[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12605-12654]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr99-16]

[[pp. 12605-12654]] Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities

[[Continued from page 12604]]

[[Page 12605]]

transportation is required. Section Sec. 300.454(b)(1)(iii) has been
revised to specify that where services are provided is a subject of
consultation between the LEAs and representatives of private school
children. The notes following this section in the NPRM have been
removed.

Complaints (Sec. 300.457)

    Comment: Several commenters objected to Sec. 300.457(a) because
they believed that a child in a private school should be able to
receive a due process hearing on complaints about services once the LEA
has decided to provide services to that child. Most of those commenters
indicated that there may be legitimate issues regarding whether the LEA
complied with obligations to a specific child it had agreed to serve.
    One commenter agreed with the position in the NPRM that if FAPE
does not apply to private school children, due process also would not
apply. Another commenter suggested that due process also should not
apply to the child find obligations described in Sec. 300.451.
    Discussion: Section 615(a) of the Act specifies that the procedural
safeguards of the Act apply with respect to the provision of FAPE to
children with disabilities. The special education and related services
provided to parentally-placed private school children with disabilities
are independent of the obligation to make FAPE available to these
children.
    While there may be legitimate issues regarding the provision of
services to a particular parentally-placed private school child with
disabilities an LEA has agreed to serve, due process should not apply,
as there is no individual right to these services under the IDEA.
Disputes that arise about these services are properly subject to the
State complaint procedures, which are available to address
noncompliance with any requirement of Part B.
    On the other hand, child find is a part of the basic obligation to
make a FAPE available to all children with disabilities in the
jurisdiction of the public agency, and so failure to properly evaluate
a parentally-placed private school child would be subject to due
process.
    Changes: A new paragraph (b) has been added to specify that due
process procedures do apply to child find activities, including
evaluations.

Requirement That Funds not Benefit a Private School (Sec. 300.459)

    Comment: One commenter asked how an LEA is to discern whether funds
are being used to benefit the private school. Another questioned
whether this provision is consistent with other provisions that allow
funds to be used by an LEA to provide staff development for special and
regular education personnel, consultative services and provisions that
permit other children to also benefit when a teacher or other provider
is providing special education or related services to a child with a
disability.
    Discussion: LEAs should use reasonable measures in assessing
whether Federal funds are being used to benefit private schools. This
provision does not prohibit private school teachers from participating
in staff development activities regarding the provisions of IDEA when
their participation can be accommodated.
    If consultation services are provided to a private school teacher
as a means of providing special education and related services to a
particular private school child with a disability and that teacher uses
the acquired skills in providing education to other children, whatever
benefit those other children receive is incidental to the publicly
funded services and is not prohibited by this provision.
    On the other hand, if an LEA simply gave a private school an amount
of money rather than itself providing or purchasing services for
parentally-placed private school children with disabilities, in
addition to violating the requirements of Secs. 300.453 and 300.454,
would raise very significant concerns about compliance with
Sec. 300.459(a).
    In the interest of regulating only where necessary, the regulations
do not further specify measures of when a private school is benefiting
from the Federal funds.
    Changes: None.

Use of Private School Personnel (Sec. 300.461)

    Comment: One commenter noted that private school personnel used to
provide services to private school children under Part B should be
required to meet the same standards as public school employees
providing those services to public or private school children.
    Discussion: Section 300.455 specifies that services provided to
private school children must be provided by personnel meeting the same
standards as those providing services in public schools. This would
apply to private school personnel who, under Sec. 300.461, are being
used to provide services under Secs. 300.450-300.462 to private school
children with disabilities.
    Changes: A technical change has been made to Sec. 300.461 to make
clear that the services addressed are those provided in accordance with
Secs. 300.450-300.462.

Requirements Concerning Property, Equipment and Supplies for the
Benefit of Private School Children With Disabilities (Sec. 300.462)

    Comment: One commenter asked whether costs for inventory control
can be considered as a part of the proportionate share of the LEA's
Part B funds that are to be expended for providing services to private
school children. The commenter also asked for specificity regarding the
procedures to be used for maintaining administrative control of all
property, equipment and supplies acquired for the benefit of private
school children.
    Discussion: Reasonable and necessary costs for inventory control of
property, equipment and supplies located in a private school related to
providing special education and related services to private school
children with disabilities can be considered a part of the cost of
providing special education and related services to private school
children with disabilities. Effective procedures for ensuring
administrative control will vary depending on local considerations.
    Changes: None.

Subpart E Procedural Safeguards

General Responsibility of Public Agencies; Definitions (Sec. 300.500)

    Comment: One commenter asked whether the definition of
``evaluation'' at Sec. 300.500(b)(2) precludes the use of tests which
are based on the general curriculum and which may be used with all
children in a school or class as the primary means of evaluation.
Another commenter asked if any evaluation after an initial evaluation
is considered a reevaluation. It was also suggested that the revocation
of consent only be allowed before the first day of the child's
placement. There was also a request that the note (which concerns the
non-retroactivity of a revocation by a parent of their consent) be
included in the text of the regulation.
    Some commenters also wanted a definition of ``educational
placement'' included in Sec. 300.500(b), consistent with prior policy
issuances regarding the definition.
    Discussion: The statutory changes to the evaluation procedures that
are reflected in Secs. 300.530-300.536 make clear that an
``evaluation'' will include review of existing data, which may include
results on tests or other procedures that are based on the general
curriculum and may be used with all children in a grade, school, or
class. The definition of ``evaluation'' in the NPRM

[[Page 12606]]

at proposed Sec. 300.500(b)(2) had not been updated to recognize this
change in the statute. Therefore, a change has been made to eliminate
the last sentence in the proposed definition of ``evaluation'' so that
it does not imply that an evaluation may not include a review of a
child's performance on a test or procedure used with all children in a
grade, school or class. This change does not mean that a public agency
must obtain parental consent before administering a test used with all
children unless otherwise required. (See Sec. 300.505(a)(3)). Section
300.532 sets forth the procedures required to individually evaluate a
child. Section 300.533 addresses the use of existing evaluation data
which can include information available on the results of tests and
procedures used for all children in a school, grade or class.
    To distinguish an initial evaluation from a reevaluation, an
initial evaluation of a child is the first completed assessment of a
child to determine if he or she has a disability under IDEA, and the
nature and extent of special education and related services required.
Once a child has been fully evaluated the first time in a State, a
decision has been rendered that a child is eligible under IDEA, and the
required services have been determined, any subsequent evaluation of a
child would constitute a reevaluation.
    Regarding revocation of parental consent, parents cannot be forced
to consent to decisions related to their child's education. However, it
would be impractical to allow a parent to retroactively apply a
revocation of consent where parental consent is required. Thus, once a
parent consents to an educational decision concerning their child, be
it an evaluation or provision of service(s), any revocation of their
consent once the action to which they initially consented has been
carried out will not affect the validity of the action. Since the non-
retroactivity of a parent's revocation of consent is based on the
Department's interpretation of the statute, and is important to make
clear to all parties, it should be set forth in the regulation itself.
    The educational placement of a child focuses on the implementation
of a child's IEP and cannot be defined generally given that each child
has different educational needs. Section 300.552 addresses the meaning
of educational placement by describing the factors involved in making a
placement decision and explains the concept in the context of the least
restrictive environment. There is no additional benefit to defining
further the term educational placement at Sec. 300.500.
    Changes: The note following this section has been deleted and
Sec. 300.500(b)(1)(iii) has been amended by adding language to clarify
that a revocation of consent does not have retroactive effect if the
action consented to has already occurred. Section Sec. 300.500(b)(2)
has been amended by removing the last sentence of that paragraph.

Opportunity to Examine Records; Parent Participation in Meetings
(Sec. 300.501)

    Comment: Some commenters asked that the term ``all'' with respect
to meetings in Sec. 300.501(a)(2) be deleted as that term is not used
in the statute, as well as delete the term ``all'' with respect to the
term ``education records'' and replace it with ``special.'' Another
suggestion was to require in Sec. 300.501(a)(1) that copies of tests
given to a child and manuals to interpret such tests be made available
for the parents to review. One commenter asked whether therapy notes
are considered educational records and another asked that the public
agency be required to specify time periods within which the inspection
and review right must be carried out.
    Several commenters expressed concern that the definition of
``meetings'' was too narrow; the commenters recommended the definition
be drafted to insure that it means any event where decisions are made
regarding a child's identification, evaluation or placement. Others
asked that the definition be removed entirely. It was also requested
that the potential for any confusion regarding informal meetings held
by school personnel be eliminated. Several commenters recommended
deleting the reference at Sec. 300.501(a)(2)(ii) to the provision of
FAPE, claiming this would overly broaden the meetings at which parents
should be given the chance to attend, precluding the ability for
internal meetings without the parents. A commenter also asked that
Sec. 300.501(a)(2) include the opportunity to attend eligibility
meetings.
    Commenters also asked that Sec. 300.501(b)(2) be amended to include
in the definition of ``meetings'' those that occur via conference call
or video conferencing, not just face-to-face meetings. Several comments
advised that the language as proposed at Sec. 300.501(b)(2) might
result in parents being excluded from curriculum planning meetings for
individual children under the guise of ``teaching methodology, lesson
plans or coordination of service provision'' meetings. There were
several recommendations that there be a specific timeline for giving
parents notice of meetings, such as at least 10 business days before a
meeting.
    Regarding placements, many commenters stated that parents should be
informed by public agencies of the various alternative placements
available, not just the one ultimately chosen, and the reasons for
rejecting the other potential placements. Further, it was suggested
that the language in Sec. 300.501(c)(1) be placed in the IEE section of
the regulations.
    Several commenters also stated that video-conferencing (referenced
in Sec. 300.501(c)(3)) would be costly and prohibitive for many
schools. Some thought the language in Sec. 300.501(c)(5), ``whatever
action is necessary'', was too broad and should be a reasonable or
feasible standard. There were also concerns that Sec. 300.501(c)(5)
should not require schools to ensure participation and comprehension by
the parents, but that they should make reasonable attempts to ensure
parents participate and understand.
    Discussion: The statute specifically states that parents have the
right to participate in meetings regarding identification, evaluation,
placement or FAPE. Paragraph (b)(2) describes the types of discussions
that do not fall within this requirement. The term ``all'' should be
deleted to be consistent with the statutory language.
    The term ``all education records'' is from the statutory reference
to ``all records relating to such child'' at section 615(b)(1) of the
Act. The Department has always interpreted the term to mean all of the
child's education records to be consistent with the purpose of IDEA and
the applicable confidentiality provisions of the General Education
Provisions Act at 20 U.S.C. 1232g, also known as the Family Educational
Rights and Privacy Act of 1974 (FERPA) as directed by section 617(c) of
the Act.
    Education records are defined at Sec. 300.560 by reference to the
definition of education records in 34 CFR part 99 (the regulations
implementing FERPA). The term means those records that are directly
related to a student and are maintained by an educational agency or
institution or by a party acting for the agency or institution. Given
the definition, it follows that tests taken by a child are included in
the education records available for review by a parent. The discussion
following Sec. 300.562 in the attachment further discusses what is
considered an education record of a child and the timelines for
parental inspection and review of education records.
    Regarding the definition of ``meetings,'' the proposed definition
was

[[Page 12607]]

intended to make clear that parents have the right to be notified of
and attend meetings which, generally, are scheduled in advance, and in
which public agency personnel are to come together at the same time,
whether face-to-face or via conference calls or video-conferencing, to
discuss, and potentially resolve, any of the issues described in
paragraph (b)(2).
    Informal discussions among teachers and administrators, which may
or may not be pre-arranged, are not meetings for which parents must
receive notice and the opportunity to attend. Whether or not a meeting
is prearranged is not the deciding factor in determining whether
parents would have the right to attend; rather, the fact that the
meeting is to discuss and potentially resolve one or more of the issues
identified in paragraph (b)(2) triggers the parents' right to be
involved.
    In practical terms, this means that meetings to which the child's
parents must be afforded the opportunity to attend cannot be convened
without providing parents with reasonable notice. However, in the
interest of regulating only where necessary, the first sentence of
paragraph (b)(2) would be removed and no specific timeline regarding
parental notice of meetings would be added.
    The right of parents to participate in meetings where the provision
of FAPE to their child is being discussed is statutory. The point of
the provision is to ensure parents have the opportunity to participate
in discussions where substantive decisions regarding their child's
education are made--a key principle of the IDEA Amendments of 1997.
Eligibility determinations are the focus of the identification process
and are already part of Sec. 300.501(a)(2). A parent's role in the
eligibility determination also is addressed under Sec. 300.534 of these
regulations.
    With respect to placement, if parents are to be meaningfully
involved in the placement decision for their child it is necessary that
they understand the various placement options. It is implicit in the
requirement that parents be ensured the opportunity to be members of
any group making the placement decision, that whatever placement
options are available to a child will be fully discussed and analyzed
at placement meetings, allowing input from all the participants.
    Relocating the language at Sec. 300.501(c)(1) in the IEE section of
the regulations does not make sense since the purpose of
Sec. 300.501(c) is placement and that of IEE's is evaluation.
    Whether or not video-conferencing, as well as other methods for
enabling full participation in meetings by those with a right to
attend, are used is dependent on the particular circumstances, and no
one method is mandated. If one effective option would be more costly in
a particular situation than another, there is no mandate that the more
costly alternative be chosen.
    Section 300.501(c)(4) explains that placement decisions may be made
by public agencies without the parents if the agency is unable to
obtain the parents' participation in the decision and documents its
attempts to ensure their involvement. Once a parent makes clear that he
or she will be involved in the placement decision-making process,
Sec. 300.501(c)(5) requires that the agency ensure that the parent is
actually able to participate in, which includes understanding, the
process. However, it is possible that even if an agency makes
reasonable efforts, consistent with Sec. 300.501(c)(5), to ensure a
parent's participation, the parent is still not able to meaningfully
participate. Thus, it appears useful to clarify the regulation.
    Changes: Section 300.501(a)(2) has been amended to delete the word
``all'; Sec. 300.501(b)(2) (definitions of ``meetings'') has been
amended by replacing ``a prearranged event in which'' with ``when;''
and deleting ``and place;'' and Sec. 300.501(c)(5) has been revised to
refer to reasonable efforts to ensure parent participation.

