphs (d)(1) through
(d)(3) of this section are examples of what a public agency ``may
do'' to maintain a record of its attempts to arrange a mutually
agreed on time and place for conducting an IEP meeting. Public
agencies are not required to go to the parent's place of employment
to attempt to seek the parents' involvement in their child's IEP;
and it is expected that a public agency would pursue that option
very judiciously. However, there may be situations in which the
agency believes that it is important to do so because it is
otherwise unable to contact the parent. Implementation of this
specific provision is left to the discretion of each public agency.
In any case in which the agency is unable to contact the parents or
otherwise ensure their participation, Sec. 300.345(d) sets out
options that the agency may elect to follow.     Changes: None.
    Comment: Several commenters recommended that Sec. 300.345(f) be
amended to delete the term ``on request'' from the statement, so
that parents are given a copy of the IEP without having to ask for
it. One commenter requested that the copy be given within 5 days of
the meeting.
    Discussion: The new statute has given parents a more active
voice in the education of their children with disabilities than
existed under prior law. Because of the role parents play in the
development, review, and revision of their child's IEP, it is
appropriate to amend the regulation to require that each public
agency must give the parents a copy of their child's IEP at no cost
to the parents.
    Changes: Section 300.345(f) has been amended consistent with
the above discussion.

Development, Review, and Revision of IEP (Sec. 300.346)

    Comment: A few comments were received on Sec. 300.346(a)(1).
Commenters recommended that (1) examples be added related to the
strengths of the child and the concerns of the parents for

[[Page 12588]]

enhancing the child's education; (2) the IEP team also consider the
child's performance results on any State or district-wide
assessments, in addition to the results of the initial or most
recent evaluation of the child; and (3) the term ``consider'' be
replaced with ``examine and address;'' or with ``incorporate,'' to
ensure that the IEP team incorporates the listed items into a
child's IEP, rather than simply considering them.
    While some commenters recommended that Note 1 be retained,
other commenters recommended that the clarification in the note
either be included in the text of the regulation or deleted in its
entirety. One of the concerns expressed by commenters was that in
considering special factors, the statement in Note 1 concerning
review of valid information data, as appropriate, sets up a demand
of separate or more expansive evaluation procedures for special
consideration.
    Discussion: Section 300.346(a)(1) adopts the statutory
requirements related to considering the strengths of the child and
the concerns of the parents. No examples regarding this provision
have been incorporated into these final regulations, since these
determinations would differ for each student, based on a variety of
unique factors in light of the abilities and needs of the parents
and children involved. Because the requirement to ``consider'' the
strengths of the child and the concerns of the parent, as well as
the special factors, is statutory, a word other than ``consider''
should not be substituted. The requirements in paragraph (a)(1) and
(a)(2) of this section impose an affirmative obligation on the IEP
team to ensure that the child's IEP reflects those considerations.
    Paragraph (c) of this section also makes clear that if the IEP
team determines, through consideration of special factors, that a
child requires a particular service, intervention, or program
modification, a statement to this effect must be included in the
child's IEP. Therefore, no further clarification is necessary.
Because the requirements in Sec. 300.346(a) are evident from the
text of this regulation, there is no need to retain Note 1 to this
section of the NPRM in these final regulations.
    Section 300.346(a)(1)(ii) also requires consideration of the
results of the initial or most recent evaluation of the child, and
this consideration must include, as appropriate, a review of valid
evaluation data and the observed needs of the child resulting from
the evaluation process. Because Pub. L. 105-17 strengthens
collaboration between the IEP and evaluation processes, it is
expected that this consideration will occur, as appropriate,
through examination of existing evaluation data. Therefore, the
commenters' concern that separate or expansive evaluation
procedures would be required is not warranted.
    The commenters' suggestion regarding the IEP team's
consideration of the child's performance results on any State and
district-wide assessment programs is consistent with the emphasis
in the Act on the importance of ensuring that children with
disabilities participate in the general curriculum and are expected
to meet high achievement standards. Effective IEP development is
central to helping these children meet these high standards.
Section 612(a)(17) of the Act and Sec. 300.138 of these regulations
require, as conditions for receipt of IDEA funds, that States
ensure that children with disabilities are included in general
State and district-wide assessment programs, with appropriate
accommodations where necessary, and must report the performance
results of these children on such assessments. Therefore, Sec.
300.346(a)(1) should be amended by adding paragraph (iii) to
require that in considering the results of the initial or most
recent evaluation of the child, the IEP team also consider, as
appropriate, the results of the child's performance on any general
State or district-wide assessment programs.
    Changes: Section 300.346(a)(1) has been amended by adding
paragraph (iii) to provide that, in considering the child's initial
or most recent evaluation, the IEP team also consider, as
appropriate, the results of the child's performance on any general
State or district-wide assessment programs. Note 1 to this section
of the NPRM has been removed.
    Comment: Numerous comments were received on Sec. 300.346(a)(2)
(i.e., consideration of special factors). With respect to the
factor under paragraph (a)(2)(i), in the case of a child whose
behavior impedes his or her learning or that of others, commenters
requested that (1) the term ``if appropriate'' be deleted because
it will be used only for those children exhibiting dangerous
behavior; (2) a note be added to state that consideration should be
given to whether the behavior that impedes learning is due to
frustration over a lack of services; (3) the IEP team also consider
behavior exhibited both in and outside the school, and behavior
that must be addressed to sustain in-school learning; (4) aversive
behavior management strategies are banned under these regulations;
(5) a child not be subjected to physical restraints or
interventions unless agreed to by the child's parent and teacher;
and (6) a plan between the parent and teacher be required to
specify what disciplinary actions would occur if a child violated
his or her behavioral intervention plan.
    Discussion: Paragraph (a)(2) of this section (relating to
consideration of special factors) implements the new statutory
requirement in section 614(d)(3)(B) of the Act. It should be
emphasized that, under prior law, IEP teams were required to
consider these special factors in situations where such
consideration was necessary to ensure the provision of FAPE to a
particular child with a disability. Therefore, this new statutory
provision makes explicit what was inherent in each child's
entitlement to FAPE under prior law.     Paragraph (a)(2)(i) of
this section adopts the statutory requirement at section
614(d)(3)(B)(i) of the Act, that, in the case of a child whose
behavior impedes his or her learning or that of others, the IEP
team consider, if appropriate, strategies, including positive
behavioral interventions, strategies, and supports to address that
behavior. The commenters' concern that the retention of the words
``if appropriate'' would mean that the provision would be applied
only in situations where a child exhibited dangerous behavior seems
to ignore that school officials have powerful incentives to
implement positive behavioral interventions, strategies and
supports whenever behavior interferes with the important teaching
and learning activities of school. Since the word ``strategies'' is
used two times in the statutory provision, contrary to commenters'
suggestion, the word strategies should not be deleted the second
time it appears in this section.
    Although the commenters' suggestions that behavior may be
exhibited that impedes learning due to a frustration over lack of
services and that the IEP team needs to examine in and out-of-
school behavior to develop interventions to sustain learning are
extremely important, no clarification should be provided in these
regulations, to avoid overregulation in this area. It would be more
appropriate to provide technical assistance on Sec.
300.346(a)(2)(i) on an as needed basis, instead of developing
general rules to which numerous exceptions would most likely apply.
The Department funds a number of research efforts in this area, as
well as technical assistance providers. Of course, in appropriate
cases it might be helpful to all parties for the IEP to identify
the circumstances or behaviors of others that may result in
inappropriate behaviors by the child.
    Regarding what behavioral interventions and strategies can be
used, and whether the use of aversive

[[Page 12589]]

behavioral management strategies is prohibited under these
regulations, the needs of the individual child are of paramount
importance in determining the behavioral management strategies that
are appropriate for inclusion in the child's IEP. In making these
determinations, the primary focus must be on ensuring that the
behavioral management strategies in the child's IEP reflect the
Act's requirement for the use of positive behavioral interventions
and strategies to address the behavior that impedes the learning of
the child or that of other children.
    It would not be appropriate for these regulations to require a
specific plan between the teacher and parent, as described by
commenters, that would specify consequences for a student's failure
to comply with a behavioral intervention plan. A child's need for
this type of plan, and the specific elements of that plan, would
vary depending on the child and the behavior involved. Of course,
in appropriate circumstances, the IEP team which includes the
child's parents, might agree upon a behavioral intervention plan
that included specific regular or alternative disciplinary measures
that would result from particular infractions of school rules.
    Parents who disagree with the behavioral interventions and
strategies included in their child's IEP can utilize the Act's
procedural safeguard requirements, which afford them the right to
request an impartial due process hearing under Sec. 300.507 and the
option to use mediation under Sec. 300.506 of these regulations.  
  Changes: None.
    Comment: Numerous comments were received on Sec.
300.346(a)(2)(ii) and Note 3 (factors related to a child with
limited English proficiency (LEP). Commenters recommended changes
in the regulation, such as: (1) replacing ``IEP'' with
``disability'' in Sec. 300.346(a)(2)(ii); (2) clarifying that the
consideration include how the child's level of English language
proficiency affects the provision of special education and related
services needed to receive FAPE, and how the child will be provided
meaningful and full participation in the general curriculum,
including through the use of alternative language services; (3)
clarifying that special education and related services be provided
in the language identified by the school district, with appropriate
support services; (4) clarifying whether English language tutoring
is a related service that must be included in a child's IEP or part
of the general curriculum; and (5) recognizing that second language
acquisition might take precedence over the general curriculum.    
A few commenters expressed support for Note 3, stating (for
example) that it is helpful in recognizing that special education
services may need to be provided in a language other than English.
Other commenters requested that Note 3 be moved to the text of the
regulation, or deleted in its entirety since it expands
responsibilities under these regulations to requirements of Federal
laws other than Part B.
    Discussion: Section 300.346(a)(2)(ii) of these regulations
adopts verbatim the statutory requirement at section
614(d)(3)(B)(ii) of the Act, that in the case of a child with
limited English proficiency, the IEP team consider the language
needs of the child as such needs relate to the child's IEP.
Modifications to this paragraph that would involve changes to
statutory language should not be made.
    Issues such as the extent to which a LEP child with a
disability receives instruction in English or the child's native
language, the extent to which a LEP child with a disability can
participate in the general curriculum, or whether English language
tutoring is a service that must be included in a child's IEP, are
determinations that must be made on an individual basis by the
members of a child's IEP team.     In light of the general decision
to remove all notes, Note 3 has been removed. However, in
developing an IEP for a LEP child with a disability, it is
particularly important that the IEP team consider how the child's
level of English language proficiency affects the special education
and related services that the child needs in order to receive FAPE,
consistent with Sec. 300.346(a)(2)(ii) and (c). Under Title VI of
the Civil Rights Act of 1964, school districts are required to
provide LEP children with alternative language services to enable
them to acquire proficiency in English and to provide them with
meaningful access to the content of the educational curriculum that
is available to all students, including special education and
related services.     A LEP child with a disability may require
special education and related services for those aspects of the
educational program which address the development of English
language skills and other aspects of the child's educational
program. For a LEP child with a disability, under paragraph (c) of
this section, the IEP must address whether the special education
and related services that the child needs will be provided in a
language other than English.
    Changes: Note 3 has been removed.
    Comment: With respect to the special factor considered for a
child who is blind or visually impaired, commenters requested that
the regulation clarify that (1) Braille materials must be provided
to students who are blind or visually impaired at the same time
that their sighted peers receive the materials; (2) a child may not
be denied Braille services on the basis that modified reading and
writing media, other than Braille, are being provided; (3) when
there is a disagreement about the use of Braille, Braille
instruction must be provided until lawful procedures have
culminated in a final decision; and (4) any child who meets the
legal definition of blindness should be taught Braille.
    Commenters also stated that other options besides Braille may
be needed for certain students, as described in the ``Policy
Guidance on Educating Blind and Visually Impaired Students'' (OSEP
96-4, dated 11-3-95), and requested that a note be added that
includes much of the content of that document, or that a reference
be made to that policy guidance paralleling Note 2 relating to
students who are deaf or hard of hearing.
    Discussion: Section 300.346(a)(2)(iii) of these final
regulations adopts verbatim the statutory language at section
614(d)(3)(B)(iii) of the Act. Under this requirement, in the case
of a child who is blind or visually impaired, the IEP team must
make provision for instruction in Braille and the use of Braille,
unless the IEP team determines, after the evaluations described in
the statutory provision, that instruction in Braille or the use of
Braille is not appropriate for the child. Changes to statutory
language requested by commenters should not be made.
    Contrary to a suggestion of commenters, a regulatory provision
making it mandatory for Braille to be taught to every child who is
legally blind would contravene the individually-oriented focus of
the Act, as well as the statutory requirement that the IEP team
must make individual determinations for each child who is blind or
visually impaired based on relevant evaluation data. As explained
in OSEP Memorandum 96-4, Policy Guidance on Educating Blind and
Visually Impaired Students, the IEP team's determination as to
whether a child who is blind or visually impaired receives
instruction in Braille or the use of Braille cannot be based on
factors such as availability of alternative reading media, such as
large print, recorded materials, or computers with speech output.
    Additionally, although these regulations do not specify that a
child

[[Page 12590]]

for whom Braille instruction is determined appropriate must receive
Braille materials at the same time they are provided to their
sighted peers, once the IEP team determines that a child requires
instruction in Braille, such instruction, along with other aspects
of the child's IEP, must be implemented as soon as possible
following the child's IEP meeting, and in any case, without undue
delay. If there is disagreement between the parents and school
district over what constitutes an appropriate program for a child
who is blind or visually impaired, when the IEP team has determined
that instruction in Braille would not be appropriate for the child,
the parents of the child would have the right to request a due
process hearing and mediation. In addition, parents have available
to them mediation and complaint resolution by which they can file
a complaint with the SEA under the State complaint procedures in
these regulations.
    Although the LEA would not be required to provide instruction
in Braille while the dispute is being resolved, the LEA would be
required, both by Part B and Section 504, to ensure that the child
receives instructional materials in an alternative medium to enable
the child to participate in the LEA's program.
    The OSEP Policy Guidance on Educating Blind and Visually
Impaired students should not be included in these final regulations
since many of the statutory and regulatory provisions cited in the
policy guidance have been replaced by the requirements of Pub. L.
105-17. In some important respects, particularly with regard to
consideration of instruction in Braille, Pub. L. 105-17
substantially revised the requirements of prior law. It also should
be pointed out that Note 2 to this section of the NPRM, which
contained a reference to corresponding policy guidance regarding
educating deaf students, is being removed as a note, and pertinent
references to that policy guidance are incorporated into the
discussion of Sec. 300.346(a)(2)(iv).     Changes: None.
    Comment: With respect to considering the communication needs of
the child and factors related to a child who is deaf or hard of
hearing, commenters expressed support for Note 2 (related to policy
guidance on Deaf Students Education Services that was published in
the Federal Register in 1992), and requested that the entire
statement be published as an attachment to these regulations. Some
commenters favored deleting Note 2 because they objected to
citation of policy guidance documents in the regulations without
following applicable procedures in section 607(b) and (c) of the
Act.
    Commenters recommended adding to the regulations proposed
definitions of the terms ``direct communication,'' ``the child's
language,'' and ``full range of needs,'' or adding clarifying
language relating to those terms (e.g., that the child's primary
language could be American Sign Language, and that the full range
of needs includes social, emotional, and cultural needs).
    Commenters also recommended (1) requiring that counselors of
the deaf assess each deaf child's language and speech communication
in spontaneous conversation at age 5, to determine whether the
child has the skill to stay in an oral program or should be
transferred to a program that uses sign language; (2) that the
regulations make it clear that the communication needs of a deaf
child are fundamental to the LRE decision; (3) that many deaf
children need to be in an environment where they can communicate
directly through a visual mode with those around them; and (4) that
the IEP team document that it considered the language and
communication needs of a hard of hearing child and how such needs
will be met in the proposed placement.
    A few commenters requested that children with cochlear implants
be included with other deaf children in the structure of
educational placements and language and communication needs, and
that the IEP state what will be done to assist the child to best
utilize the hearing acquired.
    Some commenters requested adding children with deafness and
blindness because they also have communication needs and require
this consideration.
    Discussion: Section 300.346(a)(2)(iv) of these regulations
adopts verbatim the statutory requirement in section
614(d)(3)(B)(iv) of the Act that the IEP team consider the
communication needs of the child, and, in the case of a child who
is deaf or hard of hearing, those additional special factors
relating to the child's language and communication needs.
Additional guidance in the form of changes to the regulations
requested by commenters should not be provided.     In the interest
of not using notes in these final regulations, Note 2 to this
section of the NPRM should be removed. It is important to emphasize
that this policy guidance on Deaf Students Educational Services
merely interprets existing statutory and regulatory requirements,
and does not impose new requirements on the public. Nevertheless,
LEAs are not relieved of their responsibilities to ensure that
paragraph (a)(2)(iv) of this section is implemented consistent with
the published policy guidance on Deaf Students Education Services,
and that the full range of communication and related needs of deaf
and hard of hearing students are appropriately addressed in
evaluation, IEP, and placement decisions under these regulations.
    The Senate and House Committee Reports on Pub. L. 105-17
reinforce this principle in their statements that ``the IEP team
should implement the [new statutory] provision in a manner
consistent with the policy guidance entitled ``Deaf Students
Education Services'' published in the Federal Register (57 FR
49274, October 30, 1992) by the Department.'' S. Rep. No. 105-17,
p. 25., H.R. Rep. No. 105-95, p. 104 (1997). The Department fully
expects LEAs to ensure that Sec. 300.346(a)(2)(iv) of these
regulations is implemented consistent with these statements.    
Changes: Note 2 has been removed.
    Comment: With respect to considering whether a child needs
assistive technology (AT), some commenters stated that if AT
devices or services are recommended and not provided, the IEP must
include a statement to that effect and the basis on which the
determination was made. Other commenters stated that having to
document that such devices and services were considered is an
unnecessary paperwork burden.     Commenters also recommended (1)
requiring that decisions about the need for AT are made early
enough so that they are in effect by the beginning of the school
year; (2) clarifying that if an AT device is needed, the child has
the right to take it home; (3) adding clarification of liability
issues (e.g., where a child uses a family owned device at school
and other waiver of liability issues); and (4) adding a note that
AT can have a significantly positive effect on the attainment of
annual goals and participation in the general curriculum.    
Discussion: Section 300.346(a)(2)(v) of these regulations adopts
verbatim the new statutory requirement at section 614(d)(b)(3)(v)
of the Act, making it mandatory for the IEP team to consider each
child's AT needs. This statutory provision reinforces the
requirement in Sec. 300.308 of these regulations that if an IEP
team determines that a disabled child requires an AT device or
service in order to receive FAPE, the required AT must be provided
at no cost to the parents. In all instances, the IEP team must
determine whether an individual disabled child should receive AT,
and if so, the nature and extent of AT provided to the child.

[[Page 12591]]

    Because in many situations, parents were reporting that LEAs
were not properly considering their children's AT needs on an
individual basis, this new provision should ensure that each
child's IEP team considers the child's need for AT. Since IEP teams
must consider each child's need for AT on an individual basis,
determinations regarding the provision of AT must be made when the
child's IEP for the upcoming school year is finalized so that the
AT can be implemented with that IEP at the beginning of the next
school year.
    In the interest of not adding paperwork burdens to these
regulations, there is no additional requirement that LEAs document
that the IEP team considered a child's AT needs, or considered a
child's AT needs and determined that AT not be provided to the
child. It is not necessary to add the clarification regarding the
importance of reflecting a child's AT needs in IEP goals and
objectives or in issues relating to the child's participation in
the general curriculum.     All of needs identified through
consideration of the special factors contained in paragraph (a)(2)
of this section must be reflected in the contents of the child's
IEP, including, as appropriate, the instructional program and
services provided to the child, the annual goals, and the child's
involvement in and progress in the general curriculum. In addition,
individual consideration of a child's AT needs is essential to
ensuring that the child's unique needs arising from his or her
disability are appropriately addressed so that the child can be
involved in and progress in the general curriculum.
    Issues regarding whether AT devices or services can be used at
home, and issues regarding liability for family-owned AT devices
used at school are addressed either in discussions of Secs.
300.5-300.6 or 300.308 of the attachment, and, as appropriate, are
reflected in changes to those regulations.
    Changes: None.
    Comment: Commenters stated that, in light of the fact that IEP
teams must consider special factors in five specific instances, and
are responsible for significant decisions as a result of changes
made by Pub. L. 105-17, a new paragraph (a)(3) should be added to
Sec. 300.346 to provide specific guidance to IEP teams (e.g.,
requiring that the teams draw upon information from a variety of
sources, including teacher observation, input from parents, and
other specified information). Other commenters requested that a new
paragraph be added to Sec. 300.346 to ensure that all children with
disabilities receive the services in their IEPs and retain the
rights and privileges included under the Act.
    Discussion: While the concerns expressed by these commenters
are extremely important, no regulatory changes should be made.
Consideration of the five specific factors outlined in the statute
and these regulations, of necessity, will require consideration of
information from a variety of sources, and Sec. 300.346(c) of these
regulations also requires that such consideration be reflected in
the contents of a child's IEP. In addition, it is not necessary to
add a provision to clarify that all children with disabilities must
receive services listed in their IEPs. This requirement is already
reflected in Sec. 300.350 of these regulations, which provides that
each child with a disability must receive special education and
related services in accordance with an IEP.
    Changes: None.
    Comment: A few comments were received on Sec. 300.346(d)(2)
(relating to the determination of supplementary aids and services,
program modifications, and supports for school personnel,
consistent with Sec. 300.347(a)(3)). The commenters stated that (1)
the term ``supports for school personnel'' focuses the need from
the student to the staff, and recommended adding a note to narrow
this provision, because it could be interpreted broadly by staff
and have a negative effect on resources that are needed to directly
meet student needs; (2) the provision may be used by teachers to
block admission of children with disabilities to their class by
demanding unreasonable supports; (3) additional guidance be
provided, since this is the first time that the IEP has addressed
needs not specific to the child; and (4) language be added
indicating that the LEA and not the teacher should be the focus of
responsibility in the provision of such supports.
    Discussion: With respect to Sec. 300.346(d)(2), including the
statement relating to supports for school personnel, it is critical
that those determinations are ``consistent with Sec.
300.347(a)(3).'' Section 300.347(a)(3) makes clear that the focus
of the supports is to assist the child to advance appropriately
toward (for example) attaining the annual goals, and to be involved
in and progress in the general education curriculum. Therefore,
while certain supports for school staff may be provided (such as
specific training in the effective integration of children with
disabilities in regular classes), the ultimate focus of those
supports to school personnel is to ensure the provision of FAPE to
children with disabilities under Part B, their integration with
nondisabled peers and their
participation and involvement in the general curriculum, as
appropriate. Consistent with the Act's emphasis on ensuring the
provision of FAPE to children with disabilities, and, to the
maximum extent appropriate, educating those children in regular
classes with nondisabled children with appropriate supplementary
aids and services, it is critical that at least one regular
education teacher of the child be a member of the IEP team and
provide input on appropriate supplementary aids and services,
including program modifications and supports for school personnel.
It also is essential that the child's teachers and other service
providers who are not members of the IEP team are informed about
the contents of the child's IEP, in whatever manner deemed
appropriate by the public agency, so that the IEP is properly
implemented by all school personnel.
    Changes: None.

Content of IEP (Sec. 300.347)

    Comment: A number of general comments were received relating to
Sec. 300.347. Some commenters expressed concerns that the IEP
requirements were burdensome. A commenter requested that a sample
IEP be provided in order to cut down on paperwork and keep the IEP
to the essentials of Federal and State law. Commenters also (1)
requested that a provision addressing assistive technology be
added, as it is often not provided, and (2) stated that Sec.
300.347 should contain a requirement that the IEP document be in a
user-friendly format and written in language that can be understood
by parents, and that the mandatory contents of IEPs include ESY
services, if a child is eligible for such services, and necessary
services that will be provided by another agency and the name of
the provider.
    Other commenters requested (1) documenting how special factors
were considered; (2) clarifying the role of the regular education
teacher in IEPs of children who are in self-contained, restrictive
placement settings, or private placements; (3) providing the
necessary flexibility to change how and where services are
delivered to meet the child's changing needs; and (4) forbidding
the practice of LEAs providing interim plans which promise that a
full IEP will be developed at a later date--a device used by LEAs
to avoid specifying what they will do for a child, so that the IEP
can be discussed

[[Page 12592]]

and litigated (if necessary) well before the start of a school
year.     Discussion: In developing these final regulations,
efforts have been made to ensure that the regulatory requirements
related to the content of IEPs are consistent with the IDEA
Amendments of 1997, and that no additional burden is added. The
Department will explore the extent to which a sample IEP addressing
the Federal requirements as part of a technical assistance effort,
would be useful to parents and State and local administrators in
developing IEPs that meet Federal, State, and local rules.
    With respect to concerns about added burden, the provisions of
Sec. 300.347 are drawn directly from the statute. While the statute
did add some new requirements regarding content, it also gave the
flexibility to use benchmarks of progress as opposed to short term
objectives, and to determine how to regularly report on a child's
progress instead of the more burdensome objective criteria,
evaluation procedures and schedules required under prior law.
    Except for including, essentially verbatim, the statutory
content requirements in the regulations, the format and specific
language used in developing IEPs are matters left to the discretion
of individual States, and, to the extent consistent with State
requirements, individual LEAs within the States. In providing such
discretion, the assumption is that each State and LEA would attempt
to make the format and language of the IEP as understandable and
meaningful for parents as possible. Within this general framework,
IEP teams develop the specific detail that is necessary to address
each child's individual needs.     The importance of assistive
technology devices and services in meeting the special educational
needs of children with disabilities is addressed in several
sections of these regulations (e.g., Secs. 300.5, 300.6, 300.308,
and 300.346). The importance of ESY services and the requirements
related to addressing the need for those services is included under
Sec. 300.309. Therefore, no additional provisions are warranted in
this section.
    With respect to the comment regarding the role of the regular
education teacher, the IDEA Amendments of 1997 require that at
least one regular education teacher of the child be a member of the
child's IEP team if the child is or may be participating in the
regular education environment.
    The development of an interim IEP (or the use of a diagnostic
placement, on a case-by-case basis) may be appropriate for an
individual child with a disability if there is some question about
the child's special education or related services needs. However,
it would not be consistent with the requirements of this part for
an LEA to adopt an across-the-board policy of developing interim
IEPs for all children with disabilities. Clearly, in any case in
which the IEP for a child with a disability does not seem to
effectively address the needs of the child, the IEP team should be
reconvened (at the request of the child's parent or teacher(s)) to
reconsider the nature and scope of the IEP.
    Changes: None.
    Comment: A few comments were received related to the statement
of the present levels of educational performance in the IEP
(Sec. 300.347(a)(1)), including requesting that (1) the statement
include the results of any independent assessment that has been
done, and any reasons the LEA has for not accepting the assessment;
and (2) the provision requiring a description of how the child's
disability affects the child's involvement in the general
curriculum be deleted. One commenter recommended that this
requirement and the provision on goals and objectives in Sec.
300.347(a)(2) be revised to address the concept of ``meaningful''
participation in the general curriculum. Commenters also requested
that, in the requirements for a description of how a preschool
child's disability affects the child's participation in appropriate
activities, the term ``appropriate activities'' be clarified or
examples given.
    A number of comments were received regarding the ``statement of
measurable annual goals, including benchmarks or short-term
objectives'' (Sec. 300.347(a)(2)). Several commenters requested
that the term ``benchmarks'' be defined or clarified or that a note
be added to include examples, and that the term be distinguished
from ``short-term objectives.'' Other commenters requested that (1)
the term ``measurable'' apply to short-term objectives and not to
annual goals, (2) the regulation clarify if ``measurable'' means
statements of the amount of progress expected; (3) a child's report
card be used to report annual goals; and (4) a provision be added
requiring the IEP team to be reconvened if the benchmarks indicate
that the child is not making satisfactory progress.
    Comments were received on Sec. 300.347(a)(2)(i) (regarding
enabling a child to be involved in and progress in the general
curriculum), as follows: (1) make the provision clearer, including
requiring that the LEA list, for each goal and objective, each
obstacle to full, effective participation in the general
curriculum, and justify use of the resource room instead of
supports in the regular classroom, and (2) clarify what the
expectations are for children with significant cognitive disorders.
    Discussion: It is important that the statement of a child's
present levels of educational performance be based on current,
relevant information about the child, that is obtained from a
variety of sources, including (1) the most recent reevaluation of
the child under Sec. 300.536, (2) assessment results from State and
district-wide assessments, (3) inputs from the child's special and
regular education teachers, and (4) information from the child's
parents.
(Sec. 300.346(a)(1)). If an independent educational evaluation has
been conducted, the results of that evaluation also must be
considered if it meets agency criteria for such evaluations. (Sec.
300.502(c)(1)).     Consideration of all of the information
described above is inherent in the requirement that the IEP include
``a statement of the present levels of educational performance.''
Therefore, it is not necessary to amend the regulation to address
this requirement.
    The provision in Sec. 300.347(a)(1)(i) that requires a
description of how a child's disability affects the child's
involvement in the general curriculum (i.e., the same curriculum as
for nondisabled children) is a statutory requirement and cannot be
deleted. The requirement is important because it provides the basis
for determining what accommodations the child needs in order to
participate in the general curriculum to the maximum extent
appropriate.
    A basic assumption made in both the statute and these final
regulations is that the programming and services for each
``individual'' child would be tailored to address the child's
unique needs that impede the child's ability to make meaningful
progress in the general curriculum. (As explained elsewhere in this
attachment, the reference to the general curriculum in Sec.
300.347(a)(2) has been modified to clarify that the general
curriculum is the same curriculum for nondisabled children.)
    With respect to preschool-aged children, the term ``appropriate
activities,'' as used in Sec. 300.347(a)(1)(ii), includes
activities that children of that chronological age engage in as
part of a formal preschool program or in informal activities (e.g.,
coloring, pre-reading activities, sharing-time, play time, and
listening to stories told or read by the parent or pre-school
teacher). In order to recognize that for some preschool-aged
children appropriate goals will be related to participation in
appropriate

[[Page 12593]]

activities, as these children are not of an age for which there is
not a general curriculum for nondisabled children, a change should
be made to Sec. 300.347(a)(2).
    A delineation and description of the difference between
``benchmarks'' and ``short term objectives'' is included in
Appendix A.     Regarding the commenter's request that the LEA (1)
list obstacles to the child's full, effective participation in the
general curriculum, and (2) justify the use of a resource room
instead of supports in the regular classroom, no further regulation
will be provided. Parents are equal members of their child's IEP
team, and can participate in the discussion about whether there are
any obstacles to ensuring the child's full and effective
participation in the general curriculum. In any case in which the
parents are not satisfied with the outcome of the IEP meeting, they
have avenues available to them under both the Act and regulations
for redressing their concerns.
    See comments and discussion in Sec. 300.550 related to children
with significant cognitive disorders.
    Changes: Section 300.347(a)(2)(i) has been revised to clarify
that ``general curriculum'' is the same curriculum as for
nondisabled children and to recognize that a general curriculum is
not available for all preschool-aged children.
    Comment: With respect to the provision in Sec. 300.347(a)(3)
(related to describing services to be provided to a child, or on
behalf of the child * * *), a few commenters requested
clarification of the term ``on behalf of the child.'' Commenters
also recommended that, in the ``statement of program modifications
or supports for school personnel,'' the regulation clarify that
``staff training'' is one form of program support, and added that
a necessary support service for staff can often be obtained more
easily if it is identified as an IEP service.
    A few commenters recommended that, in order to ensure full
access to the general curriculum, Sec. 300.347(a)(3)(ii) be amended
to state that a child's involvement and progress in the general
curriculum be ``to the maximum extent appropriate to the needs of
the child.'' Other commenters requested that the provision in Sec.
300.347(a)(3)(ii) (related to a child's participation in
extracurricular activities) be deleted because it is inconsistent
with Part B. Commenters also requested that the regulations clarify
that participation in extracurricular activities is not a part of
the child's educational program, and that such participation is
subject to the same rules as other children.
    With respect to Sec. 300.347(a)(4) (an explanation of the
extent to which the child will not participate with nondisabled
children), a few commenters recommended that the provision be
deleted, or that it be stated in positive terms (extent to which
the child ``will'' participate with nondisabled children).
Commenters also stated that documenting what will not happen is
burdensome paperwork.
    Discussion: As used in Sec. 300.347(a)(3), the term ``on behalf
of the child'' includes, among other things, services that are
provided to the parents or teachers of a child with a disability to
help them to more effectively work with the child. For example, as
used in the definition of ``related services'' under Sec. 300.24,
the term `` `parent counseling and training' means (i) Assisting
parents in understanding the special needs of their child * * * and
(iii) Helping [them] to acquire the necessary skills that will
allow them to support the implementation of their child's IEP or
IFSP.''
    Supports for school personnel could also include special
training for a child's teacher. However, in order for the training
to meet the requirements of Sec. 300.347(a)(3), it would normally
be targeted directly on assisting the teacher to meet a unique and
specific need of the child, and not simply to participate in an
inservice training program that is generally available within a
public agency.     In order to ensure full access to the general
curriculum, it is not necessary to amend Sec. 300.347(a)(3)(ii) to
clarify that a child's involvement and progress in the general
curriculum must be ``to the maximum extent appropriate to needs of
the child.'' The
individualization of the IEP process, together with the new
requirements related to the general curriculum, should ensure that
such involvement and progress is ``to the maximum extent
appropriate to the needs of the child.''
    The provision in Sec. 300.347(a)(3)(ii) related to
participation in ``extracurricular and other nonacademic
activities'' is statutory.     The provision in Sec. 300.347(a)(4)
(that requires a statement of the extent to which a child with
disabilities will not participate with nondisabled children) is
also a statutory requirement and cannot be deleted. The basic
principle underlying this requirement is that children with
disabilities will be educated in the regular education environment
along with their nondisabled peers, and that these children are
only removed from that environment if it is determined that they
cannot be appropriately served in the regular education
environment, even with the use of supplementary aids and services.
    This new provision is designed to ensure that each IEP team
carefully considers the extent to which a child can be educated
with his or her nondisabled peers; and if the team determines that
the child cannot participate full time with nondisabled children in
the regular classroom and in the other activities described in
Sec. 300.347(a)(3)(ii), the IEP must include a statement that
explains why full participation is not possible.
    If (for example) a child needs speech-language pathology
services in a separate setting two to three times a week, but will
otherwise spend full time with nondisabled children in the
activities described in Sec. 300.347(a)(4), the ``explanation''
would require only the statement described in the preceding
sentence. A similar explanation would be required for any other
child with a disability who, in the judgement of the IEP team, will
not participate on a full time basis with nondisabled children in
the regular class. Thus, while the IEP needs to clearly address
this situation, the required explanation does not have to be
burdensome.
    Changes: None.
    Comment: A few comments were received on Sec. 300.347(a)(5)
(related to State or district-wide assessments), including
requesting that: (1) the regulations clarify that if the individual
modifications necessary for a child to participate in the
assessment are not known at the time of the IEP meeting, a
subsequent meeting be required to make this determination, as long
as the decision is made before the assessment is conducted; and (2)
an alternate assessment not be construed as an exemption and a
separate assessment system, but, rather, that the provision in Sec.
300.347(a)(5)(ii)(B) be amended to require a statement of how the
child will be included in the State or district-wide assessment
program with an alternative assessment.     Discussion: If the
individual modifications necessary for a child to participate in
the assessment are not known at the time of the IEP meeting, it
would be necessary for a subsequent meeting to be conducted early
enough to ensure that any necessary modifications are in place at
the time the assessment is administered. It is not necessary,
however, to add a regulation to address this matter.
    The IDEA Amendments of 1997 require that all children with
disabilities be included in general State and

[[Page 12594]]

district-wide assessment programs, with appropriate accommodations,
where necessary. (Sec. 300.138). In some cases, alternate
assessments may be necessary, depending on the needs of the child,
and not the category or severity of the child's disability.
    Changes: None.
    Comment: Several comments were received on Sec. 300.347(a)(6)
(related to the projected date for beginning services and
modifications and their anticipated frequency, location, and
duration). A few commenters requested that the term ``anticipated''
be defined so that it does not diminish an LEA's obligation to
provide services. Some commenters requested that the term
``location'' be defined as the placement on the continuum and not
the exact building where the IEP service is to be provided,
especially if the service is not available in the LEA and must be
provided via contract. Other commenters similarly stated that a
note be added clarifying that ``location'' means the general
setting in which the services will be provided and not a particular
school or facility.
    Discussion: Use of the term ``anticipated'' to diminish the
agency's obligation to provide services would be inconsistent with
the requirements of this part. Moreover, a public agency could not
alter the basic nature and scope of the child's IEP without
reconvening the child's IEP team.
    The ``location'' of services in the context of an IEP generally
refers to the type of environment that is the appropriate place for
provision of the service. For example, is the related service to be
provided in the child's regular classroom or in a resource room?  
  Changes: None.
    Comment: With respect to Sec. 300.347(a)(7) (related to a
statement of how a child's progress toward annual goals will be
measured and reported), commenters requested that a definition of
``progress report'' be added; and stated that the provision is
burdensome, and should be changed to require that report cards for
children with disabilities contain information about the child's
progress in meeting annual goals.
    Commenters also requested that the regulations (1) clarify the
manner and frequency in which parents are kept informed of their
child's progress; (2) clarify the extent to which this requirement
can be met in writing as opposed to conducting an IEP meeting; (3)
require a detailed written narrative report of how a child is
progressing toward meeting IEP objectives instead of using a grade,
because a grade is related to the system and not the child, and
gives no indication of what is right or wrong; and (4) include a
provision requiring action to be taken if satisfactory progress in
not being made.
    Discussion: It is not appropriate or necessary to include a
definition of ``progress report'' because that term is not used in
either the statute or these final regulations. The provision in
Sec. 300.347(a)(7)(ii) is incorporated verbatim from the statute.
No additional burden was added by the NPRM or these final
regulations.     Under the statute and regulations, the manner in
which that requirement is implemented is left to the discretion of
each State. Therefore, a State could elect to ensure that report
cards used for children with disabilities contain information about
each child's progress toward meeting the child's IEP goals, as
suggested by commenters, but would not be required to do so.
    With respect to the frequency of reporting, the statute and
regulations are both clear that the parents of a child with a
disability must be regularly informed of their child's progress at
least as often as parents are informed of their nondisabled
children's progress.
    Requiring a ``detailed written narrative'' of how a child is
progressing toward meeting the IEP objectives, as suggested by a
commenter, could add an unnecessary burden. However, the
commenter's concern about using a grade to designate a child's
progress in meeting the IEP objectives in some cases may be valid
because a grade does not always lend itself to sufficiently
describing progress toward the annual goals. The statute and
regulations make clear that a written report is sufficient,
although in some instances, an agency may decide that a meeting
with the parents (which does not have to be an IEP meeting) would
be a more effective means of communication.
    The agency must ensure that whatever method, or combination of
methods, is adopted provides sufficient information to enable
parents to be informed of (1) their child's progress toward the
annual goals, and (2) the extent to which that progress is
sufficient to enable the child to achieve the goals by the end of
the year.
    Generally, reports to parents are not expected to be lengthy or
burdensome. The statement of the annual goals and short term
objectives or benchmarks in the child's current IEP could serve as
the base document for briefly describing the child's progress.
    Changes: None.
    Comment: A number of comments were received on Notes 2 through
5 (which focus on matters related to the child's participation in
the general curriculum, the expected impact on the length and scope
of the IEP from such participation and from discussing teaching
methodologies, and reporting to parents) are addressed in the
following sections of this analysis. Some commenters requested that
all notes be deleted. Other commenters requested that Notes 2, 3,
and 4 be incorporated into the regulations. A few commenters
recommended that for Notes 2 and 3, the regulations define the
terms ``adaptations,'' ``modifications,'' ``accommodations,'' and
``adjustments.''
    Regarding Note 3, some of the commenters recommended deleting
the idea that the general curriculum is not intended to
significantly increase the size of the IEP. One commenter
recommended replacing the word ``accessing'' with ``fully
participating in'' the general curriculum. The commenter stated
that the language in the note (from the House Committee Report)
could be used by LEAs as a basis for limiting the use of the IEP as
a tool for enabling children with disabilities to participate fully
in the general curriculum. Other commenters recommended that Note
3 be deleted.
    Discussion: The IDEA Amendments of 1997 emphasize providing
greater access by children with disabilities to the general
curriculum and to educational reforms, as an effective means of
ensuring better results for these children. Both the Senate and
House Committee Reports on Pub. L. 105-17 state that:

    The Committee wishes to emphasize that, once a child has been
identified as being eligible for special education, the connection
between special education and related services and the child's
opportunity to experience and benefit from the general education
curriculum should be strengthened. The majority of children
identified as eligible for special education and related services
are capable of participating in the general education curriculum to
varying degrees with some adaptations and modifications. This
provision is intended to ensure that children's special education
and related services are in addition to and are affected by the
general education curriculum, not separate from it. (S. Rep. No.
105-17, p. 20; H.R. Rep. No. 105-95, p. 99 (1997))

    These are important principles to keep in mind when
implementing the new IEP requirements. However, in light of the
general decision to remove notes from the final regulation, Note 2
would be removed.     The concepts in the committee reports cited
in Note 3 also are valid. The new focus of the IEP is intended to
address the
accommodations and adjustments necessary to enable children with
disabilities to be able to participate in

[[Page 12595]]

the general curriculum to the maximum extent appropriate. Although
the annual goals and short term objectives (and the service
accommodations described above) would be basic components of the
IEP, it would not be appropriate for the IEP to include specific
details related to the general curriculum itself (and to daily
lesson plans).
    Generally, the overall length of the IEP should not be greatly
affected by including relevant information about the accommodations
and adjustments needed by the child, along with the other required
information. But the IEP should provide sufficient information
necessary to enable parents, regular education teachers, and all
service providers to understand what is required to effectively
implement its provisions. However, consistent with the general
decision made with respect to notes, Notes 2 and 3 would be
deleted.     Because Note 3 has been deleted, it is not necessary
to replace the word ``accessing'' with ``fully participating in''
the general curriculum. Clearly, the intent of the IDEA is full
participation of each child with a disability in the general
curriculum to the maximum extent appropriate to the needs of child;
and the IDEA Amendments of 1997, as reflected in these final
regulations, have given greater emphasis to that intent.
    It is not necessary to include a regulatory definition of the
terms ``adaptations,'' ``modifications,'' ``accommodations,'' and
``adjustments.'' The terms are essentially self-explanatory, and
may overlap to some extent.
    Certain changes may need to be made in a regular education
classroom to make it possible for a child with a disability to
participate more fully and effectively in general curricular
activities that take place in that room. These changes could
involve (for example) providing a special seating arrangement for
a child; using professional or student ``tutors'' to help the
child; raising the level of a child's desk; allowing the child more
time to complete a given assignment; working with the parents to
help the child at home; and providing extra help to the child
before or after the beginning of the school day.    
``Modifications'' or ``accommodations'' could involve providing a
particular assistive technology device for the child, or modifying
the child's desk in some manner that facilitates the child's
ability to write or hold books, etc.
    Changes: Notes 2 and 3 have been removed.
    Comment: Several comments were received on Note 4 (related to
teaching and related services methodologies). A few commenters
expressed support for Note 4, and stated that the note should be
added to the regulations. Other commenters requested that the note
be deleted. Some of these commenters stated that, in some
instances, it may be appropriate to include teaching methods and
approaches in the IEP, and added that when methodologies differ
significantly, one approach may be appropriate while others are
inappropriate, based on the unique needs of each individual child.
Other commenters pointed out that methodologies are an inherent
part of the definition of special education, and it would be
inconsistent with the definition to not include them in the IEP.
    With respect to Note 5 (i.e., that the reporting provision in
Sec. 300.347(a)(7)(ii), related to the child's progress on the
annual goals, is intended to be in addition to regular reporting
for all children), a few commenters expressed appreciation for the
provision. Some commenters stated that the note be deleted. Other
commenters recommended that the note either be deleted, or changed
to state that the provision in Sec. 300.347(a)(7)(ii) may be
incorporated as part of the regular reporting to all parents.
    Discussion: In some cases, it may be appropriate to include
teaching methods and approaches in a child's IEP. As used in the
definition of ``special education'' under Sec. 300.26, the term
``specially-designed instruction'' means ``adapting, as appropriate
to each eligible child under this part, the content, methodology,
or delivery of services * * * (i) to meet the unique needs of an
eligible child under this part that result from the child's
disability * * *''     In general, however, specific day-to-day
adjustments in instructional methods and approaches that are made
by either a regular or special education teacher to assist a
disabled child to achieve his or her annual goals would not
normally require action by the child's IEP team.
    With respect to Note 5 (that the reporting provision in Sec.
300.347(a)(7)(ii) is intended to be in addition to regular
reporting for all children), as addressed earlier in this
attachment, the report described in Sec. 300.347(a)(7)(ii) may be
incorporated in the regular reporting to all parents. Therefore,
Note 5 is not needed.     Changes: Notes 4 and 5 have been deleted.
    Comment: Several comments were received on the transition
services provision in Sec. 300.347(b)(1), including requests that
the regulations: (1) clarify what is meant by transition services
for 14 year-old students; (2) add ``daily living'' and independent
living'' to the example in paragraph (b)(1)(i) because transition
is much broader than employment; and (3) require that transition
plans analyze and report the prospect of a student benefiting from
higher education and if so what kind; and if vocational education
is recommended and not general higher education, the transition
plans specify the reason why general higher education is not a
meaningful alternative.
    A few commenters recommended that language be added to more
clearly distinguish between ``a statement of the transition service
needs'' of a student at age 14, and ``a statement of needed
transition services'' at age 16. The commenters included a proposed
definition that requires the identification of targeted post-school
activities.
    Discussion: The terms ``a statement of the transition service
needs'' and ``a statement of needed transition services'' are
incorporated verbatim from the statute. The purpose of ``a
statement of the transition service needs'' is to focus on the
planning of a student's courses of study during the student's
secondary school experience (e.g., whether the student will
participate in advanced placement or vocational education courses).
    With respect to a statement of needed transition services, the
focus is on the student's need for such services as he or she moves
from school to postschool experiences, and any linkages that may be
needed. These statements, as with the other components of the IEP,
must be individualized in accordance with the needs of the student. 
   The Department has invested considerable resources in providing
technical assistance in the area of transition services, and has a
number of technical assistance resources available to public
agencies in implementing these statutory provisions.
    Changes: None.
    Comment: A number of comments were received related to the
provision in Sec. 300.347(b)(2), that requires that if the IEP team
determines that services are not needed in one or more of the areas
specified in the definition of transition services, the IEP must
include a statement to that effect and the basis upon which the
determination was made. These commenters recommended that the
provision be deleted because it is not statutory, not needed, and
adds unnecessary and excessive paperwork.

[[Page 12596]]

    Discussion: It is appropriate to remove the provision in Sec.
300.347(b)(2) because, as stated by the commenters, the provision
is not statutory and adds unnecessary paperwork.
    That provision was based on the definition of ``transition
services'' that was in effect prior to June 4, 1997, and did not
account for the change in the definition of ``transition services''
that was made by the IDEA Amendments of 1997.
    The ``prior law'' definition mandated the inclusion of specific
components under the coordinated set of activities described in the
definition. In recognition that all students with disabilities may
not require services in all of the mandated areas, the final
regulations implementing that provision (published in 1992)
included a statement that ``If the IEP team determines that
services are not needed in one or more of the areas specified in
[the definition of transition services], the IEP must include a
statement to that effect, and the basis upon which the
determination was made.'' However, while the new definition of
``transition services'' added by Pub L. 105-17 includes the same
components as in prior law, the provision requiring the inclusion
of all components in a student's IEP was removed.     Changes: Sec.
300.347(b)(2) has been deleted.
    Comment: Comments were received related to Notes 1, 6, and 7
following Sec. 300.347 of the NPRM, all of which focus on the
transition services requirements. Some commenters recommended that
all three notes be deleted. Other commenters recommended that Note
7 be modified to encourage public agencies to begin transition
services before age 14. A few commenters stated that Note 7 is not
needed because the regulations are already clear.
    Discussion: Consistent with the Department's decision to not
include notes in the final regulations, the notes should be
deleted.     Changes: Notes 1, 6, and 7 have been deleted.
    Comment: With respect to the transfer of rights at the age of
majority (Sec. 300.347(c)), one commenter stated that the provision
should be deleted. Another commenter stated that there is general
confusion about this provision, especially when parents are unable
financially or unwilling to seek legal guardianship for their
child, and added that schools need guidance. A commenter asked, how
do LEAs determine which students get transfer rights at age 18; and
once transferred, does the LEA still have to notify the parents.  
  Another commenter requested that the regulations allow a student
to authorize the continued participation of the student's parent or
guardian after the age of majority to develop, review, or revise an
IEP, and added that if the student authorizes parent participation,
the parent should be considered a member of the IEP team.
    Discussion: The provision at Sec. 300.347(c) is statutory.
Whether or not rights transfer at the age of majority depends on
State law, and, consistent with Sec. 300.517, whether or not the
student has been determined incompetent under State law. State law
also determines what constitutes the age of majority in that
jurisdiction. The discussion concerning Sec. 300.517 in this
attachment provides a fuller explanation of the provision
concerning the transfer of rights at the age of majority.
Generally, a public agency will satisfy
Sec. 300.347(c) if, at least one year before the student reaches
the age of majority under State law, the agency informs the student
of the rights that transfer at the age of majority (and includes a
statement to that effect in the IEP). If the public agency receives
notice of the student's legal incompetency, so that no rights
transfer to the student at the age of majority, the IEP need not
include this statement.     The composition of the IEP team is
discussed in Sec. 300.344. There is nothing in the regulation that
would prevent a student to whom rights have been transferred at the
age of majority from exercising his or her discretion under Sec.
300.344(a)(6) to include in the IEP team a parent as an individual
with knowledge regarding the child.     Changes: None.

Private School Placements by Public Agencies (Sec. 300.349)

    Comment: Some commenters suggested that Sec. 300.349(a) be
amended to require a public agency to conduct a subsequent IEP
meeting before or shortly after actual enrollment with the
participation of a representative of the private school.
    A few commenters objected to the requirement in Sec.
300.349(a)(2) that the public agency ensure that a representative
of a private school or facility at which a disabled student is
publicly-placed or referred must attend the initial IEP meeting
initiated by the public agency. These commenters recommended that
a private school representative be invited but not be forced to
attend, since distance could prevent that individual from
attending.
    Another recommendation made by commenters was that private
school staff should not be required to attend the IEP meeting
required under Sec. 300.349(a)(2), but that the IEP team should be
allowed to confer with private school staff after the meeting. One
commenter asked whether if the private school initiates an IEP
meeting, all of the individuals identified in Sec. 300.344 must
participate.
    Another commenter was concerned that this section implies that
the team has predetermined placement, and recommended requiring
that a second meeting should be held with private school staff to
determine if they could provide the services.
    One commenter also indicated that Sec. 300.349(b)(2)(ii) is
confusing, because it suggests that if either the parent or public
agency disagrees with the changes proposed by the private school,
those changes will not be implemented. This commenter also
questioned why either party should have veto authority, and
requested clarification regarding the responsibility to request a
hearing. However, another commenter objected that this section
gives a private school veto authority over a decision of the IEP
team.
    One commenter also objected to the use of ``must ensure'' in
Sec. 300.349(a) and (b), and recommended that more qualified
language be substituted. Another commenter requested clarification
that parents have the right to be reimbursed for costs incurred as
a result of their participation at IEP meetings associated with
their children's public placements at private schools or
facilities.
    Discussion: Section 612(a)(10)(B) of the Act makes clear that,
as a condition of eligibility for receipt of Part B funds, States
must ensure that children with disabilities placed in or referred
to private schools or facilities by public agencies receive special
education and related services, in accordance with an IEP, at no
cost to their parents. This statutory requirement substantially
reflects prior law in this area. Section 300.401 also provides that
IEPs for children with disabilities who are publicly placed at or
referred to private schools must meet the requirements of Secs.
300.340-300.350.
    Because these disabled children are publicly-placed or referred
to private schools or facilities as a means of ensuring that they
are provided FAPE, it would not be appropriate to change the
regulatory language in the manner suggested by these commenters.
The regulation gives public agencies and private schools and
facilities some flexibility in the manner in which IEP

[[Page 12597]]

meetings are conducted; however, there is no need to require
additional meetings, since these meetings can be initiated by the
public agency or requested by the private school or facility at any
time.
    Regarding concerns about participation of representatives of
private schools at meetings to develop the child's IEP,
Sec. 300.349(a)(2) provides that before a child with a disability
is placed or referred to a private school or facility, a
representative of that private school must be invited to the
meeting to develop the student's IEP. However, if the private
school representative is unable to attend in person, the public
agency must use other methods to ensure that individual's
participation at the meeting, including individual or conference
telephone calls. Therefore, this regulation does not require
participation of a private school representative if that individual
is unable to attend the IEP meeting initiated by the public agency. 
   If a public agency initiates an IEP meeting in connection with
a disabled child's placement at or referral to a private school or
facility, the requirements of Sec. 300.344 regarding participants
at meetings apply. However, after the disabled child enters the
private school or facility, Sec. 300.349(b)(1) provides that the
private school or facility, at the public agency's discretion, may
initiate and conduct meetings for purposes of reviewing or revising
the child's IEP. Section 300.344 applies to all IEP meetings for
which a public agency is responsible, including those conducted by
a private school or facility for a publicly-placed child with a
disability.
    If a public agency exercises its discretion under
Sec. 300.349(b)(1) to permit the private school or facility to
initiate and conduct certain IEP meetings, Sec. 300.349(b)(2)
specifies that the public agency is still responsible for ensuring
that the parents and a public agency representative are involved in
those IEP decisions and agree to any changes in the child's program
before they are implemented.
    Section 300.349(b) does not afford veto authority either to the
parents and the public agency, or to the private school, if there
is a disagreement about the IEP for the child to be implemented at
the private school. This is equally true for IEPs developed for
public placements of children with disabilities at private schools. 
   Further, Sec. 300.349(c) makes clear that the public agency is
ultimately responsible for ensuring that the publicly-placed
disabled student receives FAPE. Therefore, regardless of whether
the public agency initiates meetings for the purpose of reviewing
and revising IEPs of children with disabilities publicly-placed at
private schools or facilities, the public agency must ensure that
the child's IEP is reviewed at least once every twelve months, and
that the child's placement at the private school or facility is in
accordance with that child's IEP.
    If the public agency disagrees with changes proposed by the
private school, the public agency nevertheless remains responsible
for ensuring that the student receives an appropriate program. If
the private school or facility is unwilling to provide such a
program, the public agency either must ensure that the student's
IEP can be implemented at that or another private school or
facility, or must develop an appropriate public placement for the
child to address that child's needs. In all instances, the child's
placement at the private school or facility must be based on the
child's IEP, and that placement must be the LRE placement for the
child.
    The commenter's assumption that normal due process rights would
apply is correct. The due process rights of Part B are available to
parents and public educational agencies to resolve issues such as
the appropriateness of the child's program at the private school,
but representatives of private schools or facilities at which
children with disabilities are publicly placed or referred do not
have due process rights.
    Regarding a parent's right to reimbursement for costs
associated with their child's private school placement, Sec.
300.401 reflects the statutory requirements of section
612(a)(10)(B) and requires that a disabled student's placement at
a private school by a public agency must be at no cost to the
child's parents, and public agencies must ensure that all of the
rights guaranteed by Part B are afforded to publicly-placed
children with disabilities and their parents. The ``at no cost''
requirements of the Act also would require public agencies to
reimburse parents for transportation and other costs associated
with their participation at IEP meetings conducted in a geographic
area outside of the jurisdiction of the LEA, and such expenditures
traditionally have been considered the responsibility of the public
agency. See discussion under Sec. 300.24 of this attachment.    
Changes: None.

Children With Disabilities in Religiously-Affiliated or Other
Private Schools

    Comment: One commenter suggested that this section be amended
to require IEPs for all children with disabilities in the LEA's
jurisdiction who are placed by their parents at private schools,
regardless of whether these children receive services from the
public agency. Another commenter requested that the requirement for
IEPs for children with disabilities who are publicly-placed at
private schools be removed, and that requirements regarding service
plans for children with disabilities placed by their parents at
private schools be substituted and moved to Subpart D.
    Discussion: There is no statutory authority to require public
agencies to develop IEPs for every child with a disability in their
jurisdiction placed by their parents at a private school,
regardless of whether that child receives services from the LEA.
Section
612(a)(10)(A) of the Act requires States to make provision for the
participation of private school children with disabilities in
programs assisted or carried out under this part, through the
provision of special education and related services, to the extent
consistent with their number and location in the State.
    Because private school children with disabilities do not have
an individual entitlement to services under Part B, it would be
inconsistent with the statute to require public agencies to develop
service plans for those private school children with disabilities
who do not receive services from the public agency. However, the
commenter's suggestion that proposed Sec. 300.350 should be deleted
and that a requirement for service plans for children with
disabilities parentally-placed at private schools should be
substituted and moved to Subpart D is reasonable.
    Since private school children with disabilities are not
entitled to receive FAPE in connection with their private school
placements (See Sec. 300.403(a)), it is misleading to use the term
IEP to refer to the plans that are developed to serve them. IEPs
must contain, among other elements, the full range of special
education and related services provided to children with
disabilities under these regulations.     By contrast, Sec.
300.455(b) makes clear that a private school child with a
disability receives only those services that an LEA determines it
will provide that child, in light of the services that the LEA has
determined, through the requirements of Secs. 300.453-300.454, it
will make available to private school children with disabilities.
    Therefore, proposed Sec. 300.350 should be deleted and its
content incorporated in Sec. 300.454 with appropriate revisions,
and Sec. 300.455(b) should be revised to reflect a new requirement
for service

[[Page 12598]]

plans for those private school children with disabilities in the
LEA's jurisdiction that the LEA has elected to serve in light of
the services it makes available to its private school children with
disabilities in accordance with the requirements of Secs.
300.453-300.454.
    Changes: Proposed Sec. 300.350 has been deleted, and a new Sec.
300.454(c) has been added to specify LEA responsibilities regarding
development of service plans for private school children. Section
300.455(b) has been changed to reflect the new provision regarding
service plans for private school children with disabilities.

IEP--Accountability (Sec. 300.350)

    Comment: Some commenters agreed with this regulation, while
other commenters recommended that the note either be revised or
deleted. Some commenters believe that both the section and note are
inconsistent with Congressional findings on low achievement and new
performance standards.
    Commenters also recommended that the regulation be strengthened
to clarify (1) the district's obligation to monitor, review and
revise the IEP if it is not having the desired impact on the
student's progress; (2) the parent's responsibility to request an
IEP meeting when progress reports indicate that the child's IEP is
not effective; (3) the extent of the teacher's responsibility
compared with that of the parent and child; and (4) that public
agencies and personnel will not be held accountable if a child does
not achieve the growth projected in annual goals and benchmarks or
objectives if they were implementing an IEP that provided the child
appropriate instruction, services and modifications.
    Other commenters were concerned about the potential negative
effect of this section on the effective implementation of
transition services.     Discussion: Section 300.351 has been
included in the IEP provisions of the Part B regulations since
those regulations first were issued in 1977. It continues to be
necessary to make clear that the IEP is not a performance contract
and does not constitute a guarantee by the public agency and the
teacher that a child will progress at a specified rate. Despite
this, public agencies and teachers have continuing obligations to
make good faith efforts to assist the child in achieving the goals
and objectives or benchmarks listed in the IEP, including those
related to transition services.
    In addition, it should be noted that teachers and other
personnel who must carry out portions of a child's IEP must be
informed about the content of the IEP and their responsibility
regarding its
implementation. Because the clarification of this issue that was
previously included in the note to this section is essential to the
proper implementation of the Act's IEP requirements, a statement
regarding the responsibilities of public agencies and teachers to
make good faith efforts to ensure that a child achieves the growth
projected in his or her IEP has been included at the conclusion of
this section.     In order to meet the new emphasis in the Act that
children with disabilities be involved in and progress in the
general curriculum and be held to high achievement standards, the
IEP provisions must be effectively utilized to ensure that
appropriate adjustments can be made to address performance issues
as early as possible in the process.     This section does not
limit a parent's right to complain and ask for revisions of the
child's IEP or to invoke due process procedures if the parent feels
that these efforts are not being made. Further, this section does
not prohibit a state or public agency from establishing its own
accountability systems regarding teacher, school or agency
performance if children do not achieve the growth projected in
their IEPs.
    Changes: The note to this section has been removed. Section
300.351 is redesignated as Sec. 300.350 of these final regulations,
and the substance of the note has been added to this section.

