[Federal Register: October 22, 1997 (Volume 62, Number 204)]
[Proposed Rules]
[Page 55025-55075]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc97-21]
[[Page 55025]]
_______________________________________________________________________
Part V
Department of Education
_______________________________________________________________________
34 CFR Parts 300, 301, and 303
Assistance to States for the Education of Children With Disabilities,
Preschool Grants for Children With Disabilities, and Early Intervention
Program for Infants and Toddlers With Disabilities; Proposed Rule
[[Page 55026]]
DEPARTMENT OF EDUCATION
34 CFR Parts 300, 301 and 303
RIN 1820-AB40
Assistance to States for the Education of Children With
Disabilities, Preschool Grants for Children With Disabilities, and
Early Intervention Program for Infants and Toddlers With Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Secretary proposes to amend the regulations governing the
Assistance to States for Education of Children with Disabilities
program, the Preschool Grants for Children with Disabilities program,
and the Early Intervention Program for Infants and Toddlers with
Disabilities. These amendments are needed to implement changes recently
enacted by the Individuals with Disabilities Education Act Amendments
of 1997.
DATES: Comments must be received by the Department on or before January
20, 1998.
The Department plans to hold public meetings in conjunction with
this NPRM. The dates and times of the meetings are in the section
titled Public Meetings under Invitation to Comment elsewhere in this
preamble.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to Thomas Irvin, Office of Special Education and
Rehabilitative Services, U.S. Department of Education, Room 3090, Mary
E. Switzer Building, 330 C Street., SW., Washington, DC 20202. Comments
may also be sent through the Internet to: comment@ed.gov
You must include the term ``Assistance for Education'' in the
subject line of your electronic message.
Comments that concern information collection requirements must be
sent to the Office of Management and Budget at the address listed in
the Paperwork Reduction Act section of this preamble. A copy of those
comments may also be sent to the Department representative named in the
ADDRESSES section.
The Department plans to hold public meetings in conjunction with
this NPRM. The locations of the meetings are in the section titled
Public Meetings under Invitation to Comment elsewhere in this preamble.
FOR FURTHER INFORMATION CONTACT: Thomas Irvin (202) 205-8969 or JoLeta
Reynolds (202) 205-5507. Individuals who use a telecommunications
device for the deaf (TDD) may call (202) 205-5465.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to Katie Mimcy, Director of the Alternate Formats
Center. Telephone: (202) 205-8113.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
Interested persons are invited to submit comments and
recommendations regarding these proposed regulations. To ensure that
public comments have maximum effect in developing the final
regulations, the Department urges commenters to identify clearly the
specific section or sections of the proposed regulations that each
comment addresses and to arrange comments in the same order as the
proposed regulations.
All comments submitted in response to these proposed regulations
will be available for public inspection, during and after the comment
period, in Room 3090, Mary E. Switzer Building, 300 C St., SW.,
Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern
time, Monday through Friday of each week except Federal holidays.
On request the Department supplies an appropriate aid, such as a
reader or print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking docket for these proposed regulations. An individual with a
disability who wants to schedule an appointment for this type of aid
may call (202) 205-8113 or (202) 260-9895. An individual who uses a TDD
may call the Federal Information Relay Service at 1-800-877-8339,
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
To assist the Department in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden, the Secretary invites comments on whether
there may be further opportunities to reduce any regulatory burdens
found in these proposed regulations.
Public Meetings
In a notice published in the Federal Register on September 17, 1997
(62 FR 48923-48925), the Department announced public meetings to obtain
public comment on the statutory requirements of the IDEA Amendments of
1997. The Department will use those public meeting dates and times for
public comment on this NPRM. Individuals who wish to make a statement
at any of the meetings are encouraged to do so. Time allotted for each
individual to testify will be limited and will depend on the number of
speakers wishing to testify at each session. It is likely that each
participant choosing to comment will be limited to four minutes.
Persons interested in making oral public comment will be able to sign-
up to make a statement on the day of the meeting at the Department's
public meeting on-site registration desk on a first-come-first served
basis. If no time slots remain, then the Department will reserve a
limited amount of additional time at the end of each hearing to
accommodate those individuals. (Every effort will be made to have ample
time to hear all individuals who wish to make a statement.) For
individuals who want to speak at the public meeting, registration will
begin at 1:00 p.m., in all cities except Washington, DC where it will
begin at 12:00 Noon, in each hotel or public building at the
registration table outside the room where the public meeting will be
held. The dates, times, and locations of the meetings are as follows:
October 23, 1997--2:00 p.m.-7:00 p.m.
Region I--Logan Ramada Hotel, 75 Service Road, Logan International
Airport, Boston, MA 02128
October 27, 1997--2:00 p.m.-7:00 p.m.
Region IV--Radisson Hotel Atlanta, 165 Courtland and International
Blvd., Atlanta, GA 30303
October 28, 1997--2:00 p.m.-7:00 p.m.
Region VI--Radisson Hotel Dallas, 1893 West Mockingbird Lane, Dallas,
TX 75235
November 4, 1997--1:00 p.m.-5:00 p.m.
Department of Education, Government Service Administration (GSA), 7th
and D Streets, S.W. (Auditorium), Washington, D.C. 20407
November 18, 1997--2:00 p.m.-7:00 p.m.
Region VIII--Four Points, 3535 Quebec Street, Denver, CO 80207
November 21, 1997--2:00 p.m.-7:00 p.m.
Region IX--Holiday Inn Select/Chinatown, 750 Kearny Street, San
Francisco, CA 94108
November 24, 1997--2:00 p.m.-7:00 p.m.
Region V--Sheraton North Shore, 933 Skokie Boulevard, Northbrook, IL
60062
[[Page 55027]]
The meeting sites are accessible to individuals with disabilities.
An individual with a disability who will need an auxiliary aid or
service to participate in the meeting (e.g., interpreting service,
assistive listening device, or materials in an alternate format) should
consult the notice mentioned in this document for the person to contact
at least two weeks before the scheduled meeting date to ensure that
accommodations requested will be available. Although the Department
will attempt to meet a request received after that date, the requested
accommodation may not be available because of insufficient time to
arrange it.
Background
On June 4, 1997, the Individuals with Disabilities Education Act
(IDEA) Amendments of 1997 were enacted into law as Pub. L. 105-17.
The statute passed by Congress and signed by the President
reauthorizes and makes significant changes to IDEA to better accomplish
the following purposes: (1) Ensure that all children with disabilities
have available a free appropriate public education that emphasizes
special education and related services designed to meet their unique
needs and prepare them for employment and independent living; (2)
ensure that the rights of children with disabilities and parents of
those children are protected; (3) assist States, localities,
educational service agencies, and Federal agencies to provide for the
education of all children with disabilities; (4) assist States in the
implementation of a statewide, comprehensive, coordinated,
multidisciplinary, interagency system of early intervention services
for infants and toddlers with disabilities and their families; (5)
ensure that educators and parents have the necessary tools to improve
educational results for children with disabilities by supporting
systemic-change activities; coordinated research and personnel
preparation; coordinated technical assistance, dissemination, and
support; and technology development and media services; and (6) assess,
and ensure the effectiveness of, efforts to educate children with
disabilities.
On June 27, 1997, the Secretary published a notice in the Federal
Register requesting from the public advice and recommendations on
regulatory issues under the IDEA Amendments of 1997. As of the end of
August, 1997, 334 comments were received in response to the Notice,
including letters from parents and public and private agency personnel,
and from parent-advocate and professional organizations. The comments
addressed each major provision of the IDEA Amendments of 1997 (such as
the new funding provisions, discipline procedures, provisions relating
to evaluation of children, individualized education programs,
participation of private school children with disabilities, methods of
ensuring services from noneducational agencies, and changes in the
procedural safeguards). All of these comments were reviewed and
considered in developing this Notice of Proposed Rulemaking. The
Secretary appreciates the thoughtful attention of the commenters in
responding to the June 27th notice.
Proposed Regulatory Changes
The IDEA Amendments of 1997 significantly updated the Assistance to
States program under Part B of the Act, as in effect before June 4,
1997. The changes made by those Amendments call for corresponding
updates to virtually all of the current regulations under this part, as
well as new regulatory provisions to incorporate new statutory
requirements such as those relating to performance goals and
indicators, procedural safeguards notice, mediation, and discipline.
In addition to incorporating new requirements from the Act, some
new provisions and notes are proposed to assist in clarifying the new
statutory requirements, or providing guidance with respect to
implementing those requirements. Finally, some changes are needed to
incorporate longstanding interpretations of the Act that have been
addressed in nonregulatory guidance in the past, or to ensure a more
meaningful implementation of the Act and its regulations for children
with disabilities, parents and public agencies.
To accommodate the reader in understanding these proposed changes,
the Secretary has elected to publish the full text of the regulations,
as they would be when amended, rather than simply publish an amendatory
document that shows only the changes proposed to current regulations.
Although this approach increases the length of this NPRM, it provides a
more meaningful way for parents, agency officials, and the general
public to review the changes within the context of the existing
regulations.
The following summary of the proposed regulatory changes describes
how the Secretary would incorporate the statutory changes of the IDEA
Amendments of 1997 into the applicable subparts of the Department's
regulations for the Assistance to States program (34 CFR part 300) and
Preschool Grants program (34 CFR part 301) for children with
disabilities, along with conforming changes to the Early Intervention
program for Infants and Toddlers with Disabilities (34 part 303). The
Department plans to publish additional technical amendments to Part 303
at a later date. Those amendments will revise the Part 303 regulations
consistent with the changes made by the IDEA Amendments of 1997. This
summary identifies changes that are statutory and describes any
regulations that the Secretary is proposing in this NPRM to implement
these statutory provisions.
Commenters are requested to direct their comments to issues that
can be changed through regulation and not to statutory requirements.
Commenters also are reminded that, under section 607(b) of the IDEA,
the Secretary is not authorized to make regulatory changes to lessen
the protections for children with disabilities in the IDEA regulations
that were in effect on July 20, 1983, absent statutory changes
indicating a Congressional intent to lessen those protections.
Throughout this preamble, issues that the Secretary is proposing to
regulate on are introduced by phrases such as, ``The Secretary proposes
* * *'' or ``In this proposed section, the Secretary proposes * * *''.
Commenters are asked to focus their comments on these parts of the
proposed regulation.
Appendix C to the current regulations (Interpretation of IEP
program requirements) would be updated and revised consistent with the
changes made by the IDEA Amendments of 1997 and these proposed
regulations. Revised Appendix C is presented as Appendix C to this
NPRM.
To aid readers in referring between this NPRM and current
regulations, a distribution table for the part 300 regulations is
presented in Appendix D to these proposed regulations. That table
identifies each current regulatory section and the comparable proposed
regulatory section, if any.
These proposed regulations would implement the new statutory
changes relating to the three formula grant programs in the IDEA: (1)
the Assistance to States for the Education of Children with
Disabilities Program under Part B of the Act (34 CFR part 300); (2) the
Preschool Grants Program under section 619 of the Act (34 CFR part
301); and (3) the Early Intervention Program for Infants and Toddlers
with Disabilities under Part H of the Act (to be renamed part C on July
1, 1998) (34 CFR part 303).
[[Page 55028]]
1. Part 300--Assistance to States for the Education of Children
With Disabilities
The new statutory amendments to the IDEA, while retaining (and
strengthening) the basic rights and protections included in the Act
since 1975, also have redirected the focus of the law as in effect
before June 4, 1997, to heighten attention to improving results for
children with disabilities. This shift in focus was necessary in order
to make needed improvements in the Part B program, based on 20 years of
experience and research in the education of children with disabilities.
The amendments to the Part B program were the result of over three
years of intensive work by stakeholders from all realms of life and at
all governmental levels, who have a vested interest in the education of
children with disabilities.
Background and Need for Improvements
Before enactment of the 1975 amendments to the IDEA (then known as
the Education of the Handicapped Act (EHA)), approximately one million
children with disabilities were excluded entirely from the public
education system, and more than half of all children with disabilities
in the United States did not receive appropriate educational services
that would enable them to enjoy full equality of opportunity. The 1975
amendments to the EHA--the Education for All Handicapped Children Act
(Pub. L. 94-142)--directly addressed the problems that existed at that
time by establishing the right to education for all children with
disabilities.
