[Federal Register: October 22, 1997 (Proposed Rules)]
[Page 55076-55126]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc97-22]
 
[[pp. 55076-55126]] 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

[[Continued from page 55075]]

[[Page 55076]]

    (b) Required information. The information described in paragraph 
(a) of this section must include--
    (1) A copy of each State statute, policy, and standard that 
regulates the manner in which IEPs are developed, implemented, 
reviewed, and revised; and
    (2) The procedures that the SEA follows in monitoring and 
evaluating those programs.

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


Sec. 300.129  Procedural safeguards.

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

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


Sec. 300.130  Least restrictive environment.

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

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

    Note: With respect to the LRE requirement of this section, and 
the continuum of alternative educational placements described in 
Sec. 300.551, the House Committee Report on Pub. L. 105-17 states:
    The committee supports the longstanding policy of a continuum of 
alternative placements designed to meet the unique needs of each 
child with a disability. Placement options available include 
instruction in regular classes, special classes, special schools, 
home instruction, and instruction in hospitals and institutions. For 
disabled children placed in regular classes, supplementary aids and 
services and resource room services or itinerant instruction must 
also be offered as needed. (H. Rep. 105-95, p. 91 (1997))


Sec. 300.131  [Reserved]


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

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

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


Sec. 300.133  Private schools.

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

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


Sec. 300.134  [Reserved]


Sec. 300.135  Comprehensive system of personnel development.

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

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

    Note: With respect to meeting the CSPD requirement of this 
section, the House Committee Report on Pub. L. 105-17 states:

    Section 612, as [in] current law, requires that a State have in 
effect a Comprehensive System of Personnel Development (CSPD) that 
is designed to ensure an adequate supply of qualified personnel, 
including the establishment of procedures for acquiring and 
disseminating significant knowledge derived from educational 
research and for adopting, where appropriate, promising practices, 
materials, and technology. (H. Rep. 105-95, p. 93 (1997))
    States will be able to use the information provided to meet the 
requirement in Sec. 300.135(a)(2) as a part of their State 
Improvement Plan under section 653 of the Act, if they choose to do 
so.


Sec. 300.136  Personnel standards.

    (a) As used in this part --
    (1) Appropriate professional requirements in the State means entry 
level requirements that--
    (i) Are based on the highest requirements in the State applicable 
to the profession or discipline in which a person is providing special 
education or related services; and
    (ii) Establish suitable qualifications for personnel providing 
special education and related services under Part B of the Act to 
children and youth with disabilities who are served by State, local, 
and private agencies (see Sec. 300.2);
    (2) Highest requirements in the State applicable to a specific 
profession or discipline means the highest entry-level academic degree 
needed for any State-approved or -recognized certification, licensing, 
registration, or other comparable requirements that apply to that 
profession or discipline;
    (3) Profession or discipline means a specific occupational category 
that --
    (i) Provides special education and related services to children 
with disabilities under Part B of the Act;
    (ii) Has been established or designated by the State; and
    (iii) Has a required scope of responsibility and degree of 
supervision; and
    (4) State-approved or -recognized certification, licensing, 
registration, or other comparable requirements means the requirements 
that a State legislature either has enacted or has authorized a State 
agency to promulgate through rules to establish the entry-level 
standards for employment in a specific profession or discipline in that 
State.
    (b) (1) The State must have on file with the Secretary policies and 
procedures relating to the establishment and maintenance of standards 
to ensure that personnel necessary to carry out the purposes of this 
part are appropriately and adequately prepared and trained.
    (2) The policies and procedures required in paragraph (b)(1) of 
this section must provide for the establishment and maintenance of 
standards that are consistent with any State-approved or -recognized 
certification, licensing, registration, or other comparable 
requirements that apply to the profession or discipline in which a 
person is providing special education or related services.

[[Page 55077]]

    (c) To the extent that a State's standards for a profession or 
discipline, including standards for temporary or emergency 
certification, are not based on the highest requirements in the State 
applicable to a specific profession or discipline, the State must 
provide the steps the State is taking and the procedures for notifying 
public agencies and personnel of those steps and the timelines it has 
established for the retraining or hiring of personnel to meet 
appropriate professional requirements in the State.
    (d) (1) In meeting the requirements in paragraphs (b) and (c) of 
this section, a determination must be made about the status of 
personnel standards in the State. That determination must be based on 
current information that accurately describes, for each profession or 
discipline in which personnel are providing special education or 
related services, whether the applicable standards are consistent with 
the highest requirements in the State for that profession or 
discipline.
    (2) The information required in paragraph (d)(1) of this section 
must be on file in the SEA and available to the public.
    (e) In identifying the highest requirements in the State for 
purposes of this section, the requirements of all State statutes and 
the rules of all State agencies applicable to serving children and 
youth with disabilities must be considered.
    (f) A State may allow paraprofessionals and assistants who are 
appropriately trained and supervised, in accordance with State law, 
regulations, or written policy, in meeting the requirements of this 
part to be used to assist in the provision of special education and 
related services to children with disabilities under Part B of the Act.
    (g) In implementing this section, a State may adopt a policy that 
includes a requirement that LEAs in the State make an ongoing good 
faith effort to recruit and hire appropriately and adequately trained 
personnel to provide special education and related services to children 
with disabilities, including, in a geographic area of the State where 
there is a shortage of personnel that meet these qualifications, the 
most qualified individuals available who are making satisfactory 
progress toward completing applicable course work necessary to meet the 
standards described in paragraph (b)(2) of this section, consistent 
with State law and the steps described in paragraph (c) of this 
section, within three years.

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

    Note 1: The regulations require that the State use its own 
existing highest requirements to determine the standards appropriate 
to personnel who provide special education and related services 
under Part B of the Act. The regulations do not require States to 
set any specified training standard, such as a master's degree, for 
employment of personnel who provide services under Part B of the 
Act. In some instances, States are required under paragraph (c) of 
this section to show that they are taking steps to retrain or to 
hire personnel to meet the standards adopted by the SEA that are 
based on requirements for practice in a specific profession or 
discipline that were established by other State agencies. States in 
this position need not, however, require personnel providing 
services under Part B of the Act to apply for and obtain the 
license, registration, or other comparable credential required by 
other agencies of individuals in that profession or discipline. The 
regulations permit each State to determine the specific occupational 
categories required to provide special education and related 
services and to revise or expand these categories as needed. The 
professions or disciplines defined by the State need not be limited 
to traditional occupational categories.

    Note 2: A State may exercise the option under paragraph (g) of 
this section even though the State has reached its established date, 
under paragraph (c) of this section, for training or hiring all 
personnel in a specific profession or discipline to meet appropriate 
professional requirements in the State. As a practical matter, it is 
essential that a State have a mechanism for serving students if 
instructional needs exceed available personnel who meet appropriate 
professional requirements in the State for a specific profession or 
discipline. A State that continues to have shortages of personnel 
meeting appropriate professional requirements in the State must 
address those shortages in its comprehensive system of personnel 
development under Sec. 300.135.

    Note 3: If a State has established only one entry-level academic 
degree for employment of personnel in a specific profession, 
modification of that standard as necessary to ensure the provision 
of FAPE to all children in the State would not violate the 
provisions of Sec. 300.136(b) and (c).


Sec. 300.137  Performance goals and indicators.

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

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


Sec. 300.138  Participation in assessments.

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

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

    Note: With respect to paragraph (b) of this section, it is 
assumed that only a small percentage of children with disabilities 
will need alternative assessments.


Sec. 300.139  Reports relating to assessments.

    (a) General. In implementing the requirements of Sec. 300.138, the 
SEA shall make available to the public, and report to the public with 
the same frequency and in the same detail as it reports on the 
assessment of nondisabled children, the following information:
    (1) The number of children with disabilities participating--
    (i) In regular assessments; and
    (ii) The number of those children participating in alternate 
assessments.
    (2) The performance results of the children described in paragraph 
(a)(1) of this section--
    (i) On regular assessments (beginning not later than July 1, 1998); 
and
    (ii) On alternate assessments (not later than July 1, 2000), if 
doing so would be statistically sound and would not result in the 
disclosure of performance results identifiable to individual children.

[[Page 55078]]

    (b) Combined reports. Reports to the public under paragraph (a) of 
this section must include--
    (1) Aggregated data that include the performance of children with 
disabilities together with all other children; and
    (2) Disaggregated data on the performance of children with 
disabilities.
    (c) Disaggregation of data. Data relating to the performance of 
children described under paragraph (a)(2) of this section must be 
disaggregated--
    (1) For assessments conducted after July 1, 1998; and
    (2) For assessments conducted before July 1, 1998, if the State is 
required to disaggregate the data prior to July 1, 1998.