Use of LEA Allocation for Direct Services (Sec. 300.360)

    Comment: Very few comments were received regarding this
section. One comment recommended that the words ``or unwilling'' be
added to Sec. 300.360(a)(2) to correspond to the language of Sec.
300.360(a)(3) of the current regulations. Another comment asked
that the language in the second paragraph in the note following
Sec. 300.360 be updated to substitute the word ``disabled'' for the
word ``handicapped.'' This comment also requested that a similar
change be made to the note following Sec. 300.552.
    Discussion: Section 300.360(a) essentially incorporates the
text of the current regulatory provision verbatim, except with the
minor modifications contained in section 613(h)(1) of Pub. L.
105-17. The legislative history makes clear that Sec. 613(h)(1) has
been ``retained without substantive alteration'' from prior law.
(S. Rep. No. 105-17 at 15). It is true that under Sec.
300.360(a)(3) of the regulations, an SEA may use funds that would
have gone to an LEA for direct services if the SEA finds that the
LEA either is unable or unwilling to establish and maintain
programs of FAPE for children with disabilities. This regulatory
provision implemented section 614(d)(1) of prior law which
contained the reference to LEAs that were unwilling to establish
and maintain programs of FAPE. However, since these words have not
been retained in section 613(h)(1) with regard to an LEA's or State
agency's failure to establish and maintain programs of FAPE, yet
remain in the statute with regard to an LEA's failure to
consolidate with other LEA's in applying for Part B funds, it is
not appropriate to make the change requested by this comment.
    Consistent with the general decision to not include notes in
these final regulations, the note following Sec. 300.360 should be
deleted. However, the substance of the note related to the SEA's
responsibility to ensure the provision of FAPE if an LEA elects not
to apply for its Part B funds, or the amount of Part B funds is not
sufficient to provide FAPE should be added to the text of the
regulations because of its importance in ensuring that the purposes
of this part are appropriately implemented.
    A new paragraph also should be added to clarify, by referencing
Sec. 300.301, that the SEA may use whatever funding sources are
available in the State to carry out its responsibilities under Sec.
300.360.
    Regarding the note following Sec. 300.360, it is important to
point out that the language that uses ``handicapped'' instead of
disabled was taken verbatim from the original regulations for this
program issued in 1977. Included in this note were direct
quotations from the Department's regulation implementing Section
504 of the Rehabilitation Act of 1973 at 34 CFR Part 104, which has
not yet been updated to substitute the term ``disabled'' or
``disability'' for the term ``handicapped'' or ``handicap.'' While
the term ``handicapped'' is not consistent with current statutory
language, it is not appropriate to modify the quoted language in
the notes until the terminology in the Section 504 regulation is
updated.
    Changes: The substance of the note relating to SEA's
responsibilities to ensure FAPE when the LEA elects not to receive
its Part B funds, or there are not sufficient funds to ensure the
provision of FAPE has been added to the text of the regulation. The
note has been deleted. A reference is made to other funding sources
under Sec. 300.301.

[[Page 12599]]

Use of SEA Allocations (Sec. 300.370)

    Comment: Several favorable comments were received regarding
this section. One comment supported paragraph (a)(4), which permits
the use of State agency allocations to assist LEAs with personnel
shortages. One comment requested that a new paragraph (c) be added
to reflect the statutory requirement ``that LEAs participate in the
priority setting for the allocation of these funds.'' One comment
requested that a note be added following this section to clarify
that direct services ``can include using the State allocation of
Part B funds to help LEAs cover unexpected and extraordinary costs
of providing FAPE to a child with a disability in any setting along
the continuum.''
    Discussion: There is no statutory requirement that would
require a State to obtain input from LEAs in setting priorities for
how the State agency allocation should be spent. So long as the
expenditures are consistent with the requirements of this part,
States have discretion to determine the manner in which the funds
are allocated.
    Regarding the suggestion that a note be added following Sec.
300.370, consistent with the decision to not include notes in these
regulations, a note will not be added. However, the State agency
allocation may be used for direct and support services, including
the expenditure described in this comment. Nothing in this part
would preclude an SEA from using its State allocation to assist an
LEA in defraying the expenses of a costly placement for a student
with a disability if it is determined that such a placement is
necessary to ensure the provision of FAPE to that disabled student.
    Changes: No change has been made in response to these comments.
See discussion of comments received under Sec. 300.712 regarding a
change to Sec. 300.370.

General CSPD Requirements (Sec. 300.380)

    Comment: A number of comments were received regarding the
recruitment and training of hearing officers included as part of
CSPD. One comment recommended that Sec. 300.380(a)(2) regarding an
adequate supply of qualified special education, regular education,
and related services personnel be expanded to include hearing
officers and mediators.
    Some commenters recommended that Sec. 300.381 include a
provision requiring each state ``to establish a council of parents,
educators, attorneys, hearing officers, and mediators to develop
and oversee the recruitment, training, evaluation, and continuing
education of hearing officers and mediators'' and to ensure that
they receive pre-service training and at least annual in-service
training on special education law and promising practices,
materials and technology.
    A number of commenters indicated that, in order for personnel
to be ``qualified'' under this part or a State's CSPD, ``the
personnel must meet the State's legal licensing or certification
requirements'' and ``must have the skills and knowledge necessary
to ensure that personnel are qualified to work with children with
disabilities.'' Another comment sought clarification regarding use
of Part B funds for the training of regular education personnel.
    Consistent with the emphasis on implementation, one comment
recommended that Sec. 300.380(a)(4) be amended to require that a
State's CSPD be updated at least every two years, instead of at
least every five years, as stated in the NPRM, ``and as often as
the quality of education for children with disabilities within the
State may require.'' The comment also objected that the regulation
provides that States that have a State Improvement Plan under
section 653 of the Act have met their CSPD requirements. Therefore,
the comment recommended that Sec. 300.380(b) be deleted, and
instead be replaced with the last paragraph of the note following
Sec. 300.135, which gives a State that has a State Improvement Plan
the option of using it to meet its CSPD, if it chooses to do so.
    Discussion: States must ensure that mediators and hearing
officers are appropriately trained and have the requisite knowledge
and expertise regarding the requirements of this part. Otherwise,
the due process rights of children with disabilities and their
parents may not be adequately safeguarded under this part.
    With respect to mediators, section 615(e)(2)(A)(iii) requires
that SEA or LEA procedures for mediation ensure that the mediation
is conducted by a qualified and impartial mediator who is trained
in effective mediation techniques. Section 615(e)(2)(C) requires
the State to 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 to children
with disabilities.     Under current regulations, public agencies
must maintain a list of impartial hearing officers and their
qualifications. Further, the SEA's responsibility under section 615
of the Act to ensure that the procedural safeguard requirements of
the Act are established and implemented includes the responsibility
to ensure that impartial due process hearing officers are
appropriately trained. In addition, Sec. 300.370 makes clear that
one of the support services for which the Part B funds reserved for
State level activities may be expended is the training of hearing
officers and mediators.
    The comments regarding ensuring that personnel meet State
licensing or certification requirements or are otherwise qualified
under this part are addressed elsewhere in this attachment in the
discussions of qualified personnel and personnel standards. With
regard to the training of regular education personnel, consistent
with a State's CSPD responsibilities, the State must ensure an
adequate supply of special education, regular education, and
related services personnel. Further, the training of regular
education personnel is necessary to the proper administration of
the Act and regulations, including carrying out the Act's LRE
provisions, and personnel development is an appropriate expenditure
of funds under this part and is one of the support services for
which the State level allocation under Sec. 300.370 may be
expended.
    Finally, there is nothing in this part that would prevent a
State from updating its CSPD more frequently than at least every
five years if the State chooses to do so. Therefore, there is no
reason to incorporate the language from the second paragraph of the
note following Sec. 300.135 in place of Sec. 300.380(b), since
Sec. 300.380(b) gives a State that has a State Improvement plan
under section 653 the option of using it to satisfy its CSPD
obligations, if the State chooses to do so.
    Changes: The section has been retitled ``General CSPD
requirements.''

Adequate Supply of Qualified Personnel (Sec. 300.381)

    Comment: Only a few comments were received regarding this
section. Some commenters requested that a provision be added to
Sec. 300.381(b) ``requiring the State to describe the strategies it
will use to address personnel vacancies and shortages'' identified
under that section. Another comment recommended that this section
highlight shortages of personnel to do behavioral assessments and
programming. Another comment recommended that additional language
be included in Sec. 300.381 requiring additional recruitment
strategies and fiscal arrangements to ensure an adequate supply of
qualified personnel.
    Discussion: It is acknowledged that it is very important to
ensure that appropriately-trained and

[[Page 12600]]

knowledgeable individuals conduct behavioral assessments of
children with disabilities under this part. However, the obligation
under Sec. 300.381 is a general obligation to analyze State and
local needs for professional development, including areas in which
there are shortages, to ensure an adequate supply of qualified
special education, regular education, and related services
personnel under this part. Therefore, the regulation does not
identify specific categories of personnel. In addition, States
already have the ability to develop additional recruitment
strategies and fiscal arrangements if they determine that they are
needed to address their particular personnel needs.

Changes: None.

Improvement Strategies (Sec. 300.382)

    Comment: One comment recommended that the name of this section
be changed to ``Comprehensive system strategies'' to avoid
confusion with Part D. Another comment recommended that the words
``content knowledge and collaborative skills'' to meet the needs of
infants and toddlers and children with disabilities be expanded to
specify which skills are involved, and suggested that skills such
as instruction, behavioral management, communication, and
collaboration be included.
    One comment expressed concern that the section in the NPRM was
not sufficiently strong to ensure that States design their CSPD to
ensure that core instructional and related needs of children with
disabilities are appropriately addressed. One comment requested
clarification regarding which entity in the State is responsible
for ensuring that the requirements of Sec. 300.382 are met. One
comment suggested that the reference to behavioral interventions in
Sec. 300.382(f) should be changed to positive behavioral supports
to be more consistent with other provisions of these regulations.
    Several comments were receive regarding Sec. 300.382(g),
particularly regarding the use of the phrase, ``if appropriate.''
One comment requested clarification on how ``appropriate'' would be
defined, as well as guiding principles ``for directing the adoption
of promising practices.'' Another comment recommended that the
phrase, ``if appropriate'' be eliminated when referring to the
State's adoption of promising practices and materials and
technology.
    One comment was particularly favorable about the requirement
for joint training of parents, special education and related
services providers, and general education personnel. Another
comment recommended that this section be expanded to include joint
training of hearing officers and mediators with parents and
education personnel.     One comment recommended that this section
be amended ``to require reports to the Department by the SEA bi-
annually, including a survey of parents of students with IEPs
regarding the effectiveness of the strategies and other tools being
taught to teachers,'' and that parents ``should also be given the
chance to state what tools they think ought to be taught'' to
teachers. One comment recommended that a note be added following
this section to clarify that the assurance that regular education
and special education personnel be prepared means that ``they must
be required to be prepared rather than simply `offered the
opportunity.' ''
    Discussion: There is no need to change the name of this section
since it is unlikely that, even if it were changed, it would reduce
the potential for confusion between CSPD responsibilities under
Part B and those under Part D. While the delineation of content and
skills for personnel serving infants and toddlers and children with
disabilities is important, inherent in CSPD is the obligation of
each State to identify its particular personnel development needs
in light of factors that are specific to each individual State. The
same is true with respect to strategies and needs. The CSPD is one
of several mechanisms that States have to ensure that children with
disabilities receive appropriate instruction and services
consistent with the purposes of this part; therefore, the
regulations do not specify which needs must be addressed through
CSPD.
    References throughout this part to State mean the SEA, unless
the State has designated an entity other than the SEA to carry out
the functions of this part. Regarding Sec. 300.380(f), that section
is directed at the State's enhancement of the ability of teachers
and others to use strategies, including behavioral interventions.
The regulatory language about behavioral interventions parallels
the language in section 614(d)(3)(B)(i) of the Act.
    It also should be pointed out that the term behavioral
interventions is a broad term that includes positive behavioral
supports. Regarding the use of ``appropriate'' in Sec. 300.382(g),
a State's obligation to adopt promising educational practices,
materials, and technology is dependent on the State's needs. Hence,
the use of the words ``if appropriate'' in this regulation ensures
States have flexibility in this area.
    The discussion of the role of hearing officers and mediators in
response to comments on Sec. 300.380 also applies to the suggestion
on joint training of parents and special education and related
services and general education personnel required by Sec.
300.382(j) of these regulations. It is important to point out that
there is nothing in this part that would preclude a State from
including hearing officers and mediators in the joint training
activities if it chooses to do so.     The comment's suggestion for
additional reporting requirements has not been accepted. While
input from parents regarding the effectiveness of personnel
development strategies would be useful, the Department is committed
to reducing paperwork burdens rather than increasing them.    
Finally, with regard to training of general education personnel,
Sec. 300.382(j) already requires the participation of these
individuals in joint training activities.
    Changes: None.

Subpart D

Responsibility of SEA (Sec. 300.401)

    Comment: Several commenters asked that Sec. 300.401(a)(3)
specify whether the standards that apply to private schools are
limited to those necessary for the comparable provision of special
education and related services to those provided in public agencies
(for example, do private schools have to comply with SEA personnel
standards beyond the qualifications needed to provide special
education and related services).
    Discussion: Children with disabilities who are placed by public
agencies in private schools are entitled to receive FAPE to the
same extent as they would if they were placed in a public school.
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 and must be provided in conformity with the
child's IEP.     The IDEA Amendments of 1997 made a number of
changes to reinforce the importance of the participation of
children with disabilities in the regular education curricula and
the need for children with disabilities to have the opportunity to
receive the same substantive content as nondisabled students. These
include provisions that tie IEP goals and objectives to the regular
education curriculum (section

[[Page 12601]]

614(d)(1)(A)), establish performance goals and indicators for
children with disabilities consistent with those that a State
establishes for nondisabled children (section 612(a)(16)), and
require the
participation of children with disabilities in the same general
State and district-wide assessments as nondisabled students
(section 612(a)(17)).
    Because of these changes in the statute and the confusion that
has existed over whether all aspects of the education provided by
private schools to publicly-placed children with disabilities had
to meet the standards that apply to public agencies, a change
should be made in the regulations to ensure that children who are
publicly-placed in private schools receive services consistent with
the SEAs' statutory obligation to ensure that FAPE is provided.
SEAs must ensure that public agencies that place children with
disabilities in private schools as a means of providing FAPE make
sure that the education provided to those publicly-placed children
with disabilities meets all standards that apply to educational
services provided by the SEA and LEA that are necessary to provide
FAPE.
    With respect to personnel standards, for example, this would
mean that all personnel who provide educational services (including
special education and related services and non-special education
services) meet the personnel standards that apply to SEA and LEA
personnel providing similar services. The responsibility for
determining what constitutes the appropriate personnel standard for
any given profession or discipline is a State and local matter and
State and local officials have great flexibility in exercising this
responsibility. With regard to special education and related
services personnel, however, the regulations provide some
parameters for how personnel standards are developed. (See, Secs.
300.21, 300.135, and 300.136).
    Changes: A change has been made to specify that a child with a
disability placed by a public agency as the means of providing FAPE
to the child must receive an education that meets the standards
that apply to the SEA and LEA.

Implementation by SEA (Sec. 300.402)

    Comment: Another issue raised by comment was whether the term
``public agency'' in Sec. 300.402(b) referred to just public
schools or included other agencies. Some commenters requested that
the term ``applicable standards'' in that paragraph be clarified to
include application, compliance, on-site visits, monitoring,
curriculum and evaluation standards. Several commenters requested
various expansions of Sec. 300.402(c) such as adding a 120-day
consultation period prior to adoption of standards that apply to
private schools, and requiring consultation in all phases of the
development and design of SEA standards and compliance and
monitoring procedures that apply to these private schools.
    At least one commenter requested a new provision be added
establishing a mechanism for appeals to the Secretary on standards
that an SEA wants to apply to private schools.
    Discussion: The term ``public agency'' as used in these
regulations is defined in Sec. 300.22. The term ``applicable
standards'' is sufficient to encompass the variety of standards
that SEAs may have that apply to private schools accepting public
agency referrals of children with disabilities for the provision of
FAPE. Further regulation about how States provide opportunities for
private schools and facilities to participate in the development
and design of State standards that apply to them is inappropriate.
States should have flexibility in developing standards that meet
the requirements of the IDEA.
    The standards that SEAs apply to private schools accepting
public agency referrals of children with disabilities for the
provision of FAPE are, so long as they meet the requirements of
Part B and its regulations, a State matter, so no appeal to the
Secretary is appropriate.
    Changes: None.

Placement of Children by Parent if FAPE is at Issue (Sec. 300.403)

    Comment: Some commenters stated that some school districts may
be using this provision as the basis for denying special education
services to children with disabilities voluntarily enrolled in a
private school and requested that the regulations make clear that
these children are covered by the provisions of the regulations
regarding participation of private school children in the Part B
program.     Discussion: The statute in section 612(a)(10)(C)(i) is
clear that an LEA must provide for the participation of parentally-
placed private school children with disabilities in the Part B
program with expenditures proportionate to their number and
location in the State, even though the LEA is not otherwise
required to pay the costs of education, including special education
and related services, for any individual child with a disability
who is voluntarily placed in a private school under the terms of
Sec. 300.403.
    Changes: A change has been made to Sec. 300.403(a) to clarify
that the provisions of Secs. 300.450-300.462 apply to children with
disabilities placed voluntarily by their parents in private
schools, even though the LEA made FAPE available to those children.
    Comment: One commenter requested that the regulations clearly
state whether a public agency must evaluate and develop an IEP for
each private school child with a disability each year in order to
avoid potential reimbursement claims.
    Discussion: The new statutory provisions, incorporated in the
regulations in Sec. 300.403 (c), (d), and (e), provide that, as a
general matter for children with disabilities who previously
received special education and related services under the authority
of a public agency, the claim for reimbursement of a private
placement must be made before a child is removed from a public
agency placement. It would not be necessary for a public agency to
develop an IEP that assumes a public agency placement for each
private school child each year. LEAs do have ongoing, independent
responsibilities under the child find provisions of Secs. 300.125
and 300.451 to locate, identify and evaluate all children with
disabilities in their jurisdiction, including children whose
parents place them in private schools. This would include
scheduling and holding a meeting to discuss with parents who have
consented to an evaluation, the results of the evaluation, the
child's needs, and whether the child is eligible under Part B. (See
Secs. 300.320, and 300.530-300.535.)
    In addition, the LEA must offer to make FAPE available if the
child is enrolled in public school. A new evaluation need not be
performed for each private school child each year, but evaluations
for each private school child must meet the same evaluation
requirements as for children in public agency placements, including
the requirement for reevaluation in Sec. 300.536. In addition,
since LEAs must make FAPE available to all children with
disabilities in their jurisdiction (Secs. 300.121, 300.300), public
agencies must be prepared to develop an IEP and to provide FAPE to
a private school child if the child's parents re-enroll the child
in public school.
    Changes: None.
    Comment: Several commenters requested that paragraph (c) be
revised to prohibit reimbursement if the private placement is
inappropriate, which was a part of the Supreme Court's standard on
reimbursement announced in School Comm. of Burlington v. Department
of

[[Page 12602]]

Ed. of Mass., 471 U.S. 359 (1985) (Burlington). Another commenter
requested that the term ``timely manner'' be defined.
    Another commenter requested that the Department clarify that
the provisions of Sec. 300.403 (c), (d), and (e) apply only in
situations in which the child previously has received special
education and related services under the authority of a public
agency. In other situations, where the child has not yet been
provided special education and related services, the Department
should recognize that hearing officers and courts still retain
broad equitable powers to award relief, and will continue to apply
the reimbursement standard in Burlington.
    Discussion: It is not in the public interest to require that
public funds be spent to support inappropriate private placements.
For these reasons, paragraph (c) should be revised consistent with
the basic standard for reimbursement articulated by the Supreme
Court in the Burlington and Carter cases. Since, as the Supreme
Court made clear in Carter, in instances where the school district
has not offered FAPE, the standard for what constitutes an
appropriate placement by parents is not the same as the standards
States impose for public agency placements under the Act, this new
provision makes clear that parental placements do not need to meet
State standards in order to be ``appropriate'' under this
requirement.
    As a commenter noted, hearing officers and courts retain their
authority, recognized in Burlington and Florence County School
District Four v. Carter, 510 U.S. 7 (1993) (Carter) to award
``appropriate'' relief if a public agency has failed to provide
FAPE, including reimbursement and compensatory services, under
section
615(l)(2)(B)(iii) in instances in which the child has not yet
received special education and related services. This authority is
independent of their authority under section 612(a)(10)(C)(ii) to
award reimbursement for private placements of children who
previously were receiving special education and related services
from a public agency.     The term ``timely manner'' should not be
defined, since what constitutes timely provision of FAPE is best
evaluated within the specific facts of individual cases. (See,
e.g., Secs. 300.342(b) and 300.343(b)).
    Changes: Paragraph (c) has been revised to include the
requirement that the private placement by the parents must be
appropriate (as determined by a court or hearing officer) in order
to be eligible for reimbursement, and to make clear that a parental
placement does not need to meet the State standards that apply to
education provided by the SEA and LEAs in order to be found to be
appropriate.
    Comment: A number of commenters suggested definitions of
various terms used in Sec. 300.403(d) and (e) and other changes to
the provisions of these paragraphs, some of which would have made
recovering reimbursement more difficult for parents and others
which would have limited school districts' use of these provisions
in defense of a reimbursement claim.
    Discussion: With the exception of making clear that the
regulation also applies when parents choose to enroll their child
in a private preschool program, no change is necessary. The
regulation in Sec. 300.403(d) and (e) reflects the statutory
language, which balances the interests of parents and public
agencies. (See the explanation of the definition of ``business
day,'' under the discussion of comments to Sec. 300.8, a term which
is used in several places in these regulations.)
    Changes: Paragraph (c) has been revised to specify that the
reimbursement provisions of Sec. 300.403 also apply if 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 program.

Definition of ``Private School Children With Disabilities'' (Sec.
300.450)

    Comment: Several commenters asked that the Department clarify
whether children with disabilities who are home-schooled are
included in the definition of ``private school children with
disabilities''.     Discussion: State law determines whether home
schools are ``private schools.'' If the State recognizes home
schools as private schools, children with disabilities in those
home schools must be treated in the same way as other private
school children with disabilities. If the State does not recognize
home schools as private schools, children with disabilities who are
home-schooled are still covered by the child find obligations of
SEAs and LEAs, and these agencies must insure that home-schooled
children with disabilities are located, identified and evaluated,
and that FAPE is available if their parents choose to enroll them
in public schools.
    Changes: None.

Child Find for Private School Children With Disabilities (Sec.
300.451)

    Comment: Some commenters stated that there have been major
difficulties in many areas of the country in ensuring that private
school children with disabilities are identified and evaluated.
Some commenters also noted the new statutory provision limiting the
amount of funds that must be spent on parentally-placed private
school children with disabilities based on the number of identified
parentally-placed private school children with disabilities creates
an additional need for timely and effective child find for this
population. These commenters requested that the regulation be
revised to require that consultation with appropriate
representatives of private school children occur before the public
agency conducts child find activities and to provide that child
find activities for parentally-placed private school children be
done on the same or comparable timetable as for public school
children. Another commenter requested that child find activities
include children placed by their parents in private residential
facilities.
    Discussion: The role of child find for parentally-placed
private school children is very important for services for this
population. Section 612(a)(10)(A)(i) and the regulations in Sec.
300.452 tie the amount of money that will be used for parentally-
placed private school children with disabilities to the number of
parentally-placed private school children with disabilities in each
LEA. Clearly, the adequacy of the LEA's child find activities for
parentally-placed private school children with disabilities will be
crucial to determining how many children with disabilities are
parentally-placed in private schools, and consequently, the amount
of funds that must be spent by an LEA on special education and
related services to parentally-placed private school children with
disabilities. For these reasons, LEAs should consult with
representatives of private school children with disabilities on how
to conduct child find activities for parentally-placed private
school children with disabilities in a manner that is comparable,
which would include timing, to child find for public school
children with disabilities.
    LEAs are required to conduct child find activities for children
residing in their jurisdiction. Generally, as a matter of State
law, children are considered to reside in the home of their parents
even if they physically do not live there. Whether children who are
in private residential facilities are residing in the jurisdiction
of an LEA when that facility is within the boundaries of the LEA
will be dependent on State law.
    Changes: The term ``religiously-affiliated'' has been replaced
with

[[Page 12603]]

``religious,'' to more accurately reflect the types of schools. The
term ``public agency'' has been replaced with ``LEA,'' a technical
change. Paragraph (a) has been revised (see description of comments
received under Sec. 300.453 regarding that revision). A new
paragraph (b) has been added requiring public agencies to consult
with representatives of parentally-placed private school students
with disabilities on how to conduct child find activities for that
population in a manner that is comparable to that for public school
children.

Provision of Services--Basic Requirement (Sec. 300.452)

    Comment: None.
    Discussion: None.
    Changes: Consistent with the comments, discussion, and changes
under Sec. 300.341, a new paragraph (b) has been added to Sec.
300.452 regarding the SEA's responsibility for ensuring that a
services plan is developed and implemented for each private school
child with a disability who has been designated to receive special
education and related services under this part.

Expenditures (Sec. 300.453)

    Comment: One commenter asked for clarification that there is no
obligation to spend more than the total per capita Federal
allocation to the LEA, and use of State or local funds are not
required, for private school children. Another commenter requested
that the note following this section be integrated into the
regulation, as it provided valuable guidance to States. Several
commenters were concerned that LEAs were suggesting that no
services needed to be provided to private school students as a
proportional share of the Federal funds was being used to conduct
evaluations of these children. Another commenter asked whether a
longstanding State program that allocates funding to be used for
private school children for certain special education and related
services and evaluations can be used to satisfy the requirements of
this section.
    Several commenters noted the importance of determinations of
the number of parentally-placed private school children with
disabilities in calculating required expenditures and asked for
specificity in how this number is determined. Another commenter
requested that the Department require that each LEA separately
account for funds used for private school children with
disabilities and clarify that these funds are only to provide
special education and related services and cannot be used to carry
out activities such as child find.
    Discussion: It is important to clarify that there is a
distinction under the statute 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 proportional
amount of the Federal grant to provide special education and
related services to parentally-placed private school children with
disabilities. The obligation to conduct child find, including
individual evaluations, exists independently from the services
provision described in Secs. 300.452-300.456, and the costs of
child find activities, such as evaluations, may not be considered
in determining whether the LEA has spent the amount described in
Sec. 300.453 on providing special education and related services to
parentally-placed private school children with
disabilities.
    The statute describes the minimum amount that must be spent on
these services and does not specify that only Federal funds can be
used to satisfy this obligation. Thus, if a State or LEA uses other
funds to provide special education and related services to private
school children, those funds can be considered in satisfying the
provisions of Sec. 300.453, so long as the services are provided in
accordance with the other provisions of Secs. 300.452-300.462.
    The statute does not prohibit a State or LEA from spending
additional State or local funds to provide special education and
related services to private school children. To make this important
point, in light of the general decision to remove all notes from
these regulations, the note that followed this section in the NPRM
should be incorporated into this section as paragraph (d).
    Determining the number of parentally-placed private school
children with disabilities is particularly important. Child find,
which includes locating, identifying and evaluating children, is an
ongoing activity that SEAs and LEAs should be engaged in throughout
the year for all children in order to meet the statutory
obligations to ensure that all children in the State are located,
identified and evaluated and that all children have the right to
FAPE. The statute does not distinguish between child find
activities for children enrolled in public schools and those
conducted for children enrolled in private schools.     In
addition, the importance of child find for determining the amount
to be spent on services for parentally-placed private school
children with disabilities also argues for clarity in the
regulations that child find activities for private school children
with disabilities must be comparable to child find activities
conducted for children in public schools. Further regulation also
is necessary on determining the number of parentally-placed private
school children with disabilities so as to eliminate the potential
for disputes about how to determine the number of private school
children with disabilities that will be used as the basis for the
calculation and to provide a clear standard for LEAs to meet.
Possible alternative standards for who to count, such as private
school children referred for evaluation, or private school children
with disabilities who are receiving services pursuant to Secs.
300.450-300.462 are not consistent with the statutory language.
    Since LEAs and SEAs are already counting children with
disabilities who are receiving special education and related
services on December 1 or the last Friday in October of each year
(the State decides which date to use on a State-wide basis) for
funding and data reporting purposes, conducting the count of
eligible parentally-placed private school children with
disabilities on that date as well is reasonable, reduces the amount
of double counting of private school children with disabilities who
move from one location to another, and gives States the same
flexibility they have with regard to counting children with
disabilities who are receiving services. Furthermore, this count
will provide the public agencies the basis on which they will be
able, consistent with Sec. 300.454, to plan for the services that
will be provided during the subsequent school year.
    Changes: A new paragraph (c) has been added to Sec. 300.453 to
specify that the costs of child find activities for private school
children with disabilities may not be considered in determining
whether the LEA met the expenditures requirements of this section.
A paragraph (d) has been added to clarify that States and LEAs are
not prohibited from spending additional funds on providing special
education and related services to private school children with
disabilities. The note has been removed.
    Section 300.451 has been revised to specify that child find
activities for parentally-placed private school children with
disabilities be comparable to child find activities for children
with disabilities in public schools.
    Section 300.453 has been revised to add a new paragraph (b)
that specifies that each LEA consult with representatives of
private school children with disabilities to decide how to conduct
the count of the number of parentally-placed children with

[[Page 12604]]

disabilities in private schools on December 1 or the last Friday of
October for determining the amount that must be spent on providing
special education and related services for private school children
for the subsequent school year, and that the LEA ensure that count
is conducted.

Services Determined (Sec. 300.454)

    Comment: Several commenters requested clarification of ``timely
and meaningful'' so that parents, private school representatives
and LEAs would have a better understanding of how this process
works. Various other suggestions included public notice of the
consultation meetings, public transcripts of those meetings, and
requiring explanations of refusals to provide service, and
decisions on allocations of funds for services for private school
children.
    Discussion: The needs of private school children with
disabilities, their number and their location will vary over time
and, depending on the circumstances in a particular LEA, will
differ from year to year. However, an annual consultation with
representatives of private school children is not required, since
States and LEAs are best able to determine the appropriate period
between consultations based on circumstances in their
jurisdictions.
    Paragraph (b)(3) specifies that consultation must take place
before decisions are made affecting the opportunities of private
school children with disabilities to participate in the State's
special education program which is assisted or carried out with
Part B funds. The regulations on this consultation process have not
been amended, in the expectation that all parties will treat others
in the process with reason and respect.
    Changes: No change was made in response to these comments. See
discussion of comments received under Sec. 300.350 regarding a
change to Sec. 300.454.

Services Provided (Sec. 300.455)

    Comments: Several commenters expressed concern that using the
term ``IEP'' in this section added to confusion over whether
private school children served under these provisions were to
receive all the services they need, or just those services that had
been decided through the consultation process would be provided.
Several suggested that a different term, ``statement of special
education and related services to be provided'' be substituted.
Other commenters objected to the definition of a term ``comparable
in quality'' not used in the statute.     Discussion: The use of
the term ``IEP'' could result in confusion about whether these
children receive all the services they would have received if
enrolled in a public school. A different term, services plan, will
be used. However, to the extent appropriate given the services that
the LEA has selected through the consultation process described in
Sec. 300.454, that services plan must meet the requirements for an
IEP in order to ensure that the services are meaningfully related
to a child's individual needs. For example, in almost all
instances, the services plan developed for an individual private
school child with a disability would have to meet the requirements
of Sec. 300.347(a)(1)-(4), (6) and (7).
    Whether those statements would also have to meet the
requirements of Sec. 300.347(a)(5), (b) and (c) would depend on the
services that are to be provided to the parentally-placed private
school student with a disability. Paragraph (c) provides useful
guidance to LEAs and parents that will prevent disputes. That
content will be retained, but the definition should be eliminated.
    Changes: Paragraph (a) has been retitled ``General.'' Paragraph
(b) has been revised by referring to a services plan instead of an
IEP and by specifying that, for the services that are provided, the
services plan, to the extent appropriate, must meet the content
requirements for an IEP (Sec. 300.347) and be developed consistent
with Secs. 300.342-300.346. The useful content from paragraph (c)
of the NPRM has been incorporated into paragraph (a).

Location of Services; Transportation (Sec. 300.456)

    Comment: Some commenters requested that the Department require
services to children in private schools be provided on-site,
stating that providing services at a neutral site is disruptive and
time consuming. Another asked for more specificity as to the phrase
``consistent with law.'' Several commenters objected to the
treatment of transportation in Sec. 300.456(b), some stating that
there is no individual right to transportation under the Act, while
others noted that providing transportation services could use all
the funds available for special education and related services.
Others asked why a certain related service (transportation) had
been singled out for special treatment.
    Discussion: Decisions about whether services will be provided
on-site or at some other location should be left to LEAs, in
consultation with representatives of private school children.
Although in many instances on-site services are most effective,
local considerations should allow flexibility in this regard. A
change should be made to Sec. 300.454(b)(1) to make clear that
where services are provided is subject to consultation with
representatives of private school children.
    The phrase ``consistent with law'' is statutory. As Note 1
following this section indicated, the Department's position, based
on the decisions of the Supreme Court in Zobrest v. Catalina
Foothills School Dist. (1993) and Agostini v. Felton (1997) is that
there is no Federal constitutional prohibition on providing
publicly-funded special education and related service on-site at
private, including religious schools. These decisions make clear
that LEAs may provide special education and related services on-
site at religious private schools in a manner that does not violate
the Establishment Clause of the First Amendment to the U.S.
Constitution.
    While the statute and regulation do not require the provision
of services on-site to private school children, to the extent it is
possible to do so, LEAs are encouraged to provide those services at
private school sites so as to minimize the amount spent on
necessary transportation and to cause the least disruption in the
children's education. However, State constitutions and laws must
also be consulted when making determinations about whether it is
consistent with law to provide services on-site at a religious
school.
    If services are offered at a site separate from the child's
private school, transportation may be necessary in order to get the
child from one site to the other, or the child may be effectively
denied an opportunity to benefit. In this sense then,
transportation is not a related service but is a means of making
the services that are offered accessible. LEAs should work in
consultation with representatives of private school children to
ensure that services are provided at sites that will not require
significant transportation costs. In light of the decision to
remove notes from the final regulations, paragraph (b) of this
section should be revised to incorporate the concept from the note
that transportation does not need to be provided between the
child's home and the private school.
    Changes: Section 300.456 has been re-titled ``Location of
services; transportation.'' A technical change has been made to
paragraph (a) to refer to religious schools rather than
religiously-affiliated schools. Paragraph (b) has been revised to
explain when

[[Continued on page 12605]]

[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12605-12654]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov] [DOCID:fr12mr99-16]

[[pp. 12605-12654]] Assistance to States for the Education of
Children With Disabilities and the Early Intervention Program for
Infants and Toddlers With Disabilities

[[Continued from page 12604]]

[[Page 12605]]

transportation is required. Section Sec. 300.454(b)(1)(iii) has
been revised to specify that where services are provided is a
subject of consultation between the LEAs and representatives of
private school children. The notes following this section in the
NPRM have been removed.

Complaints (Sec. 300.457)

    Comment: Several commenters objected to Sec. 300.457(a) because
they believed that a child in a private school should be able to
receive a due process hearing on complaints about services once the
LEA has decided to provide services to that child. Most of those
commenters indicated that there may be legitimate issues regarding
whether the LEA complied with obligations to a specific child it
had agreed to serve.     One commenter agreed with the position in
the NPRM that if FAPE does not apply to private school children,
due process also would not apply. Another commenter suggested that
due process also should not apply to the child find obligations
described in Sec. 300.451.     Discussion: Section 615(a) of the
Act specifies that the procedural safeguards of the Act apply with
respect to the 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 disabilities an LEA has agreed to serve, due process should
not apply, as there is no individual right to these services under
the IDEA. Disputes that arise about these services are properly
subject to the State complaint procedures, which are available to
address
noncompliance with any requirement of Part B.
    On the other hand, child find is a part of the basic obligation
to make a FAPE available to all children with disabilities in the
jurisdiction of the public agency, and so failure to properly
evaluate a parentally-placed private school child would be subject
to due process.
    Changes: A new paragraph (b) has been added to specify that due
process procedures do apply to child find activities, including
evaluations.

Requirement That Funds not Benefit a Private School (Sec. 300.459)

    Comment: One commenter asked how an LEA is to discern whether
funds are being used to benefit the private school. Another
questioned whether this provision is consistent with other
provisions that allow funds to be used by an LEA to provide staff
development for special and regular education personnel,
consultative services and provisions that permit other children to
also benefit when a teacher or other provider is providing special
education or related services to a child with a disability.
    Discussion: LEAs should use reasonable measures in assessing
whether Federal funds are being used to benefit private schools.
This provision does not prohibit private school teachers from
participating in staff development activities regarding the
provisions of IDEA when their participation can be accommodated.
    If consultation services are provided to a private school
teacher as a means of providing special education and related
services to a particular private school child with a disability and
that teacher uses the acquired skills in providing education to
other children, whatever benefit those other children receive is
incidental to the publicly funded services and is not prohibited by
this provision.
    On the other hand, if an LEA simply gave a private school an
amount of money rather than itself providing or purchasing services
for parentally-placed private school children with disabilities, in
addition to violating the requirements of Secs. 300.453 and
300.454, would raise very significant concerns about compliance
with Sec. 300.459(a).
    In the interest of regulating only where necessary, the
regulations do not further specify measures of when a private
school is benefiting from the Federal funds.
    Changes: None.

Use of Private School Personnel (Sec. 300.461)

    Comment: One commenter noted that private school personnel used
to provide services to private school children under Part B should
be required to meet the same standards as public school employees
providing those services to public or private school children.    
Discussion: Section 300.455 specifies that services provided to
private school children must be provided by personnel meeting the
same standards as those providing services in public schools. This
would apply to private school personnel who, under Sec. 300.461,
are being used to provide services under Secs. 300.450-300.462 to
private school children with disabilities.
    Changes: A technical change has been made to Sec. 300.461 to
make clear that the services addressed are those provided in
accordance with Secs. 300.450-300.462.

Requirements Concerning Property, Equipment and Supplies for the
Benefit of Private School Children With Disabilities (Sec. 300.462)

    Comment: One commenter asked whether costs for inventory
control can be considered as a part of the proportionate share of
the LEA's Part B funds that are to be expended for providing
services to private school children. The commenter also asked for
specificity regarding the procedures to be used for maintaining
administrative control of all property, equipment and supplies
acquired for the benefit of private school children.
    Discussion: Reasonable and necessary costs for inventory
control of property, equipment and supplies located in a private
school related to providing special education and related services
to private school children with disabilities can be considered a
part of the cost of providing special education and related
services to private school children with disabilities. Effective
procedures for ensuring administrative control will vary depending
on local considerations.     Changes: None.

Subpart E Procedural Safeguards

General Responsibility of Public Agencies; Definitions (Sec.
300.500)

    Comment: One commenter asked whether the definition of
``evaluation'' at Sec. 300.500(b)(2) precludes the use of tests
which are based on the general curriculum and which may be used
with all children in a school or class as the primary means of
evaluation. Another commenter asked if any evaluation after an
initial evaluation is considered a reevaluation. It was also
suggested that the revocation of consent only be allowed before the
first day of the child's placement. There was also a request that
the note (which concerns the non-retroactivity of a revocation by
a parent of their consent) be included in the text of the
regulation.
    Some commenters also wanted a definition of ``educational
placement'' included in Sec. 300.500(b), consistent with prior
policy issuances regarding the definition.
    Discussion: The statutory changes to the evaluation procedures
that are reflected in Secs. 300.530-300.536 make clear that an
``evaluation'' will include review of existing data, which may
include results on tests or other procedures that are based on the
general curriculum and may be used with all children in a grade,
school, or class. The definition of ``evaluation'' in the NPRM

[[Page 12606]]

at proposed Sec. 300.500(b)(2) had not been updated to recognize
this change in the statute. Therefore, a change has been made to
eliminate the last sentence in the proposed definition of
``evaluation'' so that it does not imply that an evaluation may not
include a review of a child's performance on a test or procedure
used with all children in a grade, school or class. This change
does not mean that a public agency must obtain parental consent
before administering a test used with all children unless otherwise
required. (See Sec. 300.505(a)(3)). Section 300.532 sets forth the
procedures required to individually evaluate a child. Section
300.533 addresses the use of existing evaluation data which can
include information available on the results of tests and
procedures used for all children in a school, grade or class.    
To distinguish an initial evaluation from a reevaluation, an
initial evaluation of a child is the first completed assessment of
a child to determine if he or she has a disability under IDEA, and
the nature and extent of special education and related services
required. Once a child has been fully evaluated the first time in
a State, a decision has been rendered that a child is eligible
under IDEA, and the required services have been determined, any
subsequent evaluation of a child would constitute a reevaluation.
    Regarding revocation of parental consent, parents cannot be
forced to consent to decisions related to their child's education.
However, it would be impractical to allow a parent to retroactively
apply a revocation of consent where parental consent is required.
Thus, once a parent consents to an educational decision concerning
their child, be it an evaluation or provision of service(s), any
revocation of their consent once the action to which they initially
consented has been carried out will not affect the validity of the
action. Since the non-retroactivity of a parent's revocation of
consent is based on the Department's interpretation of the statute,
and is important to make clear to all parties, it should be set
forth in the regulation itself.     The educational placement of a
child focuses on the implementation of a child's IEP and cannot be
defined generally given that each child has different educational
needs. Section 300.552 addresses the meaning of educational
placement by describing the factors involved in making a placement
decision and explains the concept in the context of the least
restrictive environment. There is no additional benefit to defining
further the term educational placement at Sec. 300.500.
    Changes: The note following this section has been deleted and
Sec. 300.500(b)(1)(iii) has been amended by adding language to
clarify that a revocation of consent does not have retroactive
effect if the action consented to has already occurred. Section
Sec. 300.500(b)(2) has been amended by removing the last sentence
of that paragraph.

Opportunity to Examine Records; Parent Participation in Meetings
(Sec. 300.501)

    Comment: Some commenters asked that the term ``all'' with
respect to meetings in Sec. 300.501(a)(2) be deleted as that term
is not used in the statute, as well as delete the term ``all'' with
respect to the term ``education records'' and replace it with
``special.'' Another suggestion was to require in Sec.
300.501(a)(1) that copies of tests given to a child and manuals to
interpret such tests be made available for the parents to review.
One commenter asked whether therapy notes are considered
educational records and another asked that the public agency be
required to specify time periods within which the inspection and
review right must be carried out.
    Several commenters expressed concern that the definition of
``meetings'' was too narrow; the commenters recommended the
definition be drafted to insure that it means any event where
decisions are made regarding a child's identification, evaluation
or placement. Others asked that the definition be removed entirely.
It was also requested that the potential for any confusion
regarding informal meetings held by school personnel be eliminated.
Several commenters recommended deleting the reference at Sec.
300.501(a)(2)(ii) to the provision of FAPE, claiming this would
overly broaden the meetings at which parents should be given the
chance to attend, precluding the ability for internal meetings
without the parents. A commenter also asked that Sec. 300.501(a)(2)
include the opportunity to attend eligibility meetings.
    Commenters also asked that Sec. 300.501(b)(2) be amended to
include in the definition of ``meetings'' those that occur via
conference call or video conferencing, not just face-to-face
meetings. Several comments advised that the language as proposed at
Sec. 300.501(b)(2) might result in parents being excluded from
curriculum planning meetings for individual children under the
guise of ``teaching methodology, lesson plans or coordination of
service provision'' meetings. There were several recommendations
that there be a specific timeline for giving parents notice of
meetings, such as at least 10 business days before a meeting.
    Regarding placements, many commenters stated that parents
should be informed by public agencies of the various alternative
placements available, not just the one ultimately chosen, and the
reasons for rejecting the other potential placements. Further, it
was suggested that the language in Sec. 300.501(c)(1) be placed in
the IEE section of the regulations.
    Several commenters also stated that video-conferencing
(referenced in Sec. 300.501(c)(3)) would be costly and prohibitive
for many schools. Some thought the language in Sec. 300.501(c)(5),
``whatever action is necessary'', was too broad and should be a
reasonable or feasible standard. There were also concerns that Sec.
300.501(c)(5) should not require schools to ensure participation
and comprehension by the parents, but that they should make
reasonable attempts to ensure parents participate and understand.
    Discussion: The statute specifically states that parents have
the right to participate in meetings regarding identification,
evaluation, placement or FAPE. Paragraph (b)(2) describes the types
of discussions that do not fall within this requirement. The term
``all'' should be deleted to be consistent with the statutory
language.
    The term ``all education records'' is from the statutory
reference to ``all records relating to such child'' at section
615(b)(1) of the Act. The Department has always interpreted the
term to mean all of the child's education records to be consistent
with the purpose of IDEA and the applicable confidentiality
provisions of the General Education Provisions Act at 20 U.S.C.
1232g, also known as the Family Educational Rights and Privacy Act
of 1974 (FERPA) as directed by section 617(c) of the Act.
    Education records are defined at Sec. 300.560 by reference to
the definition of education records in 34 CFR part 99 (the
regulations implementing FERPA). The term means those records that
are directly related to a student and are maintained by an
educational agency or institution or by a party acting for the
agency or institution. Given the definition, it follows that tests
taken by a child are included in the education records available
for review by a parent. The discussion following Sec. 300.562 in
the attachment further discusses what is considered an education
record of a child and the timelines for parental inspection and
review of education records.
    Regarding the definition of ``meetings,'' the proposed
definition was

[[Page 12607]]

intended to make clear that parents have the right to be notified
of and attend meetings which, generally, are scheduled in advance,
and in which public agency personnel are to come together at the
same time, whether face-to-face or via conference calls or video-
conferencing, to discuss, and potentially resolve, any of the
issues described in paragraph (b)(2).
    Informal discussions among teachers and administrators, which
may or may not be pre-arranged, are not meetings for which parents
must receive notice and the opportunity to attend. Whether or not
a meeting is prearranged is not the deciding factor in determining
whether parents would have the right to attend; rather, the fact
that the meeting is to discuss and potentially resolve one or more
of the issues identified in paragraph (b)(2) triggers the parents'
right to be involved.
    In practical terms, this means that meetings to which the
child's parents must be afforded the opportunity to attend cannot
be convened without providing parents with reasonable notice.
However, in the interest of regulating only where necessary, the
first sentence of paragraph (b)(2) would be removed and no specific
timeline regarding parental notice of meetings would be added.
    The right of parents to participate in meetings where the
provision of FAPE to their child is being discussed is statutory.
The point of the provision is to ensure parents have the
opportunity to participate in discussions where substantive
decisions regarding their child's education are made--a key
principle of the IDEA Amendments of 1997. Eligibility
determinations are the focus of the identification process and are
already part of Sec. 300.501(a)(2). A parent's role in the
eligibility determination also is addressed under Sec. 300.534 of
these regulations.
    With respect to placement, if parents are to be meaningfully
involved in the placement decision for their child it is necessary
that they understand the various placement options. It is implicit
in the requirement that parents be ensured the opportunity to be
members of any group making the placement decision, that whatever
placement options are available to a child will be fully discussed
and analyzed at placement meetings, allowing input from all the
participants.     Relocating the language at Sec. 300.501(c)(1) in
the IEE section of the regulations does not make sense since the
purpose of
Sec. 300.501(c) is placement and that of IEE's is evaluation.    
Whether or not video-conferencing, as well as other methods for
enabling full participation in meetings by those with a right to
attend, are used is dependent on the particular circumstances, and
no one method is mandated. If one effective option would be more
costly in a particular situation than another, there is no mandate
that the more costly alternative be chosen.
    Section 300.501(c)(4) explains that placement decisions may be
made by public agencies without the parents if the agency is unable
to obtain the parents' participation in the decision and documents
its attempts to ensure their involvement. Once a parent makes clear
that he or she will be involved in the placement decision-making
process, Sec. 300.501(c)(5) requires that the agency ensure that
the parent is actually able to participate in, which includes
understanding, the process. However, it is possible that even if an
agency makes reasonable efforts, consistent with Sec.
300.501(c)(5), to ensure a parent's participation, the parent is
still not able to meaningfully participate. Thus, it appears useful
to clarify the regulation.     Changes: Section 300.501(a)(2) has
been amended to delete the word ``all'; Sec. 300.501(b)(2)
(definitions of ``meetings'') has been amended by replacing ``a
prearranged event in which'' with ``when;'' and deleting ``and
place;'' and Sec. 300.501(c)(5) has been revised to refer to
reasonable efforts to ensure parent participation.

Independent Educational Evaluation (Sec. 300.502)

    Comment: Some commenters thought that allowing the public
agency to initiate a hearing regarding parental requests for
independent educational evaluations (IEE), without allowing parents
the right to likewise initiate a hearing, would cause excessive
litigation. Further, it was suggested that States be required to
develop clear criteria for acceptance of IEEs as the primary means
of determining eligibility.     One commenter asked that a formula
be established for reimbursing parents who assume the
responsibility of establishing eligibility for their children.
Several commenters urged that an IEE must be consistent with the
requirements of a full and individual evaluation under Secs.
300.530-300.536. It was also suggested that although the criteria
under which an IEE is obtained at public expense should be the same
as the criteria used by the public agency when it initiates an
evaluation, reasonable travel should be allowed when community
professional resources are limited.
    A few comments requested limiting the cost of an IEE to a
reasonable and customary charge, as well as restricting the type of
evaluation conducted, such as evaluating only educational, not
medical, needs.
    Comments were received recommending that before a parent may
request an IEE, there must have been an LEA evaluation, the results
with which the parents disagree. The commenters stated that parents
who refuse to consent to a public evaluation and then demand an IEE
at public expense should not receive an IEE, unless they can
demonstrate a legitimate reason for refusing to consent to the
undertaking of a public evaluation.
    Commenters both supported and opposed Notes 1 and 2, some
wishing their deletion and some wanting them included as part of
the regulations. Many commenters suggested that parents should
explain why they disagreed with the public evaluation, or that the
public agency should be able to request such information and have
time to alleviate the parents' concerns, and that the parent should
request a hearing if he or she wants one so the burden to
demonstrate that the evaluation was appropriate would not fall
solely on the public agency.     There were several requests for a
definition of unnecessary delay in Sec. 300.502(b), some proposing
10 calendar or school days from the receipt of a request for an
IEE.
    Discussion: The purpose of requiring the public agency to
either initiate a due process hearing if it wishes to challenge a
parent's request for an IEE, or otherwise provide an IEE at public
expense, is to require public agencies to respond to IEE requests
and to ensure parents are able to obtain an IEE as set forth in
section 615(b)(1) of the Act. There is no corresponding need to
specify that a parent also has the right to initiate a due process
hearing since if a public agency does not do so it must provide the
IEE at public expense.     IEEs would be only one element in the
eligibility determination since the evaluation team reviews the
existing evaluation data and then determines what additional data
are needed to determine whether the child has or continues to have
a covered disability, the child's present levels of performance and
whether the child needs or continues to need special education and
related services (see Sec. 300.533(a) and (b)). Methods in addition
to IEEs are to be used to determine whether a child is eligible
under IDEA. Therefore, the results of IEEs cannot be the sole
determining factor for eligibility.
    Under IDEA, it is the public agency's responsibility to
establish eligibility. If parents are willing to assume the

[[Page 12608]]

responsibility, on behalf of the public agency, for having the
assessment of their child under IDEA done, they should be
reimbursed for the assessment methods agreed upon by the public
agency and parents. The agreement between the parents and public
agency would depend on their special circumstances so regulating on
this issue would not be helpful. However, this procedure would not
be an IEE.     Since Sec. 300.502(e)(1) states that IEEs at public
expense are to be conducted pursuant to the same criteria that
apply to evaluations conducted by public agencies, it follows that
the requirements at Secs. 300.530-300.536 would apply to the IEEs.
Note also that for an IEE obtained by a parent either at public or
private expense to be considered by the public agency, such IEE
must meet agency criteria. Therefore, the parents must be able to
have access to the relevant agency criteria. To that end, Note 2
should be deleted and, in modified form, included in the text of
the regulation at Secs. 300.502(a)(2), 300.502(c)(1), and
300.502(e)(1).
    There is nothing in the regulations with respect to IEEs, or
evaluations in general, that would prevent reasonable travel for
necessary services not available in the community.
    Since public agencies must provide parents with information
about where IEEs may be obtained, provided the options are
consistent with Secs. 300.530-300.536, public agencies have some
discretion in the cost if it is at public expense. Further,
evaluations of children under IDEA are to cover all areas of
suspected disability, which may include medical examinations for
purposes of determining the child's disability. There may be
situations in which a child's educational needs are intertwined
with a child's health needs, therefore, stating that the types of
evaluations conducted are only those regarding educational need
does not add any useful clarity.
    The right of a parent to obtain an IEE is triggered if the
parent disagrees with a public initiated evaluation. Therefore, if
a parent refuses to consent to a proposed public evaluation in the
first place, then an IEE at public expense would not be available
since there would be no public evaluation with which the parent can
disagree. If the parent believes the proposed public evaluation is
inappropriate, he or she may pursue an appropriate publicly-funded
evaluation via the mediation or due process procedures under Secs.
300.506-300.509.     With respect to Note 1, while it would be
helpful for parents to explain their disagreement over a public
evaluation, there is nothing in the statute which prevents parents
from obtaining an IEE if they did not express their concerns first.
Therefore, Note 1 would be deleted and the regulation changed to
state that the public agency may request an explanation from the
parents regarding their concerns when the parent files a request
for an IEE at public expense. However, such an explanation may not
be required of the parents and the provision of an IEE, or
initiation of a due process hearing to defend the public
evaluation, may not be delayed unreasonably regardless of whether
or not the parent explains his or her concerns to the public
agency.     Since the necessity or reasonableness of a delay is
case specific, no definition of these terms has been added.
    Changes: Note 2 has been deleted and Sec. 300.502(a)(2) and
(e)(1) have been amended to provide that on request for an IEE,
parents are provided with information about where an IEE may be
obtained and the agency criteria applicable to IEEs and that those
criteria are consistent with the parent's right to an IEE.
    Note 1 has been deleted and Sec. 300.502(b) has been revised to
explain that an explanation of parent disagreement with an agency
evaluation may not be required and the public agency may not delay
either providing the IEE at public expense or, alternatively,
initiating a due process hearing.

Prior Notice by the Public Agency; Content of Notice (Sec. 300.503)

    Comment: One commenter stated that Sec. 300.503(b)(8) should be
removed, believing it to exceed the statute and because an
explanation of State complaint procedures is given in the
procedural safeguards notice. The commenter also believed it is
inconsistent to inform parents about the State complaint process
without the other two (mediation and due process appeals) being
explained.
    Several commenters asked for specific types of organizations to
be listed in Sec. 300.503(b)(7), such as parent training
institutes. Another commenter wanted the title of Sec. 300.503 to
be changed to ``Prior Notice by the Public Agency Before
Implementing an IEP.''     Several commenters asked that a note be
added to explain when the notice needs to be sent.
    Requests were received to delete Sec. 300.503(b)(6) and to
insert the phrase ``unless it is clearly not feasible to do so'' as
stated in Sec. 300.503(c)(ii) whenever language or mode of
communication is addressed. It was also suggested that a note be
added that an LEA must document its attempts at accessing resources
to assist in translating or interpreting information.
    Discussion: Section 300.503(b)(8) was proposed to enhance the
awareness of parents of low cost and less adversarial mechanisms
for resolving disputes with school districts. Therefore, it makes
sense to require State complaint procedures to be explained along
with due process and mediation rather than in this notice. Since
Sec. 300.503(b)(6) requires that parents be advised of the
existence of procedural safeguards and, if the written notice is
not part of an initial referral for an evaluation, be told how a
copy of the procedural safeguards notice can be obtained, it would
be useful and appropriate to add a specific requirement for an
explanation of the State complaint process in Sec. 300.504(b).
    Procedural safeguard notices must be given to the parents, at
a minimum, upon the four events set forth at Sec. 300.504(a);
between those events and the statement mandated at Sec.
300.503(b)(6), agencies should have ample instances in which they
must provide parents with effective notice of the various processes
for challenging proposed action. Therefore, Sec. 300.503(b)(8)
should be deleted and moved to Sec. 300.504(b).
    The types of organizations which exist to help parents
understand IDEA are varied and depend on the particular State.
Therefore, a list of such organizations in the regulations would
not be feasible.     The regulation is already clear on when the
prior written notice must be given: a reasonable time before the
public agency proposes or refuses to initiate or change the child's
identification, evaluation, educational placement or provision of
FAPE. If parental consent is required for the proposed action, the
notice may be given when parental consent is requested. Further,
the notice is required at times other than only before implementing
a child's IEP so the title should not be changed.
    Section 300.503(b)(6) is taken directly from the statute. In
addition, it is difficult to understand when it would not be
feasible to add the statement required by Sec. 300.503(b)(6).
    It is not necessary to add a note requiring an agency to
document its efforts to translate or interpret the notice pursuant
to Sec. 300.503(c)(2)(i) and (ii) since Sec. 300.503(c)(2)(iii)
requires that the agency can show that Sec. 300.503(c)(2)(i) and
(ii) have been met.
    Changes: Section 300.503(b)(8) has been deleted and moved to
Sec. 300.504(b).

[[Page 12609]]

Procedural Safeguards Notice (Sec. 300.504)

    Comment: Several commenters were opposed to specifying the
times procedural safeguards notice are to be given to the parents,
claiming such requirements are expensive and burdensome. One
commenter asked that the terms ``opportunity to present
complaints'' and ``due process hearings'' be clarified since the
two terms seem to mean the same thing for purposes of the
procedural safeguards notice. Other commenters objected to Secs.
300.504(a)(2), 300.504(b)(7), and 300.507(c)(2)(iii).     There
were several suggested additions to the timing and contents of the
procedural safeguards notice. Commenters suggested that the
procedural safeguards notice: (1) Also be required when there is a
decision to remove a child from his or her current educational
placement for disciplinary actions resulting from behaviors
described in Sec. 300.520 or Sec. 300.521, or for a period of more
than 10 school days for other violations; (2) contain information
with respect to the transfer of rights at the age of majority and
the circumstances under which tuition reimbursement may be denied;
(3) contain information on the use of private and public insurance
to pay for Part B services; (4) contain information as to where
parents can receive help in understanding procedural safeguards;
(5) state that a public agency may not deny a parent's right to a
due process hearing if the parent fails to participate in a meeting
to encourage mediation; and (6) include a complete listing of all
times when the safeguards notice is to be provided.
    Discussion: The minimum times the procedural safeguards notice
must be given to parents is set forth in the statute at section
615(d)(1). The fourth requirement, that the notice be given upon
receipt of request for a due process hearing, comes from the
requirement at section 615(d)(1)(C) that the notice be given upon
registration of a complaint under section 615(b)(6).
    The longstanding interpretation of the statutory mandate at
section 615(b)(6) that parents have the opportunity to present
complaints relating to their child's identification, evaluation,
educational placement and provision of FAPE, is that they have an
opportunity to request a due process hearing. Therefore, Sec.
300.504(b)(5) should be modified to make clear that the opportunity
to be explained is that of presenting complaints to initiate due
process hearings pursuant to Sec. 300.507. Section 300.504(b)(10)
as stated is then clearer in that it refers to an explanation of
the actual due process hearing procedures. Also, in adding Sec.
300.504(b)(14), a corresponding change to the first paragraph of
Sec. 300.504(b) must be made to reference State complaint process.
    Sections 300.504(a)(2) and (b)(7) are required by the statute.
The provision in Sec. 300.504(c)(2)(iii) has been in the
regulations since 1977 and there is no basis for changing the
requirement given that purpose is to ensure that parents receive
assistance in understanding the notice.
    Regarding the several suggested additions to the timing and
contents of the procedural safeguards: (1) Sec. 300.504(b)(7) as
written addresses situations where children are disciplined and
placed in interim alternative educational placements; (2) Sec.
300.504(b)(8) as written addresses situations resulting in
reduction of reimbursement of private school tuition; (3) Sec.
300.347(c) requires that at least one year before the student
reaches the age of majority under State law the parents and the
student will receive notice of the projected transfer of rights
through the IEP; (4) Sec. 300.142(e) specifies that private
insurance can only be used with informed parent consent and that
public insurance can only be used if it will not result in a cost
to parents; (5) Sec. 300.503(b)(7) already includes sources for
parents to use to help in understanding their rights; and (6)
Sec. 300.504(b)(9) already requires that the mediation process,
which includes parental rights therein, be fully explained.
    The information on the content and timing of the procedural
safeguards notice is not included in the statutory description of
the contents of this notice.
    Changes: As discussed under Sec. 300.503, a new Sec.
300.504(b)(14) has been added to address State complaint
procedures. The first paragraph of Sec. 300.504(b) is amended to
recognize this change. Section 300.504(b)(5) is amended to refer to
presenting complaints to initiate due process hearings.