As a result of the Pub. L. 94-142 Amendments to the IDEA,
significant progress has been made in addressing the problems that
existed in 1975. Today, every State in the nation has laws in effect
ensuring the provision of a free appropriate public education (FAPE) to
all children with disabilities. The number of young adults with
disabilities enrolled in post-secondary education has tripled, and the
unemployment rate for individuals with disabilities in their twenties
is almost half that of their older counterparts.
Despite the progress that has been made since 1975, the promise of
the law has not been fulfilled for many children covered by the Act.
Too many students with disabilities are failing courses and dropping
out of school. Almost twice as many students with disabilities drop out
as compared to students without disabilities. And, when students with
disabilities drop out of school, they are less likely to ever return to
school and are more likely to be unemployed or have problems with the
law. Further, almost half of the students with disabilities do not
participate in statewide assessments, and, therefore, schools are not
held accountable for results. Students from minority backgrounds
continue to be placed disproportionately in separate special education
settings.
Over 20 years of experience and research in implementing Part B of
the IDEA has demonstrated that the education of children with
disabilities can be made more effective by--
(1) Having high expectations of these children and ensuring their
access to the general curriculum to the maximum extent possible;
(2) Strengthening the role of parents and fostering partnerships
between parents and schools;
(3) Aligning the Part B program with State and local improvement
efforts so that students with disabilities can benefit from them;
(4) Providing incentives for whole-school approaches and pre-
referral intervention to reduce the need to label children as disabled
in order to address their learning needs;
(5) Focusing resources on teaching and learning, while reducing
paperwork and requirements that do not assist in improving educational
results; and
(6) Supporting high-quality, intensive professional development for
all personnel who work with disabled children to ensure that they have
the skills and knowledge necessary to effectively assist these children
to be prepared for employment and independent living.
The IDEA Amendments of 1997 are designed to make improvements in
the Part B program that address many of the factors based on experience
and research that are identified in the preceding paragraphs. A
description of some of these improvements is included in the following
paragraphs, together with an identification of where the statutory
provisions have been incorporated into these proposed regulations:
Improving Results for Children With Disabilities
The focus of the changes in the new amendments is directed at
improving results for children with disabilities--by promoting early
identification and early provision of services, and ensuring the access
of these children to the general curriculum and general educational
reforms. The amendments include a number of provisions to address this
goal.
A. Early Identification and Provision of Services
The Early Intervention Program for Infants and Toddlers with
disabilities and the Preschool Grants program have demonstrated the
importance of early intervention. Children who receive services at an
early age are often better able to learn once they reach school age. In
addition, research on school-aged children who are experiencing
significant reading or behavior problems has shown that the common
practice of waiting until the third or fourth grade to refer those
children to special education only increases these problems.
Appropriate interventions need to happen as early as possible in a
child's life, when it is clear that the child needs help, and at a
time, developmentally, when the child could profit most from receiving
services.
The IDEA Amendments of 1997 include provisions that encourage
States to reach out to young children who are experiencing learning
problems, and allow States and local school districts to utilize
``developmental delay'' eligibility criteria as an alternative to
specific disability categories through age 9. Implemented properly,
this provision will allow children to receive earlier and more
appropriate interventions.
The amendments also allow for more flexible use of IDEA-funded
staff who work in general education classrooms or other education-
related settings so that they can work with both children who have
disabilities and others who may need their help. These provisions are
included in Secs. 300.7 and 300.235 of this NPRM.
B. IEPs That Focus on Improving Results Through the General Curriculum
The new amendments enhance the participation of disabled children
in the general curriculum through improvements to the IEP by--(1)
Relating a child's education to what nondisabled children are
receiving; (2) providing for the participation of regular education
teachers in developing, reviewing, and revising the IEP; and (3)
requiring that the IEP team consider the specific needs of each child,
as appropriate, such as the need for behavior interventions and
assistive technology. These provisions are included in Secs. 300.344,
and 300.346-300.347 of these proposed regulations.
C. Education With Nondisabled Children
Research data show that for most students with disabilities
integration into general education programs with nondisabled children
is often associated
[[Page 55029]]
with improved results, higher levels of employment and independent
living. The data also show that if disabled students are simply placed
in general education classrooms without necessary supports and
modifications they are more likely to drop out of school than their
nondisabled peers. The new amendments address this issue by requiring
that the IEP include: (1) An explanation of the extent, if any, to
which the child will not participate with nondisabled children in the
regular class; and (2) a statement of the specific special education
and related services and supplementary aids and services to be provided
to the child or on behalf of the child, and a statement of program
modifications or supports for school personnel that will be provided
for the child. These provisions are incorporated in Sec. 300.347 of
these proposed regulations.
D. Higher Expectations for Disabled Students and Agency Accountability
A critical element in improving educational results for disabled
children is promoting high expectations for them commensurate with
their particular needs, and ensuring meaningful and effective access to
the general curriculum. Data and experience show that when schools have
high expectations for these children, ensure their access to the
general curriculum, whenever appropriate, and provide them the
necessary supports and accommodations, many can achieve to higher
standards, and all can achieve more than society has historically
expected.
Despite the current knowledge base in this regard, the education
system often fails to promote such high expectations or to establish
meaningful education goals, and about half of all disabled children are
excluded from State and district-wide assessments.
The new amendments specifically address these concerns by requiring
(1) the development of State performance goals for children with
disabilities that must address certain key indicators of the success of
educational efforts for these children--including, at a minimum,
performance on assessments, dropout rates, and graduation rates, and
regular reports to the public on progress toward meeting the goals; (2)
that children with disabilities be included in general State and
district-wide assessments, with appropriate accommodations, if
necessary, and (3) that schools report to parents on the progress of
their disabled child as often as such reports are provided to parents
of nondisabled children. These provisions are included in
Secs. 300.137-300.138 and 300.347 of the proposed regulations.
The IDEA Amendments of 1997 also contemplate that State performance
goals and indicators will have a crucial role in determining personnel
training and development needs, and offer additional funding, through
the State Improvement Program authorized under Part D of the Act, to
help States meet their goals for children with disabilities. These
provisions are addressed in Secs. 300.380-300.382. Additionally, States
are encouraged to offer funding to school districts to foster capacity
building and systemic improvement activities, as addressed in proposed
Secs. 300.622-300.624. School districts are also authorized to
establish school-based improvement programs, as described in
Secs. 300.234 and 300.245-300.250.
E. Strengthening the Role of Parents and Fostering Partnerships Between
Parents and Schools
In order to achieve better results for children with disabilities,
it is critical to strengthen the role of parents, and to provide a
means for parents and school staff to work together in a constructive
manner. The IDEA Amendments of 1997 include several provisions aimed at
promoting the involvement of parents, including providing that they:
(1) Have an opportunity to participate in meetings with respect to the
identification, evaluation, or educational placement of their child or
the provision of FAPE to the child; (2) are included in any group that
makes decisions on the educational placement of their child; and (3)
receive regular reports on their child's progress (by such means as
report cards) as often as reports are provided to parents of
nondisabled children.
The amendments also require that, at a minimum, parents be offered
mediation as a voluntary option whenever a hearing is requested to
resolve a dispute between the parents and the agency about any matters
specified in the preceding paragraph. These provisions are included in
Secs. 300.347, 300.501, and 300.506 of this NPRM.
F. Reducing Unnecessary Paperwork and Other Burdens
The IDEA Amendments of 1997 include several provisions that reduce
unnecessary paperwork, and direct resources to teaching and learning.
For example, the amendments permit initial evaluations and
reevaluations to be based on existing evaluation data and reports, and
do not require that eligibility be re-established when a triennial
evaluation is conducted if the IEP team agrees that the child continues
to have a disability. The amendments also eliminate unnecessary
paperwork requirements that discourage the use of IDEA funds for
teachers who work in regular classrooms, while ensuring that the needs
of students with disabilities are met. These provisions are included
under Secs. 300.234 and 300.533 of this NPRM.
In addition, these amendments permit States and local educational
agencies to establish eligibility only once by providing policies and
procedures to demonstrate that the eligibility conditions under part B
are met. Thereafter, only amendments to those policies and procedures
necessitated by identified compliance problems or changes in the law
would be required. These provisions are included under Secs. 300.110-
300.111 and 300.180-300.181.
Subpart A--General
Purposes, Applicability, and Regulations That Apply to This Program
Proposed Sec. 300.1 would retain the statement of the purposes of
this part in the existing regulations, except for conforming those
purposes to the new statutory changes. Consistent with section
601(d)(1)(A) of the Act, the purpose in proposed Sec. 300.1(a)
(relating to ensuring that all children with disabilities have
available to them a free appropriate public education designed to meet
their unique needs) would be amended to add ``and to prepare them for
employment and independent living.'' This change represents a
significant shift in the emphasis of the Assistance to States program--
to an outcome oriented approach that focuses on better results for
children with disabilities rather than on simply ensuring their access
to education.
Consistent with section 601(d)(1)(C) of the Act, the purpose in
Sec. 300.1(c) (relating to assisting States and localities to provide
for the education of children with disabilities) would be amended by
adding ``educational service agencies'' and ``Federal agencies'' to the
list of entities that would be assisted under this part.
A note would be added following proposed Sec. 300.1 that emphasizes
the importance of independent living in promoting the integration and
full inclusion of individuals with disabilities into the mainstream of
American society, consistent with the new statutory purpose under
Sec. 300.1(a) (relating to employment and independent living). The note
describes the philosophy of independent living
[[Page 55030]]
contained in Section 701 of the Rehabilitation Act of 1973.
Proposed Sec. 300.2 (relating to the applicability of these
regulations to State, local, and private agencies) would maintain the
current regulatory provisions of this section, except for the following
changes to conform the section to the new statutory provisions: First,
paragraph (b) would be amended to eliminate the reference to State
plans. The newly revised Act (Section 612(a)) no longer requires States
to submit State plans. (See Subpart B, ``State Eligibility--General,''
for discussion of the statutory elimination of State plan
requirements). Second, consistent with new statutory provisions
relating to children with disabilities who are incarcerated, paragraph
(b)(4) of Sec. 300.2 would be amended to replace the term ``State
correctional facilities'' with the term ``State and local juvenile and
adult correctional facilities''.
Proposed Sec. 300.3 would update the list of regulations that apply
to this program. Under proposed paragraph (a) of this section, the
regulations in 34 CFR part 76 (State Administered Programs) would
continue to apply to the Part B program, except for the following
sections:
Sections 76.125-76.137 (relating to ``Consolidated Grant
Applications for Insular Areas'') no longer apply. A new statutory
provision in section 611(b)(4) of the Act expressly prohibits the
consolidation of Part B grants provided to the outlying areas (defined
in Sec. 300.718) or to the ``freely associated States'' (defined in
section 611(b)(6) of the Act).
Sections 76.650-76.662 (relating to ``Participation of Children
Enrolled in Private Schools'') would no longer apply because the
applicable provisions of these regulations, that have applied to the
Part B program for many years, would be incorporated into Subpart D of
this part (``Children in Private Schools''), and specifically under the
provisions relating to ``Children with Disabilities Enrolled by their
Parents in Private Schools'' (Secs. 300.450-300.462).
All other regulations identified in Sec. 300.3 of the existing
regulations for this part would be retained under proposed Sec. 300.3,
except for 34 CFR part 86 (``Drug-Free Schools and Campuses'') because
those regulations are no longer applicable to State administered
programs, and now apply only to institutions of higher education.
Definitions
The proposed regulations under this part would retain the scheme
used in the current regulations relating to defining terms that are
used in this part--that is, Subpart A would include definitions of all
terms that are used in two or more subparts of the regulations, whereas
any term that would be used in only a single section or subpart would
only be listed in Subpart A, together with a reference to the specific
section in which the term is defined. The list of these terms would be
included in an introductory note (Note 1) immediately following the
heading ``Definitions'', and would be updated, as follows:
Two terms would be deleted from the list in Note 1 (``first
priority children'' (Sec. 300.320(a)), and ``second priority children''
(Sec. 300.320(b)). Statutory provisions regarding priorities in the use
of funds were deleted by the IDEA Amendments of 1997.