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

    Note: Paragraph (b) of this section requires a public agency to 
report aggregated data that include children with disabilities. 
However, a public agency is not precluded from also analyzing and 
reporting data in other ways (such as, maintaining a trendline that 
was established prior to including children with disabilities in 
those assessments).


Sec. 300.140  [Reserved]


Sec. 300.141  SEA responsibility for general supervision.

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

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


Sec. 300.142  Methods of ensuring services.

    (a) Establishing responsibility for services. The Chief Executive 
Officer or designee of that officer shall ensure that an interagency 
agreement or other mechanism for interagency coordination is in effect 
between each noneducational public agency described in paragraph (b) of 
this section and the SEA, in order to ensure that all services 
described in paragraph (b)(1) of this section that are needed to ensure 
FAPE is provided, including the provision of these services during the 
pendency of any dispute under paragraph (a)(3) of this section. The 
agreement or mechanism must include the following:
    (1) Agency financial responsibility. An identification of, or a 
method for defining, the financial responsibility of each agency for 
providing services described in paragraph (b)(1) of this section to 
ensure FAPE to children with disabilities. The financial responsibility 
of each public agency described in paragraph (b) of this section, 
including the State Medicaid agency and other public insurers of 
children with disabilities, must precede the financial responsibility 
of the LEA (or the State agency responsible for developing the child's 
IEP).
    (2) Conditions and terms of reimbursement. The conditions, terms, 
and procedures under which an LEA must be reimbursed by other agencies.
    (3) Interagency disputes. Procedures for resolving interagency 
disputes (including procedures under which LEAs may initiate 
proceedings) under the agreement or other mechanism to secure 
reimbursement from other agencies or otherwise implement the provisions 
of the agreement or mechanism.
    (4) Coordination of services procedures. Policies and procedures 
for agencies to determine and identify the interagency coordination 
responsibilities of each agency to promote the coordination and timely 
and appropriate delivery of services described in paragraph (b)(1) of 
this section.
    (b) Obligation of noneducational public agencies.
    (1) General. If any public agency other than an educational agency 
is otherwise obligated under Federal or State law, or assigned 
responsibility under State policy or pursuant to paragraph (a) of this 
section, to provide or pay for any services that are also considered 
special education or related services (such as, but not limited to, 
services described in Sec. 300.5 relating to assistive technology 
devices, Sec. 300.6 relating to assistive technology services, 
Sec. 300.22 relating to related services, Sec. 300.26 relating to 
supplementary aids and services, and Sec. 300.27 relating to transition 
services) that are necessary for ensuring FAPE to children with 
disabilities within the State, the public agency shall fulfill that 
obligation or responsibility, either directly or through contract or 
other arrangement.
    (2) Reimbursement for services by noneducational public agency. If 
a public agency other than an educational agency fails to provide or 
pay for the special education and related services described in 
paragraph (b)(1) of this section, the LEA (or State agency responsible 
for developing the child's IEP) shall provide or pay for these services 
to the child. The LEA or State agency may then claim reimbursement for 
the services from the noneducational public agency that failed to 
provide or pay for these services and that agency shall reimburse the 
LEA or State agency in accordance with the terms of the interagency 
agreement or other mechanism described in paragraph (a)(1) of this 
section, and the agreement described in paragraph (a)(2) of this 
section.
    (c) Special rule. The requirements of paragraph (a) of this section 
may be met through--
    (1) State statute or regulation;
    (2) Signed agreements between respective agency officials that 
clearly identify the responsibilities of each agency relating to the 
provision of services; or
    (3) Other appropriate written methods as determined by the Chief 
Executive Officer of the State or designee of that officer.
    (d) Information. The State must have on file with the Secretary 
information to demonstrate that the requirements of paragraphs (a) 
through (c) of this section are met.
    (e) Children with disabilities who are covered by private 
insurance.
    (1) A public agency may not require parents of children with 
disabilities, if they would incur a financial cost, to use private 
insurance proceeds to pay for the services that must be provided to an 
eligible child under this part.
    (2) For the purposes of this section, the term financial costs 
includes --
    (i) An out-of-pocket expense such as the payment of a deductible or 
co-pay amount incurred in filing a claim, but not including incidental 
costs such as the time needed to file an insurance claim or the postage 
needed to mail the claim;
    (ii) A decrease in available lifetime coverage or any other benefit 
under an insurance policy; and
    (iii) An increase in premiums or the discontinuation of the policy.
    (f) Proceeds from public or private insurance. Proceeds from public 
or private insurance may not be treated as program income for purposes 
of 34 CFR 80.25.

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

    Note 1: The House Committee Report on Pub. L. 105-17 related to 
methods of ensuring services states:
    A provision is added to the Act to strengthen the obligation to 
ensure that all services necessary to ensure a free appropriate 
public education are provided through the coordination of public 
educational and non-educational programs. This subsection is meant 
to reinforce two important principles: (1) That the State agency or 
LEA responsible for developing a child's IEP can look to 
noneducational agencies such as Medicaid to provide those services 
they (the non-educational agencies) are otherwise responsible for; 
and (2) that the State agency or LEA remains responsible for

[[Page 55079]]

ensuring that children receive all the services described in their 
IEPs in a timely fashion, regardless of whether another agency will 
ultimately pay for the services.
    The Committee places particular emphasis in the bill on the 
relationship between schools and the State Medicaid Agency in order 
to clarify that health services provided to children with 
disabilities who are Medicaid-eligible and meet the standards 
applicable to Medicaid, are not disqualified for reimbursement by 
Medicaid agencies because they are provided services in a school 
context in accordance with the child's IEP. (H. Rep. 105-95, p. 92 
(1997))

    Note 2: The intent of paragraph (e) of this section is to make 
clear that services required under Part B of the Act must be 
provided at no cost to the child's parents, whether they have public 
or private insurance. The Department, in a Notice of Interpretation 
published Dec. 30, 1980 at 45 FR 66390 noted that both Part B of the 
Act and Section 504 of the Rehabilitation Act of 1973 prohibit a 
public agency from requiring parents, where they would incur a 
financial cost, to use insurance proceeds to pay for services that 
are required to be provided to a child with a disability under the 
FAPE requirements of those statutes. The use of parents' insurance 
proceeds to pay for services in these circumstances must be 
voluntary. For example, a family could not be required to access 
private insurance that is required to enable a child to receive 
Medicaid services, where that insurance use results in financial 
costs to the family.

    Note 3: If the public agency cannot get parent consent to use 
private insurance, the public agency may use funds under this part 
to pay for the service. In addition, in order to avoid financial 
costs to parents who otherwise would consent to use private 
insurance, the public agency may use funds under this part to pay 
the costs of accessing the insurance, e.g., deductible or co-pay 
amounts.
    Note 4: Paragraph (f) clarifies that, if a public agency 
receives funds from public or private insurance for services under 
this part, the public agency is not required to return those funds 
to the Department or to dedicate those funds for use in this 
program, although a public agency retains the option of using those 
funds in this program. If a public agency spends reimbursements from 
Federal funds (e.g., Medicaid) for services under this part, those 
funds will not be considered ``State or local'' funds for purposes 
of the maintenance of effort provisions in Secs. 300.154 and 
300.231. This is because the expenditure that is reimbursed is 
considered to be an expenditure of funds from the source that 
provides the reimbursement.


Sec. 300.143  SEA implementation of safeguards.

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

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


Sec. 300.144  Hearing relating to LEA eligibility.

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

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


Sec. 300.145  Recovery of funds for misclassified children.

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

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


Sec. 300.146  Suspension and expulsion rates.

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

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


Sec. 300.147  Additional information if SEA provides direct services.

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

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


Sec. 300.148  Public participation.

    (a) The State must ensure that, prior to the adoption of any 
policies and procedures needed to comply with this part, there are 
public hearings, adequate notice of the hearings, and an opportunity 
for comment available to the general public, including individuals with 
disabilities and parents of children with disabilities consistent with 
Secs. 300.280-300.284.
    (b) The State must have on file with the Secretary information to 
demonstrate that the requirements of paragraph (a) of this section are 
met.

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


Sec. 300.149  [Reserved]


Sec. 300.150  State advisory panel.

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

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


Sec. 300.151  [Reserved]


Sec. 300.152  Prohibition against commingling.

    The State must have on file with the Secretary an assurance 
satisfactory to the Secretary that the funds under Part B of the Act 
are not commingled with State funds.

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

    Note: This assurance is satisfied by the use of a separate 
accounting system that includes an audit trail of the expenditure of 
the Part B funds. Separate bank accounts are not required. (See 34 
CFR 76.702 (Fiscal control and fund accounting procedures).)


Sec. 300.153  State-level nonsupplanting.