Independent Educational Evaluation (Sec. 300.502)

    Comment: Some commenters thought that allowing the public agency to
initiate a hearing regarding parental requests for independent
educational evaluations (IEE), without allowing parents the right to
likewise initiate a hearing, would cause excessive litigation. Further,
it was suggested that States be required to develop clear criteria for
acceptance of IEEs as the primary means of determining eligibility.
    One commenter asked that a formula be established for reimbursing
parents who assume the responsibility of establishing eligibility for
their children. Several commenters urged that an IEE must be consistent
with the requirements of a full and individual evaluation under
Secs. 300.530-300.536. It was also suggested that although the criteria
under which an IEE is obtained at public expense should be the same as
the criteria used by the public agency when it initiates an evaluation,
reasonable travel should be allowed when community professional
resources are limited.
    A few comments requested limiting the cost of an IEE to a
reasonable and customary charge, as well as restricting the type of
evaluation conducted, such as evaluating only educational, not medical,
needs.
    Comments were received recommending that before a parent may
request an IEE, there must have been an LEA evaluation, the results
with which the parents disagree. The commenters stated that parents who
refuse to consent to a public evaluation and then demand an IEE at
public expense should not receive an IEE, unless they can demonstrate a
legitimate reason for refusing to consent to the undertaking of a
public evaluation.
    Commenters both supported and opposed Notes 1 and 2, some wishing
their deletion and some wanting them included as part of the
regulations. Many commenters suggested that parents should explain why
they disagreed with the public evaluation, or that the public agency
should be able to request such information and have time to alleviate
the parents' concerns, and that the parent should request a hearing if
he or she wants one so the burden to demonstrate that the evaluation
was appropriate would not fall solely on the public agency.
    There were several requests for a definition of unnecessary delay
in Sec. 300.502(b), some proposing 10 calendar or school days from the
receipt of a request for an IEE.
    Discussion: The purpose of requiring the public agency to either
initiate a due process hearing if it wishes to challenge a parent's
request for an IEE, or otherwise provide an IEE at public expense, is
to require public agencies to respond to IEE requests and to ensure
parents are able to obtain an IEE as set forth in section 615(b)(1) of
the Act. There is no corresponding need to specify that a parent also
has the right to initiate a due process hearing since if a public
agency does not do so it must provide the IEE at public expense.
    IEEs would be only one element in the eligibility determination
since the evaluation team reviews the existing evaluation data and then
determines what additional data are needed to determine whether the
child has or continues to have a covered disability, the child's
present levels of performance and whether the child needs or continues
to need special education and related services (see Sec. 300.533(a) and
(b)). Methods in addition to IEEs are to be used to determine whether a
child is eligible under IDEA. Therefore, the results of IEEs cannot be
the sole determining factor for eligibility.
    Under IDEA, it is the public agency's responsibility to establish
eligibility. If parents are willing to assume the

[[Page 12608]]

responsibility, on behalf of the public agency, for having the
assessment of their child under IDEA done, they should be reimbursed
for the assessment methods agreed upon by the public agency and
parents. The agreement between the parents and public agency would
depend on their special circumstances so regulating on this issue would
not be helpful. However, this procedure would not be an IEE.
    Since Sec. 300.502(e)(1) states that IEEs at public expense are to
be conducted pursuant to the same criteria that apply to evaluations
conducted by public agencies, it follows that the requirements at
Secs. 300.530-300.536 would apply to the IEEs. Note also that for an
IEE obtained by a parent either at public or private expense to be
considered by the public agency, such IEE must meet agency criteria.
Therefore, the parents must be able to have access to the relevant
agency criteria. To that end, Note 2 should be deleted and, in modified
form, included in the text of the regulation at Secs. 300.502(a)(2),
300.502(c)(1), and 300.502(e)(1).
    There is nothing in the regulations with respect to IEEs, or
evaluations in general, that would prevent reasonable travel for
necessary services not available in the community.
    Since public agencies must provide parents with information about
where IEEs may be obtained, provided the options are consistent with
Secs. 300.530-300.536, public agencies have some discretion in the cost
if it is at public expense. Further, evaluations of children under IDEA
are to cover all areas of suspected disability, which may include
medical examinations for purposes of determining the child's
disability. There may be situations in which a child's educational
needs are intertwined with a child's health needs, therefore, stating
that the types of evaluations conducted are only those regarding
educational need does not add any useful clarity.
    The right of a parent to obtain an IEE is triggered if the parent
disagrees with a public initiated evaluation. Therefore, if a parent
refuses to consent to a proposed public evaluation in the first place,
then an IEE at public expense would not be available since there would
be no public evaluation with which the parent can disagree. If the
parent believes the proposed public evaluation is inappropriate, he or
she may pursue an appropriate publicly-funded evaluation via the
mediation or due process procedures under Secs. 300.506-300.509.
    With respect to Note 1, while it would be helpful for parents to
explain their disagreement over a public evaluation, there is nothing
in the statute which prevents parents from obtaining an IEE if they did
not express their concerns first. Therefore, Note 1 would be deleted
and the regulation changed to state that the public agency may request
an explanation from the parents regarding their concerns when the
parent files a request for an IEE at public expense. However, such an
explanation may not be required of the parents and the provision of an
IEE, or initiation of a due process hearing to defend the public
evaluation, may not be delayed unreasonably regardless of whether or
not the parent explains his or her concerns to the public agency.
    Since the necessity or reasonableness of a delay is case specific,
no definition of these terms has been added.
    Changes: Note 2 has been deleted and Sec. 300.502(a)(2) and (e)(1)
have been amended to provide that on request for an IEE, parents are
provided with information about where an IEE may be obtained and the
agency criteria applicable to IEEs and that those criteria are
consistent with the parent's right to an IEE.
    Note 1 has been deleted and Sec. 300.502(b) has been revised to
explain that an explanation of parent disagreement with an agency
evaluation may not be required and the public agency may not delay
either providing the IEE at public expense or, alternatively,
initiating a due process hearing.

Prior Notice by the Public Agency; Content of Notice (Sec. 300.503)

    Comment: One commenter stated that Sec. 300.503(b)(8) should be
removed, believing it to exceed the statute and because an explanation
of State complaint procedures is given in the procedural safeguards
notice. The commenter also believed it is inconsistent to inform
parents about the State complaint process without the other two
(mediation and due process appeals) being explained.
    Several commenters asked for specific types of organizations to be
listed in Sec. 300.503(b)(7), such as parent training institutes.
Another commenter wanted the title of Sec. 300.503 to be changed to
``Prior Notice by the Public Agency Before Implementing an IEP.''
    Several commenters asked that a note be added to explain when the
notice needs to be sent.
    Requests were received to delete Sec. 300.503(b)(6) and to insert
the phrase ``unless it is clearly not feasible to do so'' as stated in
Sec. 300.503(c)(ii) whenever language or mode of communication is
addressed. It was also suggested that a note be added that an LEA must
document its attempts at accessing resources to assist in translating
or interpreting information.
    Discussion: Section 300.503(b)(8) was proposed to enhance the
awareness of parents of low cost and less adversarial mechanisms for
resolving disputes with school districts. Therefore, it makes sense to
require State complaint procedures to be explained along with due
process and mediation rather than in this notice. Since
Sec. 300.503(b)(6) requires that parents be advised of the existence of
procedural safeguards and, if the written notice is not part of an
initial referral for an evaluation, be told how a copy of the
procedural safeguards notice can be obtained, it would be useful and
appropriate to add a specific requirement for an explanation of the
State complaint process in Sec. 300.504(b).
    Procedural safeguard notices must be given to the parents, at a
minimum, upon the four events set forth at Sec. 300.504(a); between
those events and the statement mandated at Sec. 300.503(b)(6), agencies
should have ample instances in which they must provide parents with
effective notice of the various processes for challenging proposed
action. Therefore, Sec. 300.503(b)(8) should be deleted and moved to
Sec. 300.504(b).
    The types of organizations which exist to help parents understand
IDEA are varied and depend on the particular State. Therefore, a list
of such organizations in the regulations would not be feasible.
    The regulation is already clear on when the prior written notice
must be given: a reasonable time before the public agency proposes or
refuses to initiate or change the child's identification, evaluation,
educational placement or provision of FAPE. If parental consent is
required for the proposed action, the notice may be given when parental
consent is requested. Further, the notice is required at times other
than only before implementing a child's IEP so the title should not be
changed.
    Section 300.503(b)(6) is taken directly from the statute. In
addition, it is difficult to understand when it would not be feasible
to add the statement required by Sec. 300.503(b)(6).
    It is not necessary to add a note requiring an agency to document
its efforts to translate or interpret the notice pursuant to
Sec. 300.503(c)(2)(i) and (ii) since Sec. 300.503(c)(2)(iii) requires
that the agency can show that Sec. 300.503(c)(2)(i) and (ii) have been
met.
    Changes: Section 300.503(b)(8) has been deleted and moved to
Sec. 300.504(b).

