[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 include a description of how--
(a) The State will prepare general and special education personnel
with the content knowledge and collaborative skills needed to meet the
needs of children with disabilities including how the State will work
with other States on common certification criteria;
(b) The State will prepare professionals and paraprofessionals in
the area of early intervention with the content knowledge and
collaborative skills needed to meet the needs of infants and toddlers
with disabilities;
(c) The State will work with institutions of higher education and
other entities that (on both a pre-service and an in-service basis)
prepare personnel who work with children with disabilities to ensure
that those institutions and entities develop the capacity to support
quality professional development programs that meet State and local
needs;
(d) The State will work to develop collaborative agreements with
other States for the joint support and development of programs to
prepare personnel for which there is not sufficient demand within a
single State to justify support or development of such a program of
preparation;
(e) The State will work in collaboration with other States,
particularly neighboring States, to address the lack of uniformity and
reciprocity in credentialing of teachers and other personnel;
(f) The State will enhance the ability of teachers and others to
use strategies, such as behavioral interventions, to address the
conduct of children with disabilities that impedes the learning of
children with disabilities and others;
(g) The State will acquire and disseminate, to teachers,
administrators, school board members, and related services personnel,
significant knowledge derived from educational research and other
sources, and how the State will, if appropriate, adopt promising
practices, materials, and technology;
(h) The State will recruit, prepare, and retain qualified
personnel, including personnel with disabilities and personnel from
groups that are under-represented in the fields of regular education,
special education, and related services;
(i) The plan is integrated, to the maximum extent possible, with
other professional development plans and activities, including plans
and activities developed and carried out under other Federal and State
laws that address personnel recruitment and training; and
(j) The State will provide for the joint training of parents and
special education, related services, and general education personnel.
(Authority: 20 U.S.C. 1453 (c)(3)(D))
Sec. 300.383--300.387 [Reserved]
Subpart D--Children in Private Schools
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Sec. 300.400 Applicability of Secs. 300.400--300.402.
Sections Secs. 300.401--300.402 apply only to children with
disabilities who are or have been placed in or referred to a private
school or facility by a public agency as a means of providing special
education and related services.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.401 Responsibility of SEA.
Each SEA shall ensure that a child with a disability who is placed
in or referred to a private school or facility by a public agency--
(a) Is provided special education and related services--
(1) In conformance with an IEP that meets the requirements of
Secs. 300.340--300.350;
(2) At no cost to the parents; and
(3) At a school or facility that meets the standards that apply to
the SEA and LEAs (including the requirements of this part); and
(b) Has all of the rights of a child with a disability who is
served by a public agency.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.402 Implementation by SEA.
In implementing Sec. 300.401, the SEA shall--
(a) Monitor compliance through procedures such as written reports,
on-site visits, and parent questionnaires;
(b) Disseminate copies of applicable standards to each private
school and facility to which a public agency has referred or placed a
child with a disability; and
(c) Provide an opportunity for those private schools and facilities
to participate in the development and revision of State standards that
apply to them.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.403 Placement of children by parent s if FAPE is at issue.
(a) General. Subject to Sec. 300.451, this part does not require an
LEA to pay for the cost of education, including special education and
related services, of a child with a disability at a private school or
facility if that agency made
[[Page 55094]]
FAPE available to the child and the parents elected to place the child
in a private school or facility.
(b) Disagreements about FAPE. Disagreements between a parent and a
public agency regarding the availability of a program appropriate for
the child, and the question of financial responsibility, are subject to
the due process procedures of Secs. 300.500--300.515.
(c) Reimbursement for private school placement. If the parents of a
child with a disability, who previously received special education and
related services under the authority of a public agency, enroll the
child in a private elementary or secondary school without the consent
of or referral by the public agency, a court or a hearing officer may
require the agency to reimburse the parents for the cost of that
enrollment if the court or hearing officer finds that the agency had
not made FAPE available to the child in a timely manner prior to that
enrollment.
(d) Limitation on reimbursement. The cost of reimbursement
described in paragraph (c) of this section may be reduced or denied--
(1) If--
(i) At the most recent IEP meeting that the parents attended prior
to removal of the child from the public school, the parents did not
inform the IEP team that they were rejecting the placement proposed by
the public agency to provide FAPE to their child, including stating
their concerns and their intent to enroll their child in a private
school at public expense; or
(ii) At least ten (10) business days (including any holidays that
occur on a business day) prior to the removal of the child from the
public school, the parents did not give written notice to the public
agency of the information described in paragraph (d)(1)(i) of this
section;
(2) If, prior to the parents' removal of the child from the public
school, the public agency informed the parents, through the notice
requirements described in Sec. 300.503(a)(1), of its intent to evaluate
the child (including a statement of the purpose of the evaluation that
was appropriate and reasonable), but the parents did not make the child
available for the evaluation; or
(3) Upon a judicial finding of unreasonableness with respect to
actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph
(d)(1) of this section, the cost of reimbursement may not be reduced or
denied for failure to provide the notice if--
(1) The parent is illiterate and cannot write in English;
(2) Compliance with paragraph (d)(1) of this section would likely
result in physical or serious emotional harm to the child;
(3) The school prevented the parent from providing the notice; or
(4) The parents had not received notice, pursuant to section 615 of
the Act, of the notice requirement in paragraph (d)(1) of this section.
(Authority: 20 U.S.C. 1412(a)(10)(C))
Children With Disabilities Enrolled by Their Parents in Private
Schools
Sec. 300.450 Definition of ``private school children with
disabilities.''
As used in this part, private school children with disabilities
means children with disabilities enrolled by their parents in private
schools or facilities other than children with disabilities covered
under Secs. 300.400-300.402.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.451 Child find for private school children with disabilities.
Each public agency must locate, identify and evaluate all private
school children, including religiously-affiliated school children, who
have disabilities residing in the jurisdiction of the agency in
accordance with Secs. 300.125 and 300.220.
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
Sec. 300.452 Basic requirement--services.
To the extent consistent with their number and location in the
State, provision must be made for the participation of private school
children with disabilities in the program assisted or carried out under
Part B of the Act by providing them with special education and related
services in accordance with Secs. 300.453-300.462.
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
Sec. 300.453 Expenditures.
To meet the requirement of Sec. 300.452, each LEA must spend on
providing special education and related services to private school
children with disabilities--
(a) For children aged 3 through 21, an amount that is the same
proportion of the LEA's total subgrant under sections 611(g) of the Act
as the number of private school children with disabilities aged 3
through 21 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 21; and
(b) For children aged 3 through 5, an amount that is the same
proportion of the LEA's total subgrant under section 619(g) of the Act
as the number of private school children with disabilities aged 3
through 5 residing in its jurisdiction is to the total number of
children with disabilities in its jurisdiction aged 3 through 5.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Note: SEAs and LEAs are not prohibited from providing services
to private school children with disabilities in excess of those
required by this part, consistent with State law or local policy.
Sec. 300.454 Services determined.
(a) No individual right to special education and related services.
No private school child with a disability has an individual right to
receive some or all of the special education and related services that
the child would receive if enrolled in a public school. Decisions about
the services that will be provided to private school children with
disabilities under Secs. 300.452-300.462, must be made in accordance
with paragraphs (b), (c) and (d) of this section.
(b) Consultation with representatives of private school children
with disabilities. Each LEA shall consult, in a timely and meaningful
way, with appropriate representatives of private school children with
disabilities in light of the funding under Sec. 300.453, the number of
private school children with disabilities, the needs of private school
children with disabilities, and their location to decide--
(1) Which children will receive services under Sec. 300.452;
(2) What services will be provided;
(3) How the services will be provided; and
(4) How the services provided will be evaluated.
(c) Genuine opportunity. Each LEA shall give appropriate
representatives of private school children with disabilities a genuine
opportunity to express their views regarding each matter that is
subject to the consultation requirements in this section.
(d) Timing. The consultation required by paragraph (b) of this
section must occur before the LEA makes any decision that affects the
opportunities of private school children with disabilities to
participate in services under Secs. 300.452-300.462.
(e) Decisions. The LEA shall make the final decisions with respect
to the services to be provided to eligible private school children.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.455 Services provided.
(a) Comparable services. The services provided private school
children with disabilities must be comparable in
[[Page 55095]]
quality to services provided to children with disabilities enrolled in
public schools.
(b) Services provided in accordance with an IEP. The IEP for each
private school child with a disability who receives services under
Sec. 300.452 must address the services that the LEA has determined that
it will provide the child in light of the services that the LEA has
determined, through the process described in Secs. 300.453-300.454, it
will make available to private school children with disabilities.
(c) Definition. As used in this section, comparable in quality--
(1) Means that services provided private school children with
disabilities must be provided by similarly qualified personnel;
(2) Does not require the same amount of service for private school
children with disabilities as for children with disabilities in public
schools; and
(3) Does not require that any particular child receive service or
receive the same amount of service the child would receive in a public
school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.456 Location of services.
(a) On-site. Services provided to private school children with
disabilities may be provided on-site at a child's private school,
including a religiously-affiliated school, to the extent consistent
with law.
(b) Transportation. (1) Transportation of private school children
with disabilities to a site other than a child's private school must be
provided if necessary for a child to benefit from or participate in the
other services offered.
(2) The cost of that transportation may be included in calculating
whether the LEA has met the requirement of Sec. 300.453.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Note 1: The decisions of the Supreme Court in Zobrest v.
Catalina Foothills School Dist. (1993) and Agostini v. Felton (1997)
make clear that LEAs may provide special education and related
services on-site at religiously-affiliated private schools in a
manner that does not violate the Establishment Clause of the First
Amendment to the U. S. Constitution.
Note 2: With regard to transportation services, school districts
are not required to provide transportation from the student's home
to the private school, but only to the site where the services are
offered, and either return the student to the private school or to
the student's home, depending on the timing of the services.
Sec. 300.457 Complaints.
(a) Due process inapplicable. The procedures in Secs. 300.504-
300.515 do not apply to complaints that an LEA has failed to meet the
requirements of Secs. 300.452-300.462, including the provision of
services indicated on the child's IEP.
(b) State complaints. Complaints that an SEA or LEA has failed to
meet requirements of Secs. 300.451-300.462 may be filed under the
procedures in Secs. 300.660-300.662.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.458 Separate classes prohibited.
An LEA may not use funds available under section 611 or 619 of the
Act for classes that are organized separately on the basis of school
enrollment or religion of the students if--
(a) The classes are at the same site; and
(b) The classes include students enrolled in public schools and
students enrolled in private schools.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.459 Requirement that funds not benefit a private school.
(a) An LEA may not use funds provided under section 611 or 619 of
the Act to finance the existing level of instruction in a private
school or to otherwise benefit the private school.
(b) The LEA shall use funds provided under Part B of the Act to
meet the special educational needs of students enrolled in private
schools, but not for--
(1) The needs of a private school; or
(2) The general needs of the students enrolled in the private
school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.460 Use of public school personnel.
An LEA may use funds available under sections 611 and 619 of the
Act to make public personnel available in other than public
facilities--
(a) To the extent necessary to provide services under
Secs. 300.450-300.462 for private school children with disabilities;
and
(b) If those services are not normally provided by the private
school.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.461 Use of private school personnel.
An LEA may use funds available under sections 611 or 619 of the Act
to pay for the services of an employee of a private school if--
(a) The employee performs the services outside of his or her
regular hours of duty; and
(b) The employee performs the services under public supervision and
control.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.462 Requirements concerning property, equipment and supplies
for the benefit of private school children with disabilities.
(a) A public agency must keep title to and exercise continuing
administrative control of all property, equipment, and supplies that
the public agency acquires with funds under section 611 or 619 of the
Act for the benefit of private school children with disabilities.
(b) The public agency may place equipment and supplies in a private
school for the period of time needed for the program.
(c) The public agency shall ensure that the equipment and supplies
placed in a private school--
(1) Are used only for Part B purposes; and
(2) Can be removed from the private school without remodeling the
private school facility.
(d) The public agency shall remove equipment and supplies from a
private school if--
(1) The equipment and supplies are no longer needed for Part B
purposes; or
(2) Removal is necessary to avoid unauthorized use of the equipment
and supplies for other than Part B purposes.
(e) No funds under Part B of the Act may be used for repairs, minor
remodeling, or construction of private school facilities.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Procedures for By-Pass
Sec. 300.480 By-pass--general.
(a) The Secretary implements a by-pass if an SEA is, and was on
December 2, 1983, prohibited by law from providing for the
participation of private school children with disabilities in the
program assisted or carried out under Part B of the Act, as required by
section 612(a)(10)(A) of the Act and by Secs. 300.452-300.462.
(b) The Secretary waives the requirement of section 612(a)(10)(A)
of the Act and of Secs. 300.452-300.462 if the Secretary implements a
by-pass.
(Authority: 20 U.S.C. 1412(f)(1))
Sec. 300.481 Provisions for services under a by-pass.
(a) Before implementing a by-pass, the Secretary consults with
appropriate public and private school officials, including SEA
officials, in the affected State to consider matters such as--
(1) The prohibition imposed by State law that results in the need
for a by-pass;
(2) The scope and nature of the services required by private school
children with disabilities in the State, and the number of children to
be served under the by-pass; and
[[Page 55096]]
(3) The establishment of policies and procedures to ensure that
private school children with disabilities receive services consistent
with the requirements of section 612(a)(10)(A) of the Act and
Secs. 300.452-300.462.
(b) After determining that a by-pass is required, the Secretary
arranges for the provision of services to private school children with
disabilities in the State in a manner consistent with the requirements
of section 612(a)(10)(A) of the Act and Secs. 300.452-300.462 by
providing services through one or more agreements with appropriate
parties.
(c) For any fiscal year that a by-pass is implemented, the
Secretary determines the maximum amount to be paid to the providers of
services by multiplying--
(1) A per child amount that may not exceed the amount per child
provided by the Secretary under Part B of the Act for all children with
disabilities in the State for the preceding fiscal year; by
(2) The number of private school children with disabilities (as
defined by Secs. 300.7(a) and 300.450) in the State, as determined by
the Secretary on the basis of the most recent satisfactory data
available, which may include an estimate of the number of those
children with disabilities.
(d) The Secretary deducts from the State's allocation under Part B
of the Act the amount the Secretary determines is necessary to
implement a by-pass and pays that amount to the provider of services.
The Secretary may withhold this amount from the State's allocation
pending final resolution of any investigation or complaint that could
result in a determination that a by-pass must be implemented.
(Authority: 20 U.S.C. 1412(f)(2))
Due Process Procedures
Sec. 300.482 Notice of intent to implement a by-pass.
(a) Before taking any final action to implement a by-pass, the
Secretary provides the affected SEA with written notice.
(b) In the written notice, the Secretary--
(1) States the reasons for the proposed by-pass in sufficient
detail to allow the SEA to respond; and
(2) Advises the SEA that it has a specific period of time (at least
45 days) from receipt of the written notice to submit written
objections to the proposed by-pass and that it may request in writing
the opportunity for a hearing to show cause why a by-pass should not be
implemented.
(c) The Secretary sends the notice to the SEA by certified mail
with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3)(A))
Sec. 300.483 Request to show cause.
An SEA seeking an opportunity to show cause why a by-pass should
not be implemented shall submit a written request for a show cause
hearing to the Secretary.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.484 Show cause hearing.
(a) If a show cause hearing is requested, the Secretary--
(1) Notifies the SEA and other appropriate public and private
school officials of the time and place for the hearing; and
(2) Designates a person to conduct the show cause hearing. The
designee must not have had any responsibility for the matter brought
for a hearing.