The term ``individualized education program'' (or ``IEP'') that
appears in the list in Note 1 of the existing regulations, would be
moved to proposed Sec. 300.14, and would be defined along with the
other terms of general applicability that are included under Subpart A.
Several terms that were added by the IDEA Amendments of 1997, but
are not terms of general applicability, would be added to the list in
Note 1. Following is a list showing each new term and the statutory and
regulatory citations for that term:
* Base year (Relates to the new funding formula) (Section
611(e)(2)(A); Sec. 300.707).
* Controlled substance (Relates to the discipline
provisions) (Section 615(k)(10)(A); Sec. 300.520).
* Excess costs (The term was defined in prior law, but the
statutory definition was not included in the current regulations. The
definition of the term, as updated by the IDEA Amendments of 1997,
would be incorporated into these regulations (Section 602(7);
Sec. 300.284).
* Freely associated States (Relates to the Pacific Basin
entities that are eligible for assistance under this part) (Section
611(b)(6); Sec. 300.722).
* Indian; Indian Tribe (Relates to the eligibility of the
Secretary of the Interior to receive amounts under this part) (Sections
602(9) and 602(10); Sec. 300.264).
* Outlying area (Relates to grant requirements under this
part) (Section 602.18; Sec. 300.718).
* Substantial evidence (Relates to discipline provisions)
(Section 615(k)(10)(C); Sec. 300.521).
* Weapon (Relates to discipline provisions) (Section
615(k)(10)(D); Sec. 300.520).
The following terms are not defined in the Act, but the Secretary
proposes to add them to the list in Note 1 in order to provide
additional clarification to certain provisions that would be added:
* Comparable in quality (A definition of this term would be
added to Sec. 300.455 to clarify what services must be provided by an
LEA to children with disabilities who are enrolled by their parents in
religiously affiliated or other private schools).
* Extended school year services (A definition of this term
would be added to a new provision under proposed Sec. 300.309 that
would require each public agency to consider extended school year
services on a case by case basis in ensuring that a free appropriate
public education (FAPE) is available to each child with a disability.
The definition would clarify that the meaning of the term ``extended
school year services'' applies to providing services during the summer
months. (A description of this provision is included under Subpart C,
Sec. 300.309, in this preamble).
* Meetings (A definition of this term would be added to
Sec. 300.501, relating to participation of parents in meetings about
their child on matters covered under this part).
* Financial Costs (A definition of this term is included in
proposed Sec. 300.142(e) on use of private insurance proceeds).
A second note (Note 2) following the heading ``Definitions'' would
maintain the note from the current regulations that lists abbreviations
of certain terms that would be used throughout the regulations, but
would update that list, as follows: The terms ``Comprehensive system of
personnel development'' (``CSPD'') and ``individualized family service
plan'' (``IFSP'') would be added; and, consistent with a statutory
change (section 602(4)), the term ``educational service agency''
(``ESA'') would replace the term ``intermediate educational unit''
(``IEU'').
Proposed Sec. 300.4 (Definition of ``Act'') would delete the
obsolete reference to the Education of the Handicapped Act from the
current regulatory definition of this term.
Proposed Secs. 300.5 and 300.6 (Definitions of ``assistive
technology device'' and ``assistive technology service'') would retain
the current regulatory definitions of those terms, with the exception
of a minor technical change for consistency in using the singular
``child with a disability.'' The note following the definitions of
those terms in the existing regulations (that states that the
definitions are substantively identical to the definitions of those
terms used in the Technology-Related Assistance for Individuals with
Disabilities Act of 1988) would be retained in abbreviated form.
[[Page 55031]]
Proposed Sec. 300.7 would make the following changes to the current
regulatory definition of ``children with disabilities'': The term would
be restated in the singular (``Child with a disability''), and the
definition itself would also be restated in singular rather than plural
terms. This change is made because it more appropriately comports with
the individualized focus of Part B of the Act. Paragraph (a)(1) of this
section would be revised, consistent with section 602(3)(A)(i) of the
Act, to clarify that the term ``serious emotional disturbance'' will
hereinafter be referred to as ``emotional disturbance''. A
corresponding change would be made in the definitions of the individual
disability categories under proposed paragraph (b), by changing the
term ``serious emotional disturbance'' to ``emotional disturbance'' and
moving the definition of that term from paragraph (b)(9) to paragraph
(b)(4).
Consistent with section 602(3)(B) of the Act, proposed
Sec. 300.7(a)(2) (relating to a State's discretion to use the term
``developmental delay'' for children aged 3 through 5) would be
revised, as follows: The age range for using that term would be
extended from ages 3 through 5 to ages 3 through 9; and the decision to
use the term ``developmental delay'' would be at the discretion of both
the State and the local educational agency (LEA). The State's
definition of the category may be different under Parts B and H (to
become Part C on July 1, 1998).
Note 1 following Sec. 300.7 of the current regulations (relating to
children with autism) would be added without change to proposed
Sec. 300.7, and four new notes would be added to that section, as
follows:
Note 2 would address the statutory change under paragraph (a)(2) of
this section relating to use of the term ``developmental delay''. The
note would clarify that (1) if a State adopts the term for children
aged 3 through 9, or a subset of that age range, LEAs that elect to use
the term must conform to the State's definition; (2) LEAs could not
otherwise use ``developmental delay'' as a basis for establishing a
child's eligibility under this part; and (3) even if a State adopts the
term, the State may not require an LEA to use it. This clarification is
necessary to avoid confusion and potential compliance problems in
implementing this new statutory provision, and to otherwise facilitate
its implementation.
Note 3 would further address the use of the term ``developmental
delay'' by including a statement from the House Committee Report that
emphasizes the value of using ``developmental delay'' in establishing
eligibility for young children in order to prevent locking the child
into an eligibility category that may be inappropriate or incorrect
during a period when it is often difficult to determine the precise
nature of the disability.
Note 4 would describe congressional intent in changing the term
``serious emotional disturbance'' to ``emotional disturbance''. The
note would include a statement from the House Committee Report that
explains that the statutory change (1) is intended to have no
substantive or legal significance, and (2) is intended strictly to
eliminate the pejorative connotation of the term ``serious.'' The
Report further makes clear that this statutory revision does not change
the meaning of the definition of ``serious emotional disturbance'' that
is included in the existing regulations for this part.
Note 5 would address the conditions under which a child with
attention deficit disorder (ADD) or attention deficit hyperactivity
disorder (ADHD) is eligible under Part B of the Act. The note clarifies
that some children with ADD or ADHD who are eligible under this part
meet the criteria for ``other health impairments'' if (1) the ADD or
ADHD is determined to be a chronic health problem that results in
limited alertness that adversely affects educational performance, and
(2) special education and related services are needed because of the
ADD or ADHD. (The note clarifies that the term ``limited alertness''
includes a child's heightened alertness to environmental stimuli that
results in limited alertness with respect to the educational
environment.)
The note further clarifies that (1) some children with ADD or ADHD
may be eligible for services under other disability categories in
Sec. 300.7(b) if they meet the applicable criteria for those
disabilities, and (2) if those children are not eligible under this
part, the requirements of section 504 of the Rehabilitation Act of 1973
and its implementing regulations may still be applicable.
Proposed Sec. 300.8 would add a definition of ``day'' to clarify
that unless otherwise indicated, the term ``day'' means calendar day.
Although the Department has traditionally interpreted ``day'' to mean
calendar day, the term has never been defined in the regulations. It is
important to include such a definition in these proposed regulations
because under the new statutory provisions added by the IDEA Amendments
of 1997, the term is applied differently under certain provisions,
including the use of ``school days''; ``business days''; and ``business
days (including any holidays that fall on business days).''
Proposed Sec. 300.9 would add the definition of ``educational
service agency'' that appears in section 602(4) of the Act. That term
was added by the IDEA Amendments of 1997 to replace the term
``intermediate educational unit'' that was used in prior law and in the
current regulations.
Proposed Sec. 300.10 would add the definition of ``equipment'' that
appears in section 602(6) of the Act. That definition is substantively
identical to the definition of ``equipment'' in prior law. However,
that definition is not included in the current regulations. The
Secretary believes that, for the regulations to be most useful to
parents, school officials, and members of the general public, the
regulations should contain all applicable statutory provisions in one
document, rather than simply referencing definitions or other
provisions that are contained in other regulations. With very few
exceptions, these proposed regulations have been developed to include
all applicable provisions of the Act.
Proposed Sec. 300.11 would incorporate the existing regulatory
definition of the term ``free appropriate public education,'' except
that the reference to the IEP requirements in paragraph (d) of that
section would change from Secs. 300.340-300.350 to Secs. 300.340-
300.351, to conform to a proposed change made in those requirements.
The Secretary proposes to add in proposed Sec. 300.12 a definition
of ``general curriculum'' to clarify that, for purposes of this part,
there is a single curriculum that applies to all children within the
jurisdiction of the public agency, including nondisabled children and
children with disabilities. The purpose of adding this definition is to
eliminate (or significantly reduce) the possibility of misinterpreting
the new requirements in the Act relating to the participation of
children with disabilities in the general curriculum. Some commenters
on the June 27, 1997 Federal Register notice have expressed concern
that a public agency could assume that there is a ``general
curriculum'' for nondisabled and another ``general curriculum'' for
certain categories of children with disabilities. If the requirements
of this part were implemented based on that assumption this would
seriously limit the possibility of accomplishing the purposes of Part B
of the Act that are set out in the IDEA Amendments of 1997.
A note would be added following this section to clarify that the
term ``general curriculum'' relates to the content of the
[[Page 55032]]
curriculum and not to the setting in which it is used. The note further
clarifies that the general curriculum could be used in any educational
setting along a continuum of alternative placements, as long as the
setting is consistent with the least restrictive environment provisions
of Sec. 300.550-300.553 and is applicable to an individual child with a
disability. A number of comments were received requesting clarification
relating to this matter.
Proposed Sec. 300.13 would retain the current regulatory definition
of the term ``include''.
Proposed Sec. 300.14 would include a definition of the term
``individualized education program'' (IEP). Because the term ``IEP''
has traditionally been defined under Sec. 300.340 (an introductory
section to the IEP requirements of Secs. 300.340-300.350) the
definition in proposed Sec. 300.14 would simply reference the
definition in Sec. 300.340.
Proposed Sec. 300.15 would add a definition of ``individualized
education program team'' (or ``IEP team''). The definition states that
the term ``IEP team'' means a group of individuals described in
Sec. 300.344 that is responsible for developing, reviewing and revising
an IEP for a child with a disability. Because the term ``IEP team'' is
used throughout these regulations, it is important to include a
definition of that term in Subpart A. However, to preserve the
structural integrity of the current regulatory provisions on IEPs in
Secs. 300.340-300.350, the substantive definition of ``IEP team'',
which conforms to the statutory definition under section 614(d)(1)(B),
would be included in Sec. 300.344.
Proposed Sec. 300.16 would add a definition of ``individualized
family service plan'' (or ``IFSP''), because that term is used in
several subparts within these regulations. The definition of the term
would be a reference to 34 CFR 303.340(b).
Proposed Sec. 300.17 would incorporate the statutory definition of
``local education agency'' from section 602(15) of the Act. This
definition, which updates the prior statutory definition of ``LEA'' to
conform to the definition of that term in the Improving America's
Schools Act, would replace the current regulatory definition of
``LEA.''
A note would be added following proposed Sec. 300.17 to clarify
that a public charter school is eligible to receive funds under Part B
of the Act if it meets the definition of ``LEA.'' The note further
clarifies that if a public charter school receives Part B funds it must
comply with the requirements that apply to LEAs. Because of the
widespread interest in establishing charter schools as a major part of
educational reform, this clarification is necessary in order to ensure
that, to the extent applicable, these schools are in full compliance
with the requirements of this part.
Proposed Sec. 300.18 would incorporate the statutory definition of
``native language'' from section 602(16) of the Act. The new definition
is substantively similar to the current regulatory definition of
``native language.'' The note following the current regulatory
definition of ``native language'' would be retained, unchanged, except
for clarifying that the term ``native language'' is also used in the
procedural safeguards notice under proposed Sec. 300.504(c). (The
procedural safeguards notice is a new statutory provision that was
added by section 614(d) of the Act.)