[[Page 12609]]

Procedural Safeguards Notice (Sec. 300.504)

    Comment: Several commenters were opposed to specifying the times
procedural safeguards notice are to be given to the parents, claiming
such requirements are expensive and burdensome. One commenter asked
that the terms ``opportunity to present complaints'' and ``due process
hearings'' be clarified since the two terms seem to mean the same thing
for purposes of the procedural safeguards notice. Other commenters
objected to Secs. 300.504(a)(2), 300.504(b)(7), and 300.507(c)(2)(iii).
    There were several suggested additions to the timing and contents
of the procedural safeguards notice. Commenters suggested that the
procedural safeguards notice: (1) Also be required when there is a
decision to remove a child from his or her current educational
placement for disciplinary actions resulting from behaviors described
in Sec. 300.520 or Sec. 300.521, or for a period of more than 10 school
days for other violations; (2) contain information with respect to the
transfer of rights at the age of majority and the circumstances under
which tuition reimbursement may be denied; (3) contain information on
the use of private and public insurance to pay for Part B services; (4)
contain information as to where parents can receive help in
understanding procedural safeguards; (5) state that a public agency may
not deny a parent's right to a due process hearing if the parent fails
to participate in a meeting to encourage mediation; and (6) include a
complete listing of all times when the safeguards notice is to be
provided.
    Discussion: The minimum times the procedural safeguards notice must
be given to parents is set forth in the statute at section 615(d)(1).
The fourth requirement, that the notice be given upon receipt of
request for a due process hearing, comes from the requirement at
section 615(d)(1)(C) that the notice be given upon registration of a
complaint under section 615(b)(6).
    The longstanding interpretation of the statutory mandate at section
615(b)(6) that parents have the opportunity to present complaints
relating to their child's identification, evaluation, educational
placement and provision of FAPE, is that they have an opportunity to
request a due process hearing. Therefore, Sec. 300.504(b)(5) should be
modified to make clear that the opportunity to be explained is that of
presenting complaints to initiate due process hearings pursuant to
Sec. 300.507. Section 300.504(b)(10) as stated is then clearer in that
it refers to an explanation of the actual due process hearing
procedures. Also, in adding Sec. 300.504(b)(14), a corresponding change
to the first paragraph of Sec. 300.504(b) must be made to reference
State complaint process.
    Sections 300.504(a)(2) and (b)(7) are required by the statute. The
provision in Sec. 300.504(c)(2)(iii) has been in the regulations since
1977 and there is no basis for changing the requirement given that
purpose is to ensure that parents receive assistance in understanding
the notice.
    Regarding the several suggested additions to the timing and
contents of the procedural safeguards: (1) Sec. 300.504(b)(7) as
written addresses situations where children are disciplined and placed
in interim alternative educational placements; (2) Sec. 300.504(b)(8)
as written addresses situations resulting in reduction of reimbursement
of private school tuition; (3) Sec. 300.347(c) requires that at least
one year before the student reaches the age of majority under State law
the parents and the student will receive notice of the projected
transfer of rights through the IEP; (4) Sec. 300.142(e) specifies that
private insurance can only be used with informed parent consent and
that public insurance can only be used if it will not result in a cost
to parents; (5) Sec. 300.503(b)(7) already includes sources for parents
to use to help in understanding their rights; and (6)
Sec. 300.504(b)(9) already requires that the mediation process, which
includes parental rights therein, be fully explained.
    The information on the content and timing of the procedural
safeguards notice is not included in the statutory description of the
contents of this notice.
    Changes: As discussed under Sec. 300.503, a new Sec. 300.504(b)(14)
has been added to address State complaint procedures. The first
paragraph of Sec. 300.504(b) is amended to recognize this change.
Section 300.504(b)(5) is amended to refer to presenting complaints to
initiate due process hearings.

Parental Consent (Sec. 300.505)

    Comment: A few comments suggested that the term ``informed'' be
inserted before ``parental consent'' in Sec. 300.505(a)(1).
    Several commenters believe that parental consent should be required
for all reevaluations, not just those where new tests are necessary.
Other commenters also requested that the term ``new test'' be changed
to encompass other evaluation procedures. Others stated that the term
``new test'' confused rather than clarified when consent needed to be
obtained and requested that it be clarified or deleted. Some commenters
suggested that an explanation be added to clarify that where additional
data are needed in order to reevaluate a child, parental consent is
required. There were also questions regarding the necessity of consent
for adapted or modified assessments if not part of a reevaluation, such
as ongoing classroom evaluations (e.g. the Brigance) and counseling.
    Several commenters believe that parental consent should be required
before special education services are discontinued, for example, upon
graduation. A few commenters recommended that reevaluations for
children who are suspended for more than 10 days or expelled should be
able to proceed even if parental consent is not given.
    The use of Sec. 300.345(d) procedures to meet the reasonable
measures requirement of Sec. 300.505(c) was opposed by some commenters,
several of whom believe that documenting efforts to obtain parental
consent should be sufficient. Some also wanted reasonable measures to
be defined more specifically.
    Several comments advocated deleting Note 3 and others believed Note
3 should be incorporated into the regulation. Further, it was
recommended that the clarification in Note 2 be revised to state that
the public agency consider implementing its procedures to override a
parent's refusal to consent to services the public agency believes are
necessary for the child to receive FAPE, rather than requiring the
public agency to implement such override procedures.
    Discussion: Parental consent must be informed to be consistent with
the statute and meaningful. Further, adding the word ``informed'' at
Sec. 300.505(a)(1) is consistent with the definition, in
Sec. 300.500(b)(1), of consent.
    In order for children to receive FAPE, the IDEA Amendments of 1997
emphasized the importance of parent involvement in their children's
evaluation and placement. The statute requires informed parental
consent prior to a child's initial evaluation for special education and
related services, as well as any reevaluations. The intent of this
statutory change was not to require school districts to obtain parental
consent before reviewing existing data about the child and the child's
performance, an activity that school districts, as a matter of good
practice, should be engaged in as an on-going practice.

[[Page 12610]]

    To require parental consent for collection of this type of
information would impose a significant burden on school districts with
little discernable benefit to the children served under these
regulations. The statute provides that in some instances, an evaluation
team may determine that additional data are not needed for an
evaluation or reevaluation. In all instances, parents have the
opportunity to be part of the team which makes that determination.
Therefore, no parental consent is necessary if no additional data are
needed to conduct the evaluation or reevaluation.
    To make this clear and to respond to commenters who believed that
requiring parental consent only when conducting a new test as part of
the reevaluation was too narrow, the regulation should be revised to
specify that parental consent must be obtained before conducting an
evaluation or reevaluation, to delete proposed paragraph (a)(1)(iii)
and add a new provision to state that parental consent need not be
obtained before reviewing existing data as a part of an evaluation or
reevaluation or before administering a test or other evaluation that is
administered to all children unless consent is required of all parents.
    Parental consent would be necessary if a test is conducted as a
part of an evaluation or reevaluation, and when any assessment
instrument is administered as part of an evaluation or reevaluation.
However, schools would not be required by these regulations to obtain
parental consent for teacher and related service provider observations,
ongoing classroom evaluation, or the administration of or review of the
results of adapted or modified assessments that are administered to all
children in a class, grade, or school.
    If a child is about to graduate or otherwise stop receiving special
education and related services, Sec. 300.503's prior notice
requirements would be triggered. Section 300.503 requires that written
notice must be sent to the parents before a proposed change in
identification, evaluation, placement, or the provision of FAPE is
effective, thereby allowing the parent the opportunity to object to the
proposal. It is not appropriate to regulate further on this issue here.
    Paragraph (b) of this section addresses the procedures an agency
can use if it wants to pursue an evaluation or reevaluation, but the
parents have refused consent. The agency may seek to do the evaluation
or reevaluation by using the due process or mediation procedures under
Part B of the Act unless doing so would be inconsistent with State law
relating to parent consent. Proposed Notes 1 and 3, and the second part
of proposed Note 2 were attempts to clarify the interplay between the
Federal requirement to provide FAPE and any State laws and policies
which may not permit educational agencies to override refusals of
parents to consent to evaluations and reevaluations.
    In practical terms, if a State does not allow the agency to
override a parent's refusal for an initial evaluation or reevaluation
which the agency deems necessary in order to provide FAPE, the agency,
under paragraph (b), must follow the requirements of State law. In
cases where the evaluation or reevaluation is necessary in order to
determine that the child is or continues to be a child with a
disability under Part B of the Act, and State law prohibits an agency
from overriding a parental refusal to consent, the agency may have no
recourse but to not provide, or not continue to provide, services under
the Act to the child.
    On the other hand, if State law does not prohibit the agency from
overriding a parental refusal to consent to an evaluation or
reevaluation, and the agency believes that an evaluation or
reevaluation is necessary in order to provide FAPE, the agency would
have to take appropriate action.
    If State law provided a mechanism different than due process or
mediation under Part B as the means to override a parent refusal of
consent, and the agency deems the evaluation or reevaluation necessary
in order to provide FAPE, the agency would use the State mechanism to
pursue the evaluation. If State law permits agencies to override a
parental refusal to consent to an evaluation or reevaluation, but does
not specify the procedures to use, and the agency determines that the
evaluation or reevaluation was necessary in order to provide FAPE to
the child, the agency would use the due process and mediation
procedures under Part B of the Act.
    Of course, if an agency proposed an evaluation or reevaluation and
the parent refused consent, the agency could reconsider whether its
proposed evaluation or reevaluation was necessary, if the circumstances
warrant. However, in light of the general decision to remove all notes
from the regulations implementing Part B of the Act, the notes should
be removed.
    Paragraph (c) of this section addresses situations in which an
agency seeks parental consent for a reevaluation, but the parent fails
to respond. Given the importance of parental involvement, the
procedures a public agency must use to demonstrate that it has taken
reasonable measures to obtain parental consent pursuant to
Sec. 300.505(d) should be consistent with the procedures in
Sec. 300.345(d) that a public agency must use to inform and encourage
parents to attend IEP meetings. The methods described in
Sec. 300.345(d) are examples of how to attempt and document the steps
that the public agency has taken to obtain parental participation in an
IEP meeting, and are applicable to a public agency's attempts to obtain
parental consent pursuant to 34 CFR 300.505.
    Section 300.345(d) does not require a public agency to take all of
the steps mentioned before conducting the meeting. A public agency may
use a method which is different from the ones listed at Sec. 300.345(d)
to demonstrate that it has attempted to obtain parental consent as long
as it can demonstrate that its methods were appropriate. Therefore, the
language concerning the use of the Sec. 300.345(d) procedures to meet
the reasonable measure requirement of Sec. 300.505(c) should be
retained.
    Under paragraph (d) of this section if a State adopts consent
requirements in addition to those required in Sec. 300.505(a)(1),
public agencies are not excused from their obligation to provide FAPE
because a parent refuses to consent unless the public agency has taken
the steps necessary to resolve the matter. In order to resolve the
disagreement with the parent, it is appropriate for the public agency
to use informal means initially, such as a parent conference. However,
if these informal means prove unsuccessful, the public agency must use
its override procedures if it continues to believe that the disputed
service or activity is needed in order for the child to receive FAPE.
    Paragraph (e) of this section contained a typographical error
because it should have referred to consent required under paragraphs
(a) and (d), consistent with the prior regulations. With regard to
paragraph (e), it is important to recognize that except for the service
or activity for which consent is required under paragraphs (a) and (d),
parent refusal to consent to one service or benefit may not be used to
deny the parent or child any other service or benefit available to
them. For example, if a State requires parental consent to the
provision of all services identified in the IEP, and the parent refuses
to consent to physical therapy services included in the IEP, the agency
is not relieved of its obligation to implement those portions of the
IEP to which the parent consents. Similarly, a parent

[[Page 12611]]

refusal to consent to a reevaluation may not be used to deny a child
the right to participate in a class trip. A parent refusal to consent
to the collection of additional data that a public agency believes is
needed as a part of a reevaluation may not be used to deny the child
the services that are not in dispute. In addition, a parent refusal to
consent to the collection of additional data that the agency thinks
necessary to determine whether the child continues to be a child with a
disability may not result in the exclusion of the child from special
education and related services because Sec. 300.534(c)(1), which
reflects the statutory requirements of section 614(c)(5), requires a
full evaluation before determining that a child is no longer a child
with a disability. To make this point more clearly, paragraph (e) would
be revised.
    Changes: Section 300.505(a)(1) has been amended to refer to
``informed parent consent,'' and to delete the unnecessary reference to
programs providing special education and related services. A reference
to reevaluation has been added to paragraph (a)(1)(i), paragraph
(a)(1)(iii) has been deleted, and a new paragraph (a)(3) added to
specify that parental consent is not required before reviewing existing
evaluation data as a part of an evaluation or reevaluation or for
administering a test used with all children unless consent is required
of all parents. Paragraph (e) has been revised to provide that a public
agency may not use a parental refusal to consent to one service or
benefit under paragraphs (a) and (d) to deny the parent or child
another service, benefit, or activity, except as may be required by
these regulations. The notes following this section have been removed.