    (a) General. (1) Except as provided in Sec. 300.230, funds paid to 
a State under Part B of the Act must be used to supplement the level of 
Federal, State, and local funds (including funds that are not under the 
direct control of the SEA or LEAs) expended for special education and 
related services provided to children with disabilities under Part B of 
the Act and in no case to supplant these Federal, State, and local 
funds.

[[Page 55080]]

    (2) The State must have on file with the Secretary information to 
demonstrate to the satisfaction of the Secretary that the requirements 
of paragraph (a)(1) of this section are met.
    (b) Waiver. If the State provides clear and convincing evidence 
that all children with disabilities have available to them FAPE, the 
Secretary may waive, in whole or in part, the requirements of paragraph 
(a) of this section if the Secretary concurs with the evidence provided 
by the State under Sec. 300.589.

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


Sec. 300.154  Maintenance of State financial support.

    (a) General. The State must have on file with the Secretary 
information to demonstrate that the State will not reduce the amount of 
State financial support for special education and related services for 
children with disabilities, or otherwise made available because of the 
excess costs of educating those children, below the amount of that 
support for the preceding fiscal year.
    (b) Reduction of funds for failure to maintain support. The 
Secretary reduces the allocation of funds under section 611 of the Act 
for any fiscal year following the fiscal year in which the State fails 
to comply with the requirement of paragraph (a) of this section by the 
same amount by which the State fails to meet the requirement.
    (c) Waivers for exceptional or uncontrollable circumstances. The 
Secretary may waive the requirement of paragraph (a) of this section 
for a State, for one fiscal year at a time, if the Secretary determines 
that--
    (1) Granting a waiver would be equitable due to exceptional or 
uncontrollable circumstances such as a natural disaster or a 
precipitous and unforeseen decline in the financial resources of the 
State; or
    (2) The State meets the standard in Sec. 300.589 for a waiver of 
the requirement to supplement, and not to supplant, funds received 
under Part B of the Act.
    (d) Subsequent years. If, for any fiscal year, a State fails to 
meet the requirement of paragraph (a) of this section, including any 
year for which the State is granted a waiver under paragraph (c) of 
this section, the financial support required of the State in future 
years under paragraph (a) of this section must be the amount that would 
have been required in the absence of that failure and not the reduced 
level of the State's support.

(Authority: 20 U.S.C. 612(a)(19))


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

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

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


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

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

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

LEA and State Agency Eligibility--General


Sec. 300.180  Condition of assistance.

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

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


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

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

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


Sec. 300.182  Amendments to LEA policies and procedures.

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

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


Sec. 300.183  [Reserved]


Sec. 300.184  Excess cost requirement.

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

[[Page 55081]]

children in that age range. However, the LEA must comply with the 
nonsupplanting and other requirements of this part in providing the 
education and services.

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


Sec. 300.185  Meeting the excess cost requirement.

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

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

    Note: The excess cost requirement means that the LEA must spend 
a certain minimum amount for the education of its children with 
disabilities before Part B funds are used. This ensures that 
children served with Part B funds have at least the same average 
amount spent on them, from sources other than Part B, as do the 
children in the school district in elementary or secondary school as 
the case may be.
    Excess costs are those costs of special education and related 
services that exceed the minimum amount. Therefore, if an LEA can 
show that it has (on the average) spent the minimum amount for the 
education of each of its children with disabilities, it has met the 
excess cost requirement, and all additional costs are excess costs. 
Part B funds can then be used to pay for these additional costs.


Secs. 300.186-300.189  [Reserved]


Sec. 300.190  Joint establishment of eligibility.

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

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


Sec. 300.191  [Reserved]


Sec. 300.192  Requirements for establishing eligibility.

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

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


Sec. 300.193  [Reserved]


Sec. 300.194  State agency eligibility.

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

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


Sec. 300.195  [Reserved]


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

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

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


Sec. 300.197  LEA and State agency compliance.

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

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

LEA Eligibility--Specific Conditions


Sec. 300.220  Consistency with State policies.

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

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


Sec. 300.221  LEA and State agency implementation of CSPD.

    The LEA must have on file with the SEA information to demonstrate 
that--
    (a) All personnel necessary to carry out Part B of the Act within 
the jurisdiction of the agency are appropriately and adequately 
prepared, consistent with the requirements of Secs. 300.380-300.382; 
and

[[Page 55082]]

    (b) To the extent the LEA determines appropriate, it shall 
contribute to and use the comprehensive system of personnel development 
of the State established under Sec. 300.135.

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


Sec. 300.222-300.229  [Reserved]


Sec. 300.230  Use of amounts.

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

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


Sec. 300.231  Maintenance of effort.

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

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


Sec. 300.232  Exception to maintenance of effort.

    An LEA may reduce the level of expenditures by the LEA under Part B 
of the Act below the level of those expenditures for the preceding 
fiscal year if the reduction is attributable to--
    (a) The voluntary departure, by retirement or otherwise, or 
departure for just cause, of special education or related services 
personnel, who are replaced by qualified, lower-salaried staff;
    (b) A decrease in the enrollment of children with disabilities;
    (c) The termination of the obligation of the agency, consistent 
with this part, to provide a program of special education to a 
particular child with a disability that is an exceptionally costly 
program, as determined by the SEA, because the child--
    (1) Has left the jurisdiction of the agency;
    (2) Has reached the age at which the obligation of the agency to 
provide FAPE to the child has terminated; or
    (3) No longer needs the program of special education; or
    (d) The termination of costly expenditures for long-term purchases, 
such as the acquisition of equipment or the construction of school 
facilities.

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

    Note: With respect to the voluntary departure of special 
education personnel described in paragraph (a) of this section, the 
House Committee Report on Pub. L. 105-17 (1) clarifies that the 
intended focus of this exception is on special education personnel 
who are paid at or near the top of the salary schedule, and (2) sets 
out guidelines under which this exception may be invoked by an LEA:
    This exception is included in recognition that, in some 
situations, when higher-salaried personnel depart from their 
positions in special education, they are replaced by qualified, 
lower-salaried staff. In such situations, as long as certain 
safeguards are in effect, the LEA should not be required to maintain 
the level of the higher-salaried personnel. In order for the LEA to 
invoke this exception, the agency must ensure that such voluntary 
retirement or resignation and replacement are in full conformity 
with existing school board policies in the agency, with the 
applicable collective bargaining agreement in effect at that time, 
and with applicable State statutes. (H. Rep. 105-95, p. 96 (1997))


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

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

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


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

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

    Note: Although IDEA funds may be combined in a schoolwide 
project, and thus used for services that are not special education 
and related services, all other requirements of the IDEA must still 
be met for children with disabilities in schoolwide project schools 
that combine IDEA funds in a schoolwide project. Thus, children with 
disabilities 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 IDEA.

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


Sec. 300.235  Permissive use of funds.

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

[[Page 55083]]

paragraphs (a)(1) and (a)(2) of this section.

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


Sec. 300.236-300.239  [Reserved]


Sec. 300.240  Information for SEA.

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

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


Sec. 300.241  Treatment of charter schools and their students.

    The LEA must have on file with the SEA information to demonstrate 
that in carrying out this part with respect to charter schools that are 
public schools of the LEA, the LEA will--
    (a) Serve children with disabilities attending those schools in the 
same manner as it serves children with disabilities in its other 
schools; and
    (b) Provide funds under Part B of the Act to those schools in the 
same manner as it provides those funds to its other schools.

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

    Note: The provisions of this part that apply to other public 
schools also apply to public charter schools. Therefore, children 
with disabilities who attend public charter schools and their 
parents retain all rights under this part. With respect to this 
provision, the House Committee Report on Pub. L. 105-17 states:
    ``The Committee expects that charter schools will be in full 
compliance with Part B.'' (H. Rep. 105-95, p. 97 (1997))


Sec. 300.242  Public information.

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

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


Sec. 300.243  [Reserved]


Sec. 300.244  Coordinated services system.

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

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


Sec. 300.245  School-based improvement plan.

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

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


Sec. 300.246  Plan requirements.

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

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


Sec. 300.247  Responsibilities of the LEA.

    An LEA that is granted authority under Sec. 300.245(b) to permit a 
public school to design, implement, and evaluate a school-based 
improvement plan shall--
    (a) Select each school under the jurisdiction of the agency that is 
eligible to design, implement, and evaluate the plan;
    (b) Require each school selected under paragraph (a) of this 
section, in accordance with criteria established by the LEA under 
paragraph (c) of this section, to establish a school-based standing 
panel to carry out the duties described in Sec. 300.246(b);
    (c) Establish--
    (1) Criteria that must be used by the LEA in the selection of an 
eligible school under paragraph (a) of this section;
    (2) Criteria that must be used by a public school selected under 
paragraph (a) of this section in the establishment of a school-based 
standing panel to carry out the duties described in

[[Page 55084]]

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

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


Sec. 300.248  Limitation.