Proposed Sec. 300.19 would incorporate the current regulatory
definition of ``parent'' (under a new paragraph (a)). A proposed new
paragraph (b) would be added to address questions raised by public
agencies and other agencies representing children with disabilities
about whether foster parents, who have a long-term relationship with a
disabled child, could serve as the child's parent, in lieu of requiring
the appointment of a surrogate parent to represent the child.
Proposed paragraph (b) of this section would permit State law to
provide that a foster parent qualifies as a parent under Part B of the
Act if the natural parents' authority to make educational decisions on
the child's behalf has been extinguished under State law, and if the
foster parent (1) has an ongoing, long-term parental relationship with
the child; (2) is willing to participate in making educational
decisions in the child's behalf; and (3) has no interest that would
conflict with the interest of the child.
The note following the current regulatory definition of ``parent''
(relating to other persons, such as a grandparent, who may act as a
parent) would also be incorporated into these proposed regulations. The
note would be revised to add conforming language about a foster parent,
as described in paragraph (b) of this section.
Proposed Sec. 300.20 would retain the current regulatory definition
of ``public agency,'' but would revise that definition to replace the
term ``IEUs'' with the term ``ESAs.''
Proposed Sec. 300.21 would incorporate without change the current
regulatory definition of the term ``qualified.''
Proposed Sec. 300.22 would retain the current regulatory definition
of ``related services,'' except for making the following changes: In
proposed paragraph (a), the term ``speech pathology and audiology''
would be replaced by the term ``speech-language pathology and audiology
services,'' and the term ``orientation and mobility services'' would be
added to the list of related services. These changes would be made to
conform to a statutory change in section 602(22) of the Act.
Proposed Sec. 300.22(b) would be amended to add a definition of the
term ``orientation and mobility services'' identified in paragraph (a)
of this section. The definition (included as a new paragraph (b)(6))
states that the term ``orientation and mobility services'' means
services provided to blind or visually impaired students by qualified
personnel to enable those students to attain systematic orientation to
and safe movement within their environments in school, home and
community.
In proposed Sec. 300.22(b)(9) (relating to psychological services)
and (b)(13) (relating to social work services in schools) the
definitions of those terms would be amended to add a reference to
assisting in developing positive behavioral intervention strategies to
the list of functions performed by these related services providers.
These providers could be helpful in ensuring effective implementation
of the new statutory provision in section 614(d)(3)(B) (proposed
Sec. 300.346) that requires that the IEP team, in the case of a child
whose behavior impedes his or her learning or that of others, consider,
when appropriate, strategies, including positive behavioral
interventions.
In proposed Sec. 300.22(b)(14), the current regulatory definition
of the term ``speech-pathology'' would be retained, but the term would
be changed to ``speech-language pathology services,'' to conform to the
statutory change identified in paragraph (a) of this section.
The note following the current regulatory definition of ``related
services'' would be retained as Note 1 following proposed Sec. 300.22,
except for the following changes: The list of other related services in
the first paragraph of that note would be amended (1) by adding other
important services, including travel training, nutrition services, and
independent living services, and (2) to clarify that the services would
be provided if necessary for the child to receive FAPE.
Several notes would also be added to proposed Sec. 300.22, as
follows:
Note 2 would acknowledge the critical importance of orientation and
mobility services for children who are blind or have visual
impairments, and
[[Page 55033]]
point out that there are children with other disabilities who may also
need to be taught the skills they need to navigate their environments
(e.g., travel-training). The note includes a statement from the House
Committee report on Pub. L. 105-17 that emphasizes the importance of
travel training for certain children with disabilities.
Note 3 would clarify that, with respect to various related services
defined in this section, nothing would prohibit the use of
paraprofessionals to assist in the provision of those services if doing
so is consistent with the personnel standards requirements of proposed
Sec. 300.136(f).
Note 4 would explain that (1) most children with disabilities
should receive the same transportation services as non-disabled
children, and (2) for some disabled children, integrated transportation
may be achieved by providing needed accommodations such as lifts and
other adaptations on regular school transportation vehicles.
Proposed Sec. 300.23 would incorporate the statutory definition of
``secondary school'' from section 602(23) of the Act. This definition
updates the prior statutory definition of ``secondary school'' to
conform to the definition of that term in the Improving America's
Schools Act. The term ``secondary school'' is not defined in the
current regulations.
Proposed Sec. 300.24 would retain the current regulatory definition
of ``special education,'' except for the following changes:
In Sec. 300.24(a)(2), the term ``speech pathology'' would be
changed to ``speech-language pathology services,'' to conform to the
terms used in section 602(22) of the Act.
Under a new Sec. 300.24(b)(3), a definition of ``specially designed
instruction'' would be added to clarify that the term means adapting
the content, methodology, or delivery of instruction to (1) address the
unique needs of an eligible child under this part that result from the
child's disability, and (2) ensure access of the child to the general
curriculum, so that he or she can meet the educational standards within
the jurisdiction of the public agency that apply to all children.
Although the term is a key component in the definition of ``special
education'' in both prior law and the current Act, it has never been
defined. With the shift in emphasis of the Part B program toward
greater participation of children with disabilities in the general
curriculum, this definition should facilitate implementation of the
program.
Proposed Sec. 300.24(b)(4) would replace the outdated definition of
``vocational education'' in the current regulations with a new
definition that states that the term ``vocational education'' means
organized educational programs that are directly related to the
preparation of individuals for paid or unpaid employment, or for
additional preparation for a career requiring other than a
baccalaureate or advanced degree.
The note following the definition of ``special education'' in the
current regulations would be retained under proposed Sec. 300.24, but
would be revised to clarify that a related services provider may be a
provider of specially designed instruction if, under State law, the
person is qualified to provide that instruction.
Proposed Sec. 300.25 would incorporate the statutory definition of
``State'' from section 602(27) of the Act to mean each of the 50
States, the District of Columbia, the Commonwealth of Puerto Rico, and
each of the outlying areas. This definition updates the prior statutory
definition of ``State.'' The term is not defined in the current
regulations.
Proposed Sec. 300.26 would incorporate the definition of
``supplementary aids and services'' from section 602(29) of the Act.
Although the term was included in prior law, it was not defined until
the enactment of the IDEA Amendments of 1997. The term is defined as
aids, services, and other supports that are provided in regular
education classes or other education-related settings to enable
children with disabilities to be educated with nondisabled children to
the maximum extent appropriate in accordance with the LRE provisions in
Secs. 300.550-300.556.
Proposed Sec. 300.27 would retain the current regulatory definition
of ``transition services,'' except for the following changes: The
organizational structure of the definition has been changed to conform
to the definition of the term in section 602(30) of the Act. The new
definition simply describes what the term means, but does not attempt
to regulate under the definition. The current regulatory definition
uses the regulatory term ``must'' in defining what services must be
provided. Consistent with the new statutory definition, the term
``related services'' is added as one of the services or activities
covered by the term.
Proposed Sec. 300.28 would add a list of terms found in the part B
regulations that are defined in the Education Department General
Administrative Regulations (EDGAR).
Subpart B--State and Local Eligibility
State Eligibility--General
Under the prior statute, States were required both to meet certain
eligibility requirements and to submit State plans to the Department,
and were subject to periodic resubmission requirements. The newly
revised Act replaces that scheme with an eligibility determination
based on a demonstration satisfactory to the Secretary that the State
has in effect policies and procedures to ensure that it meets each of a
list of conditions. (Section 612(a)). A State that already has on file
with the Secretary policies and procedures demonstrating that it meets
any of these requirements will be considered to have met that
requirement for the purpose of receiving a grant under Part B of the
Act. (Section 612(c)(1)). A technical change will be made to Part 76
with the publication of the final regulations to reflect the
substitution of this demonstration of State eligibility for State
plans.
Under section 612(c) (2) and (3), the policies and procedures
submitted by a State remain in effect until a State submits
modifications that the State decides are necessary or until the
Secretary requires modifications based on changes to the Act or its
implementing regulations, new interpretations by a Federal court or the
State's highest court, or an official finding of noncompliance with
Federal law or regulations. The provisions regarding State eligibility
apply to modifications in the same manner and to the same extent as
they do to a State's original policies and procedures.
Section 612(d) specifies that if the Secretary determines that a
State is eligible to receive a grant under Part B of the Act, the
Secretary notifies the State of that determination, and that the
Secretary shall not make a final determination that a State is not
eligible until providing the State reasonable notice and an opportunity
for a hearing. These provisions are incorporated in the proposed
regulations in Secs. 300.110-300.113.
State Eligibility--Specific Conditions
The statutory eligibility conditions that must be addressed by each
State in order to receive a grant under Part B of the Act are contained
in proposed Secs. 300.121-300.156. The IDEA Amendments of 1997 made a
number of changes to the eligibility conditions and State plan
requirements previously contained in the Act. These proposed
regulations incorporate these statutory changes, with appropriate
modifications described below, into the regulations
[[Page 55034]]
regarding State plan contents. Some changes of a technical nature have
been made to preexisting regulatory provisions in order to reflect the
fact that States now demonstrate eligibility, rather than submit State
plans, as was the case under the prior law. In addition, some
reordering and reorganization of current regulatory provisions is done
for the sake of coherence.
Proposed Sec. 300.121 would add to the current Sec. 300.121 the new
statutory provision, under section 612(a)(1)(A), that the right to a
free appropriate public education (FAPE) extends to children with
disabilities who have been suspended or expelled from school. The issue
of what the right to FAPE means for children who have been suspended or
expelled from school has been the subject of numerous comments to the
Department in response to the June 27, 1997 notice, many of which raise
this issue in the context of lengthy discussions about all of the
provisions in the Act concerning discipline for children with
disabilities. Proposed Sec. 300.121(c) reflects the Secretary's
interpretation that the IDEA Amendments of 1997 take a balanced
approach to the issue of discipline for students with disabilities that
reflect both the need to protect the rights of children with
disabilities to appropriate educational services and the need of
schools to be able to ensure that all children, including children with
disabilities, have safe schools and orderly learning environments. The
positions taken in these proposed regulations on the issue of continued
services for children with disabilities who have been properly
suspended or expelled and on the other disciplinary provisions of the
Act (see proposed Secs. 300.520-300.529) reflect this need for a
balanced, fair interpretation of these new statutory provisions.
With regard to the issue of the provision of FAPE for children with
disabilities who have been suspended or expelled, the Secretary
believes that the statute struck a balance between the longstanding
interpretation of the Department that schools are not required by the
Act to provide services to children with disabilities who are suspended
for ten school days or less, and the desire to ensure that children
with disabilities not be removed from education for prolonged amounts
of time in any school year.
In proposed Sec. 300.121(c)(1), the Secretary proposes to define
children with disabilities who have been suspended or expelled from
school for purposes of this section to mean children with disabilities
who have been removed from their current educational placement for more
than 10 school days in a given school year.
In proposed Sec. 300.121(c)(2), the Secretary proposes to clarify
that the right to FAPE under these circumstances begins on the eleventh
school day from the date of the child's removal from the current
educational placement. For example, if a child with a disability who
has not previously been suspended in the school year receives a three
week suspension, services must be provided by the eleventh school day
of that suspension. If a child with a disability who has received two
five school day suspensions in the fall term is suspended again in the
spring of that school year, services must be provided from the first
day of the third suspension.
A second issue regarding the statutory right to FAPE for children
with disabilities who have been suspended or expelled is how to
reconcile the right to FAPE with the statutory recognition, in sections
612(a)(1)(A) and 615(k)(5)(A), that children with disabilities properly
could be subjected to the same disciplinary measures applied to
nondisabled children if their behavior was not a manifestation of their
disability. The Secretary proposes in Sec. 300.121(c)(2) to address
this question by requiring that in providing FAPE to children with
disabilities who have been suspended or expelled, a public agency shall
meet the requirements for interim alternative educational settings
under section 615(k)(3) of the Act. The Secretary believes requiring
that education for children who have been suspended or expelled meets
the standards in section 615(k)(3) allows accommodation of both the
statutory obligation to provide FAPE to these children and recognizes
in section 615(k)(5) that, through an appropriate suspension or
expulsion, school districts can legitimately remove children from their
current educational placement. Under proposed Sec. 300.622, States may
elect to use funds available for capacity building and improvement
activities to support public agency services to children who have been
suspended or expelled.