Mediation (Sec. 300.506)

    Comment: Several commenters asked that the terms ``SEA'' and
``LEA'' be used in lieu of ``public agency'' since the statute uses
those terms. There were also requests for a clarification of the
State's responsibility for the costs of the mediation process.
    There were a few requests for clarification of who may be
mediators, such as whether or not former LEA employees would be able to
be mediators. There were comments asking for more restrictions on who
could be a mediator and comments asking for fewer restrictions,
especially where a public school district already has certain mediators
under state law or regulation. The latter commenters believe the
restrictions should only address employees of an agency that is
providing direct services to a child who is the subject of the
mediation or any state agency described in Sec. 300.20.
    There was also the suggestion that LEA employees be permitted to
serve as mediators, however, either party would have the right to
reject such selection. The commenters pointed out that there is no
similar prohibition against LEA employees being hearing officers and
several questioned whether the restrictions were therefore necessary.
Some commenters suggested that the regulation make clear that multiple
mediators or mediation panels are allowed, i.e., that a single mediator
is not required for each mediation.
    Other comments recommended that Note 1 be deleted, while others
asked that it be included in the text of the regulation. With regard to
Note 1, for situations in which agreement on a mediator could not be
reached, commenters sought additional guidance in the regulation.
    Other suggestions for the mediation process included promoting
mediation even before a due process hearing is requested and allowing
an LEA to select a mediator who it believes is best able to resolve
issues in dispute. There were comments that mediation should be allowed
to occur via telephone when necessary. Several commenters asked that
the agreement reached in mediation be added to the child's IEP as soon
as possible after the agreement is reached, however not later than 10
days from the agreement. Commenters also requested that the regulation
specify that the written mediation agreement would be as enforceable as
a due process hearing decision, and that mediation discussions may be
disclosed in any proceeding brought to enforce a mediation agreement.
    Some comments stated that there appeared to be a conflict between
Secs. 300.506(d)(1) and 300.506(d)(2). The former allows a public
agency to require parents who elect not to go to mediation to meet with
a disinterested party to learn about the mediation process. The latter
states that if a parent does not participate in the informational
meeting regarding mediation the public agency may not deny or delay the
parent's right to due process hearing. The comments suggested changing
Sec. 300.506(d)(1) to state that the procedures may ``request'' not
``require'' the parents to learn about mediation. A few comments
requested a specific definition of the term ``disinterested party'' and
parent information and training centers, as well as clarification of
any supervision required over disinterested parties. There were also
comments which asked that LEAs be required to mediate if the parents
agree, as well as be required to attend a mediation informational
meeting if it chooses not to mediate.
    Discussion: Mediation is an important alternative system for
resolution of disputes under Part B. However, in order for mediation to
be effective, it must be an attractive alternative to both public
agencies and parents and it must be an impartial system which brings
the proper parties into a confidential discussion of the issues and
allows for a binding agreement that resolves the dispute.
    The statute clearly states that the option of mediation must be
available whenever a due process hearing is requested. No further
requirement would be added to the regulations. However, States or other
public agencies are strongly encouraged to offer mediation or other
alternative systems of dispute resolution prior to the filing of a
request for a due process hearing, and whenever a dispute arises.
    An expanded use of mediation should enable prompt resolution of
disputes and lead to a decrease in the use of costly and divisive due
process proceedings and civil litigation. Mediation may also be useful
in resolving State complaints under Secs. 300.660-300.662.
    The term ``public agency'' in the regulation appropriately includes
State and local educational agencies as well as other agencies in the
State that may have responsibility for the education of children with
disabilities because it ensures access to the mediation process,
regardless of the agency that provides educational services. The
requirement that the State bear the cost of the mediation process is
clearly set out in the regulation; however, the regulation should be
revised to correctly refer to the meetings to encourage the use of
mediation. In addition, the potential savings of mediation, when
compared to litigation, make it an attractive, low-cost option for most
public agencies.
    While there is nothing in the Part B regulations that precludes
parents and LEA employees from attempting to resolve disputes through
an informal process, the use of current LEA employees as mediators
would make mediation a much less attractive alternative to parents. The
regulatory provisions regarding the impartiality of mediators and the
requirement of specialized expertise in laws and regulations relating
to the provision of special education and related services are intended
to be more stringent than the Federal requirements for impartial
hearing officers to ensure that mediation is a more attractive option
for parents, and an effective option for both parties. The use of a
single mediator in the

[[Page 12612]]

mediation process is important for clear communication and
accountability.
    Paragraph (b)(1)(iii) of this section, which repeats statutory
language, is clear that each mediation be conducted by one mediator, as
opposed to a panel or multiple mediators.
    Another factor that will determine the success of mediation within
a State is the selection process for mediators. It is important to note
that with respect to paragraph (b)(2) of this section, the Senate and
House Committee Reports on Pub. L. 105-17 include the following
statement:

    * * * the bill provides that the State shall maintain a list of
individuals who are qualified mediators. The Committee intends that
whenever such a mediator is not selected on a random basis from that
list, both the parents and the agency are involved in selecting the
mediator, and are in agreement with the individual who is selected.
(S. Rep. No. 105-17, p. 27 (1997); H. Rep. No. 105-95, p. 106
(1997).)

    The success of a mediation system will be closely related to both
parties' trust and commitment to the process. The first test of that
process will be the selection of the mediator. Parties that mistrust
the mediator selection process may be less likely to reach agreement on
substantive issues. Therefore, reflecting the language of the
Committees' reports on this topic, a change should be made to the
regulation to specify that if a mediator is not selected on a random
basis from the State-maintained list, both parties are involved in
selecting the mediator and are in agreement with the selection of the
individual who will mediate.
    Like hearing officers, mediators must be able to be paid by the
State, without impacting their impartiality. Language similar to that
used for impartial hearing officers should be added to the regulation
to clarify that even though a mediator is paid for his or her services
as a mediator, such payment does not make that mediator an employee for
purposes of impartiality.
    The regulatory requirement for the use of a qualified mediator
instructed in effective mediation techniques will ensure that decisions
about the effectiveness of specific techniques, such as the need for
face-to-face negotiations, telephone communications, or IEP
implementation provisions, will be based upon the mediator's
independent judgment and expertise. Therefore, it is not necessary to
regulate on these issues.
    The enforceability of a mediation agreement, like the
enforceability of other binding agreements, including settlement
agreements, will be based upon applicable State and Federal law. With
regard to the provision in paragraph (b)(6) of this section that
mediation discussions must be confidential and may not be used in any
subsequent due process hearings or civil proceedings, the Senate and
House Committee Reports on Pub. L. 105-17 note that ``nothing in this
bill shall supersede any parental access rights under the Family
Educational Rights and Privacy Act of 1974 or foreclose access to
information otherwise available to the parties.'' (S. Rep. No. 105-17,
p. 27 (1997); H. Rep. No. 105-95, p. 107 (1997)). The Reports also
include an example of a confidentiality pledge, which makes clear that
the intent of this provision is to protect discussions that occur in
the mediation process from use in subsequent due process hearings and
civil proceedings under the Act, and not to exempt from discovery,
because it was disclosed during mediation, information that otherwise
would be subject to discovery.
    Regarding the perceived conflict between Sec. 300.506(d)(1) and
(d)(2), the mediation process, including meetings to discuss the
benefits of mediation, should not be used to deny or delay parents' due
process hearing rights. The purpose behind Sec. 300.506(d)(2) is to
ensure that in situations where parents are unwilling or unable to
cooperate with a public agency regarding a meeting to discuss the
benefits of mediation, there is still a timely resolution of the due
process hearing. In general, a hearing officer should not extend the
timelines for a due process hearing based on the fact that there is a
pending mediation in the case unless both parties have agreed to that
extension. If mediation is used in the resolution of a State complaint,
it should not be viewed as creating, in and of itself, an exceptional
circumstance justifying an extension of the 60 day time line. While the
State or local educational agency may require that the parent attend
the meeting to receive an explanation of the benefits of mediation and
to encourage its use, a parent's failure to attend this meeting prior
to the due process hearing should not be used to justify delay or
denial of the hearing or the hearing decision.
    It is not necessary to define the terms ``parent training and
information centers'' or ``community parent resource center'' since
they are established by statute. To allow flexibility with regard to
the designation of a ``disinterested party'' by the parent
organizations or an appropriate alternative dispute resolution entity,
no definition would be provided. Consistent with the general decision
to remove all notes from these final regulations, Notes 1 and 2 would
be removed.
    Changes: A new paragraph (b)(2)(ii) is added to specify that the
mediator be selected from the list on a random basis, such as a
rotation, or that both parties are involved in selecting the mediator
and agree with the selection of the individual who will mediate. Notes
1 and 2 have been removed. Paragraph (b)(3) has been revised to refer
to the meetings to encourage the use of mediation.
    Another new paragraph (c)(2) is added to clarify that payment for
mediator services does not make the mediator an employee for purposes
of impartiality.

Impartial Due Process Hearing; Parent Notice (Sec. 300.507)

    Comment: There were several comments requesting changes to
Sec. 300.507. With regard to the model form for hearing requests, some
commenters requested that where the public agency requests the due
process hearing, the public agency would provide the notice requested
of the parents at Sec. 300.507(c)(1) and (c)(2). Others requested that
parent information and training centers and the general public be
required to assist in developing the model form required in
Sec. 300.507(a)(3).
    The Department also received comments asking that
Sec. 300.507(c)(4) be modified so that LEAs can ask a hearing officer
to delay a due process hearing for a reasonable period of time until
the parents provide the district with the required pre-hearing notice.
Some commenters suggested that parents be informed of free and low cost
legal advocacy as a matter of routine, not just after requesting a due
process hearing. Other commenters sought additional language specifying
that LEAs be barred from coming to a due process hearing with a new IEP
developed without direct parental input and based on the information
given by the parents in the hearing request.
    Commenters also requested that the statutory provisions regarding
attorneys' fees at sections 615(i)(3)(D) and (F) of the Act be included
in this regulation. Others requested that the term ``or refusal to
initiate or change'' be added to Sec. 300.507(c)(2)(iv).
    Some commenters asked that the Department delete Note 1, while
others asked that Note 1 be written into the regulation itself.
    Discussion: The prior written notice requirement of Sec. 300.503 is
sufficient to inform parents of what the public agency is proposing.
Therefore, any hearing request by the public agency on

[[Page 12613]]

that proposal would not require an additional notice by the agency.
Another notice would be repetitive and overly burdensome. Likewise,
many public agencies already have existing model forms for hearing
requests. Since the statute and regulation specify the information
which parents must disclose in the hearing request, additional input
from parent information and training centers or the general public is
unnecessary and would create additional burdens without much benefit.
    The Senate and House Committee Reports on Pub. L. 105-17 note that
attorneys' fees to prevailing parents may be reduced if the attorney
representing the parents did not provide the public agency with
specific information about the child and the basis of the dispute
described in paragraphs (c)(1) and (2) of this section. With respect to
the intent of the new notice provision, the Reports include the
following statement:

    * * * The Committee believes that the addition of this provision
will facilitate an early opportunity for schools and parents to
develop a common frame of reference about problems and potential
problems that may remove the need to proceed to due process and
instead foster a partnership to resolve problems. (S. Rep. No. 105-
17, p. 25 (1997); H. R. Rep. No. 105-95, p. 105 (1997)).

    The changes to Sec. 300.513 clarify the potential for reduction of
attorneys' fees in cases where proper notice is not given by the
parents' attorney. Therefore, a reference to attorneys' fees is not
necessary here.
    Matters such as what evidence should and should not be presented
and requests for extensions of time, should be handled on a case-by-
case basis by the impartial hearing officer presiding over the hearing.
It has also been the Department's long-standing position that Part B of
the Act and the regulations under Part B do not provide any authority
for a public agency to deny a parent's request for an impartial due
process hearing, even if the agency believes that the parent's issues
are not new. Thus, the determination of whether or not a parent's
request for a hearing is based on new issues can only be made by an
impartial hearing officer.
    The request for modification of the regulation at
Sec. 300.507(c)(2)(iv) to include situations where the nature of the
problem is the public agency's refusal to initiate or change the
provision of a free appropriate public education, is consistent with
the requirements of Sec. 300.507(a)(1). In light of the general
decision to remove all notes from these final regulations, Notes 1 and
2 should be removed.
    Changes: Section 300.507(c)(2)(iv) is amended to make clear that a
problem may have arisen as a result of an agency's proposal or refusal
to act. Notes 1 and 2 have been removed.