(b) At the show cause hearing, the designee considers matters such
as--
(1) The necessity for implementing a by-pass;
(2) Possible factual errors in the written notice of intent to
implement a by-pass; and
(3) The objections raised by public and private school
representatives.
(c) The designee may regulate the course of the proceedings and the
conduct of parties during the pendency of the proceedings. The designee
takes all steps necessary to conduct a fair and impartial proceeding,
to avoid delay, and to maintain order.
(d) The designee may interpret applicable statutes and regulations,
but may not waive them or rule on their validity.
(e) The designee arranges for the preparation, retention, and, if
appropriate, dissemination of the record of the hearing.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.485 Decision.
(a) The designee who conducts the show cause hearing--
(1) Issues a written decision that includes a statement of
findings; and
(2) Submits a copy of the decision to the Secretary and sends a
copy to each party by certified mail with return receipt requested.
(b) Each party may submit comments and recommendations on the
designee's decision to the Secretary within 15 days of the date the
party receives the designee's decision.
(c) The Secretary adopts, reverses, or modifies the designee's
decision and notifies the SEA of the Secretary's final action. That
notice is sent by certified mail with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.486 Filing requirements.
(a) Any written submission under Secs. 300.482-300.485 must be
filed by hand-delivery, by mail, or by facsimile transmission. The
Secretary discourages the use of facsimile transmission for documents
longer than five pages.
(b) The filing date under paragraph (a) of this section is the date
the document is--
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was
received by the Department.
(d) If a document is filed by facsimile transmission, the Secretary
or the hearing officer, as applicable, may require the filing of a
follow-up hard copy by hand-delivery or by mail within a reasonable
period of time.
(e) If agreed upon by the parties, service of a document may be
made upon the other party by facsimile transmission.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.487 Judicial review.
If dissatisfied with the Secretary's final action, the SEA may,
within 60 days after notice of that action, file a petition for review
with the United States Court of Appeals for the circuit in which the
State is located. The procedures for judicial review are described in
section 612(f)(3)(B)-(D) of the Act.
(Authority: 20 U.S.C. 1412(f)(3)(B)-(D))
Subpart E--Procedural Safeguards
Due Process Procedures for Parents and Children
Sec. 300.500 General responsibility of public agencies; definitions.
(a) Responsibility of SEA and other public agencies. Each SEA shall
ensure that each public agency establishes, maintains, and implements
procedural safeguards that meet the requirements of Secs. 300.500-
Sec. 300.529.
(b) Definitions of ``consent,'' ``evaluation,'' and ``personally
identifiable.'' As used in this part--
(1) Consent means that--
(i) The parent has been fully informed of all information relevant
to the activity for which consent is sought, in his or her native
language, or other mode of communication;
(ii) The parent understands and agrees in writing to the carrying
out of the activity for which his or her consent is sought, and the
consent describes that activity and lists the records (if any) that
will be released and to whom; and
[[Page 55097]]
(iii) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at any time;
(2) Evaluation means procedures used in accordance with
Secs. 300.530-300.536 to determine whether a child has a disability and
the nature and extent of the special education and related services
that the child needs. The term means procedures used selectively with
an individual child and does not include basic tests administered to or
procedures used with all children in a school, grade, or class; and
(3) Personally identifiable means that information includes--
(i) The name of the child, the child's parent, or other family
member;
(ii) The address of the child;
(iii) A personal identifier, such as the child's social security
number or student number; or
(iv) A list of personal characteristics or other information that
would make it possible to identify the child with reasonable certainty.
(Authority: 20 U.S.C. 1415(a))
Note: With respect to paragraph (b)(1)(iii) of this section, the
parent's ability to revoke consent, if invoked, is not retroactive,
i.e., it does not negate an action that has occurred after the
consent was given and before it was revoked.
Sec. 300.501 Opportunity to examine records; parent participation in
meetings.
(a) General. The parents of a child with a disability must be
afforded, in accordance with the procedures of Secs. 300.562-300.569,
an opportunity to--
(1) Inspect and review all education records with respect to--
(i) The identification, evaluation, and educational placement of
the child; and
(ii) The provision of FAPE to the child; and
(2) Participate in all meetings with respect to--
(i) The identification, evaluation, and educational placement of
the child; and
(ii) The provision of FAPE to the child.
(b) Parent participation in meetings. (1) Each public agency shall
provide notice consistent with Sec. 300.345 (a)(1) and (b)(1) to ensure
that parents of children with disabilities have the opportunity to
participate in meetings described in paragraph (a)(2) of this section.
(2) For purposes of this section, the term ``meetings'' means a
prearranged event in which public agency personnel come together at the
same time and place to discuss any matter described in paragraph (a)(2)
of this section relating to an individual child with a disability. The
term does not include informal or unscheduled conversations involving
public agency personnel and conversations on issues such as teaching
methodology, lesson plans, or coordination of service provision if
those issues are not addressed in the child's IEP. The term also does
not include preparatory activities that public agency personnel engage
in to develop a proposal or response to a parent proposal that will be
discussed at a later meeting.
(c) Parent involvement in placement decisions. (1) Each public
agency shall ensure that the parents of each child with a disability
are members of any group that makes decisions on the educational
placement of their child.
(2) In implementing the requirements of paragraph (c)(1) of this
section, the public agency shall use procedures consistent with the
procedures described in Sec. 300.345 (a) through (b)(1).
(3) If neither parent can participate in a meeting in which a
decision is to be made relating to the educational placement of their
child, the public agency shall use other methods to ensure their
participation, including individual or conference telephone calls, or
video conferencing.
(4) A placement decision may be made by a group without the
involvement of the parents, if the public agency is unable to obtain
the parents' participation in the decision. In this case, the public
agency must have a record of its attempt to ensure their involvement,
including information that is consistent with the requirements of
Sec. 300.345(d).
(5) The public agency shall take whatever action is necessary to
ensure that the parents understand, and are able to participate in, any
group discussions relating to the educational placement of their child,
including arranging for an interpreter for parents with deafness, or
whose native language is other than English.
(Authority: 20 U.S.C. 1414(f), 1415(b)(1))
Sec. 300.502 Independent educational evaluation.
(a) General. (1) The parents of a child with a disability have the
right under this part to obtain an independent educational evaluation
of the child, subject to paragraphs (b) through (e) of this section.
(2) Each public agency shall provide to parents, on request,
information about where an independent educational evaluation may be
obtained.
(3) For the purposes of this part--
(i) Independent educational evaluation means an evaluation
conducted by a qualified examiner who is not employed by the public
agency responsible for the education of the child in question; and
(ii) Public expense means that the public agency either pays for
the full cost of the evaluation or ensures that the evaluation is
otherwise provided at no cost to the parent, consistent with
Sec. 300.301.
(b) Parent right to evaluation at public expense. A parent has the
right to an independent educational evaluation at public expense if the
parent disagrees with an evaluation obtained by the public agency. If a
parent requests an independent educational evaluation at public
expense, the public agency must, without unnecessary delay, either
initiate a hearing under Sec. 300.507 to show that its evaluation is
appropriate, or insure an independent educational evaluation is
provided at public expense unless the agency demonstrates in a hearing
under Sec. 300.507 that the evaluation obtained by the parent did not
meet agency criteria. If the public agency initiates a hearing and the
final decision is that the agency's evaluation is appropriate, the
parent still has the right to an independent educational evaluation,
but not at public expense.
(c) Parent-initiated evaluations. If the parent obtains an
independent educational evaluation at private expense, the results of
the evaluation--
(1) Must be considered by the public agency, if it meets agency
criteria, in any decision made with respect to the provision of FAPE to
the child; and
(2) May be presented as evidence at a hearing under this subpart
regarding that child.
(d) Requests for evaluations by hearing officers. If a hearing
officer requests an independent educational evaluation as part of a
hearing, the cost of the evaluation must be at public expense.
(e) Agency criteria. (1) If an independent educational evaluation
is at public expense, the criteria under which the evaluation is
obtained, including the location of the evaluation and the
qualifications of the examiner, must be the same as the criteria that
the public agency uses when it initiates an evaluation.
(2) Except for the criteria described in paragraph (e)(1) of this
section, a public agency may not impose conditions or timelines related
to obtaining an independent educational evaluation at public expense.
(Authority: 20 U.S.C. 1415(b)(1))
Note 1: If a parent requests an independent educational
evaluation at public expense, there is no requirement under Part B
of the Act that the parent specify areas of disagreement with the
public agency's evaluation as a prior condition to obtaining
[[Page 55098]]
the independent educational evaluation. Thus, unless a public agency
chooses to initiate a due process hearing in accordance with
paragraph (b) of this section, the agency must respond to the
parent's request by insuring an independent educational evaluation
is provided at public expense in a timely manner. A public agency
may not impose conditions on obtaining an independent educational
evaluation, other than the agency criteria described in paragraph
(e) of this section.
Note 2: This section requires public agencies to provide parents
with information on how and where an independent educational
evaluation of their child at public expense can be obtained. Public
agencies are encouraged to make this information widely available to
parents in a manner that is readily understandable to the general
public so that if parents disagree with an agency evaluation they
will have access to the criteria the agency will apply to an IEE.
A public agency may not require that evaluations obtained by
parents meet all agency criteria, if doing so would be inconsistent
with the parents' right to an IEE. For example, the agency could not
require a parent to meet a criterion that required the IEE to be
conducted by an agency employee.
Sec. 300.503 Prior notice by the public agency; content of notice.
(a) Notice. (1) Written notice that meets the requirements of
paragraph (b) of this section must be given to the parents of a child
with a disability a reasonable time before the public agency--
(i) Proposes to initiate or change the identification, evaluation,
or educational placement of the child or the provision of FAPE to the
child; or
(ii) Refuses to initiate or change the identification, evaluation,
or educational placement of the child or the provision of FAPE to the
child.
(2) If the notice described under paragraph (a)(1) of this section
relates to an action proposed by the public agency that also requires
parental consent under Sec. 300.505, the agency may give notice at the
same time it requests parent consent.
(b) Content of notice. The notice required under paragraph (a) of
this section must include--
(1) A description of the action proposed or refused by the agency;
(2) An explanation of why the agency proposes or refuses to take
the action;
(3) A description of any other options that the agency considered
and the reasons why those options were rejected;
(4) A description of each evaluation procedure, test, record, or
report the agency used as a basis for the proposed or refused action;
(5) A description of any other factors that are relevant to the
agency's proposal or refusal;
(6) A statement that the parents of a child with a disability have
protection under the procedural safeguards of this part and, if this
notice is not an initial referral for evaluation, the means by which a
copy of a description of the procedural safeguards can be obtained;
(7) Sources for parents to contact to obtain assistance in
understanding the provisions of this part; and
(8) A statement informing the parents about the State complaint
procedures under Secs. 300.660-300.662, including a description of how
to file a complaint and the timelines under those procedures.
(c) Notice in understandable language. (1) The notice required
under paragraph (a) of this section must be--
(i) Written in language understandable to the general public; and
(ii) Provided in the native language of the parent or other mode of
communication used by the parent, unless it is clearly not feasible to
do so.
(2) If the native language or other mode of communication of the
parent is not a written language, the SEA or LEA shall take steps to
ensure--
(i) That the notice is translated orally or by other means to the
parent in his or her native language or other mode of communication;
(ii) That the parent understands the content of the notice; and
(iii) That there is written evidence that the requirements in
paragraphs (c)(2) (i) and (ii) of this section have been met.
(Authority: 20 U.S.C. 1415 (b) (3), (4) and (c), 1414(b)(1))
Sec. 300.504 Procedural safeguards notice.
(a) General. A copy of the procedural safeguards available to the
parents of a child with a disability must be given to the parents, at a
minimum--
(1) Upon initial referral for evaluation;
(2) Upon each notification of an IEP meeting;
(3) Upon reevaluation of the child; and
(4) Upon receipt of a request for due process under Sec. 300.507.
(b) Contents. The procedural safeguards notice must include a full
explanation of all of the procedural safeguards available under
Secs. 300.403, 300.500-300.529, and 300.560-300.577 relating to--
(1) Independent educational evaluation;
(2) Prior written notice;
(3) Parental consent;
(4) Access to educational records;
(5) Opportunity to present complaints;
(6) The child's placement during pendency of due process
proceedings;
(7) Procedures for students who are subject to placement in an
interim alternative educational setting;
(8) Requirements for unilateral placement by parents of children in
private schools at public expense;
(9) Mediation;
(10) Due process hearings, including requirements for disclosure of
evaluation results and recommendations;
(11) State-level appeals (if applicable in that State);
(12) Civil actions; and
(13) Attorneys' fees.
(c) Notice in understandable language. (1) The notice required
under paragraph (a) of this section must be--
(i) Written in language understandable to the general public; and
(ii) Provided in the native language of the parent or other mode of
communication used by the parent, unless it is clearly not feasible to
do so.
(2) If the native language or other mode of communication of the
parent is not a written language, the SEA or LEA shall take steps to
ensure--
(i) That the notice is translated orally or by other means to the
parent in his or her native language or other mode of communication;
(ii) That the parent understands the content of the notice; and
(iii) That there is written evidence that the requirements in
paragraphs (c)(2) (i) and (ii) of this section have been met.
(Authority: 20 U.S.C. 1415(d))
Sec. 300.505 Parental consent.
(a)(1) Parental consent must be obtained before--
(i) Conducting an initial evaluation;
(ii) Initial provision of special education and related services to
a child with a disability in a program providing special education and
related services; and
(iii) Except as provided in paragraph (c) of this section, before
conducting any new test as a part of a reevaluation of an eligible
child under Part B of the Act.
(2) Consent for initial evaluation may not be construed as consent
for initial placement described in paragraph (a)(1)(ii) of this
section.
(b) Refusal. If the parents of the child with a disability refuse
consent for initial evaluation or a reevaluation, the agency may
continue to pursue those evaluations by using the due process
procedures under Secs. 300.507-300.509, or the mediation procedures
under Sec. 300.506 if appropriate, except to the extent inconsistent
with State law relating to parental consent.
(c) Failure to respond to request for reevaluation.
[[Page 55099]]
(1) Informed parental consent need not be obtained for reevaluation
if the public agency can demonstrate that it has taken reasonable
measures to obtain that consent, and the child's parent has failed to
respond.
(2) To meet the reasonable measures requirement in paragraph (c)(1)
of this section, the public agency must use procedures consistent with
those in Secs. 300.345(d).
(d) Additional State consent requirements. In addition to the
parental consent requirements described in paragraph (a) of this
section, a State may require parental consent for other services and
activities under this part if it ensures that each public agency in the
State establishes and implements effective procedures to ensure that a
parent's refusal to consent does not result in a failure to provide the
child with FAPE.
(e) Limitation. A public agency may not require parental consent as
a condition of any benefit to the parent or the child except for the
service or activity for which consent is required under paragraph (a)
of this section.
(Authority: 20 U.S.C. 1415(b)(3); 1414 (a)(1)(C) and (c)(3))
Note 1: Paragraph (b) of this section means that if the parents
of a child with a disability refuse consent for an initial
evaluation or any reevaluation, and the agency wishes to pursue the
evaluation or reevaluation, it may do so by using the due process or
mediation procedures under Part B of the Act unless doing so would
be inconsistent with State law relating to parent consent. For
example, if State law provides that parents' right to consent to an
initial evaluation cannot be overridden, the agency under Part B
would not be able to take any action regarding that initial
evaluation once parents had refused consent. If State law provided a
mechanism different than due process or mediation under Part B as
the means to override a parent refusal of consent, the agency would
use that State mechanism if it wished to pursue the evaluation.