Parental Consent (Sec. 300.505)

    Comment: A few comments suggested that the term ``informed'' be
inserted before ``parental consent'' in Sec. 300.505(a)(1).    
Several commenters believe that parental consent should be required
for all reevaluations, not just those where new tests are
necessary. Other commenters also requested that the term ``new
test'' be changed to encompass other evaluation procedures. Others
stated that the term ``new test'' confused rather than clarified
when consent needed to be obtained and requested that it be
clarified or deleted. Some commenters suggested that an explanation
be added to clarify that where additional data are needed in order
to reevaluate a child, parental consent is required. There were
also questions regarding the necessity of consent for adapted or
modified assessments if not part of a reevaluation, such as ongoing
classroom evaluations (e.g. the Brigance) and counseling.    
Several commenters believe that parental consent should be required
before special education services are discontinued, for example,
upon graduation. A few commenters recommended that reevaluations
for children who are suspended for more than 10 days or expelled
should be able to proceed even if parental consent is not given.
    The use of Sec. 300.345(d) procedures to meet the reasonable
measures requirement of Sec. 300.505(c) was opposed by some
commenters, several of whom believe that documenting efforts to
obtain parental consent should be sufficient. Some also wanted
reasonable measures to be defined more specifically.
    Several comments advocated deleting Note 3 and others believed
Note 3 should be incorporated into the regulation. Further, it was
recommended that the clarification in Note 2 be revised to state
that the public agency consider implementing its procedures to
override a parent's refusal to consent to services the public
agency believes are necessary for the child to receive FAPE, rather
than requiring the public agency to implement such override
procedures.
    Discussion: Parental consent must be informed to be consistent
with the statute and meaningful. Further, adding the word
``informed'' at Sec. 300.505(a)(1) is consistent with the
definition, in
Sec. 300.500(b)(1), of consent.
    In order for children to receive FAPE, the IDEA Amendments of
1997 emphasized the importance of parent involvement in their
children's evaluation and placement. The statute requires informed
parental consent prior to a child's initial evaluation for special
education and related services, as well as any reevaluations. The
intent of this statutory change was not to require school districts
to obtain parental consent before reviewing existing data about the
child and the child's performance, an activity that school
districts, as a matter of good practice, should be engaged in as an
on-going practice.

[[Page 12610]]

    To require parental consent for collection of this type of
information would impose a significant burden on school districts
with little discernable benefit to the children served under these
regulations. The statute provides that in some instances, an
evaluation team may determine that additional data are not needed
for an evaluation or reevaluation. In all instances, parents have
the opportunity to be part of the team which makes that
determination. Therefore, no parental consent is necessary if no
additional data are needed to conduct the evaluation or
reevaluation.
    To make this clear and to respond to commenters who believed
that requiring parental consent only when conducting a new test as
part of the reevaluation was too narrow, the regulation should be
revised to specify that parental consent must be obtained before
conducting an evaluation or reevaluation, to delete proposed
paragraph (a)(1)(iii) and add a new provision to state that
parental consent need not be obtained before reviewing existing
data as a part of an evaluation or reevaluation or before
administering a test or other evaluation that is administered to
all children unless consent is required of all parents.    
Parental consent would be necessary if a test is conducted as a
part of an evaluation or reevaluation, and when any assessment
instrument is administered as part of an evaluation or
reevaluation. However, schools would not be required by these
regulations to obtain parental consent for teacher and related
service provider observations, ongoing classroom evaluation, or the
administration of or review of the results of adapted or modified
assessments that are administered to all children in a class,
grade, or school.
    If a child is about to graduate or otherwise stop receiving
special education and related services, Sec. 300.503's prior notice
requirements would be triggered. Section 300.503 requires that
written notice must be sent to the parents before a proposed change
in identification, evaluation, placement, or the provision of FAPE
is effective, thereby allowing the parent the opportunity to object
to the proposal. It is not appropriate to regulate further on this
issue here.     Paragraph (b) of this section addresses the
procedures an agency can use if it wants to pursue an evaluation or
reevaluation, but the parents have refused consent. The agency may
seek to do the evaluation or reevaluation by using the due process
or mediation procedures under Part B of the Act unless doing so
would be inconsistent with State law relating to parent consent.
Proposed Notes 1 and 3, and the second part of proposed Note 2 were
attempts to clarify the interplay between the Federal requirement
to provide FAPE and any State laws and policies which may not
permit educational agencies to override refusals of parents to
consent to evaluations and reevaluations.
    In practical terms, if a State does not allow the agency to
override a parent's refusal for an initial evaluation or
reevaluation which the agency deems necessary in order to provide
FAPE, the agency, under paragraph (b), must follow the requirements
of State law. In cases where the evaluation or reevaluation is
necessary in order to determine that the child is or continues to
be a child with a disability under Part B of the Act, and State law
prohibits an agency from overriding a parental refusal to consent,
the agency may have no recourse but to not provide, or not continue
to provide, services under the Act to the child.
    On the other hand, if State law does not prohibit the agency
from overriding a parental refusal to consent to an evaluation or
reevaluation, and the agency believes that an evaluation or
reevaluation is necessary in order to provide FAPE, the agency
would have to take appropriate action.
    If State law provided a mechanism different than due process or
mediation under Part B as the means to override a parent refusal of
consent, and the agency deems the evaluation or reevaluation
necessary in order to provide FAPE, the agency would use the State
mechanism to pursue the evaluation. If State law permits agencies
to override a parental refusal to consent to an evaluation or
reevaluation, but does not specify the procedures to use, and the
agency determines that the evaluation or reevaluation was necessary
in order to provide FAPE to the child, the agency would use the due
process and mediation procedures under Part B of the Act.
    Of course, if an agency proposed an evaluation or reevaluation
and the parent refused consent, the agency could reconsider whether
its proposed evaluation or reevaluation was necessary, if the
circumstances warrant. However, in light of the general decision to
remove all notes from the regulations implementing Part B of the
Act, the notes should be removed.
    Paragraph (c) of this section addresses situations in which an
agency seeks parental consent for a reevaluation, but the parent
fails to respond. Given the importance of parental involvement, the
procedures a public agency must use to demonstrate that it has
taken reasonable measures to obtain parental consent pursuant to
Sec. 300.505(d) should be consistent with the procedures in Sec.
300.345(d) that a public agency must use to inform and encourage
parents to attend IEP meetings. The methods described in
Sec. 300.345(d) are examples of how to attempt and document the
steps that the public agency has taken to obtain parental
participation in an IEP meeting, and are applicable to a public
agency's attempts to obtain parental consent pursuant to 34 CFR
300.505.
    Section 300.345(d) does not require a public agency to take all
of the steps mentioned before conducting the meeting. A public
agency may use a method which is different from the ones listed at
Sec. 300.345(d) to demonstrate that it has attempted to obtain
parental consent as long as it can demonstrate that its methods
were appropriate. Therefore, the language concerning the use of the
Sec. 300.345(d) procedures to meet the reasonable measure
requirement of Sec. 300.505(c) should be retained.
    Under paragraph (d) of this section if a State adopts consent
requirements in addition to those required in Sec. 300.505(a)(1),
public agencies are not excused from their obligation to provide
FAPE because a parent refuses to consent unless the public agency
has taken the steps necessary to resolve the matter. In order to
resolve the disagreement with the parent, it is appropriate for the
public agency to use informal means initially, such as a parent
conference. However, if these informal means prove unsuccessful,
the public agency must use its override procedures if it continues
to believe that the disputed service or activity is needed in order
for the child to receive FAPE.     Paragraph (e) of this section
contained a typographical error because it should have referred to
consent required under paragraphs (a) and (d), consistent with the
prior regulations. With regard to paragraph (e), it is important to
recognize that except for the service or activity for which consent
is required under paragraphs (a) and (d), parent refusal to consent
to one service or benefit may not be used to deny the parent or
child any other service or benefit available to them. For example,
if a State requires parental consent to the provision of all
services identified in the IEP, and the parent refuses to consent
to physical therapy services included in the IEP, the agency is not
relieved of its obligation to implement those portions of the IEP
to which the parent consents. Similarly, a parent

[[Page 12611]]

refusal to consent to a reevaluation may not be used to deny a
child the right to participate in a class trip. A parent refusal to
consent to the collection of additional data that a public agency
believes is needed as a part of a reevaluation may not be used to
deny the child the services that are not in dispute. In addition,
a parent refusal to consent to the collection of additional data
that the agency thinks necessary to determine whether the child
continues to be a child with a disability may not result in the
exclusion of the child from special education and related services
because Sec. 300.534(c)(1), which reflects the statutory
requirements of section 614(c)(5), requires a full evaluation
before determining that a child is no longer a child with a
disability. To make this point more clearly, paragraph (e) would be
revised.
    Changes: Section 300.505(a)(1) has been amended to refer to
``informed parent consent,'' and to delete the unnecessary
reference to programs providing special education and related
services. A reference to reevaluation has been added to paragraph
(a)(1)(i), paragraph (a)(1)(iii) has been deleted, and a new
paragraph (a)(3) added to specify that parental consent is not
required before reviewing existing evaluation data as a part of an
evaluation or reevaluation or for administering a test used with
all children unless consent is required of all parents. Paragraph
(e) has been revised to provide that a public agency may not use a
parental refusal to consent to one service or benefit under
paragraphs (a) and (d) to deny the parent or child another service,
benefit, or activity, except as may be required by these
regulations. The notes following this section have been removed.

Mediation (Sec. 300.506)

    Comment: Several commenters asked that the terms ``SEA'' and
``LEA'' be used in lieu of ``public agency'' since the statute uses
those terms. There were also requests for a clarification of the
State's responsibility for the costs of the mediation process.    
There were a few requests for clarification of who may be
mediators, such as whether or not former LEA employees would be
able to be mediators. There were comments asking for more
restrictions on who could be a mediator and comments asking for
fewer restrictions, especially where a public school district
already has certain mediators under state law or regulation. The
latter commenters believe the restrictions should only address
employees of an agency that is providing direct services to a child
who is the subject of the mediation or any state agency described
in Sec. 300.20.
    There was also the suggestion that LEA employees be permitted
to serve as mediators, however, either party would have the right
to reject such selection. The commenters pointed out that there is
no similar prohibition against LEA employees being hearing officers
and several questioned whether the restrictions were therefore
necessary. Some commenters suggested that the regulation make clear
that multiple mediators or mediation panels are allowed, i.e., that
a single mediator is not required for each mediation.
    Other comments recommended that Note 1 be deleted, while others
asked that it be included in the text of the regulation. With
regard to Note 1, for situations in which agreement on a mediator
could not be reached, commenters sought additional guidance in the
regulation.     Other suggestions for the mediation process
included promoting mediation even before a due process hearing is
requested and allowing an LEA to select a mediator who it believes
is best able to resolve issues in dispute. There were comments that
mediation should be allowed to occur via telephone when necessary.
Several commenters asked that the agreement reached in mediation be
added to the child's IEP as soon as possible after the agreement is
reached, however not later than 10 days from the agreement.
Commenters also requested that the regulation specify that the
written mediation agreement would be as enforceable as a due
process hearing decision, and that mediation discussions may be
disclosed in any proceeding brought to enforce a mediation
agreement.     Some comments stated that there appeared to be a
conflict between Secs. 300.506(d)(1) and 300.506(d)(2). The former
allows a public agency to require parents who elect not to go to
mediation to meet with a disinterested party to learn about the
mediation process. The latter states that if a parent does not
participate in the informational meeting regarding mediation the
public agency may not deny or delay the parent's right to due
process hearing. The comments suggested changing Sec. 300.506(d)(1)
to state that the procedures may ``request'' not ``require'' the
parents to learn about mediation. A few comments requested a
specific definition of the term ``disinterested party'' and parent
information and training centers, as well as clarification of any
supervision required over disinterested parties. There were also
comments which asked that LEAs be required to mediate if the
parents agree, as well as be required to attend a mediation
informational meeting if it chooses not to mediate.
    Discussion: Mediation is an important alternative system for
resolution of disputes under Part B. However, in order for
mediation to be effective, it must be an attractive alternative to
both public agencies and parents and it must be an impartial system
which brings the proper parties into a confidential discussion of
the issues and allows for a binding agreement that resolves the
dispute.
    The statute clearly states that the option of mediation must be
available whenever a due process hearing is requested. No further
requirement would be added to the regulations. However, States or
other public agencies are strongly encouraged to offer mediation or
other alternative systems of dispute resolution prior to the filing
of a request for a due process hearing, and whenever a dispute
arises.     An expanded use of mediation should enable prompt
resolution of disputes and lead to a decrease in the use of costly
and divisive due process proceedings and civil litigation.
Mediation may also be useful in resolving State complaints under
Secs. 300.660-300.662.
    The term ``public agency'' in the regulation appropriately
includes State and local educational agencies as well as other
agencies in the State that may have responsibility for the
education of children with disabilities because it ensures access
to the mediation process, regardless of the agency that provides
educational services. The requirement that the State bear the cost
of the mediation process is clearly set out in the regulation;
however, the regulation should be revised to correctly refer to the
meetings to encourage the use of mediation. In addition, the
potential savings of mediation, when compared to litigation, make
it an attractive, low-cost option for most public agencies.
    While there is nothing in the Part B regulations that precludes
parents and LEA employees from attempting to resolve disputes
through an informal process, the use of current LEA employees as
mediators would make mediation a much less attractive alternative
to parents. The regulatory provisions regarding the impartiality of
mediators and the requirement of specialized expertise in laws and
regulations relating to the provision of special education and
related services are intended to be more stringent than the Federal
requirements for impartial hearing officers to ensure that
mediation is a more attractive option for parents, and an effective
option for both parties. The use of a single mediator in the

[[Page 12612]]

mediation process is important for clear communication and
accountability.
    Paragraph (b)(1)(iii) of this section, which repeats statutory
language, is clear that each mediation be conducted by one
mediator, as opposed to a panel or multiple mediators.
    Another factor that will determine the success of mediation
within a State is the selection process for mediators. It is
important to note that with respect to paragraph (b)(2) of this
section, the Senate and House Committee Reports on Pub. L. 105-17
include the following statement:

    * * * the bill provides that the State shall maintain a list of
individuals who are qualified mediators. The Committee intends that
whenever such a mediator is not selected on a random basis from
that list, both the parents and the agency are involved in
selecting the mediator, and are in agreement with the individual
who is selected. (S. Rep. No. 105-17, p. 27 (1997); H. Rep. No.
105-95, p. 106 (1997).)

    The success of a mediation system will be closely related to
both parties' trust and commitment to the process. The first test
of that process will be the selection of the mediator. Parties that
mistrust the mediator selection process may be less likely to reach
agreement on substantive issues. Therefore, reflecting the language
of the Committees' reports on this topic, a change should be made
to the regulation to specify that if a mediator is not selected on
a random basis from the State-maintained list, both parties are
involved in selecting the mediator and are in agreement with the
selection of the individual who will mediate.
    Like hearing officers, mediators must be able to be paid by the
State, without impacting their impartiality. Language similar to
that used for impartial hearing officers should be added to the
regulation to clarify that even though a mediator is paid for his
or her services as a mediator, such payment does not make that
mediator an employee for purposes of impartiality.
    The regulatory requirement for the use of a qualified mediator
instructed in effective mediation techniques will ensure that
decisions about the effectiveness of specific techniques, such as
the need for face-to-face negotiations, telephone communications,
or IEP implementation provisions, will be based upon the mediator's
independent judgment and expertise. Therefore, it is not necessary
to regulate on these issues.
    The enforceability of a mediation agreement, like the
enforceability of other binding agreements, including settlement
agreements, will be based upon applicable State and Federal law.
With regard to the provision in paragraph (b)(6) of this section
that mediation discussions must be confidential and may not be used
in any subsequent due process hearings or civil proceedings, the
Senate and House Committee Reports on Pub. L. 105-17 note that
``nothing in this bill shall supersede any parental access rights
under the Family Educational Rights and Privacy Act of 1974 or
foreclose access to information otherwise available to the
parties.'' (S. Rep. No. 105-17, p. 27 (1997); H. Rep. No. 105-95,
p. 107 (1997)). The Reports also include an example of a
confidentiality pledge, which makes clear that the intent of this
provision is to protect discussions that occur in the mediation
process from use in subsequent due process hearings and civil
proceedings under the Act, and not to exempt from discovery,
because it was disclosed during mediation, information that
otherwise would be subject to discovery.
    Regarding the perceived conflict between Sec. 300.506(d)(1) and
(d)(2), the mediation process, including meetings to discuss the
benefits of mediation, should not be used to deny or delay parents'
due process hearing rights. The purpose behind Sec. 300.506(d)(2)
is to ensure that in situations where parents are unwilling or
unable to cooperate with a public agency regarding a meeting to
discuss the benefits of mediation, there is still a timely
resolution of the due process hearing. In general, a hearing
officer should not extend the timelines for a due process hearing
based on the fact that there is a pending mediation in the case
unless both parties have agreed to that extension. If mediation is
used in the resolution of a State complaint, it should not be
viewed as creating, in and of itself, an exceptional circumstance
justifying an extension of the 60 day time line. While the State or
local educational agency may require that the parent attend the
meeting to receive an explanation of the benefits of mediation and
to encourage its use, a parent's failure to attend this meeting
prior to the due process hearing should not be used to justify
delay or denial of the hearing or the hearing decision.
    It is not necessary to define the terms ``parent training and
information centers'' or ``community parent resource center'' since
they are established by statute. To allow flexibility with regard
to the designation of a ``disinterested party'' by the parent
organizations or an appropriate alternative dispute resolution
entity, no definition would be provided. Consistent with the
general decision to remove all notes from these final regulations,
Notes 1 and 2 would be removed.
    Changes: A new paragraph (b)(2)(ii) is added to specify that
the mediator be selected from the list on a random basis, such as
a rotation, or that both parties are involved in selecting the
mediator and agree with the selection of the individual who will
mediate. Notes 1 and 2 have been removed. Paragraph (b)(3) has been
revised to refer to the meetings to encourage the use of mediation.
    Another new paragraph (c)(2) is added to clarify that payment
for mediator services does not make the mediator an employee for
purposes of impartiality.

Impartial Due Process Hearing; Parent Notice (Sec. 300.507)

    Comment: There were several comments requesting changes to Sec.
300.507. With regard to the model form for hearing requests, some
commenters requested that where the public agency requests the due
process hearing, the public agency would provide the notice
requested of the parents at Sec. 300.507(c)(1) and (c)(2). Others
requested that parent information and training centers and the
general public be required to assist in developing the model form
required in Sec. 300.507(a)(3).
    The Department also received comments asking that
Sec. 300.507(c)(4) be modified so that LEAs can ask a hearing
officer to delay a due process hearing for a reasonable period of
time until the parents provide the district with the required pre-
hearing notice. Some commenters suggested that parents be informed
of free and low cost legal advocacy as a matter of routine, not
just after requesting a due process hearing. Other commenters
sought additional language specifying that LEAs be barred from
coming to a due process hearing with a new IEP developed without
direct parental input and based on the information given by the
parents in the hearing request.
    Commenters also requested that the statutory provisions
regarding attorneys' fees at sections 615(i)(3)(D) and (F) of the
Act be included in this regulation. Others requested that the term
``or refusal to initiate or change'' be added to Sec.
300.507(c)(2)(iv).
    Some commenters asked that the Department delete Note 1, while
others asked that Note 1 be written into the regulation itself.   
 Discussion: The prior written notice requirement of Sec. 300.503
is sufficient to inform parents of what the public agency is
proposing. Therefore, any hearing request by the public agency on

[[Page 12613]]

that proposal would not require an additional notice by the agency.
Another notice would be repetitive and overly burdensome. Likewise,
many public agencies already have existing model forms for hearing
requests. Since the statute and regulation specify the information
which parents must disclose in the hearing request, additional
input from parent information and training centers or the general
public is unnecessary and would create additional burdens without
much benefit.     The Senate and House Committee Reports on Pub. L.
105-17 note that attorneys' fees to prevailing parents may be
reduced if the attorney representing the parents did not provide
the public agency with specific information about the child and the
basis of the dispute described in paragraphs (c)(1) and (2) of this
section. With respect to the intent of the new notice provision,
the Reports include the following statement:

    * * * The Committee believes that the addition of this
provision will facilitate an early opportunity for schools and
parents to develop a common frame of reference about problems and
potential problems that may remove the need to proceed to due
process and instead foster a partnership to resolve problems. (S.
Rep. No. 105-17, p. 25 (1997); H. R. Rep. No. 105-95, p. 105
(1997)).

    The changes to Sec. 300.513 clarify the potential for reduction
of attorneys' fees in cases where proper notice is not given by the
parents' attorney. Therefore, a reference to attorneys' fees is not
necessary here.
    Matters such as what evidence should and should not be
presented and requests for extensions of time, should be handled on
a case-by-case basis by the impartial hearing officer presiding
over the hearing. It has also been the Department's long-standing
position that Part B of the Act and the regulations under Part B do
not provide any authority for a public agency to deny a parent's
request for an impartial due process hearing, even if the agency
believes that the parent's issues are not new. Thus, the
determination of whether or not a parent's request for a hearing is
based on new issues can only be made by an impartial hearing
officer.
    The request for modification of the regulation at
Sec. 300.507(c)(2)(iv) to include situations where the nature of
the problem is the public agency's refusal to initiate or change
the provision of a free appropriate public education, is consistent
with the requirements of Sec. 300.507(a)(1). In light of the
general decision to remove all notes from these final regulations,
Notes 1 and 2 should be removed.
    Changes: Section 300.507(c)(2)(iv) is amended to make clear
that a problem may have arisen as a result of an agency's proposal
or refusal to act. Notes 1 and 2 have been removed.

Impartial Hearing Officer (Sec. 300.508)

    Comment: The Department received several comments requesting
amendments to the regulation on hearing officers in two main
aspects--qualifications and public notice of such qualifications.
In the first area, commenters stated that persons who are employees
of any LEA, persons who were employees of an SEA or LEA and were
involved in the care or education of any child in the past 5 years,
and attorneys who represent primarily the school district or
parents cannot be hearing officers. In the second area, commenters
requested that hearing officers be required to take training and
competency examinations designed by this Department and
supplemented with State-specific elements. Several commenters also
want SEAs to publish the criteria they use to choose hearing
officers and that the list of all the hearing officers and their
credentials be provided to parents requesting a due process
hearing. Commenters also suggested that the regulation require that
if a sublist of hearing officers is generated for a particular
hearing, the parents or their representative be present at the
meetings where the sublist is selected. Further, commenters asked
that the statement of the qualifications of hearing officers be
updated annually and the impartiality of a hearing officer be
determined by an objective standard, such as a State's Code of
Judicial Conduct.
    Discussion: The regulation, in conjunction with State ethics
requirements for attorneys and judges, are sufficient to address
the concerns raised by commenters with regard to potential
conflicts. In States where there are no formal ethical standards
for administrative hearing officers, the issue should be addressed
within the State. A prior employee of an LEA or SEA should not be
barred from serving as a hearing officer where there is no personal
or professional interest that would conflict with his or her
objectivity in the hearing. Hearing officers, like judges, are
capable of making independent determinations of potential conflicts
of interest, including a determination of whether he or she has
knowledge or information about a particular child derived from
outside the hearing process which would impact upon his or her
impartiality.
    Although numerous commenters asked for national standards,
training, and examinations for impartial hearing officers,
decisions about training and hearing officer selection, including
the use of sublists, should be left to States. Since hearing
officers' decisions are subject to judicial review, there is a
strong incentive for States to choose qualified hearing officers,
conduct appropriate training and establish standards of expertise.
Hearing decisions that are not soundly decided will lead to further
litigation, be more likely to be reversed and create higher costs.
In addition, reviewing courts are less likely to give judicial
deference to a hearing officer where his or her qualifications show
no expertise in the area of special education.
    Changes: None.

Hearing Rights (Sec. 300.509)

    Comment: There were several specific comments regarding hearing
rights. With respect to the additional disclosure of information,
some commenters stated that the time frame should be 5 school days,
not business days, prior to a hearing, and the recommendations
should be clarified as written recommendations which may be
summaries of oral recommendations. A few commenters also suggested
that
Sec. 300.509(a)(3) and (b) use the same standard of business days
to avoid confusion.
    With respect to the parental hearing rights, some commenters
suggested that since it sometimes not in the interest of the child
to be present at the hearing, the parents should have the right to
have the child who is the subject of the hearing present for only
a portion of the hearing. There were also comments that a free
written record is too expensive for States to provide, as well as
comments that a verbatim recording should be at no cost to the
parents.
    With respect to general hearing rights, commenters asked that
evidence that has not been disclosed within the appropriate time
frame not be allowed unless agreed to by both parties or for good
cause shown for the failure to disclose in advance. Commenters also
asked that the regulations state that the only pre-hearing
discovery allowed is the exchange of information set forth in Sec.
300.509. Finally, commenters requested that hearing decisions be
made available to the public at least on a quarterly basis.
    Discussion: The establishment of two separate time frames for
the prehearing disclosure of documents because the term ``5
business days'' is used in Sec. 300.509(b)(1) and the term ``5
days'' is used in paragraph (a)(3) of this section will lead to
confusion and additional litigation and costs. In order to prevent

[[Page 12614]]

this, the time frame for disclosure would be set to 5 business days
prior to the hearing. This change would be consistent with prior
interpretations by the Department, which recognized that the intent
of prehearing disclosure is to avoid surprise by either party at
the hearing. The hearing officer has discretion to determine the
consequences of not meeting the disclosure time line, and may
prohibit the introduction of the evidence or may allow the
rescheduling of the hearing so that timely disclosure is possible.
    Some States chose to allow the use of other discovery
procedures prior to a due process hearing. States should continue
to have this discretion as they are not prohibited from doing so by
Part B.     Access to a written verbatim record of the hearing is
vital for parents to exercise their full due process rights.
Although there are costs associated with the statutorily mandated
shift of the choice between an electronic or written record of the
hearing from the public agency, as newer technologies are better
capable of generating accurate transcriptions, these costs will
decrease.
    Parents must continue to have the choice to have the child be
present for all or part of the hearing, at their discretion. For
some youth with disabilities, observing and even participating in
the hearing will be a self-empowering experience in which they can
learn to advocate for themselves. This long-standing choice should
not be taken away from parents. This choice takes on added
significance in light of the new provisions that allow States to
transfer parental rights to students at the age of majority. Under
this new authority, there may be more situations where students
will have to be present at and participate in due process hearings.
    Implicit in the requirement that hearing decisions be made
available to the public, is the requirement that they be made
available within a reasonable amount of time. Therefore, no
specific time requirement is needed in the regulation.
    Changes: Paragraph (a)(3) of this section is changed to require
disclosure at least 5 business days before the hearing.

Finality of Decision; Appeal; Impartial Review (Sec. 300.510)

    Comment: Several comments regarding the availability of SEA
hearing decisions, asked that such decisions be distributed
directly to various organizations and allow parents to receive the
findings under Sec. 300.510(b)(2)(vi) in an electronic format.
Other comments requested that hearing officers be allowed to amend
decisions once they are final to correct for technical errors,
similar to Rule 60 of the Federal Rules of Civil Procedure.
    One commenter asked that Notes 1 and 2 be incorporated into the
regulation itself and several commenters pointed out that the
reference in Sec. 300.510(b)(2)(iii) should be to Sec. 300.509 not
Sec. 300.508.     Discussion: There were two typographical errors
in the proposed regulation with respect to references to other
sections. In Sec. 300.510(b)(2)(iii) the reference to Sec. 300.508
should be to Sec. 300.509 consistent with the prior regulatory
reference. In Sec. 300.510(d), the reference to Sec. 300.511 should
be to Sec. 300.512, also consistent with the prior regulatory
reference.     The reference in Sec. 300.510(b)(vi) to written
findings and decision should be changed to be consistent with Sec.
300.509(a)(5) and allow the choice of electronic or written
findings of fact and decision.
    It is not necessary to regulate on whether hearing officers are
allowed to amend their decisions for technical errors. This matter
is left to the discretion of hearing officers and States; however,
proper notice should be given to parents if State procedures allow
for amendments and a reconsideration process may not delay or deny
parents' right to a decision within the time periods specified for
hearings and appeals.
    It has been the Department's position that the SEA may conduct
its review either directly or through another State agency acting
on its behalf. However, the SEA remains responsible for the final
decision on review. In addition, all parties have the right to
continue to be represented by counsel at the State administrative
review level, whether or not the reviewing official determines that
a further hearing is necessary. If the reviewing official decides
to hold a hearing to receive additional evidence, the other rights
in Sec. 300.509 relating to hearings also apply. However, in light
of the general decision to remove all notes from these final
regulations, Notes 1 and 2 would be removed.
    Changes: In Sec. 300.510(b)(2)(iii) the reference to Sec.
300.508 has been changed to Sec. 300.509. In Sec. 300.510(d), the
reference to Sec. 300.511 has been changed to Sec. 300.512. The
reference in Sec. 300.510(b)(2)(vi) to written findings and
decision has been changed to be consistent with Sec. 300.509(a)(5)
and allow the choice of ``electronic or written findings of fact
and decision.'' Notes 1 and 2 have been removed.

Timelines and Convenience of Hearings and reviews (Sec. 300.511)

    Comment: A few comments were received regarding Sec. 300.511
which requested that (1) the 45 and 30 day timelines be specified
as 45 and 30 school days; (2) it be clear that hearing officers
have discretion to deny requests for extensions of time since
extensions may delay hearings for a long time; and (3) delete Sec.
300.511(a) or change it to make the SEA responsible for timelines.
    Discussion: There is not sufficient consensus or evidence of
need to change the long-standing interpretation of the hearing and
review timelines from calendar days to ``school days.'' In
addition, the potential impact of no ``school days'' during the
summer months would make the delay in parents' access to due
process hearings and decisions unreasonable.
    The use of the word ``may'' instead of ``shall'' in
Sec. 300.511(c), means that the granting of specific extensions of
time are at the discretion of the hearing or review officer. It is
not necessary to clarify that this discretion means that requests
for extensions can be denied as well as granted since this is
implicit in the regulation.
    There is no need to change the regulation to reflect the
State's responsibility for compliance with timelines because in
addition to the language in this regulation, Sec. 300.600 continues
to hold the State ultimately responsible for noncompliance.
    Changes: None.

Civil Action (Sec. 300.512)

    Comment: A commenter pointed out that Sec. 300.512 had a few
typographical errors since the reference to Sec. 300.510(b)(2)
should be to Sec. 300.510(b)(1) and the reference to Sec.
300.510(e) should be to Sec. 300.510(b).
    Discussion: There were typographical errors in this section in
the NPRM, however the reference to Sec. 300.510(b)(2) should be to
Sec. 300.510(b) and the reference to Sec. 300.510(e) should be to
Sec. 300.510(b).
    Changes: The reference to Sec. 300.510(b)(2) has been changed
to Sec. 300.510(b) and the reference to Sec. 300.510(e) has been
changed to Sec. 300.510(b).

Attorneys' Fees (Sec. 300.513)

    Comment: Many commenters requested that Sec. 300.513 include
the provisions from sections 615(i)(3)(D) and (F) of the Act
regarding instances where attorneys fees are prohibited or may be
reduced. Several commenters also asked that a note be added to
state that attorneys' fees may be awarded if

[[Page 12615]]

an IEP team meeting occurs after a hearing request but before the
hearing.
    Several commenters requested that the note on hearing officers
be deleted, stating that the awarding of attorneys' fees should be
left to the courts. One commenter stated that if hearing officers
are allowed to award attorneys' fees, they should be trained in,
and use, the criteria used by Federal courts in determining
attorneys' fees.     One commenter also asked that Sec. 300.513(b)
be deleted.     Discussion: By inserting all the statutory
provisions regarding attorneys' fees into the regulations, most of
the suggestions will be adequately addressed and additional clarity
will be added.
    Based upon the absence of consensus, the Department will
continue to allow maximum flexibility to States for structuring the
process by which parents who are prevailing parties under Part B of
the Act may request attorneys' fees reimbursement.
    It is important to maintain paragraph (b)(1) of this section,
because the limited Federal resources under the Act should be used
to provide special education and related services and not be used
to promote litigation of disputes. Further, that paragraph has been
modified to make it clear that the prohibition against using Part
B funds for attorney's fees also applies to the related costs of a
party in an action or proceeding, such as depositions, expert
witnesses, settlements, and other related costs. In addition, a new
paragraph (b)(2) of this section has been added to clarify that the
prohibition in paragraph (b)(1) does not preclude a public agency
from using funds under Part B of the Act to conduct an action or
preceding under section 615 of the Act, such as the cost of paying
a hearing officer and providing the place for conducting the action
or proceeding.     In light of the general decision to remove all
notes from the final regulations under the Act, the note following
this section in the NPRM would be removed. The proposed note was
merely intended to suggest that States could choose as a matter of
State law to permit hearing officers to award attorneys' fees to
parents who are prevailing parties under Part B of the Act, and not
to require that they do so, or imply that IDEA would be the source
of the authority for granting hearing officers that role. If a
State allows hearing officer's to award attorney's fees,
requirements regarding training on attorneys fees would be a State
matter.
    Changes: Paragraph (b) has been revised to prohibit use of
funds provided under Part B for related costs. The regulation has
been amended to include all of the provisions of section
615(i)(3)(C)-(G) of the Act. The note following this section has
been removed.

Child's Status During Proceedings (Sec. 300.514)

    Comment: Although a few commenters agreed with the provision in
Sec. 300.514(c), many commenters objected to it. Section 300.514(c)
states that if the decision in a due process hearing or
administrative appeal agrees with the parents that a change of
placement is appropriate, the decision must be treated as an
agreement between the State or local agency and the parents for
purposes of maintaining the child's placement pursuant to Sec.
300.514(a). Commenters saw this provision as one-sided and
suggested that it be limited to where there is agreement by all the
parties. In the alternative, commenters suggested that the
provision be deleted and that decisions as to whether a hearing
officer's or review official's decision constitutes an agreement be
left to the courts.
    Commenters requested a definition of the term ``current
placement,'' with some suggesting that the definition include the
current location where the child receives services.
    Some of the comments indicated confusion as to which
proceedings are referenced in Sec. 300.514. Commenters were unsure
whether the regulation references only the administrative and
judicial due process proceedings established by section 615 of the
Act, or also the State complaint procedures established by Secs.
300.660-300.662.
    Commenters requested that when referring to parents in this
regulation, students who have reached the age of majority also be
referenced. Further clarification also was requested regarding a
parent's right to remove his or her child from the current
placement and place them elsewhere during the pendency of the
applicable proceedings if the parent believes FAPE is not being
provided.     Discussion: The provisions maintaining the child's
current educational placement pending proceedings regarding a
complaint is a right afforded to parents to protect children with
disabilities from being subjected to a new program that parents
believe to be inappropriate. The provisions are intended to apply
only to the due process proceedings and the subsequent civil
action, if any, brought under section 615 of the Act, and not to
the State complaint procedures in Secs. 300.660-300.662, which are
authorized by the General Education Provisions Act. This position
is consistent with the Department's prior interpretation.
    It is important to note that these provisions would only apply
where there is a dispute between the parent and the public agency
that is the subject of administrative or judicial proceedings. If
there is no such dispute that is the subject of a proceeding, then
the placement may be changed and this section does not apply.
    This section does not permit a child's placement to be changed
by the public agency during proceedings regarding a complaint,
unless the parents and agency agree otherwise. While the placement
may not be changed unilaterally by the public agency, this does not
preclude the parent from changing the placement at their own
expense and risk. It is also important to note that this provision
does not preclude the agency from using its normal procedures for
dealing with children who are endangering themselves or others,
including, as appropriate to the circumstances, seeking injunctive
relief from a court of competent jurisdiction. In addition, even
where there is disagreement between the parents and the public
agency, the provisions of Sec. 300.521 still allow a hearing
officer to change the placement of a child with a disability who is
substantially likely to injure self or others to an appropriate
interim alternative educational setting for not more than 45 days.
    Paragraph (c) is based on long-standing judicial interpretation
of the Act's pendency provision that when a State hearing officer's
or State review official's decision is in agreement with parents
that a change in placement is appropriate, that decision
constitutes an agreement by the State agency and the parents 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, 371 (1985); Susquentia School District v.
Raelee S., 96 F.3d 78, 84 (3rd Cir. 1996); Clovis Unified v. Office
of Administrative Hearings, 903 F.2d 635, 641 (9th Cir. 1990).
Paragraph (c) of this section incorporates this interpretation.
However, this provision does not limit either party's right to seek
appropriate judicial review under Sec. 300.512, it only shifts
responsibility for maintaining the parent's proposed placement to
the public agency while an appeal is pending in those instances in
which the State hearing officer or State review official determines
that the parent's proposed change of placement is appropriate.

[[Page 12616]]

    The term ``current placement'' is not readily defined. While it
includes the IEP and the setting in which the IEP is implemented,
such as a regular classroom or a self-contained classroom, the term
is generally not considered to be location-specific. In addition,
it is not intended that a child with disabilities remain in a
specific grade and class pending an appeal if he or she would be
eligible to proceed to the next grade and the corresponding
classroom within that grade.     There is no need to add a
reference to children with disabilities who reach the age of
majority in this regulation. The transfer of parental rights at the
age of majority is discussed in another section of the regulations,
Sec. 300.517, and will not be referenced in every other section to
which it applies.
    There is also no need to address the parents' ability to change
the child's placement unilaterally at their own expense since this
issue is addressed in Sec. 300.403.
    Consistent with the general decision to remove all notes from
these regulations, the note would be removed.
    Changes: The note has been removed.

Surrogate Parents (Sec. 300.515)

    Comment: Several commenters suggested that the regulation
include clear procedures for terminating surrogate parents who do
not appropriately fulfill their responsibilities and include in
those procedures the consideration of the student's opinion.
Relatedly, some commenters recommended that the regulation state
that LEAs cannot impose sanctions or threaten sanctions if
surrogate parents make decisions the LEA opposes.
    There were also comments regarding the selection of surrogate
parents. Some commenters asked that surrogates not be employees of
private agencies who are involved in the education or care of the
child since there is a potential conflict of interest where the
public agency contracts with and pays the private agencies to
provide services for the child. Another suggestion was that child
welfare workers not be surrogate parents, but that foster parents
be allowed, if qualified. One commenter agreed that representatives
of the welfare system should not be surrogate parents but believed
foster care representatives should also be barred. One commenter
asked that the regulation require public agencies to assign
surrogate parents designated by a parent, provided such persons
meet the qualifications, thereby giving parents the right to
voluntarily designate a surrogate parent and rescind such
designation at any time.
    Some comments also stated that Sec. 300.19(b)(2) conflicts with
Sec. 300.515 because in Sec. 300.515 the appointment of a surrogate
parent is mandatory if the child is a ward of the State, regardless
of whether the child has a foster parent who meets the ``parent''
criteria in Sec. 300.19(b)(2). The comments recommended including
an exception from the mandate of surrogate parent appointments for
any ward of the State whose foster parent is a parent in accordance
with
Sec. 300.19(b)(2).
    Discussion: There is insufficient evidence of a wide-spread
problem of irresponsible surrogate parents which would require
regulatory procedures for termination. Therefore, the issue of the
need for procedures for termination of surrogates is left to the
discretion of States. There is also insufficient evidence of public
agency retaliation against surrogate parents. Since there are other
civil rights statutes and regulations that prohibit discrimination,
including retaliation, against individuals who exercise their
rights under Federal law, including the right of individuals to
assist individuals with disabilities without retaliation or
coercion, there is no need to address this issue in this
regulation.
    Proposed paragraph (c)(2)(i) of this section reflected the
statutory requirement at section 615(b)(2) that a surrogate parent
not be an employee of the SEA, LEA or any other agency that is
involved in the education or care of the child. It is very
important that the surrogate parent adequately represents the
educational interest of the child, and not the interests of a
particular agency. In the case of other governmental agencies, even
agencies that are not involved in the education of the child, there
is the possibility of a conflict between the interest of the child
and those of the employee of the agency because some educational
decisions will have an impact on whether an educational agency or
some other governmental agency will be responsible for paying for
services for the child. In situations where a child is in the care
of a nonpublic agency that has no role in the education of the
child, however, an employee of that agency may be the person best
suited to serve as a surrogate for the child because of his or her
knowledge of the child and concern for the child's well-being and
would not, simply by virtue of his or her employment situation,
have an interest that could conflict with the interest of the
child. In such a case, that individual should not be prohibited
from serving as a surrogate as long as he or she had no other
interest that conflicts with the interest of the child and has
knowledge and skills that will ensure adequate representation of
the child.
    Paragraph (a) of this section requires that the public agency
ensure that the rights of the child are protected if the child is
a ward of the State. Paragraph (b) sets out that the duty includes
a determination of whether the child needs a surrogate parent and
if so, the assignment of one. The proposed regulation at Sec.
300.19(b)(2) has been renumbered at Sec. 300.20 and now clarifies
that the definition of a parent may include a foster parent unless
State law prohibits it, and if certain other conditions are met. In
situations where a child who is a ward of the State has a foster
parent who meets the definition of parent in Sec. 300.20 and the
foster parent is acting as the parent, the public agency should
determine if there is a need for a surrogate parent, and whether
further steps are necessary to ensure that the rights of the child
are protected. In most cases where the foster parent meets the
definition of a parent and is acting as the parent, there would be
no need to appoint a surrogate, unless the agency determined that
in the particular circumstances of the case a surrogate was
necessary to ensure that the rights of the child were protected.  
  Changes: Paragraph (c) has been amended to permit a public agency
to appoint as a surrogate an employee of a nonpublic agency that
provides only non-educational care to the child. Paragraph (d)(1)
has been deleted. Paragraph (d)(2) has been redesignated as
paragraph (d) and the reference to paragraph (d)(1) is deleted.

Transfer of Parental Rights at Age of Majority (Sec. 300.517)

    Comment: There were several comments on the transfer of rights
for incarcerated youths which requested clarification whether the
transfer occurs regardless of age.
    Commenters also requested clarification of what the transfer of
rights to the child means for the parent, i.e., does the parent
retain the right to any of the due process protections.
    Commenters suggested that Sec. 300.517 should refer to
Sec. 300.347(c) which deals with when and how students are to be
notified of their impending transfer of rights. There was also a
request for clarification regarding parental involvement in
modifications to IEPs or placements when there is a bona fide
security or compelling penological interest.
    Commenters also requested guidelines for determining if a
student cannot provide informed consent with respect

[[Page 12617]]

to his or her educational program. Some interpreted the proposed
regulation as requiring a competency determination prior to every
transfer, deemed this unreasonable, and proposed that notice to
parents is sufficient. Some recommended that the IEP team make the
decision of whether a competency assessment is required and appoint
a surrogate when the team decides the child is not able to provide
informed consent for his or her educational program. Several
commenters asked why the term ``another appropriate individual''
was used instead of ``guardian or surrogate parent'' as defined in
Sec. 300.515.
    Some commenters asked that the Department allow a State which
doesn't have a law regarding transfer of rights at age of majority
to implement an interim policy pending legislative change.
    Commenters also recommended that an independent advocate, not
a teacher or LEA administrator but who is paid by the LEA, be
available for each student to whom rights have transferred, to be
present at all IEP discussions when parents are not present so that
coercion by the school is prevented.
    Discussion: It is not necessary to delineate the specific
parental rights that transfer under this section because the
statute and regulations fully set out the rights afforded to
parents under Part B. The statute and paragraph (a)(1) of this
section allow States, under State law, to transfer all parental
rights to children with disabilities who reach the age of majority,
with the exception of the right to notice which is both retained by
the parents and transfers to the student. For children with
disabilities who are incarcerated in adult or juvenile Federal,
State or local correctional institutions, the State, under State
law, may transfer all parental rights, including the notice rights,
at the age of majority.
    The IEP provisions regarding notice prior to the age of
majority, do not have to be explained or referenced in this section
of the regulations. While the requirement in Sec. 300.347(c) that
beginning at least one year before the student reaches the age of
majority under State law the IEP must include a statement that the
student has been informed of the rights that will transfer to him
or her upon reaching the age of majority, does relate to this
regulation, it is separate and distinct from the notice provisions
in Sec. 300.517(a)(3) requiring notice to the parent and child at
the time of transfer--when the child actually reaches the age of
majority.
    This regulation does not need to address specifically the right
to parental participation in IEP meetings for youth with
disabilities convicted as adult and incarcerated in adults prisons
whose parental rights have not transferred at the age of majority.
These individuals would have the same rights as other youth with
disabilities whose parental rights have not transferred as set out
in section
Sec. 300.345. There is also no further need to address IEP and
placement requirements that do not apply to modifications of IEP or
placement for youth with disabilities convicted as an adult and
incarcerated in an adult prison because the provisions are already
set out at Sec. 300.311(c)(2).
    The requirement in paragraph (a) of this section regarding
State provision for transfers of parental rights at the age of
majority under State law generally does not require a statutory
change if the State already has a State law regarding age of
majority that applies to all children (except in cases of
incompetency). A State may not transfer rights at age of majority
in the absence of a State law on age of majority that applies to
all children, except those children determined incompetent under
State law.
    With regard to the transfer of rights in situations where the
competency of an individual with a disability is challenged,
currently, most States have laws, rules, and procedures that allow
a general determination of incompetency for an individual with a
disability who has reached the age of majority. These laws and
procedures usually require a formal proceeding and provide for the
appointment of a general guardianship where the individual is found
not to be competent under the applicable legal standard. The
transfer of the Part B parental rights under State law must be
consistent with State competency laws, that is, where parental
rights transfer to the individual at the age of majority, and the
individual is found to be incompetent, the appointed guardian would
exercise Part B rights pursuant to their guardianship. In some
States, there may be additional laws and procedures that allow for
a lesser determination of competency for specific purposes, such as
competency for providing informed consent with respect to the
individual's educational program.     The special rule at Sec.
300.517(b) only applies to States who, under State law, allow for
this lesser determination of competency--a determination of the
ability to provide informed consent with respect to the educational
program of the student. Under the provision in the special rule
that specifies appointing ``the parent, or, if the parent is not
available, another appropriate individual,'' a guardian or
surrogate parent could be an appropriate individual to represent
the educational interests of the student.
    Changes: Paragraph (b) has been revised to make clear that it
only applies if a State has a State mechanism lesser competency
proceedings.

Discipline in general

(For a general overview of major changes in the discipline
provisions from the NPRM to these final regulations, please refer
to the preamble.)

    Comment: Several commenters asked that the regulations include
only the statutory language with respect to all provisions
concerning discipline. The vast majority of commenters, however,
asked that the regulations provide more specificity than the
statute regarding discipline. In many cases, these commenters
provided proposals for how the regulations should interpret the
statute. Others asked that the regulations give schools the ability
to deal differently with children with articulation problems and
those with behavior disorders.     Discussion: Including only the
statutory language on discipline in the final regulations, would
not be helpful. The vast majority of the comments received
concerning discipline demonstrate overwhelmingly the need to
regulate in order to clarify the statutory language. To rely solely
on the statutory language would encourage needless litigation.
There is no statutory basis for treating children with disabilities
differently under the discipline provisions because of the nature
of their disability.
    Change: None.

Authority of school personnel (Sec. 300.520)

    Comment: A number of commenters were concerned about the
provisions in the proposed regulations that required development of
behavioral assessment plans and determinations regarding
manifestation after the child had been removed for more than 10
school days in a school year because they believed that these
responses should only be required if the removal constituted a
``change of placement.'' These commenters asked that the term
``change of placement'' be defined in the regulation as indicated
in Note 1 to the proposed regulations, in order to incorporate what
they saw as the law's intent to allow building-level administrators
some discretion to temporarily remove a child from their current
educational placement if necessary to prevent disruption or ensure
the safety of other children. Many of these commenters asked that

[[Page 12618]]

the regulations clarify the distinction between removal of a
student for disciplinary reasons and removal of a student for
behavior management purposes.
    Some commenters supported Note 1 as it clarified that schools
continued to have the ability to remove children with disabilities
from their current placement for limited periods of time when
necessary, even though the child had previously been removed
earlier that school year. Some commenters asked who is contemplated
to be making the determination regarding a change in placement.
    Some commenters proposed modifications to the change of
placement standard described in Note 1 to this section to recognize
that there could be circumstances when continued short term
suspensions may be used without reconvening the IEP team if the IEP
team has addressed the behavior through changes to the IEP or
placement and agrees that removal from the child's current
educational placement is an appropriate intervention.
    Other commenters believed that the regulations should provide
even more latitude to schools about when to convene an IEP meeting
to review or develop a behavior assessment plan and conduct a
manifestation determination, when for example, the behavior
occurred repeatedly, or involved minor offenses. Some of these
commenters thought that the IEP team should have the discretion to
determine the need for a behavioral assessment or behavioral
intervention plan on an individual basis.     Some commenters
believed that paragraph (c) of the proposed regulations (and
similar provisions in Secs. 300.121 and 300.523(b)) exceed
statutory authority by permitting school authorities to remove a
child with disabilities from the child's current educational
placement for up to 10 school days in a school year before the
behavior assessment plan, services, or manifestation determination
must be done. Many of these commenters indicated that any
suspension is an indication that the child with a disability is
having problems and the school should be required to initiate the
behavioral assessment plan at the earliest indication of
difficulty. For the same reasons, these commenters asked that the
regulations not include references to suspensions without the
provision of educational services.
    Some commenters basically agreed with the position taken in
paragraph (c) and Secs. 300.121 and 300.523(b) but believed that
the content of Note 2 should be strengthened by adding support for
review of the IEP for any short suspension that in the judgment of
the parent or other member of the IEP team, requires
reconsideration of behavioral interventions or other IEP revisions.
Some commenters noted that paragraph (c) needed further
clarification, as school personnel cannot reasonably be expected to
predict future conduct of a child.     Discussion: The obligation
to conduct a functional behavioral assessment or to review an
existing behavioral intervention plan is not linked in the statute
only to situations that constitute a ``change of placement.'' As a
policy matter, 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, IDEA now 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, ``strategies, including positive behavioral
interventions, strategies, and supports to address the behavior.''
(section 614(d)(3)(B)(i)).
    On the other hand, there is merit to the argument that schools
should not have to repeatedly convene IEP team meetings to address
the behavior of children who already have behavior intervention
plans, unless there is a need. The position that services and the
development of a behavioral assessment plan are not triggered if a
child with disabilities is removed from his or her current
placement for 10 school days or less in a given school year is
based on the language of the statute at section 612(a)(1)(A) and
section 615(k)(1)(B), as interpreted in light of the legislative
history of the Act, which notes that the statute was designed to
``reinforce and clarify the understanding of Federal policy on this
matter, which is currently found in the statute, case law,
regulations, and informal policy guidance.'' (S. Rep. No. 105-17,
p. 28; H.R. Rep. No. 105-95, p. 108 (1997)).
    In light of the Department's longstanding position that
children with disabilities could be removed from their current
educational placement for not more than 10 consecutive school days
without educational services, the 10 day in a school year window
before the educational services and behavioral assessment plan are
triggered is a reasonable interpretation of the statute. This
interpretation gives school officials reasonable flexibility for
dealing with minor infractions of school rules by children with
disabilities, yet ensures that children with disabilities are not
cut off from educational services and that their behavior is
appropriately addressed.     In order to clarify the ability of
school personnel to temporarily remove a child from the current
educational placement when necessary to ensure the safety of other
children or to prevent disruption of the learning environment, the
concept of ``change of placement'' that was referred to in Note 1
to this section in the NPRM should be incorporated into the
regulations. The Department has long interpreted the IDEA to permit
schools to remove a child with a disability from his or her current
placement when necessary, even though the child had previously been
removed earlier that school year, as long as the removal does not
constitute a ``change of placement.''
    The ``change of placement'' description will also make clear
that the new statutory language at section 612(k)(1)(A) 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, does not permit using repeated
disciplinary removals of 10 school days or less as a means of
avoiding the normal change of placement protections under Part B.
Whether a pattern of removals constitutes a ``change of placement''
would be determined on a case by case basis by the public agency
and subject to review through due process and judicial proceedings.
The regulation concerning change of placement would only apply to
removals for disciplinary reasons.     If a child who is being
removed from his or her current educational placement has already
been the subject of a special IEP team meeting to develop a
behavioral intervention plan or review its implementation, the IEP
team should not have to meet to review that plan as long as the
team members individually review the plan, unless one or more of
the team members believe that the plan needs to be modified. In
this way, the IEP team will be monitoring the implementation of the
behavioral intervention strategies in the IEP or behavioral
intervention plan but would not have to repeatedly reconvene each
time removals from the child's current placement are carried out.
    In light of the comments received and the reasons previously
discussed, proposed Note 2 would be deleted.
    Comments concerning the timing of manifestation determinations,
and changes made in response to those

[[Page 12619]]

comments are addressed in this attachment under Sec. 300.523.    
Change: A new section Sec. 300.519 has been added regarding change
of placement in the context of removals under Secs.
300.520-300.529, reflecting concepts from proposed note 1. Section
300.520(a)(1) has been revised to clarify that more than one
suspension each of which may be for up to 10 school days would be
permitted in a school year, as long as repeated suspensions do not
constitute a change of placement, and the removals are consistent
with treatment of similarly situated children without disabilities.
Paragraph (a)(1) of this section also has been revised to clarify
the need to provide services when a child with a disability has
been removed for more than 10 school days in a school year. Section
300.520(b) has been revised to require, when a child is first
removed for more than 10 school days in a school year and for
subsequent removals that constitute a change in placement, an IEP
team meeting to develop a functional behavioral assessment plan and
a subsequent behavioral intervention plan or to review an existing
behavioral intervention plan and its implementation. Section
300.520(c) has been revised to specify that if the child is
subsequently removed and that removal is not a change in placement,
the IEP team does not have to meet to review the behavioral
intervention plan unless one or more team members believes that
modifications are needed to the plan or the plan's implementation.
Proposed Notes 1 and 2 have been deleted.     Comment: A number of
commenters had suggestions for clarifications of the terms used in
paragraph (a). Some wanted the regulations to specify whether days
of suspension includes days of in-school suspension, bus
suspensions, or portions of a school day. Others asked whether an
in-school suspension would be considered a part of the days of
suspension if the student continued to receive the academic
instruction called for in the student's IEP during that period.
Others suggested that the term ``suspension'' be revised to specify
that school personnel can order a short term suspension of 10 or
fewer consecutive school days or cumulative days which may exceed
10 school days in a school year but do not constitute a change in
placement.     Discussion: An in-school suspension would not be
considered a part of the days of suspension addressed in paragraph
(a) of this section as long as the child is afforded the
opportunity to continue to appropriately progress in the general
curriculum, continue to receive the services specified on his or
her IEP and continue to participate with nondisabled children to
the extent they would have in their current placement. Portions of
a school day that a child had been suspended would be included in
determining whether the child had been removed for more than 10
cumulative school days or subjected to a change of placement under
Sec. 300.519.
    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 is a part of the child's
IEP, a bus suspension would be treated as a suspension under Sec.
300.520 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 all other services will be
delivered. If the bus transportation is not a part of the child's
IEP, a bus suspension would not be a suspension under Sec. 300.520.
In those cases, the child and his or her parents would have the
same obligations to get to and from school as a nondisabled child
who had been suspended from the bus. However, public agencies
should attend to whether the behavior on the bus is similar to
behavior in a classroom that is addressed in an IEP and whether bus
behavior should be addressed in the IEP or behavioral intervention
plan for the child.
    It is important that both school personnel and parents
understand that school personnel may remove a child with a
disability from his or her current placement for not more than 10
school days at a single time, but that there is no specific limit
on the number of days in a school year that a child may be removed.
(See, discussion of Sec. 300.121 regarding when services must be
provided.) However, school authorities may not remove a child with
disabilities from the child's current educational placement if that
removal constitutes a change of placement under Sec. 300.519,
unless they are specifically authorized to do so under Sec.
300.520(a)(2) (school personnel unilateral removal for weapons and
drug offenses) or unless the parents of the child do not object to
a longer removal or the behavior is determined to not be a
manifestation of the child's disability. If a removal does
constitute a change of placement under Sec. 300.519 that is not
permitted under Sec. 300.520(a)(2), school personnel must follow
appropriate change of placement procedures, including prior parent
notice, and the right of the parent to invoke the ``stay-put'' rule
of Sec. 300.513.     Change: Paragraph (a)(1) of this section is
revised to specify that school personnel may order removals of a
child with a disability from the child's current placement for not
more than 10 consecutive school days so long as the removal does
not constitute a change in placement under Sec. 300.519.
    Comment: A number of commenters were concerned that the term
``carries'' in paragraph (a)(2)(i) is too narrow and wanted the
regulation to also cover the child who was in possession of a
weapon at school, including instances when the child obtained the
weapon at school. Others thought that paragraph (a)(2)(i) should
apply to situations when a child knowingly carries a weapon to
school, similar to the standard in paragraph (a)(2)(ii) regarding
knowing possession or use of illegal drugs.
    Discussion: The statutory language ``carries a weapon to school
or to a school function'' is ambiguous as to whether it includes
instances in which a child acquires a weapon while at school. In
light of the clear intent of Congress in the Act to expand the
authority of school personnel to immediately address weapons
offenses at school, the Department's opinion is that this language
also covers instances in which the child is found to have a weapon
at school that he or she obtained while at school.
    Change: None.
    Comment: A number of commenters asked for more clarification
about the various provisions regarding removals from a child's
current placement, suspensions of 10 days or less, 45-day
placements, and, for children whose behavior is determined not a
manifestation of their disability, other disciplinary measures,
including the possibility of expulsion, related to one another. For
example, some commenters asked for specificity about whether a
child could be subject to a disciplinary suspension, including the
45-day interim alternative educational setting placements more than
once in a school year.     Some commenters asked whether the
behavior assessment plan and manifestation determination need to be
done within the first 10 days of a 45-day placement. Some asked
whether schools can keep children with disabilities in the 45-day
placement even if the behavior is determined to be a manifestation
of the child's disability, or even if program adjustments in the
child's ``current placement'' are agreed on before the expiration
of the 45-day placement.
    Commenters also asked how the 45-day placement rules should be
applied when the behavior leading to the removal occurs in the last
few days of the school year. A few asked how 45-

[[Page 12620]]

day placements differ from any other removal for more than 10 days
or whether 45-day placements should merely be considered exceptions
to the ``stay put'' provision. Others also inquired about the total
number of days that a child with disabilities could be suspended in
a year.     Others asked for clarity about whether school districts
could suspend beyond the 10 day and 45 day periods mentioned in
this section and whether children with disabilities could ever be
expelled. Some commenters asked that the regulations emphasize the
optional nature of the ability to use the 45-day placement and
encourage the return of children with disabilities to their regular
educational placement at the earliest appropriate time.
    Discussion: If parents and school personnel agree about a
proposed change of placement for disciplinary reasons, the rules
concerning the amount of time that a child with a disability may be
removed from his or her educational placement in Secs. 300.520 and
300.521 do not have to be used. However, services must be provided
consistent with the requirements of Sec. 300.121(a).
    These regulations do not prohibit a child with a disability
from being subjected to a disciplinary suspension, including more
than one placement in a 45-day interim alternative educational
setting in any given school year, if that is necessary in an
individual case (e.g., a child might be placed in an alternative
setting for up to 45 days for bringing a weapon to school in the
fall and for up to 45 days for using illegal drugs at school in the
spring).
    If a child engages in one of the behaviors identified in Sec.
300.520(a)(2) (carrying a weapon to school or a school function or
knowing possession or use of illegal drugs or selling or soliciting
the sale of a controlled substance at school or a school function),
the school may first remove the child for up to 10 consecutive
school days (providing services as necessary under Sec. 300.121(d))
while convening the IEP team to determine the interim alternative
educational setting under Sec. 300.522. At the end of that 10 day
period, or earlier, if feasible, the child would be placed into the
interim alternative educational setting for up to 45 days.
    The placements contemplated under Secs. 300.520(a)(2) and
300.521 (removal by hearing officer based on determination of
substantial likelihood of injury in current placement) are specific
exceptions to the obligation to maintain the child in the child's
current placement if the parent disagrees with a proposed change of
placement and therefore, may continue even if the child's behavior
is determined to be a manifestation of the child's disability. The
purpose of Secs. 300.520(a)(2) and 300.521 placements is to enable
school personnel to ensure learning environments that are safe and
conducive to learning for all and to give those officials and
parents the opportunity to determine what is the appropriate
placement for the child.
    Interim alternative educational settings under Sec.
300.520(a)(2) are limited to 45 calendar days, unless extended
under Sec. 300.526(c) for a child who would be dangerous to return
to the child's placement before the removal. The fact that school
is in recess during a portion of the 45 days does not ``stop the
clock'' on the 45 days during the school recess.
    There is no specific limit on the total number of days during
a school year that a child with disabilities can be suspended. In
addition, as explained in more detail in the discussion under Sec.
300.524, if a child's behavior is determined not to be a
manifestation of the child's disability, the child may be
disciplined in the same manner as nondisabled children, including
suspension and expulsion, except that FAPE, consistent with Sec.
300.121(d), must be provided.
    The 45-day interim alternative educational settings are not
mandatory. If the parents agree with school officials to a change
in the child's placement there is no need to use a 45-day interim
alternative educational setting. In some instances school officials
or hearing officers may determine that a shorter period of removal
is appropriate and that a child can be returned to his or her
current educational placement at an earlier time.
    Change: None.
    Comment: A number of commenters asked for guidance regarding
the terms in paragraph (b) regarding functional behavioral
assessment, and behavioral intervention plan. Some asked that
functional behavioral assessment should not be construed to be
overly prescriptive. These commenters believed that behavioral
assessments should be flexible so that the team can consider the
various situational, environmental and behavioral circumstances
involved.
    Some commenters proposed that a functional behavioral
assessment be defined as a process which searches for an
explanation of the purpose behind a problem behavior, and that
behavior intervention plan be defined as IEP provisions which
develop, change, or maintain selected behaviors through the
systematic application of behavior change techniques. Some
commenters suggested that positive behavioral interventions and
strategies should include strategies and services designed to
assist the child in reaching behavioral goals which will enhance
the child's learning and, as appropriate, the learning of others.
Some asked whether a functional behavior assessment is an
evaluation requiring parent consent before it is done. Others asked
whether a behavioral assessment could be a review of existing data
that can be completed at that IEP meeting. Some asked whether a
behavioral intervention plan needed to be a component of a child's
IEP, and the relationship of this to the positive behavioral
interventions mentioned in the IEP sections of the regulations.
    Discussion: In the interests of regulating only when necessary,
no change is made regarding what constitutes a functional
behavioral assessment, or a behavioral intervention plan. IEP teams
need to be able to address the various situational, environmental
and behavioral circumstances raised in individual cases. A
functional behavioral assessment may be an evaluation requiring
parent consent if it meets the standard identified in Sec.
300.505(a)(3). In other cases, it may be a review of existing data
that can be completed at the IEP meeting called to develop the
assessment plan under paragraph (b)(1) of this section. If under
Sec. 300.346 (a) and (c), IEP teams are proactively addressing a
child's behavior that impedes the child's learning or that of
others in the development of IEPs, those strategies, including
positive behavioral interventions, strategies and supports in the
child's IEP will constitute the behavioral intervention plan that
the IEP team reviews under paragraph (b)(2) of this section.
    Change: None.
    Comment: Some commenters stated that paragraph (b)(1) should
not require the development of appropriate behavioral interventions
within 10 days of removing a child from the current placement as it
is operationally unworkable. Some commenters asked that the
regulations also require that the IEP team determine whether an
existing behavior plan has been fully implemented, and if not, take
steps to ensure its implementation without delay. Other commenters
stated that the term suspension'' in paragraph (b)(1) should be
replaced with ``removal.''     Discussion: Paragraph (b)(1) in the
NPRM was not intended to require the development of appropriate
behavioral interventions within 10 days of

[[Page 12621]]

removing a child from the current placement. Instead, it was
intended to require that the LEA implement the assessment plan and
ensure that the IEP team, after that assessment, develops
appropriate behavioral interventions to address the child's
behavior and implements those interventions as quickly as possible.
Because it is unlikely that these steps could occur at the same
time, a change should be made to the regulations to clarify that
the LEA convene an IEP meeting, within 10 business days of removing
the child, to develop an assessment plan, and, as soon as
practicable on completion of that plan, to develop appropriate
behavioral interventions to address that behavior. This section
also would be revised to clarify when the IEP team would have to
meet in instances in which there is an existing behavioral
intervention plan. The commenters are correct that the term
``removal'' should be used in paragraph (b)(1) rather than
``suspension'' because it applies to all disciplinary actions under
Sec. 300.520(a).     Change: Paragraph (b) has been amended by
replacing ``suspension'' with ``removal'' and to specify that the
LEA convene an IEP meeting to develop an assessment plan, and as
soon as practicable on completion of that plan, to develop
appropriate behavioral interventions to address that behavior.
    Comment: Some commenters asked that the regulations permit
school personnel, under Sec. 300.520(a)(2), and hearing officers,
under Sec. 300.521, to remove for up to 45 school days as opposed
to calendar days. Other commenters asked that the regulations use
the term ``calendar days'' for all timelines in this section.
    Some commenters asked that the regulations permit school
personnel to remove to a 45-day interim alternative educational
setting for an assault. Other commenters asked that the 45-day
limitation not apply to behavior that is determined to be not a
manifestation of the child's disability.
    Discussion: As explained in detail in the discussion concerning
the regulatory definition of ``day,'' the statute uses the term
``school day'' when that is intended. It also would be
inappropriate to use ``calendar days'' for all timelines in this
section as the statute uses the term ``10 school days'' when that
is intended.
    The statute does not authorize school personnel to remove
children with disabilities to an interim alternative educational
setting for 45 days in cases of an assault. However, under Sec.
300.521, a public agency may ask a hearing officer to order a child
removed to an interim alternative educational setting for not more
than 45 days if maintaining the child in the current placement is
substantially likely to result in injury to the child or to others.
    In addition, if necessary, school officials can seek
appropriate injunctive relief to move a child. The placements under
Secs. 300.520(a)(2) and 300.521 apply whether the behavior is or is
not a manifestation of the child's disability under Sec. 300.523.
If the behavior is determined not to be a manifestation of the
child's disability, the child may be subjected to the same
disciplinary action as a nondisabled child (which could be a
removal for more than 45 days) except that services must be
provided consistent with Sec. 300.121(d).     Change: None.
    Comment: Some commenters asked that paragraph (d) of the
regulations provide the complete definition of ``dangerous weapon''
and ``controlled substance.''
    Discussion: It is not advisable to provide the complete
statutory definitions of ``dangerous weapon'' and ``controlled
substance'' in the text of the regulations as the statute ties
these definitions to the content of other Federal law. If, for
example, the Controlled Substances Act were to be amended to change
the definition of ``controlled substance'' in section 202(c) of
that Act, the Part B regulatory definition also would need
conforming amendments. In addition, the definition of ``controlled
substance'' in section 202(c) of the Controlled Substances Act is
extensive and extremely detailed. The Department will make this
information widely available through a variety of other means.
    Change: None.