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

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


Sec. 300.249  Additional requirements.

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

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


Sec. 300.250  Extension of plan.

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

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

Secretary of the Interior-- Eligibility


Sec. 300.260  Submission of information.

    The Secretary may provide the Secretary of the Interior amounts 
under Sec. 300.715 for a fiscal year only if the Secretary of the 
Interior submits to the Secretary information that--
    (a) Meets the requirements of section 612(a)(1), (3)-(9), (10) (B), 
(C), (11)-(12), (14)-(17), (20), (21) and (22) of the Act (including 
monitoring and evaluation activities);
    (b) Meets the requirements of section 612(b) and (e) of the Act;
    (c) Meets the requirements of section 613(a) (1), (2)(A)(i), (6) 
and (7) of the Act;
    (d) Meets the requirements of this part that implement the sections 
of the Act listed in paragraphs (a)-(c) of this section;
    (e) Includes a description of how the Secretary of the Interior 
will coordinate the provision of services under Part B of the Act with 
LEAs, tribes and tribal organizations, and other private and Federal 
service providers;
    (f) Includes an assurance that there are public hearings, adequate 
notice of the hearings, and an opportunity for comment afforded to 
members of tribes, tribal governing bodies, and affected local school 
boards before the adoption of the policies, programs, and procedures 
described in paragraph (a) of this section;
    (g) Includes an assurance that the Secretary of the Interior will 
provide the information that the Secretary may require to comply with 
section 618 of the Act, including data on the number of children and 
youth with disabilities served and the types and amounts of services 
provided and needed;
    (h) Includes an assurance that the Secretary of the Interior and 
the Secretary of Health and Human Services have entered into a 
memorandum of agreement, to be provided to the Secretary, for the 
coordination of services, resources, and personnel between their 
respective Federal, State, and local offices and with State and LEAs 
and other entities to facilitate the provision of services to Indian 
children with disabilities residing on or near reservations (the 
agreement must provide for the apportionment of responsibilities and 
costs including, but not limited to, child find, evaluation, diagnosis, 
remediation or therapeutic measures, and (if appropriate) equipment and 
medical or personal supplies as needed for a child to remain in school 
or a program).
    (i) Includes an assurance that the Department of the Interior will 
cooperate with the Department in its exercise of monitoring and 
oversight of this application, and any agreements entered into between 
the Secretary of the Interior and other entities under Part B of the 
Act, and will fulfill its duties under Part B of the Act. Section 
616(a) of the Act applies to the information described in this section.

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


Sec. 300.261  Public participation.

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

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


Sec. 300.262  Use of Part B funds.

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

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


Sec. 300.263  Plan for coordination of services.

    (a) The Secretary of the Interior shall develop and implement a 
plan for the coordination of services for all Indian children with 
disabilities residing on reservations covered under Part B of the Act.
    (b) The plan must provide for the coordination of services 
benefiting these children from whatever source, including tribes, the 
Indian Health Service, other BIA divisions, and other Federal agencies.

[[Page 55085]]

    (c) In developing the plan, the Secretary of the Interior shall 
consult with all interested and involved parties.
    (d) The plan must be based on the needs of the children and the 
system best suited for meeting those needs, and may involve the 
establishment of cooperative agreements between the BIA, other Federal 
agencies, and other entities.
    (e) The plan also must be distributed upon request to States, State 
and LEAs, and other agencies providing services to infants, toddlers, 
and children with disabilities, to tribes, and to other interested 
parties.

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


Sec. 300.264  Definitions.

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

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


Sec. 300.265  Establishment of advisory board.

    (a) To meet the requirements of section 612(a)(21) of the Act, the 
Secretary of the Interior shall establish, not later than December 4, 
1997 under the BIA, an advisory board composed of individuals involved 
in or concerned with the education and provision of services to Indian 
infants, toddlers, children, and youth with disabilities, including 
Indians with disabilities, Indian parents or guardians of the children, 
teachers, service providers, State and local educational officials, 
representatives of tribes or tribal organizations, representatives from 
State Interagency Coordinating Councils under section 641 of the Act in 
States having reservations, and other members representing the various 
divisions and entities of the BIA. The chairperson must be selected by 
the Secretary of the Interior.
    (b) The advisory board shall--
    (1) Assist in the coordination of services within the BIA and with 
other local, State, and Federal agencies in the provision of education 
for infants, toddlers, and children with disabilities;
    (2) Advise and assist the Secretary of the Interior in the 
performance of the Secretary's responsibilities described in section 
611(i) of the Act;
    (3) Develop and recommend policies concerning effective inter- and 
intra-agency collaboration, including modifications to regulations, and 
the elimination of barriers to inter- and intra-agency programs and 
activities;
    (4) Provide assistance and disseminate information on best 
practices, effective program coordination strategies, and 
recommendations for improved educational programming for Indian 
infants, toddlers, and children with disabilities; and
    (5) Provide assistance in the preparation of information required 
under Sec. 300.260(g).

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


Sec. 300.266  Annual reports.

    The advisory board established under Sec. 300.265 shall prepare and 
submit to the Secretary of the Interior and to the Congress an annual 
report containing a description of the activities of the advisory board 
for the preceding year.

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


Sec. 300.267  Applicable regulations.

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

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


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

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

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


Sec. 300.281  Notice.

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

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


Sec. 300.282  Opportunity to participate; comment period.

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

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


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

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

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


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

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

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

Subpart C--Services

    Free Appropriate Public Education.


Sec. 300.300  Provision of FAPE.

    (a) General. Subject to paragraphs (b) and (c) of this section and 
Sec. 300.311, each State receiving assistance under this part shall 
ensure that FAPE is available to all children with disabilities, aged 3 
through 21, residing in the State, including children with disabilities 
who have been suspended or expelled from school.
    (b) Exception for age ranges 3-5 and 18-21. (1) This paragraph 
provides the rules for applying the requirements in paragraph (a) of 
this section to children with disabilities aged 3, 4, 5, 18, 19, 20 and 
21 within the State:
    (2) If State law or a court order requires the State to provide 
education

[[Page 55086]]

for children with disabilities in any disability category in any of 
these age groups, the State must make FAPE available to all children 
with disabilities of the same age who have that disability.
    (3) If a public agency provides education to nondisabled children 
in any of these age groups, it must make FAPE available to at least a 
proportionate number of children with disabilities of the same age.
    (4) If a public agency provides education to 50 percent or more of 
its children with disabilities in any disability category in any of 
these age groups, it must make FAPE available to all its children with 
disabilities of the same age who have that disability. This provision 
does not apply to children aged 3 through 5 for any fiscal year for 
which the State receives a grant under section 619(a)(1) of the Act.
    (5) If a public agency provides education to a child with a 
disability in any of these age groups, it must make FAPE available to 
that child and provide that child and his or her parents all of the 
rights under Part B of the Act and this part.
    (6) A State is not required to make FAPE available to a child with 
a disability in one of these age groups if--
    (i) State law expressly prohibits, or does not authorize, the 
expenditure of public funds to provide education to nondisabled 
children in that age group; or
    (ii) The requirement is inconsistent with a court order that 
governs the provision of free public education to children with 
disabilities in that State.
    (c) Children aged 3 through 21 on Indian reservations. With the 
exception of children identified in Sec. 300.715(b) and (c), the SEA 
shall ensure that all of the requirements of Part B are implemented for 
all children aged 3 through 21 on reservations.

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

    Note 1: The requirement to make FAPE available applies to all 
children with disabilities within the State who are in the age 
ranges required under Sec. 300.300 and who need special education 
and related services. This includes children with disabilities 
already in school and children with less severe disabilities.
    Note 2: In order to be in compliance with Sec. 300.300, each 
State must ensure that the requirement to identify, locate, and 
evaluate all children with disabilities is fully implemented by 
public agencies throughout the State.

    Note 3: Under the Act, the age range for the child find 
requirement (birth through 21) is greater than the mandated age 
range for providing FAPE. One reason for the broader age requirement 
under ``child find'' is to enable States to be aware of and plan for 
younger children who will require special education and related 
services, especially in any case in which infants and toddlers with 
disabilities are not participating in the early intervention program 
under Part C of the Act. It also ties in with the full educational 
opportunity goal requirement that has the same age range as child 
find. Moreover, while a State is not required to provide FAPE to 
children with disabilities below the age ranges mandated under 
Sec. 300.300, the State may, at its discretion, extend services to 
those children. (See note 3 following Sec. 300.125 regarding the 
relationship between the child find requirements under Part B of the 
Act and those under Part C of the Act.)


Sec. 300.301  FAPE--methods and payments.