Impartial Hearing Officer (Sec. 300.508)

    Comment: The Department received several comments requesting
amendments to the regulation on hearing officers in two main aspects--
qualifications and public notice of such qualifications. In the first
area, commenters stated that persons who are employees of any LEA,
persons who were employees of an SEA or LEA and were involved in the
care or education of any child in the past 5 years, and attorneys who
represent primarily the school district or parents cannot be hearing
officers. In the second area, commenters requested that hearing
officers be required to take training and competency examinations
designed by this Department and supplemented with State-specific
elements. Several commenters also want SEAs to publish the criteria
they use to choose hearing officers and that the list of all the
hearing officers and their credentials be provided to parents
requesting a due process hearing. Commenters also suggested that the
regulation require that if a sublist of hearing officers is generated
for a particular hearing, the parents or their representative be
present at the meetings where the sublist is selected. Further,
commenters asked that the statement of the qualifications of hearing
officers be updated annually and the impartiality of a hearing officer
be determined by an objective standard, such as a State's Code of
Judicial Conduct.
    Discussion: The regulation, in conjunction with State ethics
requirements for attorneys and judges, are sufficient to address the
concerns raised by commenters with regard to potential conflicts. In
States where there are no formal ethical standards for administrative
hearing officers, the issue should be addressed within the State. A
prior employee of an LEA or SEA should not be barred from serving as a
hearing officer where there is no personal or professional interest
that would conflict with his or her objectivity in the hearing. Hearing
officers, like judges, are capable of making independent determinations
of potential conflicts of interest, including a determination of
whether he or she has knowledge or information about a particular child
derived from outside the hearing process which would impact upon his or
her impartiality.
    Although numerous commenters asked for national standards,
training, and examinations for impartial hearing officers, decisions
about training and hearing officer selection, including the use of
sublists, should be left to States. Since hearing officers' decisions
are subject to judicial review, there is a strong incentive for States
to choose qualified hearing officers, conduct appropriate training and
establish standards of expertise. Hearing decisions that are not
soundly decided will lead to further litigation, be more likely to be
reversed and create higher costs. In addition, reviewing courts are
less likely to give judicial deference to a hearing officer where his
or her qualifications show no expertise in the area of special
education.
    Changes: None.

Hearing Rights (Sec. 300.509)

    Comment: There were several specific comments regarding hearing
rights. With respect to the additional disclosure of information, some
commenters stated that the time frame should be 5 school days, not
business days, prior to a hearing, and the recommendations should be
clarified as written recommendations which may be summaries of oral
recommendations. A few commenters also suggested that
Sec. 300.509(a)(3) and (b) use the same standard of business days to
avoid confusion.
    With respect to the parental hearing rights, some commenters
suggested that since it sometimes not in the interest of the child to
be present at the hearing, the parents should have the right to have
the child who is the subject of the hearing present for only a portion
of the hearing. There were also comments that a free written record is
too expensive for States to provide, as well as comments that a
verbatim recording should be at no cost to the parents.
    With respect to general hearing rights, commenters asked that
evidence that has not been disclosed within the appropriate time frame
not be allowed unless agreed to by both parties or for good cause shown
for the failure to disclose in advance. Commenters also asked that the
regulations state that the only pre-hearing discovery allowed is the
exchange of information set forth in Sec. 300.509. Finally, commenters
requested that hearing decisions be made available to the public at
least on a quarterly basis.
    Discussion: The establishment of two separate time frames for the
prehearing disclosure of documents because the term ``5 business days''
is used in Sec. 300.509(b)(1) and the term ``5 days'' is used in
paragraph (a)(3) of this section will lead to confusion and additional
litigation and costs. In order to prevent

[[Page 12614]]

this, the time frame for disclosure would be set to 5 business days
prior to the hearing. This change would be consistent with prior
interpretations by the Department, which recognized that the intent of
prehearing disclosure is to avoid surprise by either party at the
hearing. The hearing officer has discretion to determine the
consequences of not meeting the disclosure time line, and may prohibit
the introduction of the evidence or may allow the rescheduling of the
hearing so that timely disclosure is possible.
    Some States chose to allow the use of other discovery procedures
prior to a due process hearing. States should continue to have this
discretion as they are not prohibited from doing so by Part B.
    Access to a written verbatim record of the hearing is vital for
parents to exercise their full due process rights. Although there are
costs associated with the statutorily mandated shift of the choice
between an electronic or written record of the hearing from the public
agency, as newer technologies are better capable of generating accurate
transcriptions, these costs will decrease.
    Parents must continue to have the choice to have the child be
present for all or part of the hearing, at their discretion. For some
youth with disabilities, observing and even participating in the
hearing will be a self-empowering experience in which they can learn to
advocate for themselves. This long-standing choice should not be taken
away from parents. This choice takes on added significance in light of
the new provisions that allow States to transfer parental rights to
students at the age of majority. Under this new authority, there may be
more situations where students will have to be present at and
participate in due process hearings.
    Implicit in the requirement that hearing decisions be made
available to the public, is the requirement that they be made available
within a reasonable amount of time. Therefore, no specific time
requirement is needed in the regulation.
    Changes: Paragraph (a)(3) of this section is changed to require
disclosure at least 5 business days before the hearing.

Finality of Decision; Appeal; Impartial Review (Sec. 300.510)

    Comment: Several comments regarding the availability of SEA hearing
decisions, asked that such decisions be distributed directly to various
organizations and allow parents to receive the findings under
Sec. 300.510(b)(2)(vi) in an electronic format. Other comments
requested that hearing officers be allowed to amend decisions once they
are final to correct for technical errors, similar to Rule 60 of the
Federal Rules of Civil Procedure.
    One commenter asked that Notes 1 and 2 be incorporated into the
regulation itself and several commenters pointed out that the reference
in Sec. 300.510(b)(2)(iii) should be to Sec. 300.509 not Sec. 300.508.
    Discussion: There were two typographical errors in the proposed
regulation with respect to references to other sections. In
Sec. 300.510(b)(2)(iii) the reference to Sec. 300.508 should be to
Sec. 300.509 consistent with the prior regulatory reference. In
Sec. 300.510(d), the reference to Sec. 300.511 should be to
Sec. 300.512, also consistent with the prior regulatory reference.
    The reference in Sec. 300.510(b)(vi) to written findings and
decision should be changed to be consistent with Sec. 300.509(a)(5) and
allow the choice of electronic or written findings of fact and
decision.
    It is not necessary to regulate on whether hearing officers are
allowed to amend their decisions for technical errors. This matter is
left to the discretion of hearing officers and States; however, proper
notice should be given to parents if State procedures allow for
amendments and a reconsideration process may not delay or deny parents'
right to a decision within the time periods specified for hearings and
appeals.
    It has been the Department's position that the SEA may conduct its
review either directly or through another State agency acting on its
behalf. However, the SEA remains responsible for the final decision on
review. In addition, all parties have the right to continue to be
represented by counsel at the State administrative review level,
whether or not the reviewing official determines that a further hearing
is necessary. If the reviewing official decides to hold a hearing to
receive additional evidence, the other rights in Sec. 300.509 relating
to hearings also apply. However, in light of the general decision to
remove all notes from these final regulations, Notes 1 and 2 would be
removed.
    Changes: In Sec. 300.510(b)(2)(iii) the reference to Sec. 300.508
has been changed to Sec. 300.509. In Sec. 300.510(d), the reference to
Sec. 300.511 has been changed to Sec. 300.512. The reference in
Sec. 300.510(b)(2)(vi) to written findings and decision has been
changed to be consistent with Sec. 300.509(a)(5) and allow the choice
of ``electronic or written findings of fact and decision.'' Notes 1 and
2 have been removed.

Timelines and Convenience of Hearings and reviews (Sec. 300.511)

    Comment: A few comments were received regarding Sec. 300.511 which
requested that (1) the 45 and 30 day timelines be specified as 45 and
30 school days; (2) it be clear that hearing officers have discretion
to deny requests for extensions of time since extensions may delay
hearings for a long time; and (3) delete Sec. 300.511(a) or change it
to make the SEA responsible for timelines.
    Discussion: There is not sufficient consensus or evidence of need
to change the long-standing interpretation of the hearing and review
timelines from calendar days to ``school days.'' In addition, the
potential impact of no ``school days'' during the summer months would
make the delay in parents' access to due process hearings and decisions
unreasonable.
    The use of the word ``may'' instead of ``shall'' in
Sec. 300.511(c), means that the granting of specific extensions of time
are at the discretion of the hearing or review officer. It is not
necessary to clarify that this discretion means that requests for
extensions can be denied as well as granted since this is implicit in
the regulation.
    There is no need to change the regulation to reflect the State's
responsibility for compliance with timelines because in addition to the
language in this regulation, Sec. 300.600 continues to hold the State
ultimately responsible for noncompliance.
    Changes: None.

Civil Action (Sec. 300.512)

    Comment: A commenter pointed out that Sec. 300.512 had a few
typographical errors since the reference to Sec. 300.510(b)(2) should
be to Sec. 300.510(b)(1) and the reference to Sec. 300.510(e) should be
to Sec. 300.510(b).
    Discussion: There were typographical errors in this section in the
NPRM, however the reference to Sec. 300.510(b)(2) should be to
Sec. 300.510(b) and the reference to Sec. 300.510(e) should be to
Sec. 300.510(b).
    Changes: The reference to Sec. 300.510(b)(2) has been changed to
Sec. 300.510(b) and the reference to Sec. 300.510(e) has been changed
to Sec. 300.510(b).

Attorneys' Fees (Sec. 300.513)

    Comment: Many commenters requested that Sec. 300.513 include the
provisions from sections 615(i)(3)(D) and (F) of the Act regarding
instances where attorneys fees are prohibited or may be reduced.
Several commenters also asked that a note be added to state that
attorneys' fees may be awarded if

[[Page 12615]]

an IEP team meeting occurs after a hearing request but before the
hearing.
    Several commenters requested that the note on hearing officers be
deleted, stating that the awarding of attorneys' fees should be left to
the courts. One commenter stated that if hearing officers are allowed
to award attorneys' fees, they should be trained in, and use, the
criteria used by Federal courts in determining attorneys' fees.
    One commenter also asked that Sec. 300.513(b) be deleted.
    Discussion: By inserting all the statutory provisions regarding
attorneys' fees into the regulations, most of the suggestions will be
adequately addressed and additional clarity will be added.
    Based upon the absence of consensus, the Department will continue
to allow maximum flexibility to States for structuring the process by
which parents who are prevailing parties under Part B of the Act may
request attorneys' fees reimbursement.
    It is important to maintain paragraph (b)(1) of this section,
because the limited Federal resources under the Act should be used to
provide special education and related services and not be used to
promote litigation of disputes. Further, that paragraph has been
modified to make it clear that the prohibition against using Part B
funds for attorney's fees also applies to the related costs of a party
in an action or proceeding, such as depositions, expert witnesses,
settlements, and other related costs. In addition, a new paragraph
(b)(2) of this section has been added to clarify that the prohibition
in paragraph (b)(1) does not preclude a public agency from using funds
under Part B of the Act to conduct an action or preceding under section
615 of the Act, such as the cost of paying a hearing officer and
providing the place for conducting the action or proceeding.
    In light of the general decision to remove all notes from the final
regulations under the Act, the note following this section in the NPRM
would be removed. The proposed note was merely intended to suggest that
States could choose as a matter of State law to permit hearing officers
to award attorneys' fees to parents who are prevailing parties under
Part B of the Act, and not to require that they do so, or imply that
IDEA would be the source of the authority for granting hearing officers
that role. If a State allows hearing officer's to award attorney's
fees, requirements regarding training on attorneys fees would be a
State matter.
    Changes: Paragraph (b) has been revised to prohibit use of funds
provided under Part B for related costs. The regulation has been
amended to include all of the provisions of section 615(i)(3)(C)-(G) of
the Act. The note following this section has been removed.

