[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
remo