Two notes would also be added to proposed Sec. 300.121. The first
would be added to reflect the Department's longstanding interpretative
position that the obligation to make FAPE available to children 3
through 21 begins on each child's third birthday, and an IEP or IFSP
must be in effect by that date that specifies the special education and
related services that must be provided, consistent with proposed
Sec. 300.342, including extended school year services, if appropriate.
For children receiving early intervention services under Part C of the
Act and who will be participating in a preschool program under Part B
of the Act, the transition requirements of proposed Sec. 300.132 would
apply.
The second note to follow proposed Sec. 300.121 would recognize
that, under the statute, school districts are not relieved of their
obligations to provide appropriate special education and related
services to individual disabled students who need them even though the
students are advancing grade to grade, and that decisions about
eligibility under Part B of the Act for these students must be
determined on an individual basis.
Proposed Sec. 300.122 revises the current Sec. 300.122 to eliminate
an obsolete provision about the provision of FAPE to children with
disabilities before September 1, 1980, and incorporates the new
statutory limitation to the obligation to make FAPE available to
certain individuals in adult correctional facilities. Section
612(a)(1)(B)(ii) provides that the obligation to make FAPE available to
all children with disabilities does not apply to individuals aged 18
through 21 to the extent that State law does not require that special
education and related services under Part B of the Act be provided to
students with disabilities who, in the educational placement prior to
their incarceration in an adult correctional facility, were not
actually identified as being a child with a disability or did not have
an IEP under Part B of the Act. This provision, with minor
modifications for clarity, would be reflected in proposed
Sec. 300.122(a)(2). A note, Note 2, would be added following
Sec. 300.122 quoting the House Committee Report explaining the
statutory change.
The Secretary also proposes to amend Sec. 300.122 to make clear
that the right to FAPE does not apply to children with disabilities who
have graduated from high school with a regular high school diploma.
This reflects the Secretary's understanding that the right to FAPE is
ended either by a student successfully finishing a regular secondary
education program or reaching an age between 18 and 21 at which, under
State law, the right to FAPE has ended. In addition, the changes made
by the IDEA Amendments of 1997, particularly as they relate to the
content of children's IEPs in section 614(d) of the Act, reinforce the
Secretary's belief that FAPE is closely related to enabling children
with disabilities to progress in the same general curriculum that is
provided nondisabled children. The Secretary also believes that it is
[[Page 55035]]
important to clarify that the right to FAPE is not ended if a student
with disabilities is awarded some other certificate of completion or
attendance instead of a regular high school diploma. This change should
not be interpreted as prohibiting the use of Part B funds to provide
services to a student with disabilities who has already achieved a
regular high school diploma, but who still is in the State's mandated
age range if an LEA or SEA wishes to do so.
Note 1 following proposed Sec. 300.122 would explain that
graduation is a change of placement under Part B and, as such, would
require prior written notice to the parents, and student if
appropriate. The note would also explain that under Sec. 300.534(c) a
reevaluation is required before graduation. The note would further
explain that other documents, such as certificates of attendance or
other certificates granted instead of a regular high school diploma,
would not end a student's entitlement to FAPE.
Proposed Secs. 300.123-300.124 include, with only minor changes
reflecting the new State eligibility scheme of the statute, the current
regulatory provisions concerning State policies and procedures relating
to the full educational opportunity goal and the full educational
opportunity timetable. Current regulatory provisions concerning the
full educational opportunity goal regarding facilities, personnel, and
services, and priorities would be eliminated as these provisions were
removed from the statute by the IDEA Amendments Act of 1997. Section
612(a)(2) of the Act requires each State to have established a full
educational opportunity goal and timetable.
Proposed Sec. 300.125 incorporates the current regulatory
provision, revised as discussed, concerning child find obligations
(identification, location, and evaluation of children with
disabilities) with the new statutory provision that this obligation
includes children with disabilities attending private schools, in
accordance with section 612(a)(3)(A) of the Act. The requirement in the
current regulation to provide yearly information about child find
activities would be eliminated in light of the fact that periodic State
plans are no longer required by statute. The provisions requiring data
on and the method for determining which children are not receiving
special education and related services also would be removed from the
regulation, reflecting statutory changes. A new Sec. 300.125(c) would
be added that includes the construction clause of section 612(a)(3)(B).
That clause clarifies that nothing in the Act requires that children be
classified by their disability so long as each child who has a
disability and, by reason thereof, needs special education and related
services, is regarded as a child with a disability under Part B of the
Act. The notes following the current regulatory provision regarding
child find would be retained, but shortened and updated as appropriate.
Two additional notes would be added to reflect longstanding policy
positions of the Department. A new Note 2 would recognize that the
services and placement needed by each child with a disability must be
based on the child's unique needs and may not be determined or limited
based on the child's disability category.
Note 3, which is largely retained from the current regulations,
explains the important relationship between child find activities under
this part and child find activities under Part 303 for children with
disabilities from birth through age 2. The Secretary believes that
developing effective child find activities for this age population will
provide significant benefits not just for very young children with
disabilities but also for schools and other public agencies that may
find their responsibilities easier because of early attention to these
children's needs.
A Note 4 following this section would reflect that each State's
child find obligation under the statute includes highly mobile
children, such as migrant and homeless children.
Proposed Sec. 300.126 incorporates the evaluation procedures from
sections 612(a)(7) and 612(a)(6)(B), by cross-referencing the
provisions of proposed Secs. 300.530-300.536, which include all of the
statutory evaluation provisions of sections 612(a)(6)(B) and 614(a)-(c)
and related evaluation procedures from current regulations. This
provision would replace the current regulatory section on State
procedures on protection in evaluation procedures.
Proposed Sec. 300.127 includes, with only minor changes reflecting
the new statutory State eligibility scheme, the provisions of the
current regulation concerning State policies and procedures on the
confidentiality of personally identifiable information. This provision
reflects section 612(a)(8) of the Act. The note following this section
would be updated to reflect current information about the regulations
implementing the Family Educational Rights and Privacy Act.
Proposed Sec. 300.128 is the same as the current regulatory
provision concerning individualized education programs (IEPs), except
as revised to reflect the new statutory State eligibility scheme and
the requirements of section 612(a)(4) of the Act.
Proposed Sec. 300.129 incorporates the current regulatory provision
concerning procedural safeguards, as revised as discussed, and the
statutory provision, in section 612(a)(6)(A), that children and their
parents are afforded the procedural safeguards required by section 615.
Proposed Sec. 300.130 would remove from the existing regulatory
provision regarding least restrictive environment (LRE) the data
collection requirements, and make other conforming revisions, as
discussed, in light of the new State eligibility structure of the Act,
consistent with section 612(a)(5)(A). (Data on LRE would still be
collected under section 618(a)(1)(A) (iii) and (iv) of the Act.)
Additionally, the following new statutory requirements regarding a
State's funding formula are added as proposed Sec. 300.130(b): (1) If a
State uses a funding mechanism to distribute State funds on the basis
of the type of setting in which a child is served, the funding
mechanism may not result in placements that violate the LRE
requirements; and (2) if the State does not have policies and
procedures to ensure compliance with this new requirement, the State
must provide the Secretary an assurance that the State will revise the
funding mechanism as soon as feasible to ensure that the mechanism does
not result in placements that violate LRE. A note would also be added
to this provision quoting language from the House Committee Report
recognizing that this statutory addition does not eliminate the need
for a continuum of alternative placements that is designed to meet the
unique needs of each child with a disability.
Proposed Sec. 300.132 adds to the existing regulatory provision
concerning the transition of individuals from Part H (to be renamed
part C on July 1, 1998) to Part B the new statutory language (from
section 612(a)(9)) concerning ``effective'' transitions, and the
provision that LEAs will participate in transition planning conferences
arranged by the designated lead agency under Part H (to be renamed Part
C).
Proposed Sec. 300.133 updates the existing regulatory provision
concerning children in private schools to reflect the new statutory
structure, and the changes made in subpart D of this proposed
regulation, consistent with section 612(a)(10) of the Act.
Proposed Sec. 300.135 reflects the new statutory requirements
concerning a comprehensive system of personnel development (CSPD).
Section 612(a)(14)
[[Page 55036]]
provides that a State's CSPD must meet the requirements for a State
improvement plan relating to personnel development. A note following
this section would quote the House Committee Report to the effect that
the State's CSPD must include procedures for acquiring and
disseminating significant knowledge and for adopting appropriate
promising practices, materials, and technology. The note would also
explain that a State could use the information provided to meet the
State eligibility requirement under Part B of the Act as a part of a
State improvement program plan under Part D of the Act.
Proposed Sec. 300.136 reflects the existing regulatory provision on
personnel standards, revised as discussed, and the requirements of
section 612(a)(15) of the Act. A new paragraph (f) adds the new
statutory provision from section 612(a)(15)(B)(iii) that allows
paraprofessionals and assistants who are appropriately trained and
supervised, under State law, regulations or policy to be used to assist
in the provision of services under Part B of the Act. Also added is the
new provision, from section 612(a)(15)(C), that a State may adopt a
policy that includes a requirement that LEAs in the State make an
ongoing good-faith effort to recruit and hire appropriately and
adequately trained personnel to provide special education and related
services, including, in a geographic area where there is a shortage of
those personnel, the most qualified individuals available who are
making satisfactory progress toward completing applicable course work
necessary to meeting State standards within three years. This provision
would be incorporated in Sec. 300.136(g). A note following this section
would be added explaining that a State may exercise the option in
paragraph (g) even though the State has reached its established date
for retraining or hiring of personnel to meet appropriate professional
requirements under paragraph (c) of this section so as to avoid any
unwarranted confusion on this issue. Another note would be added to
clarify that if a State has only one entry level degree requirement for
a specific profession or discipline, it is not precluded by
Sec. 300.136(b)(1) from modifying that standard if necessary to ensure
the provision of FAPE to all children with disabilities in the State.
Proposed Sec. 300.137 would add to the regulation the new statutory
provision of section 612(a)(16) concerning performance goals and
indicators. Basically, this provision requires that States have goals
for the performance of children with disabilities, and indicators of
progress that at a minimum address the performance of children with
disabilities on assessments, drop-out rates, and graduation rates. The
provision also requires reporting every two years to the Secretary and
the public on the progress of the State, and revisions to a State's
improvement plan under Part D of the Act as needed to improve
performance, if the State receives a grant under that authority. The
current regulatory provision concerning procedures for evaluation of
the effectiveness of programs would be removed, reflecting a statutory
change.
Proposed Sec. 300.138 would add the new requirement of section
612(a)(17)(A) concerning inclusion of children with disabilities in
general State and district-wide assessments, including conducting
alternative assessments not later than July 1, 2000 for children who
cannot participate in State and district-wide assessment programs. A
note following this section would explain that only a small number of
children with disabilities should need alternative assessments. The
provision of section 612(a)(17)(B) concerning reports related to these
assessments are contained in proposed Sec. 300.139.
The Secretary proposes to interpret the statutory requirements to
make clear that whenever the SEA reports to the public on student
performance on wide-scale assessments, the reports must include
aggregated results of all children, including children with
disabilities, as well as disaggregated data on the performance of
children with disabilities. The Secretary believes that the IDEA
Amendments of 1997 were designed to foster consideration of children
with disabilities as a part of the student population as a whole. It
would not be in keeping with that focus if, in reporting assessment
data, results for children with disabilities were not included in
reports on the student population as a whole. A note following this
section would explain that States would not be precluded from also
reporting data in a way that would, for example, allow them to continue
trend analysis of student performance, if children with disabilities
had not been included in those analyses in the past.
Proposed Sec. 300.141 incorporates the current regulatory
provision, revised as discussed, concerning SEA responsibility for all
educational programs, consistent with the requirement in section
612(a)(11) of the Act.