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

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


Sec. 300.302  Residential placement.

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

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

    Note: This requirement applies to placements that are made by 
public agencies for educational purposes, and includes placements in 
State-operated schools for children with disabilities, such as a 
State school for students with deafness or students with blindness.


Sec. 300.303  Proper functioning of hearing aids.

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

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

    Note: The report of the House of Representatives on the 1978 
appropriation bill includes the following statement regarding 
hearing aids:
    In its report on the 1976 appropriation bill the Committee 
expressed concern about the condition of hearing aids worn by 
children in public schools. A study done at the Committee's 
direction by the Bureau of Education for the Handicapped reveals 
that up to one-third of the hearing aids are malfunctioning. 
Obviously, the Committee expects the Office of Education will ensure 
that hearing impaired school children are receiving adequate 
professional assessment, follow-up and services. H. R. Rep. No. 95-
381, p. 67 (1977)


Sec. 300.304  Full educational opportunity goal.

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

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

    Note: In meeting the full educational opportunity goal, the 
Congress also encouraged LEAs to include artistic and cultural 
activities in programs supported under Part B of the Act. This point 
is addressed in the following statements from the Senate Report on 
Pub. L. 94-142:
    The use of the arts as a teaching tool for the handicapped has 
long been recognized as a viable, effective way not only of teaching 
special skills, but also of reaching youngsters who had otherwise 
been unteachable. The Committee envisions that programs under this 
bill could well include an arts component and, indeed, urges that 
LEAs include the arts in programs for the handicapped funded under 
this Act. Such a program could cover both appreciation of the arts 
by the handicapped youngsters, and the utilization of the arts as a 
teaching tool per se.
    Museum settings have often been another effective tool in the 
teaching of handicapped children. For example, the Brooklyn Museum 
has been a leader in developing exhibits utilizing the heightened 
tactile sensory skill of the blind. Therefore, in light of the 
national policy concerning the use of museums in federally supported 
education programs enunciated in the Education Amendments of 1974, 
the Committee also urges LEAs to include museums in programs for the 
handicapped funded under this Act. (S. Rep. No. 94-168, p. 13 
(1975))


Sec. 300.305  Program options.

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

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

    Note: The list of program options is not exhaustive, and could 
include any program or activity in which nondisabled students 
participate.


Sec. 300.306  Nonacademic services.

    (a) Each public agency shall take steps to provide nonacademic and

[[Page 55087]]

extracurricular services and activities in the manner as is necessary 
to afford children with disabilities an equal opportunity for 
participation in those services and activities.
    (b) Nonacademic and extracurricular services and activities may 
include counseling services, athletics, transportation, health 
services, recreational activities, special interest groups or clubs 
sponsored by the public agency, referrals to agencies that provide 
assistance to individuals with disabilities, and employment of 
students, including both employment by the public agency and assistance 
in making outside employment available.

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


Sec. 300.307  Physical education.

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

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

    Note: The Report of the House of Representatives on Public Law 
94-142 includes the following statement regarding physical 
education:
    Special education as set forth in the Committee bill includes 
instruction in physical education, which is provided as a matter of 
course to all non-handicapped children enrolled in public elementary 
and secondary schools. The Committee is concerned that although 
these services are available to and required of all children in our 
school systems, they are often viewed as a luxury for handicapped 
children.
* * * * *
    The Committee expects the Commissioner of Education to take 
whatever action is necessary to assure that physical education 
services are available to all handicapped children, and has 
specifically included physical education within the definition of 
special education to make clear that the Committee expects such 
services, specially designed where necessary, to be provided as an 
integral part of the educational program of every handicapped child. 
(H.R. Rep. No. 94-332, p. 9 (1975))


Sec. 300.308  Assistive technology.

    Each public agency shall ensure that assistive technology devices 
or assistive technology services, or both, as those terms are defined 
in Secs. 300.5-300.6, are made available to a child with a disability 
if required as a part of the child's--
    (a) Special education under Sec. 300.24;
    (b) Related services under Sec. 300.22; or
    (c) Supplementary aids and services under Secs. 300.26 and 
300.550(b)(2).

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


Sec. 300.309  Extended school year services.

    (a) General. (1) Subject to paragraph (a)(2) of this section, each 
public agency shall ensure that extended school year services are 
available to each child with a disability to the extent necessary to 
ensure that FAPE is available to the child.
    (2) The determination of whether a child with a disability needs 
extended school year services must be made on an individual basis by 
the child's IEP team, in accordance with Secs. 300.340-300.351.
    (b) Definition. As used in this section, the term extended school 
year services means special education and related services that--
    (1) Are provided to a child with a disability--
    (i) Beyond the normal school year of the public agency;
    (ii) In accordance with the child's IEP; and
    (iii) At no cost to the parents of the child; and
    (2) Meet the standards of the SEA.

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

    Note 1: In implementing the requirements of this section, an LEA 
may not limit extended school year services to particular categories 
of disability or unilaterally limit the duration of services. 
Imposing those limitations would violate the individually-oriented 
focus of Part B of the Act. However, with respect to paragraph (b) 
of this section, nothing in this part requires that every child with 
a disability is entitled to, or must receive, extended school year 
services.

    Note 2: States may establish standards for use in determining on 
an individual basis, whether a child with a disability needs 
extended school year services so long as those standards are not 
inconsistent with the requirements of Part B of the Act. Factors 
that States may wish to consider include: likelihood of regression, 
slow recoupment, and predictive data based on the opinion of 
professionals.


Sec. 300.310  [Reserved]


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

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

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

Evaluations and Reevaluations


Sec. 300.320  Initial evaluations.

    (a) Each public agency shall ensure that a full and individual 
evaluation is conducted for each child being considered for special 
education and related services under Part B of the Act--

[[Page 55088]]

    (1) To determine if the child is a ``child with a disability'' 
under Sec. 300.7; and
    (2) To determine the educational needs of the child.
    (b) In implementing the requirements of paragraph (a) of this 
section, the public agency shall ensure that--
    (1) The evaluation is conducted in accordance with the procedures 
described in Secs. 300.530--300.535; and
    (2) The results of the evaluation are used by the child's IEP team 
in meeting the requirements of Secs. 300.340--300.351.

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


Sec. 300.321  Reevaluations.

    Each public agency shall ensure that--
    (a) A reevaluation of each child with a disability is conducted in 
accordance with the requirements of Secs. 300.530--330.536; and
    (b) The results of any reevaluations are used by the child's IEP 
team under Secs. 300.340-300.350 in reviewing and, as appropriate, 
revising the child's IEP.

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


Sec. 300.322-300.324  [Reserved]

    Individualized Education Programs


Sec. 300.340  Definitions.

    (a) As used in this part, the term individualized education program 
means a written statement for a child with a disability that is 
developed, reviewed, and revised in accordance with Secs. 300.341-
300.351.
    (b) As used in Secs. 300.347 and 300.348, participating agency 
means a State or local agency, other than the public agency responsible 
for a student's education, that is financially and legally responsible 
for providing transition services to the student.

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


Sec. 300.341  State educational agency responsibility.

    (a) Public agencies. The SEA shall ensure that each public agency 
develops and implements an IEP for each child with a disability served 
by that agency.
    (b) Private schools and facilities. The SEA shall ensure that an 
IEP is developed and implemented for each child with a disability who--
    (1) Is placed in or referred to a private school or facility by a 
public agency; or
    (2) Is enrolled in a religiously-affiliated school or other private 
school and receives special education or related services from a public 
agency.

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

    Note: This section applies to all public agencies, including 
other State agencies (e.g., departments of mental health and 
welfare) that provide special education to a child with a disability 
either directly, by contract, or through other arrangements. Thus, 
if a State welfare agency contracts with a private school or 
facility to provide special education to a child with a disability, 
that agency would be responsible for ensuring that an IEP is 
developed for the child.


Sec. 300.342  When IEPs must be in effect.

    (a) At the beginning of each school year, each LEA, SEA, or other 
State agency, shall have in effect, for each child with a disability 
within its jurisdiction, an individualized education program, as 
defined in Sec. 300.340.
    (b) An IEP must--
    (1) Be in effect before special education and related services are 
provided to a child; and
    (2) Be implemented as soon as possible following the meetings 
described under Sec. 300.343.
    (c)(1) In the case of a child with a disability aged 3 through 5 
(or, at the discretion of the SEA a 2-year-old child with a disability 
who will turn age 3 during the school year), an IFSP that contains the 
material described in section 636 of the Act, and that is developed in 
accordance with Secs. 300.340-300.346 and 300.349-300.351, may serve as 
the IEP of the child if using that plan as the IEP is--
    (i) Consistent with State policy; and
    (ii) Agreed to by the agency and the child's parents.
    (2) In implementing the requirements of paragraph (c)(1) of this 
section, the public agency shall--
    (i) Provide to the child's parents a detailed explanation of the 
differences between an IFSP and an IEP; and
    (ii) If the parents choose an IFSP, obtain written informed consent 
from the parents.
    (d)(1) All IEPs in effect on July 1, 1998 must meet the 
requirements of Secs. 300.340-300.351.
    (2) The provisions of Secs. 300.340--300.350 that were in effect on 
June 3, 1997 remain in effect until July 1, 1998.