Authority of Hearing Officer (Sec. 300.521)

    Comment: Several commenters stated that the hearing officer
under this section, in order to deal with dangerous situations,
must be able to immediately remove a child without the requirement
of convening a hearing. A number of these commenters believed that
the hearing officer under this section should be able to make a
determination based on a review of available information presented
by the LEA, much like an LEA requesting a temporary restraining
order from a court. Other commenters asked that the regulations
specify that the hearing officer must be impartial and qualified to
assess the child's disability and the circumstances surrounding the
removal.
    Several commenters asked that the regulations explain that a
school district has the right to seek injunctive relief, such as a
temporary restraining order, when a student is a danger to self or
others.     Discussion: The statute provides that the hearing
officer must be able to determine that a public agency has
demonstrated by substantial evidence, which is defined as beyond a
preponderance of the evidence, that maintaining the child in the
current placement is substantially likely to result in injury to
the child or others. This evidentiary standard requires that the
hearing officer weigh the evidence received from both parties,
rather than just information presented by the public agency. Public
agencies continue to have the right to seek injunctive relief from
a court when they believe they have the need to do so. Hearing
officers in expedited due process hearings must meet the same
standards of impartiality and knowledgeability as other hearing
officers under the Act.
    Change: None.
    Comment: Several commenters asked that paragraph (a) of this
section be revised to specify that the injury to the child or
others must be more than a minor injury. Others asked that the
regulations not require that the child would be an imminent threat
to the safety or health of other members of the school community
before the child could be removed.
    Several commenters requested that paragraph (c) be revised to
require the hearing officer to determine, rather than consider,
whether the public agency has made reasonable efforts to minimize
the risk of harm in the child's current placement. Other commenters
asked that the regulations specify that if the hearing officer
finds that the current placement is inappropriate, the hearing
officer shall order that the current placement be made appropriate
rather than ordering an interim alternative educational setting.
Further, if the hearing officer finds that the public agency has
not made reasonable efforts to minimize the risk of harm in the
child's current placement, they urged, the hearing officer must
order the public agency to make the reasonable efforts to minimize
the risk of harm rather than ordering placement in an interim
alternative educational setting.
    Discussion: No changes will be made to the regulations
regarding the amount of injury that would be substantially likely
to result if the child is not removed. In addition, no changes will
be made regarding a hearing officer's decision making. In
fashioning appropriate relief, hearing officers will exercise their
judgement in the context of all the factors involved in an
individual case.     Change: None.

[[Page 12622]]

    Comment: A number of commenters requested clarification of the
term ``beyond a preponderance of the evidence.'' Others asked that
the term be revised as the ``the preponderance of the evidence'' as
that is the highest evidence standard in civil litigation.
    Discussion: The phrase ``beyond a preponderance of the
evidence'' is statutory.
    Change: None.

Determination of Setting (Sec. 300.522)

    Comment: A number of commenters asked that the regulations
clarify the relationship between the authority of school personnel
in Sec. 300.520(a)(1) to order the removal of a child with a
disability for not more than 10 school days, and the requirement in
Sec. 300.522 that the alternative educational setting be determined
by the IEP team. These commenters noted that the school personnel
need the authority to remove under Sec. 300.520(a)(1) without input
from the IEP team.     A number of commenters requested
clarification on when the IEP team must make the determination of
setting and where the child would be while that determination was
being made, particularly for children with disabilities who already
had been removed from their regular placement for 10 days during
that school year. Some of these commenters noted that when a child
is removed under Secs. 300.520(a)(2) or 300.521 the alternative
setting needs to be immediately available.
    Some commenters question where the child would be while the
hearing under Sec. 300.521 is being held, noting that Sec.
300.521(d) requires the hearing officer's determination include
deciding whether the interim alternative educational setting meets
the standards of Sec. 300.522, and wondering when the IEP team
would meet. Some commenters asked that the regulations make clear
that a child with a disability can be removed from the child's
current placement for up to 10 days before the IEP team would have
to make the determination in Sec. 300.522.
    Some commenters stated that requiring the IEP team to determine
the setting when a hearing officer removes a child exceeds the
statute.     Other commenters thought that the provisions of Sec.
300.522 are in conflict with the authority of school personnel to
order removal under Sec. 300.520.
    Discussion: Under Secs. 300.519 and 300.520(a)(1), school
personnel have the authority to remove a child with disabilities
for not more than 10 consecutive school days (to the same extent as
for nondisabled children) except that the removal may not
constitute a change of placement. School personnel need the ability
to remove a child with a disability from the current educational
placement under
Sec. 300.520(a)(1) and to provide educational services in some
other setting without waiting for an IEP team to make a
determination about that alternative educational setting in order
to maintain a learning environment conducive to learning for all
children.
    At the same time there is a need to ensure that information
about the child's special education needs and current IEP be
brought to bear in decisionmaking about services to the child
during short removals and for those short periods before the IEP
team can meet to determine appropriate placement under Sec.
300.520(a)(2) or a hearing officer determines the interim
alternative educational setting under Sec. 300.521. Therefore, a
change should be made to Sec. 300.522(a) to specify that the IEP
team determines the interim alternative educational setting under
Sec. 300.520(a)(2).
    A change to Sec. 300.121(d) would specify that school
personnel, in consultation with the child's special education
teacher, determine the interim alternative educational setting for
removals under
Sec. 300.520(a)(1)(removals by school personnel for 10 school days
or less). A child whose behavior subjects him or her to an interim
alternative educational setting under Sec. 300.520(a)(2)(weapons or
drugs) or Sec. 300.521(substantial likelihood of injury), may first
be removed by school personnel for not more than 10 consecutive
school days, or until the removal otherwise constitutes a change of
placement under Sec. 300.519, and during that 10 day or less
removal, services, as necessary under Sec. 300.121(d), would be
provided as determined by school personnel, in consultation with
the child's special education teacher. This will ensure that the
need of school personnel to be able to make these decisions swiftly
is honored, while emphasizing the learning needs of the child in
that removal period. While the child is in that 10 school day or
less setting, the IEP team meetings and expedited due process
hearings under Secs. 300.522 and 300.521, respectively, can be
conducted so that the IEP team or hearing officer, as the case may
be, can determine the up to 45 day interim alternative educational
setting.
    When a hearing officer has determined that a child is
substantially likely to injure self or others in his or her current
placement and is ordering a 45 day interim alternative educational
setting under Sec. 300.521, the hearing officer is charged with
determining whether the interim alternative educational setting
meets the statutory requirements and not with selecting one that
meets those requirements. Permitting the school personnel, in
consultation with the child's special education teacher, to
initially select and propose the interim alternative educational
setting is less administratively cumbersome for school personnel
than the scheme in the proposed regulation and helps ensure that
there is no undue delay in placement. The review of the proposed
placement by the hearing officer ensures that the setting will meet
statutory standards, thus protecting the rights of the child. The
hearing officer may revise or modify the proposed placement, or
select some other placement as necessary to meet that statutory
standard. Of course, in proposing an interim alternative
educational setting, school personnel may rely on the judgments of
the child's IEP team if they choose to do so. This position would
be accomplished through the regulatory change to Sec. 300.121(d)
mentioned previously. The statute at section 615(k)(3)(A) is clear
that when school personnel are removing a child for a weapons or
drug offense, the IEP team determines the interim alternative
educational setting.
    Change: This section has been amended to specify that the
alternative educational setting referred to in Sec. 300.520(a)(2)
is determined by the IEP team. Section Sec. 300.521(d) has been
revised to recognize that the hearing officer reviews the adequacy
of the interim alternative educational setting proposed by school
personnel who have consulted with the child's special education
teacher.
    Comment: A number of commenters suggested revisions to
paragraph (b) to provide certain limitations on the services that
must be provided in the interim alternative educational setting
such as specifying that the setting must be one that is immediately
available to students removed, the services on the child's current
IEP will continue to the extent feasible, or the child will
continue to participate in the general curriculum to the extent
determined appropriate by the IEP team. Others urged that the
regulations make clear that the interim alternative educational
setting should not have to be a setting that can provide all the
same level of courses or courses that are not a part of the core
curriculum of the district (i.e., would not have to provide honors
level courses, electives, advanced subject courses that are not
part of the core

[[Page 12623]]

curriculum of the district) or are extracurricular activities and
sports. Others asked about classes such as chemistry, shop or
physical education that have specialized equipment or facilities.
Some commenters noted that it would not be reasonable and would be
prohibitively expensive and procedurally burdensome to require that
interim alternative education settings provide the same courses as
offered in regular schools. They argued that requiring that interim
alternative educational settings include the same courses as in
regular schools would discourage schools from taking appropriate
measures to deal with weapons, drugs and children who are dangerous
to themselves or others. Some commenters stated that they did not
believe that the services required for students whose behavior is
not a manifestation of their disability should be as extensive as
those required for students whose behavior is determined to be a
manifestation of their disability.     Some commenters asked that
the regulations specify that services in the interim alternative
educational setting must be provided by qualified personnel in a
placement that is appropriate for the student's age and level of
development. Others asked that the IEP written for the interim
alternative educational setting should address the services and
modifications that will enable the child to meet the child's
current IEP goals in the alternative setting.
    Discussion: The statute describes the services that must be
provided to a child who has been placed in an interim alternative
educational setting, which must be applied to removals under Secs.
300.520(a)(2) and 300.521, and these standards, with a minor
modification discussed later in this section, are reflected in Sec.
300.522(b). The proposed regulation, at Sec. 300.121(c), had
indicated that the same standards should be applied to other types
of removals as well, that is, removals that did not constitute a
change in placement and long-term suspensions or expulsions under
Sec. 300.524 for behavior that is determined not to be a
manifestation of a child's disability. However, as suggested by the
comments received, there are reasons why what would be required for
these other types of removals may be different than for 45 day
interim alternative educational settings. Therefore, the regulation
at Sec. 300.121(d) would provide that for removals under Secs.
300.520(a)(1) and 300.524, the public agency provides services to
the extent necessary to enable the child to adequately progress in
the general curriculum and advance toward achieving the goals set
out in the child's IEP, as determined by school personnel, in
consultation with the child's special education teacher, if the
removal is under Sec. 300.520(a)(1) or by the child's IEP team, if
the removal is under Sec. 300.524.
    Under these rules, the extent to which instructional 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 learning disability
who is placed in a 45 day placement will likely need far more
extensive services in order to progress in the general curriculum
and advance appropriately toward meeting the goals of the child's
IEP than would a child who is removed for only a few days, and is
performing at grade level. Because the services that are necessary
for children with disabilities who have been removed for
disciplinary reasons will vary depending on the individual facts of
a particular case, no further specificity regarding those services
is appropriate.
    What constitutes the general curriculum is determined by the
SEA, LEA or school that the student attends, as appropriate under
State law. In some cases, honors level classes or electives are a
part of the general curriculum, and in others they may not be. With
regard to classes such as chemistry or auto mechanics that
generally are taught using a hands-on component or specialized
equipment or facilities, and that are considered to be a part of
the general curriculum, there are a variety of available
instructional techniques and program modules that could be used
that would enable a child to continue to progress in the general
curriculum, although the child is not receiving instruction in the
child's normal school or facility. However, in order to assist in
clarifying that a school or district does not have to replicate
every aspect of the services that a child would receive if in his
or her normal classroom, a change would be made to refer to
enabling the child to continue to ``progress in'' the general
curriculum, rather than ``participate in'' the general curriculum.
    Changes: Paragraph (b) has been revised to apply to removals
under Secs. 300.520(a)(2) and 300.521. Paragraph (b)(1) has been
revised to refer to enabling the child to continue to ``progress
in'' the general curriculum. Language has been added to Sec.
300.121(d) to provide that for a child who has been removed under
Sec. 300.520(a)(1) or Sec. 300.524, the public agency provides
services to the extent necessary to enable the child to adequately
progress in the general curriculum and advance toward achieving the
goals set out on the child's IEP, as determined by school personnel
in consultation with the child's special education teacher if the
removal is under
Sec. 300.520(a)(1) or by the child's IEP team if the removal is
under Sec. 300.524.
    Comment: Several commenters asked that the statutory language
in paragraph (b)(2) requiring that the interim alternative
educational setting address the child's behavior ``so that it does
not recur'' be replaced with language requiring the LEA to develop
a program that attempts to prevent the inappropriate behavior from
recurring.     Other commenters asked that a note be added to
emphasize that the interim alternative educational setting be
designed to ensure FAPE and to evaluate the behavior, the IEP
services provided, and the previous placement and to develop an IEP
that will reduce the recurrence of the behavior. Some commenters
asked that the reference to other behavior in this paragraph be
rephrased to limit it to other current relevant behavior. Others
asked that the reference to days in a given school year be removed.
    Discussion: In order to provide additional clarity on this
point, a change should be made to specify that those services and
modifications are designed to prevent the inappropriate behavior
from recurring. In light of the changes previously discussed that
limit the application of this section to removals under Secs.
300.520(a)(2) and 300.521, the reference to other behavior would be
removed, as these are now addressed in Sec. 300.121(d).
    Change: Paragraph (b)(2) has been revised to clarify that it
applies to removals under Secs. 300.520(a)(2) and 300.521 and to
specify that the services and modifications to address the behavior
are designed to prevent the behavior from recurring.
    Comment: A number of commenters requested that the regulations
specify that home instruction could not be used as an interim
alternative educational setting. Others asked that the regulations
clarify that an interim alternative educational placement may be
any placement option, including, but not limited to home
instruction. Others asked for clarification of when home
instruction would be an appropriate placement for a child who is
subject to disciplinary action. Some commenters asked that the
regulations specify that home instruction and independent study
would not generally be an interim

[[Page 12624]]

alternative educational setting. Others asked that home instruction
be prohibited as an interim alternative educational setting unless
the parents agree. Some commenters asked for guidance on what could
be considered an appropriate interim alternative educational
setting for rural or remote areas where there is only one school
and no other appropriate public facility.
    Discussion: Whether home instruction would be an appropriate
alternative educational setting under Sec. 300.522 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 their regular placement, and include
consideration of the child's needs and educational goals. (The
proposed note following Sec. 300.551 regarding home instruction
would be deleted.) In general, though, because removals under Secs.
300.520(a)(2) and 300.521 will be for periods of time up to 45
days, care must be taken to ensure that if homebound instruction is
provided for removals under Sec. 300.522, the services that are
provided will satisfy the requirements for a removal under Sec.
300.522(b).
    Change: None.
    Comment: Some commenters asked that a provision be added to
Sec. 300.522 to specify that a hearing officer considering an
interim alternative educational setting may modify the setting
determined by the IEP team to meet the requirements of paragraph
(b) of this section.     Discussion: Hearing officers have the
ability to modify the interim alternative educational setting that
has been proposed to them as necessary to meet the standards of
enabling the child to continue to participate in the general
curriculum, continue to receive those services and modifications
that will enable the child to meet the goals on the child's current
IEP and include services and modifications designed to address the
behavior so that it does not recur. As previously explained, these
final regulations do not require an IEP team to propose an interim
alternative educational setting to a hearing officer under Sec.
300.521, although school districts are encouraged to use the
child's IEP team to make decisions about the interim alternative
educational setting that is proposed to the hearing officer.
    Change: None.

Manifestation Determination Review (Sec. 300.523)

    Comment: A number of commenters expressed concern about
paragraph (b) of this section. On the one hand, a number of the
commenters asked that the reference to ``in a given school year''
be struck so that the provision would permit no manifestation
determination review whenever the removal did not amount to a
change of placement. On the other hand, other commenters thought
there was no basis in the statute for any exception, and that a
manifestation review would need to be conducted whenever discipline
was contemplated for a child with a disability. Some commenters
asked that the exception be expanded to include situations when the
child's IEP includes the use of short term suspensions as an
appropriate intervention, or where the IEP team has otherwise
addressed in the IEP the behavior that led to the removal. Some
commenters stated that paragraph (a)(1) should refer to procedural
safeguards under Sec. 300.504 rather than procedural safeguards
under this section. Other commenters noted that advance
notification of disciplinary action is unrealistic and that the
regulations should note that fact. Others asked that the
regulations specify that prior written notice was not required.
    Discussion: A manifestation determination is important when a
child has been removed and that removal constitutes a change of
placement under Sec. 300.519. If a removal is a change of placement
under Sec. 300.519, a manifestation determination will provide the
IEP team useful information in developing a behavioral assessment
plan or in reviewing an existing behavioral intervention plan under
Sec. 300.520(b). It will also inform determinations of whether or
not a public agency may implement a disciplinary action that
constitutes a change of placement for a child, other than those
provided for in Secs. 300.520(a)(2) and 300.521. Requiring a
manifestation
determination for removals for less than 10 consecutive school days
that are not a change of placement under Sec. 300.519, would be of
limited utility and would impose unnecessary burdens on public
agencies as the determination often would be made after the period
of removal was over. Furthermore, limiting manifestation
determination to removals that constitute a change of placement
under Sec. 300.519 is consistent with the statutory language of
section 615(k)(4)(A).
    However, if a child is being suspended for subsequent short
periods of time, parents can request an IEP meeting to consider
whether the child is receiving appropriate services, especially if
they believe that there is a relationship between the child's
disability and the behavior resulting in those suspensions. Public
agencies are strongly encouraged to grant any reasonable requests
for IEP meetings. Functional behavioral assessments and behavioral
intervention plans are to be completed in a timely manner whether
required under
Sec. 300.520(b) or otherwise determined appropriate by the child's
IEP team (see Sec. 300.346(a)(2)(i)). In addition, if a child is
subsequently suspended for short periods of time, a parent or other
individual could question whether a change of placement, which
would require a manifestation determination, has occurred because
of an alleged pattern of removals.
    For clarity, a change should be made to refer to the procedural
safeguards notice under Sec. 300.504. Paragraph (a)(1) of this
section does not require prior written notice. It does require
notice to parents no later than the date on which the decision to
take the action is made. To that extent, it constitutes a limited
exception to the requirement to provide prior written notice in
Sec. 300.503. Other removals that do not constitute a change of
placement do not require prior written notice.
    Change: Paragraph (a) of this section has been revised to
specify that the manifestation determination review is done
regarding behavior described in Secs. 300.520(a)(2) and 300.521 or
any removal that constitutes a change of placement under Sec.
300.519. Paragraph (a)(1) of this section has been amended to
require that parents be provided notice of procedural safeguards
consistent with Sec. 300.504. Paragraph (b) has been removed.
    Comment: A number of commenters requested clarification of the
term ``other qualified personnel'' as used in proposed paragraph
(c) of this section. Some of these commenters asked that the
regulations include language like that in the note following Sec.
300.344 that in the case of a child whose behavior impedes the
learning of the child and others, the IEP team should include
someone knowledgeable about positive behavioral strategies and
supports. Others asked that the term not be interpreted as
including only school personnel but should include persons familiar
with the child and the child's disabilities, such as the child's
treating physician. Others wanted the regulations to specify that
the team include persons who are fully trained and qualified to
understand the child's disability. Many asked that term also be
added to references to the IEP team in proposed paragraphs (d), (e)
and (f) of this section. Some commenters asked that proposed
paragraph (c) clarify that the manifestation determination needs

[[Page 12625]]

to be made at an IEP meeting, as some districts are not holding IEP
team meetings for this purpose.
    Discussion: The language regarding the IEP team and other
qualified personnel is taken directly from the statute. The term
``other qualified personnel'' may include individuals who are
knowledgeable about how a child's disability can impact on behavior
or on understanding the impact and consequences of behavior, and
persons knowledgeable about the child and his or her disabilities.
For the sake of clarity, references to the IEP team in paragraphs
(c) and (d) of this section should be expanded to include ``and
other qualified personnel.'' In order to clarify that the
manifestation determination review is done in a meeting, a change
should be made to paragraph (b). This review involves complex
decision making that will be significantly different from the very
limited review that is done under
Sec. 300.520(b)(2) if no modifications are needed to a child's
behavioral intervention plan.
    Change: Redesignated paragraph (b) has been revised to specify
that the manifestation determination review is conducted at a
meeting. Redesignated paragraphs (c) and (d) have been amended by
adding ``and other qualified personnel'' after ``IEP team'' each
time it is used.     Comment: Several commenters were concerned
that proposed paragraph (d)(2)(ii) and (iii) put schools at a
significant disadvantage by having to prove the negative--that
disability did not impair the ability of the child to understand
the impact and consequences of the behavior and that disability did
not impair the child's ability to control behavior. Other
commenters asked that the review process also include consideration
of any unidentified disability of the child and the antecedent to
the behavior that is subject to discipline and permit record
expungement if it is later determined that the child did not commit
the act that is the subject of the manifestation determination.   
 Some commenters stated that proposed paragraph (e) created too
rigid a standard and asked that it be modified to give districts
more leeway if a mistake has been made.
    Discussion: The language in paragraphs (c)(2)(ii) and (iii) is
taken directly from the statute. Given that the review process
includes consideration of all relevant information, including
evaluation and diagnostic results, information supplied by the
parents, observations of the child and the child's current IEP and
placement, the review could include consideration of a previously
unidentified disability of the child and of the antecedent to the
behavior that is subject to discipline. If it is later determined
that the child did not commit the act that is subject to
discipline, the question of record expungement would be handled the
same way such matters are addressed for nondisabled children.
    The interpretation in paragraph (d) on how the manifestation
determination is made, using the standards described in paragraph
(c), is based on the explanation of the decision process in the
congressional committee reports on Pub. L. 105-17. Those reports
state that the determination described in Sec. 300.523(d):

. . . recognizes that where there is a relationship between a
child's behavior and a failure to provide or implement an IEP or
placement, the IEP team must conclude that the behavior was a
manifestation of the child's disability. Similarly, where the IEP
team determines that an appropriate placement and IEP were
provided, the IEP team must then determine that the remaining two
standards have been satisfied. This section is not intended to
require an IEP team to find that a child's behavior was a
manifestation of a child's disability based on a technical
violation of the IEP or placement requirements that are unrelated
to the educational/ behavior needs of the child. (S. Rep. No.
105-17, p. 31; H. Rep. No. 109-95, pp. 110-111 (1997))

In light of the general decision to remove all notes from these
final regulations, however, Note 1 should be removed.

    Change: Note 1 has been removed.
    Comment: Many commenters asked that the content of the first
sentence of Note 2 be integrated into the regulations. The
commenters were divided, however, over the second sentence of Note
2. Some supported the statement in the second sentence of the note,
others wanted the sentence to be revised to specify that children
with disabilities who have been placed in 45 day placements under
Secs. 300.520 and 300.521 must be returned to their regular
placement if their behavior is determined to be a manifestation of
their disability because of the principle that children with
disabilities may not be disciplined for behavior that is a
manifestation of their disability.
    Still others wanted the sentence revised to indicate that
changes to the child's IEP or placement or the implementation of
either ``could'' as opposed to ``often should'' enable the child to
return to the regular placement. Other commenters asked that the
second sentence to Note 2 be removed as they believed that it was
inconsistent with the authority granted in Secs. 300.520 and
300.521 to change the placement of a child with a disability to an
interim alternative educational setting for the same amount of time
that a child without a disability would be subject to discipline,
but for not more than 45 days. Other commenters asked that the
regulations make clear that if behavior is a manifestation of the
child's disability, disciplinary action cannot be taken against the
child.
    Discussion: For clarity, the regulation should specify that if
the behavior is determined to be a manifestation of the child's
disability, the public agency must take immediate steps to remedy
any deficiencies found in the child's IEP or placement or their
implementation. It would be inconsistent with the public agency's
obligation to ensure the provision of FAPE to children with
disabilities to fail to take appropriate action to correct
identified deficiencies in a child's IEP or placement or the
implementation of either.
    The 45-day placements in Secs. 300.520(a)(2), 300.521 and
300.526(c) are exceptions to the general rule that children with
disabilities may not be disciplined through a change of placement
for behavior that is a manifestation of their disability. If a
child has been placed in a 45-day placement under one of these
sections and his or her behavior is determined to be a
manifestation of the disability under Sec. 300.523, it may be
possible to return the child to the current educational placement
before the expiration of the up to 45-day period by correcting
identified deficiencies in the implementation of a child's IEP or
placement. However, public agencies are not obliged to return the
child to the current placement before the expiration of the 45-day
period (and any subsequent extensions under Sec. 300.526(c)) if
they do not choose to do so.
    Consistent with the general decision to remove all notes from
these final regulations, Note 2 would be removed.
    Change: A new paragraph has been added to clarify that if
deficiencies are identified in the child's IEP or placement or in
their implementation, the public agency must act to correct those
deficiencies. Note 2 has been removed.
    Comment: Some commenters asked that the regulations provide
distinctions between the types of services that must be provided in
interim alternative educational settings when behavior is and is
not a manifestation of the child's disability. For children whose
behavior is not a manifestation of their disability, these
commenters asked that FAPE be

[[Page 12626]]

defined as the LEA's ``core curriculum'' (the basic courses needed
to fulfill high school graduation requirements) unless the IEP team
determined that some more extensive services are required, so that
it would be clear that the LEA would not have to duplicate every
possible course offering at the alternative site. The commenters
asked that this rule also apply to the services provided to
children who have properly been long-term suspended or expelled for
behavior that is determined not to be a manifestation of
disability.
    For children whose behavior is determined to be a manifestation
of disability, these commenters asked for clarification that an IEP
team can still take disciplinary action, if the IEP team feels that
providing consequences is appropriate. In addition, they asked that
the regulations make clear that an IEP team can change a student's
placement for behavior that is a manifestation of the disability,
if taking such action would be appropriate and consistent with the
student's needs.
    Discussion: A manifestation determination is necessary to
determine whether the placement for a child with a disability can
be changed over the objections of the child's parents through a
long-term suspension (other than the 45-day placement addressed in
Secs. 300.520, 300.521 and 300.526(c)) or an expulsion. However,
there is no basis in the statute for differentiating the services
that must be provided to children with disabilities because their
behavior is or is not a manifestation of their disability. (See
discussion of comments for Secs. 300.121 and 300.522 for further
discussion about services during periods of disciplinary removal).
    Under section 504 of the Rehabilitation Act of 1973, if the
behavior is a manifestation of a child's disability, the child
cannot be removed from his or her current educational placement if
that removal constitutes a change of placement (other than a 45 day
placement under Secs. 300.520(a)(2), 300.521, and 300.526(c)),
unless the public agency and the parents otherwise agree to a
change of placement. If 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, strategies and supports to address that behavior,
consistent with
Secs. 300.346(a)(2)(i) and (c). If the behavior is determined to be
a manifestation of a child's disability but has not previously been
addressed in the child's IEP, then the IEP team must meet to 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 consequences, is
appropriate under the IDEA and section 504, even if the behavior is
a manifestation of the child's disability. However, if a child's
IEP includes behavioral strategies to address a particular behavior
of the child, the appropriate response to that behavior almost
always would be to use the behavioral strategies specified in the
IEP rather than to implement a disciplinary suspension. 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 (Sec. 300.503), mediation (Sec. 300.506),
due process (Secs. 300.507-300.513) and pendency (Sec. 300.514).
    Change: None.
    Comment: Several commenters noted that a manifestation review
should not be required prior to determining punishment for
incarcerated students because prison disciplinary infractions raise
bona fide security and compelling penological interests that are
outside the purview of the education staff. However, commenters
noted that a manifestation review for these students may be useful
in developing appropriate behavior interventions.
    Discussion: Section 614(d)(6)(B) of the Act provides that for
children with disabilities who are convicted as adults under State
law and incarcerated in an adult prison, the child's IEP team 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. (See also Sec. 300.311(c)(1)). A
manifestation determination would still be required for these
individuals, in the instances specified in paragraph (a) of this
section.
    Change: None.
    Comment: Several additional notes were proposed. Several
commenters asked that a note be added to clarify that when a
student with disabilities has been properly expelled, the student
does not have to petition for readmission when the period of
expulsion ends as the school system must accept and serve the
student in its schools. Others asked for a note specifying that
under section 504 of the
Rehabilitation Act children with disabilities may not be
disciplined for behavior that is a manifestation of their
disability, and that prior to taking any punitive action against a
child with a disability, appropriate personnel must determine that
the behavior in question is not a manifestation of the child's
disability.
    Discussion: No new notes will be added. All notes are being
removed from these final regulations. Whether a student who has
been properly expelled must petition for readmission when the
period of expulsion ends generally will depend on how the public
agency deals with children without disabilities who return to
school after a period of expulsion. However, public agencies are
reminded that for children with disabilities, they have an ongoing
obligation to make a FAPE available, whether the child is expelled
or not. Under Section 504 of the Rehabilitation Act of 1973,
children with disabilities may not be disciplined for behavior that
is a manifestation of their disability if that disciplinary action
constitutes a change of placement. That principle is consistent
with the changes made in this section.     Change: None.

Determination That Behavior Was Not Manifestation of Disability
(Sec. 300.524)

    Comment: Some commenters asked that the regulations make clear
that if the behavior was not related to the child's disability the
discipline could include long-term suspensions and expulsions.
Others asked that the regulations clarify whether discipline would
be limited to the 45-day interim alternative educational placement
or would be the same disciplinary measures as for nondisabled
students as long as FAPE is provided and IEP services continued in
another setting. Others thought that the regulation should specify
that no suspension or expulsion could be for more than 45 days.
Some commenters asked for clarification of what would constitute an
acceptable alternative setting for children whose behavior is
determined to not be a manifestation of their disability.
    Several commenters requested that the regulations delete the
provisions of paragraph (c) of this section concerning placement
pending a parent appeal of a manifestation determination and the
note following, which addresses paragraph (c). Others stated that
the regulations should specify that if parents challenge a
manifestation determination, the child should remain in the
alternative educational setting until the resolution of that
challenge. Still others asked that the note mention that under Sec.
300.514, placement could change if the parent and agency agreed to
that other placement.
    Discussion: Under this section, if a determination is made
consistent with Sec. 300.523 that a child's behavior is not

[[Page 12627]]

a manifestation of his or her disability, the child may be subject
to the same disciplinary measures applicable to nondisabled
children, including long-term suspensions and expulsions, except
that FAPE must be provided consistent with section 612(a)(1) of the
Act. In these instances, the disciplinary removal from a regular
placement could be as long as the disciplinary exclusion applied to
a nondisabled child, and need not be limited to a 45-day interim
alternative educational placement, except that appropriate services
must be provided to the child. To make the point more clearly that
if the behavior is determined not to be a manifestation of the
child's disability, that child may be subjected to long-term
suspension and expulsion with appropriate services. To clarify what
would constitute an acceptable alternative setting for a child if
the child's behavior is determined to not be a manifestation of his
or her disability, the reference in paragraph (a) of this section
has been changed to refer to
Sec. 300.121(c), which implements that statutory provision.    
Section 615(j) of the Act provides that the only exceptions to the
``pendency'' rule (Sec. 300.514) are those specified in section
615(k)(7) of the Act, concerning placement during parent appeals of
45-day interim alternative educational placements, which is
implemented by Sec. 300.526. Paragraph (c) of this section merely
reflects that statutory arrangement. Section 300.526 governs a
child's placement if a parent challenges a manifestation
determination while a child is in a 45-day interim alternative
educational placement under
Secs. 300.520(a)(2) or 300.521. Section 300.514 makes clear that
placement may change if the agency and parent agree on an
alternative placement while a due process hearing is pending on
other issues.     Changes: The reference to section 612(a)(1) of
the Act in paragraph (a) is replaced with a reference to Sec.
300.121(c), paragraph (c) is revised to refer to the placement
rules of Sec. 300.526, and the note is removed.

Parent Appeal (Sec. 300.525)

    Comment: Some commenters asked that the regulations specify
that parents must request a hearing in writing under this section.
Other commenters asked that the regulations make clear that any
hearing requested under this authority must be expedited, rather
than suggesting that only those hearings when the parent requests
an expedited hearing.
    Some commenters wanted the regulations to reflect that
mediation was an alternative to the expedited hearing procedure and
encourage parents to seek mediation before an expedited hearing.
Some asked that the regulations make clear that a parent's request
for an expedited hearing would not apply to removals for less than
10 days and would not negate the discretion of school districts to
use alternative judicial remedies, such as temporary restraining
orders. Some commenters noted that paragraph (a)(1) of this section
should be revised to apply only to placements made pursuant to the
discipline provisions of the Act, and not other placement issues
under the Act.
    Several commenters asked that proposed paragraph (b)(2) of this
section be revised to make clear that the standard of Sec. 300.521
that is to be applied to 45-day placements under Sec. 300.520(a)(2)
is the ``substantial evidence'' standard and does not include the
``substantially likely to result in injury'' test or other program
factors in Sec. 300.521, so as not to damage the new ability of
school districts to move students for up to 45 days for certain
offenses related to weapons and drugs.
    Discussion: The statute does not specify that parents request
a hearing in writing under the appeal procedures in this section.
The statute provides for expedited hearings in three circumstances,
and those are reflected in Secs. 300.521, 300.525, and 300.526.
Mediation is always encouraged as an alternative to a due process
hearing, and Sec. 300.506(a) makes clear that mediation must be
available whenever a hearing is requested under the provisions of
Secs. 300.520-300.528. Under the statute, it seems clear that a
parent's right to an expedited hearing is limited to placements
pursuant to the discipline provisions of the Act and not to other
placement issues, such as disputes about the adequacy of a child's
current placement (unless raised in the context of a manifestation
issue).
    In addition, since the statute refers to decisions regarding
placement, rather than to disciplinary actions, a parent's right to
an expedited hearing is limited to disciplinary situations
involving a change of placement, which would occur if a child were
removed from the child's current placement for more than 10 school
days at a time or if there were a series of removals from the
child's current educational placement in a school year as described
in Sec. 300.519. A parent's request for an expedited due process
hearing does not prevent a school district from seeking judicial
relief, through measures such as a temporary restraining order,
when necessary.
    The provisions of paragraph (b) of this section are statutory.
Section 615(k)(6)(B)(ii) does not refer solely to the ``substantial
evidence'' test in section 615(k)(2)(A), but to all the
``standards'' in section 615(k)(2)(Sec. 300.521 of these
regulations).
    Changes: Paragraph (a)(1) has been changed to refer to any
decision regarding placement under Secs. 300.520-300.528.

Placement During Appeals (Sec. 300.526)

    Comment: Several commenters requested that paragraph (a) of
this section be amended by specifying that a parent's appeal of a
hearing officer decision must be heard by another hearing officer.
Some commenters thought that LEAs should not be required to seek
expedited hearings for students that remain a danger after 45 days
and sought a simplified procedure for extensions of the 45-day
placement.     Others thought that the possibility of an extension
of an interim alternative educational placement because a child
remains dangerous should be limited to a one-time extension that
would require the hearing officer to determine that there were no
programmatic changes, related services or supplemental aids or
services that could be used to mitigate the dangerousness of the
original placement. These commenters thought that any further
efforts to keep the student in an alternative placement should be
heard by a court. Some commenters asked that the note be deleted or
modified by requiring, for example, that for an extension the
hearing officer consider whether the school district has created
delays or otherwise not acted in good faith. A few commenters asked
that any time an agency sought to extend an interim alternative
education placement because of continued dangerousness, the agency
first conduct a formal evaluation of the child.
    Discussion: It is not necessary to change the regulation to
specify that a parent's appeal of a hearing officer's decision must
be heard by another hearing officer, as it would violate the basic
impartiality requirement of Sec. 300.508(a)(2) to permit a hearing
officer to hear the appeal of his or her prior decision. Under
paragraph (b) of this section, unless shortened as the result of a
hearing officer's decision consistent with paragraph (a) of this
section, a child would remain in the interim alternative
educational setting pursuant to
Secs. 300.520(a)(2) or 300.521 for the period of the exclusion
(which may be up to 45 days).
    If the public agency proposes to change the child's placement
at the end

[[Page 12628]]

of that interim alternative educational placement and the child's
parents request a due process hearing on that proposed change of
placement, the child returns to the child's placement prior to the
interim alternative educational setting at the end of that interim
placement, except as provided in paragraph (c) of this section. The
expedited hearing procedure set forth in paragraph (c) of this
section is drawn from the statute, which contemplates the same
standards for these expedited hearings as for those under Sec.
300.521.
    There is no statutory limit on the number of times this
procedure may be invoked in any individual case, and none is added
to the regulation. If, after a 45-day extension of an interim
placement under paragraph (c) of this section, an LEA maintains
that the child is still dangerous and the issue has not been
resolved through due process, the LEA may seek subsequent expedited
due process hearings under paragraph (c)(1) of this section.
However, in light of the decision to remove all notes from the
regulations, the note would be removed.
    Changes: A new paragraph (c)(4) has been added to make clear
that the procedure in paragraph (c) may be repeated, if necessary.
The note has been removed.

Protection for Children not yet Eligible for Special Education and
Related Services (Sec. 300.527)

    Comment: A number of commenters expressed concern that the
statutory language that was reflected in paragraph (b) of this
section was too broad and thought that reasonable restrictions
should be added so that the issue of whether a ``basis of
knowledge'' existed would not have to be litigated for almost any
child who was subjected to disciplinary action.
    With respect to paragraph (b)(1), some commenters requested
that written parent concerns should be addressed to the director of
special education, other special education personnel of the agency,
or the child's teacher rather than to noninstructional personnel or
personnel not normally charged with child find responsibilities.
Other commenters asked that paragraph (b)(1) make clear that the
parental expression of concern must be more than a casual
observation or vague statement and must describe behavior
indicative of a disability or reflect the need for a special
education evaluation. Other commenters asked for specificity about
how the determination about parents' English literacy would be
determined and asked that parental illiteracy in English be
rephrased as being unable to write.
    Some commenters asked that paragraph (b)(2) clarify the type,
severity, or degree of behavior or performance that would
demonstrate the need for services under the Act. For example, some
asked that the behavior or performance of the child would have to
include
characteristics consistent with a category of disability under Sec.
300.7 of the regulations. Others asked that this provision be
revised to require observation and documentation of the child's
performance or behavior demonstrating the need for special
education services by personnel who regularly work with the child.
    Some commenters requested that various sections of paragraph
(b) be time-limited to actions within the past year. Others asked
that all of paragraph (b) be limited to actions that have occurred
within the preceding two school years.
    With respect to paragraph (b)(4) of this section, many
commenters asked that the regulations make clear that casual
communications between agency personnel would not meet this
standard. Some thought that the agency personnel covered by this
provision should be limited to those providing regular or special
education to the child reporting concern to agency personnel who
are normally responsible for initiating the special education
evaluation process. Others asked that expressions of concern by
appropriate agency personnel be a written expression of the child's
need for a special education evaluation. Some noted that without
the addition of reasonable limitations, this provision would
undermine responsible efforts, such as pre-referral strategies, to
limit identification of children for special education.
    Some commenters asked that paragraph (b) make clear that an
agency would not be considered to have a ``basis of knowledge''
merely because a child is receiving services under some other
program such as Title 1 of the Elementary and Secondary Education
Act, a State- or locally-developed compensatory education program,
or consistent with Section 504 of the Rehabilitation Act of 1973.
Others asked that the regulations specify that if an evaluation has
been done and a child found ineligible for special education, that
evaluation and determination would not constitute a ``basis of
knowledge'' under paragraph (b). Others asked that agencies be able
to demonstrate that they responsibly addressed an expression of
concern and concluded that the available data were sufficient to
determine that there was no reason to evaluate the child.
    Discussion: In light of these comments, some changes would be
made to paragraph (b) of this section. With respect to paragraph
(b)(1) of this section, it is important to keep in mind that child
find is an important activity of school districts under the Act and
all of the staff of a school district should be at least aware
enough of this important school function that, whatever their role
in the school, if they receive a written expression of concern from
a parent that a child is in need of special education and related
services, a referral to appropriate school child find personnel
should be made. Parents should not be held accountable for knowing
who in a school is the proper person to contact if they are
concerned that their child might need special education. On the
other hand, the statute makes clear that the parental expression of
concern must include enough information to indicate that their
child is in need of special education and related services. The
statutory provision expects that parents provide their expressions
of concern in writing if they are able to and does not mention a
particular language. Rather than refer to illiteracy; which may
have a variety of interpretations, the regulations should refer to
the parent not knowing how to write.
    In paragraph (b)(2) of this section, the behavior or
performance of the child sufficient to meet this standard should be
tied to characteristics associated with one of the disability
categories identified in the definition of child with a disability
in order to remove unnecessary uncertainty about the type,
severity, or degree of behavior or performance intended. Child find
is an important function of schools and school districts.
    School personnel should be held responsible for referring
children for evaluation when their behavior or performance
indicates that they may have a disability covered under the Act.
Limiting paragraph (b)(2) to instances in which personnel who
regularly work with the child have recorded their observation of a
child's behavior or performance that demonstrates a need for
special education would inappropriately omit those situations in
which public agency personnel should have acted, but failed to do
so.
    Requested changes regarding time limitations on the standards
in paragraph (b) are not adopted. However, if as a result of one of
the forms of notice identified in this paragraph, a public agency
has either determined that the child was not eligible after
conducting an evaluation or determined that an

[[Page 12629]]

evaluation was not necessary, and has provided appropriate notice
to parents of that determination consistent with Sec. 300.503, the
public agency would not have a basis of knowledge under this
paragraph because of that notice. For example, if as the result of
a parent request for an evaluation, a public agency conducted an
evaluation, determined that the child was not a child with a
disability, and provided proper notice of that determination to the
parents, the agency would not have a basis of knowledge because of
that parent request for an evaluation.     If the parents disagreed
with the eligibility determination resulting from that evaluation,
they would have the right to request a due process hearing under
Sec. 300.507. If the parents requested a hearing, the protections
of this part would apply. If they did not request a hearing and the
child subsequently engaged in behavior that violated any rule or
code of conduct of the public agency, including behavior described
in Secs. 300.520 or 300.521, and there was no intervening event or
action that would independently constitute a basis of knowledge
under paragraph (b), the public agency would not be deemed to have
knowledge (of a disability). In such a case, consistent with
paragraph (c), the parents could request an expedited evaluation,
but the public agency could subject the child to the same
disciplinary measures applied to children without disabilities
engaging in comparable behavior. An addition would be made to this
section. In order to clarify that if an agency responsibly
addresses the behavior or performance of a child or an expression
of concern about that behavior or performance the agency's
knowledge of that behavior, performance or expression of concern,
does not preclude the agency from subjecting the child to the same
disciplinary measures applied to children without disabilities who
engage in comparable behaviors.     In order to provide clarity to
the content of paragraph (b)(4), a change has been made to that
provision. Public agencies should not be held to have a basis for
knowledge that a child was a child with a disability merely because
the child's teacher had expressed concern about the child's
behavior or performance that was unrelated to whether the child had
a disability. This provision would therefore be modified to refer
to expressions of concern to other agency personnel who have
responsibilities for child find or special education referrals in
the agency.
    The changes described in this discussion in regard to paragraph
(b)(2) and (b)(4) would clarify that a public agency will not be
considered to have a basis of knowledge under paragraph (b) of this
section merely because a child receives services under some other
program designed to provide compensatory or remedial services or
because a child is limited-English proficient. If the child is
eligible under section 504 and not the IDEA, discipline would have
to be consistent with the requirements of section 504.
    Changes: A technical change has been made to paragraph (a) to
refer to paragraph (b) of this section rather than ``this
paragraph.'' The parenthetical language in paragraph (b)(1) has
been replaced with the following statement: ``(or orally if the
parent does not know how to write or has a disability that prevents
a written statement).'' Language is added to paragraph (b)(2) to
clarify that the behavior or performance is in relation to the
categories of disability identified in Sec. 300.7; and paragraph
(b)(4) has been revised to refer to other personnel who have
responsibilities for child find or special education referrals in
the agency. Paragraph (c) has been redesignated as paragraph (d)
and a new paragraph (c) has been added to provide that if an agency
acts on one of the bases identified in paragraph (b), determines
that the child is not eligible, and provides proper notice to the
parents, and there are no additional bases of knowledge under
paragraph (b) that were not considered, the agency would not be
held to have a basis of knowledge under Sec. 300.527(b).
    Comment: Some commenters thought that paragraph (c) of this
section in the NPRM implied that a regular education child is
entitled to some placement while eligibility is being determined,
and thought that whether these students receive services while
eligibility is being determined should be left to the States.
Others asked that the regulations specify that the phrase
``educational placement'' in proposed paragraph (c)(2)(ii) includes
a suspension or expulsion without services, while others thought
that any disciplinary action should be put on hold until the
evaluation was completed. Others asked that parents be involved in
decisions about the child's educational placement under this
provision.
    Some commenters thought that more guidance should be provided
about an appropriate timeline for an expedited evaluation. Others
asked that an expedited evaluation when an agency had conducted an
evaluation within the past year could be reviewing those results
and determining whether other assessments would need to be
conducted. Other commenters wanted the regulations to make clear
that a parent would have the right to an independent educational
evaluation if the parent disagrees with the evaluation results and
to the standard appeal rights and that a court could enjoin
improper exclusion during the pendency of the evaluation and appeal
process.
    Discussion: Redesignated paragraph (d) of this section 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 for knowledge that the child was a child with a disability.
An educational placement under paragraph (d)(2)(ii) in those
situations can include a suspension or expulsion without services,
if those measures are comparable to measures applied to children
without disabilities who engage in comparable behavior. Of course,
States and school districts are free to choose to provide services
to children under this paragraph.
    There is no requirement that a disciplinary action be put on
hold pending the outcome of an expedited evaluation, or that the
child's parents be involved in placement decisions under paragraph
(d)(2)(ii).     No specific timeline for an expedited evaluation is
included in the regulations, as what may be required to conclude 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, the statute and regulation specify that the
evaluation in these instances be ``expedited'', which means that an
evaluation should be conducted in a shorter period of time than a
normal evaluation. As Sec. 300.533 makes clear, in some cases, an
evaluation may be conducted based on a review of existing data.
    With regard to an expedited evaluation, a parent's right to an
independent educational evaluation if they disagree with the
results of that evaluation and to normal appeal rights of that
expedited evaluation are not affected by this section. Courts have
the ability to enjoin improper exclusion of children from
educational services in appropriate circumstances.
    Changes: Language has been added to paragraph (d)(2)(ii) to
make clear that an educational placement under that provision may
include suspension or expulsion without educational services.

Expedited due Process Hearings (Sec. 300.528)

    Comment: Some commenters supported the time frames proposed for

[[Page 12630]]

expedited due process hearings in light of the need to get prompt
resolution of the various issues that are subject to these
hearings. A number of commenters expressed concern about being able
to meet the timelines proposed in paragraph (a) and suggested that
the expedited hearing timeline be set at some longer time such as
10 school days, 15 calendar days, 20 business days, or 20 school
days, so that an orderly hearing could be conducted, the parties'
rights protected, and a well-reasoned and legally sufficient
decision could be rendered.     Some commenters thought that this
section should refer to ``expedited hearings'' rather than
``expedited due process hearings.'' Others noted the obligation of
a hearing officer to schedule the hearing quickly so that a
decision could be reached within the time frame. Some commenters
asked that a provision be added to specify that if a decision was
not rendered within the time frame, the child would remain in the
alternative placement until the decision was issued, while others
asked that the child be returned to the regular placement if the
decision were not issued within that time frame.
    Some commenters were concerned that the provision proposed in
paragraph (b) not be read to reduce rights available to children
and parents under the law, and asked that a statement be added to
the regulation to specify that in no instance should the
protections afforded the student and parent under the Act be
reduced.
    Some commenters asked that paragraph (c) provide an expedited
appeal process as well in light of the statutory emphasis on quick
resolution of disputes about disciplinary actions. Some commenters
asked that the regulations make clear that appeals of disputes
under Secs. 300.520-300.528 are to a State level review officer, if
a State has a two-tier due process system, and not to another due
process hearing officer.
    Discussion: Because of concerns that in some States it will not
be possible to conduct an orderly hearing and develop a well-
reasoned, legally sufficient decision within a 10 business day
timeline, the specific time limit would be removed and replaced
with a requirement that States establish a timeline for expedited
due process hearings that meet certain standards--it must result in
written decisions being mailed to the parties in less than 45 days,
with no extensions of time that result in a decision more that 45
days from the date of the request for a hearing, and it must be the
same period of time, whether the hearing is requested by a public
agency or parent. This will allow States to develop a rule that is
fairly applied to both parents and school districts and is best
suited to their particular needs and circumstances.
    The regulations refer to expedited due process hearings rather
than expedited hearings to make clear that the procedural
protections in Secs. 300.508 and 300.509 are to be met. With regard
to the hearings provided for in section 615(k)(2) of the Act (Sec.
300.521 of the regulations), the Committee reports accompanying
Pub. L. 105-17 refer to the hearings as ``expedited due process
hearings.'' (S. Rep. No. 105-17, p. 31, H.R. Rep. No. 105-95 p. 111
(1997)) In addition, the evidentiary standard specified in the
statute for hearings under Secs. 300.521 and 300.526(c) requires
consideration of evidence presented by both sides to a dispute,
which rules out hearings which do not permit each side an equal
opportunity to present evidence. Permitting a different standard to
apply to expedited hearings on parent appeals under Sec. 300.526(a)
would be unfair to public agencies. If a decision is not reached
within the time frame specified, the child's placement would be
determined based on the other rules provided in these regulations.
For example, if a school district had requested a hearing for the
purpose of demonstrating that a child was substantially likely to
injure themselves or others if the child remained in the current
placement, the child could be removed from his or her current
placement for not more than 10 school days pending the decision of
the hearing officer, unless the child's parents and the public
agency agreed otherwise. (Sec. 300.519).
    If the child were in a 45-day interim alternative educational
setting and the parents appealed that determination, the child
would remain in that setting until the expiration of the 45 days or
the hearing officer's decision, whichever occurs first. (Sec.
300.526(a)). If the child's parents oppose a proposed change of
placement at the end of a 45-day interim alternative educational
setting, under
Sec. 300.526(b), the child returns to the child's prior placement
at the end of the interim placement, unless through another hearing
and decision by the hearing officer under Sec. 300.526(c), the
interim alternative educational setting is extended for an
additional period of time, not to exceed 45 days for each expedited
hearing requested under Sec. 300.526(c).
    Paragraph (b) of this section is designed to make clear that
while a State must insure that expedited due process hearings must
meet the requirements of paragraph (a) of this section, the State
may alter other State-imposed procedural rules from those it uses
for hearings under Sec. 300.507. This rule 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.     No specific expedited appeal process
is specified in the Act, and none is added by these regulations.
However, States should be able to choose to adopt an expedited
appeal procedure if they wish, including, in States that have a
two-tier normal due process procedure, establishing a one-tier
expedited hearing procedure (i.e., expedited hearings conducted by
the SEA) so that parties resort directly to a State or Federal
court, rather than appeal through a State-level appeal procedure.
Therefore, a change should be made to the regulation to clarify
that an appeal of an expedited due process hearing must be
consistent with Sec. 300.510.
    Changes: A technical change has been made to paragraph (a)(2)
to refer to Sec. 300.509 rather than Sec. 300.508. Paragraph (a)(1)
has been deleted and a new paragraph (b) has been added to provide
that each State establish a timeline for expedited due process
hearings that results in a written decision being mailed to the
parties within 45 days, with no extensions permitted that result in
decisions being issued more than 45 days after the hearing request;
and to require that decisions be issued in the same period of time,
whether the hearing is requested by a parent or an agency.
Paragraphs (a)(2) and (a)(3) have been redesignated as paragraphs
(a)(1) and (a)(2) and paragraphs (b) and (c) have been redesignated
as paragraphs (c) and (d). Redesignated paragraph (d) has been
revised to specify that expedited due process hearings are
appealable consistent with the Sec. 300.510. A modification has
been made to Sec. 300.526(a) regarding these appeals.