Note 2: If a State adopts a consent requirement in addition to
those described in paragraph (a) of this section and consent is
refused, paragraph (e) of this section requires that the public
agency must nevertheless provide the services and activities that
are not in dispute. For example, if a State requires parental
consent to the provision of all services identified in an IEP and
the parent refuses to consent to physical therapy services included
in the IEP, the agency is not relieved of its obligation to
implement those portions of the IEP to which the parent consents.
If the parent refuses to consent and the public agency
determines that the service or activity in dispute is necessary to
provide FAPE to the child, paragraph (d) of this section requires
that the agency must implement its procedures to override the
refusal. This section does not preclude the agency from
reconsidering its proposal if it believes that circumstances
warrant.
Note 3: If parents refuse consent to a reevaluation that the
agency needs to provide appropriate services to the child consistent
with Sec. 300.536, the agency must either take appropriate measures,
consistent with paragraph (b) of this section to override the
parents' refusal of consent, or, if State law prohibits override of
parent consent for reevaluation, the agency may cease providing
services to the child under Part B of the Act.
Sec. 300.506 Mediation.
(a) General. Each public agency shall ensure that procedures are
established and implemented to allow parties to disputes involving any
matter described in Sec. 300.503(a)(1) to resolve the disputes through
a mediation process which, at a minimum, must be available whenever a
hearing is requested under Secs. 300.507 or 300.520-300.528.
(b) Requirements. The procedures must meet the following
requirements:
(1) The procedures must ensure that the mediation process--
(i) Is voluntary on the part of the parties;
(ii) Is not used to deny or delay a parent's right to a due process
hearing under Sec. 300.506, or to deny any other rights afforded under
Part B of the Act; and
(iii) Is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.
(2) The State shall maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations relating
to the provision of special education and related services.
(3) The State shall bear the cost of the mediation process,
including the costs of meetings described in paragraph (b)(2) of this
section.
(4) Each session in the mediation process must be scheduled in a
timely manner and must be held in a location that is convenient to the
parties to the dispute.
(5) An agreement reached by the parties to the dispute in the
mediation process must be set forth in a written mediation agreement.
(6) Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent due
process hearings or civil proceedings and the parties to the mediation
process may be required to sign a confidentiality pledge prior to the
commencement of the process.
(c) Impartiality of mediator. An individual who serves as a
mediator under this part--
(1) May not be an employee of--
(i) Any LEA or any State agency described under Sec. 300.194; or
(ii) An SEA that is providing direct services to a child who is the
subject of the mediation process; and
(2) Must not have a personal or professional conflict of interest.
(d) Meeting to encourage mediation. (1) A public agency may
establish procedures to require parents who elect not to use the
mediation process to meet, at a time and location convenient to the
parents, with a disinterested party--
(i) Who is under contract with a parent training and information
center or community parent resource center in the State established
under section 682 or 683 of the Act, or an appropriate alternative
dispute resolution entity; and
(ii) Who would explain the benefits of the mediation process, and
encourage the parents to use the process.
(2) A public agency may not deny or delay a parent's right to a due
process hearing under Sec. 300.507 if the parent fails to participate
in the meeting described in paragraph (d)(1) of this section.
(Authority: 20 U.S.C. 1415(e))
Note 1: With respect to paragraph (b)(2) of this section, the
House Committee Report on Pub. L. 105-17 includes the following
statement:
* * * the bill provides that the State shall maintain a list of
individuals who are qualified mediators. The Committee intends that
whenever such a mediator is not selected on a random basis from that
list, both the parents and the agency are involved in selecting the
mediator, and are in agreement with the individual who is selected.
(H. Rep. No. 105-95, p. 106 (1997))
Note 2: With regard to the provision in paragraph (b)(6) that
mediation discussions must be confidential and may not be used in
any subsequent due process hearings or civil proceedings, the House
Committee Report on Pub. L. 105-17 notes that ``nothing in this bill
shall supersede any parental access rights under the Family
Educational Rights and Privacy Act of 1974 or foreclose access to
information otherwise available to the parties.'' (H. Rep. No. 105-
95, p. 107 (1997)). The Report also includes an example of a
confidentiality pledge, which makes clear that the intent of this
provision is to protect discussions that occur in the mediation
process from use in subsequent due process hearings and civil
proceedings under the Act, and not to exempt from discovery, because
it was disclosed during mediation, information that otherwise would
be subject to discovery.
Sec. 300.507 Impartial due process hearing; parent notice; disclosure.
(a) General. (1) A parent or a public agency may initiate a hearing
on any of the matters described in Sec. 300.503(a)(1) and (2) (relating
to the identification, evaluation or educational placement of a child
with a disability, or the provision of FAPE to the child).
[[Page 55100]]
(2) When a hearing is initiated under paragraph (a)(1) of this
section, the public agency shall inform the parents of the availability
of mediation described in Sec. 300.506.
(3) The public agency shall inform the parent of any free or low-
cost legal and other relevant services available in the area if--
(i) The parent requests the information; or
(ii) The parent or the agency initiates a hearing under this
section.
(b) Agency responsible for conducting hearing. The hearing
described in paragraph (a) of this section must be conducted by the SEA
or the public agency directly responsible for the education of the
child, as determined under State statute, State regulation, or a
written policy of the SEA.
(c) Parent notice to the public agency.
(1) General. The public agency must have procedures that require
the parent of a child with a disability or the attorney representing
the child, to provide notice (which must remain confidential) to the
public agency in a request for a hearing under paragraph (a)(1) of this
section.
(2) Content of parent notice. The notice required in paragraph
(c)(1) of this section must include--
(i) The name of the child;
(ii) The address of the residence of the child;
(iii) The name of the school the child is attending;
(iv) A description of the nature of the problem of the child
relating to the proposed initiation or change, including facts relating
to the problem; and
(v) A proposed resolution of the problem to the extent known and
available to the parents at the time.
(3) Model form to assist parents. Each SEA shall develop a model
form to assist parents in filing a request for due process that
includes the information required in paragraphs (c)(1) and (2) of this
section.
(4) Right to due process hearing. A public agency may not deny or
delay a parent's right to a due process hearing for failure to provide
the notice required in paragraphs (c)(1) and (2) of this section.
(Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7), (b)(8), (e)(1) and
(f)(1))
Note 1: Part B of the Act and the regulations under Part B of
the Act do not provide any authority for a public agency to deny a
parent's request for an impartial due process hearing, even if the
agency believes that the parent's issues are not new. Thus, the
determination of whether or not a parent's request for a hearing is
based on new issues can only be made by an impartial hearing
officer.
Note 2: The House Committee Report on Pub. L. 105-17 notes that
attorneys' fees to prevailing parents may be reduced if the attorney
representing the parents did not provide the public agency with
specific information about the child and the basis of the dispute
described in paragraphs (c)(1) and (2) of this section. With respect
to the intent of the new notice provision, the House report includes
the following statement:
* * * The Committee believes that the addition of this provision
will facilitate an early opportunity for schools and parents to
develop a common frame of reference about problems and potential
problems that may remove the need to proceed to due process and
instead foster a partnership to resolve problems. (H. Rep. 105-95,
p. 105 (1997))
Sec. 300.508 Impartial hearing officer.
(a) A hearing may not be conducted--
(1) By a person who is an employee of the State agency or the LEA
that is involved in the education or care of the child; or
(2) By any person having a personal or professional interest that
would conflict with his or her objectivity in the hearing.
(b) A person who otherwise qualifies to conduct a hearing under
paragraph (a) of this section is not an employee of the agency solely
because he or she is paid by the agency to serve as a hearing officer.
(c) Each public agency shall keep a list of the persons who serve
as hearing officers. The list must include a statement of the
qualifications of each of those persons.
(Authority: 20 U.S.C. 1415(f)(3))
Sec. 300.509 Hearing rights.
(a) General. Any party to a hearing conducted pursuant to
Secs. 300.507 or 300.520--300.528, or an appeal conducted pursuant to
Sec. 300.510, has the right to--
(1) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of children
with disabilities;
(2) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;
(3) Prohibit the introduction of any evidence at the hearing that
has not been disclosed to that party at least 5 days before the
hearing;
(4) Obtain a written, or, at the option of the parents, electronic,
verbatim record of the hearing; and
(5) Obtain written, or, at the option of the parents, electronic
findings of fact and decisions.
(b) Additional disclosure of information requirement. (1) At least
5 business days prior to a hearing conducted pursuant to
Sec. 300.507(a), each party shall disclose to all other parties all
evaluations completed by that date and recommendations based on the
offering party's evaluations that the party intends to use at the
hearing.
(2) A hearing officer may bar any party that fails to comply with
paragraph (b)(1) of this section from introducing the relevant
evaluation or recommendation at the hearing without the consent of the
other party.
(c) Parental rights at hearings. (1) Parents involved in hearings
must be given the right to--
(i) Have the child who is the subject of the hearing present; and
(ii) Open the hearing to the public.
(2) The record of the hearing and the findings of fact and
decisions described in paragraphs (a)(4) and (a)(5) of this section
must be provided at no cost to parents.
(d) Findings and decision to advisory panel and general public. The
public agency, after deleting any personally identifiable information,
shall--
(1) Transmit the findings and decisions referred to in paragraph
(a)(5) of this section to the State advisory panel established under
Sec. 300.650; and
(2) Make those findings and decisions available to the public.
(Authority: 20 U.S.C. 1415(f)(2)and (h))
Sec. 300.510 Finality of decision; appeal; impartial review.
(a) Finality of decision. A decision made in a hearing conducted
pursuant to Secs. 300.507 or 300.520--300.528 is final, except that any
party involved in the hearing may appeal the decision under the
provisions of paragraph (b) of this section and Sec. 300.512.
(Authority: 20 U.S.C. 1415(i)(1)(A))
(b) Appeal of decisions; impartial review.
(1) General. If the hearing required by Sec. 300.507 is conducted
by a public agency other than the SEA, any party aggrieved by the
findings and decision in the hearing may appeal to the SEA.
(2) SEA responsibility for review. If there is an appeal, the SEA
shall conduct an impartial review of the hearing. The official
conducting the review shall--
(i) Examine the entire hearing record;
(ii) Ensure that the procedures at the hearing were consistent with
the requirements of due process;
(iii) Seek additional evidence if necessary. If a hearing is held
to receive additional evidence, the rights in Sec. 300.508 apply;
(iv) Afford the parties an opportunity for oral or written
argument, or both, at the discretion of the reviewing official;
(v) Make an independent decision on completion of the review; and
[[Page 55101]]
(vi) Give a copy of written findings and the decision to the
parties.
(c) Findings and decision to advisory panel and general public. The
SEA, after deleting any personally identifiable information, shall--
(1) Transmit the findings and decisions referred to in paragraph
(b)(2)(vi) of this section to the State advisory panel established
under Sec. 300.650; and
(2) Make those findings and decisions available to the public.
(d) Finality of review decision. The decision made by the reviewing
official is final unless a party brings a civil action under
Sec. 300.511.
(Authority: 20 U.S.C. 1415(g); H. R. Rep. No. 94--664, at p. 49
(1975))
Note 1: The SEA may conduct its review either directly or
through another State agency acting on its behalf. However, the SEA
remains responsible for the final decision on review.
Note 2: All parties have the right to continue to be represented
by counsel at the State administrative review level, whether or not
the reviewing official determines that a further hearing is
necessary. If the reviewing official decides to hold a hearing to
receive additional evidence, the other rights in Sec. 300.509
relating to hearings also apply.
Sec. 300.511 Timelines and convenience of hearings and reviews.
(a) The public agency shall ensure that not later than 45 days
after the receipt of a request for a hearing--
(1) A final decision is reached in the hearing; and
(2) A copy of the decision is mailed to each of the parties.
(b) The SEA shall ensure that not later than 30 days after the
receipt of a request for a review--
(1) A final decision is reached in the review; and
(2) A copy of the decision is mailed to each of the parties.
(c) A hearing or reviewing officer may grant specific extensions of
time beyond the periods set out in paragraphs (a) and (b) of this
section at the request of either party.
(d) Each hearing and each review involving oral arguments must be
conducted at a time and place that is reasonably convenient to the
parents and child involved.
(Authority: 20 U.S.C. 1415)
Sec. 300.512 Civil action.
(a) General. Any party aggrieved by the findings and decision made
under Secs. 300.507 or 300.520-300.528 who does not have the right to
an appeal under Sec. 300.510(b)(2), and any party aggrieved by the
findings and decision under Sec. 300.510(e), has the right to bring a
civil action with respect to the complaint presented pursuant to
Sec. 300.507. The action may be brought in any State court of competent
jurisdiction or in a district court of the United States without regard
to the amount in controversy.
(b) Additional requirements. In any action brought under paragraph
(a) of this section, the court--
(1) Shall receive the records of the administrative proceedings;
(2) Shall hear additional evidence at the request of a party; and
(3) Basing its decision on the preponderance of the evidence, shall
grant the relief that the court determines to be appropriate.
(c) Jurisdiction of district courts. The district courts of the
United States have jurisdiction of actions brought under section 615 of
the Act without regard to the amount in controversy.
(d) Rule of construction. Nothing in this part restricts or limits
the rights, procedures, and remedies available under the Constitution,
the Americans with Disabilities Act of 1990, title V of the
Rehabilitation Act of 1973, or other Federal laws protecting the rights
of children with disabilities, except that before the filing of a civil
action under these laws seeking relief that is also available under
section 615 of the Act, the procedures under Secs. 300.507 and 300.510
must be exhausted to the same extent as would be required had the
action been brought under section 615 of the Act.
(Authority: 20 U.S.C. 1415 (i)(2), (i)(3)(A), and 1415(l))
Sec. 300.513 Attorneys' fees.
(a) In any action or proceeding brought under section 615 of the
Act, the court, in its discretion, may award reasonable attorneys' fees
as part of the costs to the parents of a child with a disability who is
the prevailing party.
(b) Funds under Part B of the Act may not be used to pay attorney's
fees.
(Authority: 20 U.S.C. 1415(i)(3)(B))
Note: There is nothing in this part that prohibits a State from
enacting a law that permits hearing officers to award attorneys'
fees to parents who are prevailing parties under Part B of the Act.
Sec. 300.514 Child's status during proceedings.
(a) Except as provided in Sec. 300.526, during the pendency of any
administrative or judicial proceeding regarding a complaint, unless the
State or local agency and the parents of the child agree otherwise, the
child involved in the complaint must remain in his or her current
educational placement.
(b) If the complaint involves an application for initial admission
to public school, the child, with the consent of the parents, must be
placed in the public school until the completion of all the
proceedings.
(c) If the decision of a hearing officer in a due process hearing
or a review official in an administrative appeal agrees with the
child's parents that a change of placement is appropriate, that
placement must be treated as an agreement between the State or local
agency and the parents for purposes of paragraph (a) of this section.
(Authority: 20 U.S.C. 1415(j))
Note: This section does not permit a child's placement to be
changed during a complaint proceeding, unless the parents and agency
agree otherwise. While the placement may not be changed, this does
not preclude the agency from using its normal procedures for dealing
with children who are endangering themselves or others.
Sec. 300.515 Surrogate parents.
(a) General. Each public agency shall ensure that the rights of a
child are protected if--
(1) No parent (as defined in Sec. 300.19) can be identified;
(2) The public agency, after reasonable efforts, cannot discover
the whereabouts of a parent; or
(3) The child is a ward of the State under the laws of that State.