Child's Status During Proceedings (Sec. 300.514)

    Comment: Although a few commenters agreed with the provision in
Sec. 300.514(c), many commenters objected to it. Section 300.514(c)
states that if the decision in a due process hearing or administrative
appeal agrees with the parents that a change of placement is
appropriate, the decision must be treated as an agreement between the
State or local agency and the parents for purposes of maintaining the
child's placement pursuant to Sec. 300.514(a). Commenters saw this
provision as one-sided and suggested that it be limited to where there
is agreement by all the parties. In the alternative, commenters
suggested that the provision be deleted and that decisions as to
whether a hearing officer's or review official's decision constitutes
an agreement be left to the courts.
    Commenters requested a definition of the term ``current
placement,'' with some suggesting that the definition include the
current location where the child receives services.
    Some of the comments indicated confusion as to which proceedings
are referenced in Sec. 300.514. Commenters were unsure whether the
regulation references only the administrative and judicial due process
proceedings established by section 615 of the Act, or also the State
complaint procedures established by Secs. 300.660-300.662.
    Commenters requested that when referring to parents in this
regulation, students who have reached the age of majority also be
referenced. Further clarification also was requested regarding a
parent's right to remove his or her child from the current placement
and place them elsewhere during the pendency of the applicable
proceedings if the parent believes FAPE is not being provided.
    Discussion: The provisions maintaining the child's current
educational placement pending proceedings regarding a complaint is a
right afforded to parents to protect children with disabilities from
being subjected to a new program that parents believe to be
inappropriate. The provisions are intended to apply only to the due
process proceedings and the subsequent civil action, if any, brought
under section 615 of the Act, and not to the State complaint procedures
in Secs. 300.660-300.662, which are authorized by the General Education
Provisions Act. This position is consistent with the Department's prior
interpretation.
    It is important to note that these provisions would only apply
where there is a dispute between the parent and the public agency that
is the subject of administrative or judicial proceedings. If there is
no such dispute that is the subject of a proceeding, then the placement
may be changed and this section does not apply.
    This section does not permit a child's placement to be changed by
the public agency during proceedings regarding a complaint, unless the
parents and agency agree otherwise. While the placement may not be
changed unilaterally by the public agency, this does not preclude the
parent from changing the placement at their own expense and risk. It is
also important to note that this provision does not preclude the agency
from using its normal procedures for dealing with children who are
endangering themselves or others, including, as appropriate to the
circumstances, seeking injunctive relief from a court of competent
jurisdiction. In addition, even where there is disagreement between the
parents and the public agency, the provisions of Sec. 300.521 still
allow a hearing officer to change the placement of a child with a
disability who is substantially likely to injure self or others to an
appropriate interim alternative educational setting for not more than
45 days.
    Paragraph (c) is based on long-standing judicial interpretation of
the Act's pendency provision that when a State hearing officer's or
State review official's decision is in agreement with parents that a
change in placement is appropriate, that decision constitutes an
agreement by the State agency and the parents for purposes of
determining the child's current placement during subsequent appeals.
See, e.g., Burlington School Committee v. Dept. Of Educ., 471 U.S. 359,
371 (1985); Susquentia School District v. Raelee S., 96 F.3d 78, 84
(3rd Cir. 1996); Clovis Unified v. Office of Administrative Hearings,
903 F.2d 635, 641 (9th Cir. 1990). Paragraph (c) of this section
incorporates this interpretation. However, this provision does not
limit either party's right to seek appropriate judicial review under
Sec. 300.512, it only shifts responsibility for maintaining the
parent's proposed placement to the public agency while an appeal is
pending in those instances in which the State hearing officer or State
review official determines that the parent's proposed change of
placement is appropriate.

[[Page 12616]]

    The term ``current placement'' is not readily defined. While it
includes the IEP and the setting in which the IEP is implemented, such
as a regular classroom or a self-contained classroom, the term is
generally not considered to be location-specific. In addition, it is
not intended that a child with disabilities remain in a specific grade
and class pending an appeal if he or she would be eligible to proceed
to the next grade and the corresponding classroom within that grade.
    There is no need to add a reference to children with disabilities
who reach the age of majority in this regulation. The transfer of
parental rights at the age of majority is discussed in another section
of the regulations, Sec. 300.517, and will not be referenced in every
other section to which it applies.
    There is also no need to address the parents' ability to change the
child's placement unilaterally at their own expense since this issue is
addressed in Sec. 300.403.
    Consistent with the general decision to remove all notes from these
regulations, the note would be removed.
    Changes: The note has been removed.

Surrogate Parents (Sec. 300.515)

    Comment: Several commenters suggested that the regulation include
clear procedures for terminating surrogate parents who do not
appropriately fulfill their responsibilities and include in those
procedures the consideration of the student's opinion. Relatedly, some
commenters recommended that the regulation state that LEAs cannot
impose sanctions or threaten sanctions if surrogate parents make
decisions the LEA opposes.
    There were also comments regarding the selection of surrogate
parents. Some commenters asked that surrogates not be employees of
private agencies who are involved in the education or care of the child
since there is a potential conflict of interest where the public agency
contracts with and pays the private agencies to provide services for
the child. Another suggestion was that child welfare workers not be
surrogate parents, but that foster parents be allowed, if qualified.
One commenter agreed that representatives of the welfare system should
not be surrogate parents but believed foster care representatives
should also be barred. One commenter asked that the regulation require
public agencies to assign surrogate parents designated by a parent,
provided such persons meet the qualifications, thereby giving parents
the right to voluntarily designate a surrogate parent and rescind such
designation at any time.
    Some comments also stated that Sec. 300.19(b)(2) conflicts with
Sec. 300.515 because in Sec. 300.515 the appointment of a surrogate
parent is mandatory if the child is a ward of the State, regardless of
whether the child has a foster parent who meets the ``parent'' criteria
in Sec. 300.19(b)(2). The comments recommended including an exception
from the mandate of surrogate parent appointments for any ward of the
State whose foster parent is a parent in accordance with
Sec. 300.19(b)(2).
    Discussion: There is insufficient evidence of a wide-spread problem
of irresponsible surrogate parents which would require regulatory
procedures for termination. Therefore, the issue of the need for
procedures for termination of surrogates is left to the discretion of
States. There is also insufficient evidence of public agency
retaliation against surrogate parents. Since there are other civil
rights statutes and regulations that prohibit discrimination, including
retaliation, against individuals who exercise their rights under
Federal law, including the right of individuals to assist individuals
with disabilities without retaliation or coercion, there is no need to
address this issue in this regulation.
    Proposed paragraph (c)(2)(i) of this section reflected the
statutory requirement at section 615(b)(2) that a surrogate parent not
be an employee of the SEA, LEA or any other agency that is involved in
the education or care of the child. It is very important that the
surrogate parent adequately represents the educational interest of the
child, and not the interests of a particular agency. In the case of
other governmental agencies, even agencies that are not involved in the
education of the child, there is the possibility of a conflict between
the interest of the child and those of the employee of the agency
because some educational decisions will have an impact on whether an
educational agency or some other governmental agency will be
responsible for paying for services for the child. In situations where
a child is in the care of a nonpublic agency that has no role in the
education of the child, however, an employee of that agency may be the
person best suited to serve as a surrogate for the child because of his
or her knowledge of the child and concern for the child's well-being
and would not, simply by virtue of his or her employment situation,
have an interest that could conflict with the interest of the child. In
such a case, that individual should not be prohibited from serving as a
surrogate as long as he or she had no other interest that conflicts
with the interest of the child and has knowledge and skills that will
ensure adequate representation of the child.
    Paragraph (a) of this section requires that the public agency
ensure that the rights of the child are protected if the child is a
ward of the State. Paragraph (b) sets out that the duty includes a
determination of whether the child needs a surrogate parent and if so,
the assignment of one. The proposed regulation at Sec. 300.19(b)(2) has
been renumbered at Sec. 300.20 and now clarifies that the definition of
a parent may include a foster parent unless State law prohibits it, and
if certain other conditions are met. In situations where a child who is
a ward of the State has a foster parent who meets the definition of
parent in Sec. 300.20 and the foster parent is acting as the parent,
the public agency should determine if there is a need for a surrogate
parent, and whether further steps are necessary to ensure that the
rights of the child are protected. In most cases where the foster
parent meets the definition of a parent and is acting as the parent,
there would be no need to appoint a surrogate, unless the agency
determined that in the particular circumstances of the case a surrogate
was necessary to ensure that the rights of the child were protected.
    Changes: Paragraph (c) has been amended to permit a public agency
to appoint as a surrogate an employee of a nonpublic agency that
provides only non-educational care to the child. Paragraph (d)(1) has
been deleted. Paragraph (d)(2) has been redesignated as paragraph (d)
and the reference to paragraph (d)(1) is deleted.

Transfer of Parental Rights at Age of Majority (Sec. 300.517)

    Comment: There were several comments on the transfer of rights for
incarcerated youths which requested clarification whether the transfer
occurs regardless of age.
    Commenters also requested clarification of what the transfer of
rights to the child means for the parent, i.e., does the parent retain
the right to any of the due process protections.
    Commenters suggested that Sec. 300.517 should refer to
Sec. 300.347(c) which deals with when and how students are to be
notified of their impending transfer of rights. There was also a
request for clarification regarding parental involvement in
modifications to IEPs or placements when there is a bona fide security
or compelling penological interest.
    Commenters also requested guidelines for determining if a student
cannot provide informed consent with respect

[[Page 12617]]

to his or her educational program. Some interpreted the proposed
regulation as requiring a competency determination prior to every
transfer, deemed this unreasonable, and proposed that notice to parents
is sufficient. Some recommended that the IEP team make the decision of
whether a competency assessment is required and appoint a surrogate
when the team decides the child is not able to provide informed consent
for his or her educational program. Several commenters asked why the
term ``another appropriate individual'' was used instead of ``guardian
or surrogate parent'' as defined in Sec. 300.515.
    Some commenters asked that the Department allow a State which
doesn't have a law regarding transfer of rights at age of majority to
implement an interim policy pending legislative change.
    Commenters also recommended that an independent advocate, not a
teacher or LEA administrator but who is paid by the LEA, be available
for each student to whom rights have transferred, to be present at all
IEP discussions when parents are not present so that coercion by the
school is prevented.
    Discussion: It is not necessary to delineate the specific parental
rights that transfer under this section because the statute and
regulations fully set out the rights afforded to parents under Part B.
The statute and paragraph (a)(1) of this section allow States, under
State law, to transfer all parental rights to children with
disabilities who reach the age of majority, with the exception of the
right to notice which is both retained by the parents and transfers to
the student. For children with disabilities who are incarcerated in
adult or juvenile Federal, State or local correctional institutions,
the State, under State law, may transfer all parental rights, including
the notice rights, at the age of majority.
    The IEP provisions regarding notice prior to the age of majority,
do not have to be explained or referenced in this section of the
regulations. While the requirement in Sec. 300.347(c) that beginning at
least one year before the student reaches the age of majority under
State law the IEP must include a statement that the student has been
informed of the rights that will transfer to him or her upon reaching
the age of majority, does relate to this regulation, it is separate and
distinct from the notice provisions in Sec. 300.517(a)(3) requiring
notice to the parent and child at the time of transfer--when the child
actually reaches the age of majority.
    This regulation does not need to address specifically the right to
parental participation in IEP meetings for youth with disabilities
convicted as adult and incarcerated in adults prisons whose parental
rights have not transferred at the age of majority. These individuals
would have the same rights as other youth with disabilities whose
parental rights have not transferred as set out in section
Sec. 300.345. There is also no further need to address IEP and
placement requirements that do not apply to modifications of IEP or
placement for youth with disabilities convicted as an adult and
incarcerated in an adult prison because the provisions are already set
out at Sec. 300.311(c)(2).
    The requirement in paragraph (a) of this section regarding State
provision for transfers of parental rights at the age of majority under
State law generally does not require a statutory change if the State
already has a State law regarding age of majority that applies to all
children (except in cases of incompetency). A State may not transfer
rights at age of majority in the absence of a State law on age of
majority that applies to all children, except those children determined
incompetent under State law.
    With regard to the transfer of rights in situations where the
competency of an individual with a disability is challenged, currently,
most States have laws, rules, and procedures that allow a general
determination of incompetency for an individual with a disability who
has reached the age of majority. These laws and procedures usually
require a formal proceeding and provide for the appointment of a
general guardianship where the individual is found not to be competent
under the applicable legal standard. The transfer of the Part B
parental rights under State law must be consistent with State
competency laws, that is, where parental rights transfer to the
individual at the age of majority, and the individual is found to be
incompetent, the appointed guardian would exercise Part B rights
pursuant to their guardianship. In some States, there may be additional
laws and procedures that allow for a lesser determination of competency
for specific purposes, such as competency for providing informed
consent with respect to the individual's educational program.
    The special rule at Sec. 300.517(b) only applies to States who,
under State law, allow for this lesser determination of competency--a
determination of the ability to provide informed consent with respect
to the educational program of the student. Under the provision in the
special rule that specifies appointing ``the parent, or, if the parent
is not available, another appropriate individual,'' a guardian or
surrogate parent could be an appropriate individual to represent the
educational interests of the student.
    Changes: Paragraph (b) has been revised to make clear that it only
applies if a State has a State mechanism lesser competency proceedings.

Discipline in general

(For a general overview of major changes in the discipline
provisions from the NPRM to these final regulations, please refer to
the preamble.)

    Comment: Several commenters asked that the regulations include only
the statutory language with respect to all provisions concerning
discipline. The vast majority of commenters, however, asked that the
regulations provide more specificity than the statute regarding
discipline. In many cases, these commenters provided proposals for how
the regulations should interpret the statute. Others asked that the
regulations give schools the ability to deal differently with children
with articulation problems and those with behavior disorders.
    Discussion: Including only the statutory language on discipline in
the final regulations, would not be helpful. The vast majority of the
comments received concerning discipline demonstrate overwhelmingly the
need to regulate in order to clarify the statutory language. To rely
solely on the statutory language would encourage needless litigation.
There is no statutory basis for treating children with disabilities
differently under the discipline provisions because of the nature of
their disability.
    Change: None.