Proposed Sec. 300.142 would replace the current regulatory
provision concerning interagency agreements with the requirements of
section 612(a)(12) regarding methods of ensuring services. This
provision requires that the Chief Executive Officer or designee in each
State ensure that an interagency agreement or some other mechanism for
interagency coordination is in effect between noneducational agencies
that are obligated under other law to provide or pay for services that
are considered special education or related services under Part B of
the Act and the SEA to ensure that those services are provided. In
addition to the statutory requirements, a paragraph (e) would reflect
the Department's interpretation that it would violate the statutory
obligation to provide free services if a public agency required a
parent to use private insurance proceeds to pay for services required
under the Act. The Department has long taken the position that Part B
of the Act and section 504 of the Rehabilitation Act prohibit a public
agency from requiring parents to use insurance proceeds to pay for the
services that must be provided to an eligible child under the FAPE
requirements of those statutes, if they would incur a financial cost to
secure those services. (See Notice of Interpretation published on
December 30, 1980 (45 FR 66390)). This paragraph also would include a
definition of the term ``financial cost,'' so that both parents and
school districts will have a common understanding of the term. This
definition reflects the Department's longstanding interpretation of the
statutory obligation to provide services at no cost as applied to
parents' private insurance. A note following this section would explain
how this paragraph applies if a family is covered by both private
insurance and Medicaid.
The Secretary believes that the same basic principle, that services
be available at no cost to parents, would be equally applicable to
parents whose children are eligible for public insurance, but that
there is no current need to regulate on the public insurance issue
because there is no risk of financial loss to parents under current
public insurance programs such as Medicaid. The Secretary invites
comment on whether a policy on public insurance similar to the proposed
section regarding private insurance should be added to the final
regulation.
The Secretary also proposes to add a new paragraph (f) to specify
that proceeds from public or private insurance may not be treated as
program income for purposes of 34 CFR 80.25. That section imposes
limitations on how program income can be treated by grantees that would
lead to States returning reimbursements from public and private
insurance to the Federal
[[Page 55037]]
government or requiring that the funds be used under this part, which
could discourage States and school districts from using all the
resources available in paying for these services. Given the current
small percentage that Federal funds under this part are to total
funding for services under this part, and the fact that children with
disabilities are guaranteed services under this part, the Secretary
believes that States and school districts should be given some
flexibility in how they use and account for funds received as
reimbursements from other sources. A note would be added after this
section explaining the consequences, under the Maintenance of Effort
(MOE) requirements, of various State and local choices in accounting
for these funds.
Two other notes would also be added following proposed
Sec. 300.142. One would quote the House Committee Report relating to
the methods of insuring services provision. The other would explain
that if a public agency cannot get parent consent to use public or
private insurance for a service, the agency may use funds under Part B
of the Act for that service. In addition, the note would explain that
to avoid financial cost to parents who otherwise would consent to the
use of private insurance, the public agency may use funds under this
part to pay the costs of accessing the insurance, such as deductible or
co-pay amounts.
Proposed Sec. 300.143 incorporates, with revisions as described,
the existing regulatory provision concerning State procedures for
informing each public agency of its responsibility for ensuring
effective implementation of procedural safeguards for the children with
disabilities served by that public agency.
Proposed Sec. 300.144 would retain, with revisions as described,
the existing regulatory provisions concerning State procedures that the
SEA does not make a final determination regarding an LEA's eligibility
for assistance under Part B without first giving reasonable notice and
an opportunity for a hearing (consistent with section 612(a)(13)). The
Secretary also proposes to retain as proposed Sec. 300.145 the existing
regulatory provision regarding recovery of funds for misclassified
children. The statutory provision regarding recovery of funds for
misclassified children was removed by the IDEA Amendments of 1997. In
light of the fact that funds under section 611 of the Act will continue
to be distributed based on a child count until some time in the future,
however, the Secretary believes that prudent administration of Federal
funds dictates that States continue to recover funds allocated among
districts on the basis of incorrect child counts. The Secretary does
not believe that this requirement will impose additional burden on
States as all States already have these procedures. When the funding
formula changes to the permanent formula under proposed Sec. 300.706,
this provision will be removed.
Proposed Sec. 300.146 would add the new requirement of section
612(a)(22) regarding SEA examination of data to determine if
significant discrepancies are occurring in the rate of long-term
suspensions and expulsions of children with disabilities among State
agencies and LEAs in the State and as compared to the rates for
nondisabled children. As provided in the statute, if discrepancies are
occurring, the SEA reviews and, if appropriate, revises its policies,
procedures, and practices relating to the development and
implementation of IEPs, the use of behavioral interventions, and
procedural safeguards.
Proposed Sec. 300.147 adds the new statutory requirements of
section 612(b) concerning information that is required if an SEA is
providing direct services. The Secretary interprets the statutory
provision regarding requirements that must be met by an SEA as not
including requirements relating to certain use of funds provisions,
reflecting the different rules for SEA and LEA use of Part B funds.
This regulation would replace the current regulatory provision on SEA
provision of direct services.
Proposed Sec. 300.148 adds the new statutory requirement of section
612(a)(20) concerning public participation in the adoption of any
policies and procedures needed to comply with Part B of the Act. The
proposed regulation would apply the procedures for public participation
regarding State plans in the current regulations, with appropriate
revisions as described, to the adoption of State policies and
procedures in the future. Those procedures are in this NPRM in proposed
Secs. 300.280-300.284. The Secretary believes that these procedures are
necessary to ensure that there is an adequate opportunity for public
participation in the development of State policies and procedures
related to the provision of special education and related services to
children with disabilities. In addition, the Secretary does not see any
indication in the IDEA Amendments of 1997 of an intention by Congress
to lessen requirements concerning public participation in the
development of State policies and procedures. The existing regulatory
provision concerning consultation would be deleted, reflecting a
statutory change. The existing regulatory provision concerning other
Federal programs also would be deleted, in accordance with statutory
changes.
Proposed Sec. 300.150 incorporates the statutory requirement of
section 612(a)(21)(A) that the State establish and maintain an advisory
panel to provide guidance with respect to special education and related
services for children with disabilities in the State.
Proposed Sec. 300.152 incorporates the existing regulatory
provision, and a note concerning commingling of Part B funds with State
funds, with appropriate revisions, reflecting the requirements of
section 612(a)(18)(B).
Proposed Sec. 300.153 maintains the existing regulatory provision,
regarding State-level nonsupplanting, appropriately revised, consistent
with section 612(a)(18)(C). The note in the existing regulatory
provision on nonsupplanting would be removed as it would be confusing
in light of the new statutory State-level maintenance of effort
requirement addressed in proposed Sec. 300.154.
Proposed Sec. 300.154 reflects the new statutory requirement of
section 612(a)(19) which prohibits the State from reducing the amount
of State financial support for special education and related services
below the level of that support for the preceding fiscal year. If the
State does reduce State support, the Secretary is directed to reduce
funds to the State in the subsequent year by an amount equal to the
amount by which the State failed to meet the requirement. The statute
also provides that waivers are possible under certain described
circumstances, and, if granted, in the year following the waiver the
State must meet the level of support it had provided in the year before
the waiver.
Proposed Secs. 300.155 and 300.156 would simplify, in light of
statutory changes, the provision in current regulations regarding
policies and procedures for use of Part B funds, and annual
descriptions of the use of Part B funds. Proposed Sec. 30.156(b) would
incorporate the longstanding Department practice of permitting a State
to submit a letter instead of filing a new report when the State's use
of funds that are retained by the State has not changed from the prior
report submitted.
LEA and State Agency Eligibility--General
Similar to the State eligibility scheme as described, under section
613(a) LEAs and State agencies now also must demonstrate eligibility.
Section 613(b)
[[Page 55038]]
specifies that if an LEA or State agency has policies and procedures on
file with the State that meet a requirement of the new Act, the SEA
shall consider the LEA or State agency to have met that requirement.
Policies and procedures remain in effect until modified as the LEA or
State agency decides necessary, or until required by the SEA because of
changes to the Act or its implementing regulations, a new
interpretation of the Act by Federal or State courts, or an official
finding of noncompliance with Federal or State law or regulations. A
provision would be added to clarify that the same rules apply to
modifications to LEA or State agency policies and procedures as apply
to the original ones consistent with the statutory provision regarding
State eligibility. These provisions are in proposed Secs. 300.180--
300.182.
The excess costs provisions in the current regulations would be
condensed and streamlined in these proposed regulations in
Secs. 300.184-300.185.
Proposed Secs. 300.190 and 300.192 reflect the new statutory
requirements of section 613(e) concerning joint establishment of
eligibility and requirements for education service agencies (formerly
intermediate educational units). These provisions eliminate the $7,500
minimum grant requirement of prior law and add an explicit prohibition
on an SEA from requiring a charter school that is an LEA to jointly
establish eligibility unless the SEA is explicitly permitted to do so
under State law.
Proposed Sec. 300.194 reflects the new statutory provision in
section 613(i) concerning State agency eligibility. The Secretary
proposes, in these regulations, to require that these agencies meet all
the conditions of Subpart B of these proposed regulations that apply to
LEAs, in keeping with the authorization in section 613(i)(2).
Proposed Sec. 300.196 reflects the statutory provision of section
613(c) that if the SEA determines that an LEA or State agency is not
eligible, the SEA notifies the LEA or State agency of that
determination, and provides the LEA or State agency with reasonable
notice and an opportunity for a hearing.
Proposed Sec. 300.197 adds the statutory requirements concerning
SEA actions if an LEA is failing to comply with the requirements of
Part B.
LEA Eligibility--Specific Conditions
In accordance with the statutory changes in section 613(a),
proposed Sec. 300.220 simplifies the basic eligibility conditions for
LEAs. This provision would replace most of the current regulations
concerning the content of LEA applications. Under these proposed
regulations LEAs must have in effect policies, procedures, and programs
that are consistent with State policies and procedures required to
demonstrate State eligibility.
With regard to implementation of the State's comprehensive system
of personnel development, proposed Sec. 300.221 reflects the
requirement in section 613(a)(3) that the LEA demonstrate that all
personnel necessary to carry out this part are appropriately and
adequately prepared, consistent with State requirements, and that to
the extent the LEA determines appropriate, it contributes to and uses
the CSPD established by the State.
Proposed Sec. 300.230 reflects the statutory provision of section
613(a)(2)(A) that funds under Part B of the Act must be used in accord
with the requirements of Part B, may only be used for the excess costs
of providing special education and related services to children with
disabilities, and must supplement and not supplant other State, local
and Federal funds.
Proposed Sec. 300.231 reflects the new statutory provision that
LEAs not reduce the level of expenditure of LEA funds.
Proposed Sec. 300.232 incorporates new statutory exceptions to the
local maintenance of effort (MOE) requirement. With regard to the
exception relating to the voluntary departure or departure for just
cause of special education personnel, the Secretary in these proposed
regulations proposes to clarify that the exception only applies if
personnel departing are replaced by qualified, lower-salaried
personnel. This limitation would not permit a public agency to meet the
MOE requirement by removing personnel and failing to replace them. The
Secretary does not believe that the statutory provision was intended to
permit a reduction in expenditures through attrition unless one of the
other exceptions also applied. Other statutory exceptions added include
exceptions covering a decrease in enrollment of children with
disabilities; the termination of an obligation of the agency to pay for
an exceptionally costly program, as determined by the SEA, because the
child has left the agency, has reached the age at which the agency no
longer has an obligation, or the child no longer needs special
education; and the termination of costly expenditures for long-term
purchases. A note following this section would quote from the House
Committee Report on the issue of exceptions to maintenance of effort
for voluntary departure of special education personnel, which provides
the basis for the clarification of this exception.
Proposed Sec. 300.233 reflects the new statutory provision in
section 613(a)(2)(C) that in years when the Federal appropriation under
section 611 is more than $4,100,000,000 an LEA may treat as local funds
up to 20 percent of the amount of funds it receives under Part B that
exceed the amount it received under Part B in the prior year. Under
certain circumstances, an SEA may be authorized under State law to
prevent an LEA from exercising this authority.