(Authority: 20 U.S.C. 1414(d)(2) (A) and (B), Pub. L. 105-17, sec. 
201(a)(1)(C))

    Note 1: It is expected that the IEP of a child with a disability 
will be implemented immediately following the meetings under 
Sec. 300.343. Exceptions to this would be if (1) the meetings occur 
during the summer or a vacation period, unless the child requires 
services during that period, or (2) there are circumstances that 
require a short delay (e.g., working out transportation 
arrangements). However, there can be no undue delay in providing 
special education and related services to the child.
    Note 2: Certain requirements regarding IEPs for students who are 
incarcerated in adult prisons apply as of June 4, 1997.
    Note 3: At the time that a child with a disability moves from an 
early intervention program under Part C of the Act to a preschool 
program under this part, the parent, if the agency agrees, has the 
option, under paragraph (c) of this section, to allow the child to 
continue receiving early intervention services under an IFSP, or to 
begin receiving special education and related services in accordance 
with an IEP. Because of the importance of the IEP as the statutory 
vehicle for ensuring FAPE to a child with a disability, paragraph 
(c)(2) of this section provides that the parents' agreement to use 
an IFSP for the child instead of an IEP requires written informed 
consent by the parents that is based on an explanation of the 
differences between an IFSP and an IEP.


Sec. 300.343  IEP meetings.

    (a) General. Each public agency is responsible for initiating and 
conducting meetings for the purpose of developing, reviewing, and 
revising the IEP of a child with a disability (or, if consistent with 
State policy and at the discretion of the LEA, and with the concurrence 
of the parents, an IFSP described in section 636 of the Act for each 
child with a disability, aged 3 through 5).
    (b) Timelines. (1) Each public agency shall ensure that an offer of 
services in accordance with an IEP is made to parents within a 
reasonable period of time from the agency's receipt of parent consent 
to an initial evaluation.
    (2) In meeting the timeline in paragraph (b)(1) of this section, a 
meeting to develop an IEP for the child must be conducted within 30-
days of a determination that the child needs special education and 
related services.
    (c) Review and revision of IEP. Each public agency shall ensure 
that the IEP team--
    (1) Reviews the child's IEP periodically, but not less than 
annually, to determine whether the annual goals for the child are being 
achieved; and
    (2) Revises the IEP as appropriate to address--
    (i) Any lack of expected progress toward the annual goals described 
in Sec. 300.347(a), and in the general curriculum, if appropriate;
    (ii) The results of any reevaluation conducted under this section;
    (iii) Information about the child provided to, or by, the parents, 
as described in Sec. 300.533(a)(1);
    (iv) The child's anticipated needs; or
    (v) Other matters.

(Authority: 20 U.S.C. 1414(d)(3))

    Note: For most children, it would be reasonable to expect that a 
public agency offer services in accordance with an IEP within 60 
days of receipt of parent consent to initial evaluation.

[[Page 55089]]

Sec. 300.344  IEP team.

    (a) General. The public agency shall ensure that the IEP team for 
each child with a disability includes--
    (1) The parents of the child;
    (2) At least one regular education teacher of the child (if the 
child is, or may be, participating in the regular education 
environment);
    (3) At least one special education teacher, or if appropriate, at 
least one special education provider of the child;
    (4) A representative of the LEA who--
    (i) Is qualified to provide, or supervise the provision of, 
specially designed instruction to meet the unique needs of children 
with disabilities;
    (ii) Is knowledgeable about the general curriculum; and
    (iii) Is knowledgeable about the availability of resources of the 
LEA;
    (5) An individual who can interpret the instructional implications 
of evaluation results, who may be a member of the team described in 
paragraphs (a) (2) through (6) of this section;
    (6) At the discretion of the parent or the agency, other 
individuals who have knowledge or special expertise regarding the 
child, including related services personnel as appropriate; and
    (7) If appropriate, the child.
    (b) Transition services participants. (1) Under paragraph (a)(7) of 
this section, the public agency shall invite a student with a 
disability of any age if a purpose of the meeting will be the 
consideration of the statement of transition services needs or 
statement of needed transition services for the student under 
Sec. 300.347(b)(1).
    (2) If the student does not attend the IEP meeting, the public 
agency shall take other steps to ensure that the student's preferences 
and interests are considered.
    (3)(i) In implementing the requirements of paragraph (b)(1) of this 
section, the public agency also shall invite a representative of any 
other agency that is likely to be responsible for providing or paying 
for transition services.
    (ii) If an agency invited to send a representative to a meeting 
does not do so, the public agency shall take other steps to obtain 
participation of the other agency in the planning of any transition 
services.

(Authority: 20 U.S.C. 1414(d)(1)(B))

    Note: The regular education teacher participating in a child's 
IEP meeting should be the teacher who is, or may be, responsible for 
implementing the IEP, so that the teacher can participate in 
discussions about how best to teach the child.
    If the child has more than one teacher, the LEA may designate 
which teacher or teachers will participate. In a situation in which 
all of the child's teachers do not participate in the IEP meeting, 
the LEA is encouraged to seek input from teachers who will not be 
attending, and should ensure that any teacher not attending the 
meeting is informed about the results of the meeting (including 
receiving a copy of the IEP). In the case of a child whose behavior 
impedes the learning of the child or others, the LEA is encouraged 
to have a person knowledgeable about positive behavior strategies at 
the IEP meeting.
    Similarly, the special education teacher or provider 
participating in a child's IEP meeting should be the person who is, 
or will be, responsible for implementing the IEP. If, for example, 
the child's disability is a speech impairment, the teacher could be 
the speech-language pathologist.


Sec. 300.345  Parent participation.

    (a) Each public agency shall take steps to ensure that one or both 
of the parents of a child with a disability are present at each IEP 
meeting or are afforded the opportunity to participate, including--
    (1) Notifying parents of the meeting early enough to ensure that 
they will have an opportunity to attend; and
    (2) Scheduling the meeting at a mutually agreed on time and place. 
(b)(1) The notice under paragraph (a)(1) of this section must indicate 
the purpose, time, and location of the meeting and who will be in 
attendance.
    (2) For a student with a disability beginning at age 14, or 
younger, if appropriate, the notice must also--
    (i) Indicate that a purpose of the meeting will be the development 
of a statement of the transition services needs of the student required 
in Sec. 300.347(b)(1)(i); and
    (ii) Indicate that the agency will invite the student.
    (3) For a student with a disability beginning at age 16, or 
younger, if appropriate, the notice must--
    (i) Indicate that a purpose of the meeting is the consideration of 
needed transition services for the student required in 
Sec. 300.347(b)(1)(ii);
    (ii) Indicate that the agency will invite the student; and
    (iii) Identify any other agency that will be invited to send a 
representative.
    (c) If neither parent can attend, the public agency shall use other 
methods to ensure parent participation, including individual or 
conference telephone calls.
    (d) A meeting may be conducted without a parent in attendance if 
the public agency is unable to convince the parents that they should 
attend. In this case the public agency must have a record of its 
attempts to arrange a mutually agreed on time and place, such as--
    (1) Detailed records of telephone calls made or attempted and the 
results of those calls;
    (2) Copies of correspondence sent to the parents and any responses 
received; and
    (3) Detailed records of visits made to the parent's home or place 
of employment and the results of those visits.
    (e) The public agency shall take whatever action is necessary to 
ensure that the parent understands the proceedings at a meeting, 
including arranging for an interpreter for parents with deafness or 
whose native language is other than English.
    (f) The public agency shall give the parent, on request, a copy of 
the IEP.

(Authority: 20 U.S.C. 1414(d)(1)(B)(i))

    Note: The notice in paragraph (a) of this section could also 
inform parents that they may bring other people to the meeting 
consistent with Sec. 300.344(a)(6). As indicated in paragraph (d) of 
this section, the procedure used to notify parents (whether oral or 
written or both) is left to the discretion of the agency, but the 
agency must keep a record of its efforts to contact parents.