Authority of school personnel (Sec. 300.520)

    Comment: A number of commenters were concerned about the provisions
in the proposed regulations that required development of behavioral
assessment plans and determinations regarding manifestation after the
child had been removed for more than 10 school days in a school year
because they believed that these responses should only be required if
the removal constituted a ``change of placement.'' These commenters
asked that the term ``change of placement'' be defined in the
regulation as indicated in Note 1 to the proposed regulations, in order
to incorporate what they saw as the law's intent to allow building-
level administrators some discretion to temporarily remove a child from
their current educational placement if necessary to prevent disruption
or ensure the safety of other children. Many of these commenters asked
that

[[Page 12618]]

the regulations clarify the distinction between removal of a student
for disciplinary reasons and removal of a student for behavior
management purposes.
    Some commenters supported Note 1 as it clarified that schools
continued to have the ability to remove children with disabilities from
their current placement for limited periods of time when necessary,
even though the child had previously been removed earlier that school
year. Some commenters asked who is contemplated to be making the
determination regarding a change in placement.
    Some commenters proposed modifications to the change of placement
standard described in Note 1 to this section to recognize that there
could be circumstances when continued short term suspensions may be
used without reconvening the IEP team if the IEP team has addressed the
behavior through changes to the IEP or placement and agrees that
removal from the child's current educational placement is an
appropriate intervention.
    Other commenters believed that the regulations should provide even
more latitude to schools about when to convene an IEP meeting to review
or develop a behavior assessment plan and conduct a manifestation
determination, when for example, the behavior occurred repeatedly, or
involved minor offenses. Some of these commenters thought that the IEP
team should have the discretion to determine the need for a behavioral
assessment or behavioral intervention plan on an individual basis.
    Some commenters believed that paragraph (c) of the proposed
regulations (and similar provisions in Secs. 300.121 and 300.523(b))
exceed statutory authority by permitting school authorities to remove a
child with disabilities from the child's current educational placement
for up to 10 school days in a school year before the behavior
assessment plan, services, or manifestation determination must be done.
Many of these commenters indicated that any suspension is an indication
that the child with a disability is having problems and the school
should be required to initiate the behavioral assessment plan at the
earliest indication of difficulty. For the same reasons, these
commenters asked that the regulations not include references to
suspensions without the provision of educational services.
    Some commenters basically agreed with the position taken in
paragraph (c) and Secs. 300.121 and 300.523(b) but believed that the
content of Note 2 should be strengthened by adding support for review
of the IEP for any short suspension that in the judgment of the parent
or other member of the IEP team, requires reconsideration of behavioral
interventions or other IEP revisions. Some commenters noted that
paragraph (c) needed further clarification, as school personnel cannot
reasonably be expected to predict future conduct of a child.
    Discussion: The obligation to conduct a functional behavioral
assessment or to review an existing behavioral intervention plan is not
linked in the statute only to situations that constitute a ``change of
placement.'' As a policy matter, it makes a great deal of sense to
attend to behavior of children with disabilities that is interfering
with their education or that of others, so that the behavior can be
addressed, even when that behavior will not result in a change in
placement. In fact, IDEA now emphasizes a proactive approach to
behaviors that interfere with learning by requiring that, for children
with disabilities whose behavior impedes their learning or that of
others, the IEP team consider, as appropriate, and address in the
child's IEP, ``strategies, including positive behavioral interventions,
strategies, and supports to address the behavior.'' (section
614(d)(3)(B)(i)).
    On the other hand, there is merit to the argument that schools
should not have to repeatedly convene IEP team meetings to address the
behavior of children who already have behavior intervention plans,
unless there is a need. The position that services and the development
of a behavioral assessment plan are not triggered if a child with
disabilities is removed from his or her current placement for 10 school
days or less in a given school year is based on the language of the
statute at section 612(a)(1)(A) and section 615(k)(1)(B), as
interpreted in light of the legislative history of the Act, which notes
that the statute was designed to ``reinforce and clarify the
understanding of Federal policy on this matter, which is currently
found in the statute, case law, regulations, and informal policy
guidance.'' (S. Rep. No. 105-17, p. 28; H.R. Rep. No. 105-95, p. 108
(1997)).
    In light of the Department's longstanding position that children
with disabilities could be removed from their current educational
placement for not more than 10 consecutive school days without
educational services, the 10 day in a school year window before the
educational services and behavioral assessment plan are triggered is a
reasonable interpretation of the statute. This interpretation gives
school officials reasonable flexibility for dealing with minor
infractions of school rules by children with disabilities, yet ensures
that children with disabilities are not cut off from educational
services and that their behavior is appropriately addressed.
    In order to clarify the ability of school personnel to temporarily
remove a child from the current educational placement when necessary to
ensure the safety of other children or to prevent disruption of the
learning environment, the concept of ``change of placement'' that was
referred to in Note 1 to this section in the NPRM should be
incorporated into the regulations. The Department has long interpreted
the IDEA to permit schools to remove a child with a disability from his
or her current placement when necessary, even though the child had
previously been removed earlier that school year, as long as the
removal does not constitute a ``change of placement.''
    The ``change of placement'' description will also make clear that
the new statutory language at section 612(k)(1)(A) of the Act regarding
the authority of school personnel to remove children with disabilities
for not more than 10 school days, to the same extent as nondisabled
children, does not permit using repeated disciplinary removals of 10
school days or less as a means of avoiding the normal change of
placement protections under Part B. Whether a pattern of removals
constitutes a ``change of placement'' would be determined on a case by
case basis by the public agency and subject to review through due
process and judicial proceedings. The regulation concerning change of
placement would only apply to removals for disciplinary reasons.
    If a child who is being removed from his or her current educational
placement has already been the subject of a special IEP team meeting to
develop a behavioral intervention plan or review its implementation,
the IEP team should not have to meet to review that plan as long as the
team members individually review the plan, unless one or more of the
team members believe that the plan needs to be modified. In this way,
the IEP team will be monitoring the implementation of the behavioral
intervention strategies in the IEP or behavioral intervention plan but
would not have to repeatedly reconvene each time removals from the
child's current placement are carried out.
    In light of the comments received and the reasons previously
discussed, proposed Note 2 would be deleted.
    Comments concerning the timing of manifestation determinations, and
changes made in response to those

[[Page 12619]]

comments are addressed in this attachment under Sec. 300.523.
    Change: A new section Sec. 300.519 has been added regarding change
of placement in the context of removals under Secs. 300.520-300.529,
reflecting concepts from proposed note 1. Section 300.520(a)(1) has
been revised to clarify that more than one suspension each of which may
be for up to 10 school days would be permitted in a school year, as
long as repeated suspensions do not constitute a change of placement,
and the removals are consistent with treatment of similarly situated
children without disabilities. Paragraph (a)(1) of this section also
has been revised to clarify the need to provide services when a child
with a disability has been removed for more than 10 school days in a
school year. Section 300.520(b) has been revised to require, when a
child is first removed for more than 10 school days in a school year
and for subsequent removals that constitute a change in placement, an
IEP team meeting to develop a functional behavioral assessment plan and
a subsequent behavioral intervention plan or to review an existing
behavioral intervention plan and its implementation. Section 300.520(c)
has been revised to specify that if the child is subsequently removed
and that removal is not a change in placement, the IEP team does not
have to meet to review the behavioral intervention plan unless one or
more team members believes that modifications are needed to the plan or
the plan's implementation. Proposed Notes 1 and 2 have been deleted.
    Comment: A number of commenters had suggestions for clarifications
of the terms used in paragraph (a). Some wanted the regulations to
specify whether days of suspension includes days of in-school
suspension, bus suspensions, or portions of a school day. Others asked
whether an in-school suspension would be considered a part of the days
of suspension if the student continued to receive the academic
instruction called for in the student's IEP during that period. Others
suggested that the term ``suspension'' be revised to specify that
school personnel can order a short term suspension of 10 or fewer
consecutive school days or cumulative days which may exceed 10 school
days in a school year but do not constitute a change in placement.
    Discussion: An in-school suspension would not be considered a part
of the days of suspension addressed in paragraph (a) of this section as
long as the child is afforded the opportunity to continue to
appropriately progress in the general curriculum, continue to receive
the services specified on his or her IEP and continue to participate
with nondisabled children to the extent they would have in their
current placement. Portions of a school day that a child had been
suspended would be included in determining whether the child had been
removed for more than 10 cumulative school days or subjected to a
change of placement under Sec. 300.519.
    Whether a bus suspension would count as a day of suspension would
depend on whether the bus transportation is a part of the child's IEP.
If the bus transportation is a part of the child's IEP, a bus
suspension would be treated as a suspension under Sec. 300.520 unless
the public agency provides the bus service in some other way, because
that transportation is necessary for the child to obtain access to the
location where all other services will be delivered. If the bus
transportation is not a part of the child's IEP, a bus suspension would
not be a suspension under Sec. 300.520. In those cases, the child and
his or her parents would have the same obligations to get to and from
school as a nondisabled child who had been suspended from the bus.
However, public agencies should attend to whether the behavior on the
bus is similar to behavior in a classroom that is addressed in an IEP
and whether bus behavior should be addressed in the IEP or behavioral
intervention plan for the child.
    It is important that both school personnel and parents understand
that school personnel may remove a child with a disability from his or
her current placement for not more than 10 school days at a single
time, but that there is no specific limit on the number of days in a
school year that a child may be removed. (See, discussion of
Sec. 300.121 regarding when services must be provided.) However, school
authorities may not remove a child with disabilities from the child's
current educational placement if that removal constitutes a change of
placement under Sec. 300.519, unless they are specifically authorized
to do so under Sec. 300.520(a)(2) (school personnel unilateral removal
for weapons and drug offenses) or unless the parents of the child do
not object to a longer removal or the behavior is determined to not be
a manifestation of the child's disability. If a removal does constitute
a change of placement under Sec. 300.519 that is not permitted under
Sec. 300.520(a)(2), school personnel must follow appropriate change of
placement procedures, including prior parent notice, and the right of
the parent to invoke the ``stay-put'' rule of Sec. 300.513.
    Change: Paragraph (a)(1) of this section is revised to specify that
school personnel may order removals of a child with a disability from
the child's current placement for not more than 10 consecutive school
days so long as the removal does not constitute a change in placement
under Sec. 300.519.
    Comment: A number of commenters were concerned that the term
``carries'' in paragraph (a)(2)(i) is too narrow and wanted the
regulation to also cover the child who was in possession of a weapon at
school, including instances when the child obtained the weapon at
school. Others thought that paragraph (a)(2)(i) should apply to
situations when a child knowingly carries a weapon to school, similar
to the standard in paragraph (a)(2)(ii) regarding knowing possession or
use of illegal drugs.
    Discussion: The statutory language ``carries a weapon to school or
to a school function'' is ambiguous as to whether it includes instances
in which a child acquires a weapon while at school. In light of the
clear intent of Congress in the Act to expand the authority of school
personnel to immediately address weapons offenses at school, the
Department's opinion is that this language also covers instances in
which the child is found to have a weapon at school that he or she
obtained while at school.
    Change: None.
    Comment: A number of commenters asked for more clarification about
the various provisions regarding removals from a child's current
placement, suspensions of 10 days or less, 45-day placements, and, for
children whose behavior is determined not a manifestation of their
disability, other disciplinary measures, including the possibility of
expulsion, related to one another. For example, some commenters asked
for specificity about whether a child could be subject to a
disciplinary suspension, including the 45-day interim alternative
educational setting placements more than once in a school year.
    Some commenters asked whether the behavior assessment plan and
manifestation determination need to be done within the first 10 days of
a 45-day placement. Some asked whether schools can keep children with
disabilities in the 45-day placement even if the behavior is determined
to be a manifestation of the child's disability, or even if program
adjustments in the child's ``current placement'' are agreed on before
the expiration of the 45-day placement.
    Commenters also asked how the 45-day placement rules should be
applied when the behavior leading to the removal occurs in the last few
days of the school year. A few asked how 45-