Proposed Sec. 300.234 incorporates a new statutory provision
concerning use of Part B funds in schoolwide project schools under
section 1114 of the Elementary and Secondary Education Act of 1965. The
amount of Part B funds that may be used in a schoolwide project is
limited, by statute, to the amount arrived at by multiplying the per
child amount the LEA receives under Part B by the number of children
with disabilities participating in the schoolwide project school. The
Secretary interprets the statutory provision regarding use of funds to
require that these funds may be used without regard to the excess costs
requirement, and that in calculating supplement, not supplant and
maintenance of effort under Part B, these funds be considered as
Federal Part B funds. An explicit statement that except as to the
flexibility granted concerning how the Part B funds are used, all other
requirements of Part B must be met by an LEA using Part B funds in a
schoolwide project school would also be added. This reflects the
Secretary's interpretation that this provision cannot be used as a
basis for not providing services to children with disabilities in
accordance with the other requirements of the Act. A note following
this section would caution that children in schoolwide project schools
must still receive services in accordance with a properly developed IEP
and must still be afforded all of the rights and services guaranteed to
children with disabilities under the Act.
Proposed Sec. 300.235 incorporates the provisions of section
613(a)(4) regarding permissive use of Part B funds for special
education and related services and supplementary aids and services
provided to a child with disabilities that also benefit other children
and to develop and implement a coordinated services system. The
provision would make clear that an LEA will not be found to violate the
commingling, excess costs, supplement not supplant, or maintenance of
effort requirements
[[Page 55039]]
based on its use of funds in accordance with this provision.
Proposed Secs. 300.240-300.250 reflect the new statutory provisions
of section 613(a) (5), (6) and (7), (f) and (g) related to treatment of
charter schools and their students, information for the SEA to carry
out its duties under Part B, public availability of documents related
to LEA eligibility, coordinated services systems, and school-based
improvement plans. A note following proposed Sec. 300.241 would explain
that the provisions of the Part 300 regulations that apply to public
schools also apply to children in public charter schools and that
children with disabilities in charter schools retain all their rights
under these regulations.
Secretary of the Interior--Eligibility
Proposed Secs. 300.260--300.267 incorporate the revised statutory
provisions concerning the payment to the Secretary of the Interior into
the existing regulations on this topic. In proposed Sec. 300.260
references to State eligibility requirements would be updated to
reflect the new State eligibility requirements of the Act. In proposed
Sec. 300.262 the amount the Secretary of the Interior may use of the
payment for administrative costs would be changed to 5 percent of its
payment or $500,000 whichever is greater, reflecting the increase in
the minimum for State administration in section 611. Provisions in the
statute regarding a plan for coordination of services for all Indian
children residing on reservations covered by Part B (section
611(i)(4)), definitions of the terms ``Indian'' and ``Indian tribe''
(section 602 (9) and (10)), and provisions regarding the establishment
of an advisory board and reports by that board (sections 611(i) (5) and
(6)(A)) would also be added.
Public Participation
Proposed Secs. 300.280-300.284 incorporate the existing regulatory
provisions concerning public participation, revised to reflect the
statutory changes from State plans to State eligibility demonstrations.
The Secretary believes that these provisions remain necessary to ensure
adequate public participation in the development of State policies and
procedures regarding the provision of special education and related
services to children with disabilities under Part B of the Act, and
sees nothing in the changes in the IDEA Amendments of 1997 that
indicates a Congressional intent to reduce these requirements.
Subpart C--Services
Free Appropriate Public Education
Proposed Sec. 300.300 is essentially the same as in the current
regulation, with minor changes to update and accommodate new statutory
provisions. Proposed Secs. 300.301-300.308 also are restatements of the
current regulatory provisions at these sections.
Reflecting the Secretary's long standing interpretation of the
obligation to make FAPE available based on individual needs, a new
Sec. 300.309 would be added to address extended school year services.
This provision would require that each public agency ensure that
extended school year services are available to each child with a
disability to the extent necessary to ensure that a free appropriate
public education is available to the child, based on an individual
determination of the child's needs by the child's IEP team. The term
``extended school year services'' is defined to be special education
and related services that are provided to a child with a disability
beyond the normal school year, in accordance with the child's IEP, at
no cost to the child's parents, and that meet the standards of the SEA.
A note following this section would explain that agencies may not limit
extended school year services only to children with particular
categories of disability or unilaterally limit the duration of
services. The note would also explain that nothing in Part B requires
that every child with a disability is entitled to, or must receive,
extended school year services. A second note would explain that States
may establish standards for decisions regarding which children should
receive extended school year services and provides examples of
acceptable factors that may be considered. These changes reflect the
Secretary's policy guidance over the years on this topic, which itself
has been informed by a number of Federal court decisions over the last
twenty years under Part B of the Act. The Secretary believes that the
changes are necessary to ensure that children with disabilities who
need extended school year services have appropriate access to those
services, and that those services are a part of FAPE.
Proposed Sec. 300.311 reflects new statutory provisions in sections
612(a)(1)(B) and 614(d)(6) concerning students with disabilities who
are in adult correctional facilities. Paragraph (a) would specify that
the obligation to make FAPE available to all children with disabilities
does not apply to students aged 18 through 21 to the extent that State
law does not require that special education and related services under
Part B be provided to students with disabilities who, in the last
educational placement prior to their incarceration in an adult
correctional facility, were not actually identified as being a child
with a disability and did not have an IEP under Part B. This language
is taken from the statute, with minor changes for the sake of clarity.
Paragraph (b) would provide that certain requirements of Part B do not
apply to students with disabilities who are convicted as adults under
State law and incarcerated in adult prisons: the provisions relating to
participation of children with disabilities in general assessments, and
the provisions relating to transition planning and transition services
for students whose eligibility under Part B will end, because of their
age, before they will be released from prison. The Secretary interprets
the provision concerning transition services to require consideration
of the student's sentence and eligibility for early release because the
required determination must happen before the student actually is
released from prison. Reflecting statutory requirements, paragraph (c)
would specify that the IEP team of a student with a disability who is
convicted as an adult under State law and incarcerated in an adult
prison may modify the student's IEP or placement if the State has
demonstrated a bona fide security or compelling penological interest
that cannot otherwise be accommodated.
Evaluations and Reevaluations
Proposed Secs. 300.320 and 300.321 would be added to reflect the
basic statutory requirements concerning evaluations and reevaluations
contained in section 614 (a) and (b) of the Act. Evaluations and
reevaluations would be addressed in greater detail in the discussion of
proposed Secs. 300.530-300.536.
Individualized Education Programs
Proposed Sec. 300.340 would restate the current regulatory
definitions of ``IEP'' and ``participating agency.''
Proposed Sec. 300.341 would restate the current regulatory
provision concerning the SEA responsibility for development and
implementation of IEPs, with one minor wording change. Throughout these
proposed regulations, the Secretary proposes to use the term
``religiously-affiliated'' rather than the term ``parochial'' as the
former is more inclusive and accurately reflects the type of schools
described. These proposed regulations distinguish between children
placed in private schools by public agencies and those
[[Page 55040]]
placed in private schools by their parents. Proposed Secs. 300.401 and
300.402 address children placed by public agencies in private schools.
Proposed Sec. 300.403 concerns placement in private schools when the
provision of FAPE is at issue. Proposed Secs. 300.450-300.462 concern
children placed by their parents in private schools.
Proposed Sec. 300.342 (a) and (b) would restate, with minor
nonsubstantive changes, the current regulatory provisions regarding
when IEPs must be in effect. A new paragraph (c) would be added
regarding the use of IFSPs for children aged 3 through 5 as provided
for in the statute at section 614(d)(2)(B), and reflecting the
Secretary's interpretation that this provision permits, if State policy
provides and the public agency and parent agree, the use of an IFSP
that meets the content requirements of section 636(d) of the Act in
place of a document meeting the IEP content requirements of section
614(d) of the Act, for children aged 3 through 5. With regard to the
requirement for agreement by the parents to using an IFSP instead of an
IEP, the Secretary proposes to require written informed consent that is
based on an explanation of the differences between an IFSP and an IEP
in light of the importance of the IEP as the statutory vehicle for
ensuring the provision of FAPE to children with disabilities. For most
children who are five-years old, and for many 3- and 4-year olds as
well, the use of an IEP that must be tied to the general curriculum
provided to nondisabled age peers, is encouraged.
The Secretary proposes to add a new paragraph (d) to this section
representing the Secretary's understanding of section 201(a)(2)(C) of
Pub. L. 105-17 that IEPs that meet the requirements of section 614(d)
(1)-(5) must be in effect as of July 1, 1998. Delaying implementation
of these provisions beyond that date would be inconsistent with the
right of children with disabilities to an IEP that meets the new
requirements as of July 1, 1998. The note following this section from
current regulations would be retained with minor changes, and a new
note added to clarify that the provisions of section 614(d)(6) of the
Act, relating to services to children with disabilities in adult
prisons, took effect on June 4, 1997.
Proposed Sec. 300.343(a) restates the current regulatory provision
concerning the general standard for conducting IEP meetings. In
paragraph (b) of this section, the Secretary would add a new provision
on timelines for IEPs that would require that an offer of services
based on an IEP must be made within a reasonable period of time from a
public agency's receipt of parent consent to an initial evaluation
reflecting the Department's longstanding interpretation of the
requirements of the statute. A note following this section would be
added to explain that for most children it would be reasonable to
expect that a public agency would offer services based on an IEP within
60 days of receipt of parent consent for initial evaluation. The
Secretary proposes this reasonable time standard in light of the
importance of appropriate educational services for children with
disabilities to enable them to receive FAPE and the frequent long
delays observed between referral for special education evaluation and
actual provision of services. Paragraph (b) would retain the current
regulatory timeline of 30 days from the determination that the child is
a child with a disability to an IEP meeting. A new paragraph (c) would
also be added to this section that revises the current regulatory
provision concerning review of IEPs to reflect new statutory
requirements in section 614(d)(4). The note following this section in
current regulations would be deleted as unnecessary and confusing in
light of changes proposed to the regulation.
Proposed Sec. 300.344 would revise the current regulatory provision
concerning IEP team membership to reflect the requirements of section
614(d)(1)(B). Under this provision the IEP team includes the parents of
the child with a disability; at least one regular education teacher (if
the child is, or may be, participating in regular education); at least
one special education teacher or, if appropriate, at least one special
education provider of the child; a representative of the LEA who meets
certain specified requirements; an individual who can interpret the
instructional implications of evaluation results; at the discretion of
the parent or agency, other individuals who have knowledge or special
expertise regarding the child, including related services personnel;
and, if appropriate, the child.
The Secretary proposes to expand the current regulatory provision
requiring the agency to invite students to participate in IEP meetings
if the meeting will include consideration of the statement of needed
transition services to also include meetings that will include
consideration of transition service needs, in accordance with
Sec. 300.347(b)(1) and note 5 following that section. This reflects the
Department's longstanding regulatory position that a student with a
disability be involved in the development of an IEP if transition
services are being considered. The current regulatory provision
regarding taking other steps to ensure consideration of the student's
preferences and interest if the student does not attend the IEP meeting
would be maintained. This section also would maintain the current
regulatory provisions concerning inviting representatives of any other
agency that is likely to be responsible for providing or paying for
transition services, including taking other steps to obtain
participation if a representative invited to a meeting does not attend.
Note 1 following this section would be revised in light of the
statutory changes. It would also explain that an LEA may designate one
or more regular education teachers of the child to attend the IEP
meeting, if the child has more than one. It would further state that if
all of the child's teachers are not participating in the IEP meeting,
LEAs are encouraged to seek input from teachers who will not be
attending, and should ensure that teachers who do not attend the IEP
meeting are informed about the results of the meeting, including
receiving a copy of the IEP. Finally, the note would explain that LEAs
are encouraged, in the case of a child whose behavior impedes the
learning of the child or others, to have a person knowledgeable about
positive behavior strategies at the meeting. Note 2 following this
section in the current regulations would be removed.
Proposed Sec. 300.345 largely would maintain the current regulatory
provision concerning parent participation in IEP meetings based on the
statutory requirements at section 614(d)(1)(B). It would be revised
only by adding to the parent notification provisions that for students
of any age, if a purpose of the IEP meeting is either the development
of a statement of transition service needs or consideration of needed
transition services, the agency's notice to the parent must indicate
that purpose, and that the agency must invite the student to attend.
This change merely modifies the current regulation to accommodate the
new statutory provision requiring a statement of transition service
needs for students beginning no later than age 14 contained in proposed
Sec. 300.347.