Referral to and Action by Law Enforcement and Judicial Authorities
(Sec. 300.529)

    Comment: Several commenters asked that paragraph (a) be
modified to clarify that reporting crimes to law enforcement
authorities not circumvent the school's responsibilities under IDEA
to appropriately evaluate and address children's behavior problems
that are related to their disabilities in a timely manner. Other
commenters requested that procedural safeguards similar to those in
Secs. 300.520-300.528 be

[[Page 12631]]

incorporated into this section that would apply whenever an agency
makes a report of a crime by a child with a disability, including
conducting a manifestation determination on the relationship of the
behavior to the disability, applying the 10- and 45-day timelines
to any criminal or juvenile filing, notice to parents, and the
right of parents to appeal decisions and request due process. Some
commenters stated that any referral to juvenile or law enforcement
authorities should trigger notice to parents of the referral.
    Several commenters requested that the regulations specify that
the Act also permits school officials to press charges against a
child with a disability when they have reported a crime by that
student.     One commenter asked that paragraph (a) be modified to
require that a police report include a statement indicating that
the student is in a special education program and identify a
contact person who can provide additional information to
appropriate authorities on request.     Discussion: Paragraph (a)
of Sec. 300.529 does not authorize school districts to circumvent
any of their responsibilities under the Act. It merely clarifies
that school districts do have the authority to report crimes by
children with disabilities to appropriate authorities and that
those State law enforcement and judicial authorities have the
ability to exercise their responsibilities regarding the
application of Federal and State law to crimes committed by
children with
disabilities. The procedural protections that apply to reports of
a crime are established by criminal law, not the IDEA. Of course,
it would be a violation of Section 504 of the Rehabilitation Act of
1973 if a school were discriminating against children with
disabilities in how they were acting under this authority (e.g., if
they were only reporting crimes committed by children with
disabilities and not committed by nondisabled students).
    The Act does not address whether school officials may press
charges against a child with a disability when they have reported
a crime by that student. Again, school districts should take care
not to exercise their responsibilities in a discriminatory manner.
    With regard to indicating that a student is a special education
student and identifying a contact person who can provide
appropriate information to authorities to whom a crime is reported,
as explained more fully in the discussion on Sec. 300.529(b), under
the
confidentiality requirements of these regulations (see, e.g., Sec.
300.571) and those of the Family Educational Rights and Privacy Act
(FERPA) (20 U.S.C. 1232g), personally identifiable information
(such as a student's status as a special education student) can
only be released with parental consent except in certain very
limited circumstances.
    Changes: None.
    Comment: A number of commenters asked that paragraph (b) of
this section include a reference to the requirements of FERPA and
note that public agencies must insure the confidentiality of
records such as the special education and disciplinary records
referred to in this section. Some asked that a provision be added
making clear that a release to law enforcement authorities could
only be made pursuant to the requirements of FERPA. Others asked
whether this provision constituted an exception to disclosure of
education records under FERPA, and if so, that the regulations make
this clear. Some commenters noted that disclosure of education
records would be a significant burden on schools and that it
contradicts existing confidentiality and disclosure requirements.
Some commenters were concerned that other agencies would not
maintain these records in a way that would protect the often very
sensitive information that they contain.
    Discussion: Under sections 612(a)(8) and 617(c) of the Act, the
Secretary is directed 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 (see Secs. 300.127, and 300.560-
300.577). The provisions of section 615(k)(9)(B) of the Act as
reflected in paragraph (b) of this section must be interpreted in
a manner that is consistent with the requirements of FERPA, and not
as an exception to the requirements of that law. In other words,
the transmission of special education and disciplinary records
under paragraph (b) of this section is permissible only to the
extent that such transmission is permitted under FERPA.
    If section 615(k)(9)(B) of the Act were construed to require,
or even permit, disclosures prohibited by FERPA, it arguably would
violate the equal protection rights of children with disabilities
to be protected against certain involuntary disclosures to
authorities of their confidential educational records to the same
extent as their nondisabled peers. To avoid this unconstitutional
result, this statutory provision must be read consistent with the
disclosures permitted under FERPA for the education records of all
children.     FERPA would permit disclosure of the special
education and disciplinary records mentioned in Sec. 300.529(b)
only with the prior written consent of the parent or a student aged
18 or older, or where one of the exceptions to FERPA's consent
requirements apply. (See also, Sec. 300.571). For example,
disclosure of special education and disciplinary records would be
permitted when the disclosure is made in compliance with a lawfully
issued subpoena or court order if the school makes a reasonable
attempt to notify the parent of the student of the order or
subpoena in advance of compliance. (34 CFR 99.31(a)(9)). This prior
notice requirement allows the parent to seek protective action from
the court, such as limiting the scope of the subpoena or quashing
it. Prior notice is not required when the disclosure is in
compliance with certain Federal grand jury or other law enforcement
subpoenas. In these cases, the waiver of the advance notification
requirement applies only when the law enforcement subpoena or court
order contains language that specifies that the existence or the
contents of, or the information furnished in response to, such
subpoena or court order should not be disclosed. (34 CFR
99.31(a)(9)(ii)). Additionally, under FERPA, if the disclosure is
in connection with an emergency and knowledge of the information is
necessary to protect the health or safety of the student or other
individuals (34 CFR 99.31(a)(10) and 99.36), disclosure may be made
without parental consent. In addition, schools may disclose
education records without consent if a disclosure is made pursuant
to a State statute concerning the juvenile justice system and the
system's ability to effectively serve, prior to adjudication, the
student whose records are released. The State statute must create
an information sharing system, consisting only of State and local
officials, that protects against the redisclosure of a juvenile's
education records. (34 CFR 99.31(a)(5) and 99.38). For additional
information on the juvenile justice system provision and other
provisions under FERPA, refer to the U.S. Department of
Education/U.S. Department of Justice publication entitled Sharing
Information: A Guide to the Family Educational Rights and Privacy
Act and Participation in Juvenile Justice Programs. The publication
can be downloaded from the Family Policy Compliance Office's web
site: www.ed.gov.office/OM/fpco     In some instances, however, the
Part 300 regulations are more restrictive than FERPA. For example,
the Part 300

[[Page 12632]]

regulations in the past prohibited disclosures without parent
consent to outside entities that FERPA would permit. (See proposed
Sec. 300.571(a) limiting disclosures without consent to officials
of participating agencies collecting or using the information under
IDEA and requiring consent before information is used for any
purpose other than meeting IDEA requirements.) Section 615(k)(9)(B)
of the Act now eliminates, with regard to children with
disabilities who are accused by schools of crimes, IDEA
restrictions on the sharing of information that is permissible
under FERPA.
    Except in certain limited situations, information from special
education and disciplinary records may be disclosed only on the
condition that the party to whom the information is disclosed will
not disclose the information to any other party without the prior
consent of the parent. (34 CFR 99.33). This procedure should be
sufficient to ensure that those other parties maintain the records
in a manner that will protect the confidentiality of that
information.
    Changes: Paragraph (b) of this section has been amended to make
clear that copies of a child's special education and disciplinary
records may be transmitted only to the extent that such
transmission is permitted under FERPA. Section 300.571 has been
amended to note the exception of this section.
    Comment: Some commenters asked that the regulations provide
further clarification about the disclosure of information described
in paragraph (b) by, for example, clarifying whether a request from
a law enforcement official is needed before a transfer, whether the
LEA would be permitted to determine the most appropriate official
to receive the records, and if all or part of the record is
transmitted. Others asked that the regulations specify that the
records be transferred within a short period of time so that they
would be available for consideration in decisions about the
student's case or that some limitations be imposed on what is
transferred, such as records covering the past year, or
``relevant'' records.
    Some commenters asked that the regulations impose some
limitations on this responsibility by defining ``appropriate
authorities,'' ``special education record,'' and ``disciplinary
record.'' Others asked that the regulations require SEAs to develop
procedures regarding the disclosure of education records to the
appropriate authorities when LEAs report a student's criminal
activity because States' juvenile law and criminal law enforcement
systems are different.
    A few commenters asked that the agency reporting a crime be
responsible for ensuring that the child continues to receive FAPE
in accordance with the child's IEP with consultation with law
enforcement, judicial authorities, or any other agency responsible
for the education of incarcerated youth.
    Discussion: As explained in the prior discussion, FERPA limits
the extent to which disclosure of special education and
disciplinary records would be permitted. The circumstances that
determine whether records may be transmitted generally will
determine whether a specific request from a law enforcement
official would need to be made, to whom the records would be
transmitted and the extent of the information provided. In light of
the fact-specific nature of the analysis required, no specific
definitions of terms used in paragraph (b) are provided. The
requirements of FERPA and its implementing regulations at 34 CFR
Part 99 provide more specific guidance. The agency that is
responsible to ensure that a child receives FAPE when the child has
been accused of a crime and is in the custody of law enforcement
and judicial authorities will be determined by State law.
    Changes: None.

Procedures for Evaluation and Determination of Eligibility

Initial Evaluation (Sec. 300.531)

    Comment: A few commenters requested that this section be
revised to clarify that parents may request an initial evaluation,
and some requested that public agencies be required to conduct an
initial evaluation upon parent request. A few commenters requested
that the regulation be revised to require that, upon parent
request, an initial evaluation include new testing in all areas of
suspected disability, even if a determination is made, under Sec.
300.533(a), that no additional data are needed. A few commenters
requested that the regulation be revised to specify the types of
indicators, such as a psychiatric hospitalization, that trigger the
requirement that a child be evaluated for possible disability.
    Other commenters requested that the regulation be revised to
clarify that initial evaluations are distinct from reevaluations,
and to require that initial evaluations be ``comprehensive,'' and
include a complete full and individual evaluation of the child in
all areas of suspected disability. A few commenters requested that
Sec. 300.531 be linked with Sec. 300.532(g), to make clear that a
``full and individual initial evaluation'' under Sec. 300.531 means
a comprehensive evaluation in all areas of suspected disability.
    Discussion: The child find provisions of Sec. 300.125 require
that a public agency ensure that any child that it suspects has a
disability is evaluated. Under both prior law and these
regulations, if a parent requests an initial evaluation, the public
agency must either: (1) provide the parents with written notice of
the agency's proposal to conduct an initial evaluation if the
agency suspects that the child has a disability and needs special
education and related services; or (2) provide the parents with
written notice of the agency's refusal to conduct an initial
evaluation if it does not suspect that the child has a disability.
The parent may challenge such a proposal or refusal by requesting
a due process hearing.
    If a group decision is made under Sec. 300.533(a) that no
additional data are needed as part of an initial evaluation, the
public agency is not required to conduct additional assessment as
part of the initial evaluation; however, the parents may challenge
that decision by initiating a due process hearing.
    The child find provisions in section 612(a)(3) and in these
regulations at Sec. 300.125 require that all eligible children be
identified, located and evaluated, and it is not necessary to
establish additional requirements regarding specific circumstances
that trigger an agency's responsibility to evaluate a child.
    Any initial evaluation or reevaluation of a child with a
disability must meet the requirements of Sec. 300.532; therefore,
a child with a disability must, as part of any initial evaluation
or reevaluation, be assessed in all areas of suspected disability
(Sec. 300.532(g)). However, as provided in Sec. 300.533(a) and
explained above, the public agency may not need to conduct
assessment procedures to obtain additional data in one or more
areas of suspected disability depending on what data are already
available regarding the child.
    Changes: None.
    Comment: A few commenters requested that the regulations be
revised to provide guidelines for State timelines for completing
initial evaluations.
    Discussion: This issue is addressed in the discussion regarding
Sec. 300.342.
    Changes: None.

Evaluation Procedures (Sec. 300.532)

    Comment: Some commenters requested that the regulation be
revised to require that all tests and other evaluation materials
and procedures that are used to assess a child, including
nonstandardized tests, be validated for the specific purpose for
which they are

[[Page 12633]]

used and administered by trained and knowledgeable personnel in
accordance with any instructions provided by the producer of the
tests.     Other commenters asked that the regulation be revised to
require that tests and other evaluation procedures be selected and
administered so as not to be discriminatory on a disability basis,
and to prohibit use of tests if there is controversy in the
literature about a test's validity for use with children with a
particular disability unless a local validation study has been
conducted for the particular disability that the child is suspected
to have. A few commenters requested that the regulation specify
that evaluations that are conducted verbally should use the
language normally used by the child and not the language used by
the parents, if there is a difference between the two.     A few
commenters requested that the regulation be revised to require that
public agencies collect information regarding a child's learning
style(s) and needed methodologies as part of an evaluation, because
such information is critical in formulating appropriate
instructional methods to promote the child's learning. A few
commenters requested that the regulation be revised to require that
three individuals from different disciplines evaluate each child.
A few commenters requested that the regulation be revised to
clarify that tests and other materials used in evaluating each
child must include a full range of diagnostic techniques, including
observations and interview. A few commenters requested that Sec.
300.532(g) be revised to require a comprehensive evaluation for all
students, regardless of their area of suspected disability, and a
functional behavioral assessment for each child who exhibits
behavior that impedes learning.     A few commenters requested that
the regulation be revised to require that initial evaluations and
reevaluations address all of the special factors that IEP teams
must consider under Sec. 300.346(a)(2). A few commenters asked that
the regulation be revised to require that evaluations provide
information to enable public agencies to comply with the
requirements of Sec. 300.534(b)(1), which requires that a child not
be determined to be a child with a disability if the determinant
factor is a lack of instruction in reading or math.     A few
commenters requested that paragraphs (d), (e), and (f), and Notes
1, 2, and 3, be deleted because they exceed the requirements in the
statute.
    A few commenters were concerned that Note 2 does not address
the broad array of unique circumstances in which it may be
necessary, for communication or other disability-specific reasons,
to seek out an appropriate evaluator who is not on the staff of the
public agency.     A few commenters raised concerns about valid
assessment of Native American children who are either Navajo-
dominant speakers or bilingual. They expressed particular concern
regarding the limitations of standardized written instruments in
assessing children who speak Navajo, which is a predominantly oral
language, and asked for guidance as to how Bureau of Indian Affairs
schools will meet the requirements in Sec. 300.532 regarding
standardized assessment tools.
    A few commenters were concerned that the reference in Note 3 to
administration of assessment components by persons whose
qualifications do not meet standard conditions would appear to
``give permission'' for the use of unqualified assessment
personnel, and requested that this reference be deleted from the
note. Other commenters asked that Note 3 be deleted because it
inappropriately implies that IDEA permits public agencies to
conduct assessments under ``substandard'' conditions.     Several
commenters requested that the substance of all of the notes in the
NPRM be incorporated into the text of the regulations, or that the
notes be deleted in their entirety.
    Discussion: The provisions of Sec. 300.532(c) regarding
requirements for standardized tests are consistent with section
614(b)(3)(B), which limits applicability of those requirements to
standardized tests. The selection of appropriate assessment
instruments and methodologies is appropriately left to State and
local discretion.     A public agency must ensure that: (1) the IEP
team for each child with a disability has all of the evaluation
information it needs to make required decisions regarding the
educational program of the child, including the consideration of
special factors required by
Sec. 300.346(a)(2); and (2) the team determining a child's
eligibility has all of the information it needs to ensure that the
child is not determined to be a child with a disability if the
determinant factor is a lack of instruction in reading or math, as
required by
Sec. 300.534(b)(1). It is not, therefore, necessary to establish an
additional requirement that evaluations address the requirements of
Sec. 300.346(a)(2) or Sec. 300.534(b)(1).
    Paragraphs (d), (e), and (f) were all among the provisions
included in the regulations as in effect on July 20, 1983, and are
unaffected by the IDEA Amendments of 1997.
    In evaluating each child with a disability, it is important for
public agencies to ensure that the evaluation is sufficiently
comprehensive to identify all of the child's special education and
related services needs, including any needs the child has that are
commonly linked to a disability category other than the disability
in which the child has been classified. Further, public agencies
must ensure that the services provided to each child under this
part are designed to meet all of the child's identified special
education and related services needs, and not those resulting only
from the disability area in which the child has been initially
classified.     As proposed Note 1 indicated, under Title VI of the
Civil Rights Act of 1964: (1) in order to properly evaluate a child
who may be limited English proficient, a public agency should
assess the child's proficiency in English as well as the child's
native language to distinguish language proficiency from disability
needs; and (2) an accurate assessment of the child's language
proficiency should include objective assessment of reading,
writing, speaking, and understanding.     Both Title VI and Part B
require that a public agency ensure that children with limited
English proficiency are not evaluated on the basis of criteria that
essentially measure English language skills. Sections 300.532 and
300.534(b) require that information about the child's language
proficiency must be considered in determining how to conduct the
evaluation of the child to prevent misclassification. In keeping
with the decision to eliminate all notes from the final
regulations, however, Note 1 has been removed. The text of Sec.
300.532 has been revised to require that assessments of children
with limited English proficiency must be selected and administered
to ensure that they measure the extent to which a child has a
disability and needs special education, and do not instead measure
the child's English language skills.
    Proposed Note 2 explained that paragraphs (a)(1)(i) and (2)(ii)
when read together require that even in situations where it is
clearly not feasible to provide and administer tests in the child's
native language or mode of communication for a child with limited
English proficiency, the public agency must still obtain and
consider accurate and reliable information that will enable the
agency to make an informed decision as to whether the child has a
disability and the effects of the disability on the child's
educational needs. In some situations, there may be

[[Page 12634]]

no one on the staff of a public agency who is able to administer a
test or other evaluation in a child's native language, as required
under paragraph (a)(2) of this section, but an appropriate
individual is available in the surrounding area. In that case a
public agency could identify an individual in the surrounding area
who is able to administer a test or other evaluation in the child's
native language include contacting neighboring school districts,
local universities, and professional organizations. This
information will be useful to school districts in meeting the
requirements of the regulations, but consistent with the general
decision to remove all notes, Note 2 would be removed.
    An assessment conducted under non standard conditions is not in
and of itself a ``substandard'' assessment. As proposed Note 3
clarified, if an assessment is not conducted under standard
conditions, information about the extent to which the assessment
varied from standard conditions, such as the qualifications of the
person administering the test or the method of test administration,
needs to be included in the evaluation report. A provision has been
added to the regulation to make this point.
    This information is needed so that the team of qualified
professionals can evaluate the effects of these variances on the
validity and reliability of the information reported and to
determine whether additional assessments are needed. Again, while
the proposed note provided clarifying information on the regulatory
requirements, in keeping with the general decision to eliminate
notes, Note 3 would be removed.
    The provisions of the Act and Sec. 300.532, as revised to
include a provision regarding the use of nonstandard assessments,
are sufficient to ensure that the provisions of the regulation are
appropriately implemented for Navajo children, and no further
changes are needed.     Changes: Section 300.532 has been revised
to require that assessments of children with limited English
proficiency must be selected and administered to ensure that they
measure the extent to which a child has a disability and needs
special education, and do not, instead, measure the child's English
language skills.
    A provision has been added to Sec. 300.532 to require that if
an assessment is not conducted under standard conditions,
information about the extent to which the assessment varied from
standard conditions, such as the qualifications of the person
administering the test or the method of test administration, must
be included in the evaluation report. Notes 1, 2, and 3 have been
removed.
    A provision has been added to Sec. 300.532 to require that the
assessment be sufficiently comprehensive to identify all of a
child's special education and related services needs. A change also
has been made to Sec. 300.300 clarifying that services provided to
each child must be designed to meet all the child's identified
special education and related services needs.
    Paragraph (b) has been revised consistent with section
614(b)(2) of the Act, to clarify that information about enabling
the child to be involved in and progress in the general curriculum
or for a preschool child to participate in appropriate activities
may assist in determining both whether the child has a disability
and the content of the child's IEP.

Determination of Needed Evaluation Data (Sec. 300.533)

    Comment: A few commenters requested that the regulation or a
note clarify that it is expected that typically some new tests or
assessments will be required as part of reevaluations. A number of
commenters were concerned that, absent more specific requirements
mandating the use of additional assessments, public agencies would
rely on outdated assessment information regarding the needs of
children with disabilities, especially since the needs of children
with disabilities may change significantly over time, and some
requested that the regulations be revised to define a maximum
``age'' for data that a public agency may rely upon as part of an
evaluation. A few other commenters were concerned that the required
IEP team participants often would not have the appropriate
qualifications and expertise to judge the validity of existing data
and to determine what if any additional data are needed.
    A few others requested that the regulation be revised to
require that a public agency collect additional data to determine
whether a child continues to be a child with a disability, unless
the agency obtains signed, informed parent consent to not collect
such additional data, and that States be required to report on the
number of such parent ``waivers.'' Other commenters requested that
the regulation or note clarify that the provisions of Sec.
300.533(c) apply only to the portion of a reevaluation that
addresses whether a child continues to be a child with a
disability, and not the portion that addresses the child's needs
for special education and related services.
    A few commenters requested that parents be required to justify
any request for additional assessment data. A few other commenters
requested that public agencies be required to inform parents of
their right to request additional assessments to determine whether
their child has a disability.
    A few commenters thought that is was important to clarify that
a public agency may use data from prior assessments conducted by
individuals or agencies other than the public agency in determining
what additional data were needed.
    Some commenters requested that the note be deleted.
    Discussion: Whether additional data are needed as part of an
initial evaluation or reevaluation must be determined on a case-by-
case basis, depending upon the needs of the child and the
information available regarding the child, by a group that includes
the individuals described in Sec. 300.344 and other qualified
professionals, as appropriate.
    It is intended that the group review all relevant existing
evaluation data on a child, including that provided by the parents
and, where appropriate, data from evaluations conducted by other
agencies. A public agency must ensure that the group fulfilling
these functions include individuals beyond those described in Sec.
300.344 if necessary to ensure that appropriate, informed decisions
are made (see Sec. 300.533).
    Requiring public agencies to obtain informed written consent
permitting them not to collect, as part of a reevaluation,
additional data to determine whether a child continues to be a
child with a disability, would exceed the requirements of the
statute, as would requiring States to report on the number of
children for whom a reevaluation does not include collecting
additional data to determine whether they continue to be children
with disabilities.
    The provisions of Sec. 300.533(c) apply only to the collection
of additional data needed to determine whether a child continues to
be a child with a disability.
    It would not be consistent with the statute and these
regulations to require that parents ``justify'' any request for
additional assessment data. Parents must be included in the group
that reviews existing data and determines what additional data are
needed, and, as part of that group, they have the right to identify
additional assessment data that they believe are needed and to
participate in the decision regarding the need for those data. Both
the statute and these regulations require that the determination
regarding the need for

[[Page 12635]]

additional data be based, in part, on input from the parents. Under
both the statute and these regulations, parents also have the right
to request an assessment, as part of a reevaluation, to determine
whether their child continues to have a disability under IDEA.
However, this right is limited to determinations of eligibility for
services under Part B. If the group reviewing the existing data
does not believe additional data are needed to determine a child's
continued eligibility under IDEA, but the parents want additional
testing for reasons other than continued eligibility under IDEA,
such as admission to college, the denial of the parent's request
would be subject to due process.     An additional requirement that
parents be informed of their right to request additional assessment
data is not needed, as it is already addressed by paragraph
(c)(1)(iii).
    The proposed note clarified that the requirement in Sec.
300.533(a) and Sec. 300.534(a)(1) that review of evaluation data
and eligibility decisions be made by groups that include
``qualified professionals,'' is intended to ensure that the group
making these determinations include individuals with the knowledge
and skills necessary to interpret the evaluation data and make an
informed determination as to whether the child is a child with a
disability under Sec. 300.7, and to determine whether the child
needs special education and related services.
    The composition of the group will vary depending upon the
nature of the child's suspected disability and other relevant
factors. For example, if a student is suspected of having a
learning disability, a professional whose sole expertise is visual
impairments would be an inappropriate choice. If a student is
limited English proficient, it will be important to include a
person in the group of qualified professionals who is knowledgeable
about the identification, assessment, and education of limited
English proficient students. While the proposed note provided
clarifying information on the regulatory requirements, in keeping
with the general decision to eliminate notes, the note would be
removed.
    Changes: The note has been removed. Paragraph (d) has been
revised to clarify that the parent's right to request an evaluation
regarding continued eligibility concerns services under Part B.
    Comment: Some commenters requested that the regulation be
revised to provide further guidance as to whether public agencies
are required to convene a meeting to review existing evaluation
data on a child and to determine what, if any, additional data are
needed as part of the evaluation. A few commenters stated their
opinion that the Congress did not intend to establish a new
requirement for an additional meeting that public agencies must
convene. Others asked for clarity as to whether a public agency
could meet the requirements of Sec. 300.533(a) by reviewing
existing data and determining what additional data are needed as
part of the child's IEP meeting during the second year of the three
year evaluation cycle. A few commenters asked that the regulation
be revised to require that parents are entitled to participate in
any meeting held to review existing data.
    A few other commenters requested that the regulation be revised
to provide that only those members of the IEP team needed to review
current goals and objectives must participate in the review of
existing data, and that not all members involved in the initial
placement need be involved unless there is to be a change in the
placement or identification of the child.
    Discussion: Section 300.533(a) requires that a group that
includes the individuals described in Sec. 300.344 (regarding the
IEP team) and other qualified professionals, as appropriate, review
the existing evaluation data and determine what additional data are
needed. Although a public agency must ensure that the review of
existing data and the determination of any needed additional data
must be made by a group, including the parents, neither the statute
nor these regulations require that the public agency conduct a
meeting for this purpose. A State may, however, require such
meetings.
    Section 300.501(a)(2)(i) requires that parents have an
opportunity to participate in meetings with respect to the
evaluation of their child with a disability. Therefore, if a public
agency conducts a meeting, as defined in Sec. 300.501(b)(2), to
meet its responsibilities under Sec. 300.533, the parents must have
an opportunity to participate in the meeting.
    Neither the statute nor these regulations requires that all
individuals who were involved in the initial placement of a child
with a disability be part of the group that, as part of a
reevaluation of the child reviews existing data and determines what
additional data are needed. Both the statute and the regulations
require, however, that a group that includes all of the individuals
described in Sec. 300.344 for an IEP meeting, and other qualified
professionals, as appropriate, fulfill those functions.
    Changes: Paragraph (a) has been revised to refer to the group
that includes the individuals described in Sec. 300.344 and other
qualified individuals. A new paragraph (b) has been added to make
clear that a meeting is not required to review existing evaluation
data.

Determination of Eligibility (Sec. 300.534)

    Comment: A few commenters requested that the regulation provide
further guidance regarding the standards and process public
agencies must use to ensure that lack of instruction in reading or
math is not the determinant factor in determining that a child is
a child with a disability. Other commenters requested that the
regulation clarify that proposed Sec. 300.534(b) does not mean that
a child who has a disability and requires special education and
related services because of that disability can be found ineligible
simply because the child also has been denied instruction in
reading or math or because the child has limited English
proficiency.
    Some commenters asked for clarification as to whether, if the
group determines under Sec. 300.533 that no further data are
needed, a public agency may, without further evaluation, meet its
obligation under proposed Sec. 300.534(c) to evaluate a child with
a disability before determining that the child is no longer a child
with a disability.     A few commenters requested that the
regulation be revised to clarify the meaning of ``evaluation
report.'' A few commenters requested that the regulation be revised
to require that a public agency provide information to parents
regarding the results of an evaluation prior to conducting an IEP
meeting, and other commenters requested that the regulations
specify a timeline for how quickly the public agency must provide
parents with a copy of the evaluation report.
    A few commenters asked for clarification as to whether a public
agency must conduct an evaluation of a child with a disability
before the agency may graduate the child. (This issue is addressed
in the discussion regarding Sec. 300.121.)
    Discussion: The specific standards and process that public
agencies use to ensure that lack of instruction in reading or math
is not the determinant factor in determining that a child is a
child with a disability, and the content of an evaluation report,
are appropriately left by the statute to State and local
discretion. However, a public agency must ensure that a child who
has a disability, as defined in Sec. 300.7 (i.e., a child who has
been evaluated in accordance with Secs. 300.530-300.536 as

[[Page 12636]]

having one of the thirteen listed impairments, and who because of
that impairment needs special education and related services) is
not excluded from eligibility because that child also has limited
English proficiency or has had a lack of instruction in reading or
math. (See also Sec. 300.532, which has been revised to require
that assessments of children with limited English proficiency must
be selected and administered to ensure that they measure the extent
to which a child has a disability and needs special education, and
do not instead measure the child's English language skills.)
    The specific content of an evaluation report is appropriately
left by the statute to State and local discretion. Both the statute
and the regulations require that, upon completing the
administration of tests and other evaluation materials, a public
agency must provide a copy of the evaluation report and the
documentation of determination of eligibility to the parent, but
neither establishes a timeline for providing these documents to the
parents; rather, this timeline is appropriately left to State and
local discretion. It is, however, important to ensure that parents
and other IEP team participants have all the information they need
to participate meaningfully in IEP meetings. Indeed, Sec.
300.562(a) requires that a public agency comply with a parent
request to inspect and review existing educational records,
including an evaluation report, without unnecessary delay and
before any meeting regarding an IEP.
    A public agency must evaluate a child with a disability before
determining that the child is no longer a child with a disability,
but such a reevaluation is, like other reevaluations, subject to
the requirements of Sec. 300.533. Accordingly, if a group decision
is made under Sec. 300.533(a) that no additional data are needed to
determine whether the child continues to be a child with a
disability, the public agency must provide parents with the notice
required by
Sec. 300.533(d)(1), and must provide such additional assessment(s)
upon parent request consistent with Sec. 300.533(d)(2).
    Changes: Paragraph (b) is revised to clarify that children are
not eligible if they need specialized instruction because of
limited English proficiency or lack of instruction in reading or
math, but do not need specialized instruction because of a
disability, as defined in Sec. 300.7. See discussion of comments
received under Sec. 300.122 regarding a change to Sec. 300.534(c).

Procedures for Determining Eligibility and Placement (Sec. 300.535)

    Comment: Some commenters requested that parents be added to the
variety of sources from which the public agency will draw, under
Sec. 300.535(a)(1), in interpreting evaluation data for the purpose
of determining if a child is a child with a disability.
    Discussion: The proposed change is consistent with section
614(b)(4)(A), which requires that the parent be part of the team
that determines eligibility, and other provisions of the Act that
stress the importance of information provided by the parents.
    Changes: Section 300.535(a)(1) is revised to add ``parent
input'' to the variety of sources from which the public agency
will, under Sec. 300.535(a)(1), draw in interpreting evaluation
data for the purpose of determining if a child is a child with a
disability.     Comment: A few commenters were concerned that the
note
inappropriately implied that it is not necessary to use a team of
professionals and more than one assessment procedure to plan and
implement the evaluation for a child and to determine eligibility.
A few other commenters stated that the note inappropriately states
that all sources must be used for all children whose suspected
disability is mental retardation. Other commenters requested that
the note be revised to state that for some children information
from additional sources, such as an assessment of independent
living skills, might be needed.     Discussion: Section 300.532
requires that a variety of assessment tools be used, that no single
procedure be used as the sole criterion for determining the
eligibility or needs of a child with a disability, and that the
child be assessed in all areas of suspected disability. Section
300.534 requires that a team of professionals and the parent
determine a child's eligibility.
    The proposed note did not in any way diminish these
requirements. It clarified that, consistent with the statute and
these final regulations, the point of Sec. 300.535(a)(1) is to
ensure that more than one source is used in interpreting evaluation
data and in making these determinations, and that although that
subsection includes a list of examples of sources that may be used
by a public agency in determining whether a child is a child with
a disability, as defined in Sec. 300.7, the agency would not have
to use all the sources in every instance. While the proposed note
provided clarifying information on the regulatory requirements, in
keeping with the general decision to eliminate notes, the note
would be removed.
    Changes: The note has been removed.

Reevaluation (Sec. 300.536)

    Comment: Some commenters asked for clarification as to what
constitutes a reevaluation. A few of these commenters asked whether
a determination under Sec. 300.533(a) that no additional data are
needed as part of a reevaluation constitutes a reevaluation and
whether parent consent under Sec. 300.505(a)(iii) is required under
such
circumstances.
    A few commenters requested clarification as to whether a public
agency must provide a reevaluation each time that a parent requests
a reevaluation. A few commenters asked that a Note clarify that a
public agency must conduct a reevaluation upon parent request,
whether or not the public agency agrees that a reevaluation is
needed, while others requested clarification that a public agency
may refuse a parent request for reevaluation and afford parents the
opportunity for a due process hearing to challenge the refusal. A
few other commenters asked for clarification as to whether a public
agency must conduct an evaluation whenever requested by the parent,
regardless of the frequency of such requests.
    A few commenters asked that the regulation be revised to
require that public agencies consider the need for a reevaluation
of a child with a disability at least once every three years,
rather than require, as in the NPRM, that a reevaluation be
conducted at least once every three years.
    Discussion: Under both prior law and the current regulations,
if a parent requests a reevaluation, the public agency must either:
(1) provide the parents with written notice of the agency's
proposal to conduct the reevaluation; or (2) provide the parents
with written notice of the agency's refusal to conduct a
reevaluation. The parent may challenge such a proposal or refusal
by requesting a due process hearing. If the agency conducts a
reevaluation and the evaluation group concludes that under Sec.
300.533(a) no additional data are needed to determine whether the
child continues to be a child with a disability, the public agency
must provide parents with the notice required by Sec.
300.533(c)(1), and must provide such assessment upon parent
request.
    The statute specifically requires at section 614(a)(2) that ``a
reevaluation of each child with a disability is conducted ... at
least once every three years.'' However, in meeting this

[[Page 12637]]

requirement, a group will, pursuant to Sec. 300.533, review
existing data and determine what, if any, additional assessment
data are needed. Parent consent is not required for a review of
existing data; however, parent consent would be required before
additional assessments are conducted.
    Changes: None.
    Comment: A few commenters noted that Sec. 300.536(b) references
Sec. 300.530(b), a nonexistent subsection.
    Discussion: The noted reference is a typographical error.    
Changes: Section 300.536(b) has been revised to refer to Sec.
300.530 rather than Sec. 300.530(b).

Additional Procedures for Evaluating Children With Specific
Learning Disability (Secs. 300.540--300.543)

    Comment: Commenters raised a variety of issues regarding the
regulatory provisions concerning the additional procedures for
evaluating children suspected of having specific learning
disabilities. However, none of those comments raised significant
concerns about the minor changes from prior regulations proposed in
the NPRM, which were designed merely to accommodate new statutory
provisions regarding the participation of parents in evaluation
determinations and evaluation reports and documentation of
eligibility determinations applicable to all eligibility
determinations, including those regarding specific learning
disabilities.
    Discussion: As indicated in the preamble to the NPRM, the
Department is planning to conduct a careful, comprehensive review
of research, expert opinion and practical knowledge of evaluating
and identifying children with a specific learning disability over
the next several years to determine whether changes to the
standards and process for identifying children with a specific
learning disability should be proposed. Because that review has not
been done, no further changes are made to the regulations.
    Changes: None.

General LRE Requirements (Sec. 300.550)

    Comment: A number of commenters asked that the regulation be
revised to make clear that a child with a disability cannot be
removed from the regular class environment based on the type or
degree of modifications to the general curriculum that the child
needs, or on the types of related services that the child needs.
Some commenters asked that paragraph (b)(1) be revised to make
clear that whatever the setting selected, the child is educated in
the general curriculum. Others asked that paragraph (b)(2) be
revised to require consideration of positive behavioral supports in
educating children with disabilities in regular classes.
    A few commenters asked that a cross-reference to the exceptions
in Sec. 300.311(b) and (c) be added for students with disabilities
convicted as adults and incarcerated in adult prisons. Several
commenters asked that a note be added to specify that ESY services
must be provided in the LRE. Another asked that a note explain that
the reference to ``special classes'' in paragraph (b)(2) refers to
special classes based on special education needs rather than
special classes that the LEA makes available to all children,
whether nondisabled or disabled, such as remedial reading, art, or
music classes.
    Discussion: Placement in the LRE requires an individual
decision, based on each child's IEP, and based on the strong
presumption of the IDEA that children with disabilities be educated
in regular classes with appropriate aids and supports, as reflected
in paragraph (b) of this section. The regulations always have
required that placement decisions be based on the individual needs
of each child with a disability and prohibited categorical
decision-making.
    In addition, the new statutory provisions regarding IEPs,
reflected in the regulations at Sec. 300.347(a)(1) and (2) specify
that IEPs must include a statement of how the child's present
levels of educational performance affect the child's involvement
and progress in the general curriculum and a statement of
measurable annual goals, including benchmarks or short-term
objectives for meeting the child's disability-related needs to
enable the child to be involved in and progress in the general
curriculum. These provisions apply regardless of the setting in
which the services are provided.
    Similarly, the IEP team, in developing the IEP under
Sec. 300.346(a)(2)(i), is required to consider positive behavioral
intervention, strategies and supports to address the behavior of a
child with a disability whose behavior impedes his or her learning
or that of others. These provisions are designed to foster the
increased participation of children with disabilities in regular
education environments or other less restrictive environments, not
to serve as a basis for placing children with disabilities in more
restrictive settings.
    The determination of appropriate placement for a child whose
behavior is interfering with the education of others requires
careful consideration of whether the child can appropriately
function in the regular classroom if provided appropriate
behavioral supports, strategies and interventions. If the child can
appropriately function in the regular classroom with appropriate
behavioral supports, strategies or interventions, placement in a
more restrictive environment would be inconsistent with the least
restrictive environment provisions of the IDEA. If the child's
behavior in the regular classroom, even with the provision of
appropriate behavioral supports, strategies or interventions, would
significantly impair the learning of others, that placement would
not meet his or her needs and would not be appropriate for that
child.
    The IDEA Amendments of 1997 place renewed emphasis on teaching
children with disabilities to the general curriculum and ensuring
that these children are included in State- and district-wide
assessments of educational achievement. Because, as commenters
noted, one consequence of heightened accountability expectations
may be unwarranted decisions to remove children with disabilities
from regular classrooms so as to avoid accountability for their
educational performance, the regulations should make clear that the
type or extent of the modifications that the child needs to the
general curriculum not be used to inappropriately justify the
child's removal from education in regular, age-appropriate
classrooms. Therefore, a provision should be added to Sec. 300.552
to provide that a child not be denied education in age-appropriate
regular classrooms solely because the child's education required
modification to the general curriculum. Under this provision, for
example, a child with significant cognitive disabilities could not
be removed from education in age-appropriate regular classrooms
merely because of the modifications he or she needs to the general
curriculum. This provision should not be read to require the
placement of a child with a disability in a particular regular
classroom or course if more than one regular age-appropriate
classroom or course is available in a particular grade or subject.
    A cross-reference to the exceptions in Sec. 300.311(b) and (c),
like that in Sec. 300.347(d), will make the regulations clearer and
more complete.
    As the discussion of Sec. 300.309 explains in more detail,
while ESY services must be provided in the LRE, public agencies are
not required to create new programs as a means of providing ESY
services to students with disabilities in integrated settings if
the public agency does not provide summer services for its
nondisabled children.

[[Page 12638]]

    While the commenters are correct that the reference to
``special classes'' in paragraph (b)(2) refers to special classes
necessary to meet special education needs, and not classes that an
LEA makes available to all children, such as remedial reading, or
advanced placement, art or music classes, paragraph (b)(1) provides
that the LRE provisions of the regulations are focused on educating
children with disabilities with nondisabled children to the maximum
extent appropriate. In that context, the reference to ``special
classes'' is to classes organized on the basis of disability and
not classes that are based on some other interest, need or ability
of the students.     Changes: A cross-reference to the requirements
of Sec. 300.311(b) and (c) has been added to paragraph (a).
    A new paragraph has been added to Sec. 300.552 prohibiting
removal of a child with a disability from an age-appropriate
regular classroom solely because of needed modifications in the
general curriculum.

Continuum of Alternative Placements (Sec. 300.551)

    Comment: A number of commenters requested that the regulation
include a statement that a child does not need to fail in each of
the less restrictive options on the continuum before they are
placed in a more restrictive continuum placement that is
appropriate to their needs. These commenters felt that this was
needed to insure that children get appropriate services in a timely
manner. Some commenters requested that the regulations specify that
the placement appropriate for children who are deaf must be in a
setting where the child's unique communication, linguistic, social,
academic, emotional, and cultural needs can be met, including
opportunities for interaction with nondisabled peers.
    Discussion: The regulations do not require that a child has to
fail in the less restrictive options on the continuum before that
child can be placed in a setting that is appropriate to his or her
needs. Section 300.550(b)(2) of the regulations however, does
require that the placement team consider whether the child can be
educated in less restrictive settings with the use of appropriate
supplementary aids and services and make a more restrictive
placement only when they conclude that education in the less
restrictive setting with appropriate supplementary aids and
services cannot be achieved satisfactorily. New statutory changes
to the IEP development process make clear that the IEP team
considers the language and communication needs, opportunities for
direct communication 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 in developing IEPs for
children who are deaf or hard of hearing. These requirements, which
are included in the regulations at Sec. 300.346(a)(2)(iv), should
address the concerns raised by the commenters. In light of this
change, further regulation is not necessary.
    Changes: None.
    Comment: A number of commenters expressed concern about the
note following this section regarding home instruction. Some stated
that the note should be struck because it implied that home
instruction was an appropriate placement for all medically fragile
children and that this was contrary to the requirement that
placement be determined based on the individual needs of each
child. Some asked that the regulation limit home instruction to
those medically fragile children whose treating physicians have
certified are not able to participate in a school setting with
other children.
    Others disliked the note because they believed that home
instruction should be available in other instances when the IEP
team determines that such a placement is appropriate and should not
be limited by type of disability. Some commenters wanted the note
to be revised to make clear that home instruction could be
available for children with behavior problems and those in interim
alternative educational placements because they had been suspended
or expelled from school for disciplinary reasons if the IEP team
determined that it was the appropriate placement. Others asked that
the note should be revised to caution about the inappropriate use
of home instruction as a placement for children suspended and
expelled, unless requested by the parent for medical, health
protection, or diagnostic evaluation purposes. Some commenters
asked that the note make clear that discipline issues should be
handled through the provision of appropriate services in placements
other than home.
    Some commenters asked that the note be modified to state that
home instruction services may be appropriate for young children if
the IEP/ IFSP team determines appropriate. Other commenters asked
that the regulations make clear that home instruction services are
an appropriate modification of the IEP or placement for
incarcerated youth who are being kept in segregation, close custody
or mental health units.
    Discussion: Home instruction is, for school-aged children, the
most restrictive type of placement because it does not permit
education to take place with other children. For that reason, home
instruction should be relied on as the means of providing FAPE to
a school-aged child with a disability only in those limited
circumstances when they cannot be educated with other children even
with the use of appropriate related services and supplementary aids
and services, such as when a child is recovering from surgery. The
implication in the note that placement decisions could be based on
the type of disability of a child was unintended.
    Instruction at home may be the most natural environment for a
young child with a disability if the child's IEP/IFSP team so
determines. `Home instruction' may be an appropriate modification
of an IEP or placement under Sec. 300.311 for incarcerated youth
who are being kept in close custody, or segregation or in a mental
health unit. The issue of home instruction for children with
disabilities who have been suspended or expelled for behavior that
is not a manifestation of their disability is addressed under Sec.
300.522.
    Changes: The note has been deleted.

Placements (Sec. 300.552)

    Comment: A number of commenters asked that paragraph (a)(1) be
revised to require that parents be informed about the full range of
placement options, especially for children who are deaf or hard of
hearing. Often these commenters also asked that the regulations
contain a statement that the appropriate placement of a child who
is deaf or hard of hearing is the setting in which the child's
unique
communication, linguistic, academic, social, emotional and cultural
needs can be met.
    One commenter asked that the regulations include standards for
numerical improvements in the percentages of children with
disabilities who are educated in regular classes and dates by which
those standards are to be met.
    Discussion: The discussion concerning Sec. 300.551 notes that
the IEP provisions of the regulations already incorporate statutory
language concerning the need to consider the particular needs of
children who are deaf or hard of hearing in developing appropriate
IEPs.
    Since placements are determined based on the needs of
individual children, and because the IDEA Amendments of 1997
provide that parents of children with disabilities are members of
any group that makes

[[Page 12639]]

decisions on the education placement of their child (section 614(f)
of the Act) it would seem to be unnecessary and unreasonably
burdensome to require LEAs to inform parents about the full range
of placement options.
    Under Sec. 300.501(c), parents must now be included in the
group making decisions about the educational placement of their
child. In view of the principle of regulating only if necessary,
the regulations are not changed in the ways suggested by these
commenters.
    With respect to paragraph (a)(1) of this section, nothing in
the regulations would prohibit a public agency from allowing the
group of persons that makes the placement decision to also serve as
the child's IEP team, so long as all individuals described in Sec.
300.344 are included. However, in the interest of limiting the use
of notes in these regulations, Note 1 would be removed.
    Changes: Note 1 has been removed. See discussion of comments
received under Sec. 300.550 regarding the addition of a new Sec.
300.552(e) prohibiting removal of a child with a disability from an
age-appropriate regular classroom solely because of needed
modifications in the general curriculum.
    Comment: A number of commenters asked for revisions to the
regulation designed to foster the inclusion of children with
disabilities in the schools and classrooms they would attend if not
disabled, such as explaining that children with disabilities could
be placed at another school only with compelling educational
justification and not for reasons of administrative convenience, or
requiring that the child be educated at the school that they would
attend if not disabled unless the child's educational needs require
some other placement. Others wanted the regulation to recognize the
administrative right to make geographic assignments so that not
every facility in a school district would need to be made
accessible, as provided under the Section 504 and Americans with
Disabilities Act regulations.     Discussion: LEAs are strongly
encouraged to place children with disabilities in the schools and
classrooms they would attend if not disabled. However, the
regulatory provision has always provided that each child with
disabilities be educated in the school he or she would attend if
not disabled unless their IEP required some other arrangement.
(See, Sec. 300.552(c)). Physical accessibility of school facilities
is covered more fully by section 504 of the Rehabilitation Act of
1973 (Section 504) and the Americans with Disabilities Act (ADA).
    Changes: None.
    Comment: Some commenters felt that paragraph (d) of the
regulation required burdensome, unnecessary paperwork. Others
requested its deletion because they felt that too often a district
is unwilling to prevent potential harmful effects and uses this
provision to make segregated placements that are then presented as
being ``in the child's best interest.'' One commenter asked that
this paragraph be revised to emphasize how integration of children
with disabilities and nondisabled children and successful learning
are now necessary conditions of one another.
    Discussion: Paragraph (d) of this section does not impose
paperwork burdens. Paragraph (d) of this section provides important
protections for children with disabilities and helps ensure that
they and their teachers have the supports to prevent any harmful
effect of a placement on the child or on the quality of services
that he or she needs. If the placement team 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 time.     Generally, as the
commenter suggests, achievement test performance of students in
inclusive classes is the equivalent or better than achievement test
performance of others in segregated setting and self-concept,
social skills and problem solving skills improve for all students
in inclusive settings. Placement decisions, however, need to
consider the individual needs of each child.
    Changes: None.
    Comment: A number of commenters were concerned with placement
considerations for preschool-aged children with disabilities. Some
expressed support for the language in Note 2 regarding preschool
children with disabilities. Others thought that the language of the
note that indicated that school districts that did not operate
regular preschool programs might have to place preschool children
with disabilities in private preschool programs as a means of
providing services in the LRE should be struck as it was not
required by the statute, or would be costly to implement.
    Some thought the explanation about LRE for preschool children
with disabilities should be in the regulation, as it is important
that schools understand that they may meet the requirements of
paragraph (c) for preschool children with disabilities by
participating in other preschool programs such as Head Start,
operated by other agencies, through private agencies serving
preschool-aged children, and by locating preschool programs in
elementary education schools that serve all children.
    One commenter asked that the reference to `private school
programs for nondisabled children' be struck as suggestive that
private schools are not bound to comply with the ADA. Some
commenters thought that the note implied that a full continuum is
not needed for preschool children with disabilities and should be
revised. Another commenter stated that locating classes of
preschool children with disabilities in regular elementary schools
is not an appropriate solution to meeting the LRE for preschoolers
and should be struck from the note.
    Discussion: Language has been added to the regulation to
clarify that the requirements of Sec. 300.552, as well as the other
requirements of Secs. 300.550-300.556, apply to all preschool
children with disabilities who are entitled to receive FAPE. Note
2 to this section in the NPRM was intended to provide suggestions
on how a public agency may meet the LRE requirements if it does not
generally provide education to nondisabled preschool children.
However, in light of the general decision to remove all notes from
these final regulations, the note would be removed.
    Public agencies that do not operate programs for nondisabled
preschool children are not required to initiate those programs
solely to satisfy the requirements regarding placement in the LRE.
For those public agencies, the note provided some alternative
methods for meeting the LRE requirements. The examples in the note
of placing preschool children with disabilities in private
preschool programs and locating classes for preschool children with
disabilities in regular elementary schools as a means of meeting
the LRE requirements were not intended to limit the placements
options on the continuum which may be used to meet the LRE needs of
preschool children. The full continuum of alternative placements at
34 CFR 300.551, including integrated placement options, such as
community-based settings with typically developing age peers, must
be available to preschool children with disabilities.
    The overriding rule in this section is that placement decisions
for all children with disabilities, including preschool children,
must be made on an individual basis. The reference in the note to
``private school programs for nondisabled children'' was not
intended to suggest that private schools are not required to comply
with the ADA.

[[Page 12640]]

    The second part of Note 2 to proposed Sec. 300.552 cited
language from the 1976 published analysis of comments on the
regulations implementing Section 504 of the Rehabilitation Act of
1973. The issues raised by that analysis (appropriate placement for
a child with disabilities whose behavior in a regular classroom
significantly impairs the education of other students, and
placement of a child with disabilities as close to home as
possible) are addressed elsewhere in this attachment.
    Changes: A reference to preschool children with disabilities
has been added to the introductory paragraph of Sec. 300.552. Note
2 has been removed.
    Comment: Several commenters requested adding language that
would prohibit States from using a funding mechanism to provide
financial incentives to place children with disabilities in a
particular type of placement and to specify that State funding
mechanisms must be ``placement neutral'.
    A number of commenters asked that the regulations explicitly
include a presumption that placement of children with disabilities
is in the regular class, and that the placement team must consider
the use of positive behavioral interventions, and supplementary
aids and services before concluding that placement in a regular
class is not appropriate for a child with a disability. Others
asked that the substance of Note 3 (explaining that if behavioral
interventions are incorporated into the IEP many otherwise
disruptive children will be able to participate in regular
classrooms) be incorporated into the regulations. Others felt that
Note 3 added steps and services that exceeded the statute.
    Discussion: Section 300.130(b) incorporates into the
regulations the new statutory provision that specifies that if a
State has a funding mechanism that distributes State funds on the
basis of the type of setting in which a child is served, that
mechanism may not result in placements that violate the LRE
requirements, and if the State does not have policies and
procedures to ensure compliance with that obligation, it provides
the Secretary with an assurance that it will revise the funding
mechanism as soon as feasible. Given that requirement, no further
change is necessary here.
    A presumption of placement in a regular class is already
embodied in Sec. 300.550. Note 3 to this section in the proposed
regulations merely stated the reasonable conclusion that if
behavioral
interventions are incorporated into the IEPs of children with
disabilities, many of these children, who without those services
might be disruptive, can be successfully educated in regular
classrooms. Note 3 added no requirements or services that exceed
the statute, as the requirement to consider positive behavioral
interventions, strategies, and supports to address the behavior of
children with disabilities whose behavior impedes his or her
learning or that of others, which is contained in Sec.
300.346(a)(2)(i), is taken directly from section 614(d)(3)(B)(i) of
the Act. Nevertheless, in the interest of eliminating the use of
notes in these regulations, Note 3 should be removed, as it was
merely an observation, based on the requirements of the
regulations.

Changes: Note 3 has been removed.

Nonacademic Settings (Sec. 300.553)

    Comment: None.
    Discussion: The note following this section in the NPRM pointed
out that this provision is related to the requirement in the
regulations for section 504 of the Rehabilitation Act of 1973, and
emphasized the importance of providing nonacademic services in as
integrated a setting as possible, especially for children whose
educational needs necessitate their being solely with other
disabled children during most of the day. Even children with
disabilities in residential programs are to be provided
opportunities for participation with other children to the maximum
extent appropriate to their needs. However, in light of the
decision to remove all notes from these final regulations, the note
following this section would be removed.
    Changes: The note following this section has been removed.

Children in Public or Private Institutions (Sec. 300.554)

    Comment: One commenter thought that the language of this
section was ambiguous and left confusion as to whether special
arrangements with public and private institutions were required
whether they were needed or not. Another commenter proposed changes
that would require arrangements such as a memorandum of
understanding with all public and private institutions. One
commenter thought that the note following this section conflicted
with other regulations concerning incarcerated students and that
those students should be excluded from the subject of the note.
Another commenter asked that the substance of the note be
incorporated into the regulation and that timelines for compliance
be included.
    Discussion: This section was not intended to require memoranda
of agreement or other special procedures that are not necessary to
effectively implement Sec. 300.550. Requiring agreements to be
developed that are not necessary for meeting the other LRE
requirements would be overly prescriptive.
    The requirement that disabled students be educated with
nondisabled students does apply to students with disabilities who
are in correctional facilities, to the extent that the requirement
can be met consistent with the terms of their incarceration, except
to the extent modified under the authority in Sec. 300.311. One way
the LRE requirements could be met for students with disabilities in
prisons would be to include them in the educational activities of
nondisabled prisoners and provide appropriate services in that
environment. If a State has transferred authority for the education
of students with disabilities who are convicted as adults under
State law and incarcerated in adult prisons to another agency, the
other agency, not the SEA, would have to ensure that LRE
requirements are met as to that class of students.
    The note following this section in the NPRM reflected the
important fact that, except as provided in Sec. 300.600(d)
(regarding students with disabilities in adult correctional
facilities), children with disabilities in public and private
institutions are covered by the requirements of these regulations,
and that the SEA has an obligation to ensure that each applicable
agency and institution in the State meets these requirements.
Whatever the reasons for the child's institutional placement, if he
or she is capable of education in a regular class, the child may
not be denied access to education in a regular class, consistent
with Sec. 300.550(b). Timelines for development of memoranda of
agreement or other special implementation procedures would be
overly prescriptive. In light of the decision to remove notes from
these final regulations, the note would be removed.     Changes:
Section 300.554 has been reworded to clarify that special
arrangements with public and private institutions are only required
if needed to ensure that Sec. 300.550 is effectively implemented.
A technical change has been made to the regulation to make clear
that the SEA's responsibility does not include students with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons. The note following this section has
been removed and a new paragraph has been added to Sec. 300.300(a)
to more generally

[[Page 12641]]

make the point that services and placement decisions must be based
on a child's individual needs and not category of disability.

Technical Assistance and Training Activities (Sec. 300.555)

    Comment: Some commenters asked that parents and advocates be
included in the training mentioned in paragraph (b) of this
section. Another commenter asked that the regulation make clear
that education support personnel as well as teachers and
administrators are fully informed and provided technical assistance
and training necessary to help them meet their LRE
responsibilities. Another commenter wanted SEAs to provide specific
training and information on LRE for children who are deaf and hard
of hearing.
    Discussion: As a matter of good practice, SEAs and LEAs are
encouraged to develop opportunities for school personnel (including
related service providers, bus drivers, cafeteria workers, etc.)
and parents to learn together about all of the requirements under
the Act because these experiences will improve cooperation among
school personnel and between schools and parents and lead to
improved services for children with disabilities. However,
regulation on this point is not appropriate, as SEAs need the
flexibility to respond to particular circumstances in their
jurisdictions. For the same reason, additional specificity about
the school personnel who need information and training or the
subject matter of that training is not appropriate.     Changes:
None.

Monitoring Activities (Sec. 300.556)

    Comment: One commenter asked that States be required to
establish criteria that would trigger monitoring reviews of LEA
placement procedures to ensure compliance with LRE requirements
because of the long history of violations of these provisions.
Another asked that the regulations specify that SEAs must initiate
enforcement actions, if appropriate.
    Discussion: SEAs, under their general supervisory
responsibility, are charged with ensuring that the requirements of
the Act are met. That responsibility includes monitoring LEA
performance, providing technical assistance and information on best
practices, and requiring corrective action and instituting
enforcement actions when necessary. The provisions of this section
reinforce the active role SEAs need to play in implementing the
entire Act and emphasize the importance of the LRE requirements in
meeting the goals of the Act. The role of SEAs in implementing the
requirements of the Act will be carefully reviewed by OSEP in its
monitoring of States.
    Changes: None.

Access Rights (Sec. 300.562)

    Comment: A number of commenters were concerned about the types
of records to which parents have access under this section. For
example, some believed that the regulations should make clear that
parents would not have access to copyrighted materials such as test
protocols, or private notes of an evaluator or teacher. Others took
the opposite view, urging that whenever raw data or notes are used
to make a determination about a student, that information should be
subject to parent access. Commenters also requested clarity on the
question of the schools' liability for allowing parents access to
records under these regulations when other laws or contractual
agreements prohibit such disclosure.
    One commenter asked that the right be phrased as the right ``to
inspect and review all records relating to their children'' rather
than to ``all education records relating to their children.''
    Discussion: Part B incorporates and cross-references the Family
Educational Rights and Privacy Act (FERPA). Under Part B, the term
``education records'' means the type of records covered by FERPA as
implemented by regulations in 34 CFR part 99. Under Sec. 99.3 (of
the FERPA regulations), the term ``education records'' is broadly
defined to mean those records that are related to a student and are
maintained by an educational agency or institution. (FERPA applies
to all educational agencies and institutions to which funds have
been made available under any program administered by the Secretary
of Education.)
    Records that are not directly related to a student and
maintained by an agency or institution are not ``education
records'' under FERPA and parents do not have a right to inspect
and review such records. For example, a test protocol or question
booklet which is separate from the sheet on which a student records
answers and which is not personally identifiable to the student
would not be a part of his or her ``education records.'' However,
Part B and FERPA provide that an educational agency or institution
shall respond to reasonable requests for explanations and
interpretations of education records. (34 CFR 300.562(b)(1); 34 CFR
99.10(c)).
    Accordingly, if a school were to maintain a copy of a student's
test answer sheet (an ``education record''), the parent would have
a right under Part B and FERPA to request an explanation and
interpretation of the record. The explanation and interpretation by
the school could entail showing the parent the test question
booklet, reading the questions to the parent, or providing an
interpretation for the responses in some other adequate manner that
would inform the parent.
    With regard to parents having access to ``raw data or notes,''
FERPA exempts from the definition of education records under 34 CFR
99.3 those records considered to be ``sole possession records.''
FERPA's sole possession exception is strictly construed to mean
``memory-jogger'' type information. For example, a memory-jogger is
information that a school official may use as a reference tool and,
thus, is generally maintained by the school official unbeknownst to
other individuals.
    With respect to the issue of liability for disclosing
information to parents when other laws or contractual obligations
would prohibit it, public agencies are required to comply with the
provisions of IDEA and FERPA, and must ensure that State law and
other contractual obligations do not interfere with compliance with
IDEA and FERPA. Federal copyright law protects against the
distribution of copies of a copyrighted document, such as a test
protocol. Since IDEA and FERPA generally do not require the
distribution of copies of an education record, but rather parental
access to inspect and review, Federal copyright law generally
should not be implicated under these regulations.
    There is nothing in the legislative history of section
615(b)(1) of the Act to suggest that it expanded the scope of
information available to parent examination beyond those records
that they would have access to under FERPA.

Changes: None.

    Comment: There were a variety of comments regarding the
timeline in paragraph (a) for agency compliance with a parent
request to inspect and review records. Some commenters thought it
should be ``45 school days'' rather than 45 calendar days. Others
felt that 45 days was too long, and that access should be provided
usually within 10 days and no longer than 30 days after the
request. Others wanted a one business day timeline if the agency
has initiated an expedited due process hearing. Another commenter
asked that agencies have to respond to a request to inspect and
review before any meeting that parents now have the right to
attend, not just before IEP meetings and

[[Page 12642]]

due process hearings. Other commenters wanted access to be required
at least five days before an IEP meeting and wanted it made clear
that if State or local law provided for shorter timelines, that
those timelines must be met.
    Discussion: The 45 day timeline is taken from FERPA, to which
these regulations are tied by statute. FERPA requires that each
educational agency or institution establish appropriate procedures
for the granting of a request by parents for access to the
educational records of their children within a reasonable period of
time but in no case more than 45 days after the request has been
made. In order not to confuse and increase administrative burden,
these regulations are intended to be consistent with FERPA where
possible. In practice, schools often provide access within a period
of time that is considerably shorter than the 45-day time limit,
which is the maximum time allowed for compliance.
    The commenters are correct that the new expedited due process
hearing procedures will require prompt access by parents when
requested, but the regulations already adequately addresses the
obligation of the participating agencies to provide access before
a hearing and so no more specific timeline is added to the
regulations. However, the regulations should be changed to
acknowledge the new expedited due process hearing procedures in
Secs. 300.521-300.528 concerning discipline. Changes are not made
with respect to other meetings, in light of the confusion and
increased administrative burden inherent in such a change. Public
agencies, however, are encouraged to provide parents access, when
requested, in advance of these meetings to the greatest extent
possible.
    Changes: Paragraph (a) of this section has been amended to
acknowledge that access rights also apply to the new expedited due
process hearing procedures under Secs. 300.521-300.528.
    Comment: Other commenters asked that parents receive at no cost
copies of their child's records prior to meetings or hearings,
rather than just have the right to inspect and review those
records. Another commenter asked that the regulations specify that
parents or their legal representatives have the right to copy any
record they feel they need for an agency-specified reasonable
charge per page. Another commenter stated that parents or their
legal representatives should also have access to any manuals used
in preparing or evaluating any student records.
    Discussion: As explained previously, these regulations should
be consistent with those implementing FERPA to the greatest extent
possible to prevent confusion and limit administrative burden on
participating agencies. Therefore, it would not be appropriate to
give parents additional rights to copies of their child's records.
FERPA generally provides for a right to inspect and review records
(34 CFR Sec. 99.10) and permits agencies to charge fees for copies
of education records provided to parents. (34 CFR 99.11).
    These rules would apply to education records of a student that
concern services required under the IDEA as well as all other
education records. Paragraph (b)(2) of Sec. 300.562 provides that
a participating agency is required to provide copies of education
records to a parent if failure to do so would effectively prevent
the parent from inspecting and reviewing the records. (See, also 34
CFR 99.10(d)(1)). One such instance would be if the parent lives
outside commuting distance of the participating agency. The
Secretary has decided that it would impose unnecessary burden to
require participating agencies to provide copies except as
described previously. However, participating agencies are free to
adopt policies of providing copies in other cases, if they choose
to do so.
    Access should not be required to documents that are not covered
by the definition of education records, such as teacher or
evaluator manuals. The requirements of paragraph (b)(1) of this
section and 34 CFR 99.10(c) which provide that parents may request
an explanation and interpretation of their children's education
records will permit parents sufficient information about the
contents of their children's education records.
    Changes: None.