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

    (a) Development of IEP.
    (1) General. In developing each child's IEP, the IEP team, shall 
consider--
    (i) The strengths of the child and the concerns of the parents for 
enhancing the education of their child; and
    (ii) The results of the initial or most recent evaluation of the 
child.
    (2) Consideration of special factors. The IEP team also shall--
    (i) In the case of a child whose behavior impedes his or her 
learning or that of others, consider, if appropriate, strategies, 
including positive behavioral interventions, strategies, and supports 
to address that behavior;
    (ii) In the case of a child with limited English proficiency, 
consider the language needs of the child as these needs relate to the 
child's IEP;
    (iii) In the case of a child who is blind or visually impaired, 
provide for instruction in Braille and the use of Braille unless the 
IEP team determines, after an evaluation of the child's reading and 
writing skills, needs, and appropriate reading and writing media 
(including an evaluation of the child's future needs for instruction in 
Braille or the use of Braille), that instruction in Braille or the use 
of Braille is not appropriate for the child;
    (iv) Consider the communication needs of the child, and in the case 
of a child who is deaf or hard of hearing, consider the child's 
language and

[[Page 55090]]

communication needs, opportunities for direct communications with peers 
and professional personnel in the child's language and communication 
mode, academic level, and full range of needs, including opportunities 
for direct instruction in the child's language and communication mode; 
and
    (v) Consider whether the child requires assistive technology 
devices and services.
    (b) Review and Revision of IEP. In conducting a meeting to review, 
and, if appropriate, revise a child's IEP, the IEP team shall consider 
the factors described in paragraph (a) of this section.
    (c) Statement in IEP. If, in considering the special factors 
described in paragraph (a) (1) and (2) of this section, the IEP team 
determines that a child needs a particular device or service (including 
an intervention, accommodation, or other program modification) in order 
for the child to receive FAPE, the IEP team must include a statement to 
that effect in the child's IEP.
    (d) Requirement with respect to regular education teacher. The 
regular education teacher of a child with a disability, as a member of 
the IEP team, must, to the extent appropriate, participate in the 
development, review, and revision of the child's IEP, including 
assisting in--
    (1) The determination of appropriate positive behavioral 
interventions and strategies for the child; and
    (2) The determination of supplementary aids and services, program 
modifications, and supports for school personnel, consistent with 
Sec. 300.347(a)(3).
    (e) Construction. Nothing in this section shall be construed to 
require the IEP team to include information under one component of a 
child's IEP that is already contained under another component of the 
child's IEP.

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

    Note 1: The requirements of paragraph (a)(2) of this section 
(relating to consideration of special factors) were added by Pub. L. 
105-17. These considerations are essential in assisting the IEP team 
to develop meaningful goals and other components of a child's IEP, 
if the considerations point to factors that could impede learning. 
The results of considering these special factors must, if 
appropriate, be reflected in the IEP goals, services, and provider 
responsibilities. 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.

    Note 2: With respect to paragraph (a)(2)(iv) of this section 
(relating to special considerations for a child who is deaf or hard 
of hearing), the House Committee Report on Pub. L. 105-17 states 
that the IEP team should implement the provision in a manner 
consistent with the policy guidance entitled ``Deaf Students 
Education Services,'' published in the Federal Register (57 FR 
49274, October 30, 1992) by the Department (H. Rep. No. 105-95, p-
104 (1997))

    Note 3: In developing an IEP for a child with limited English 
proficiency (LEP), the IEP team must consider how the child's level 
of English language proficiency affects special education and 
related services that the child needs in order to receive FAPE. 
Under Title VI of the Civil Rights Act of 1964, school districts are 
required to provide LEP students with alternative language services 
to enable the student to acquire proficiency in English and to 
provide the student with meaningful access to the content of the 
educational curriculum that is available to all students, including 
special education and related services. A LEP student with a 
disability may require special education and related services for 
those aspects of the educational program which address the 
development of English language skills and other aspects of the 
student's educational program. For a LEP student with a disability, 
under paragraph (c) of this section, the IEP must address whether 
the special education and related services that the child needs will 
be provided in a language other than English.


Sec. 300.347  Content of IEP.

    (a) General. The IEP for each child must include--
    (1) A statement of the child's present levels of educational 
performance, including--
    (i) How the child's disability affects the child's involvement and 
progress in the general curriculum; or
    (ii) For preschool children, as appropriate, how the disability 
affects the child's participation in appropriate activities;
    (2) A statement of measurable annual goals, including benchmarks or 
short-term objectives, related to--
    (i) Meeting the child's needs that result from the child's 
disability to enable the child to be involved in and progress in the 
general curriculum; and
    (ii) Meeting each of the child's other educational needs that 
result from the child's disability;
    (3) A statement of the special education and related services and 
supplementary aids and services to be provided to the child, or on 
behalf of the child and a statement of the program modifications or 
supports for school personnel that will be provided for the child--
    (i) To advance appropriately toward attaining the annual goals;
    (ii) To be involved and progress in the general curriculum in 
accordance with paragraph (a)(1) of this section and to participate in 
extracurricular and other nonacademic activities; and
    (iii) To be educated and participate with other children with 
disabilities and nondisabled children in the activities described in 
this paragraph;
    (4) An explanation of the extent, if any, to which the child will 
not participate with nondisabled children in the regular class and in 
the activities described in paragraph (a)(3) of this section;
    (5)(i) A statement of any individual modifications in the 
administration of State or district-wide assessments of student 
achievement that are needed in order for the child to participate in 
the assessment; and
    (ii) If the IEP team determines that the child will not participate 
in a particular State or district-wide assessment of student 
achievement (or part of an assessment), a statement of--
    (A) Why that assessment is not appropriate for the child; and
    (B) How the child will be assessed;
    (6) The projected date for the beginning of the services and 
modifications described in paragraph (a)(3) of this section, and the 
anticipated frequency, location, and duration of those services and 
modifications; and
    (7) A statement of--
    (i) How the child's progress toward the annual goals described in 
paragraph (a)(2) of this section will be measured; and
    (ii) How the child's parents will be regularly informed (through 
such means as periodic report cards), at least as often as parents are 
informed of their nondisabled children's progress, of--
    (A) Their child's progress toward the annual goals; and
    (B) The extent to which that progress is sufficient to enable the 
child to achieve the goals by the end of the year.
    (b) Transition services. (1) The IEP must include--
    (i) For each student beginning at age 14 and younger if 
appropriate, and updated annually, a statement of the transition 
service needs of the student under the applicable components of the 
student's IEP that focuses on the student's courses of study (such as 
participation in advanced-placement courses or a vocational education 
program); and
    (ii) For each student beginning at age 16 (or younger, if 
determined appropriate by the IEP team), a statement of needed 
transition services for the student, including, if appropriate, a 
statement of the interagency responsibilities or any needed linkages.
    (2) If the IEP team determines that services are not needed in one 
or more of the areas specified in Sec. 300.27(c)(1) through (c)(4), the 
IEP must include a

[[Page 55091]]

statement to that effect and the basis upon which the determination was 
made.
    (c) Transfer of rights. Beginning at least one year before a 
student reaches the age of majority under State law, the student's IEP 
must include a statement that the student has been informed of his or 
her rights under Part B of the Act, if any, that will transfer to the 
student on reaching the age of majority, consistent with Sec. 300.517.
    (d) Students with disabilities convicted as adults and incarcerated 
in adult prisons. Special rules concerning the content of IEPs for 
students with disabilities convicted as adults and incarcerated in 
adult prisons are contained in Sec. 300.311(b) and (c).