Proposed Sec. 300.346 would add a new provision to the regulations
based on the requirements of section 614(d)(3) concerning development
of the IEP. That section requires that in developing each child's IEP
the IEP team consider the strengths of the child and the concerns of
the parents for enhancing the education of their child and the results
of the initial or most recent
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evaluation of the child. That section requires that the IEP team also
consider a number of special factors that may apply to individual
children. For example, if a child's behavior impedes his or her
learning or that of others, the IEP team must consider, if appropriate,
strategies, including positive behavioral interventions, strategies,
and supports to address that behavior. These statutory requirements are
included in proposed Sec. 300.346(a). Proposed Sec. 300.346(b) would
clarify that IEP teams consider these factors in review and revision of
IEPs as well as in their initial development. A paragraph (c) also
would be added to clarify that if in considering a factor, the IEP team
determines that a child needs a particular device or service (including
an intervention, accommodation, or other program modification) in order
for the child to receive FAPE, the IEP team must include a statement to
that effect in the child's IEP. It would be an anomalous result if an
IEP team determined that a service or device was needed to address one
of the statutory special factors, and that service or device were not
included in the child's IEP.
Paragraph (d) of this proposed section would add the statutory
requirements of section 614(d) (3)(C) and (4)(B) which specify that the
regular education teacher, to the extent appropriate, must participate
in the development, review, and revision of the IEP of the child,
including assisting in the determination of appropriate positive
behavioral interventions and strategies and the determination of
supplementary aids and services, program modifications, and support for
school personnel. Paragraph (e) of this section would incorporate the
new statutory provision of section 614(e) which specifies that IEP
teams are not required to include information under one component of a
child's IEP that is already included under another. Three notes would
also be added following this section. The first would recognize the
importance of the consideration of the special factors in development
of a child's IEP. As appropriate, consideration of these factors must
include a review of valid evaluation data and the observed needs of the
child resulting from the evaluation process. The second note would
acknowledge the statement in the House Committee Report regarding Pub.
L. No. 105-17 that states that for children who are deaf or hard of
hearing the IEP team should implement the special consideration
provision in a manner consistent with the ``Deaf Students Education
Services'' policy guidance from the Department. The third note would
explain how the considerations addressed in this section affect the
development of an IEP for a child who is limited-English proficient.
This is one of several notes addressing the responsibility of public
agencies to effectively meet the needs of children with limited English
proficiency who have a disability or are suspected of having a
disability. The Secretary requests public comment on whether additional
clarification would be useful.
Proposed Sec. 300.347 would replace the current regulatory
provision on the contents of IEPs with the new statutory requirements
from section 614(d)(1)(A) regarding the contents of an IEP. In
addition, proposed Sec. 300.347 would maintain the current regulatory
provision regarding transition services on a student's IEP which states
that if the IEP team determines that services are not needed in one or
more of certain of the areas specified in the definition of transition
services, the IEP team must include a statement to that effect and the
basis upon which the determination was made. In addition, the Secretary
would add, as paragraph (d), a statement that special rules concerning
the content of IEPs apply for children with disabilities who are in
adult prisons, consistent with section 614(d)(6) of the Act. The notes
following the current regulatory provision on IEP contents would be
shortened and condensed into one note regarding transition services.
Notes would be added following this section explaining several issues
raised by the new provisions on IEP contents--the emphasis on the
general curriculum, the focus of the IEP on enabling children with
disabilities to access the general curriculum, the relationship of
teaching and related service methodologies or approaches and the
content of the IEP, the new reporting to parents requirement and the
new statement of transition service needs. A final note would explain
that it would not be a violation of Part B of the Act for a public
agency to begin planning for transition service needs for students
younger than age 14 and transition services for students younger than
age 16.
Proposed Sec. 300.348 would maintain the current regulatory
provision concerning agency responsibility for transition services,
consistent with section 614 (d)(5) and (d)(1)(A)(vii). Current
regulatory provisions concerning private school placements by public
agencies and children with disabilities in private schools would be
retained as proposed Secs. 300.349 and 300.350, with minor wording
changes. These sections reflect the Secretary's interpretation of how
public agencies meet their responsibilities regarding conducting IEP
meetings under section 614(d)(1)(B) in light of the requirements of
section 612(a)(10) (A) and (B) regarding providing services to children
with disabilities in private schools. The current regulatory provision
concerning IEP accountability would also be maintained as proposed
Sec. 300.351. The Secretary believes that this provision continues to
represent the appropriate interpretation of the statutory provisions
concerning IEPs. However, the note following this section has been
revised in light of the heightened focus in the IDEA Amendments of 1997
on providing children with disabilities the instruction, services and
modifications that will enable them to achieve a high standards.
Direct Services by the SEA
Proposed Sec. 300.360(a) would replace the current regulatory
provision describing the SEA's use of funds, that otherwise would have
gone to an LEA, to provide direct services, with the new statutory
requirements on this issue. Paragraphs (b) and (c) would be maintained
from the current regulations, reflecting the Secretary's continuing
interpretation of how SEAs implement direct services. The note
following this section would be retained, with material deleted that
has been rendered obsolete by the new statute. Proposed Sec. 300.361
would be retained from the current regulations, consistent with the
requirements of section 613(h)(2) of the Act.
Section 611(f)(3) authorizes several new uses of money that the
State may retain at the State level, including to establish and
implement the mediation process; to assist LEAs in meeting personnel
shortages; to develop a State Improvement Plan under subpart 1 of Part
D of the Act; to carry out activities at the State and local levels to
meet performance goals and to support implementation of the State
Improvement Plan; to supplement other amounts used to develop and
implement a Statewide coordinated services system (but not more than
one percent of the grant under section 611 of the Act); and for
capacity building and system improvement subgrants to LEAs. The current
regulatory provision would be expanded by adding these new statutory
provisions as Sec. 300.370(a) (3)-(8). Proposed Sec. 300.370(a) (1) and
(2) reflect statutory provisions that were in the prior law and are
retained in section 611(f)(3). The provision in the current regulations
concerning State matching would be deleted, reflecting the deletion of
this requirement from the statute.
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Proposed Sec. 300.372 would replace the current regulatory
provision regarding the applicability of the nonsupplanting provision
to funds that the State uses with the new requirements from section
611(f)(1)(C) that the SEA may use funds retained without regard to the
prohibition on commingling and the prohibition on supplanting other
funds.
Comprehensive System of Personnel Development
The regulatory provisions in proposed Secs. 300.380-300.382 would
be revised to reflect new statutory requirements concerning a State's
comprehensive system of personnel development (CSPD). Proposed
Sec. 300.380 would require that each State's CSPD be consistent with
Part B of the Act and the CSPD provision of Part H (to be renamed Part
C); be designed to ensure an adequate supply of qualified special
education, regular education and related services personnel; be updated
at least every five years; and meet the requirements of Secs. 300.381-
300.382, which contain the provisions of section 653 (b)(2)(D) and
(c)(3)(D), as required by section 612(a)(14). Because the statute makes
the CSPD the same as the personnel sections of a State Improvement
Plan, the Secretary proposes to add a provision to make clear that a
State with a State Improvement grant would be considered to have met
the requirements of this section.
Proposed Sec. 300.381 would require a State to include an analysis
of State and local needs for professional development of personnel to
serve children with disabilities that must include at least certain
minimum specified information. Proposed Sec. 300.382 would require
States to describe the strategies in a number of specified areas that
they will use to address the needs identified under proposed
Sec. 300.381, including identified needs for in-service and pre-service
preparation to ensure that all personnel who work with children with
disabilities (including both professional and paraprofessional
personnel who provide special education, general education, related
services, or early intervention services) have the skills and knowledge
necessary to meet the needs of children with disabilities.
Subpart D--Children in Private Schools
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Sections 300.400-300.402 of these proposed rules would incorporate
the existing rules regarding children with disabilities placed in
private schools by public agencies and children with disabilities
placed in private schools by their parents. These proposed rules
reflect the unchanged statutory provision in section 612(a)(10)(B) that
children with disabilities placed in or referred to private schools or
facilities by an SEA or LEA must be provided special education and
related services (1) in accordance with an IEP, and (2) at no cost to
their parents. Section 612(a)(10)(B) further requires that the SEA must
ensure that the private facilities meet State standards and that
children placed in those facilities have the same rights they would
have if served by a public educational agency. The IDEA Amendments of
1997 added new requirements concerning children placed by their parents
in private schools. Section 612(a)(10)(C)(i) provides that an LEA is
not required to pay for the cost of education, including special
education and related services, of a child with a disability at a
private school or facility if the LEA made FAPE available to the child
and the parents elected to place the child in the private school.
Parent reimbursement is subject to certain requirements described in
the next paragraph of this preamble. This provision would be reflected
in proposed Sec. 300.403(a). Proposed Sec. 300.403(b) would be retained
from the current regulations to clarify that due process procedures can
be used to resolve disagreements about the provision of FAPE and
financial responsibility of the public agency.
Section 612(a)(10)(C)(ii) describes the circumstances under which a
parent may seek reimbursement from a public agency for a private school
placement. This provision states that a court or a hearing officer may
require the public agency to reimburse parents for the cost of a
private school placement if the court or hearing officer finds that the
public agency had not made FAPE available to the child in a timely
manner. It also states that reimbursement may be reduced or denied if
(1) at the child's most recent IEP meeting the parents did not inform
the IEP team that they were rejecting the public agency's proposed
placement, including stating their concerns and their intent to enroll
their child in a private school at public expense; (2) ten (10)
business days (including holidays that occur on a business day) prior
to the removal of the child from public school, the parents did not
give written notice that they were rejecting the public agency proposal
and their intent to enroll their child in a private school at public
expense; (3) prior to the parents' removal of the child from a public
school, the public agency notified the parents, through the prior
written notice required under section 615(b)(7) of the Act, of its
intention to evaluate the child, but the parents did not make the child
available for evaluation; or (4) upon a judicial finding of
unreasonableness regarding the actions of the parents. Reimbursement
may not be reduced or denied for failure to provide that notice if: (1)
The parent is illiterate and cannot write in English; (2) compliance
with an evaluation would likely result in physical or serious emotional
harm to the child; (3) the school prevented the parent from providing
the notice; or (4) the parents had not received notice, pursuant to
section 615 of the Act, of the notice requirement. These provisions
would be incorporated in the proposed regulations at Sec. 300.403(c)-
(e).
Children With Disabilities Enrolled by their Parents in Private Schools
Proposed Sec. 300.450 would retain the current regulatory
definition of ``private school children with disabilities.''
Section 612(a)(10)(A) of the Act provides that to the extent
consistent with the number and location of children with disabilities
who are enrolled by their parents in private elementary and secondary
schools, provision is made for the participation of those children in
the program assisted or carried out under this part by providing for
these children special education and related services, by spending a
proportionate amount of the Federal funds available under Part B of the
Act on services for these children. Those services may be provided to
children with disabilities on the premises of private, including
parochial, schools, to the extent consistent with law. The statute also
requires that the SEA's and LEA's child find activities apply to
children with disabilities who are placed by their parents in private,
including parochial, schools.
Proposed Secs. 300.451-300.462 would incorporate these statutory
requirements, and appropriate provisions from existing regulatory
requirements (from 34 CFR 76.650-76.662) regarding the participation of
private school students with disabilities. The term ``religiously-
affiliated'' would be used instead of the statutory term ``parochial''
as the Secretary assumes that all religious schools were intended by
Congress to be included, not just those organized on a parish basis.
The child find obligation from the statute is reflected in proposed
Sec. 300.451. Proposed Sec. 300.452 describes the basic statutory
obligation to provide special
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education and related services to private school children with
disabilities and says that obligation is met by meeting the
requirements of Secs. 300.453-300.462. In Sec. 300.453, the Secretary
interprets the statutory limitation on the amount of funds that LEAs
must spend on providing special education and related services to
private school children with disabilities as the same proportion of the
LEA's total subgrant under sections 611 and 619 of the Act as the
number of private school children with disabilities aged 3 through 21
and 3 through 5, respectively, is to the total numbers of children with
disabilities in its jurisdiction in each of those age ranges. A note
would be added after this section to clarify that SEAs and LEAs are not
prohibited from providing more services to private school children with
disabilities than is required