Fees (Sec. 300.566)

    Comment: Several commenters requested that this section make
clear that fees that can be charged may not include the cost of the
labor involved in copying the records. Others asked that
participating agencies not be permitted to charge parents more than
the actual costs they incur in copying the records, or charge more
than the prevailing rate in the community. Commenters also asked
that agencies not be permitted to require parents to provide
private financial information before providing copies of records at
no cost. Some commenters asked whether LEAs could use Part B funds
to cover the costs of providing parents copies so that fees would
not have to be charged.
    Discussion: Under these regulations and those implementing
FERPA, participating agencies are entitled to charge reasonable
fees for the actual cost of reproduction and postage. Under FERPA,
a school may charge a fee for a copy of an education record which
is made for the parent, unless the imposition of a fee effectively
prevents the parent from exercising the right to inspect and review
the student's education records. A school may not charge a fee to
search for or to retrieve the education records. (34 CFR 99.11).
Agencies may of course adopt policies of making copies available
free of charge and are encouraged to do so. Agencies may use Part
B funds to cover the costs that otherwise would be charged to
parents.
    Changes: None.

Consent (Sec. 300.571)

    Comment: One commenter noted an apparent contradiction between
this section, which requires parental consent before records are
disclosed, and proposed Sec. 300.529(b), which requires that LEAs
transmit copies of special education and disciplinary records of a
child to appropriate authorities when reporting a crime to those
authorities.
    Discussion: As explained in the discussion of Secs. 300.529 and
300.529(b) permit the transmission of copies of education records
only to the extent that disclosure without parental consent is
permitted by FERPA. Because the prior Sec. 300.571 would have
prohibited disclosures without parent consent to agencies, such as
law enforcement or juvenile justice agencies, that are not
``participating agencies'' under Secs. 300.560-300.577 even though
disclosure without parent consent to these entities in certain
circumstances would have been permitted under FERPA, a change
should be made to this section so that these regulations permit
disclosures to the extent they are permitted under FERPA.
    Changes: Paragraph (a) has been amended to permit disclosures
without parental consent to the agencies identified in Sec.
300.529, to the extent permitted under FERPA.

Destruction of Information (Sec. 300.573)

    Comment: One commenter suggested that destruction of student
records could act to deny students future benefits such as private
insurance coverage and assistance in college.
    Discussion: The regulations provides that parents must be
informed when personally-identifiable information is no longer
needed to provide educational services to the child. This notice
would normally be given after a child graduates or otherwise leaves
the agency. As the note following this section in the NPRM pointed
out, personally-identifiable information on a

[[Page 12643]]

child may be retained permanently unless a parent requests that it
be destroyed.
    The purpose of the destruction option is to allow parents to
decide that records about a child's performance, abilities, and
behavior, which may possibly be stigmatizing and are highly
personal, are not maintained after they are no longer needed for
educational purposes. On the one hand, parents may want to request
destruction of records as it is the best protection against
improper and unauthorized disclosure of what may be sensitive
personal information. However, individuals with disabilities may
find that they need information in their education records for
other purposes, such as public and private insurance coverage.
    In informing parents about their rights under this section, it
would be helpful if the agency reminds them that the records may be
needed by the child or the parents for social security benefits or
other purposes. Even if the parents request that the information be
destroyed, the agency may retain the information described in
paragraph (b) of this section.
    In instances in which an agency intends to destroy personally-
identifiable information that is no longer needed to provide
educational services to the child (such as after the child has
graduated from, or otherwise leaves the agency's program), and
informs parents of that determination, the parents may want to
exercise their right to access to those records and request copies
of the records they will need to acquire post-school benefits in
the future. In the interest of limiting the use of notes in these
regulations, the note following this section would be removed.
    Changes: The note following this section has been removed.

Children's Rights (Sec. 300.574)

    Comment: Several commenters asked that the substance of the
notes following this section in the NPRM be incorporated in the
regulations.     Discussion: Because of the importance of
clarifying the relationship of parent and child rights under IDEA
and FERPA, including the new provisions of the IDEA concerning
transfer of rights at the age of majority, and the general decision
to eliminate all notes in these regulations, the substance of the
notes following this section in the NPRM would be incorporated into
the regulations.
    Changes: The substance of Notes 1 and 2 have been incorporated
into the regulations.

Disciplinary Information (Sec. 300.576)

    Comment: One commenter requested that the term ``disciplinary
action'' be defined. A commenter asked that the regulations make
clear that action taken in response to conduct that was a
manifestation of the child's disability is not ``disciplinary
action'' under this section. Another asked that the results of a
manifestation review be included in the student records to protect
the child as well as the educational agencies.
    One commenter asked that this section be revised to clarify
that before applying a policy and practice of transmitting
disciplinary information in the student records of disabled
children, an LEA must first have such a policy and practice for the
student records of nondisabled students, and that transmissions of
student records that include disciplinary information to a
student's new school under paragraph (c) can only occur to the
extent such information is transferred for nondisabled students.
    Discussion: It is important that the regulations allow school
districts to understand what information may be transmitted under
this section. Under Section 504, schools may not take a
disciplinary action that constitutes a change of placement for
behavior that was a manifestation of a child's disability. Making
this point in the context of these regulations will assist schools
in understanding what information may not be considered a statement
about a disciplinary action and protect the interests of children
with disabilities in not being identified as disciplinary problems
because of behavior that is a manifestation of their disability.
Further regulations are not necessary about what information may be
transmitted to another school to which the child transfers.
    Further regulation is not needed to make clear that the LEA's
policy on transmitting disciplinary information must apply to both
nondisabled and disabled students, as that provision is already
contained in paragraph (a) of this section as to an LEA's policy.
An LEA that had a policy that applied equally to nondisabled and
disabled students but applied that policy only to transfers of
records of disabled students would be in violation of Section 504,
as well as Part B.
    Changes: None.

Department Procedures (Secs. 300.580-300.589)

    Comment: One commenter objected that the procedures in proposed
Secs. 300.580-300.589 are overly detailed and bureaucratic. This
commenter also stated that these procedures incorporate language
from the old regulations concerning disapproval of State plans,
which is no longer relevant in light of changes in the statute.
Another commenter noted that proposed Sec. 300.583 mentioned
disapproval of State plans and requested that it be revised to
refer to denial of eligibility.     Discussion: The Department does
not agree that the procedures in Secs. 300.580-300.589 are overly
detailed. When the Secretary proposes to deny a State's
eligibility, withhold funds or take other enforcement action and
when a State has requested a waiver of supplement not supplant or
maintenance of effort requirements, 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.
The commenter is correct that proposed Secs. 300.580-300.586 are
substantially the same as old regulations that addressed
disapproval of a State plan, and that State plans are no longer
required by the statute. When necessary, however, these same
procedures were designated in the past by the Secretary as the
procedures to follow on a proposed denial of State eligibility, a
concept that remains in the law.     Changes: A technical change
has been made to Sec. 300.583(a)(1) to refer to denial of State
eligibility rather than State plan disapproval.

Enforcement (Sec. 300.587)

    Comment: Some commenters stated that the regulations should
contain a trigger when the Department must initiate enforcement
action for systematic noncompliance with the Act. These commenters
wanted a similar trigger provision added to Sec. 300.197 regarding
SEA enforcement against noncompliant LEAs. One commenter asked that
paragraph (c) be revised to specify that fund withholding first be
limited to funding for administrative personnel of the noncompliant
SEA or LEA, so as to prevent denial or interruption in services to
children with disabilities. Another commenter requested that the
enforcement mechanisms mentioned in the note be incorporated into
the regulation.     Several commenters objected to language in
paragraph (e) which indicated that the Secretary would have a
variety of enforcement actions available if a State were not
providing FAPE to children with disabilities who are convicted as
adults under State law and incarcerated in adult prisons. The
commenters expressed the belief that the statute and its
legislative history

[[Page 12644]]

make clear that the only enforcement action for failure to provide
services to individuals convicted as adults under State law and
incarcerated in adult prisons when the State has assigned
responsibility for ensuring compliance with the IDEA to an agency
other than the SEA under section 612(a)(11)(C) of the Act would be
to withhold that agency's pro-rata share of the Part B grant.
    Discussion: It would not be advisable to limit, through
regulation, the discretion afforded the Secretary by the statute
regarding appropriate enforcement mechanisms and when they should
be employed. Given the very wide variety in potential situations in
which compliance issues arise, and the significant differences in
the scope and nature of the issues presented in compliance
situations, the Secretary needs the discretion to exercise reasoned
judgment about how best to achieve compliance and the tools to be
used to do so.
    Under the statute, the Secretary, upon a finding of a State's
noncompliance with the provisions of Part B or of an LEA's or State
agency's noncompliance with any condition of their eligibility,
shall withhold further payments, in whole or in part, or refer the
matter for appropriate enforcement action, which may include
referral to the Department of Justice. This statutory language
provides clear authority for including in the regulations the three
enforcement options of withholding, referral to the Department of
Justice, and other enforcement actions authorized by law. The other
enforcement actions authorized by law include those set out in the
General Education Provisions Act (GEPA), which are generally
applicable to recipients of funds from the Department and are
consistent with the goal of ensuring compliance with the
requirements of this program.
    The enforcement mechanisms mentioned in the note to this
section are authorized by GEPA. The purpose of the note is merely
to inform the readers that these are some of the additional
enforcement procedures that the Secretary could choose to apply to
a given instance of noncompliance. In the interest of limiting the
use of notes in the regulations, the note would be deleted.
    In cases where the State has transferred to a public agency
other than the SEA the responsibility for ensuring compliance with
the Act as to children with disabilities who are convicted as
adults under State law and are incarcerated in adult prisons, and
the Secretary finds substantial noncompliance by that other public
agency, the statutory language limits withholding a proportionate
share of the State's total grant under section 611 of the Act.
However, the statute does not impose restrictions on the
Department's use of other enforcement mechanisms. The legislative
history on this issue shows two primary concerns, one is the
reasonable limitation of services to this population in order to
allow States to balance bona fide security and compelling
penological concerns against the special education needs of the
individual, and the other is that a State not be threatened with a
withholding of their entire grant amount for a failure to serve
this population.
    The regulations address these concerns by interpreting the
statutory provisions in a way that limits withholding of funds as
Congress intended, but allows the Secretary, should he or she
believe that limited withholding of funds is not the appropriate
means to ensure compliance, the additional enforcement options
authorized by law.
    Changes: The note following this section has been deleted.

Waiver of Requirement Regarding supplementing and not Supplanting
With Part B Funds (Sec. 300.589)

    Comment: One commenter said that because State requests for
waivers of provisions of the Act are major policy proposals, the
public participation requirements of Secs. 300.280-300.284 should
apply to the State's waiver request proposal. The commenter also
asked that Sec. 300.589 be revised to permit public comment to be
considered on any impact the waiver request will have on the
State's ability to successfully implement the Act, not just the
FAPE provisions of the Act.
    Discussion: The procedures proposed by the Secretary provide
for public comment on the question of whether a waiver should be
granted by the Secretary after the State has first made a prima
facie showing that FAPE is and will continue to be available if the
waiver is granted. (See Sec. 300.589(d)). This process is adequate
to ensure that the views of the public are considered in deciding
waiver requests and Secs. 300.280-300.284 should not be applied to
the State's waiver request proposal.
    Sections 612(a)(18)(C) and 612(a)(19)(C)(ii) of the Act give
the Secretary the authority to grant a waiver in whole or in part
if the State provides ``clear and convincing evidence that all
children with disabilities have available to them a free
appropriate public education.'' Under Sec. 300.589(d), when the
Secretary conducts a public hearing on a State's waiver request,
interested parties are afforded the opportunity to present evidence
on whether FAPE is currently available to all children with
disabilities and whether the State will be able to ensure that FAPE
remains available to all eligible children with disabilities if the
Secretary provides a waiver. This would include a wide variety of
topics, such as the State's ability to ensure an adequate supply of
qualified personnel to provide FAPE, or to maintain an effective
and efficient due process hearing system. Even if a waiver is
granted, the State will still be required to comply with all the
other requirements of Part B.
    Changes: A technical change has been made to conform to the
statutory provision that the Secretary provides a waiver in whole
or in part.

Subpart F

Responsibility for all Educational Programs (Sec. 300.600)

    Comment: Several commenters requested that this section be
revised to emphasize the SEA's obligation to monitor implementation
of the Act. One commenter requested that States be required to
verify that all corrective actions have been taken within a certain
period of time. Another commenter asked that paragraph (d) be
revised to specify that the SEA retains supervisory authority over
any public agency to which the Governor or his or her designee has
assigned responsibility for children with disabilities who are
convicted as adults under State law and incarcerated in adult
prisons.
    Discussion: A strong SEA monitoring process to ensure effective
implementation of the Act is crucial to improving educational
results for children with disabilities. A basic component of
eligibility has long been that the SEA exercises general
supervisory responsibility over all educational programs for
children with disabilities in the State, including ensuring that
those programs meet the requirements of Part B. This responsibility
includes not just monitoring, and enforcement when noncompliance is
not corrected, but also effective technical assistance that focuses
on best practice designed to improve the substantive content and
results of special education. We know, from long experience in
administering this Act, that if SEA monitoring is lax, noncompliant
practices emerge at the local level and indicators of performance
for children with disabilities decline.
    A priority of the Department's monitoring will be the State's

[[Page 12645]]

compliance regarding the State's supervisory role in the
implementation of Part B. However, further regulation is not
necessary. There is a great variety of circumstances that may give
rise to compliance problems, and States should have some
flexibility in fashioning remedies and timelines for correction.
Verifying that corrective action has been completed has always been
an integral part of the State's supervisory role.
    The statute permits the Governor or appropriate State designee
to assign to another agency supervisory responsibility for children
with disabilities who are convicted as adults under State law and
incarcerated in adult prisons. The statute does not contemplate
that the SEA would retain supervisory authority over the education
of children with disabilities who are convicted as adults under
State law and incarcerated in adult prisons if the Governor or
designee has assigned that responsibility to another agency.
    Changes: Consistent with the decision to not include notes in
these regulations, the note following this section has been
removed.

Amount Required for Subgrants to LEAs (Sec. 300.623)

    Comment: None.
    Discussion: The amount that will be required to be distributed
as subgrants to LEAs for capacity-building and improvement
activities as specified in Sec. 300.622 will vary from year to year
and is determined by the size of the increase in the State's
allocation. Funds used for the required subgrants to LEAs in one
year become part of the required amount that must be flow-through
to LEAs consistent with the formula in Sec. 300.712 in the next
year.
    In those years in which the State's allocation does not
increase over the prior year by at least the rate of inflation, the
required set-aside for capacity-building and improvement grants
will be zero. However, States may always use, at their discretion,
funds reserved for State-level activities under Sec. 300.602 for
these subgrants.     Changes: Consistent with the decision to not
include notes in these regulations, the note following this section
has been removed.

State Discretion in Awarding Subgrants (Sec. 300.624)

    Comment: None.
    Discussion: This section specifies that States may establish
priorities for subgrants under Sec. 300.622 to LEAs and may award
those subgrants competitively or on a targeted basis. This is
because the purpose of subgrants under Sec. 300.622, as
distinguished from the formula subgrants to LEAs under Sec.
300.712, is to provide funding that the SEA can direct to address
particular needs not readily addressed through formula assistance
to school districts such as funding for services to children who
have been suspended or expelled. The SEA can also direct these
funds to promote innovation, capacity building, and systemic
changes that are needed to improve educational results.
    Changes: Consistent with the decision to not include notes in
these regulations, the note following this section has been
removed.

Establishment of Advisory Panels (Sec. 300.650)

    Comment: One commenter wanted the regulation revised to specify
that the panel must be independent and operate under the direction
of officers elected by members of the panel.
    Discussion: Additional specificity is not needed. Within the
limits of the minimum requirements of the regulations, the
operation of these panels should be left to the States.
    The concept from the note, that the State advisory panel would
advise on the education of children with disabilities who have been
convicted as adults and incarcerated in adult prisons, even if a
State has assigned general supervision responsibility for those
students to an agency other than the SEA should be incorporated
into Sec. 300.652, which addresses the functions of the State
advisory panel. This is consistent with the purpose of the advisory
panel under section 612(a)(21)(A) of the Act--to provide policy
guidance with respect to special education and related services for
children with disabilities in the State.
    Changes: The second sentence of the note has been integrated
into Sec. 300.652. The note has been removed.

Membership (Sec. 300.651)

    Comment: The Department received a variety of comments
concerning the membership of the State advisory panels. Many
commenters wanted representatives of specific additional groups,
such as a representative of a Parent Training and Information
Center in the State, added to the list of mandatory membership.
Several commenters wanted paragraph (b) to be modified to permit
parents of adults who had been children with disabilities, or
persons who had relatively recent experience (e.g., within the last
three years) as a parent of a child receiving services under the
Act, to be counted as a part of the mandatory majority.     Some
commenters wanted a provision added to paragraph (b) to prohibit
individuals with a past or present affiliation, such as employment,
with an agency receiving funding under the Act from being
considered a part of the individuals with disabilities, or parents
of children with disabilities, majority. Others asked that the
regulations encourage States to seek the participation of
nonacademic professionals on the panels or to recruit parent
representatives through nominations from parent and advocacy
groups.
    Discussion: An advisory panel will be most effective if it
fairly represents the various interests of the groups concerned
with the education of children with disabilities and is perceived
as such by the community at large. In selecting members for the
State advisory panel, States are encouraged to solicit individuals
to serve as members who do not have, and will not be perceived as
having, a conflict of interest in representing the views of the
group they were selected to represent. That said, additional
regulation is not necessary or appropriate. The requirements of
Sec. 300.651 are statutory. States should have the discretion to
appoint members to these panels, within these statutory
requirements, in a manner that best meets their needs. There is
nothing in the Act that prohibits an individual with a disability,
or the parent of a child with a disability, from employment with
the SEA or an LEA, and there will be many instances when the
perspective that an individual with a disability or the parent of
a child with a disability may bring to decisions as an employee of
a public education agency will greatly improve education for
children with disabilities in that jurisdiction. The term
``children with disabilities'' is a defined term under the Act and
in the context of Part B, refers to those children with
disabilities from birth through age 21 who are eligible for
services under Part B.
    Changes: None.

Advisory Panel Functions (Sec. 300.652)

    Comment: Several commenters sought expansion of the duties of
the advisory panel to encompass various operational tasks, such as
overseeing the development and implementation of a reliable and
timely data system on due process hearings.
    Discussion: Section 612(a)(21)(A) of the Act specifies that the
purpose of the State advisory panels is to provide policy guidance
with respect to special education and related services for children
with disabilities in the State. The functions of the advisory panel
specified in Sec. 300.652 are drawn from

[[Page 12646]]

the statutory charge of the advisory panels. The regulations do not
mandate operational duties for an advisory panel. However, if the
SEA wants to assign other responsibilities to the advisory panel,
it may do so, as long as those other duties do not prevent it from
carrying out its responsibilities under IDEA.
    Changes: No change has been made in response to these comments.
See discussion of comments received under Sec. 300.650, regarding
a change to Sec. 300.652.

Advisory Panel Procedures (Sec. 300.653)

    Comment: Some commenters asked that paragraph (d) be revised to
require that public notice of advisory panel meetings and agendas
be made far enough in advance so that interested parties, such as
parents and others, may plan to attend. At least one commenter
requested that the term ``reasonable and necessary expenses'' in
paragraph (f) be revised to indicate that child care expenses are
reimbursable.     Discussion: Since the purpose of announcing
meetings and agendas for those meetings is to allow the interested
public to attend, the meetings and agendas of the meetings of the
advisory panels should be announced early enough so that interested
parties can plan to attend those meetings, but an absolute time
line is not necessary. A similar standard is used in these
regulations at Sec. 300.281(c)(2) regarding notice of public
hearings about State policies and procedures related to the Part B
program. Furthermore, States should have the discretion to decide
what are reasonable and necessary expenses related to participation
in meetings and performing other duties of the advisory panel.
These may include child care expenses or personal assistant
services.
    Changes: Paragraph (d) is revised to require that advisory
panel meetings and agenda items are announced enough in advance to
afford interested parties a reasonable opportunity to attend and
that the meetings be open to the public.

Adoption of State Complaint Procedures (Sec. 300.660)

    Comment: Several commenters requested that the note following
this section be deleted, while others thought it was important to
make the point that compensatory services can be awarded by an SEA.
    Discussion: The note merely reflected what has always been the
case--that SEAs have the authority to order compensatory services
in appropriate circumstances as a remedy for violations of Part B
in resolving complaints under the procedures in Secs.
300.660-300.662. However, in light of the decision to remove all
notes from these regulations, and to emphasize the importance of
SEA action to resolve complaints in a way that provides individual
relief when appropriate and addresses systemically the provision of
appropriate services, a provision would be added to this section to
clarify that if it has found a failure to provide appropriate
services to a child with a disability through a complaint, the
resolution addresses both how to remediate the denial of services,
which can include an award of compensatory services, monetary
reimbursement, or other corrective action appropriate to the needs
of the child, and how to provide appropriate services for children
with disabilities.
    Changes: A new paragraph (b) has been added on how an SEA
remedies a denial of appropriate services. The prior paragraph (b)
has been integrated into paragraph (a) and the reference to parent
training and information centers is corrected. The note has been
deleted.

Minimum State Complaint Procedures (Sec. 300.661)

    Comment: A number of commenters requested that the possibility
of Secretarial review be reinstated in the final regulations while
others supported the change. Some State commenters objected to
having to resolve complaints on matters on which parents could have
elected to file a due process hearing request.
    Discussion: The possibility of Secretarial review has not been
an efficient use of the Department's resources, which can be better
directed to improving State system-wide implementation of the Act
for the benefit of students with disabilities. Because of the
unsuitability of the Department evaluating factual disputes in
individual cases, most requests for Secretarial review are denied.
The existence of the Secretarial review process may falsely
encourage parents to delay taking an issue to mediation or due
process so that their case is not timely filed. The Department has
other more efficient mechanisms such as on-site monitoring reviews,
policy reviews and complaint referrals, to ensure correction of
violations that are brought to its attention. In addition, the
Department intends to carefully assess States' efforts to improve
their complaint resolution processes where the need is identified.
    State responsibility for ensuring compliance with the Act
includes resolving complaints even if they raise issues that could
have been the subject of a due process hearing request. A State's
general supervisory responsibility is not satisfied by relying on
private enforcement efforts through due process actions for all
issues that could be the subject of a due process hearing. In
addition, the State complaint process and mediation provide parents
and school districts with mechanisms that allow them to resolve
differences without resort to more costly and litigious resolution
through due process.
    In the interests of building cooperative, collaborative
relationships with all parties involved in the education of
children with disabilities, States are encouraged to offer
mediation, as appropriate, when a State complaint has been filed,
as well as when a due process hearing has been requested. The
existence of ongoing mediation in and of itself should not be
viewed as an exceptional circumstance under Sec. 300.661(b);
however, if the parties agree that the complaint resolution
timeline should be extended because of the mediation the SEA may
extent the timeline for resolution of the complaint.
    In light of the general decision to remove all notes from these
regulations, the notes following this section would be removed.
Because these notes provided an important explanation of how the
State complaint process interacts with the due process hearing
process, they would be incorporated into the regulation. This will
reduce unnecessary disputes between SEAs and complainants in cases
in which a complaint raises an issue that also is raised in a due
process hearing.     Changes: Paragraphs (b) and (c) have been
combined into a new paragraph (b). A new paragraph (c) has been
added to clarify that if an issue in a complaint is the subject of
a due process hearing, that issue (but not those outside of the due
process proceeding) would be set aside until the conclusion of the
due process hearing; that the decision of an issue in a due process
hearing would be binding in a State complaint resolution; and that
a public agency's failure to implement a due process decision would
have to be resolved by an SEA. The notes following this section
have been deleted.

Filing a Complaint (Sec. 300.662)

    Comment: Commenters generally supported the concept, reflected
in paragraph (c) of this section, that there should be a reasonable
time limit on issues subject to the complaint process. One
commenter wanted a delayed effective date for this limitation until
the individual notice of these complaint

[[Page 12647]]

procedures had been in effect for a year. Another wanted States to
be able to waive that limitation for compelling reasons. Another
commenter wanted States to have more flexibility to disregard
complaints that are weak or insubstantial, are a continuation of a
pattern of complaints that have repeatedly been found factually or
legally unfounded, or that are about the same issue as addressed in
a recently closed complaint or compliance review. Another commenter
objected to the note, stating that a State should not have to deal
with complaints filed by persons outside the State.
    Discussion: The time limits in Sec. 300.662(c) were added in
recognition that at some point the issues in a complaint become so
stale that they are not reasonably susceptible to subsequent
resolution. However, such a time limit should include an exception
for continuing violations. States are free to accept and resolve
complaints regarding alleged violations that occurred outside those
timelines, 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.
    States must evaluate and resolve each complaint on its own
merits. It is reasonable for a State to resolve a complaint on an
issue that is the same as an issue in an earlier resolved complaint
by reference to that earlier complaint resolution if it has first
concluded, through review and evaluation, that the facts and
circumstances pertinent to the complaints are unchanged. If a State
were to refuse to accept a complaint because it appeared to be
similar to an issue in an earlier-resolved complaint without
reviewing whether the facts and
circumstances pertinent to the complaints remain the same, the
State could be ignoring potential violations of the Act.
    With regard to the statement in the note that States must
resolve complaints which allege violations of the Act within their
respective State even if received from an individual or
organization outside of the State, States are responsible for
ensuring compliance with Part B.     A complaint about
implementation of the Act filed by someone outside of the State may
be as effective in bringing compliance issues to the State's
attention as complaints from State residents. In light of the
general decision to remove all notes from these regulations, and to
make clear the point that complaints from organizations or
individuals from out of State must also be resolved, that concept
would be integrated into Sec. 300.660(a).
    Changes: Section Sec. 300.660(a) has been revised to clarify
that any complaint includes complaints filed by organizations or
individuals from another State. The note following this section has
been deleted.

Subpart G--Allocation of Funds; Reports

Allocations to States (Sec. 300.703)

    Comment: None.
    Discussion: A reference to allocating funds to the freely
associated States was omitted from paragraph (a).
    Paragraph (a) incorrectly refers to the method of distribution
in Secs. 300.704-300.705. These sections are reserved.
    Changes: A reference to freely associated States has been added
and the references to Secs. 300.704-300.705 have been deleted.

Permanent Formula (Sec. 300.706)

    Comment: None.
    Discussion: Paragraph (b)(2) refers to the amount received by
a State under ``this section'' in the base year. Funds would not be
provided under this section of the regulations in the base year.
They would be provided under section 611 of the Act, as indicated
in Sec. 300.703(b).
    Changes: The reference has been corrected to cite section 611
of the Act.

Increases in Funds (Sec. 300.707)

    Comment: None.
    Discussion: Section 300.707 indicates how allocations are to be
made if the amount available for allocations to States under Sec.
300.706 is equal to or greater than the amount allocated to the
States under ``this section'' for the preceding fiscal year. The
reference to ``this section'' should be to section 611 of the Act. 
   Changes: The reference has been revised by replacing the words
``this section'' the first time they appear with ``under section
611 of the Act''.

Limitation (Sec. 300.708)

    Comment: None.
    Discussion: The language in Sec. 300.708 describing conditions
that are ``Notwithstanding Sec. 300.707'' are actually consistent
with Sec. 300.707 since Sec. 300.708 is mentioned in Sec. 300.707
as establishing conditions.
    Changes: The reference has been clarified by rewording the
first sentence of Sec. 300.707.

Allocations to LEAs (Sec. 300.712)

    Comment: Commenters were concerned about the distribution of
funds when the permanent formula takes effect. In particular, with
regard to the base payments provision in Sec. 300.712(b),
commenters expressed concern that it could result in a reduction of
funds for LEAs in the case of an SEA that distributes more than 75
percent of its allocation to LEAs, and the LEA has a high child
count. Because of the apparent absence of a ``hold harmless''
provision, commenters recommended clarification that this provision
does not require an SEA to reduce its allocation to an LEA. Other
commenters asked whether proposed Sec. 300.712(b)(2)(i) means that
States should be allocating extra funds to LEAs based on the total
number of students, both regular and special education students, or
whether States should allocate based on numbers of special
education students only. These commenters requested that the phrase
``relative numbers'' be clarified.
    With respect to the note following this section of the NPRM, a
concern of one commenter was that proposed Sec. 300.712(b)(2) could
be construed as limiting States' ability to direct how their LEAs
expend Part B funds that have been reallocated to LEAs that had not
adequately provided FAPE to children with disabilities, and
recommended clarification that a State may direct how any
allocation to an LEA is to be spent.
    A commenter recommended that, in calculating the distribution
of the 15 percent allocation under the permanent formula,
consideration be given for LEAs with a high incidence of children
who live in institutional and other congregate care facilities, who
have special needs and attend public schools.
    Discussion: Section 611(g)(2)(B)(i) of the Act requires that
when the permanent formula becomes effective, LEAs be allocated
base payments based on 75 percent of the amounts that each State
received in the year prior to that in which the permanent formula
became effective. Funds that States are required to allocate to
LEAs above this level must be allocated based on children enrolled
in elementary and secondary schools and children in poverty. This
will result in some redistribution of funds among LEAs that have
received funds above the 75 percent level on a basis of counts of
children with disabilities. However, because these provisions are
based on the Act, they cannot be changed through regulations.
States may address this redistribution of resources through funds
that they set aside for State level activities.     The IDEA
Amendments of 1997 maintain, in section 611(f) of the Act, as
reflected in Sec. 300.370(a), the flexibility of States to provide
additional support

[[Page 12648]]

to LEAs using these funds. However, it is appropriate to amend Sec.
300.370 to clarify that SEAs may use these funds directly, or
distribute them on a competitive, targeted, or formula basis to
LEAs.     Section 300.712(b)(2)(i) is based on section
611(g)(2)(B)(ii)(I) of the Act, which requires that required flow
through funds to LEAs be distributed based on the relative numbers
of ``children enrolled'' in public and private elementary and
secondary schools. Children enrolled include both regular and
special education students.
    The term ``relative numbers'', which is used in section
611(g)(2)(B)(ii) of the Act and in proposed Sec. 300.712(b)(2),
adequately conveys the meaning that the allocations of the 85
percent and the 15 percent will be the same proportion of the total
available as the respective numbers of children in the LEA to the
State totals.     Section 300.712(b)(3) deals with the allocation
of funds, not the use of funds.
    Section 611(g)(2)(B)(ii) of the Act, as reflected in proposed
Sec. 300.712(b)(2), requires that 15 percent of the funds remaining
after base payments be distributed based on the relative numbers of
children living in poverty as determined by the SEA in each LEA.
The incidence of children living in institutional or other
congregate care facilities is not a factor in this distribution,
and cannot be added. However, SEAs may use funds available for
State level activities to provide additional support for children
in institutional or other congregate care facilities.
    Changes: Section 300.370 has been amended to add a new
paragraph (c) to clarify that an SEA may directly use funds that it
retains but does not use for administration, or may distribute them
to LEAs on a competitive, targeted, or formula basis.
    Comment: None.
    Discussion: Although no comments were received for this Part
regarding base payments for new LEAs, a number of commenters on the
Preschool Grants for Children with Disabilities program regulations
(34 CFR Part 301) raised the issue of whether charter schools or
LEAs not in existence during fiscal year 1997 would be eligible for
a base payment under Sec. 301.31(a) of the regulations for the
Preschool Grants for Children with Disabilities program, and, if
so, how such payments should be calculated.
    A similar issue exists with regard to base payments under the
Assistance to States for the Education of Children with
Disabilities program after the appropriation under section 611(j)
of the Act exceeds $4,924,672,200. The regulations should be
revised to ensure that charter schools established under State law
as LEAs and LEAs not in existence in the year prior to the year in
which the appropriation for the Assistance to States for the
Education of Children with Disabilities program exceeds
$4,924,672,200 are eligible to receive base payments.
    In addition, if the boundaries of LEAs that were in existence
or administrative responsibility for providing services to children
with disabilities ages 3 through 21 are changed, adjustments to the
base payments of the affected LEAs also should be made. For
example, a change in administrative responsibility might encompass
a change in the age range for which an LEA is responsible for
providing services such as where responsibility for serving high
school students is transferred from one LEA to another.
    These adjustments will ensure that affected LEAs equitably
share in their base payments. The base amounts for new and
previously existing LEAs, once recalculated, should become the new
base payments for the LEAs. These base payments would not change
unless the payments subsequently need to be recalculated pursuant
to Sec. 300.712.     Adjustments to base payments would be based on
the current numbers of children with disabilities served as
determined by the SEA. In making a determination, the SEA may
exercise substantial flexibility. For example the SEA may choose to
revise base payments based on the current location of children with
disabilities included in a previous child count or a new count of
children served by affected LEAs.     Changes: Section 300.712 has
been revised to clarify that, if LEAs are created, combined, or
otherwise reconfigured subsequent to the base year (i.e. the year
prior to the year in which the appropriation under section 611(j)
of the Act exceeds $4,924,672,200), the State is required to
provide the LEAs involved with revised base allocations calculated
on the basis of the relative numbers of children with disabilities
ages 3 through 21, or 6 through 21 depending on whether the State
serves all children with disabilities ages 3 through 5, currently
provided special education by each of the affected LEAs.    
Comment: A number of commenters requested that notes be deleted
from the regulations implementing Part B of IDEA.
    Discussion: The note following this section in the NPRM
indicates that States should use the best data available to them in
making allocations based on school enrollment and children living
in poverty. The note also encourages LEAs to include data on
children who are enrolled in private schools and suggests
alternative sources such as aggregate data on children
participating in the free or reduced-price meals program under the
National School Lunch Act and allocations under title I of the
Elementary and Secondary Education Act as bases for determining
poverty. These suggestions still reflect options for allocating
funds, but need not be specified in the regulations. The
requirement for States to use the best data available to them
should be included in the regulations.
    Changes: The note has been removed and Sec. 300.712 has been
expanded to state that 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.

Former Chapter 1 State Agencies (Sec. 300.713)

    Comment: Commenters indicated that Sec. 300.713, which mirrors
the statutory language regarding payments to former Chapter 1 State
agencies, should be clarified to indicate that these agencies must
receive the current amount of their Part B allocation, rather than
an amount that would not exceed the fiscal year 1994 per child
amount. Otherwise, the result would be a reduction of allocations
to these agencies. The commenters recommended adding a new
paragraph (c) to Sec. 300.713 to provide that, in years where the
per child amount under Part B exceeds the per child amount for
fiscal year 1994, each State agency shall receive the per child
amount under Part B for each child to whom the agency is providing
special education and related services in accordance with an IEP.
    Other commenters indicated the need to clarify that payments to
former Chapter 1 State agencies are targeted for direct service
costs as in the past. Several commenters believe that payments to
former Chapter 1 State agencies must follow the child, and
recommended inserting the phrase ``including State-operated and
State-supported school programs'' after 1994 at the conclusion of
Sec. 300.713(a) to ensure that the children who are counted
actually receive the funds for which they are eligible.
    Some commenters stated that the merger of the former Chapter 1
Handicapped program with Part B had a negative effect at the State
level on

[[Page 12649]]

private special education schools, because funds intended for
children are now being used by many States for both State and
municipal administrative costs. Other commenters recommended,
consistent with the intent of the merger of the former Chapter 1
Handicapped program with Part B, that these schools should be
treated as LEAs for funding purposes, regardless of whether they
meet the Part B definition of LEA.     One commenter took issue
with the fact that the Act specifies a reporting date of December
1 of the fiscal year, while the proposed regulation allows a State,
at its discretion, to report on December 1 or on the last Friday of
October. Since the Act sets a specific date, this commenter
requests that only the statutory date be used in the regulation.
    Discussion: Funds provided to former Chapter 1 State agencies
that exceed fiscal year 1994 levels are provided either because the
amounts to which former Chapter 1 State agencies are entitled as
LEAs, without regard to their status as former Chapter 1 agencies,
exceed the minimum allocations for former Chapter 1 agencies, or at
the discretion of the States from funds available to be set aside
for State level activities.     The IDEA Amendments of 1997
maintain, in section 611(f), as reflected in Sec. 300.370(a), the
flexibility of States to provide additional support to State
agencies beyond the formula entitlement of LEAs under Sec. 300.712.
It would be inappropriate, as well as inconsistent with the Act, to
compel States that have voluntarily passed through higher levels of
funding to State agencies in the past to maintain those levels of
funding as a requirement.
    There has been confusion in some States regarding the
entitlement of former Chapter 1 Handicapped State agencies to funds
distributed by formula to LEAs that would be above the amounts
these State agencies received per child for 1994 under the Chapter
1 Handicapped program. Under the IDEA, both before and after
enactment of the IDEA Amendments of 1997, the amounts to which
these State agencies are entitled are minimum amounts. Former
Chapter 1 Handicapped State agencies are entitled to formula
allocations in the same amounts as other LEAs. They may also be
eligible for additional payments to bring their funding levels per
child up to the levels they received under the Chapter 1
Handicapped program for fiscal year 1994.
    Under the initial allocation of fiscal year 1998 funds, which
became available on July 1, 1998, the minimum per child allocations
that former Chapter 1 Handicapped State agencies are entitled to as
LEAs exceeds the amount per child that these agencies received for
fiscal year 1994 under the Chapter 1 Handicapped program in 40
States. SEAs in these States must provide former Chapter 1
Handicapped State agencies at least the minimum amount per child
that they are entitled to as LEAs, not the lesser amounts that they
received per child under the Chapter 1 Handicapped program for
1994.
    For 10 States and the District of Columbia, the minimum per
child amounts to which former Chapter 1 Handicapped State agencies
are entitled as LEAs are still slightly smaller than the amounts
that these agencies received per child for 1994 under the Chapter
1 Handicapped program. In these States, SEAs must provide the
former Chapter 1 Handicapped State agencies with the amounts per
child that these agencies are entitled to as LEAs. SEAs must then
provide additional funds to the former Chapter 1 Handicapped State
agencies from the amounts that the SEAs set aside for State level
activities. The amount of these additional funds is equal to the
difference between the amount per child that the former Chapter 1
State agencies received under the Chapter 1 Handicapped program for
1994 and the amount per child they receive as LEAs, multiplied by
the lesser of the number of children ages 6 through 21 currently
served by the former Chapter 1 Handicapped State agencies or the
number of children ages 3 through 21 served by these agencies for
1994 under the Chapter 1 Handicapped program.     It is expected
that for the Federal fiscal year 1999 appropriation, which will
become available on July 1, 1999, the minimum per child amounts
that will be provided to all LEAs, including former Chapter 1
Handicapped State agencies, will exceed the per child allocations
under the Chapter 1 Handicapped program in all States.
    Former Chapter 1 agencies are subject to the same requirements
as other LEAs, and are not limited to using Part B funds only for
direct service costs.
    Adding the phrase ``including State-operated and State-
supported school programs'' after ``1994'' at the conclusion of
Sec. 300.713(a) would not ensure that the children who are counted
actually receive funds. Moreover, the last paragraph in Sec.
300.713(a) deals with the optional use of funds available for State
level activities to increase funding for LEAs that formerly served
children who had at one time been in State-operated or State-
supported programs, not to increase funding for State-operated and
State-supported programs themselves. However, States, at their
discretion, may use funds available for State level activities to
provide support for State-operated or State-supported programs
under Sec. 300.370.
    It should also be noted that, under the Act, States are
required to ensure that all children with disabilities have access
to a free appropriate public education regardless of the sources of
funds that are used to provide that education. Ensuring that
specific amounts of Federal funds are used for each of the 6
million children with disabilities who receive special education
services would be administratively unwieldy and would not
necessarily help to ensure that States meet this requirement.
    The Chapter 1 Handicapped program was merged with the IDEA Part
B Assistance to States for the Education of Children with
Disabilities program in 1995. The merger was not affected by the
IDEA Amendments of 1997, and its impact cannot be addressed by
these regulations.     Section 602(15) of the Act defines LEA as
including educational service agencies. Educational service
agencies are defined in section 602(4) of the Act and Sec. 300.10
as including public institutions or agencies having administrative
control and direction over a public elementary or secondary school.
State agencies formerly provided funding under the Chapter 1
Handicapped program and which continue to provide special education
and related services to children with disabilities fall within this
definition. Individual schools that received funding through State
agencies under the Chapter 1 Handicapped program are not LEAs under
the Part B Assistance to States for the Education of Children with
Disabilities program.
    Section 611(d)(2) of the Act specifies that, for the purpose of
allocating funds among States, States may report children either as
of December 1 or the last Friday in October of the fiscal year for
which funds are appropriated. Using the same dates for establishing
minimum funding levels for former Chapter 1 Handicapped State
agencies will reduce burden on States that count children in
October by eliminating the need for a separate count of children
served by State agencies in December.
    Changes: Language has been revised in paragraph (a)(1) to
clarify that the amount that each former Chapter 1 State agency
must receive is a minimum amount.

[[Page 12650]]

Reallocation of LEA Funds (Sec. 300.714)

    Comment: One commenter recommended that this section be
eliminated because it causes a disincentive for LEAs to provide
``adequate'' or even more than ``adequate'' FAPE.
    Another commenter stated that the regulation must provide the
State agency with a basis for determining 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, and
indicated that there is a need for guidance on criteria for
determining when any portion of the funds allocated under this part
may be removed. Criteria suggested by the commenter for this
purpose include: (1) IEP related measures such as appropriateness
of measurable IEP goals and a high percentage of annual goals
successfully completed; (2) educational inputs such as student
staff ratios including related services staff; and (3) a relatively
large amount of unexpended IDEA funds.
    Discussion: The authority of SEAs to reallocate funds among
LEAs if they determine that an LEA is adequately providing FAPE to
all children with disabilities residing in the area served by the
LEA and that the LEA does not need those funds to provide FAPE, is
included in section 611(g)(4) of the Act. This authority cannot be
removed through regulations. However, it is expected that SEAs
would use this authority only in unusual circumstances (e.g., when
there is a radical reduction in the number of children served by a
LEA).
    Moreover, the instances in which an SEA would reallocate the
funds of an LEA because the LEA is providing adequate services and
does not need the funds should be relatively rare, and the
circumstances causing such a determination also should be unusual.
    It would be very difficult to establish criteria that could be
appropriately and fairly applied in all cases. For this reason, the
criteria for determining these instances should be left at the
discretion of the States.
    Changes: None.

Payments to the Secretary of the Interior for the Education of
Indian Children (Sec. 300.715)

    Comment: None.
    Discussion: The reference to ``this section'' in paragraph (a)
should also include a reference to Sec. 300.716 because the
earmarked funds include Indian children covered under both
sections.
    Changes: The term ``this section'' in Sec. 300.715(a) has been
revised to read ``this section and Sec. 300.716.''

Limitation for Freely Associated States (Sec. 300.719)

    Comment: None.
    Discussion: The references to ``this part'' in paragraph (c) of
this section should be changed to ``Part B of the Act.''
    Changes: Section 300.719 (c)has been amended, consistent with
the above discussion.

Annual Report of Children Served--Report Requirement (Sec. 300.750)

    Comment: Several commenters objected to the note following Sec.
300.750 of the NPRM, stating that it reflects only the requirements
of prior law, and not all requirements in the current section 611
of the Act. The commenters recommended that, if the note is
retained, it needs to be revised to conform more closely to the
current language used in the Act. For example, the references in
the note to section 611(a)(5) of the Act should be deleted, since
that section no longer exists. Also, the population that a State
may count for allocation purposes no longer differs from the
population of children to whom the State must make FAPE available,
and this needs to be explained in the note.
    Another commenter recommended that the regulations on annual
SEA reports to the Department be amended to include the
requirements of section 618(a)(1)(A) of the Act.
    Discussion: The note following this section in the NPRM
indicates that the number of children who are counted for the
purpose of distributing funds may be different from the children
for whom the States must make FAPE available. In order to receive
full funding under Part B of the IDEA, States must provide services
to all children with disabilities ages 3 through 17, and to
children 18 through 21 when not inconsistent with State law or
practice, or the order of any court. These statements in the note
reflect the requirements of IDEA. However, consistent with the
decision to not include notes in the final regulations, the note
should be deleted.
    It should be noted that until the appropriation for the
Assistance to States for the Education of Children with
Disabilities program exceeds $4,924,672,200, the interim formula
requires that funds be distributed based on the number of children
served, and the limitations in section 611(a)(5) of IDEA prior to
the IDEA Amendments of 1997, which prohibit the Secretary from
counting more than 12 percent of children with disabilities in
certain cases, will be in effect until that time.
    The content of the report is addressed in Sec. 300.751. The
reporting requirements in section 618 of the Act are complex. The
Secretary believes that it would be better to address the data
reporting requirements of the new section 618 as part of the
clearance process for data collection rather than through these
regulations.     Changes: The note has been removed.

Annual Report (Sec. 300.751)

    Comment: Commenters stated that while Sec. 300.751(a) specifies
the information that must be included in the report for any year
before the total appropriation for section 611 of the Act first
exceeds $4,924,672,200, it is unclear what information should be
included in the report after that date. The commenters indicated a
need for this clarification in the regulation.
    Other commenters recommended that the regulation clarify that
if a child is deaf-blind, that child must be reported under that
category, and if the child has more than one disability (other than
deaf-blindness), that child must be reported under multiple
disabilities. These commenters also requested that the regulations
explain that the responsibility for the annual census count of
deaf-blind children should be with the single and multi-State deaf-
blind projects.     Discussion: Before the total appropriation for
section 611 of the Act first exceeds $4,924,672,200, a count of
children ages 3 through 21 will be used for distributing funds.
After this level is reached, data on the number of children served
will continue to be necessary due to the requirement in section
611(a)(2) of the Act that no State be allocated an amount per
disabled child served greater than 40 percent of the average per-
pupil expenditure in public elementary and secondary schools in the
United States. The language in Sec. 300.751 should reflect this
requirement. In addition, data included in the report does not
necessarily reflect the flexibility potentially available to the
States to use sampling to collect data or new data reporting
requirements for children ages 3 through 9.
    The NPRM provided that a child with deaf-blindness must be
reported under the category ``deaf-blindness'' and that a child who
has more than one disability, other than deaf-blindness, must be
reported under the category ``multiple disabilities''.
    The single and multi-State deaf-blind projects, which are
funded under discretionary awards under Part D of the Act, are not
responsible for conducting a census count of deaf-blind children.
Those projects were required to report on the number of children
with deaf-blindness that they serve. These Part

[[Page 12651]]

300 regulations set out the requirements for participation of
States under Part B of the Act.
    Changes: This section has been reworded to reflect in paragraph
(a) data required for the distribution of funds, including data on
the numbers of children with disabilities that are provided special
education and related services in the age groupings 3 through 5, 6
through 17, and 18 through 21. The remainder of the section has
been revised to reflect the Secretary's ability to permit sampling
to collect data, new data collection requirements in the Act, and
to clarify that children who are not classified as developmentally
delayed and who have two disabilities consisting of deafness and
blindness should be reported under the category of ``deaf-blind''.

Annual Report of Children Served--Certification (Sec. 300.752)

    Comment: None.
    Discussion: The certification of an accurate and unduplicated
count of children with disabilities receiving special education and
related services on the dates in question is critical only with
regard to obtaining information needed for the allocation of funds.
    Changes: The certification of an accurate and unduplicated
count has been limited to the data required under Sec. 300.751(a),
which, as revised, is limited to information required to make
funding allocations to States.

Annual Report of Children Served--Criteria for Counting Children
(Sec. 300.753)

    Comment: None.
    Discussion: Children with disabilities who are enrolled by
their parents in private schools should be able to be counted by
LEAs if those children receive special education or related
services, or both, that are provided in accordance with a services
plan and meet the requirements of Secs. 300.452-300.462. The
language in the NPRM could have been read to require that children
with disabilities enrolled by their parents in private schools be
provided all of the related services they need to assist them in
benefitting from special education in order for the LEAs to count
these children.
    Changes: Section 300.753 has been revised to permit LEAs to
count private school children with disabilities who are receiving
special education or related services, or both, that meet standards
and are provided in accordance with Secs. 300.452-300.462.
    Comment: A number of commenters requested that notes be deleted
from the regulations implementing Part B of IDEA.
    Discussion: Note 1 following this section in the NPRM indicated
that States may count children with disabilities in a Head Start or
other preschool program operated or supported by a public agency if
those children are provided special education that meets State
standards. All children who are counted must be enrolled in a
school or program providing special education or related services
that is operated or supported by a public agency. However, a child
with a disability may also be enrolled in a private school. All
children who are counted must be provided with services that meet
State standards regardless of whether they are also enrolled in a
private school.     Note 2 to this section in the NPRM indicated
that where a child receives special education from a public source
at no cost, but whose parents pay for the basic or regular
education, the child may be counted. The revised Sec. 300.753 more
clearly reflects the fact that children with disabilities enrolled
by their parents in private schools are eligible to be counted.
This is true whether the curriculum of the school consists of basic
or regular education, or special education.     Note 2 also
indicated that the Department expects that there would only be
limited situations in which special education would be clearly
separated from regular education--generally, if speech services are
the only special education required by the child. This expectation
is not consistent with the flexibility that LEAs have in providing
services to children in private schools.
    As Note 2 indicated, a State may not count Indian children on
or near reservations and children on military facilities if it
provides them no special education. If an SEA or LEA is responsible
for serving these children, and does provide them special education
and related services, they may be counted.
    If a public agency places or refers a child with disabilities
to a public or private school for educational purposes, parents may
not be charged for any part of the child's education.
    Changes: The notes have been removed, and language has been
added to Sec. 300.753 to clarify that, in order for a State to
count children, the children must be enrolled in a school or
program that is operated or supported by a public agency, and that
they may not count children who are served solely through Federal
programs, including programs of the Departments of Interior,
Defense, and Education except as covered under Sec. 300.184(c)(2).

Annual Report of Children Served--Other Responsibilities of the
State Education Agency (Sec. 300.754)

    Comment: One commenter recommended that the SEA should be
required to sanction LEAs for providing intentionally misleading or
false information about the number of children with disabilities
receiving special education and related services within the LEA's
jurisdiction.     Discussion: The IDEA Part B Assistance to States
for the Education of Children with Disabilities program is
administered primarily through SEAs. It is in the individual
State's interest as well as the national interest to ensure that
counts of children are accurate; requiring sanctions for LEAs that
provide intentionally misleading or false information would be
unnecessary and overly prescriptive. The IDEA allows States to
impose sanctions subject to the requirements of the Act.
    Changes: None.
    Comment: None.
    Discussion: Section 300.754(d) refers to ``reports'' under
Secs. 300.750-300.753. These sections refer to only one report.   
 Changes: The word ``reports'' has been changed to ``report''.    
Comment: A number of commenters requested that notes be deleted
from the regulations implementing Part B of IDEA.
    Discussion: The note following this section in the NPRM
indicates that data required in the annual report of children
served are not to be transmitted to the Secretary in personally
identifiable form, and that States are encouraged to collect these
data in non-personally identifiable form. The formats used by the
Secretary for collecting data do not provide for individual
identification of children. The formats for data collection by
States are a matter of State discretion.     Changes: The note has
been removed.

Disproportionality (Sec. 300.755)

    Comment: Commenters recommended that the regulation define what
constitutes a significant disproportionality based on race in the
identification, labeling, and placement of children with
disabilities, thus triggering the obligation to review and revise,
as appropriate, identification and placement policies, practices
and procedures. Another commenter recommended additional language
requiring consultation with parent training and information
centers, parent and civil rights advocacy groups, and others,
during this process. Other commenters suggested that data be

[[Page 12652]]

collected annually when the child count is submitted, and that a
requirement should be added that data be analyzed. If
disproportionality is found, a corrective action plan must be
developed by the SEA, and such a plan should be reported to the
Secretary and to the public annually.
    Another commenter was supportive of the requirement in Sec.
300.755 but noted that, because many BIA schools are serving
American Indian children from wide catchment areas, an increasing
number of children with disabilities are enrolling in these schools
for what may be valid reasons. The commenter recommended a
requirement for review and revision of policies by representatives
of the Department of the Interior who have experience in the unique
political, cultural, and geographical issues affecting the
identification of these children as disabled and in need of special
education and related services.     Discussion: The Act provides
that the States and the Secretary of the Interior must collect
data, determine if disproportionality exists, and take corrective
action. In order for States and the Department of the Interior to
determine if disproportionality exist they must establish criteria
for determining what constitutes significant disproportionality. It
is expected that the determination of disproportionality will
involve consideration of a wide range of variables peculiar to each
State including income, education, health, cultural, and other
demographic characteristics in addition to race. Prescribing how
the States should determine disproportionality and take corrective
action would not reflect the varied circumstances existing in each
State and is not consistent with discretion afforded to States
under the statute.
    It should also be noted that the Department's Office for Civil
Rights also looks at disproportionality in its review of State and
local activities, and that the Office of Special Education Programs
will monitor to ensure compliance with this requirement.
    The determination of disproportionality is separate from a
determination as to whether any corrective action is appropriate.
The Secretary of the Interior is expected to utilize knowledgeable
individuals to determine if corrective action is called for in a
particular instance.
    Changes: None.

Part C

    The following is an analysis of the significant issues raised
by the public comments received on the NPRM published on October
22, 1997 (62 FR 55026) for the Early Intervention Program for
Infants and Toddlers with Disabilities. The Department solicited
comments on proposed changes to six regulatory provisions in the
Early Intervention Program for Infants and Toddlers with
Disabilities, formerly known as Part H of the Individuals with
Disabilities Education Act (IDEA). Effective July 1, 1998, Part H
of IDEA (Part H) was relocated to Part C of IDEA (Part C). The
proposed changes were made to conform Part C to proposed changes in
Part B of IDEA. On April 14, 1998, the Department published
technical changes to the Part C regulations to incorporate
statutory changes to Part C made by the IDEA Amendments of 1997 (63
FR 18290). A notice requesting advice and recommendations on Part
C regulatory issues was also published on April 14, 1998 (63 FR
18297). Although the deadline for comments on Part C regulatory
issues was July 31, 1998, the Department reopened the comment
period by publishing another notice on August 14, 1998 (63 FR
43865-43866).
    In response to the Department's invitation in the NPRM
published on October 22, 1997, several parties submitted comments
on the proposed regulations. An analysis of the comments and of the
resulting changes in the regulations follow. Substantive issues are
discussed under the section of the regulations to which they
pertain. Technical and other minor changes--'' and suggested
changes the Department is not legally authorized to make under the
applicable statutory authority ``--are not addressed. All Part C
provisions amended by these regulations that were not the subject
of the NPRM are amended only to conform provisions to statutory
changes to Part C made by the IDEA Amendments of 1997, or to
conform technical provisions to changes made to the Part B
regulations.

Goals 2000: Educate America Act

    Comment: One commenter asked how the Goals 2000: Educate
America Act (Goals 2000) would be implemented for infants and
toddlers with disabilities, in particular how the first goal of all
children in America starting school ready to learn would be
realized for infants and toddlers with disabilities. The commenter
asked if there would be definitions or criteria promulgated
pursuant to Goals 2000 regarding an infant's or toddler's readiness
to learn.
    Discussion: The National Education Goals are goals, not
requirements; no definitions or criteria are necessary to specify
how States should make progress towards goal one, ``All children in
America will start school ready to learn.'' Children with
developmental delays are likely to experience poor educational
results because of a disability without appropriate early
intervention. By addressing the effects of a disability or
complications that could arise if services are not provided, these
children will have a greater likelihood of better results, and
require less intensive or possibly no special services, when they
are ready to enter school. The Part C Early Intervention Program
helps States to address the needs of infants and toddlers with
disabilities and their families by promoting child find activities,
implementing family-focused service systems, coordinating early
intervention services on a statewide basis, and providing critical
services that otherwise would not be available. As such, the
program plays a major role in improving the school readiness of
these young children and meeting the National Education Goal of
ensuring that every child enters school ready to learn.
    Changes: None.

General Comments

    Comment: Several of the commenters requested that the
Department issue a full notice of proposed rulemaking (NPRM) for
the Part C program. Commenters questioned why the particular
regulatory provisions in the October 22, 1997 NPRM were singled out
for revision. Many requested generally that the Department clarify
the statutory amendments to Part C, such as the provisions
regarding natural environments.
    Discussion: The six provisions related to Part C in these
regulations have been revised in order to achieve consistency with
parallel Part B regulations. Regarding the remainder of the Part C
regulations, the Department solicited comments regarding all of the
Part C regulations on April 14, 1998, and extended the comment
period on August 14, 1988. Comments received in response to the
October 22, 1997 NPRM regarding Part C regulations that were not
the subject of that NPRM will be retained and considered with the
comments received pursuant to the April 14 and August 14, 1998,
solicitations. However, additional submissions from those same
commenters are welcome.     These final regulations contain several
technical changes that were not included in the April 14, 1998
regulatory changes. All of these changes will be included in the
next version of Part C regulations published in the Code

[[Page 12653]]

of Federal Regulations (CFR), which is revised each year.
    As with the final Part B regulations published in this issue of
the Federal Register, these final Part C regulations will not
contain notes. The critical substantive portions of the notes will
be incorporated into the corresponding regulatory provision or the
applicable discussion section in this preamble. Other information
from the notes will be deleted.
    Changes: None.

Definition of Parent (Sec. 303.18)

    Comment: There were a few comments regarding the revisions to
the definition of parent at Sec. 303.18. Some commenters liked the
changes and some objected to the changes. Commenters who objected
did so primarily because the proposed changes were perceived to
conflict with prior OSEP opinions and ultimately result in fewer
children having ``parent'' representation at meetings. Commenters
also asked what constitutes a ``long-term parent relationship'' for
an infant or toddler.
    Discussion: The changes to the definition of parent under Part
C are to clarify that the definition is an inclusive one and to
conform Part C to Part B for consistency and continuity purposes.
The changes should result in more, rather than fewer, children
having parental representation, as the regulation clarifies that
foster parents may, in appropriate circumstances, unless prohibited
by State law, serve as parents. Under these regulations, the term
``parent'' is defined to include persons acting in the place of a
parent, such as a grandparent or stepparent with whom the child
lives, as well as persons who are legally responsible for a child's
welfare, and, at the discretion of the State, a foster parent who
meets the requirements in paragraph (b) of this section.
    With respect to the meaning of ``long-term parental
relationship,'' this term was included to ensure that when a child
is in foster care, decisions regarding services are made by the
foster parents only if they have had, or will have, a parental
relationship that is on-going rather than temporary. The goal is
that decisions regarding services will be made only by those who
have or will have a substantive understanding of the child's needs.
Thus, for example, a parental relationship would be considered
``long-term'' if (1) at the time the relationship is created, it is
intended to be a long-term arrangement, or (2) the relationship has
existed for a relatively long period of time. For older children,
States could require a more lengthy time period than would be
appropriate for infants and toddlers.
    Several changes to this provision are in response to comments
regarding the corresponding provision in the Part B regulations
(Sec. 300.20). The general definition of ``parent'' is amended to
make clear that adoptive parents have the same status as natural
parents. In addition, to avoid conflict with State statutes, a
provision is added permitting the use of foster parents under these
regulations unless State law prohibits foster parents from acting
as parents for these purposes. For further explanation of the
changes, see the discussion regarding 34 CFR 300.20 in the preamble
to the final Part B regulations.
    Changes: Section 303.18 has been amended to specifically
include adoptive parents, and to permit States in certain
circumstances to use foster parents as parents under the Act
without amending relevant State statutes on the definition of
``parent''. The substance of the note has been incorporated into
the regulations, and the note has been deleted.

Prior Notice (Sec. 303.403)

    Discussion: No comments were received regarding proposed Sec.
303.403(b)(4), and it is included in these final regulations.
However, given the comments regarding the parallel section under
Part B, and the fact that Part C does not have a separate
procedural safeguards notice, Sec. 303.403(b)(3) is changed to make
clear that the notice given under this section must contain all
procedural safeguards under Part C, including the new mediation
procedures in Sec. 303.419.     Changes: Section 303.403(b)(3) is
amended to clarify that the notice must inform parents about all
procedural safeguards available under Secs. 303.401-303.460.