(b) Duty of public agency. The duty of a public agency under
paragraph (a) of this section includes the assignment of an individual
to act as a surrogate for the parents. This must include a method--
(1) For determining whether a child needs a surrogate parent; and
(2) For assigning a surrogate parent to the child.
(c) Criteria for selection of surrogates. (1) The public agency may
select a surrogate parent in any way permitted under State law.
(2) Public agencies shall ensure that a person selected as a
surrogate--
(i) Is not an employee of the SEA, the LEA, or any other agency
that is involved in the education or care of the child;
(ii) Has no interest that conflicts with the interest of the child
he or she represents; and
(iii) Has knowledge and skills that ensure adequate representation
of the child.
(d) Non-employee requirement; compensation. (1) A person assigned
as a surrogate may not be an employee of a public agency that is
involved in the education or care of the child.
(2) A person who otherwise qualifies to be a surrogate parent under
[[Page 55102]]
paragraphs (c) and (d)(1) of this section is not an employee of the
agency solely because he or she is paid by the agency to serve as a
surrogate parent.
(e) Responsibilities. The surrogate parent may represent the child
in all matters relating to--
(1) The identification, evaluation, and educational placement of
the child; and
(2) The provision of FAPE to the child.
(Authority: 20 U.S.C. 1415(b)(2))
Sec. 300.516 [Reserved]
Sec. 300.517 Transfer of parental rights at age of majority.
(a) General. A State may provide that, when a child with a
disability reaches the age of majority under State law that applies to
all children (except for a child with a disability who has been
determined to be incompetent under State law)--
(1)(i) The public agency shall provide any notice required by this
part to both the individual and the parents; and
(ii) All other rights accorded to parents under Part B of the Act
transfer to the child; and
(2) All rights accorded to parents under Part B of the Act transfer
to children who are incarcerated in an adult or juvenile, State, or
local correctional institution.
(3) Whenever a State transfers rights under this part pursuant to
paragraph (a) (1) or (2), the agency shall notify the individual and
the parents of the transfer of rights.
(b) Special rule. If, under State law, a child with a disability,
described in paragraph (a) of this section, is determined not to have
the ability to provide informed consent with respect to the educational
program of the student, the State shall establish procedures for
appointing the parent, or, if the parent is not available another
appropriate individual, to represent the educational interests of the
student throughout the student's eligibility under Part B of the Act.
(Authority: 20 U.S.C. 1415(m))
Discipline Procedures
Sec. 300.520 Authority of school personnel.
(a) School personnel may order--
(1) The removal of a child with a disability from the child's
current educational placement to an appropriate interim alternative
educational setting, another setting, or suspension, including a
suspension without the provision of educational services, for not more
than 10 school days (to the extent the alternatives would be applied to
children without disabilities); and
(2) A change in placement of a child with a disability to an
appropriate interim alternative educational setting for the same amount
of time that a child without a disability would be subject to
discipline, but for not more than 45 days, if--
(i) The child carries a weapon to school or to a school function
under the jurisdiction of a State or a local educational agency; or
(ii) The child knowingly possesses or uses illegal drugs or sells
or solicits the sale of a controlled substance while at school or a
school function under the jurisdiction of a State or local educational
agency.
(b) Except as provided in paragraph (c) of this section, either
before or not later than 10 business days after taking the action
described in paragraph (a) of this section--
(1) If the LEA did not conduct a functional behavioral assessment
and implement a behavioral intervention plan for the child before the
behavior that resulted in the suspension described in paragraph (a) of
this section, the agency shall convene an IEP meeting to develop an
assessment plan and appropriate behavioral interventions to address
that behavior; or
(2) If the child already has a behavioral intervention plan, the
IEP team shall review the plan and modify it, as necessary, to address
the behavior.
(c) If the child with a disability is removed from the child's
current educational placement for 10 school days or fewer under
paragraph (a)(1) of this section in a given school year, and no further
removal or disciplinary action is contemplated, the activities in
paragraph (b) of this section need not be conducted.
(d) For purposes of this section, the following definitions apply:
(1) Controlled substance means a drug or other substance identified
under schedules I, II, III, IV, or V in section 202(c) of the
Controlled Substances Act (21 U.S.C. 812(c)).
(2) Illegal drug--
(i) Means a controlled substance; but
(ii) Does not include such a substance that is legally possessed or
used under the supervision or a licensed health-care professional or
that is legally possessed or used under any other authority under that
Act or under any other provision of Federal law.
(3) Weapon has the meaning given the term ``dangerous weapon''
under paragraph (2) of the first subsection (g) of section 930 of title
18, United States Code.
(Authority: 20 U.S.C. 1415(k) (1), (10))
Note 1: Removing a child with disabilities from the child's
current educational placement for not more than 10 school days does
not constitute a change of placement under the Part B regulation. A
series of removals from a child's current educational placement in a
school year each of which is less than 10 school days but cumulate
to more than 10 school days in a school year may constitute a change
in placement, if, in any given case, factors such as the length of
each removal, the total amount of time that the child is removed,
and the proximity of the removals to one another, lead to the
conclusion that the child has been excluded from the current
placement to such an extent that there has been a change of
placement.
Note 2: Although paragraph (c) of this section provides that
public agencies need not conduct the review described in paragraph
(b) if a child is removed from the regular placement for 10 school
days or fewer and no further removal or disciplinary action is
contemplated, public agencies are strongly encouraged to review as
soon as possible the circumstances surrounding the behavior that led
to the child's removal and consider whether the child was being
provided services in accordance with the IEP, and whether the
behavior could be addressed through minor classroom or program
adjustments or whether the child's IEP team should be reconvened to
address possible changes in that document.
Sec. 300.521 Authority of hearing officer.
A hearing officer under section 615 of the Act may order a change
in the placement of a child with a disability to an appropriate interim
alternative educational setting for not more than 45 days if the
hearing officer, in an expedited due process hearing--
(a) Determines that the public agency has demonstrated by
substantial evidence that maintaining the current placement of the
child is substantially likely to result in injury to the child or to
others;
(b) Considers the appropriateness of the child's current placement;
(c) Considers whether the public agency has made reasonable efforts
to minimize the risk of harm in the child's current placement,
including the use of supplementary aids and services; and
(d) Determines that the interim alternative educational setting
meets the requirements of Sec. 300.522.
(e) As used in this section, the term substantial evidence means
beyond a preponderance of the evidence.
(Authority: 20 U.S.C. 1415(k) (2), (10))
Sec. 300.522 Determination of setting.
(a) General. The alternative educational setting referred to in
Secs. 300.520 and 300.521 must be determined by the IEP team.
(b) Additional requirements. Any interim alternative educational
setting in which a child is placed under Sec. 300.520 or 300.521 must--
[[Page 55103]]
(1) Be selected so as to enable the child to continue to
participate in the general curriculum, although in another setting, and
to continue to receive those services and modifications, including
those described in the child's current IEP, that will enable the child
to meet the goals set out in that IEP; and
(2) Include services and modifications designed to address the
behavior described in Sec. 300.520 or 300.521, or any other behavior
that results in the child being removed from the child's current
educational placement for more than 10 school days in a school year, so
that it does not recur.
(Authority: 20 U.S.C. 1415(k)(3))
Sec. 300.523 Manifestation determination review.
(a) General. If an action is contemplated as described in
Sec. 300.520 or 300.521, or if an action involving a removal of a child
from the child's current educational placement for more than 10 school
days in a given school year is contemplated for a child with a
disability who has engaged in other behavior that violated any rule or
code of conduct of the LEA that applies to all children--
(1) Not later than the date on which the decision to take that
action is made, the parents must be notified of that decision and of
all procedural safeguards accorded under this section; and
(2) Immediately, if possible, but in no case later than 10 school
days after the date on which the decision to take that action is made,
a review must be conducted of the relationship between the child's
disability and the behavior subject to the disciplinary action.
(b) Exception. If, under Sec. 300.520(a)(1), the child with
disabilities is removed from the child's current educational placement
for 10 school days or fewer in a given school year, and no further
disciplinary action is contemplated, the review in paragraph (a) of
this section need not be conducted.
(c) Individuals to carry out review. A review described in
paragraph (a) of this section must be conducted by the IEP team and
other qualified personnel.
(d) Conduct of review. In carrying out a review described in
paragraph (a) of this section, the IEP team may determine that the
behavior of the child was not a manifestation of the child's disability
only if the IEP team--
(1) First considers, in terms of the behavior subject to
disciplinary action, all relevant information, including--
(i) Evaluation and diagnostic results, including the results or
other relevant information supplied by the parents of the child;
(ii) Observations of the child; and
(iii) The child's IEP and placement; and
(2) Then determines that--
(i) In relationship to the behavior subject to disciplinary action,
the child's IEP and placement were appropriate and the special
education services, supplementary aids and services, and behavior
intervention strategies were provided consistent with the child's IEP
and placement;
(ii) The child's disability did not impair the ability of the child
to understand the impact and consequences of the behavior subject to
disciplinary action; and
(iii) The child's disability did not impair the ability of the
child to control the behavior subject to disciplinary action.
(e) Decision. If the IEP team determines that any of the standards
in (d)(2) of this section were not met, the behavior must be considered
a manifestation of the child's disability.
(f) Meeting. The review described in paragraph (a) of this section
may be conducted at the same IEP meeting that is convened under
Sec. 300.520(b).
(Authority: 20 U.S.C. 1415(k)(4))
Note 1: The House Committee Report on Pub. L. No 105-17 states
that the determination described in Sec. 300.523(c)(2):
. . . .recognizes that where there is a relationship between a
child's behavior and a failure to provide or implement an IEP or
placement, the IEP team must conclude that the behavior was a
manifestation of the child's disability. Similarly, where the IEP
team determines that an appropriate placement and IEP were provided,
the IEP team must then determine that the remaining two standards
have been satisfied. This section is not intended to require an IEP
team to find that a child's behavior was a manifestation of a
child's disability based on a technical violation of the IEP or
placement requirements that are unrelated to the educational/
behavior needs of the child. (House Rep. No. 105-95, pp. 110-111)
Note 2: If the result of the manifestation determination is that
the behavior is a manifestation of the child's disability, the LEA
must take immediate steps to remedy any deficiencies found in the
child's IEP or placement, or their implementation. For a child who
has been placed in a 45-day placement under Sec. 300.520(a)(2) or
300.521 and for whom the child's behavior subject to discipline is a
manifestation of the child's disability, these remedies often should
enable the child to return to the child's current educational
placement before the expiration of the 45-day period.
Sec. 300.524 Determination that behavior was not manifestation of
disability.
(a) General. If the result of the review described in Sec. 300.523
is a determination, consistent with Sec. 300.523(e), that the behavior
of the child with a disability was not a manifestation of the child's
disability, the relevant disciplinary procedures applicable to children
without disabilities may be applied to the child in the same manner in
which they would be applied to children without disabilities, except as
provided in section 612(a)(1) of the Act.
(b) Additional requirement. If the public agency initiates
disciplinary procedures applicable to all children, the agency shall
ensure that the special education and disciplinary records of the child
with a disability are transmitted for consideration by the person or
persons making the final determination regarding the disciplinary
action.
(c) Child's status during due process proceedings. Section 300.514
applies if a parent requests a hearing to challenge a determination,
made through the review described in Sec. 300.523, that the behavior of
the child was not a manifestation of the child's disability.
(Authority: 20 U.S.C. 1415(k)(5))
Note: The provision in paragraph (c) of this section means that
during the pendency of any administrative or judicial proceeding to
challenge a determination that the child's behavior is not a
manifestation of the child's disability, the child remains in the
child's current educational placement or the child's placement under
Sec. 300.526, whichever applies.
Sec. 300.525 Parent appeal.
(a) General.
(1) If the child's parent disagrees with a determination that the
child's behavior was not a manifestation of the child's disability or
with any decision regarding placement, the parent may request a
hearing.
(2) The State or local educational agency shall arrange for an
expedited hearing in any case described in this section if requested by
a parent.
(b) Review of decision.
(1) In reviewing a decision with respect to the manifestation
determination, the hearing officer shall determine whether the public
agency has demonstrated that the child's behavior was not a
manifestation of the child's disability consistent with the
requirements of Sec. 300.523(e).
(2) In reviewing a decision under Sec. 300.520(a)(2) to place the
child in an interim alternative educational setting, the hearing
officer shall apply the standards in Sec. 300.521.
(Authority: 20 U.S.C. 1415(k)(6))
Sec. 300.526 Placement during appeals.
(a) General. If a parent requests a hearing regarding a
disciplinary action
[[Page 55104]]
described in Sec. 300.520(a)(2) or 300.521 to challenge the interim
alternative educational setting or the manifestation determination, the
child must remain in the interim alternative educational setting
pending the decision of the hearing officer or until the expiration of
the time period provided for in Sec. 300.520(a)(2) or 300.521,
whichever occurs first, unless the parent and the State or local
educational agency agree otherwise.
(b) Current placement. If a child is placed in an interim
alternative educational setting pursuant to--Sec. 300.520(a)(2) or
300.521 and school personnel propose to change the child's placement
after expiration of the interim alternative placement, during the
pendency of any proceeding to challenge the proposed change in
placement the child must remain in the current placement (the child's
placement prior to the interim alternative educational setting), except
as provided in paragraph (c) of this section.
(c) Expedited hearing.
(1) If school personnel maintain that it is dangerous for the child
to be in the current placement (placement prior to removal to the
interim alternative education setting) during the pendency of the due
process proceedings, the LEA may request an expedited due process
hearing.
(2) In determining whether the child may be placed in the
alternative educational setting or in another appropriate placement
ordered by the hearing officer, the hearing officer shall apply the
standards in Sec. 300.521.
(3) A placement ordered pursuant to paragraph (c)(2) of this
section may not be longer than 45 days.
(Authority: 20 U.S.C. 1415(k)(7))
Note: An LEA may seek subsequent expedited hearings under
paragraph (c)(1) of this section if, at the expiration of the time
period of the placement ordered under paragraph (c) of this section,
the LEA maintains that the child is still dangerous and the issue
has not been resolved through due process.
Sec. 300.527 Protections for children not yet eligible for special
education and related services.
(a) General. A child who has not been determined to be eligible for
special education and related services under this part and who has
engaged in behavior that violated any rule or code of conduct of the
local educational agency, including any behavior described in
Secs. 300.520 or 300.521, may assert any of the protections provided
for in this part if the LEA had knowledge (as determined in accordance
with this paragraph) that the child was a child with a disability
before the behavior that precipitated the disciplinary action occurred.
(b) Basis of knowledge. An LEA must be deemed to have knowledge
that a child is a child with a disability if--
(1) The parent of the child has expressed concern in writing (or
orally if the parent is illiterate in English or has a disability that
prevents a written statement) to personnel of the appropriate
educational agency that the child is in need of special education and
related services;
(2) The behavior or performance of the child demonstrates the need
for these services;
(3) The parent of the child has requested an evaluation of the
child pursuant to Secs. 300.530-300.536; or
(4) The teacher of the child, or other personnel of the local
educational agency, has expressed concern about the behavior or
performance of the child to the director of special education of the
agency or to other personnel of the agency.
(c) Conditions that apply if no basis of knowledge.
(1) General. If an LEA does not have knowledge that a child is a
child with a disability (in accordance with paragraph (b) of this
section) prior to taking disciplinary measures against the child, the
child may be subjected to the same disciplinary measures as measures
applied to children without disabilities who engaged in comparable
behaviors consistent with paragraph (c)(2) of this section.