[[Page 12620]]

day placements differ from any other removal for more than 10 days or
whether 45-day placements should merely be considered exceptions to the
``stay put'' provision. Others also inquired about the total number of
days that a child with disabilities could be suspended in a year.
    Others asked for clarity about whether school districts could
suspend beyond the 10 day and 45 day periods mentioned in this section
and whether children with disabilities could ever be expelled. Some
commenters asked that the regulations emphasize the optional nature of
the ability to use the 45-day placement and encourage the return of
children with disabilities to their regular educational placement at
the earliest appropriate time.
    Discussion: If parents and school personnel agree about a proposed
change of placement for disciplinary reasons, the rules concerning the
amount of time that a child with a disability may be removed from his
or her educational placement in Secs. 300.520 and 300.521 do not have
to be used. However, services must be provided consistent with the
requirements of Sec. 300.121(a).
    These regulations do not prohibit a child with a disability from
being subjected to a disciplinary suspension, including more than one
placement in a 45-day interim alternative educational setting in any
given school year, if that is necessary in an individual case (e.g., a
child might be placed in an alternative setting for up to 45 days for
bringing a weapon to school in the fall and for up to 45 days for using
illegal drugs at school in the spring).
    If a child engages in one of the behaviors identified in
Sec. 300.520(a)(2) (carrying a weapon to school or a school function or
knowing possession or use of illegal drugs or selling or soliciting the
sale of a controlled substance at school or a school function), the
school may first remove the child for up to 10 consecutive school days
(providing services as necessary under Sec. 300.121(d)) while convening
the IEP team to determine the interim alternative educational setting
under Sec. 300.522. At the end of that 10 day period, or earlier, if
feasible, the child would be placed into the interim alternative
educational setting for up to 45 days.
    The placements contemplated under Secs. 300.520(a)(2) and 300.521
(removal by hearing officer based on determination of substantial
likelihood of injury in current placement) are specific exceptions to
the obligation to maintain the child in the child's current placement
if the parent disagrees with a proposed change of placement and
therefore, may continue even if the child's behavior is determined to
be a manifestation of the child's disability. The purpose of
Secs. 300.520(a)(2) and 300.521 placements is to enable school
personnel to ensure learning environments that are safe and conducive
to learning for all and to give those officials and parents the
opportunity to determine what is the appropriate placement for the
child.
    Interim alternative educational settings under Sec. 300.520(a)(2)
are limited to 45 calendar days, unless extended under Sec. 300.526(c)
for a child who would be dangerous to return to the child's placement
before the removal. The fact that school is in recess during a portion
of the 45 days does not ``stop the clock'' on the 45 days during the
school recess.
    There is no specific limit on the total number of days during a
school year that a child with disabilities can be suspended. In
addition, as explained in more detail in the discussion under
Sec. 300.524, if a child's behavior is determined not to be a
manifestation of the child's disability, the child may be disciplined
in the same manner as nondisabled children, including suspension and
expulsion, except that FAPE, consistent with Sec. 300.121(d), must be
provided.
    The 45-day interim alternative educational settings are not
mandatory. If the parents agree with school officials to a change in
the child's placement there is no need to use a 45-day interim
alternative educational setting. In some instances school officials or
hearing officers may determine that a shorter period of removal is
appropriate and that a child can be returned to his or her current
educational placement at an earlier time.
    Change: None.
    Comment: A number of commenters asked for guidance regarding the
terms in paragraph (b) regarding functional behavioral assessment, and
behavioral intervention plan. Some asked that functional behavioral
assessment should not be construed to be overly prescriptive. These
commenters believed that behavioral assessments should be flexible so
that the team can consider the various situational, environmental and
behavioral circumstances involved.
    Some commenters proposed that a functional behavioral assessment be
defined as a process which searches for an explanation of the purpose
behind a problem behavior, and that behavior intervention plan be
defined as IEP provisions which develop, change, or maintain selected
behaviors through the systematic application of behavior change
techniques. Some commenters suggested that positive behavioral
interventions and strategies should include strategies and services
designed to assist the child in reaching behavioral goals which will
enhance the child's learning and, as appropriate, the learning of
others. Some asked whether a functional behavior assessment is an
evaluation requiring parent consent before it is done. Others asked
whether a behavioral assessment could be a review of existing data that
can be completed at that IEP meeting. Some asked whether a behavioral
intervention plan needed to be a component of a child's IEP, and the
relationship of this to the positive behavioral interventions mentioned
in the IEP sections of the regulations.
    Discussion: In the interests of regulating only when necessary, no
change is made regarding what constitutes a functional behavioral
assessment, or a behavioral intervention plan. IEP teams need to be
able to address the various situational, environmental and behavioral
circumstances raised in individual cases. A functional behavioral
assessment may be an evaluation requiring parent consent if it meets
the standard identified in Sec. 300.505(a)(3). In other cases, it may
be a review of existing data that can be completed at the IEP meeting
called to develop the assessment plan under paragraph (b)(1) of this
section. If under Sec. 300.346 (a) and (c), IEP teams are proactively
addressing a child's behavior that impedes the child's learning or that
of others in the development of IEPs, those strategies, including
positive behavioral interventions, strategies and supports in the
child's IEP will constitute the behavioral intervention plan that the
IEP team reviews under paragraph (b)(2) of this section.
    Change: None.
    Comment: Some commenters stated that paragraph (b)(1) should not
require the development of appropriate behavioral interventions within
10 days of removing a child from the current placement as it is
operationally unworkable. Some commenters asked that the regulations
also require that the IEP team determine whether an existing behavior
plan has been fully implemented, and if not, take steps to ensure its
implementation without delay. Other commenters stated that the term
suspension'' in paragraph (b)(1) should be replaced with ``removal.''
    Discussion: Paragraph (b)(1) in the NPRM was not intended to
require the development of appropriate behavioral interventions within
10 days of

[[Page 12621]]

removing a child from the current placement. Instead, it was intended
to require that the LEA implement the assessment plan and ensure that
the IEP team, after that assessment, develops appropriate behavioral
interventions to address the child's behavior and implements those
interventions as quickly as possible. Because it is unlikely that these
steps could occur at the same time, a change should be made to the
regulations to clarify that the LEA convene an IEP meeting, within 10
business days of removing the child, to develop an assessment plan,
and, as soon as practicable on completion of that plan, to develop
appropriate behavioral interventions to address that behavior. This
section also would be revised to clarify when the IEP team would have
to meet in instances in which there is an existing behavioral
intervention plan. The commenters are correct that the term ``removal''
should be used in paragraph (b)(1) rather than ``suspension'' because
it applies to all disciplinary actions under Sec. 300.520(a).
    Change: Paragraph (b) has been amended by replacing ``suspension''
with ``removal'' and to specify that the LEA convene an IEP meeting to
develop an assessment plan, and as soon as practicable on completion of
that plan, to develop appropriate behavioral interventions to address
that behavior.
    Comment: Some commenters asked that the regulations permit school
personnel, under Sec. 300.520(a)(2), and hearing officers, under
Sec. 300.521, to remove for up to 45 school days as opposed to calendar
days. Other commenters asked that the regulations use the term
``calendar days'' for all timelines in this section.
    Some commenters asked that the regulations permit school personnel
to remove to a 45-day interim alternative educational setting for an
assault. Other commenters asked that the 45-day limitation not apply to
behavior that is determined to be not a manifestation of the child's
disability.
    Discussion: As explained in detail in the discussion concerning the
regulatory definition of ``day,'' the statute uses the term ``school
day'' when that is intended. It also would be inappropriate to use
``calendar days'' for all timelines in this section as the statute uses
the term ``10 school days'' when that is intended.
    The statute does not authorize school personnel to remove children
with disabilities to an interim alternative educational setting for 45
days in cases of an assault. However, under Sec. 300.521, a public
agency may ask a hearing officer to order a child removed to an interim
alternative educational setting for not more than 45 days if
maintaining the child in the current placement is substantially likely
to result in injury to the child or to others.
    In addition, if necessary, school officials can seek appropriate
injunctive relief to move a child. The placements under
Secs. 300.520(a)(2) and 300.521 apply whether the behavior is or is not
a manifestation of the child's disability under Sec. 300.523. If the
behavior is determined not to be a manifestation of the child's
disability, the child may be subjected to the same disciplinary action
as a nondisabled child (which could be a removal for more than 45 days)
except that services must be provided consistent with Sec. 300.121(d).
    Change: None.
    Comment: Some commenters asked that paragraph (d) of the
regulations provide the complete definition of ``dangerous weapon'' and
``controlled substance.''
    Discussion: It is not advisable to provide the complete statutory
definitions of ``dangerous weapon'' and ``controlled substance'' in the
text of the regulations as the statute ties these definitions to the
content of other Federal law. If, for example, the Controlled
Substances Act were to be amended to change the definition of
``controlled substance'' in section 202(c) of that Act, the Part B
regulatory definition also would need conforming amendments. In
addition, the definition of ``controlled substance'' in section 202(c)
of the Controlled Substances Act is extensive and extremely detailed.
The Department will make this information widely available through a
variety of other means.
    Change: None.

Authority of Hearing Officer (Sec. 300.521)

    Comment: Several commenters stated that the hearing officer under
this section, in order to deal with dangerous situations, must be able
to immediately remove a child without the requirement of convening a
hearing. A number of these commenters believed that the hearing officer
under this section should be able to make a determination based on a
review of available information presented by the LEA, much like an LEA
requesting a temporary restraining order from a court. Other commenters
asked that the regulations specify that the hearing officer must be
impartial and qualified to assess the child's disability and the
circumstances surrounding the removal.
    Several commenters asked that the regulations explain that a school
district has the right to seek injunctive relief, such as a temporary
restraining order, when a student is a danger to self or others.
    Discussion: The statute provides that the hearing officer must be
able to determine that a public agency has demonstrated by substantial
evidence, which is defined as beyond a preponderance of the evidence,
that maintaining the child in the current placement is substantially
likely to result in injury to the child or others. This evidentiary
standard requires that the hearing officer weigh the evidence received
from both parties, rather than just information presented by the public
agency. Public agencies continue to have the right to seek injunctive
relief from a court when they believe they have the need to do so.
Hearing officers in expedited due process hearings must meet the same
standards of impartiality and knowledgeability as other hearing
officers under the Act.
    Change: None.
    Comment: Several commenters asked that paragraph (a) of this
section be revised to specify that the injury to the child or others
must be more than a minor injury. Others asked that the regulations not
require that the child would be an imminent threat to the safety or
health of other members of the school community before the child could
be removed.
    Several commenters requested that paragraph (c) be revised to
require the hearing officer to determine, rather than consider, whether
the public agency has made reasonable efforts to minimize the risk of
harm in the child's current placement. Other commenters asked that the
regulations specify that if the hearing officer finds that the current
placement is inappropriate, the hearing officer shall order that the
current placement be made appropriate rather than ordering an interim
alternative educational setting. Further, if the hearing officer finds
that the public agency has not made reasonable efforts to minimize the
risk of harm in the child's current placement, they urged, the hearing
officer must order the public agency to make the reasonable efforts to
minimize the risk of harm rather than ordering placement in an interim
alternative educational setting.
    Discussion: No changes will be made to the regulations regarding
the amount of injury that would be substantially likely to result if
the child is not removed. In addition, no changes will be made
regarding a hearing officer's decision making. In fashioning
appropriate relief, hearing officers will exercise their judgement in
the context of all the factors involved in an individual case.
    Change: None.

[[Page 12622]]

    Comment: A number of commenters requested clarification of the term
``beyond a preponderance of the evidence.'' Others asked that the term
be revised as the ``the preponderance of the evidence'' as that is the
highest evidence standard in civil litigation.
    Discussion: The phrase ``beyond a preponderance of the evidence''
is statutory.
    Change: None.

Determination of Setting (Sec. 300.522)

    Comment: A number of commenters asked that the regulations clarify
the relationship between the authority of school personnel in
Sec. 300.520(a)(1) to order the removal of a child with a disability
for not more than 10 school days, and the requirement in Sec. 300.522
that the alternative educational setting be determined by the IEP team.
These commenters noted that the school personnel need the authority to
remove under Sec. 300.520(a)(1) without input from the IEP team.
    A number of commenters requested clarification on when the IEP team
must make the determination of setting and where the child would be
while that determination was being made, particularly for children with
disabilities who already had been removed from their regular placement
for 10 days during that school year. Some of these commenters noted
that when a child is removed under Secs. 300.520(a)(2) or 300.521 the
alternative setting needs to be immediately available.
    Some commenters question where the child would be while the hearing
under Sec. 300.521 is being held, noting that Sec. 300.521(d) requires
the hearing officer's determination include deciding whether the
interim alternative educational setting meets the standards of
Sec. 300.522, and wondering when the I