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

    Note 1: Although the statute does not mandate transition 
services for all students below the age of 16, the provision of 
these services could have a significantly positive effect on the 
employment and independent living outcomes for many of these 
students in the future, especially for students who are likely to 
drop out before age 16.
    Note 2: The IEP provisions added by Pub. L. 105-17 are intended 
to provide greater access by children with disabilities to the 
general curriculum and to educational reforms, as an effective means 
of ensuring better results for these children in preparing them for 
employment and independent living.
    With respect to increased emphasis on the general curriculum, 
the House Committee Report on Pub. L. 105-17 includes the following 
statement:
    The Committee wishes to emphasize that, once a child has been 
identified as being eligible for special education, the connection 
between special education and related services and the child's 
opportunity to experience and benefit from the general education 
curriculum should be strengthened. The majority of children 
identified as eligible for special education and related services 
are capable of participating in the general education curriculum to 
varying degrees with some adaptations and modifications. This 
provision is intended to ensure that children's special education 
and related services are in addition to and are affected by the 
general education curriculum, not separate from it. (H. Rep. No. 
105-95, p-99 (1997))
    Note 3: With respect to the impact on States and LEAs in 
implementing the new IEP provisions relating to accessing the 
general curriculum, the House Committee Report on Pub. L. 105-17 
includes the following statement:
    The new emphasis on participation in the general education 
curriculum is not intended by the Committee to result in major 
expansions in the size of the IEP of dozens of pages of detailed 
goals and benchmarks or objectives in every curricular content 
standard skill. The new focus is intended to produce attention to 
the accommodations and adjustments necessary for disabled children 
to access the general education curriculum and the special services 
which may be necessary for the appropriate participation in 
particular areas of the curriculum due to the nature of the 
disability.
    Note 4: With respect to paragraph (a) of this section, the House 
Committee Report on Pub. L. 105-17 includes the following statement:
    The Committee intends that, while teaching and related services 
methodologies or approaches are an appropriate topic for discussion 
and consideration by the IEP team during IEP development or annual 
review, they are not expected to be written into the IEP. 
Furthermore, the Committee does not intend that changing particular 
methods or approaches necessitates an additional meeting of the IEP 
team.
    Specific day to day adjustments in instructional methods and 
approaches that are made by either a regular or special education 
teacher to assist a disabled child to achieve his or her annual 
goals would not normally require action by the child's IEP team. 
However, if changes are contemplated in the child's measurable 
annual goals, benchmarks, or short-term objectives, or in any of the 
services or program modifications, or other components described in 
the child's IEP, the LEA must ensure that the child's IEP team is 
reconvened in a timely manner to address those changes. (H. Rep. No. 
105-95, pp-100-101 (1997))
    Note 5: The provision in paragraph (a)(7)(ii) of this section 
concerning regularly informing parents of their child's progress 
toward annual goals and the extent to which this progress is 
sufficient to enable the child to achieve the goals by the end of 
the year is intended to be in addition to, rather than in place of, 
regular reporting to the parents (as for nondisabled children) of 
the child's progress in subjects or curricular areas for which the 
child is not receiving special education.
    Note 6: With respect to paragraph (b)(1) of this section 
(relating to transition service needs beginning at age 14), the 
House Committee report on Pub. L. 105-17 includes the following 
statement:
    The purpose of this requirement is to focus attention on how the 
child's educational program can be planned to help the child make a 
successful transition to his or her goals for life after secondary 
school. This provision is designed to augment, and not replace, the 
separate transition services requirement, under which children with 
disabilities beginning no later than age sixteen receive transition 
services, including instruction, community experiences, the 
development of employment and other post-school objectives, and, 
when appropriate, independent living skills and functional 
vocational evaluation. For example, for a child whose transition 
goal is a job, a transition service could be teaching the child how 
to get to the job site on public transportation. (H. Rep. No. 105-
95, p. 101 (1997))
    Note 7: Each State must, at a minimum, ensure compliance with 
the transition services requirements in paragraph (b) of this 
section. However, it would not be a violation of this part for a 
public agency to begin planning for transition services needs and 
needed transition services for students younger than age 14 and age 
16, respectively.


Sec. 300.348  Agency responsibilities for transition services.

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

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


Sec. 300.349  Private school placements by public agencies.

    (a) Developing individualized education programs. (1) Before a 
public agency places a child with a disability in, or refers a child 
to, a private school or facility, the agency shall initiate and conduct 
a meeting to develop an IEP for the child in accordance with 
Sec. 300.347.
    (2) The agency shall ensure that a representative of the private 
school or facility attends the meeting. If the representative cannot 
attend, the agency shall use other methods to ensure participation by 
the private school or facility, including individual or conference 
telephone calls.
    (b) Reviewing and revising individualized education programs. (1) 
After a child with a disability enters a private school or facility, 
any meetings to review and revise the child's IEP may be initiated and 
conducted by the private school or facility at the discretion of the 
public agency.
    (2) If the private school or facility initiates and conducts these 
meetings, the public agency shall ensure that the parents and an agency 
representative--
    (i) Are involved in any decision about the child's IEP; and
    (ii) Agree to any proposed changes in the program before those 
changes are implemented.
    (c) Responsibility. Even if a private school or facility implements 
a child's IEP, responsibility for compliance with this part remains 
with the public agency and the SEA.

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

[[Page 55092]]

Sec. 300.350  Children with disabilities in religiously-affiliated or 
other private schools.

    If a child with a disability is enrolled in a religiously-
affiliated or other private school and receives special education or 
related services from a public agency, the public agency shall--
    (a) Initiate and conduct meetings to develop, review, and revise an 
IEP for the child, in accordance with Sec. 300.347; and
    (b) Ensure that a representative of the religiously-affiliated or 
other private school attends each meeting. If the representative cannot 
attend, the agency shall use other methods to ensure participation by 
the private school, including individual or conference telephone calls.

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


Sec. 300.351  Individualized education program--accountability.

    Each public agency must provide special education and related 
services to a child with a disability in accordance with an IEP. 
However, Part B of the Act does not require that any agency, teacher, 
or other person be held accountable if a child does not achieve the 
growth projected in the annual goals and benchmarks or objectives.

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

    Note: This section is intended to relieve concerns that the IEP 
constitutes a guarantee by the public agency and the teacher that a 
child will progress at a specified rate. However, this section does 
not relieve agencies and teachers from making good faith efforts to 
assist the child in achieving the goals and objectives or benchmarks 
listed in the IEP. Part B is premised on children receiving the 
instruction, services and modifications that they need to enable 
them to make progress in their education. Further, the section does 
not limit a parent's right to complain and ask for revisions of the 
child's IEP, or to invoke due process procedures (Sec. 300.507), if 
the parent feels that these efforts are not being made. This section 
does not prohibit a State or public agency from establishing its own 
accountability systems regarding teacher, school or agency 
performance.

Direct Service by the SEA


Sec. 300.360  Use of LEA allocation for direct services.

    (a) General. An SEA shall use the payments that would otherwise 
have been available to an LEA or to a State agency to provide special 
education and related services directly to children with disabilities 
residing in the area served by that local agency, or for whom that 
State agency is responsible, if the SEA determines that the LEA or 
State agency--
    (1) Has not provided the information needed to establish the 
eligibility of the agency under Part B of the Act;
    (2) Is unable to establish and maintain programs of FAPE that meet 
the requirements of this part;
    (3) Is unable or unwilling to be consolidated with one or more LEAs 
in order to establish and maintain the programs; or
    (4) Has one or more children with disabilities who can best be 
served by a regional or State program or service-delivery system 
designed to meet the needs of these children.
    (b) In meeting the requirements in paragraph (a) of this section, 
the SEA may provide special education and related services directly, by 
contract, or through other arrangements.
    (c) The excess cost requirements of Secs. 300.184 and 300.185 do 
not apply to the SEA.

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

    Note: The SEA, as a recipient of Part B funds, is responsible 
for ensuring that all public agencies in the State comply with the 
provisions of the Act, regardless of whether they receive Part B 
funds. If an LEA elects not to apply for its Part B allotment, the 
State would be required to use those funds to ensure that FAPE is 
made available to children residing in the area served by that local 
agency. However, if the local allotment is not sufficient for this 
purpose, additional State or local funds would have to be expended 
in order to ensure that FAPE and the other requirements of the Act 
are met.
    Moreover, if the LEA is the recipient of any other Federal 
funds, it would have to be in compliance with 34 CFR 104.31-104.39 
of the regulations implementing Section 504 of the Rehabilitation 
Act of 1973. It should be noted that the term ``FAPE'' has different 
meanings under Part B and Section 504. For example, under Part B, 
FAPE is a statutory term that requires special education and related 
services to be provided in accordance with an IEP. However, under 
Section 504, each recipient must provide an education that includes 
services that are ``designed to meet individual educational needs of 
handicapped persons as adequately as the needs of nonhandicapped 
persons are met * * *''. (34 CFR 104.33(b)). Those regulations state 
that implementation of an IEP, in accordance with Part B, is one 
means of meeting the FAPE requirement under section 504.


Sec. 300.361  Nature and location of services.

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

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


Secs. 300.362-300.369  [Reserved]


Sec. 300.370  Use of State agency allocations.

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

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


Sec. 300.371  [Reserved]


Sec. 300.372  Applicability of nonsupplanting requirement.

    A State may use funds it retains under Sec. 300.602 without regard 
to--

[[Page 55093]]

    (a) The prohibition on commingling of funds in Sec. 300.152; and
    (b) The prohibition on supplanting other funds in Sec. 300.153.

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

Comprehensive System of Personnel Development


Sec. 300.380  General.

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

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


Sec. 300.381  Adequate supply of qualified personnel.

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

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


Sec. 300.382  Improvement strategies.

    Each State must describe the strategies the State will use to 
address the needs identified under Sec. 300.381. These strategies must 
include how the State will address the identified needs for in-service 
and pre-service preparation to ensure that all personnel who work with 
children with disabilities (including both professional and 
paraprofessional personnel who provide special education, general 
education, related services, or early intervention services) have the 
skills and knowledge necessary to meet the needs of children with 
disabilities. The plan must in