(2) Limitations.
(i) If a request is made for an evaluation of a child during the
time period in which the child is subjected to disciplinary measures
under Sec. 300.520 or 300.521, the evaluation must be conducted in an
expedited manner.
(ii) Until the evaluation is completed, the child remains in the
educational placement determined by school authorities.
(iii) If the child is determined to be a child with a disability,
taking into consideration information from the evaluation conducted by
the agency and information provided by the parents, the agency shall
provide special education and related services in accordance with the
provisions of this part, including the requirements of Secs. 300.520-
300.529 and section 612(a)(1)(A) of the Act.
(Authority: 20 U.S.C. 1415(k)(8))
Sec. 300.528 Expedited due process hearings.
(a) Expedited due process hearings under Secs. 300.521-300.526
must--
(1) Result in a decision within 10 business days of the request for
the hearing, unless the parents and school officials otherwise agree;
(2) Meet the requirements of Sec. 300.508, except that a State may
provide that the time periods identified in Sec. 300.509(a)(3) and
Sec. 300.509(b) for purposes of expedited due process hearings under
Secs. 300.521-300.526 are not less than two business days; and
(3) Be conducted by a due process hearing officer who satisfies the
requirements of Sec. 300.508.
(b) A State may establish different procedural rules for expedited
hearings under Secs. 300.521-300.526 than it has established for due
process hearings under Sec. 300.507.
(c) The decisions on expedited due process hearings are appealable
under a State's normal due process appeal procedures.
(Authority: 20 U.S.C. 1415(k)(2), (6), (7))
Sec. 300.529 Referral to and action by law enforcement and judicial
authorities.
(a) Nothing in this part prohibits an agency from reporting a crime
committed by a child with a disability to appropriate authorities or to
prevent State law enforcement and judicial authorities from exercising
their responsibilities with regard to the application of Federal and
State law to crimes committed by a child with a disability.
(b) An agency reporting a crime committed by a child with a
disability shall ensure that copies of the special education and
disciplinary records of the child are transmitted for consideration by
the appropriate authorities to whom it reports the crime.
(Authority: 20 U.S.C. 1415(k)(9))
Procedures for Evaluation and Determination of Eligibility
Sec. 300.530 General.
Each SEA shall ensure that each public agency establishes and
implements procedures that meet the requirements of Secs. 300.530-
300.536.
(Authority: 20 U.S.C. 1414(b)(3); 1412(a)(7))
Sec. 300.531 Initial evaluation.
Each public agency shall conduct a full and individual initial
evaluation, in accordance with Secs. 300.532 and 300.533, before the
initial provision of special education and related services to a child
with a disability under Part B of the Act.
(Authority: 20 U.S.C. 1414(a)(1))
Sec. 300.532 Evaluation procedures.
Each public agency shall ensure, at a minimum, that--
[[Page 55105]]
(a) Tests and other evaluation materials used to assess a child
under Part B of the Act--
(1) Are selected and administered so as not to be discriminatory on
a racial or cultural basis; and
(2) Are provided and administered in the child's native language or
other mode of communication, unless it is clearly not feasible to do
so;
(b) A variety of assessment tools and strategies are used to gather
relevant functional and developmental information about the child,
including information provided by the parent, that may assist in
determining--
(1) Whether the child is a child with a disability under
Sec. 300.7; and
(2) The content of the child's IEP, including information related
to enabling the child--
(i) To be involved in and progress in the general curriculum; or
(ii) For a preschool child, to participate in appropriate
activities.
(c) Any standardized tests that are given to a child--
(i) Have been validated for the specific purpose for which they are
used; and
(ii) Are administered by trained and knowledgeable personnel in
accordance with any instructions provided by the producer of the tests;
(d) Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those that are
designed to provide a single general intelligence quotient;
(e) Tests are selected and administered so as best to ensure that
if a test is administered to a child with impaired sensory, manual, or
speaking skills, the test results accurately reflect the child's
aptitude or achievement level or whatever other factors the test
purports to measure, rather than reflecting the child's impaired
sensory, manual, or speaking skills (unless those skills are the
factors that the test purports to measure);
(f) No single procedure is used as the sole criterion for
determining whether a child is a child with a disability and for
determining an appropriate educational program for the child;
(g) The child is assessed in all areas related to the suspected
disability, including, if appropriate, health, vision, hearing, social
and emotional status, general intelligence, academic performance,
communicative status, and motor abilities;
(h) The public agency uses technically sound instruments that may
assess the relative contribution of cognitive and behavioral factors,
in addition to physical or developmental factors; and
(i) The public agency uses assessment tools and strategies that
provide relevant information that directly assists persons in
determining the educational needs of the child.
(Authority: 20 U.S.C. 1414 (a)(6)(B), (b) (2) and (3))
Note 1: Under Title VI of the Civil Rights Act of 1964, in order
to properly evaluate a child who may be limited English proficient,
the public agency must first determine the child's proficiency in
English and the child's native language. Under Title VI, an accurate
assessment of the child's language proficiency must include
objective assessment of reading, writing, speaking, and
understanding. Under this section and Sec. 300.534(b), information
about the child's language proficiency must be considered in
determining how to conduct the evaluation of the child to prevent
misclassification. Under both Title VI and Part B of the Act, the
public agency has a responsibility to ensure that children with
limited English proficiency are not evaluated on the basis of
criteria that essentially measure English language skills.
Note 2: In some situations, there may be no one on the staff of
a public agency who is able to administer a test or other evaluation
in a child's native language, as required under paragraph (a)(2) of
this section, but an appropriate individual is available in the
surrounding area. Ways that a public agency can identify an
individual in the surrounding area who is able to administer a test
or other evaluation in the child's native language include
contacting neighboring school districts, local universities, and
professional organizations. For LEP students, in situations where it
is clearly not feasible to provide and administer tests in the
child's native language or mode of communication, the public agency
still needs to obtain and consider accurate and reliable information
that will enable the agency to make an informed decision as to
whether the child has a disability and the effects of the disability
on the child's educational needs.
Note 3: If an assessment is not conducted under standard
conditions, information about the extent to which the assessment
varied from standard conditions, such as the qualifications of the
person administering the test or the method of test administration,
needs to be included in the evaluation report. This information is
needed so that the team of qualified professionals can evaluate the
effects of these variances on the validity and reliability of the
information reported and to determine whether additional assessments
are needed.
Sec. 300.533 Determination of needed evaluation data.
(a) Review of existing evaluation data. As part of an initial
evaluation (if appropriate) and as part of any reevaluation under Part
B of the Act, a team that includes the individuals required by
Sec. 300.344, and other qualified professionals, as appropriate,
shall--
(1) Review existing evaluation data on the child, including--
(i) Evaluations and information provided by the parents of the
child;
(ii) Current classroom-based assessments and observations; and
(iii) Observations by teachers and related services providers; and
(2) On the basis of that review, and input from the child's
parents, identify what additional data, if any, are needed to
determine--
(i) Whether the child has a particular category of disability, as
described in Sec. 300.7, or, in case of a reevaluation of a child,
whether the child continues to have such a disability;
(ii) The present levels of performance and educational needs of the
child;
(iii) Whether the child needs special education and related
services, or in the case of a reevaluation of a child, whether the
child continues to need special education and related services; and
(iv) Whether any additions or modifications to the special
education and related services are needed to enable the child to meet
the measurable annual goals set out in the IEP of the child and to
participate, as appropriate, in the general curriculum.
(b) Need for additional data. The public agency shall administer
tests and other evaluation materials as may be needed to produce the
data identified under paragraph (a) of this section.
(c) Requirements if additional data are not needed. (1) If the
determination under paragraph (a) of this section is that no additional
data are needed to determine whether the child continues to be a child
with a disability, the public agency shall notify the child's parents--
(i) Of that determination and the reasons for it; and
(ii) Of the right of the parents to request an assessment to
determine whether the child continues to be a child with a disability.
(2) The public agency is not required to conduct the assessment
described in paragraph (c)(1)(ii) of this section unless requested to
do so by the child's parents.
(Authority: 20 U.S.C. 1414(c)(1), (2) and (4))
Note: The requirement in paragraph (a) of this section and
Sec. 300.534(a)(1) that review of evaluation data and eligibility
decisions be made by groups that include ``qualified
professionals,'' is intended to ensure that the teams making these
determinations include individuals with the knowledge and skills
necessary to interpret the evaluation data and make an informed
determination as to whether the child is a child with a disability
under Sec. 300.7, and to determine whether the child needs special
education and related services. The composition of the team will
[[Page 55106]]
vary depending upon the nature of the child's suspected disability
and other relevant factors. For example, if a student is suspected
of having a learning disability, a professional whose sole expertise
is visual impairments would be an inappropriate choice. If a student
is limited English proficient, it will be important to include a
person on the team of qualified professionals who is knowledgeable
about the identification, assessment, and education of limited
English proficient students.
Sec. 300.534 Determination of eligibility
(a) Upon completing the administration of tests and other
evaluation materials--
(1) A team of qualified professionals and the parent of the child
must determine whether the child is a child with a disability, as
defined in Sec. 300.7; and
(2) The public agency must provide a copy of the evaluation report
and the documentation of determination of eligibility to the parent.
(b) A child may not be determined to be a child with a disability
if the determinant factor for that determination is--
(1) Lack of instruction in reading or math; or
(2) Limited English proficiency.
(c) A public agency must evaluate a child with a disability in
accordance with Secs. 300.532 and 300.533 before determining that the
child is no longer a child with a disability.
(Authority: 20 U.S.C. 1414(b)(4) and (5), (c)(5))
Sec. 300.535 Procedures for determining eligibility and placement.
(a) In interpreting evaluation data for the purpose of determining
if a child is a child with a disability under Sec. 300.7, and the
educational needs of the child, each public agency shall--
(1) Draw upon information from a variety of sources, including
aptitude and achievement tests, teacher recommendations, physical
condition, social or cultural background, and adaptive behavior; and
(2) Ensure that information obtained from all of these sources is
documented and carefully considered.
(b) If a determination is made that a child has a disability and
needs special education and related services, an IEP must be developed
for the child in accordance with Secs. 300.340-300.350.
(Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4))
Note: Paragraph (a)(1) includes a list of examples of sources
that may be used by a public agency in determining whether a child
is a child with a disability, as defined in Sec. 300.7. The agency
would not have to use all the sources in every instance. The point
of the requirement is to ensure that more than one source is used in
interpreting evaluation data and in making these determinations. For
example, while all of the named sources would have to be used for a
child whose suspected disability is mental retardation, they would
not be necessary for certain other children with disabilities, such
as a child who has a severe articulation impairment as his primary
disability. For such a child, the speech-language pathologist, in
complying with the multiple source requirement, might use (1) a
standardized test of articulation, and (2) observation of the
child's articulation behavior in conversational speech.
Sec. 300.536 Reevaluation.
Each public agency shall ensure--
(a) That the IEP of each child with a disability is reviewed in
accordance with Secs. 300.340-300.350; and
(b) That a reevaluation of each child, in accordance with
Secs. 300.530(b), 300.532, and 300.533, is conducted if conditions
warrant a reevaluation, or if the child's parent or teacher requests a
reevaluation, but at least once every three years.
(Authority: 20 U.S.C. 1414(a)(2))
Additional Procedures for Evaluating Children With Specific Learning
Disabilities
Sec. 300.540 Additional team members.
The determination of whether a child suspected of having a specific
learning disability is a child with a disability as defined in
Sec. 300.7, must be made by the child's parents and a team of qualified
professionals which must include--
(a)(1) The child's regular teacher; or
(2) If the child does not have a regular teacher, a regular
classroom teacher qualified to teach a child of his or her age; or
(3) For a child of less than school age, an individual qualified by
the SEA to teach a child of his or her age; and
(b) At least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-
language pathologist, or remedial reading teacher.
(Authority: 20 U.S.C. 1411 note)
Sec. 300.541 Criteria for determining the existence of a specific
learning disability.
(a) A team may determine that a child has a specific learning
disability if--
(1) The child does not achieve commensurate with his or her age and
ability levels in one or more of the areas listed in paragraph (a)(2)
of this section, if provided with learning experiences appropriate for
the child's age and ability levels; and
(2) The team finds that a child has a severe discrepancy between
achievement and intellectual ability in one or more of the following
areas:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading comprehension.
(vi) Mathematics calculation.
(vii) Mathematics reasoning.
(b) The team may not identify a child as having a specific learning
disability if the severe discrepancy between ability and achievement is
primarily the result of--
(1) A visual, hearing, or motor impairment;
(2) Mental retardation;
(3) Emotional disturbance; or
(4) Environmental, cultural or economic disadvantage.
(Authority: 20 U.S.C. 1411 note)
Sec. 300.542 Observation.
(a) At least one team member other than the child's regular teacher
shall observe the child's academic performance in the regular classroom
setting.
(b) In the case of a child of less than school age or out of
school, a team member shall observe the child in an environment
appropriate for a child of that age.
(Authority: 20 U.S.C. 1411 note)
Sec. 300.543 Written report.
(a) For a child suspected of having a specific learning disability,
the documentation of the team's determination of eligibility, as
required by Sec. 300.534(a)(2), must include a statement of--
(1) Whether the child has a specific learning disability;
(2) The basis for making the determination;
(3) The relevant behavior noted during the observation of the
child;
(4) The relationship of that behavior to the child's academic
functioning;
(5) The educationally relevant medical findings, if any;
(6) Whether there is a severe discrepancy between achievement and
ability that is not correctable without special education and related
services; and
(7) The determination of the team concerning the effects of
environmental, cultural, or economic disadvantage.
(b) Each team member shall certify in writing whether the report
reflects his or her conclusion. If it does not reflect his or her
conclusion, the team member must submit a separate statement presenting
his or her conclusions.
(Authority: 20 U.S.C. 1411 note)
Least Restrictive Environment
Sec. 300.550 General.
(a) A State shall demonstrate to the satisfaction of the Secretary
that the
[[Page 55107]]
State has in effect policies and procedures to ensure that it meets the
requirements of Secs. 300.550-300.556.
(b) Each public agency shall ensure--
(1) That to the maximum extent appropriate, children with
disabilities, including children in public or private institutions or
other care facilities, are educated with children who are nondisabled;
and
(2) That special classes, separate schooling or other removal of
children with disabilities from the regular educational environment
occurs only if the nature or severity of the disability is such that
education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.551 Continuum of alternative placements.
(a) Each public agency shall ensure that a continuum of alternative
placements is available to meet the needs of children with disabilities
for special education and related services.
(b) The continuum required in paragraph (a) of this section must--
(1) Include the alternative placements listed in the definition of
special education under Sec. 300.17 (instruction in regular classes,
special classes, special schools, home instruction, and instruction in
hospitals and institutions); and
(2) Make provision for supplementary services (such as resource
room or itinerant instruction) to be provided in conjunction with
regular class placement.
(Authority: 20 U.S.C. 1412(a)(5))
Note: Home instruction is usually appropriate for only a limited
number of children, such as children who are medically fragile and
are not able to participate in a school setting with other children.
Sec. 300.552 Placements.