Adopting Complaint Procedures (Sec. 303.510)

    Comment: One commenter requested that the Department clarify
how frequently States are required to disseminate their State
complaint procedures in proposed Sec. 303.510(b); the commenter
also asked that the requirement include provisions for limited-
English speakers and non-readers.
    Discussion: It is unnecessary to specify a frequency for
dissemination of State complaint procedures; States have the
responsibility to ensure that their publicly-disseminated State
complaint materials are distributed to parents, as well as to the
other required entities, and to ensure that the materials are kept
up to date. In addition, the lead agency is now required to provide
an explanation of the State complaint procedures to parents at the
various times specified in Sec. 303.403(b)(4), as part of the
``prior notice'' requirement. The requirements of Sec. 303.403
regarding prior notice include communicating the notice in the
parents' native language or other mode of communication; therefore,
it is unnecessary to add those provisions to Sec. 303.510.
    Because a new paragraph (b) is added to this section (see
discussion below), the language in proposed (b) from the NPRM is
moved to paragraph (a)(2) of this section.
    Changes: A portion of the existing note is incorporated into
Sec. 303.510(a) and the note is removed. Proposed Note 2 is
incorporated into the regulation as new Sec. 303.510(b); the
language in proposed Sec. 303.510(b) is moved to new Sec.
303.510(a)(2). In addition, the language in the proposed note
following Sec. 303.511 regarding complaints from out of State is
incorporated into Sec. 303.510(a)(1).
    Comment: Several commenters requested clarification of the
provision regarding compensatory services in Note 2 to proposed
Sec. 303.510. Compensatory services are also referenced in proposed
Sec. 303.511(c). One commenter stated that compensatory services
are not appropriate for infants and toddlers receiving services
under Part C; services are already year-round, and because the
frequency and intensity of services are individually tailored to
the child's needs in the IFSP, supplementing those services would
not be appropriate. This commenter noted, however, that families
who procure services at their own expense because an IFSP was not
implemented in a timely manner should be able to receive
reimbursement. Another commenter stated that additional public
discussion is needed before finalizing this provision regarding
compensatory services. The commenter raised questions concerning
how compensatory services would be funded and provided by a lead
agency before a child turns three years old, how such services
would be funded and provided after the child turns three, and how
such post-Part C services would be integrated with the child's
special education services. Another commenter requested the
Department's ``vision'' for the proposed application of this
regulation.     Discussion: The note reflected what has always been
the case ``--that lead agencies have the authority to order
remedies in appropriate circumstances for a violation of Part C in
resolving complaints under the procedures in Secs. 303.510-303.512.
However,

[[Page 12654]]

consistent with the decision to remove notes from the Part B
regulations, and to emphasize the importance of lead agency action
to resolve complaints in a way that provides individual relief when
appropriate and addresses systemically the provision of appropriate
services, a provision is added to this section. The provision
clarifies that if the lead agency has found a failure to provide
appropriate services to an infant or toddler with a disability
through a complaint, the resolution must address both how to
remediate the denial of services, and how to provide appropriate
services for all infants and toddlers with disabilities in the
State and in the future. While recognizing that compensatory
services, in the sense used under Part B, may be inappropriate for
an infant or toddler in many instances, it should not be precluded
where it is an appropriate corrective action as determined by the
lead agency based on the individual circumstances. Lead agencies
retain the authority, responsibility, and flexibility to construct
appropriate remedies in individual cases in order to obtain the
results needed for the child and family. Possible remedies may
include reimbursement of sums spent by a parent, services--
compensatory or otherwise, or other appropriate corrective action.
    Regarding the issue of a complaint filed after a child turns
three and is no longer eligible for Part C services, if parents
have a complaint about the services received or not received by
their child while an infant or toddler, those parents would
properly file the complaint with the lead agency that had
responsibility for the child during that time period, even if the
child has ``aged out'' of the Part C program at age three. That
lead agency has the responsibility to resolve and, as appropriate,
investigate the complaint, and award appropriate corrective action,
which may need to be designed by working with the SEA if the child
is Part B-eligible, or by working with other appropriate service
providers if the child is not Part B-eligible. These regulations do
not prevent parents from filing a complaint with the lead agency
after the child leaves the Part C program. In addition, if the
alleged violation is systemic, corrective action would be required
in order to ensure that a violation does not continue for other
infants and toddlers. However, to prevent undue burden on lead
agencies from very old cases, Sec. 303.511(b) contains time
limitations on complaints.
    Changes: A new paragraph (b) has been added to Sec. 303.510 to
address how a lead agency remedies a denial of appropriate
services, in place of proposed Note 2. Proposed paragraph (b) has
been moved to new Sec. 303.510(a)(2).

Filing a Complaint (Sec. 303.511)

    Comment: Two commenters objected to the one-year time limit for
filing a complaint in proposed Sec. 303.511(c). They stated that
parents are often not knowledgeable about their rights at their
first entrance into a complex system, and that violations may not
be apparent until after the child exits the system. The commenters
stated that the one-year limit may also conflict with existing
State laws governing administrative proceedings. These commenters
also questioned when it would be appropriate for an organization to
file a complaint, and asked why the proposed note states that lead
agencies must resolve complaints filed by entities from another
State.
    Discussion: The time limits in proposed Sec. 303.511(c) were
added in recognition that at some point the issues in a complaint
are no longer reasonably susceptible to resolution. However, such
a time limit should include an exception for continuing violations;
this would include a violation for a specific child, e.g., one that
began when an infant was 4 months old and still continues at age
two, as well as violations that continue on a systemic basis and
affect other children. The regulation also includes a three-year
time limit for cases in which a parent requests reimbursement or
corrective action. As evidenced by the comments on the issue of
compensatory services under Part C (see discussion regarding Sec.
303.510 above), compensatory services may not be an appropriate
remedy in some cases. Therefore, the language regarding the three-
year limit in these regulations should be changed to describe more
accurately the remedies that may be requested, such as a parent's
request for reimbursement for amounts spent to provide services in
the IFSP that were not provided by the lead agency.     As noted
above in the response to comments on Sec. 303.510, these
regulations do not prohibit individuals from filing a complaint
with the lead agency after the child has left the Part C system,
and require, within the timeframes noted, that the State resolve
the complaint. In addition, States are free to accept and resolve
complaints regarding alleged violations that occurred outside these
timelines, 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. If a State law provided a
more generous timeline for filing complaints, the State could
certainly use that timeline; it could, in the alternative, amend
its State law to be as restrictive, but not more restrictive, than
these Federal regulations.     Regarding the issue of when it is
appropriate for an organization, rather than an individual, to file
a complaint, the State complaint procedures broadly permit any
organization to file a complaint alleging that the State is
violating IDEA, in order to permit entities, as well as
individuals, that become aware of violations to raise them. With
regard to the statement in the note that the lead agency must
resolve complaints even if received from an individual or
organization outside of the State, the lead agency is responsible
for ensuring compliance with Part C. A complaint about
implementation of the Act filed by an organization or individual
outside of the State is an additional means of bringing compliance
issues to the State's attention. To be consistent with the decision
to remove all notes from the Part B regulations, and to make clear
that complaints from out-of-State organizations or individuals must
also be resolved, that concept is integrated into Sec.
303.510(a)(1).
    Changes: The language in proposed Sec. 303.511(c) has been
moved to paragraph (b) and changed to describe more accurately the
remedies that could be requested under the three-year limitation
for State complaints. The note following Sec. 303.511 regarding
complaints filed by organizations or individuals from another State
has been deleted, and the substance of the note has been moved to
Sec. 303.510(a)(1).

Minimum State Complaint Procedures; Timelines (Sec. 303.512)

    Comment: One commenter asked whether eliminating the right to
request Secretarial review would eliminate all potential appeals of
a State's decision. The commenter requested that a note be added to
reference other procedures still available if the complainant is
not satisfied with a State's decision.
    Discussion: If a complainant who wishes to contest a lead
agency's decision on a State complaint is a parent, he or she may
request a due process hearing under Sec. 303.420 concerning a
child's identification, evaluation, or placement, or the provision
of appropriate early intervention services to the child and the
child's family. In addition, States must make mediation under Sec.
303.419 available, at a minimum, when a parent requests a due
process hearing. States

[[Continued on page 12655]]

[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12655-12672]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov] [DOCID:fr12mr99-17]

[[pp. 12655-12672]] Assistance to States for the Education of
Children With Disabilities and the Early Intervention Program for
Infants and Toddlers With Disabilities

[[Continued from page 12654]]

[[Page 12655]]

may provide for mediation at an earlier stage, thereby allowing for
informal dispute resolution before or after the State complaint
process, preventing the need for a due process hearing. However,
mediation may not be used to deny or delay the parents' right to
due process. The previous existence of the option to request
Secretarial review was not a substitute for these other procedural
rights for parents. It is not necessary to add a note describing
these other procedural safeguards in Sec. 303.512, as they are
adequately described elsewhere in these regulations.
    The substance of the notes following this section is
incorporated into Sec. 303.512. The language of proposed Note 1
references a complaint that is also the subject of a due process
hearing, but does not discuss the situation of a complaint that
also becomes the subject of a mediation proceeding. Although the
IDEA Amendments of 1997 encourage the use of mediation as a dispute
resolution tool, a party's mediation request should not serve as an
excuse for a State to delay the State complaint resolution
timelines. Therefore, a mediation proceeding should not in and of
itself be considered an ``exceptional circumstance'' under Sec.
303.512(b) so as to extend the 60-day time limit for resolution of
complaints, unless the parties agree to such an extension.
    Changes: Paragraphs (b) and (c) have been combined into a new
paragraph (b). A new paragraph (c) has been added to clarify that
if an issue in a complaint is the subject of a due process hearing,
that issue (but not those outside of the due process proceeding)
would be set aside until the conclusion of the due process hearing,
and that the hearing decision regarding an issue in a due process
hearing would be binding in a State complaint resolution; however,
a public agency's failure to implement a due process decision would
have to be resolved by the lead agency. The notes following this
section have been removed, and their substance incorporated into
Sec. 303.512.

Policies Related to Payment for Services (Sec. 303.520)

    Comment: There were many comments regarding the use of private
and public insurance under Part C. A few commenters supported
proposed Sec. 303.520(d) and (e), as well as corresponding notes.
Supporting the provision in proposed Sec. 303.520(d) on requiring
families to use private insurance only if there are no costs,
parents of children with disabilities described the financial costs
and resulting hardship to them when required to use private
insurance to pay for services.     Many commenters opposed the
proposed changes. Regarding the use of private insurance, many
stated that the policies in proposed Sec. 303.520(d) and Notes 1
and 2 contradict the ``payor of last resort'' concept underlying
Part C. Many commenters referred to the policy in Sec. 303.527 that
Part C Federal funds are to supplement existing sources of funds,
not provide full support, for early intervention. Commenters stated
that prior to Part C, private insurance would have been the payor
of first resort for many early intervention services, and Medicaid
the secondary source of payment.
    Commenters also stressed that, because FAPE does not apply to
Part C, basing Sec. 303.520(d) on the Notice of Interpretation
published in 1980 regarding Part B, six years prior to the passage
of Part C, is invalid. Further, in emphasizing the differences in
Part B and Part C policy, commenters noted that under Part B,
services are to be provided at no cost to the parents, whereas
under Part C parents may be required to pay fees for services.
Commenters stated that it is contradictory to allow systems of
payment, but prohibit the use of private insurance if there is a
financial cost to families. A few commenters also stated they
believed the Department did not adequately determine whether or not
there is a cost to parents in requiring the use of private
insurance, and that a cost-benefit analysis was not done.
    Commenters were also very concerned about the impact to Part C
programs nationwide if private insurance is more difficult to
access; some stated that proposed Sec. 303.520(d) could cause
States to eliminate their infant and toddler programs entirely.
Commenters stated that because Federal programs like Medicaid and
Title V require that private insurance must be billed first for
services covered in whole or in part by such insurance, if private
insurance is not accessible, Medicaid or Title V will not be
accessible. Some commenters suggested that the use of private
insurance under Part C be treated in the same manner as it is under
Title V and Medicaid and in this way remain in compliance with the
mandate of Sec. 303.527.
    In addition, some commenters stated that a policy that allows
parents to deny access to private insurance, thereby requiring the
expenditure of State and Federal funds, has caused private
insurance companies to deny payment for services if Part C
potentially covers the service. Insurance policies also often state
that they will not cover services if deductibles and co-payments
are paid for the family instead of by the family. Commenters also
stated that some State statutes require that private insurance is
utilized prior to State funds and the proposed Sec. 303.520
undermines these statutes.
    Regarding public insurance, commenters stated that parental
consent should not be required for access to public insurance,
e.g., Medicaid, if the child is eligible for the public insurance.
The commenters also argued that States should be given the
flexibility to require application for public health insurance as
a condition for receiving early intervention services, not only to
enable Part C access to other sources of funding, but also to
ensure that children have access to health and medical care.
    Those commenting against proposed Sec. 303.520(e) and Note 3,
regarding proceeds from insurance, stated that such a rule
potentially precludes putting dollars back into an already under
funded program. Commenters stated that under 34 CFR 80.25, States
should be required to return income received from public and
private insurance payments to the Part C program. Further, if the
Department does not require such reinvestment, commenters requested
that it at least remain silent on the issue rather than risk giving
States encouragement for using insurance reimbursements without any
restrictions.
    Discussion: As the foregoing comments note, there are many
ramifications to a proposed regulation regarding the use of private
and public insurance under Part C. Therefore, the policy in
proposed Sec. 303.520(d) will not be finalized until more thorough
examination of the issues can be done through the process initiated
by the April 14 and August 14, 1998 solicitations for comments, and
in light of the specific Part C statutory language and framework.
    However, with respect to the issue of reimbursements in
proposed Sec. 303.520(e) and Note 3, the reasons underlying the
changes made to the corresponding Sec. 300.142(f) in Part B provide
support for the same changes in Part C. This section clarifies that
if a public agency receives funds from public or private insurance
for services under these regulations, the public agency is not
required to return those funds to the Department or to dedicate
those funds for use in the Part C program, which is how program
income must be used, although a public agency retains the option of
using those funds in this program if it chooses to do so.
Reimbursements are similar to refunds,

[[Page 12656]]

credits, and discounts that are specifically excluded from program
income in 34 CFR 80.25(a). The expenditure that is reimbursed is
considered to be an expenditure of funds from the source that
provides the reimbursement. Nothing in IDEA, however, prohibits
States from reinvesting insurance reimbursements back into the Part
C program, and this regulatory provision should not be viewed as
discouraging such practice. Reinvestment of insurance
reimbursements in the Part C program is undeniably a valuable
method of helping fund the program; however, to avoid confusion, it
is necessary to clarify by regulation that no current Federal law
requires such reinvestment.
    In addition, proposed paragraph (e) has been revised to clarify
that funds expended by a public agency from reimbursements of
Federal funds will not be considered State or local funds for
purposes of Sec. 303.124. If Federal reimbursements were considered
State and local funds for purposes of the supplanting prohibition
in Sec. 303.124 of these regulations, States would experience an
artificial increase in their base year amounts and would then be
required to maintain a higher, overstated level of fiscal effort in
the succeeding fiscal year.
    Changes: Proposed Sec. 303.520(d), and Notes 1 and 2, are
removed; proposed Sec. 303.520(e) is redesignated as Sec.
303.520(d) with changes to conform to Sec. 300.142(f); and Note 3
is incorporated into the text of Sec. 303.520(d).

(Note: This attachment will not be codified in the Code of Federal
Regulations)

Attachment 2--Executive Order 12866

    These regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary
has assessed the potential costs and benefits of this regulatory
action.

Summary of Public Comments

    Many commenters expressed concern about the costs and burden of
complying with requirements incorporated into the Assistance to
States for the Education of Children with Disabilities, Notice of
Proposed Rulemaking (NPRM). Commenters complained about the cost of
implementing various statutory requirements incorporated into the
NPRM and identified a variety of requirements in the NPRM not
required by the statute that would increase administrative costs
for school districts. Some commenters talked about the need to
employ additional staff to comply with new requirements and others
talked about the additional paperwork required. Some commenters
expressed concern about the effect of the requirements on the
ability of schools to provide instruction to nondisabled children
and the difficulty teachers and administrators would have in
implementing the proposed regulations. Very few commenters
specifically addressed the Department's analysis of the benefits
and costs of the statutory and non-statutory changes incorporated
into the proposed
regulations.
    One commenter stated that the analysis of the impact was
inadequate and that the cost to school systems did not appear to be
taken seriously. However, this commenter did not provide comments
on the cost assumptions or analysis of specific items in the NPRM. 
   One commenter questioned the discussion in the NPRM that
indicated a possible reduction of personnel needed to conduct
evaluations by 25 to 75 percent, and suggested that additional
meetings would probably be required for 18 to 24 months until the
appropriate assessments can be conducted at annual reviews and that
additional personnel would be needed. Another commenter agreed that
the changes related to the conduct of the triennial reevaluation
may reduce some paperwork, but noted that savings would not be
realized immediately for individual children because of the need
for baseline data. One commenter stated that it has taken the
evaluation team one hour just to decide whether there is a need to
gather additional information.
    A few commenters provided specific information about the cost
and time involved to comply with some of the requirements that were
analyzed in the NPRM. For example, one commenter pointed out that
it would cost his district $18,000 to provide for substitute
teachers so regular education teachers could attend 900 IEP
meetings lasting one to two hours--or $20 per meeting. Another
commenter stated that the cost of providing substitute teachers
would be an enormous burden for school districts, noting that the
average IEP meeting takes 1.5 to 2 hours.
    The Department also received a few comments on the cost of
providing education to children who have been suspended or
expelled. One commenter said that the projections do not take into
account the expense of providing homebound services, alternative
placements or access to the general curriculum. Another commenter
agreed that the estimates of $29-$70 were too low and pointed out
that an out-of-district day placement in Vermont runs about
$20,000-$25,000 per school year.
    All of these comments were considered in conducting the
analysis of the benefits and costs of the final regulations. All of
the Department's estimates and the assumptions on which they are
based are described below.

Summary of Potential Benefits and Costs

Benefits and Costs of Statutory Changes

    For the information of readers, the following is an analysis of
the costs and benefits of the most significant statutory changes
made by IDEA Amendments of 1997 that are incorporated into the
Assistance to States for the Education of Children with
Disabilities regulations. In conducting this analysis, the
Department examined the extent to which changes made by the IDEA
Amendments of 1997 added to or reduced the costs for school
districts and others in relation to the costs of implementing the
IDEA prior to the enactment of the IDEA Amendments of 1997. Based
on this analysis, the Secretary has concluded that the statutory
changes included in this regulation will not, on net, impose
significant costs in any one year, and may result in savings to
State and local educational agencies. An analysis of specific
provisions follows:

Participation in Assessments

    Section 300.138 incorporates statutory requirements relating to
the inclusion of children with disabilities in general State and
district-wide assessments and the conduct of alternate assessments
for children who cannot be appropriately included in general
assessments.
    Although children with disabilities have not been routinely
included in State and district-wide assessments, the requirement to
include children with disabilities in assessment programs in which
they can be appropriately included, with or without accommodations,
does not constitute a change in Federal law. Because this statutory
change is a clarification of, not a change in, the law, no cost
impact is assigned to this requirement, which is incorporated in
Sec. 300.138(a) requiring the participation of children with
disabilities in general assessments.
    However, States were not previously required to conduct
alternate assessments for children who could not participate in the
general assessments. The statutory requirement to develop and
conduct alternate assessments beginning July 1, 2000, therefore,
imposes a new cost for States and districts.
    The impact of this change will depend on the extent to which
States and districts administer general assessments, the number of
children who cannot appropriately participate in those assessments,
the cost of developing and administering alternate assessments, and
the extent to which children with disabilities are already
participating in alternate assessments.
    The analysis of the impact of this requirement assumes that
alternate tests would be administered to children with disabilities
on roughly the same schedule as general assessments. This schedule
will vary considerably from State to State and within States,
depending on their assessment policy. In most States, this kind of
testing does not begin before the third grade. In many States and
districts, general assessments are not administered to children in
all grades, but rather at key transition points (for example, in
grades 4, 8, and 11).
    The extent to which States and districts will need to provide
for alternate assessments will also vary depending on how the
general assessments are structured. Based on the experience of
States that have implemented alternate assessments for children
with disabilities, it is estimated that about one to two percent of
the children in any age cohort will be taking alternate
assessments.     Based on this information, it is estimated that
about 18 to 36 million of the children who are expected to be
enrolled in public schools in school year 2000-2001 will be
candidates for general assessments. Of these, about 200,000 to
700,000 will be children

[[Page 12657]]

with disabilities who may require alternate assessments.
    The costs of developing and administering these assessments are
also difficult to gauge. In its report Educating One and All, the
National Research Council states that the estimated costs of
performance-based assessments programs range from less than $2 per
child to over $100 per student tested. The State of Maryland has
reported start-up costs of $191 per child for testing a child with
a disability and $31 per child for the ongoing costs of
administering an alternate assessment.
    The cost impact of requiring alternate assessments will be
reduced to the extent that children with disabilities are already
participating in alternate assessments. Many children with
disabilities are already being assessed outside the regular
assessment program in order to determine their progress in meeting
the objectives in their IEPs. In many cases, these assessments
might be adequate to meet the new statutory requirement.
    Based on all of this information, the cost impact of this
statutory change is not likely to be significant, and will be
justified by the benefits of including all children in
accountability systems.

Incidental Benefits

    The change made by section 613(a)(4) of the Individuals with
Disabilities Education Act (IDEA), incorporated in Sec. 300.235,
generates savings by reducing the time that would have been spent
by special education personnel on maintaining records on how their
time is allocated in regular classrooms among children with and
without disabilities.
    To calculate the impact of this change, one needs to estimate
the number of special education personnel who will be providing
services to children with and without disabilities in regular
classrooms and the amount and value of time that would have been
required to document their allocation of time between disabled and
nondisabled children.
    Based on State-reported data on placement, it appears that
about 4.4 million children will spend part of their day in a
regular classroom this school year. States reported employing about
404,000 teachers and related services personnel in total for school
year 1995-96. The statutory change will eliminate unnecessary
paperwork for those special education personnel who have been
working in the regular classroom and documenting their allocation
of time, and will encourage the provision of special education
services in the regular classroom--a change that will benefit
children with disabilities.

Individualized Education Programs

    The final regulations incorporate a number of statutory changes
in section 614(d) that relate to the IEP process and the content of
the IEP. With the exception of one requirement (the requirement to
include a regular education teacher on the IEP team), it has been
determined that, on balance, these changes will not increase the
cost of developing IEPs. Moreover, all the changes will produce
significant benefits for children and families. Key changes
include:     Clarifying that the team must consider a number of
special factors to the extent they are applicable to the individual
child. The statutory changes that are incorporated in Sec. 300.346
do not impose a new burden on school districts because the factors
that are listed should have been considered, as appropriate, under
the IDEA before the enactment of IDEA Amendments of 1997. These
include: behavioral interventions for a child whose behavior
impedes learning, language needs for a child with limited English
proficiency, Braille for a blind or visually impaired child, the
communication needs of the child, and the child's need for
assistive technology.
    Strengthening the focus of the IEP on access to the general
curriculum in statements about the child's levels of performance
and services to be provided. The statutory changes that are
incorporated in Sec. 300.347 relating to the general curriculum
should not be burdensome because the changes merely refocus the
content of statements that were already required to be included in
the IEP on enabling the child to be involved in and progress in the
general curriculum.
    Requiring an explanation of the extent to which a child will
not be participating with nondisabled children. This statutory
requirement, which is incorporated in Sec. 300.347(a)(4), does not
impose a burden because it replaces the requirement for a statement
of the extent to which the child will be able to participate in
regular educational programs.
    Requiring the IEP to include a statement of any needed
modifications to enable a child to participate in an assessment,
and, in cases in which a child will not be participating in a State
or district-wide assessment, to include a statement regarding why
the assessment is not appropriate and how the child will be
assessed. This statutory requirement, which is incorporated in Sec.
300.347(a)(5), will require some additional information to be
included in the IEPs for some children, but will not impose a
significant burden on schools. Each year an estimated 1.6 to 3.2
million children with disabilities are in grades in which schools
are administering State or district-wide assessments. Prior to the
enactment of the IDEA Amendments of 1997, Federal law required the
participation of children with disabilities in general assessments
with accommodations, as needed. Data indicate that about 50 percent
of children with disabilities have been participating in State and
local assessments. Many of these children are receiving needed
modifications and their IEPs currently include information about
those modifications. The requirement for statements in the IEP
about how children will be assessed will affect IEPs for children
who cannot participate in the general assessments and who are
entitled to participate in alternate assessments (estimated to be
200,000 to 700,000 children, beginning in school year 2000-2001).
    Allowing the IEP team to establish benchmarks rather than
short-term objectives in each child's IEP. There is considerable
variation across States, districts, schools, and children in the
amount of time spent on developing and describing short-term
objectives in each child's IEP. While it would be difficult to
estimate the impact of this statutory change, contained in Sec.
300.347(a)(2), it clearly affords schools greater flexibility and
an opportunity to reduce paperwork in those cases in which the team
has previously included unnecessarily detailed curriculum
objectives in the IEP document. This change potentially reduces the
burden in preparing IEPs for 6 million children each year.
    Prior to the enactment of the IDEA Amendments of 1997, IDEA
required the participation of the ``child's teacher,'' typically
read as the child's special education teacher, but it did not
explicitly require a regular education teacher. The IDEA Amendments
of 1997, incorporated in Sec. 300.344 (a)(2) and (a)(3) and Sec.
300.346(d) of the final regulations, require the participation of
the child's special education teacher and a regular education
teacher if the child is or may be participating in the regular
education classroom, while acknowledging that a regular education
teacher participates in developing, reviewing, and revising the
child's IEP ``to the extent appropriate.''
    The impact of this change will be determined by the number of
children with disabilities who are or who may be participating in
the regular classroom in a given year, the number and length of IEP
meetings, the extent of the regular education teacher's
participation in them, the opportunity cost of the regular
education teacher's participation, and the extent to which regular
education teachers are already attending IEP meetings.
    State-reported data for school year 1994-1995 indicates that
about 3.9 million children with disabilities aged 3 through 21
spend at least 40 percent of their day in a regular classroom
(children reported as placed in regular classes and resource
rooms). The participation of the regular education teacher would be
required for all of these children since these children are
spending at least part of their day in the regular classroom.
    State data also show that an additional 1.2 million children
were served in separate classrooms. A regular education teacher's
participation will clearly be required for those children in
separate classes who are spending part of their school day in
regular classes (less than 40 percent of their day). Other children
may be participating with nondisabled children in some activities
in the same building. While a child's individual needs and
prospects will determine whether a regular education teacher would
need to attend a child's IEP meeting in those cases, some
proportion of these children are children for whom participation in
regular classrooms is a possibility, therefore requiring the
participation of a regular education teacher.
    Although the prior statute did not require the participation of
a regular education teacher, it is not uncommon for States or
school districts to require a child's regular education teacher to
attend IEP meetings.
    Based on all of this information, it is estimated that the
participation of a regular education teacher may be required in an

[[Page 12658]]

additional 3.9 to 5.3 million IEP meetings in the next school year. 
   While the opportunity costs of including a regular education
teacher in these meetings will be significant because of the number
of meetings involved, these costs will be more than justified by
the benefits to be realized by teachers, schools, children, and
families. Involving the regular education teacher in the
development of the IEP will not only provide the regular education
teacher with needed information about the child's disability,
performance, and educational needs, but will help ensure that a
child receives the supports the child needs in the regular
classroom, including services and modifications that will enable
the child to progress in the general curriculum.

Parentally-Placed Students in Private Schools

    This statutory change, which is incorporated in Sec. 300.453,
would require school districts to spend a proportionate amount of
the funds received under Part B of IDEA on services to children
with disabilities who are enrolled by their parents in private
elementary and secondary schools.
    The change does not have an impact on most States because the
statute does not represent a change in the Department's
interpretation of the law as it was in effect prior to the
enactment of the IDEA Amendments of 1997. However, in four Federal
circuits, the courts have concluded that, without the statutory
change, school districts generally were responsible for paying for
the total costs of special education and related services needed by
students with disabilities who have been parentally-placed in
private schools. Therefore, this change does produce potential
savings for school districts in those 19 States affected by these
court decisions. The States are: Arkansas, Colorado, Connecticut,
Iowa, Kansas,
Louisiana, Minnesota, Mississippi, Missouri, New Mexico, Nebraska,
New York, North Dakota, Oklahoma, South Dakota, Texas, Utah,
Vermont, and Wyoming.
    To determine the impact of the change, one needs to estimate
the number of parentally-placed children with disabilities that
LEAs in these States would have been required to serve, but for
this change. Using private school enrollment data for school year
1995-1996 and projected growth rates, it is estimated that
approximately 1.5 million students will be enrolled in private
schools in these 19 States in this school year.
    There is no reliable data on the number of children with
disabilities who are parentally-placed in private schools. However,
if one assumes that children with disabilities are found in private
schools in the same proportion as they are found in public schools
in these States, or at least in the same proportion that children
with speech impairments and learning disabilities are found in
public schools, one would estimate that there are between 80,000
and 120,000 children with disabilities who are parentally-placed in
private schools.
    If one assumes that, on average, the cost of providing a free
appropriate education to these students would be approximately
equal to the average excess costs for educating students with
disabilities--$7,184 per child for school year 1998-1999--the costs
of providing FAPE to these children would be significant.
    Under the statutory change, LEAs schools would still be
required to use a portion of the Federal funds provided under Part
B of IDEA to provide services to parentally-placed children--an
amount proportionate to the percentage of the total population of
children with disabilities who are parentally-placed--and to carry
out required child find and evaluation activities. Therefore, in
estimating the impact of this statutory change, one needs to
subtract the cost of these public school obligations from the total
projected savings. One would also need to take into account the
fact that some of the costs that would have been covered by the
school districts will simply shift to other sources such as the
private schools or the families of the children. However, even if
one discounts the amount of projected savings to the public sector
by 50 percent to take into possible cost-shifting, the total net
savings attributable to the change in the law for these 19 States
is expected to be very significant.

Mediation

    Section 300.506 reflects the new statutory provisions in
section 615(e) of IDEA, which require States to establish and
implement mediation procedures that would make mediation available
to the parties whenever a due process hearing is requested. IDEA
specifies how mediation is to be conducted.
    The impact of this change will depend on the following factors:
the number of due process hearings that will be requested, the
extent to which the parties to those hearings will agree to
participate in mediation, the cost of mediation, the extent to
which mediation would have been used in the absence of this
requirement to resolve complaints, and the extent to which
mediation obviates the need for a due process hearing.
    Data for previous years suggests one can expect about one
complaint for every 1000 children served or about 6,000 requests
for due process hearings during this school year. This projection
probably overstates the number of complaints because it does not
take into account the effect of the IDEA Amendments of 1997, which,
on balance, can be expected to result in better implementation of
the law and higher parental satisfaction with the quality of
services and compliance with IDEA.
    Many of these complaints would have been resolved through
mediation even without the statutory change. Over 39 States had
mediation systems in place prior to the enactment of the IDEA
Amendments of 1997. Data for 1992 indicate that, on average, States
with mediation systems held mediations in about 60 percent of the
cases in which hearings were requested. Nevertheless, the number of
mediations is expected to increase even in States that already have
mediation systems. Although most States report using mediation as
a method of resolving disputes, there have been considerable
differences in its implementation and use. In general, the extent
to which mediation has been used in States probably depends on the
extent to which parents and others were informed of its
availability and possible benefits in resolving their complaints
and the extent to which the mediator was perceived as a neutral
third-party. The changes made by the IDEA Amendments of 1997 are
expected to eliminate some of the differences in State mediation
systems that have accounted for its variable use and effectiveness.
    The benefits of making mediation more widely available are
expected to be substantial, especially in relation to the costs.
States with well-established mediation systems conduct considerably
fewer due process hearings. For example, in California, hearings
were held in only 5 and 7 percent of the cases in which they were
requested in 1994 and 1995, respectively. The average mediation
appears to cost between $350 and $1000, while a due process hearing
can cost tens of thousands of dollars. Based on the experience that
many different States have had with mediation, it is estimated that
hundreds of additional complaints will be resolved through
mediation. The benefits to school districts and benefits to
families are expected to be substantial.

Discipline

    The final regulations (Secs. 300.121, 300.122, 300.520, and
300.521) incorporate a number of significant changes to IDEA that
relate to the procedures for disciplining children with
disabilities.
    Some of the key changes contained in section 615(k) afford
school districts additional tools for responding to serious
behavioral problems, and in that regard, do not impose any burdens
on schools or districts.
    The statutory change reflected in Sec. 300.520(a)(2) would give
school officials the authority to remove children who engaged in
misconduct involving weapons or illegal drugs. Under prior law,
school officials had the authority to remove children who brought
guns, but could not remove children who engaged in misconduct
involving other weapons or illegal drugs over the objection of
their parents unless they prevailed in a due process proceeding or
obtained a temporary restraining order from a court. The statutory
change reflected in Sec. 300.521 would give school officials the
option of seeking relief from a hearing officer rather than a court
in the case of a child the school is seeking to remove because the
child poses a risk of injury to the child or others. In both cases,
the child would continue to receive services in an alternative
educational setting that is required to meet certain standards. It
is difficult to assess the impact of either of these statutory
changes on schools because there is virtually no information
available on the extent to which parents disagree with districts
that propose to remove these children. This new authority would
only be used in those cases. Nevertheless, the benefits of this
authority appear to be substantial insofar as the changes help
schools provide for a safe environment for all children, while
ensuring that any children with disabilities who are moved to an
alternative setting continue to receive the services they need.
    The statutory change reflected in Sec. 300.520(b) will require
school officials to

[[Page 12659]]

convene the IEP team in certain cases in which removal is
contemplated to develop an assessment plan and behavioral
interventions (or that the IEP team members review the child's
behavioral intervention plan if there is one). The impact of this
requirement is discussed below as part of the discussion of non-
statutory changes.
    The requirement in section 612(a)(1)(A), incorporated in Sec.
300.121, that all children aged 3 through 21 must have made
available to them a free appropriate public education, including
children who have been suspended or expelled from school, does not
represent a change in the law as the law was interpreted by the
Department prior to the enactment of the IDEA Amendments of 1997.
It clarifies the Department's long-standing position that the IDEA
requires the continuation of special education and related services
even to children who have been expelled from school for conduct
that has been determined not to be a manifestation of their
disability.     However, this statutory change does represent a
change in the law in two circuits in which Federal Circuit courts
disagreed with the Department's interpretation of the law--the 4th
and 7th Circuits. The affected States are: Virginia, Maryland,
North Carolina, South Carolina, West Virginia, Illinois, Indiana,
and Wisconsin.
    To assess the impact of this change, one needs to estimate the
extent to which students would have been excluded from education,
but for this change in the statute, and the cost of providing the
required services to these students during the period they are
expected to be excluded from their regular school due to a long-
term suspension or expulsion.
    There is a paucity of data available on disciplinary actions,
and very little for the States in the 4th and 7th Circuits. Using
data collected by the Office for Civil Rights for school year 1994,
it is estimated that approximately 60,000 students with
disabilities aged 6 through 21 will be suspended during this school
year in the affected States. But to determine the impact of the
prohibition on ceasing services in these States, one needs to know
the number of suspensions each student received and their duration-
-information that is not provided by OCR data. However, more
detailed data compiled by a few States would suggest that a
relatively small percentage of students with disabilities who are
suspended (no more than about 15 percent) receive suspensions of
greater than 10 days at a time and a much smaller number of
students are expelled.     Little information is available on the
cost of providing services in an alternative setting for a student
who has been suspended temporarily or expelled from school.
However, it is reasonable to assume that the average cost per day
of providing services in an alternative setting probably would be
no less than the average daily total costs of serving children with
disabilities, which is about $75 per day. Although costs will vary
considerably depending on the needs of the individual student and
the type of alternative setting, costs are likely to be higher on
average because districts are unlikely to be able to achieve the
same economies of scale in providing services to small numbers of
children in alternative settings as they do in serving children
generally.
    While this statutory change will have a cost impact on the
States in the 4th and 7th Circuits, the costs for these States will
be justified by the benefits of continuing educational services for
children who are the least likely to succeed without the help they
need.
    The statutory change reflected in Sec. 300.122 could generate
potential savings for all States by removing the obligation to
provide educational services to individuals 18 years old or older
who were incarcerated in adult prisons and who were not previously
identified as disabled. No information is available on the number
of prisoners with disabilities who were not previously identified.

Triennial Evaluation

    The previously existing regulations required a school district
to conduct an evaluation of each child served under IDEA every
three years to determine, among other things, whether the child is
still eligible for special education. The IDEA Amendments of 1997
change this requirement to reduce unnecessary testing and therefore
reduce costs. Specifically, section 614(c) of IDEA, incorporated in
Sec. 300.533, allows the evaluation team to dispense with
additional tests to determine the child's continued eligibility if
the team concludes this information is not needed. However, these
tests must be conducted if the parents so request.
    The savings resulting from this change will depend on the
following factors: the number of children for whom an evaluation is
conducted each year to comply with the requirement for a triennial
evaluation, the cost of the evaluation, and an estimate of the
extent to which testing will be reduced because it is determined by
the IEP team to be unnecessary and is not requested by the parents. 
   Based on an analysis of State-reported data, it is estimated
that approximately 1.5 million children will be eligible for
triennial evaluations in school year 1998-1999 or roughly 25
percent of the children to be served.
    The IDEA Amendments of 1997 make it clear that districts no
longer need to conduct testing to determine whether a child still
has a disability, if the evaluation team determines this
information is not needed and the parent agrees. However, while the
regulation permits the team to dispense with unneeded testing to
determine whether the child still has a disability, the team still
has an obligation to meet to review any existing evaluation data
and to identify what additional data are needed to determine
whether the child is still eligible for special education and
related services, the present levels of performance of the child,
and whether any modifications in the services are needed. In view
of these
requirements, it is assumed that there will be some cost associated
with conducting the triennial evaluation even in those cases in
which both the team and the parents agree to dispense with testing.
It is estimated that the elimination of unnecessary testing could
reduce the opportunity costs for the personnel involved in
conducting the triennial evaluation by as much as 25 to 75 percent.
While there is no national data on the average cost of conducting
a triennial evaluation under the current regulations, it is assumed
that a triennial evaluation would require the participation of
several professionals for several hours and cost as much as $1000. 
   These savings would be somewhat mitigated by the increased costs
associated with the new statutory requirement to obtain parental
consent before conducting a reevaluation. Under the final
regulations, parental consent would be required if a test is
conducted as part of a reevaluation, for example, or when any
assessment instrument is administered as part of a reevaluation.  
  If one assumes, for purposes of this analysis, that savings are
achievable in roughly half of the triennial evaluations that will
be conducted and that elimination of unnecessary testing could
reduce personnel costs by at least 25 percent, one would project
substantial savings for LEAs that are attributable to this change.

Benefits and Costs of Proposed Non-statutory Regulatory Provisions

    The following is an analysis of the benefits and costs of the
nonstatutory final regulatory provisions that includes
consideration of the special effects these changes may have for
small entities.     The final regulations primarily affect State
and local
educational agencies, which are responsible for carrying out the
requirements of Part B of IDEA as a condition of receiving Federal
financial assistance under IDEA. Some of the proposed changes also
affect children attending private schools and consequently
indirectly affect private schools.
    For purposes of this analysis as it relates to small entities,
the Secretary has focused on local educational agencies because
these regulations most directly affect local school districts. The
analysis uses a definition of small school district developed by
the National Center for Education Statistics for purposes of its
recent publication, ``Characteristics of Small and Rural School
Districts.'' In that publication, NCES defines a small district as
``one having fewer students in membership than the sum of (a) 25
students per grade in the elementary grades it offers (usually K-8)
and (b) 100 students per grade in the secondary grades it offers
(usually 9-12)''. Using this definition, approximately 34 percent
of the Nation's school districts would be considered small and
serve about 2.5 percent of the Nation's students. NCES reports that
approximately 12 percent of these students have IEPs.
    Both small and large districts will experience economic impacts
from this rule. Little data are available that would permit a
separate analysis of how the changes affect small districts in
particular.
    This analysis assumes that the effect of the final regulations
on small entities would be roughly proportional to the number of
children with disabilities served by those districts.

[[Page 12660]]

    For school year 1998-1999, we estimate that approximately 47
million children will be enrolled in public elementary and
secondary schools. Using the NCES definition and assuming all
districts grew at the same rate between school year 1993-1994 and
1998-1999, the Secretary estimates that approximately 1.18 million
children are enrolled in small districts. Applying the NCES
estimate of 12 percent, we estimate that these districts serve
approximately 140,000 children with disabilities of the 6 million
children with disabilities served nationwide.
    There are many provisions in the final regulations that are
expected to result in economic impacts--both positive and negative.
This analysis estimates the impact of those non-statutory
provisions that were not required by changes that were made in the
statute by the IDEA Amendments of 1997. In conducting this
analysis, the Department estimated the additional costs or savings
for school district attributable to these provisions in relation to
the costs of implementing the statute, as amended by the IDEA
Amendments of 1997.
    The following is a summary of the estimated economic and non-
economic impact of the key changes in this final regulation:    
Section 300.2--Applicability to public agencies--The regulations
add charter schools to the list of entities to which the
regulations apply. Language is also added in paragraph (b)(2)
regarding the applicability of the regulations to each public
agency that has direct or delegated authority to provide special
education and related services in a State receiving Part B funds,
regardless of that agency's receipt of Part B funds. Neither change
imposes any additional burden; both were included for clarity.
    Section 300.7--Child with a disability--The final regulations
add a new paragraph (a)(2) to clarify that if a child has one of
the disabilities listed in paragraph (a), but only needs a related
service and not special education, the child is not a ``child with
a disability'' under Part B, unless the service is considered
special education under State standards. This change is not likely
to affect the number of children eligible for services under this
part substantially because this clarification reflects a
longstanding interpretation of the Department.
    Section 300.7(c)(1)--Autism--The final regulations amend the
definition of ``autism'' to clarify that if a child manifests
characteristics of this disability category after age 3, the child
could be diagnosed as having ``autism'' if the other criteria are
satisfied. This clarification does not impose any additional burden
on LEAs.
    Section 300.7(c)(9)--Attention deficit disorder--The final
regulations amend the definition of ``other health impairment'' to
add ADD/ADHD to the list of conditions that could render a child
eligible for services under this part. The language relating to
other health impairments is also modified to clarify that limited
strength, vitality or alertness includes a child's heightened
alertness to environmental stimuli that results in limited
alertness with respect to the educational environment. This change
will not increase costs for LEAs because it reflects the
Department's longstanding policy interpretation regarding the
eligibility of children with ADD/ADHD.
    Section 300.8--Definition of day--The final regulations add
definitions of ``day,'' ``business day,'' and ``school day,'' terms
that are used in the statute. Including these definitions will
reduce confusion about the meaning of these terms and will not
impose costs. The definition of ``day'' represents the Department's
longstanding interpretation of that term. In defining ``business
day,'' the Department used a commonly understood measure of time so
that both parents and school officials could easily understand
timelines established in the regulations.
    Section 300.10--Definition of educational service agency--The
final regulations clarify that the term ``educational service
agency'' includes agencies that meet the definition of
``intermediate educational units'' under prior law. This change
does not impose any costs on States.
    Section 300.18--Charter schools as LEAs--The final regulations
amend the definition of an ``LEA'' to include public charter
schools established as LEAs under State law. This change, which
adds clarity, does not impose any costs.
    Section 300.19--Native language--The final regulations expand
the definition of ``native language'' to clarify that in all direct
contact with the child, communication must be in the language
normally used by the child and not the parents if there is a
difference between the two, and that for individuals with deafness
or blindness, or for individuals with no written language, the mode
of communication would be that normally used by the individual.
This clarification does not impose any additional costs for LEAs
beyond what Federal law would already require.
    Section 300.20--Foster parents--The final regulations clarify
that foster parents may act as parents unless State law prohibits
such practice. This provision does not impose any costs. The
definition is intended to promote the appropriate involvement of
foster parents consistent with the best interests of the child by
ensuring that those who best know the child are involved in
decisions about the child's education. To the extent there is any
economic impact, it should reduce costs on States and local
agencies that they would otherwise incur for training and
appointing surrogate parents for children whose educational
interests could appropriately be represented by their foster
parents.
    Section 300.22--Definition of public agency--The final
regulations add public charter schools to the list of public
agencies. This change does not impose any additional costs on
States as Federal law already requires States to be ultimately
responsible for ensuring FAPE for all children with disabilities in
public schools in the State.
    Section 300.24--Related services--The final regulations modify
the definition of occupational therapy to make clear that it
encompasses services provided by a qualified occupational
therapist--a clarification that does not impose any additional
costs. The final regulations revise the definition of parent
counseling and training to include helping parents to acquire the
necessary skills that will allow them to support the implementation
of their child's IEP or IFSP.
    Section 300.26(b)(3)--Definition of ``specially-designed
instruction''--Paragraph (b)(3) defines ``specially-designed
instruction'' in order to give more definition to the term
``special education,'' which is defined in this section as
``specially-designed instruction.'' The definition is intended to
clarify that the purpose of adapting the content, methodology, or
delivery of instruction is to address the child's unique needs and
to ensure access to the general curriculum. This provision
increases the potential of children with disabilities to
participate more effectively in the general curriculum.
    Section 300.26--Travel training--The final regulations amend
the definition of ``special education'' to include a reference to
travel training in paragraph (a)(2) and a definition of travel
training in paragraph (b)(4)--clarifications that do not impose any
additional costs.
    Section 300.121--Free appropriate public education--The final
regulations add language to clarify that the responsibility to
provide FAPE beginning no later than a child's third birthday means
that an IEP or IFSP must be in effect by that date, and that a
child turning three during the summer must receive services if the
IEP team determines that the child needs extended school year
services. This language, which represents the Department's
longstanding interpretation of the statute, does not impose any
additional burden on LEAs. The final regulations also include
language in paragraph (e) to clarify that the group determining a
child's eligibility must make an individualized determination as to
whether a child who is progressing from grade to grade needs
special education and related services--another clarification that
does not impose any additional costs for LEAs.
    Section 300.121--FAPE for Children suspended or expelled from
school--Section 300.121 incorporates the statutory provision that
the right to a free appropriate public education extends to
children with disabilities who have been suspended or expelled from
school. Paragraph (d)(1) clarifies that a public agency need not
provide services to a child who has been suspended for fewer than
10 days in a school year if services are not provided to
nondisabled children. Paragraph (d)(2) describes when and to what
extent services must be provided to children who have been removed
from their current educational placement for more than 10 school
days in a given school year. Paragraph (d)(2) provides that the
public agency must provide services to the extent necessary to
enable the child to
appropriately progress in the general curriculum and advance toward
achieving the goals in the child's IEP if the suspension is for 10
school days or less or is for behavior that is not a manifestation
of the child's disability. In the case of suspensions of 10 days or
fewer, school personnel, in consultation with the special education
teacher, determine if, and to what extent services must be provided
to a child who has been suspended for more than 10 days in a

[[Page 12661]]

given school year. In the case of suspensions of more than 10 days,
this determination would be made by the IEP team. Paragraph (d)(2)
also refers to the statutory standard for services for children
removed for misconduct involving weapons, drugs, and substantial
likelihood of injury.
    In determining whether and how to regulate on this issue, the
Department considered the impact of various alternatives on small
and large school districts and children with disabilities and their
families, especially the adverse educational impact on a child who
has been suspended for more than a few days and on more than one
occasion. The final regulations strike an appropriate balance
between the educational needs of students and the burden on
schools. Schools will be relieved of the potential obligation to
provide services for a significant population of children who are
briefly suspended a few times during the course of the school year,
but required to consider the educational impact of suspensions on
children with chronic or more serious behavioral problems who are
repeatedly excluded from school.
    The cost of this regulation depends on how the statutory
requirement to provide services to children who have been suspended
or expelled is interpreted. If the statute is read to require
schools to provide services to all children who are suspended for
one or more school days, this regulation would result in
substantial savings for school districts. If the statute is read to
give schools the flexibility not to provide services to children
suspended for fewer than 10 school days at a time, regardless of
the cumulative effect, as long as there is no pattern of exclusion
that warrants treating an accumulation that exceeds 10 school days
as a change in placement, this regulation would impose some
additional costs.     Based on data collected by the Office for
Civil Rights for school year 1992 and data on the number of
children who are currently being served under IDEA, it is estimated
that approximately 300,000 children with disabilities will be
suspended for at least one school day during this school year. Many
of these children will be suspended on more than one occasion for
one or more days. Because of the differences among the children who
are expected to be suspended and the range of their service needs,
the costs of and the burden associated with providing
individualized services in an alternative setting to every child
who is suspended for one or more school days would be substantial.
Limiting the requirement to children who have been suspended for
more than 10 days in the school year would reduce costs
substantially. Based on data from a few selected States, it appears
that no more than about 45,000 of these 300,000 children with
disabilities will be suspended for more than 10 days in a school
year. Of these, an estimated 15,000 are expected to be suspended at
least once for more than 10 consecutive days.
    Section 300.122(a)(3)--Exception to right to FAPE (Graduation)-
-Paragraph (a)(3) provides that a student's right to FAPE ends when
the student has graduated with a regular high school diploma, but
not if the student graduates with some other certificate, such as
a certificate of attendance, or a certificate of completion. The
final regulations further clarify that graduation constitutes a
change in placement, requiring written prior notice. Given the
importance of a regular high school diploma for a student's post-
school experiences, including work and further education, making it
clear that the expectation for children with disabilities is the
same as for nondisabled children provides a significant benefit to
children with disabilities. The impact of this change, however, is
difficult to assess. Many States, including most of those that
report a high number of children with disabilities leaving school
with a
certificate of completion or some other certificate that is not a
regular high school diploma, indicate that students with
disabilities have the right to continue to work to earn a regular
high school diploma after receiving that certificate. Little
information is available to evaluate how many students who now can
return to school after receiving some other certificate of
completion do so, or how many would return to school if States are
required to adopt a policy that clearly indicates that students who
exited with a certificate have the right to continued services.
Several State directors of special education indicated that
relatively few students who now can return, do so. The cost of
serving even 10,000 of the 25,000 students who exit each year with
certificates would be substantial.
    Section 300.125--Child find--The final regulations clarify the
link between child find under Parts B and C. The final regulations
also add language clarifying that the State's child find
responsibilities extend to highly mobile children such as the
homeless and migrant children and children progressing from grade
to grade if they are suspected of having disabilities and in need
of special education. None of these changes impose any requirements
beyond what the statute has been interpreted to require.
    Section 300.132(c)--LEA participation in transition planning
conference--The regulations require an LEA representative to
participate in planning conferences arranged by the lead agency for
children who are receiving services under Part C and may be
eligible for preschool services under Part B. This requirement does
not result in significant costs for school districts. Only about
100,000 children age out of early intervention services each year
and in many cases, LEA representatives have been participating in
the transition planning conferences for these children, although
they have not been required to do so.
    Section 300.136--Personnel standards--The final regulations add
new paragraphs (b)(3) and (b)(4) to clarify that a State is not
required to establish any particular academic degree requirement
for entry-level employment of personnel in a particular profession
or discipline and that a State may modify its standard if it has
only one entry-level academic degree requirement. This language
clarifies the extent of flexibility afforded to States in meeting
IDEA's personnel standards requirement and therefore may reduce
costs for States and LEAs. The final regulations also add language
in a new paragraph (g)(2) that explains that the State option
relating to allowing LEAs to use the most qualified personnel
available can be invoked even if a State has reached its
established date for a specific profession--another clarification
regarding the flexibility that is available to States. Language is
added in a new paragraph (g)(3) that clarifies that a State that
continues to experience shortages must address them in its CSPD.
    Section 300.139--Reporting on assessments--The final
regulations require SEA reports on wide-scale assessments to
include children with disabilities in aggregated results for all
children to better ensure accountability for results for all
children. This regulation is expected to have a minimal impact on
the cost of reporting assessment results. It could increase the
number of data elements reported depending on whether States
continue to report trend data for a student population that does
not include children with disabilities to the extent required by
Sec. 300.138. There will be no impact on school districts since
this requirement applies to reports that are prepared by the State
educational agency.
    Section 300.142--Medicaid reimbursement--The final regulations
add language to paragraph (b)(1) specifying that a noneducational
public agency may not disqualify an eligible service for Medicaid
reimbursement because that service is provided in a school context.
A new paragraph (b)(3) has been added regarding the responsibility
of State agencies and LEAs to provide all services described in a
child's IEP in a timely manner regardless of which agency pays for
the services. These clarifications of statutory requirements
relating to interagency coordination between educational and
noneducational agencies do not impose any additional costs.    
Section 300.142(e)--Use of public insurance--Paragraph (e)
describes the circumstances under which a public agency may access
a parent's Medicaid or other public insurance to pay for required
services. Paragraph (e)(2) provides that a public agency may not
require parents to sign up for public insurance in order for their
child to receive FAPE. Paragraph (e)(2) further clarifies that a
public agency may not require parents to assume an out-of-pocket
expense and may not use a child's benefits if that use would
decrease available coverage, require the parents to pay for
services that would otherwise be covered by public insurance,
increase premiums or lead to discontinuation of insurance, or risk
loss of eligibility for home and community-based waivers. Under the
statute, public agencies are required to provide children with
disabilities with a free, appropriate public education. It has been
the
Department's longstanding interpretation under IDEA and section 504
of the Rehabilitation Act that this means a public agency may not
require parents of children with disabilities to use private
insurance

[[Page 12662]]

proceeds to pay for services their children are entitled to receive
if the parents would incur a financial cost as a result. A
financial cost would include an out-of-pocket expense, a decrease
in coverage, or an increase in premiums. This interpretation is
equally
applicable to the use of public insurance. Although these changes
appear to limit an LEA's access to public insurance to cover the
costs of FAPE, all of these changes are based on the statutory
requirement to provide FAPE and, therefore, do not impose
additional costs on LEAs beyond what the law would require.
Moreover, these clarifications would not affect the use of public
insurance programs such as Early Periodic Screening, Diagnosis and
Testing that do not impose any limits on coverage or require any
co-payments.
    Section 300.142(f) and (g)--Use of private insurance--
Paragraph (f)(1) clarifies that public agencies may only access
parents' private insurance to pay for required services if the
parents consent to its use. As noted above, it has been the
Department's longstanding interpretation that a public agency may
not require parents to use private insurance proceeds to pay for
services the child is entitled to receive if the parents would
incur a financial cost as a result. Because it is reasonable to
assume that use of private insurance will result in a financial
cost in almost all cases, this provision, which would allow for the
use of private insurance with parental consent, would increase
options available to LEAs for accessing insurance--that is, in
cases in which the parents consent, whether or not a financial cost
is incurred.
    However, to ensure that use of parents' insurance proceeds is
voluntary and that parents do not experience unanticipated
financial consequences, the final regulations require that parents
provide informed consent. This consent must be obtained each time
a public agency attempts to access private insurance. This
clarification could have the effect of limiting access to the use
of private insurance but is consistent with the Department's
longstanding interpretation that such use must be voluntary.
    A new paragraph (g) is added that clarifies that Part B funds
may be used for services covered by a parent's public or private
insurance and to cover the costs of accessing a parent's insurance
such as paying deductible or co-pay amounts. This clarification
does not impose any additional costs on LEAs.
    Section 300.142(h)--Program income--This paragraph clarifies
that a public agency that receives proceeds from insurance for
services is not required to return those funds to the Department or
dedicate those funds to this program and that funds expended by a
public agency from reimbursement of Federal funds will not be
considered reimbursement for purposes of Secs. 300.154 and 300.231
of these regulations. This change increases flexibility for State
and local agencies in using the proceeds from insurance.
    Section 300.142(i)--Construction--This paragraph makes it clear
that the IDEA regulations should not be read to alter the
requirements imposed by other laws on a State Medicaid agency or
any other agency administering a public insurance program. This
clarification does not impose any additional costs.
    Section 300.148--Public participation--The final regulations
add language to clarify that if a policy or procedure has been
through a State-required public participation process that is
comparable to and consistent with the Federal requirements, the
State would not have to subject the policy or procedure to public
comment again. This should result in savings to States and would
not increase burden.
    Section 300.152--Commingling--Language has been added to
clarify that the required assurance regarding commingling may be
satisfied by the use of a separate accounting system that includes
an audit trail of the expenditure of Part B funds and that separate
bank accounts are not required. This guidance merely incorporates
the Department's prior interpretation and does not add any burden
for States.
    Section 300.156(b)--Annual description of Part B set-aside
funds--Paragraph (b) provides that if a State's plans for the use
of its State level or State agency funds do not differ from those
for the prior year the State may submit a letter to that effect
instead of submitting a description of how the funds would be used.
The effect of this regulation is inconsequential because it
implements the Department's long-standing interpretation that a
letter is sufficient in this case.
    Section 300.197--Compliance--Paragraph (c) requires SEAs to
consider adverse complaint decisions under the State complaint
procedures in meeting their responsibilities under Sec. 300.197 to
determine whether any LEA or State agency is failing to comply.
Consideration of these decisions is expected to impose minimal
burden on States that are appropriately meeting their
responsibilities under this section.
    Section 300.231--Maintenance of effort (MOE)--The final
regulations make it clear that an LEA meets the maintenance of
effort requirement by spending at least the same total or average
per capita amount of State and local school funds for the education
of children with disabilities as in the prior year. This change
reduces the burden on LEAs of maintaining spending on special
education in those cases in which the State is willing to assume
increased responsibility for funding.
    Section 300.232--Exception to maintenance of effort-- Paragraph
(a) makes it clear that an LEA may only reduce expenditures
associated with departing personnel if those personnel are replaced
by qualified, lower-salaried personnel. Allowing LEAs to reduce
their expenditures by not replacing departing personnel would
violate congressional intent, as expressed in the House and Senate
Committee reports, and diminish special education services in those
districts. The final regulations also clarify that in those cases
in which an LEA is invoking the exception to the MOE requirement
and replacing personnel who have departed with lower salaried
personnel, that this must be done consistent with school board
policies, applicable collective bargaining agreements, and State
law. This clarification of the relationship does not impose any
additional burden beyond what local policies and law would
otherwise impose.     Section 300.234--Schoolwide programs--The
final regulations add language clarifying that children with
disabilities in schoolwide projects must receive services in
accordance with an IEP and must be afforded all of the rights and
services guaranteed to such children under the IDEA. This
clarification does not impose any additional burden on LEAs.
    Section 300.280--Notice for public participation--The final
regulations clarify what constitutes ``adequate'' notice in
paragraphs (b) and (c) and do not impose any additional burden.   
 Section 300.281--Public participation--Paragraph (a) further
clarifies the ``reasonableness'' standard implied in the statutory
requirement, while paragraph (b) reflects a statutory requirement
in the General Education Provisions Act. These changes do not
impose any additional costs.
    Section 300.300--Child find--The final regulations clarify that
the State must ensure child find is fully implemented throughout
the State. This clarification does not impose any additional costs.
The final regulations also add language to clarify that the
services and placement needed by each child with a disability must
be based on the child's unique needs and not on the child's
disability. This clarification does not impose any costs on school
districts.     Section 300.301(c)--Implementation of IEP--The final
regulations add language in a new paragraph (d) making it clear
that there can be no delay in implementing a child's IEP in any
case in which the payment source is being reconciled. This
clarification does not impose any additional costs.
    Section 300.308--Assistive technology--The final regulations
add a provision that clarifies that a public agency must permit a
child to have access to a school-purchased assistive technology
device at home or in another setting if necessary to ensure FAPE.
This change does not impose any additional costs on school
districts because it implements a longstanding policy of the
Department.
    Section 300.309--Extended school year services--The final
regulations specify that States may not limit eligibility for
extended school year services based on disability and may not limit
types and amounts of services; and clarify that States may
establish standards such as likelihood of regression for
determining
eligibility for ESY and that every child is not entitled to receive
ESY. These changes in the regulations impose no burden beyond what
is required by the statute because they reflect the Department's
longstanding policy interpretation of what is required to provide
FAPE.
    Section 300.312--Charter schools--The final regulations add a
new provision that makes clear that children with disabilities who
attend charter schools and their parents retain all rights under
these regulations. The regulations further explain which entity in
the State is responsible for ensuring that the requirements of the
regulations are met. These clarifications do not impose any
additional burdens on States, schools