In determining the educational placement of a child with a
disability, each public agency shall ensure that--
(a) The placement decision--
(1) Is made by a group of persons, including the parents, and other
persons knowledgeable about the child, the meaning of the evaluation
data, and the placement options; and
(2) Is made in conformity with the LRE provisions of this subpart,
including Secs. 300.550-300.554;
(b) The child's placement--
(1) Is determined at least annually;
(2) Is based on the child's IEP; and
(3) Is as close as possible to the child's home;
(c) Unless the IEP of a child with a disability requires some other
arrangement, the child is educated in the school that he or she would
attend if nondisabled; and
(d) In selecting the LRE, consideration is given to any potential
harmful effect on the child or on the quality of services that he or
she needs.
(Authority: 20 U.S.C. 1412(a)(5))
Note 1: With respect to paragraph (a)(1) of this section,
nothing in this part would prohibit a public agency from allowing
the group of persons that makes the placement decision also to serve
as the child's IEP team, so long as all individuals described in
Sec. 300.344 are included.
Note 2: Section 300.552 includes some of the main factors that
must be considered in determining the extent to which a child with a
disability can be educated with children who are not disabled. The
overriding rule in this section is that placement decisions must be
made on an individual basis. The section also requires each agency
to have various alternative placements available in order to ensure
that each child with a disability receives an education that is
appropriate to his or her individual needs.
The requirements of Sec. 300.552, as well as the other
requirements of Secs. 300.550-300.556, apply to all preschool
children with disabilities who are entitled to receive FAPE. Public
agencies that provide preschool programs for nondisabled preschool
children must ensure that the requirements of Sec. 300.552(c) are
met. Public agencies that do not operate programs for nondisabled
preschool children are not required to initiate those programs
solely to satisfy the requirements regarding placement in the LRE
embodied in Secs. 300.550-300.556. For these public agencies, some
alternative methods for meeting the requirements of Secs. 300.550-
300.556 include--
(1) Providing opportunities for the participation (even part-
time) of preschool children with disabilities in other preschool
programs operated by public agencies (such as Head Start);
(2) Placing children with disabilities in private school
programs for nondisabled preschool children or private school
preschool programs that integrate children with disabilities and
nondisabled children; and
(3) Locating classes for preschool children with disabilities in
regular elementary schools.
In each case the public agency must ensure that each child's
placement is in the LRE in which the unique needs of that child can
be met, based upon the child's IEP, and meets all of the other
requirements of Secs. 300.340-300.351 and Secs. 300.550-300.556.
The analysis of the regulations for Section 504 of the
Rehabilitation Act of 1973 (34 CFR part 104--Appendix, Paragraph 24)
includes several points regarding educational placements of children
with disabilities that are pertinent to this section:
1. With respect to determining proper placements, the analysis
states: ``* * * it should be stressed that, where a handicapped
child is so disruptive in a regular classroom that the education of
other students is significantly impaired, the needs of the
handicapped child cannot be met in that environment. Therefore
regular placement would not be appropriate to his or her needs * *
*.''
2. With respect to placing a child with a disability in an
alternate setting, the analysis states that among the factors to be
considered in placing a child is the need to place the child as
close to home as possible. Recipients are required to take this
factor into account in making placement decisions. The parents'
right to challenge the placement of their child extends not only to
placement in special classes or separate schools, but also to
placement in a distant school, particularly in a residential
program. An equally appropriate education program may exist closer
to home, and this issue may be raised by the parent under the due
process provisions of this subpart.
Note 3: If IEP teams appropriately consider positive behavioral
interventions and supplementary aids and services and if necessary
include those services in IEPs, many children who otherwise would be
disruptive will be able to participate in regular education
classrooms.
Sec. 300.553 Nonacademic settings.
In providing or arranging for the provision of nonacademic and
extracurricular services and activities, including meals, recess
periods, and the services and activities set forth in Sec. 300.306,
each public agency shall ensure that each child with a disability
participates with nondisabled children in those services and activities
to the maximum extent appropriate to the needs of that child.
(Authority: 20 U.S.C. 1412(a)(5))
Note: Section 300.553 is taken from a requirement in the
regulations for Section 504 of the Rehabilitation Act of 1973. With
respect to this requirement, the analysis of the Section 504
regulations includes the following statement: ``[This paragraph]
specifies that handicapped children must also be provided
nonacademic services in as integrated a setting as possible. This
requirement is especially important for children whose educational
needs necessitate their being solely with other handicapped children
during most of each day. To the maximum extent appropriate, children
in residential settings are also to be provided opportunities for
participation with other children.'' (34 CFR part 104--Appendix,
Paragraph 24.)
Sec. 300.554 Children in public or private institutions.
Each SEA shall make arrangements with public and private
institutions (such as a memorandum of agreement or special
implementation procedures) as may be necessary to ensure that
Sec. 300.550 is effectively implemented.
(Authority: 20 U.S.C. 1412(a)(5))
Note: The requirement to educate children with disabilities with
nondisabled children also applies to children in public and private
institutions or other care facilities. Each SEA
[[Page 55108]]
must ensure that each applicable agency and institution in the State
implements this requirement. Regardless of other reasons for
institutional placement, no child in an institution who is capable
of education in a regular public school setting may be denied access
to an education in that setting.
Sec. 300.555 Technical assistance and training activities.
Each SEA shall carry out activities to ensure that teachers and
administrators in all public agencies--
(a) Are fully informed about their responsibilities for
implementing Sec. 300.550; and
(b) Are provided with technical assistance and training necessary
to assist them in this effort.
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.556 Monitoring activities.
(a) The SEA shall carry out activities to ensure that Sec. 300.550
is implemented by each public agency.
(b) If there is evidence that a public agency makes placements that
are inconsistent with Sec. 300.550, the SEA shall--
(1) Review the public agency's justification for its actions; and
(2) Assist in planning and implementing any necessary corrective
action.
(Authority: 20 U.S.C. 1412(a)(5))
Confidentiality of Information
Sec. 300.560 Definitions.
As used in Secs. 300.560-300.577--
Destruction means physical destruction or removal of personal
identifiers from information so that the information is no longer
personally identifiable.
Education records means the type of records covered under the
definition of ``education records'' in 34 CFR part 99 (the regulations
implementing the Family Educational Rights and Privacy Act of 1974).
Participating agency means any agency or institution that collects,
maintains, or uses personally identifiable information, or from which
information is obtained, under Part B of the Act.
(Authority: 20 U.S.C. 1221e-3, 1412(a)(8), 1417(c))
Sec. 300.561 Notice to parents.
(a) The SEA shall give notice that is adequate to fully inform
parents about the requirements of Sec. 300.127, including--
(1) A description of the extent that the notice is given in the
native languages of the various population groups in the State;
(2) A description of the children on whom personally identifiable
information is maintained, the types of information sought, the methods
the State intends to use in gathering the information (including the
sources from whom information is gathered), and the uses to be made of
the information;
(3) A summary of the policies and procedures that participating
agencies must follow regarding storage, disclosure to third parties,
retention, and destruction of personally identifiable information; and
(4) A description of all of the rights of parents and children
regarding this information, including the rights under the Family
Educational Rights and Privacy Act of 1974 and implementing regulations
in 34 CFR part 99.
(b) Before any major identification, location, or evaluation
activity, the notice must be published or announced in newspapers or
other media, or both, with circulation adequate to notify parents
throughout the State of the activity.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.562 Access rights.
(a) Each participating agency shall permit parents to inspect and
review any education records relating to their children that are
collected, maintained, or used by the agency under this part. The
agency shall comply with a request without unnecessary delay and before
any meeting regarding an IEP or any hearing relating to the
identification, evaluation, or educational placement of the child, or
the provision of FAPE to the child, and in no case more than 45 days
after the request has been made.
(b) The right to inspect and review education records under this
section includes--
(1) The right to a response from the participating agency to
reasonable requests for explanations and interpretations of the
records;
(2) The right to request that the agency provide copies of the
records containing the information if failure to provide those copies
would effectively prevent the parent from exercising the right to
inspect and review the records; and
(3) The right to have a representative of the parent inspect and
review the records.
(c) An agency may presume that the parent has authority to inspect
and review records relating to his or her child unless the agency has
been advised that the parent does not have the authority under
applicable State law governing such matters as guardianship,
separation, and divorce.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.563 Record of access.
Each participating agency shall keep a record of parties obtaining
access to education records collected, maintained, or used under Part B
of the Act (except access by parents and authorized employees of the
participating agency), including the name of the party, the date access
was given, and the purpose for which the party is authorized to use the
records.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.564 Records on more than one child.
If any education record includes information on more than one
child, the parents of those children have the right to inspect and
review only the information relating to their child or to be informed
of that specific information.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.565 List of types and locations of information.
Each participating agency shall provide parents on request a list
of the types and locations of education records collected, maintained,
or used by the agency.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.566 Fees.
(a) Each participating agency may charge a fee for copies of
records that are made for parents under this part if the fee does not
effectively prevent the parents from exercising their right to inspect
and review those records.
(b) A participating agency may not charge a fee to search for or to
retrieve information under this part.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.567 Amendment of records at parent's request.
(a) A parent who believes that information in the education records
collected, maintained, or used under this part is inaccurate or
misleading or violates the privacy or other rights of the child may
request the participating agency that maintains the information to
amend the information.
(b) The agency shall decide whether to amend the information in
accordance with the request within a reasonable period of time of
receipt of the request.
(c) If the agency decides to refuse to amend the information in
accordance with the request, it shall inform the parent of the refusal
and advise the parent of the right to a hearing under Sec. 300.568.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.568 Opportunity for a hearing.
The agency shall, on request, provide an opportunity for a hearing
to
[[Page 55109]]
challenge information in education records to ensure that it is not
inaccurate, misleading, or otherwise in violation of the privacy or
other rights of the child.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.569 Result of hearing.
(a) If, as a result of the hearing, the agency decides that the
information is inaccurate, misleading or otherwise in violation of the
privacy or other rights of the child, it shall amend the information
accordingly and so inform the parent in writing.
(b) If, as a result of the hearing, the agency decides that the
information is not inaccurate, misleading, or otherwise in violation of
the privacy or other rights of the child, it shall inform the parent of
the right to place in the records it maintains on the child a statement
commenting on the information or setting forth any reasons for
disagreeing with the decision of the agency.
(c) Any explanation placed in the records of the child under this
section must--
(1) Be maintained by the agency as part of the records of the child
as long as the record or contested portion is maintained by the agency;
and
(2) If the records of the child or the contested portion is
disclosed by the agency to any party, the explanation must also be
disclosed to the party.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.570 Hearing procedures.
A hearing held under Sec. 300.568 must be conducted according to
the procedures under 34 CFR 99.22.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.571 Consent.
(a) Parental consent must be obtained before personally
identifiable information is--
(1) Disclosed to anyone other than officials of participating
agencies collecting or using the information under this part, subject
to paragraph (b) of this section; or
(2) Used for any purpose other than meeting a requirement of this
part.
(b) An educational agency or institution subject to 34 CFR part 99
may not release information from education records to participating
agencies without parental consent unless authorized to do so under part
99.
(c) The SEA shall provide policies and procedures that are used in
the event that a parent refuses to provide consent under this section.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.572 Safeguards.
(a) Each participating agency shall protect the confidentiality of
personally identifiable information at collection, storage, disclosure,
and destruction stages.
(b) One official at each participating agency shall assume
responsibility for ensuring the confidentiality of any personally
identifiable information.
(c) All persons collecting or using personally identifiable
information must receive training or instruction regarding the State's
policies and procedures under Sec. 300.127 and 34 CFR part 99.
(d) Each participating agency shall maintain, for public
inspection, a current listing of the names and positions of those
employees within the agency who may have access to personally
identifiable information.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.573 Destruction of information.
(a) The public agency shall inform parents when personally
identifiable information collected, maintained, or used under this part
is no longer needed to provide educational services to the child.
(b) The information must be destroyed at the request of the
parents. However, a permanent record of a student's name, address, and
phone number, his or her grades, attendance record, classes attended,
grade level completed, and year completed may be maintained without
time limitation.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Note: Under Sec. 300.573, the personally identifiable
information on a child with a disability may be retained permanently
unless the parents request that it be destroyed. Destruction of
records is the best protection against improper and unauthorized
disclosure. However, the records may be needed for other purposes.
In informing parents about their rights under this section, the
agency should remind them that the records may be needed by the
child or the parents for social security benefits or other purposes.
If the parents request that the information be destroyed, the agency
may retain the information in paragraph (b) of this section.
Sec. 300.574 Children's rights.
The SEA shall provide policies and procedures regarding the extent
to which children are afforded rights of privacy similar to those
afforded to parents, taking into consideration the age of the child and
type or severity of disability.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Note 1: Under the regulations for the Family Educational Rights
and Privacy Act of 1974 (34 CFR 99.5(a)), the rights of parents
regarding education records are transferred to the student at age
18.
Note 2: If the rights accorded to parents under Part B of the
Act are transferred to a student who reaches the age of majority,
consistent with Sec. 300.517, the rights regarding educational
records in Secs. 300.562-300.573 must also be transferred to the
student. However, the public agency must provide any notice required
under section 615 of the Act to the student and the parents.
Sec. 300.575 Enforcement.
The SEA shall provide the policies and procedures, including
sanctions, that the State uses to ensure that its policies and
procedures are followed and that the requirements of the Act and the
regulations in this part are met.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.576 Disciplinary information.
(a) The State may require that a LEA include in the records of a
child with a disability a statement of any current or previous
disciplinary action that has been taken against the child and transmit
the statement to the same extent that the disciplinary information is
included in, and transmitted with, the student records of nondisabled
children.
(b) The statement may include a description of any behavior engaged
in by the child that required disciplinary action, a description of the
disciplinary action taken, and any other information that is relevant
to the safety of the child and other individuals involved with the
child.
(c) If the State adopts such a policy, and the child transfers from
one school to another, the transmission of any of the child's records
must include both the child's current individualized education program
and any statement of current or previous disciplinary action that has
been taken against the child.
(Authority: 20 U.S.C. 1413(j))
Sec. 300.577 Department use of personally identifiable information.
If the Department or its authorized representatives collect any
personally identifiable information regarding children with
disabilities that is not subject to 5 U.S.C. 552a (the Privacy Act of
1974), the Secretary applies the requirements of 5 U.S.C. 552a (b)(1)-
(2), (4)-(11); (c); (d); (e)(1), (2), (3)(A), (B), and (D), (5)-(10);
(h); (m); and (n); and the regulations implementing those provisions in
34 CFR part 5b.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Department Procedures
Sec. 300.580 Determination by the Secretary that a State is eligible.
If the Secretary determines that a State is eligible to receive a
grant under Part B of the Act, the Secretary notifies the State of that
determination.
[[Page 55110]]
(Authority: 20 U.S.C. (1412(d))
Sec. 300.581 Notice and hearing before determining that a State is not
eligible.
(a) General. (1) The Secretary does not make a final determination
that a State is not eligible to receive a grant under Part B of the Act
until providing the State--
(i) With reasonable notice; and
(ii) With an opportunity for a hearing.
(2) In implementing paragraph (a)(1)(i) of this section, the
Secretary sends a written notice to the SEA by certified mail with
return receipt requested.
(b) Content of notice. In the written notice described in paragraph
(a)(2) of this section, the Secretary--
(1) States the basis on which the Secretary proposes to make a
final determination that the State is not eligible;
(2) May describe possible options for resolving the issues;
(3) Advises the SEA that it may request a hearing and that the
request for a hearing must be made not later than 30 calendar days
after it receives the notice of the proposed final determination that
the State is not eligible; and
(4) Provides information about the procedures followed for a
hearing.
(Authority: 20 U.S.C. (1412(d)(2))
Sec. 300.582 Hearing official or panel.
(a) If the SEA requests a hearing, the Secretary designates one or
more individuals, either from the Department or elsewhere, not
responsible for or connected with the administration of this program,
to conduct a hearing.
(b) If more than one individual is designated, the Secretary
designates one of those individuals as the Chief Hearing Official of
the Hearing Panel. If one individual is designated, that individual is
the Hearing Official.
(Authority: 20 U.S.C. (1412(d)(2))
Sec. 300.583 Hearing procedures.
(a) As used in Secs. 300.581-300.586 the term party or parties
means the following:
(1) An SEA that requests a hearing regarding the proposed
disapproval of its State plan under this part.
(2) The Department official who administers the program of
financial assistance under this part.
(3) A person, group or agency with an interest in and having
relevant information about the case that has applied for and been
granted leave to intervene by the Hearing Official or Panel.
(b) Within 15 days after receiving a request for a hearing, the
Secretary designates a Hearing Official or Panel and notifies the
parties.
(c) The Hearing Official or Panel may regulate the course of
proceedings and the conduct of the parties during the proceedings. The
Hearing Official or Panel takes all steps necessary to conduct a fair
and impartial proceeding, to avoid delay, and to maintain order,
including the following:
(1) The Hearing Official or Panel may hold conferences or other
types of appropriate proceedings to clarify, simplify, or define the
issues or to consider other matters that may aid in the disposition of
the case.
(2) The Hearing Official or Panel may schedule a prehearing
conference of the Hearing Official or Panel and parties.
(3) Any party may request the Hearing Official or Panel to schedule
a prehearing or other conference. The Hearing Official or Panel decides
whether a conference is necessary and notifies all parties.
(4) At a prehearing or other conference, the Hearing Official or
Panel and the parties may consider subjects such as--
(i) Narrowing and clarifying issues;
(ii) Assisting the parties in reaching agreements and stipulations;
(iii) Clarifying the positions of the parties;
(iv) Determining whether an evidentiary hearing or oral argument
should be held; and
(v) Setting dates for--
(A) The exchange of written documents;
(B) The receipt of comments from the parties on the need for oral
argument or evidentiary hearing;
(C) Further proceedings before the Hearing Official or Panel
(including an evidentiary hearing or oral argument, if either is
scheduled);
(D) Requesting the names of witnesses each party wishes to present
at an evidentiary hearing and estimation of time for each presentation;
or
(E) Completion of the review and the initial decision of the
Hearing Official or Panel.
(5) A prehearing or other conference held under paragraph (b)(4) of
this section may be conducted by telephone conference call.
(6) At a prehearing or other conference, the parties shall be
prepared to discuss the subjects listed in paragraph (b)(4) of this
section.
(7) Following a prehearing or other conference the Hearing Official
or Panel may issue a written statement describing the issues raised,
the action taken, and the stipulations and agreements reached by the
parties.
(d) The Hearing Official or Panel may require parties to state
their positions and to provide all or part of the evidence in writing.
(e) The Hearing Official or Panel may require parties to present
testimony through affidavits and to conduct cross-examination through
interrogatories.
(f) The Hearing Official or Panel may direct the parties to
exchange relevant documents or information and lists of witnesses, and
to send copies to the Hearing Official or Panel.
(g) The Hearing Official or Panel may receive, rule on, exclude, or
limit evidence at any stage of the proceedings.
(h) The Hearing Official or Panel may rule on motions and other
issues at any stage of the proceedings.
(i) The Hearing Official or Panel may examine witnesses.
(j) The Hearing Official or Panel may set reasonable time limits
for submission of written documents.
(k) The Hearing Official or Panel may refuse to consider documents
or other submissions if they are not submitted in a timely manner
unless good cause is shown.
(l) The Hearing Official or Panel may interpret applicable statutes
and regulations but may not waive them or rule on their validity.
(m)(1) The parties shall present their positions through briefs and
the submission of other documents and may request an oral argument or
evidentiary hearing. The Hearing Official or Panel shall determine
whether an oral argument or an evidentiary hearing is needed to clarify
the positions of the parties.
(2) The Hearing Official or Panel gives each party an opportunity
to be represented by counsel.
(n) If the Hearing Official or Panel determines that an evidentiary
hearing would materially assist the resolution of the matter, the
Hearing Official or Panel gives each party, in addition to the
opportunity to be represented by counsel--
(1) An opportunity to present witnesses on the party's behalf; and
(2) An opportunity to cross-examine witnesses either orally or with
written questions.
(o) The Hearing Official or Panel accepts any evidence that it
finds is relevant and material to the proceedings and is not unduly
repetitious.
(p)(1) The Hearing Official or Panel--
(i) Arranges for the preparation of a transcript of each hearing;
(ii) Retains the original transcript as part of the record of the
hearing; and
(iii) Provides one copy of the transcript to each party.
(2) Additional copies of the transcript are available on request
and with payment of the reproduction fee.
[[Page 55111]]
(q) Each party shall file with the Hearing Official or Panel all
written motions, briefs, and other documents and shall at the same time
provide a copy to the other parties to the proceedings.
(Authority: 20 U.S.C. (1412(d)(2))
Sec. 300.584 Initial decision; final decision.
(a) The Hearing Official or Panel prepares an initial written
decision that addresses each of the points in the notice sent by the
Secretary to the SEA under Sec. 300.581.
(b) The initial decision of a Panel is made by a majority of Panel
members.
(c) The Hearing Official or Panel mails by certified mail with
return receipt requested a copy of the initial decision to each party
(or to the party's counsel) and to the Secretary, with a notice stating
that each party has an opportunity to submit written comments regarding
the decision to the Secretary.
(d) Each party may file comments and recommendations on the initial
decision with the Hearing Official or Panel within 15 days of the date
the party receives the Panel's decision.
(e) The Hearing Official or Panel sends a copy of a party's initial
comments and recommendations to the other parties by certified mail
with return receipt requested. Each party may file responsive comments
and recommendations with the Hearing Official or Panel within seven
days of the date the party receives the initial comments and
recommendations.
(f) The Hearing Official or Panel forwards the parties' initial and
responsive comments on the initial decision to the Secretary who
reviews the initial decision and issues a final decision.
(g) The initial decision of the Hearing Official or Panel becomes
the final decision of the Secretary unless, within 25 days after the
end of the time for receipt of written comments, the Secretary informs
the Hearing Official or Panel and the parties to a hearing in writing
that the decision is being further reviewed for possible modification.
(h) The Secretary may reject or modify the initial decision of the
Hearing Official or Panel if the Secretary finds that it is clearly
erroneous.
(i) The Secretary conducts the review based on the initial
decision, the written record, the Hearing Official's or Panel's
proceedings, and written comments. The Secretary may remand the matter
for further proceedings.
(j) The Secretary issues the final decision within 30 days after
notifying the Hearing Official or Panel that the initial decision is
being further reviewed.
(Authority: 20 U.S.C. (1412(d)(2))
Sec. 300.585 Filing requirements.
(a) Any written submission under Secs. 300.581-300.585 must be
filed by hand-delivery, by mail, or by facsimile transmission. The
Secretary discourages the use of facsimile transmission for documents
longer than five pages.
(b) The filing date under paragraph (a) of this section is the date
the document is--
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was
received by the Department.
(d) If a document is filed by facsimile transmission, the
Secretary, the Hearing Official, or the Panel, as applicable, may
require the filing of a follow-up hard copy by hand-delivery or by mail
within a reasonable period of time.
(e) If agreed upon by the parties, service of a document may be
made upon the other party by facsimile transmission.
(Authority: 20 U.S.C. 1413(c))
Sec. 300.586 Judicial review.
If a State is dissatisfied with the Secretary's final action with
respect to the eligibility of the State under section 612 of the Act,
the State may, not later than 60 days after notice of that action, file
with the United States Court of Appeals for the circuit in which that
State is located a petition for review of that action. A copy of the
petition must be forthwith transmitted by the clerk of the court to the
Secretary. The Secretary then files in the court the record of the
proceedings upon which the Secretary's action was based, as provided in
section 2112 of title 28, United States Code.
(Authority: 20 U.S.C. 1416(b))
Sec. 300.587 Enforcement.
(a) General. The Secretary initiates an action described in
paragraph (b) of this section if the Secretary finds--
(1) That there has been a failure by the State to comply
substantially with any provision of Part B of the Act, this part, or 34
CFR part 301; or
(2) That there is a failure to comply with any condition of an
LEA's or SEA's eligibility under Part B of the Act, this part or 34 CFR
part 301, including the terms of any agreement to achieve compliance
with Part B of the Act, this part, or Part 301 within the timelines
specified in the agreement.
(b) Types of action. The Secretary, after notifying the SEA (and
any LEA or State agency affected by a failure described in paragraph
(a)(2) of this section)--
(1) Withholds in whole or in part any further payments to the State
under Part B of the Act;
(2) Refers the matter to the Department of Justice for enforcement;
or
(3) Takes any other enforcement action authorized by law.
(c) Nature of withholding. (1) If the Secretary determines that it
is appropriate to withhold further payments under paragraph (b)(1) of
this section, the Secretary may determine that the withholding will be
limited to programs or projects, or portions thereof, affected by the
failure, or that the SEA shall not make further payments under Part B
of the Act to specified LEA or State agencies affected by the failure.
(2) Until the Secretary is satisfied that there is no longer any
failure to comply with the provisions of Part B of the Act, this part,
or 34 CFR part 301, as specified in paragraph (a) of this section,
payments to the State under Part B of the Act are withheld in whole or
in part, or payments by the SEA under Part B of the Act are limited to
local educational agencies and State agencies whose actions did not
cause or were not involved in the failure, as the case may be.
(3) Any SEA, LEA, or other State agency that has received notice
under paragraph (a) of this section shall, by means of a public notice,
take such measures as may be necessary to bring the pendency of an
action pursuant to this subsection to the attention of the public
within the jurisdiction of that agency.
(4) Before withholding under paragraph (b)(1) of this section, the
Secretary provides notice and a hearing pursuant to the procedures in
Secs. 300.581-300.586.
(d) Referral for appropriate enforcement. (1) Before the Secretary
makes a referral under paragraph (b)(2) of this section for
enforcement, or takes any other enforcement action authorized by law
under paragraph (b)(3), the Secretary provides the State--
(i) With reasonable notice; and
(ii) With an opportunity for a hearing.
(2) The hearing described in paragraph (d)(1)(ii) of this section
consists of an opportunity to meet with the Assistant Secretary for the
Office of Special Education and Rehabilitative Services to demonstrate
why the Department should not make such a referral for enforcement.
[[Page 55112]]
(e) Divided State agency responsibility. For purposes of this part,
if responsibility for ensuring that the requirements of this part are
met with respect to children with disabilities who are convicted as
adults under State law and incarcerated in adult prisons is assigned to
a public agency other than the SEA pursuant to Sec. 300.600(d), and if
the Secretary finds that the failure to comply substantially with the
provisions of Part B of the Act or this part are related to a failure
by the public agency, the Secretary takes one of the enforcement
actions described in paragraph (b) of this section to ensure compliance
with Part B of the Act and this part, except--
(1) Any reduction or withholding of payments to the State under
paragraph (b)(1) of this section is proportionate to the total funds
allotted under section 611 of the Act to the State as the number of
eligible children with disabilities in adult prisons under the
supervision of the other public agency is proportionate to the number
of eligible individuals with disabilities in the State under the
supervision of the State educational agency; and
(2) Any withholding of funds under paragraph (e)(1) of this section
is limited to the specific agency responsible for the failure to comply
with Part B of the Act or this part.
(Authority: 20 U.S.C. 1416)
Note: Other enforcement actions authorized by law include
issuance of a complaint to compel compliance through a cease and
desist order under 20 U.S.C. 1234e and entering into a compliance
agreement to bring a recipient into compliance under 20 U.S.C.
1234f.
Secs. 300.588 [Reserved]
Sec. 300.589 Waiver of requirement regarding supplementing and not
supplanting with Part B funds.
(a) Except as provided under Secs. 300.232-300.235, funds paid to a
State under Part B of the Act must be used to supplement and increase
the level of Federal, State, and local funds (including funds that are
not under the direct control of SEAs or LEAs) expended for special
education and related services provided to children with disabilities
under Part B of the Act and in no case to supplant those Federal,
State, and local funds. A State may use funds it retains under
Sec. 300.602 without regard to the prohibition on supplanting other
funds (See Sec. 300.372).
(b) If a State provides clear and convincing evidence that all
eligible children with disabilities throughout the State have FAPE
available to them, the Secretary may waive for a period of one year in
whole or in part the requirement under Sec. 300.153 (regarding State-
level nonsupplanting) if the Secretary concurs with the evidence
provided by the State.
(c) If a State wishes to request a waiver under this section, it
must submit to the Secretary a written request that includes--
(1) An assurance that FAPE is currently available, and will remain
available throughout the period that a waiver would be in effect, to
all eligible children with disabilities throughout the State,
regardless of the public agency that is responsible for providing FAPE
to them. The assurance must be signed by an official who has the
authority to provide that assurance as it applies to all eligible
children with disabilities in the State;
(2) All evidence that the State wishes the Secretary to consider in
determining whether all eligible children with disabilities have FAPE
available to them, setting forth in detail--
(i) The basis on which the State has concluded that FAPE is
available to all eligible children in the State; and
(ii) The procedures that the State will implement to ensure that
FAPE remains available to all eligible children in the State, which
must include--
(A) The State's procedures under Sec. 300.125 for ensuring that all
eligible children are identified, located and evaluated;
(B) The State's procedures for monitoring public agencies to ensure
that they comply with all requirements of this part;
(C) The State's complaint procedures under Secs. 300.660-300.662;
and
(D) The State's hearing procedures under Secs. 300.507-300.511 and
300.520-300.528;
(3) A summary of all State and Federal monitoring reports, and
State complaint decisions (see Secs. 300.660-300.662) and hearing
decisions (see Secs. 300.507-300.511 and 300.520-300.528), issued
within three years prior to the date of the State's request for a
waiver under this section, that includes any finding that FAPE has not
been available to one or more eligible children, and evidence that FAPE
is now available to all children addressed in those reports or
decisions; and
(4) Evidence that the State, in determining that FAPE is currently
available to all eligible children with disabilities in the State, has
consulted with the State advisory panel under Sec. 300.650, the State's
Parent Training and Information Center or Centers, the State's
Protection and Advocacy organization, and other organizations
representing the interests of children with disabilities and their
parents, and a summary of the input of these organizations.
(d) If the Secretary determines that the request and supporting
evidence submitted by the State makes a prima facie showing that FAPE
is, and will remain, available to all eligible children with
disabilities in the State, the Secretary, after notice to the public
throughout the State, conducts a public hearing at which all interested
persons and organizations may present evidence regarding the following
issues:
(1) Whether FAPE is currently available to all eligible children
with disabilities in the State.
(2) Whether the State will be able to ensure that FAPE remains
available to all eligible children with disabilities in the State if
the Secretary provides the requested waiver.
(e) Following the hearing, the Secretary, based on all submitted
evidence, will provide a waiver for a period of one year if the
Secretary finds that the State has provided clear and convincing
evidence that FAPE is currently available to all eligible children with
disabilities in the State, and the State will be able to ensure that
FAPE remains available to all eligible children with disabilities in
the State if the Secretary provides the requested waiver.
(f) A State may receive a waiver of the requirement of section
612(a)(19)(A) and Sec. 300.154(a) if it satisfies the requirements of
paragraphs (b) through (e) of this section.