[[Page 12663]]

districts, or charter schools beyond what the statute would
otherwise require.
    Section 300.313--Developmental delay (DD)--The final
regulations add a new provision describing the use of the
developmental delay designation. This section sets out the
requirements for use of the DD designation. It clarifies that
States and LEAs may use the DD designation for any child who has an
identifiable disability, provided all the child's identified needs
are addressed, and clarifies that States may adopt, if they wish,
a common definition of DD for Parts B and C. These changes clarify
the flexibility the statute affords States in using the DD
designation and, therefore, impose no costs.
    Section 300.341--State standards--The final regulations clarify
that a child placed by a public agency must receive an education
that meets SEA and LEA standards. The cost impact of this change
depends largely on the extent to which non-special education
personnel in schools in which a public agency is placing children
do not meet SEA and LEA standards. Approximately four percent of
the six million children expected to be served under IDEA in school
year 1998-1999 are expected to be placed in private schools.
Because these schools are typically schools for exceptional
children, virtually all of the professionals employed by these
schools are special education teachers and related services
personnel, who must meet SEA and LEA under the prior law, as
implemented by the regulations. Paragraph (b) clarifies that each
public educational agency is responsible for developing and
implementing an IEP for each child it serves or places or refers.
This clarification imposes no additional cost on public agencies
since it represents a longstanding interpretation of the statute.
    Section 300.342(b)--Implementation of IEPs--The final
regulations add language requiring that each child's IEP be
accessible to the child's teachers and service providers and that
each teacher and provider be informed of specific responsibilities
related to implementing the IEP and of needed accommodations,
modifications, and supports for the child. This regulation is not
expected to impose any undue burden on schools. The regulations
clarify what is minimally required to promote effective
implementation of the IEP requirements and allow schools
flexibility in determining how to comply.
    Section 300.342(c)--Use of IFSP--Paragraph (c) requires school
districts to obtain written informed consent from parents before
using an IFSP instead of an IEP, which is based on an explanation
of the differences between the two documents. The regulation would
impose a cost burden on districts in those States that elect to
allow parents to opt for the use of an IFSP instead of an IEP.
However, once a form is developed that explains the differences
between an IFSP and an IEP, the costs of providing this form to
parents and obtaining written consent are most likely minimal, and
are justified by the benefits of ensuring that parents understand
the role of the IEP in providing access to the general education
curriculum.
    Section 300.342(d)--Effective date for IEPs--Paragraph (d)
provides that all IEPs developed, reviewed, or revised on or after
July 1, 1998 must meet the requirements of IDEA, as implemented.
This language clarifies the statute and eliminates the burden that
would be associated with redoing all IEPs to conform with the new
requirements before July 1. The one-time cost of reconvening
millions of IEP teams before July 1 would have been substantial.  
  Section 300.344(c) and (d)--Participants in IEP meetings--The
final regulations add a new paragraph (c) clarifying that
determinations about the knowledge and expertise of other
individuals invited to be on the IEP team are made by the parent or
the public agency that invited them. This clarification reduces
potential burden by minimizing opportunities for disputes with
respect to whether the parent or public agency may invite another
individual to participate on the team. A new paragraph (d) has been
added to clarify that a public agency may designate another IEP
team member as the public agency representative of the IEP team.
Permitting an individual to perform dual functions will reduce the
cost of conducting IEP meetings for school districts.
    Section 300.344(b)--Including the child in the IEP meeting--
Paragraph (b) requires the school to invite students to participate
in IEP meetings if the meeting will include consideration of
transition services needs or transition services. The effect of
this provision is to give 14- and 15-year-olds, and in some cases,
younger students the opportunity to participate. The existing
regulations have required schools to invite students to meetings in
which transition services were to be discussed. These would include
all students aged 16 years and older, and in some cases, younger
students. The law has also given other children, if appropriate,
the opportunity to participate in the IEP meeting. Therefore, in
some cases, 14- and 15-year-olds may be already participating. The
costs of notifying students about a meeting or trying to ensure
that the students' interests and preferences are accommodated are
more than justified by the benefits of including students in a
discussion of their own transition needs, including their planned
course of study in secondary school.
    Section 300.345(b)--Participants in IEP meeting--The final
regulations clarify that the public agency must inform parents of
their right and that of the public agency to invite someone to the
IEP meeting who has knowledge or special expertise. This additional
requirement will impose minimal burden on schools because this
information could be included in other notices the schools are
already required to provide to parents.
    Section 300.345(f)--Copy of the IEP--The final regulations
require the public agency to provide parents a copy of the IEP. The
cost of this change will depend on the extent to which parents are
currently receiving copies. Under current regulations, schools are
required to provide a copy to parents who request one. It is
reasonable to assume that schools routinely provide a copy to
parents who attend the IEP meeting. The cost of providing copies to
those parents who would not otherwise receive copies is not likely
to be substantial.
    Section 300.346(a)(1)--Performance on assessments--The final
regulations require the IEP team to consider the child's
performance on general State and district-wide assessments, in
considering the child's initial or most recent evaluation. This
clarification is not likely to impose an additional costs because
one can reasonably assume that most IEP teams would consider this
information as a matter of course in determining the child's
present levels of performance.
    Section 300.347--Transition services--The final regulations
delete the requirement from the existing regulations that requires
a justification for not providing particular transition services.
This change eliminates unnecessary paperwork.
    Section 300.349--Private school placements--The final
regulations incorporate the previous regulatory requirement
regarding inviting a representative of the private school to a
child's IEP meeting. This requirement does not impose a significant
burden, while helping to ensure appropriate implementation of IEPs
for children placed in private schools.
    Section 300.350--Accountability--The final regulations include
a statement regarding the responsibilities of public agencies and
teachers to make good faith efforts to ensure that a child achieves
the growth projected in the IEP, even though the IEP should not be
regarded as a performance contract. This clarification does not
impose any additional costs on agencies and is intended to promote
proper implementation of the IEP requirements.
    Section 300.401--Children placed in private schools--The final
regulations specify that a child placed in a private school by a
public agency as a means of providing FAPE must receive an
education that meets the standards that apply to the SEA and LEA.
For example, all personnel who provide educational services must
meet the personnel standards that apply to SEA and LEA personnel
providing similar services. This change could increase the costs of
these placements to the extent this change required private schools
to increase their salaries in order to recruit regular education
personnel who meet SEA and LEA standards. However, the costs
imposed by this change are expected to be minimal. Less than two
percent of the six million children served under Part B are placed
by public agencies in private schools. These schools are typically
special schools in which most of the education personnel are
providing special education and related services. These personnel
have been required to meet SEA and LEA standards under prior law.
    Section 300.403--Reimbursement for private placements--The
final regulations include language in paragraph (c) that makes it
clear that a private placement must be appropriate to be eligible
for reimbursement, but does not need to meet State standards. This
clarification, which is based on Supreme Court decisions regarding
the basic standard for reimbursement, does not impose any
additional costs on State or local agencies.
    Section 300.451--Consultation on child find--The final
regulations add a new

[[Page 12664]]

paragraph (b) to require public agencies to consult with
representatives of parentally-placed private school students on how
to conduct child find. Paragraph (a) clarifies that the child find
activities for parentally-placed children must be comparable to
child find activities for children with disabilities in public
schools. The consultation requirement may impose an additional
burden but is expected to better enable school districts to carry
out this mandatory function. The requirement for comparability does
not impose any additional burden, but clarifies the intent of the
statute, which does not distinguish between child find activities
for children enrolled in public schools and those conducted for
children in private schools.
    Section 300.452--Services plan--A paragraph has been added that
clarifies that a services plan must be implemented for each
parentally-placed private child who is receiving services under
Part B. This clarification does not impose any additional burden. 
   Section 300.453--Expenditures on child find in private schools--
A new paragraph (b) requires States to conduct a child count of
private school children with disabilities and consult with
representatives of private school children in deciding how to
conduct that count. This count is necessary to enable States to
determine how much they are required to spend on providing special
education and related services to this population. A new paragraph
(c) clarifies that the costs of child find for private school
children may not be considered in determining whether the LEA met
the requirement for proportionate expenditures on parentally-placed
children. This provision does not impose any additional cost on
school districts because it has been the Department's longstanding
interpretation that child find includes the identification of
children in private schools and that the cost of child find for
private school children may not be considered in determining
whether the LEA has met the requirements to serve children in
private schools. Paragraph (d), which clarifies that States and
LEAs are not prohibited from spending additional funds on providing
special education and related services to parentally-placed
children beyond what would be required, does not impose any
additional costs. Paragraph (b) requires the LEA to conduct a child
count of children with disabilities in private schools on the same
day in which the overall count is conducted, to consult with
private school
representatives on conducting that annual count, and to use that
count to determine required expenditures. Although the requirement
to conduct the child count on a date certain limits LEA flexibility
and the required consultation imposes a burden, both requirements
help ensure that the child count accurately reflects the size of
the private school population.
    Section 300.454--Services to children in private schools--The
final regulations clarify that no private school child has an
individual right to receive any of the services the child would
receive if enrolled in a public school. This section further
provides that each LEA shall consult with representatives of
private school children in determining which children will receive
services, what services will be provided, how and where services
would be provided, and how they would be evaluated. The regulations
make it clear that the representatives must have a genuine
opportunity to express their views and that the consultation must
be before the LEA makes its final decisions. The regulations also
require the LEA to conduct meetings to develop a services plan for
each private school child and to ensure the participation of a
representative of the child's private school at the meeting. These
regulations help ensure effective implementation of the provisions
relating to serving parentally-placed children and impose minimal
burden on school districts.
    Section 300.455--Services to children in private schools--The
final regulations clarify that services provided private school
children must be provided by personnel meeting SEA standards; that
children in private schools may receive different amounts of
services than children in public schools; and that there is no
individual entitlement to services; each child to be provided
services must have a services plan. These changes do not impose any
additional costs on school districts; indeed they reflect the
Department's longstanding interpretation of the provisions relating
to serving parentally-placed children.
    Section 300.456--Treatment of transportation--Consistent with
the Department's longstanding interpretation, the final regulations
state that transportation must be provided to private school
children if necessary to enable them to benefit from the services
that are offered. The regulations also clarify that the cost of
providing the transportation may be included in calculating whether
the LEA has met its financial obligations. The final regulations
further clarify that the LEA is not required to provide
transportation between the child's home and the private school.
These clarifications could reduce the potential cost for school
districts of complying with the requirement for proportionate
expenditures.
    Section 300.457--Complaints of parentally-placed children--The
final regulations make it clear that due process procedures do not
apply to parentally-placed children. This clarification will reduce
costs to the extent that LEAs have allowed parents to use the due
process procedures to bring complaints relating to parentally-
placed children. This section also clarifies that due process
procedures do apply to child find. This change will increase costs
to the extent that parents were unaware of their ability to bring
complaints about child find and now do so.
    Section 300.500(b)(1)(iii)--Parental consent--The final
regulations add language to clarify that a revocation of consent
does not have retroactive effect if the action consented to has
already occurred. This change protects LEAs from complaints
regarding services provided in reliance on parental consent that
was subsequently revoked. It does not impose any costs on LEAs.   
 Section 300.501(b)--Parental access to meetings--Paragraph (b) of
Sec. 300.501 defines when and how to provide notice to parents of
meetings in which they are entitled to participate. It further
limits what is meant by the term ``meeting.'' These regulations
impose the minimal requirements necessary to implement the statute.
The language in paragraph (b)(1) helps to clarify what is required
to provide parents with a meaningful opportunity to attend meetings
while the language in paragraph (b)(2) is designed to reduce
unnecessary burden by clarifying what constitutes a ``meeting.''  
  Section 300.501(c)--Placement meetings--Paragraph (c) of Sec.
300.501 specifies that the procedures to be used to meet the new
statutory requirement of parental involvement in placement
decisions. It provides that the procedures used for parental
involvement in IEP meetings also be used for placement meetings.
These include specific requirements relating to notice, methods for
involving parents in the meeting, and recordkeeping of attempts to
ensure their participation. Because in many cases placement
decisions will be made as part of IEP meetings, as is already the
case in most jurisdictions, the impact of this regulation will be
minimal. In those cases in which placement meetings are conducted
separately from the IEP meetings, the benefits of making
substantial efforts to secure the involvement of parents and
provide for their meaningful participation in any meeting to
discuss their child's placement more than justify the costs.
    Section 300.502--Independent educational evaluation--Paragraph
(a) provides that on request for an independent education
evaluation (IEE) parents are provided with information about where
an IEE may be obtained and the agency criteria applicable to IEEs,
criteria that must be consistent with the definition of an IEE.
Paragraph (b) makes it clear that if a parent requests an IEE, the
agency must either initiate a due process hearing to show that its
evaluation is appropriate or provide for an IEE at public expense.
The final regulations also provide that a public agency may request
an explanation from the parents regarding their concerns when a
parent requests an IEE at public expense, but such an explanation
may not be required and the public agency may not delay providing
the IEE, or initiating a due process hearing. These provisions
requiring the agency to provide information to the parents and take
action do not result in significant additional costs because if the
agency did not take action, parents would be free to request due
process to compel action. It is important for parents to be
informed about the relevant agency criteria for an IEE since the
parent has a right to an IEE at public expense and the IEE must
meet agency criteria to be considered by the public agency in
determining eligibility.     Paragraph (e) provides that a public
agency may not impose conditions or timelines related to obtaining
an independent evaluation. This requirement, which arguably limits
the flexibility of school districts, is critical to ensuring that
school districts do not find ways to circumvent the right provided
by the IDEA to parents to obtain an independent evaluation.
    Sections 300.504(b)(14)--Notice to parents regarding complaint
procedures--The final regulations require that the required

[[Page 12665]]

procedural safeguards notice to parents include information about
how to file a complaint under State complaint procedures. Because
districts are already required to provide this notice to parents,
the additional cost of adding this information will be one-time and
minimal. The burden on small districts could be minimized if each
SEA were to provide its LEAs with appropriate language describing
the State procedures for inclusion in the parental notices. Making
parents aware of a low cost and less adversarial mechanism that
they can use to resolve disputes with school districts should
result in cost savings and more cooperative relationships between
parents and districts.
    Section 300.505(a)(3)--Parental consent for reevaluation--
Paragraph (a)(3) clarifies that the new statutory right of parents
to consent to a reevaluation of their child does not require
parental consent prior to the review of existing data or
administering a test or other evaluation procedure that is given to
all children (unless all parents must consent). As a matter of good
practice, school personnel should be engaged in reviewing
information about the child's performance on an on-going basis.
Requiring parental consent for this activity would have imposed a
significant burden on school districts with little discernable
benefit to the children served under these regulations.
    Paragraph (c)(2) uses the procedures that were in the prior
regulations dealing with inviting parents to IEP meetings as a
basis for defining what it means to undertake ``reasonable
measures'' in obtaining parental consent. The intent of the change
is to
meaningfully operationalize the statutory right of parents to
consent to a reevaluation of their child. Given the importance of
parental involvement in all parts of the process, any burden
imposed by the proposed recordkeeping requirements is justified by
the benefits of securing parental consent to the reevaluation.
    Section 300.506--Impartial mediation--Paragraph (b)(2)
specifies that if the mediator is not selected from the list of
mediators on a random basis, such as rotation, both parties must be
involved in selecting the mediator and agree with the selection of
the mediator. Paragraph (c) interprets the statutory requirement
that mediation be conducted by an impartial mediator to mean that
a mediator may not be an employee of any LEA or a State agency that
is providing direct services to the child and must not have a
personal or professional conflict of interest. However, a person
will not be considered an employee merely for being paid to serve
as a mediator. Since participation in mediation is voluntary, it
must be viewed as an attractive alternative to both public agencies
and parents. Both parties must trust the process and the first test
of that is the selection of the mediator. It is unlikely that
parents would regard an employee of the other party to the dispute
to be impartial or a person who has a personal or professional
conflict of interest. Providing for impartiality should help
promote the use of mediation and improve its overall effectiveness
in resolving disagreements. The impact of disallowing these
individuals from serving as mediators is not likely to have a
significant impact on States, given current practices. Many States
contract with private
organizations to conduct their mediations. Others use employees of
the State educational agency, which, in most cases, is not the
agency providing direct services. Given the significant benefits to
children, families, and school districts of expeditiously resolving
disagreements without resort to litigation, the benefits of this
change easily justify any cost or inconvenience to States.
    Section 300.506(d)(2)--Failure to participate in meeting--
Paragraph (d)(2) would specify that a parent's failure to
participate in a meeting at which a disinterested person explains
the benefits of and encourages the use of mediation could not be
used as a reason to deny or delay the parent's right to a due
process hearing. This change is not likely to limit the benefits to
school districts of mediation as it is unlikely that parents who
are unwilling to participate in such a meeting with a disinterested
person would be willing to engage in the voluntary mediation
provided for in the statute.
    Section 300.507(c)(4)--Failure to provide notice--Paragraph
(c)(4) makes it clear that failure by parents to provide the notice
required by the statute cannot be used by a school district to
delay or deny the parents' right to due process. This regulation
would eliminate the possibility that public agencies will delay a
due process hearing pending receipt of a notice that they deem to
be acceptable. This regulation does not impose any cost on school
districts and would help ensure that parents are afforded
appropriate and timely access to due process.
    Section 300.510(b)(2)(vi)--Access to findings and decisions--
The final regulations give parents the option of selecting an
electronic or written copy of the findings and decisions in the
administrative appeal of a due process decision. This is consistent
with the statutory right of the parents to a written or electronic
copy of the decision and findings in the due process hearing. It is
important to ensure that parents are provided the decisions and
findings in a way that is most useful to them. The cost of
implementing this requirement is expected to be negligible.    
Section 300.513(b)--Attorneys' fees--Paragraph (b) provides that
funds provided under Part B of IDEA could not be used to pay
attorneys' fees or costs of a party related to an action or
proceeding under section 615 of IDEA. This regulation does not
increase the burden on school districts or otherwise substantially
affect the ability of school districts to pay attorneys' fees that
are awarded under IDEA or to pay for their own attorneys. It merely
establishes that attorneys' fees must be paid by a source of
funding other than Part B based on the Department's position that
limited Federal resources not be used for these costs. This
regulation is not expected to have a cost impact on small (or
large) districts because all districts have non-Federal sources of
funding that are significantly greater than the funding provided
under IDEA. Currently, funds provided to States under the IDEA
represent about ten percent of special education expenditures.
    Section 300.514(c)--Hearing officer decisions--The final
regulations clarify that if a State hearing officer in a due
process hearing or a review official in a State level review agrees
with the parents that a change in placement is appropriate, the
child's placement must be treated in accordance with that
agreement. This regulation is not expected to have a significant
cost impact because it is based on the Supreme Court's language in
Burlington School Committee v. Department of Education, and the
decisions of appellate courts in such circuits as the 3rd and 9th.
If paragraph (c) were not included in the regulation, in many
cases, parents would be expected to be able to successfully argue,
as they have in the past, that the hearing officer's decision to
change the placement of a child be implemented. The cost impact of
this regulation in other circuits and cases in which the placement
change would not have occurred is indeterminate because in some
cases implementation of the hearing officer's decision will result
in moving children to more costly placements and, in other cases,
to less costly
placements. In either case, the benefits to the child of securing
an appropriate placement justify any potential increase in costs or
other burdens to the school district.
    Section 300.519--Change in placement--The final regulations
define a change in placement in the context of disciplinary
removals as a removal for more than 10 consecutive school days or
a series of removals that constitute a pattern because they
cumulate to more than 10 school days in a school year and, because
of such factors as the length of each removal, the total amount of
time the child is removed, and the proximity of the removals to one
another. This change does not impose any additional costs. It is
consistent with longstanding interpretations of the law.
    Section 300.520(a)--Authority of School Personnel--Paragraph
(a) clarifies that school personnel may remove a child with a
disability for school code violations for up to 10 days at a time
more than once during a school year, as long as such removals do
not
constitute a change in placement. This clarification does not
result in any additional costs or savings for school districts
because it is consistent with the Department's longstanding
interpretation of the law and the statute, as amended.
    Section 300.520(b) and (c)--Behavioral interventions--Paragraph
(b) of this section makes it clear that if a child is removed from
his or her current placement for 10 schools days or fewer in a
given year, the school is not required to convene the IEP team to
develop an assessment plan for the child. Paragraph (b) further
provides that a school would be required to do so if the child were
suspended for more than 10 days in a given school year. Paragraph
(b) specifies that the IEP team meeting to consider behavioral
interventions occur within 10 business days of the behavior that
leads to discipline rather than 10 calendar days, and clarifies
that, if the child does not have a behavior intervention plan, the
purpose of the meeting is to develop an assessment plan. After
completing the assessments specified in the plan, the team must
meet to develop appropriate behavioral interventions to address
that behavior. Because the statute

[[Page 12666]]

could be read to require that the IEP team be convened for this
purpose the first time a child is suspended in a given year, the
requirement in the final regulations would significantly reduce the
burden on school districts.
    The business day alternative would further minimize the burden
on school districts and would not have a significant impact on
children with disabilities, in light of other protections for
children.
    In determining whether to regulate on this issue, the Secretary
considered the potential benefits of providing behavioral
interventions to children who need them and the impact on school
districts of convening the IEP team to develop behavioral
interventions if children are suspended.
    Based on consideration of the costs and benefits to children
and schools, the IEP team should not be required to meet and
develop or review behavioral interventions for a child unless the
child was engaged in repeated or significant misconduct. The costs
and burden of convening the team the first time a child is
suspended outweigh any potential benefits to the child if the child
is receiving a short-term suspension for an infraction. At the same
time, the benefits of requiring a plan for a child who has already
been suspended for more than 10 days justify the costs given the
benefits of early intervention to both students and schools.
    The final regulations further provide that in the case of a
subsequent suspension of less than 10 days that does not constitute
a change in placement for a child who has a behavioral intervention
plan, a meeting would not be required to review the behavioral
intervention plan unless one or more team members believe that the
child's IEP or its implementation need modification. Since the
statute could be read to require that the IEP team meet to review
the child's plan each time the child is suspended, this language
further reduces the cost to school districts.
    Section 300.521--Due process hearing for removal--The final
regulations specify that a hearing officer is to make the
determination authorized by section 615(k)(2) of IDEA (regarding
whether a child's current educational placement is substantially
likely to result in injury to self or others) in a due process
hearing.
    A hearing that meets the requirement for a due process hearing
is the most appropriate forum for expeditiously and fairly
determining whether the district has demonstrated by substantial
evidence (defined by statute as ``beyond a preponderance of the
evidence'') that maintaining the current placement is substantially
likely to result in injury and to consider the appropriateness of
the child's current placement and the efforts of the district to
minimize the risk of harm.
    The cost impact of this regulation on school districts will be
limited because in cases in which school districts and parents
agree about the proposed removal of a dangerous child, no hearing
is necessary. In those few cases in which there is disagreement,
the benefits of conducting a due process hearing justify the costs. 
   Section 300.523--Manifestation determination--Paragraph (a)
makes it clear that a school is required to conduct a manifestation
review only when the removal constitutes a change in placement.   
 As was the case in considering section 300.520(c), the
Department considered the potential benefits to the child and
impact on districts of convening the IEP team.
    The conclusion was that the IEP team should not be required to
meet and determine whether the child's behavior was a manifestation
of the disability unless the district is proposing a suspension of
more than 10 days at a time or a suspension that constitutes a
pattern of exclusion. The cost of convening the team to conduct a
manifestation review outweigh the potential benefits to a child
being suspended for a few days, particularly because the statute
clearly allows the school a period of ten days after the misconduct
occurs to convene the team for purposes of conducting the
manifestation determination. In the case of short term suspensions,
the team would often be meeting after the child had already
returned to school.
    The primary purpose of this review is to ensure that a child
will not be punished for behavior that is related to his or her
disability. The team is required to consider, for example, whether
the child's disability has impaired his or her ability to
understand the impact and consequences of his or her behavior and
whether the child's disability has impaired the child's ability to
control the behavior subject to discipline. Conducting this review
is of little use after the child has returned to school. A review
would have limited applicability to future actions. Even in those
cases in which the child engaged in identical misconduct, one's
assessment of the relationship between the child's behavior and
disability could change. Moreover, the statute clearly contemplates
an individualized assessment of the conduct at issue. Once a child
has been suspended for more than 10 days in a given year, the team
will already be considering the need for changes in the child's
behavior
intervention plan, if the child has one, or will be meeting to
develop one, if the child does not. Requiring an additional meeting
to examine the relationship between the child's behavior and
disability is unlikely to produce additional information that would
inform the development of appropriate behavioral strategies.
Requiring the behavioral assessment to be conducted once a child
has been suspended for 10 days in a school day will help ensure
that the district responds appropriately to the child's behavior.
    This regulation would significantly reduce costs for school
districts if the statute is read to require a manifestation review
every time a child is suspended.
    Section 300.523(f)--Manifestation determination--The final
regulations clarify that if the team identifies deficiencies in the
child's IEP, its implementation, or placement, the agency must take
immediate steps to remedy the deficiencies. This clarification does
not impose any costs beyond what the statute would require.    
Section 300.526--Placement in alternative setting--Language is
added to paragraph (c) to make clear that a school district may
request a hearing officer to extend a 45-day placement on the
grounds that returning a child to his or her regular placement
would be dangerous. This change, which increases the options
available to school districts for dealing with a child engaged in
dangerous behavior, does not impose any costs on school districts.
    Section 300.527--Basis of knowledge--The final regulations make
a number of clarifying changes: Language is added to paragraph
(b)(2) to clarify that the behavior or performance must be in
relation to one of the disability categories. Paragraph (b)(4) has
been revised to require that expressions of concern about the child
be made to personnel who have responsibility for child find or
special education referrals. A new paragraph has been added to
clarify that if an agency acts and determines that the child is not
eligible, and provides proper notice to the parents, and there are
no additional bases of knowledge that were not considered, the
agency would not be held to have a basis of knowledge. These
changes reduce costs for LEAs by further specifying what is
required for determining that an LEA has a basis for knowledge that
a child is a child with a disability. By specifying, for example,
that
expressions of concern be made to personnel responsible for child
find or special education referral eliminates the possible
interpretation that a school must provide services and other
protections to children who were the subject of conversation
between any two people in the school. Without these clarifications,
commenters have suggested that potentially all children could avail
themselves of IDEA protections.
    Roughly three million nondisabled children are expected to be
the subject of disciplinary actions during this school year.
Parents are likely to raise this issue in the case of long-term
suspensions and expulsions in which identification as a child with
a disability ensures the non-cessation of educational services,
among other protections. An estimated 300,000 nondisabled children
receive long-term suspensions or expulsions in a given school year.
Based on the public comments on this section of the regulations, it
would appear that a basis for knowledge claim could be sustained in
a significant percentage of these cases. Assuming for purposes of
this analysis that it could be sustained in about 10 percent of
cases, the costs of providing services, for example, to those
children during the period in which they are excluded from school
would be considerable because only a minority of States currently
provide services to children without disabilities who have been
disciplined. Therefore, the savings resulting from these
clarifications are considerable.     Section 300.528--Expedited due
process hearings--The final regulations specify that States
establish a timeline for expedited due process hearings that meets
certain standards. These include: ensuring written decisions are
mailed to the parties in less than 45 days, with no extensions that
result in a decision more than 45 days from the request for the
hearing, and providing for the same timeline whether the hearing is
requested by a public agency or parent. Paragraph (b) further
clarifies that the State

[[Page 12667]]

may alter other State-imposed procedural rules from those it uses
for other hearings. These clarifications provide States with
maximum flexibility in conducting these hearings while ensuring
equitable treatment for parents and public agencies. Requiring such
hearings within 45 days imposes minimal burden on States since 45
days provides ample time--more time than proposed by many of the
commenters--and the requests for such hearings are not expected to
be great. Requests for expedited hearings will only be made in
those cases involving serious misconduct in which there is a
disagreement between the parents and public agency regarding action
proposed by the public agency.
    Section 300.529--Transmittal of education records--The final
regulations clarify that a child's special education and
disciplinary records may only be transmitted to the extent that
such transmission is permitted under the Family Educational Rights
and Privacy Act (FERPA). This clarification, which restricts the
extent to which such records may be transmitted to certain
agencies, consistent with the requirements of FERPA, does not
impose any burden on school districts.
    Section 300.532--Evaluation procedures--The final regulations
require that assessments of children with limited English
proficiency must be selected and administered to ensure that they
measure the extent to which a child has a disability and needs
special education, and do not instead measure the child's English
language skills. This change, which clarifies requirements under
both IDEA and Title VI, does not impose any additional burden. The
final regulations also add language requiring that if an assessment
is not conducted under standard conditions, information about the
extent to which the assessment varied from standard conditions,
such as the qualifications of the person administering the test or
the method of test administration, must be included in the
evaluation report. This change will impose a burden on school
districts only to the extent that the evaluation team does not
currently include information in its report on the extent to which
an assessment varied from standard conditions. Information about
the
qualifications of the person administering the test and the method
of test administration is needed so that the team of qualified
professionals can evaluate the effects of variances in such areas
on the validity and reliability of the reported information. The
final regulations clarify that in evaluating a child all needs of
the child must be identified, including any commonly linked to a
disability other than the child's. This change does not impose any
additional burden on districts, but clarifies what is intended by
the term ``comprehensive'.
    Section 300.533(b)--Review of existing data--The final
regulations make it clear that the group that is responsible for
reviewing existing data on the child as part of an initial
evaluation or a reevaluation need not meet to conduct this review.
This clarification reduces costs for school districts by
eliminating unnecessary meetings of this group.
    Section 300.534(b)--Eligibility determination--Paragraph (b)
clarifies that children are not eligible if they need specialized
instruction because of limited English proficiency or lack of
instruction in reading or math, but do not need specialized
instruction because of a disability. This clarification does not
impose any costs on school districts, but reflects the statutory
intent.
    Section 300.534(c)--Termination of eligibility--Paragraph (c)
clarifies that an evaluation is not required before the termination
of a student's eligibility under Part B due to graduation with a
regular high school diploma or aging out under State law. This
clarification reduces the costs for school districts by eliminating
the need to conduct evaluations for the 146,000 students who are
expected to exit high school in school year 1998-1999 by graduating
or aging out.
    Section 300.535(a)(1)--Eligibility determination procedures--
The final regulations add parents to the variety of sources from
which the public agency will draw in interpreting evaluation data
for the purpose of determining if the child is a child with a
disability. This change imposes minimal burden while providing for
meaningful parental involvement, consistent with the requirements
for including parents in the team that determines eligibility.
    Section 300.552(e)--Placement in regular classroom--The final
regulations provide that a child may not be denied placement in an
age-appropriate regular classroom solely because the child's
education requires modification to the general curriculum. This
change clarifies the requirement in the law that a child may only
be removed from the regular educational environment if education in
the regular class cannot be achieved satisfactorily with the use of
supplementary aids and services. Although this clarification may
result in an increase in the number of children served in regular
classes, it does not impose costs on school districts beyond what
the statute itself would require because of the longstanding
requirement to serve children in the least restrictive environment. 
   Section 300.562--Access to records--The final regulations make
clear that agencies must comply with requests for access to records
by parents prior to any meetings, but no more than 45 days after
request, consistent with FERPA. This provision minimizes burden on
LEAs by not imposing a shorter deadline than provided by FERPA,
except as necessary to provide access before an IEP meeting or
hearing. This provision helps ensure that parents have the ability
to adequately prepare for and participate in IEP meetings and due
process hearings, which are crucial to ensuring each child's right
to a free appropriate public education.
    Section 300.571--Consent for disclosure of information--The
final regulations provide for an exception to the requirement for
parental consent for disclosure of education records, consistent
with the language in Sec. 300.529. This does not impose any costs
on school districts and resolves an apparent contradiction in the
regulations with respect to disclosure of education records to law
enforcement and juvenile justice agencies.
    Section 300.574--Children's rights relating to records--The
final regulations clarify that the parents' rights under FERPA
transfer to the student at age 18. The regulations further provide
that if the rights of parents under Part B of IDEA are transferred
to the student at the age of majority, then the rights of parents
regarding education records also transfer. This clarification does
not impose any additional costs on school districts.
    Section 300.581-300.587--Procedures for enforcement--The final
regulations clarify the types of notice and hearing that the
Department would provide before taking an enforcement action under
Part B of IDEA. Providing clarity about the applicable procedures
for the various types of enforcement actions will benefit potential
subjects of enforcement actions and the Department by ensuring that
time and resources are not spent on unnecessary disputes about
procedures or needless process.
    Section 300.589--Waiver procedures--The final regulations
describe the procedures to be used by the Secretary in considering
a request from an SEA of a waiver of the supplement, not supplant
and maintenance of effort requirements in the IDEA Amendments of
1997. This regulation does not impose any cost on local school
districts. The procedures will only affect a State requesting a
waiver under Part B.
    Section 300.624--Capacity-building subgrants--The final
regulations make it clear that States can establish priorities in
awarding these subgrants. The language provides permissive
authority to be used at the discretion of each State, clarifying
the intent of the statutory change and imposing no burden on State
agencies. Allowing States to use these funds to foster State-
specific improvements should lead to improving educational results
for children with disabilities.
    Section 300.652--Advisory panel functions--The final
regulations add language stating that the panel's responsibilities
include advising on the education of students with disabilities who
have been incarcerated in adult prisons. This additional burden
will not impose significant costs.
    Section 300.653--Advisory panel procedures--The final
regulations include language in paragraph (d) to require panel
meetings to be announced long enough in advance to afford people a
reasonable opportunity to attend and require that agenda items be
announced in advance and that meetings be open. These changes
impose minimal burden while facilitating meaningful participation
in the meetings.
    Sections 300.660(a) and 303.510(a)--Information about State
complaint procedures--The final regulations require States to
widely disseminate their complaint procedures. While this proposed
requirement would increase costs for those State educational
agencies that have not established procedures for widely
disseminating this information, the Secretary could have prescribed
specific mechanisms for this dissemination but chooses not to, in
order to give SEAs flexibility in determining how to accomplish
this. The requirement would not have any direct impact on small
districts and would benefit parents who believe that a public
agency is violating a

[[Page 12668]]

requirement of these regulations, by providing them the information
they would need to get an official resolution of their issue
without having to resort to a more formal, and generally more
costly, dispute resolution mechanism.
    Section 300.660(b) and 303.510(b)--Remedies--The final
regulations require States in resolving complaints to address how
to remedy the failure to provide appropriate services, including
awarding of compensatory relief and corrective action. This
clarification does not impose any additional costs beyond those
that would be otherwise required by the statute.
    Section 300.661(c) and 303.512(c)--Requirements for complaint
procedures--The final regulations add language that clarifies how
the State complaint process interacts with the due process hearing
process. The language clarifies that a State may set aside any part
of a complaint being addressed in a due process hearing; that the
due process hearing decision is binding; and that failure to
implement a due process decision must be addressed by the SEA. This
clarification is expected to reduce costs by reducing unnecessary
disputes about the relationship between the two processes.
    Sections 300.661 and 303.512--Secretarial review--The final
regulations delete the provision providing for Secretarial review
of complaints filed under State complaint procedures. The effect of
this change on small (and large) districts would be inconsequential
because of the small number of requests for these reviews. This was
done in recognition of the report of the Department's Inspector
General of August 1997, that noted that this procedure provides
very limited benefits to children with disabilities or to IDEA
programs and involves a considerable expenditure of the resources
of the Office of Special Education Programs and other offices of
the Department. The Inspector General's report concluded that
greater benefit to the programs and individuals covered by IDEA
would be achieved if the Department eliminated the Secretarial
review process and focused on improving State procedures for
resolving complaints and implementing IDEA programs. This change,
and the changes in Secs. 300.660(b), 300.503(b)(8), 303.510(b), and
303.403(b)(4) that require greater public notice about the State
complaint procedures, would implement those recommendations.
    Sections 300.662 and 303.511--State reviews--This change
relieves States of the requirement to review complaints about
violations that occurred more than three years before the
complaint. This limitation on the age of the complaints is expected
to reduce the cost to SEAs of investigating and reviewing
complaints. There is no reason to believe this change would
adversely affect small districts. There is also no reason to expect
that this proposal would have a significant negative impact on
individuals or entities submitting complaints under these
procedures as it is unlikely that complaints alleging a violation
that occurred more than three years in the past and that do not
allege a continuing violation or request compensatory services
would result in an outcome that puts the protected individuals
under these regulations in a better position than they would have
been in if no complaint had been filed. On the other hand, allowing
States to focus their complaint resolution procedures on issues
that are relevant to the current operation of the State's special
education program may serve to improve services for these children.
    Section 300.712--Allocations to LEAs--The final regulations
clarify how to calculate the base payments to LEAs under the
permanent formula in a case in which LEAs have been created,
combined, or otherwise reconfigured. Although recalculation itself
imposes some burden on the SEA, the regulations provide the SEA
with considerable flexibility in doing that recalculation. For
example, the SEA determines which LEAs have been affected by the
creation, combination, or reconfiguration and what child count data
to use in allocating the funds among the affected LEAs.
    Language has also been added to the regulations that in
implementing the permanent formula States must apply, on a uniform
basis, the best data available to them. This clarification does not
impose any additional burden on States in allocating funds.    
Section 300.753--Annual child count--The final regulations clarify
that the SEA may count parentally-placed private school children if
a public agency is providing special education or related services
that meet State standards to these children. This clarification
does not impose any burden on SEAs or LEAs while helping to ensure
a more equitable distribution of IDEA funds.

   Attachment 3.--Disposition of NPRM Notes in Final Part 300 and
303                              Regulations \1\
     [Note: Attachment 3 will not be codified in the Code of
Federal                               Regulations]
-------------------------------------------------------------------
-----                                                II.
Disposition of notes      I. List of notes by section in NPRM     
    in final regulations ------------------------------------------
------------------------------                               
Subpart A
-------------------------------------------------------------------
-----300.1--Purposes:
    <bullet> Independent living..............  <bullet> In
discussion                                                 under
Sec.  300.1; and                                                 in
Appendix A (Re-                                               
transition services). 300.2--Applicability to State, local, and
 private agencies:
    <bullet> Requirements are binding on each  <bullet> Added to
Reg as      public agency regardless of whether it     Sec. 
300.2(a)(2).      receives B funds.

        Definitions Used in This Part

    1. List of terms defined in specific       1. Moved to Index
under      sections.                                 
``Definitions.''     2. Abbreviations used....................  2.
Terms identified in                                               
 Reg text.
300.6--Assistive technology service:
    <bullet> Definitions of assistive          <bullet> Deleted.  
   technology device and service are
     identical to Technology Act of 1988.
300.7--Child with a disability:
    1. Autism characteristics after age 3 is   1. Added to Reg as
Sec.      still Autism.                             
300.7(c)(1)(ii).     2. Developmental Delay--Explanation......  2.
Added to Reg at Sec.                                              
  300.7(b)(2).     3. Dev. Delay--H.Rpt statement on          3. In
discussion under      importance of.                            
Sec.  300.7(b).     4. Emotional disturbance (ED)--H.Rpt       4.
In discussion under      statement.                               
 Sec.  300.7(c).     5. ADD/ADHD--Eligible under OHI or other   5.
``ADD/ADHD'' and      disability category if meet criteria      
``limited alertness''      under Sec.  300.7(a).                  
   added to Sec.                                                
300.7(c)(9). 300.12--General curriculum:
    <bullet> Term relates to content and not   <bullet> Added to
Reg      setting.                                   (IEP--Sec. 
300.347(a)(1                                                 )(i),
(2)(i)). In                                                
discussion of ``Gen.                                              
  Cur.''
300.15--IEP Team:
    <bullet> IEP team may also serve as        <bullet> In
discussion      placement team.                            under
Sec.  300.16. 300.17--LEA:
    <bullet> Charter school that meets def of  <bullet> Added to
Reg as      ``LEA'' is eligible for B-$; & must        part of Sec. 
300.312.      comply w/B if it receives B-$.
300.18--Native language:
    <bullet> (1) Sections where term is used.  <bullet> (1) Listed
in                                                 Index.

[[Page 12669]]

      (2) Exceptions to definition...........    (2) Added to Reg
at                                                 Sec.  300.19.  
                                               In discussion under 
                                               Sec.  300.19.
300.19--Parent:
    <bullet> ``Parent'' includes a             <bullet> Added to
Reg at      grandparent or stepparent, etc.            Sec. 
300.20(a)(3). 300.22--Related services:
    1. All related services may not be         1. In discussion
under      required.                                  Sec.  300.24. 
   2. H. Rpt. on O/M services and travel      2. In discussion
under      training.                                  Sec.  300.24. 
                                              --Travel training
added                                                 as Sec.
                                                300.26(a)(2)(ii)
and                                                 (b)(4).
    3. Use of paraprofessionals if consistent  3. In discussion
under      w/.136.                                    Secs. 
300.24; 300.136.     4. Transportation--same as nondisabled;    4.
Added to Q-33 in      accommodations.                           
Appendix A. 300.24--Special education:
    <bullet> A child must need special         <bullet> Added to
Reg as      education to be eligible under Part B of   Sec. 
300.(7)(a)(2); In      the Act.                                  
discussion under Sec.                                             
   300.26.
300.27--Transition services:
    <bullet> May be special education or
     related services..
    List under Sec.  300.27(c) is not          <bullet> Added to
Reg as      exhaustive.                                Sec. 
300.29(b).                                                In
discussion under Sec.                                             
   300.29.
-------------------------------------------------------------------
-----                                Subpart B
-------------------------------------------------------------------
-----300.121--Free appropriate public education:
    1. FAPE obligation begins on 3rd birthday  1. Added to Reg as
Sec.                                                 300.121(c).  
  2. Re-child progressing from grade to      2. Added to Reg as
Secs.      grade.                                     300.121(e), 
                                               300.125(a)(2)(ii),
and                                                 Sec. 
300.300(d). 300.122--Exception to FAPE for certain ages:
    1. FAPE and graduation...................  1. ``Prior notice''
added                                                 to Reg as
Sec.                                                
300.122(a)(3)(iii).                                               
--A new Sec.                                                
300.534(c)(2) states                                              
  that evaluation is not                                          
      required for graduation                                     
           with a regular diploma.     2. H.Rpt. Re-students with
disabilities    2. Added as Sec.      in adult prisons.           
              300.122(a)(2)(ii). 300.125--Child find:
    1. Collection of data subject to           1. Added to Reg as
Sec.      confidentiality.                           300.125(e).  
  2. Services must be based on unique needs  2. Added to Reg as
Sec.                                                 300.300(a)(3). 
   3. Child find under Parts B and C........  3. Added to Reg as
Sec.                                                 300.125(c).  
  4. Extend child find to highly mobile      4. Added to Reg as
Sec.      children.                                 
300.125(a)(2)(i). 300.127--Confidentiality of * * *
 information:
    <bullet> Reference to FERPA..............  <bullet> Deleted.  
                                              (Already covered
under                                                
300.560-300.576.) 300.130--Least restrictive environment:
    <bullet> H. Rpt. statement Re-continuum..  <bullet> Added to
Reg at                                                 Sec. 
300.130(a). 300.135--Comprehensive system of personnel
 development:
    <bullet> H.Rpt--Disseminate information    <bullet> In
discussion      on Ed research * * * States able to use    under
Sec.  300.135.      info--(a)(2) Re--SIP.
300.136--Personnel standards:
    1. Regs require States to use own highest  1. Added to Reg as
Sec.      requirements. Defs not limited to          300.136(b)(2). 
    traditional categories.
    2. State may require * * * good faith      Added to Reg as Sec. 
    effort * * * shortages.                    300.136(g)(2).    
3. If State only 1 entry-level degree,     3. Added to Reg as Sec. 
    modification of standard to ensure FAPE    300.136(b)(4).     
won't violate (b)/(c).
300.138--Participation in assessments:
    <bullet> Only small no. children need      <bullet> In
discussion      alternate assmts.                          under
Sec.  300.138. 300.139--Reports relating to assessments:
    <bullet> Re aggregate data ((b)), PA may   <bullet> In
discussion      also Rpt data other ways (e.g.,..          under
Sec.  300.139.      trendline * * *).
300.142--Methods of ensuring services:
    1. H.Rpt--Import. of ensuring services Re  1. Added to Reg at
Sec.      E/non-ed agencies* * *Medicaid.           
300.142(b)(1)(ii).     2. Intent of (e) = services @ no cost-    
2. In discussion under      parents.                              
    Sec.  300.142.     3. Pub Agency can pay certain pvt insur   
3. Added to Reg at Sec.      costs for parents.                   
     300.142(g).     4. If PA receives $ from insurers to       4.
Added to Reg at Sec.      return the $.                           
  300.142(h)(2). 300.152--Prohibition against commingling:
    <bullet> Assurance is satisfied by sep     <bullet> Added to
Reg as      accounting system..                        Sec. 
300.152(b). 300.185--Meeting the excess cost requirement:
    <bullet> LEA must spend certain minimum    <bullet> In
discussion      amount * * * Excess costs = costs of       under
Sec.  300.185.      special ed that exceed minimum.
300.232--Exception to maintenance of effort:
    <bullet> H.Rpt--Voluntary departure Re--   <bullet> Added to
Reg as      personnel paid at/ near top--scale;        Sec. 
300.232(a)(2).      guidelines to invoke exception.
300.234--Schoolwide programs:
    <bullet> Although funds may be combined,   <bullet> Added to
Reg at      disabled children must still receive       Sec. 
300.234(c).      services re-IEP.
200.241--Treatment of charter schools:

[[Page 12670]]

    <bullet> B-Regs that apply to pub schools  <bullet> In
discussion      also apply to charter schools; H.Rpt--     under
Sec.  300.241.      Expect full compliance.
-------------------------------------------------------------------
-----                                Subpart C
-------------------------------------------------------------------
-----300.300--Provision of FAPE:
    1. FAPE Requirement applies to disabled    1. In discussion
under      children in school and those with less     Sec. 
300.300.      severe disabilities.
    2. State must ensure child find fully      2. Added to Reg at
Sec.      implemented.                               300.300(a)(2). 
   3. Why age range--child find is greater    3. In discussion
under      than FAPE.                                 Sec. 
300.300. 300.302--Residential placement:
    <bullet> Requirement applies to            <bullet> In
discussion      placements in St. schools.                 under
Sec.  300.302. 300.303--Proper functioning of hearing aids:
    <bullet> Statement from H. Rpt. on 1978    <bullet> In
discussion      appropriation bill related to status of    under
Sec.  300.303.      hearing aids.
300.304--Full educational opportunity goal:
    <bullet> S.Rpt (1975) on arts--Brooklyn    <bullet> In
discussion      Museum:.                                   under
Sec.  300.304. 300.305--Program options:
    <bullet> List not exhaustive.............  <bullet> In
discussion                                                 under
Sec.  300.305. 300.307--Physical education:
    <bullet> H.Rpt (142)--Must assure PE       <bullet> In
discussion      available to all HC.                       under
Sec.  300.307. 300.309--Extended school year services:
    1. LEA may not limit to particular         1. Added to Reg at
Sec.      categories or duration. All disabled       300.309(a)(3). 
    children not entitled.
    2. States may establish standards * * *    2. In discussion
under      Factors may consider = likelihood of       Sec. 
300.309.      regression.
300.341--SEA Responsibility (Re--IEPs):
    <bullet> Section applies-all public        <bullet> Added to
Reg as      agencies, including other State agencies.  Sec. 
300.341(b). 300.342--When IEPs must be in effect:
    1. It is expected that IEPs will be        1. In discussion
under      implemented immediately after the          Sec. 
300.342.      meeting (with exceptions).
    2. Requirements--incarcerated youth apply  2. Deleted.
     6-4-97.
    3. IEP vs IFSP--written informed consent.  3. In discussion
under                                                 Sec. 
300.342(c). 300.343--IEP meetings:
    <bullet> Offer of services within 60       <bullet> In
discussion      days--consent.                             under
Sec.  300.343. 300.344--IEP Team:
    <bullet> Reg Ed teacher at IEP meeting =   <bullet> In
discussion      one who works with the child; if more      under
Sec.  300.344      than one--designate.
300.345--Parent participation:
    <bullet> Parent notice Re--bring           <bullet> Added to
Reg as      others..procedure used = agency            Sec. 
300.345(b).      discretion * * * But keep record of
     efforts.
300.346--Development; review, & revision of
 IEP:
    1. Importance Re--Consideration of         1. In discussion
under      special factors.                           Sec. 
300.346.     2. Re--``Deaf Students Educational         2. In
discussion under      Services'' (1992).                        
Sec.  300.346.     3. IEP team and LEP students.............  3. In
discussion under                                                
Sec.  300.346. 300.347--Content of IEP:
    1. Import of transition services for       1. In discussion
under      students below 16.                         Sec. 
300.347.     2. H.Rpt Re--import of general curriculum  2. In
discussion under                                                
Sec.  300.347.     3. H.Rpt--Gen Curriculum--length of IEP    3. In
discussion under      vs adjustments.                           
Sec.  300.347.     4. H.Rpt--Teaching methods not in IEP....  4. In
discussion under                                                
Sec.  300.347.     5. Reports to parents on Annual Goals vs   5. In
discussion under      Reg. Reports.                             
Sec.  300.347.     6. H.Rpt--transition service needs vs      6. In
discussion under      services.                                 
Sec.  300.347.     7. OK for transition-needs/services below  7. In
discussion under      14 and 16.                                
Sec.  300.347. 300.350--IEP--accountability:
    <bullet> Public agency must make good      <bullet> Added to
Reg as      faith effort; parents have right to        Sec. 
300.350(b).      complain.
300.360--Use of LEA allocation for direct
 services:
    <bullet> If LEA doesn't apply for Pt. B    <bullet> Added to
Reg at      funds, SEA must use in LEA.                Sec. 
300.360(b). -------------------------------------------------------
-----------------                                Subpart D
-------------------------------------------------------------------
-----300.453--Expenditures:
    <bullet> LEAs may provide services beyond  <bullet> Added to
Reg at      those required.                            Sec. 
300.453(d). 300.456--Location of services:
    1. Zobrest--Re on-site services..........  1. In discussion
under                                                 Sec. 
300.456.     2. Transportation to from site * * * not   2. Added to
Reg at Sec.      from home.                                
300.456(b)(1). ----------------------------------------------------
--------------------                                Subpart E
-------------------------------------------------------------------
-----300.500--Gen. Resp. of public agencies;
 definitions:
    <bullet> Parent consent, if revoked is     <bullet> Added to
Reg at      not retroactive.                           Sec. 
300.500(b)(1)(iii)                                                
.
300.502--Independent educational evaluation:
    1. Parent not required to specify areas    1. Added to Reg at
Sec.      of disagreement.                           300.501(b).  
  2. Pub agencies--should make info on IEEs  2. Added to Reg at
Sec.      widely available; may not require parent-  300.502(a)(2). 
    evals meet all criteria.

[[Page 12671]]

300.505--Parental consent:
    1. Pub. agency may use due process to      1. In discussion
under      override refusal, unless doing so--        Sec. 
300.503.      inconsistent w/St law.
    2. PA must provide servs in any area not   2. In discussion
under      in dispute; if nec--FAPE--use override;    Sec. 
300.503.      may recons proposal.
    3. If parents refuse-reeval needed for     3. In discussion
under      servs, & St law prevnts override-reeval,   Sec. 
300.503.      PA may cease servs.
300.506 Mediation:
    1. H. Rep--If mediator not selected        1. Added to Reg at
Sec.      randomly Pub. agency and parents both     
300.506(b)(2)(ii).      must select.
    2. H. Rep--Preserve parental access Rts--  2. In discussion
under      FERPA; confidentiality pledge.             Sec. 
300.506. 300.507--Impartial due process hearing;
 parent notice; disclosure:
    1. Determination of whether hearing        1. In discussion
under      request is based on new info must be       Sec. 
300.507.      made by HO.
    2. H. Rep. Re--Attorneys' fees; and the    2. In discussion
under      value of the parent notice requirement.    Sec. 
300.507. 300.510--Finality of decision; appeal;
 impartial review:
    1. SEA may conduct review directly or      1. In discussion
under      thru another agency; but remains           Sec. 
300.510.      response for final decision.
    2. All parties have right to counsel; if   2. In discussion
under      Rev Officer holds a hearing, other         Sec. 
300.510.      rights in 300.509 apply.
300.513--Attorneys' fees:
    <bullet> A State may enact a law           <bullet> In
discussion      permitting HOs to award fees.              under
Sec.  300.513. 300.514--Child's status during proceedings:
    <bullet> Public agency may use normal      <bullet> In
discussion      procedures for dealing with children who   under
Sec.  300.514.      are endangering themselves or others.
300.520--Authority of School personnel:
    1. Removal for 10 days or less--not a chg  1. In discussion
under      in placmt; a series of removals that       Sec. 
300.520.      total +10 days may be.
    2. PA need not conduct review in (b), but  2. In discussion
under      encouraged Ck if--serves in accord w/      Sec. 
300.520.      IEP..or addressed.
300.523--Manifestation determination review:
    1. H.Rpt--Ex of manifestation vs not * *   1. In discussion
under      * But not intended-- base finding on       Sec. 
300.523.      tech violation-IEP.
    2. If manifestation--LEA must correct any  2. Added to Reg at
Sec.      deficiencies found.                        300.523(f).
300.524--Determination that behavior not a
 manifestation of disability:
    <bullet> During pendency--child remains    <bullet> In
discussion      in current placmt or placmt under          under
Sec.  300.524.      300.526, whichever applies.
300.526--Placement during appeals:
    <bullet> An LEA may seek subsequent        <bullet> Added to
Reg as      expedited hearings if child still          Sec. 
300.526(c)(4).      dangerous & issue not resolved.
300.532--Evaluation procedures:
    1. Re LEP--accurate assmt of child's lang  1. In discussion
under      proficency.                                Sec. 
300.532.     2. If no one at sch Re-LEP, contact LEAs,  2. In
discussion under      IHEs.                                     
Sec.  300.532.     3. If assmt not done under standard        3.
Added to Reg as Sec.      conditions, include in eval Rpt. Info   
  300.532(a)(2).      needed by team.
300.533--Determination of needed evaluation
 data:
    <bullet> Purpose of review by a group;     <bullet> In
discussion      composition of team will vary depending    under
Sec.  300.533.      on nature or disability.
300.535--Procedures for determining
 eligibility and placement:
    <bullet> All eval sources not required     <bullet> In
discussion      for each child.                            under
Sec.  300.535. 300.551--Continuum of alternative placements:
    <bullet> Home instruction usually only     <bullet> In
discussion      for limited No. children (medically        under
Sec.  300.551.      fragile).
300.552--Placements:
    1. Group in (a)(1) could also be IEP       1. In discussion
under      team--if .344.                             Sec. 
300.552.     2. Main rule in LRE = indiv decisions +    2. Added to
Reg at Sec.      alternate placmts; applicability to       
300.552.
     preschool children.
    3. If IEP team considers-provides for      3. In discussion
under      behavioral interventions * * * many        Sec. 
300.552.      disruptive children-Reg cl.
300.553--Nonacademic settings:
    <bullet> Section taken from 504 Regs.....  <bullet> In
discussion                                                 under
Sec.  300.553. 300.554--Children in public or private
 institutions:
    <bullet> LRE provisions apply to Children  <bullet> In
discussion      in public and private institutions.        under
Sec.  300.554. 300.573--Destruction of information:
    <bullet> Info may be kept forever unless   <bullet> In
discussion      parents reject; (Why records are           under
Sec.  300.573.      important * * *).
300.574--Children's rights:
    1. Under FERPA Regs, Rts transfer at age   1. Added to Reg at
Sec.      18.                                        300.574(b).  
  2. If Rts transfer re-.517, Rts re Ed-     2. Added to Reg at
Sec.      records also transfer; but public agency   300.574(c).  
   must give 615 notice to parents and
     student.
300.587--Enforcement:
    <bullet> Other enforcement actions         <bullet> In
discussion      include cease and desist order * * * and   under
Sec.  300.587.      a compliance agreement.
-------------------------------------------------------------------
-----
[[Page 12672]]

                                Subpart F
-------------------------------------------------------------------
-----300.600--Responsibility for all educational
 programs:
    <bullet> Provision = Congressional         <bullet> In
discussion      desire--central point of contact. S.Rpt    under
Sec.  300.600.      (1975) * * * Options.
300.623--Amount required for subgrants to
 LEAs':
    <bullet> Amt. required for subgrants will  <bullet> In
discussion      vary--yr-to-yr. $ for subgrants 1 yr       under
Sec.  300.623.      become flow-thru in next.
300.624--State discretion in awarding
 subgrants:
    <bullet> Purpose of subgrants to LEAs--to  <bullet> In
discussion      provide $ SEA can direct Re needs--can't   under
Sec.  300.624.      address Re-formula-$.
300.650--Establishment of Advisory panels:
    <bullet> Panel must advise on students in  <bullet> Added to
Reg at      Adult prisons.                             Sec. 
300.652(b). 300.660--Adoption of State complaint
 procedures:
    <bullet> SEA may award compensory damages  <bullet> Added to
Reg at      Re-denial of FAPE.                         Sec. 
300.660(b). 300.661--Minimum State complaint procedures:
    1. If complaint also subject of a          1. Added to Reg at
Sec.      hearing, must set aside any part           300.661(c)(1). 
    addressed-hearing; but resolve the rest.
    2. If issue in complaint already decided   2. Added to Reg at
Sec.      in a hearing (same parties), H-decision    300.661(c)(2). 
    = binding.
300.662--Filing a complaint:
    <bullet> SEA must resolve complaint, even  <bullet> Added to
Reg at      if it is filed by indiv-organization in    Sec. 
300.662(a).      another State.
-------------------------------------------------------------------
-----                                Subpart G
-------------------------------------------------------------------
-----300.712--Allocations to LEAs:
    <bullet> Re-85%--use best data available;  <bullet> Added to
Reg at      new data not needed-pvt schs. Re-15%--     Sec. 
300.712.      use best (Examples).
300.750--Annual report of children served-
 report requirement:
    <bullet> Report--solely for allocation     <bullet> In
discussion      purposes; count may differ from children   under
Sec.  300.750.      who receive FAPE.
300.753--Annual report of children served-
 criteria for counting children:
    1. State may count children in Head Start  1. Covered by reg.
note      if Sp Ed.                                  deleted.
    2. Criteria related to counting children   2. Covered by reg.
note      in private schools and certain Indian      deleted.
     children.
300.754--Annual report of children served-
 other responsibilities of SEA:
    <bullet> Data are not to go to Secretary   <bullet> In
discussion      in personally identifiable form.           under
Sec.  300.754. ----------------------------------------------------
--------------------                                Part 303
-------------------------------------------------------------------
-----303.19--Parent:
    <bullet> Definition: examples of           <bullet> Added to
Reg in      grandparent, stepparent.                   Sec. 
303.19(a)(3). 303.510--Adopting Complaint Procedures:
    1. Complaints can be against any public    1. Public/private
added      agency or private provider; these          to Reg in
Sec.      procedures are in addition to other        303.510(a)(1);
``other      rights.                                    rights'' in
discussion                                                 under
Sec.  303.512.     2. Compensatory services possible........  2.
Added to Reg in Sec.                                              
  303.510(b). 303.511--An organization or individual may
 file a complaint:
    <bullet> Complaints from out-of-state OK.  <bullet> Added to
Reg in                                                 Sec. 
303.510(a)(1). 303.512--Minimum State complaint procedures:
    1. Same issues in complaint and due        1. Added to Reg in
Sec.      process hearing.                           303.512(c)(1). 
   2. Issues previously decided in due        2. Added to Reg in
Sec.      process hearing.                           303.512(c)(2).
303.520--Policies related to payment for
 services:
    1. Use of private insurance must be        1. Deleted.
     voluntary.
    2. State can use Part C funds to pay       2. Deleted.
     insurance costs.
    3. Insurance reimbursements not treated    3. ``Program
income''      as program income; spending Federal        added to
discussion      reimbursements doesn't violate             under
Sec.  303.512;      nonsupplanting rule.                      
``nonsupplanting'' added                                          
      to Reg in Sec.                                              
  303.512(d)(2). --------------------------------------------------
----------------------\1\ All notes have been removed as notes from
the regulations. The   substance of certain notes has been added to
the text of the   regulation, or included in the Notice of
Interpretation on IEPs in   ``Appendix A.'' A description of each
of these notes (and most of the   other notes in the NPRM) is
included in the ``discussion'' under the   Analysis of Comments
(Attachment 1 to the final regulations). Column   II, above,
describes the primary action taken with each note (e.g.,   (1)
``Added to Reg * * *'' (or to Appendix A); (2) ``In discussion  
under * * *;'' or ``Deleted.'')

[FR Doc. 99-5754 Filed 3-11-99; 8:45 am]
BILLING CODE 4000-01-P