(g)(1) The Secretary may grant subsequent waivers for a period of
one year each, if the Secretary determines that the State has provided
clear and convincing evidence that all eligible children with
disabilities throughout the State have, and will continue to have
throughout the one-year period of the waiver, FAPE available to them.
(Authority: 20 U.S.C. 1412(a)(18)(C), (19)(C)(ii) and (E))
Subpart F--State Administration; General
Sec. 300.600 Responsibility for all educational programs.
(a) The SEA is responsible for ensuring--
(1) That the requirements of this part are carried out; and
(2) That each educational program for children with disabilities
administered within the State, including each program administered by
any other State or local agency--
(i) Is under the general supervision of the persons responsible for
educational programs for children with disabilities in the SEA; and
[[Page 55113]]
(ii) Meets the education standards of the SEA (including the
requirements of this part).
(b) The State must comply with paragraph (a) of this section
through State statute, State regulation, signed agreement between
respective agency officials, or other documents.
(c) Part B of the Act does not limit the responsibility of agencies
other than educational agencies for providing or paying some or all of
the costs of FAPE to children with disabilities in the State.
(d) Notwithstanding paragraph (a) of this section, the Governor (or
another individual pursuant to State law), may assign to any public
agency in the State the responsibility of ensuring that the
requirements of Part B of the Act are met with respect to children with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons.
(Authority: 20 U.S.C. 1412(a)(11))
Note: The requirement in Sec. 300.600(a) reflects the desire of
the Congress for a central point of responsibility and
accountability in the education of children with disabilities within
each State. With respect to SEA responsibility, the Senate Report on
Pub. L. 94-142 includes the following statements:
This provision is included specifically to assure a single line
of responsibility with regard to the education of handicapped
children, and to assure that in the implementation of all provisions
of this Act and in carrying out the right to education for
handicapped children, the SEA shall be the responsible agency * * *.
Without this requirement, there is an abdication of
responsibility for the education of handicapped children. In many
States, responsibility is divided, depending upon the age of the
handicapped child, sources of funding, and type of services
delivered. While the Committee understands that different agencies
may, in fact, deliver services, the responsibility must remain in a
central agency overseeing the education of handicapped children, so
that failure to deliver services or the violation of the rights of
handicapped children is squarely the responsibility of one agency.
(S. Rep. No. 94-168, p. 24 (1975))
In meeting the requirements of this section, there are a number of
acceptable options that may be adopted, including the following:
(1) Written agreements are developed between respective State
agencies concerning SEA standards and monitoring. These agreements are
binding on the local or regional counterparts of each State agency.
(2) The Governor's office issues an administrative directive
establishing the SEA responsibility.
(3) State law, regulation, or policy designates the SEA as
responsible for establishing standards for all educational programs for
individuals with disabilities, and includes responsibility for
monitoring.
(4) State law mandates that the SEA is responsible for all
educational programs.
Sec. 300.601 Relation of Part B to other Federal programs.
Part B of the Act may not be construed to permit a State to reduce
medical and other assistance available to children with disabilities,
or to alter the eligibility of a child with a disability, under title V
(Maternal and Child Health) or title XIX (Medicaid) of the Social
Security Act, to receive services that are also part of FAPE.
(Authority: 20 U.S.C. 1412(e))
Sec. 300.602 State-level activities.
(a) Each State may retain not more than the amount described in
paragraph (b) of this section for administration in accordance with
Secs. 300.620 and 300.621 and other State-level activities in
accordance with Sec. 300.370.
(b) For each fiscal year, the Secretary determines and reports to
the SEA an amount that is 25 percent of the amount the State received
under this section for fiscal year 1997, cumulatively adjusted by the
Secretary for each succeeding fiscal year by the lesser of--
(1) The percentage increase, if any, from the preceding fiscal year
in the State's allocation under section 611 of the Act; or
(2) The rate of inflation, as measured by the percentage increase,
if any, from the preceding fiscal year in the Consumer Price Index For
All Urban Consumers, published by the Bureau of Labor Statistics of the
Department of Labor.
(Authority: 20 U.S.C. 1411(f)(1)(A) and (B))
Use of Funds
Sec. 300.620 Use of funds for State administration.
(a) For the purpose of administering Part B of the Act, including
section 619 of the Act (including the coordination of activities under
Part B of the Act with, and providing technical assistance to, other
programs that provide services to children with disabilities)--
(1) Each State may use not more than twenty percent of the maximum
amount it may retain under Sec. 300.602(a) for any fiscal year or
$500,000 (adjusted by the cumulative rate of inflation since fiscal
year 1998, as measured by the percentage increase, if any, in the
Consumer Price Index For All Urban Consumers, published by the Bureau
of Labor Statistics of the Department of Labor), whichever is greater;
and
(2) Each outlying area may use up to five percent of the amount it
receives under this section for any fiscal year or $35,000, whichever
is greater.
(b) Funds described in paragraph (a) of this section may also be
used for the administration of Part C of the Act, if the SEA is the
lead agency for the State under that part.
(Authority: 20 U.S.C. 1411(f)(2))
Sec. 300.621 Allowable costs.
(a) The SEA may use funds under Sec. 300.620 for--
(1) Administration of State activities under Part B of the Act and
for planning at the State level, including planning, or assisting in
the planning, of programs or projects for the education of children
with disabilities;
(2) Approval, supervision, monitoring, and evaluation of the
effectiveness of local programs and projects for the education of
children with disabilities;
(3) Technical assistance to LEAs with respect to the requirements
of Part B of the Act;
(4) Leadership services for the program supervision and management
of special education activities for children with disabilities; and
(5) Other State leadership activities and consultative services.
(b) The SEA shall use the remainder of its funds under Sec. 300.620
in accordance with Sec. 300.370.
(Authority: 20 U.S.C. 1411(f)(2))
Sec. 300.622 Subgrants to LEAs for capacity-building and improvement.
In any fiscal year in which the percentage increase in the State's
allocation under 611 of the Act exceeds the rate of inflation (as
measured by the percentage increase, if any, from the preceding fiscal
year in the Consumer Price Index For All Urban Consumers, published by
the Bureau of Labor Statistics of the Department of Labor), each State
shall reserve, from its allocation under 611 of the Act, the amount
described in Sec. 300.623 to make subgrants to LEAs, unless that amount
is less than $100,000, to assist them in providing direct services and
in making systemic change to improve results for children with
disabilities through one or more of the following:
(a) Direct services, including alternative programming for children
who have been expelled from school, and services for children in
correctional facilities, children enrolled in State-operated or State-
supported schools, and children in charter schools.
(b) Addressing needs or carrying out improvement strategies
identified in the
[[Page 55114]]
State's Improvement Plan under subpart 1 of Part D of the Act.
(c) Adopting promising practices, materials, and technology, based
on knowledge derived from education research and other sources.
(d) Establishing, expanding, or implementing interagency agreements
and arrangements between LEAs and other agencies or organizations
concerning the provision of services to children with disabilities and
their families.
(e) Increasing cooperative problem-solving between parents and
school personnel and promoting the use of alternative dispute
resolution.
(Authority: 20 U.S.C. 1411(f)(4)(A))
Sec. 300.623 Amount required for subgrants to LEAs.
For each fiscal year, the amount referred to in Sec. 300.622 is--
(a) The maximum amount the State was allowed to retain under
Sec. 300.602(a) for the prior fiscal year, or, for fiscal year 1998, 25
percent of the State's allocation for fiscal year 1997 under section
611; multiplied by
(b) The difference between the percentage increase in the State's
allocation under this section and the rate of inflation, as measured by
the percentage increase, if any, from the preceding fiscal year in the
Consumer Price Index For All Urban Consumers, published by the Bureau
of Labor Statistics of the Department of Labor.
(Authority: 20 U.S.C. 1411(f)(4)(B))
Note: The amount required for these subgrants will vary from
year to year and is determined by the size of the increase in the
State's allocation. Funds used for the required subgrants to LEAs in
one year become part of the required flow-through to LEAs under
Sec. 300.712 in the next year. In those years in which the State's
allocation does not increase over the prior year by at least the
rate of inflation, the required set-aside for these grants will be
zero. However, States may always use, at their discretion, funds
reserved for State-level activities under Sec. 300.602 for these
subgrants.
Sec. 300.624 State discretion in awarding subgrants.
The State may establish priorities in awarding subgrants under
Sec. 300.622 to LEAs competitively or on a targeted basis.
(Authority: 20 U.S.C. 1411(f)(4)(B))
Note: The purpose of these subgrants, as distinguished from the
formula subgrants to LEAs, is to provide funding that the SEA can
direct to address particular needs not readily addressed through
formula assistance to school districts such as funding for services
to children who have been suspended or expelled. The SEA can also
use these funds to promote innovation, capacity-building, and
systemic changes that are needed to improve educational results.
State Advisory Panel
Sec. 300.650 Establishment of advisory panels.
(a) Each State shall establish and maintain, in accordance with
Secs. 300.650--300.653, a State advisory panel on the education of
children with disabilities.
(b) The advisory panel must be appointed by the Governor or any
other official authorized under State law to make those appointments.
(c) If a State has an existing advisory panel that can perform the
functions in Sec. 300.652, the State may modify the existing panel so
that it fulfills all of the requirements of Secs. 300.650--300.653,
instead of establishing a new advisory panel.
(Authority: 20 U.S.C. 1412(a)(21)(A))
Note: The advisory panel required by Secs. 300.650--300.653 must
advise the State regarding the education of all children with
disabilities in the State. This includes advising the State on the
education of eligible students with disabilities who have been
convicted as adults and incarcerated in adult prisons, even if,
consistent with Sec. 300.600(d), a State assigns general supervision
responsibility for those students to a public agency other than an
SEA.
Sec. 300.651 Membership.
(a) General. The membership of the State advisory panel must
consist of members appointed by the Governor, or any other official
authorized under State law to make these appointments, that is
representative of the State population and that is composed of
individuals involved in, or concerned with the education of children
with disabilities, including--
(1) Parents of children with disabilities;
(2) Individuals with disabilities;
(3) Teachers;
(4) Representatives of institutions of higher education that
prepare special education and related services personnel;
(5) State and local education officials;
(6) Administrators of programs for children with disabilities;
(7) Representatives of other State agencies involved in the
financing or delivery of related services to children with
disabilities;
(8) Representatives of private schools and public charter schools;
(9) At least one representative of a vocational, community, or
business organization concerned with the provision of transition
services to children with disabilities; and
(10) Representatives from the State juvenile and adult corrections
agencies.
(b) Special rule. A majority of the members of the panel must be
individuals with disabilities or parents of children with disabilities.
(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))
Sec. 300.652 Advisory panel functions.
The State advisory panel shall--
(a) Advise the SEA of unmet needs within the State in the education
of children with disabilities;
(b) Comment publicly on any rules or regulations proposed by the
State regarding the education of children with disabilities;
(c) Advise the SEA in developing evaluations and reporting on data
to the Secretary under section 618 of the Act;
(d) Advise the SEA in developing corrective action plans to address
findings identified in Federal monitoring reports under Part B of the
Act; and
(e) Advise the SEA in developing and implementing policies relating
to the coordination of services for children with disabilities.
(Authority: 20 U.S.C. 1412(a)(21)(D))
Sec. 300.653 Advisory panel procedures.
(a) The advisory panel shall meet as often as necessary to conduct
its business.
(b) By July 1 of each year, the advisory panel shall submit an
annual report of panel activities and suggestions to the SEA. This
report must be made available to the public in a manner consistent with
other public reporting requirements of Part B of the Act.
(c) Official minutes must be kept on all panel meetings and must be
made available to the public on request.
(d) All advisory panel meetings and agenda items must be publicly
announced prior to the meeting, and meetings must be open to the
public.
(e) Interpreters and other necessary services must be provided at
panel meetings for panel members or participants. The State may pay for
these services from funds under Sec. 300.620.
(f) The advisory panel shall serve without compensation but the
State must reimburse the panel for reasonable and necessary expenses
for attending meetings and performing duties. The State may use funds
under Sec. 300.620 for this purpose.
(Authority: 20 U.S.C. 1412(a)(21))
State Complaint Procedures
Sec. 300.660 Adoption of State complaint procedures.
Each SEA shall adopt written procedures for--
[[Page 55115]]
(a) Resolving any complaint that meets the requirements of
Sec. 300.662 by--
(1) Providing for the filing of a complaint with the SEA; and
(2) At the SEA's discretion, providing for the filing of a
complaint with a public agency and the right to have the SEA review the
public agency's decision on the complaint; and
(b) Widely disseminating to parents and other interested
individuals, including parent training centers, protection and advocacy
agencies, independent living centers, and other appropriate entities,
the State's procedures under Secs. 300.660--300.662.
(Authority: 20 U.S.C. 2831(a))
Note: In resolving a complaint alleging failure to provide
appropriate services, an SEA, pursuant to its general supervisory
authority under Part B of the Act, may award compensatory services
as a remedy for the denial of FAPE.
Sec. 300.661 Minimum State complaint procedures.
Each SEA shall include the following in its complaint procedures:
(a) A time limit of 60 calendar days after a complaint is filed
under Sec. 300.660(a) to--
(1) Carry out an independent on-site investigation, if the SEA
determines that such an investigation is necessary;
(2) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in the
complaint;
(3) Review all relevant information and make an independent
determination as to whether the public agency is violating a
requirement of Part B of the Act or of this part; and
(4) Issue a written decision to the complainant that addresses each
allegation in the complaint and contains--
(i) Findings of fact and conclusions; and
(ii) The reasons for the SEA's final decision.
(b) An extension of the time limit under paragraph (a) of this
section only if exceptional circumstances exist with respect to a
particular complaint.
(c) Procedures for effective implementation of the SEA's final
decision, if needed, including technical assistance activities,
negotiations, and corrective actions to achieve compliance.
(Authority: 20 U.S.C. 2831(a))
Note 1: If a written complaint is received that is also the
subject of a due process hearing under Sec. 300.507, or contains
multiple issues, of which one or more may be part of that hearing,
the State must set aside any part of the complaint that is being
addressed in the due process hearing, until the conclusion of the
hearing. However, any issue in the complaint that is not a part of
the due process action must be resolved within the 60 calendar-day
timeline using the complaint procedures described in this section.
Note 2: If an issue is raised in a complaint filed under this
section that has previously been decided in a due process hearing
involving the same parties, then the hearing decision is binding,
and the SEA would inform the complainant to that effect. A complaint
alleging a public agency's failure to implement a due process
decision, however, would have to be resolved by the SEA.
Sec. 300.662 Filing a complaint.
(a) An organization or individual may file a signed written
complaint under the procedures described in Secs. 300.660-300.661.
(b) The complaint must include--
(1) A statement that a public agency has violated a requirement of
Part B of the Act or of this part; and
(2) The facts on which the statement is based.
(c) The complaint must allege a violation that occurred not more
than one year prior to the date that the complaint is received in
accordance with Sec. 300.660(a) unless a longer period is reasonable
because the violation is continuing, or the complainant is requesting
compensatory services for a violation that occurred not more than three
years prior to the date the complaint is received under
Sec. 300.660(a).
(Authority: 20 U.S.C. 2831(a))
Note: The SEA must resolve any complaint that meets the
requirements of this section, even if the complaint is filed by an
organization or individual from another State.
Subpart G--Allocation of Funds; Reports Allocations
Sec. 300.700 Special definition of the term ``State''.
For the purposes of Secs. 300.701, 300.703-300.714, the term State
means each of the 50 States, the District of Columbia, and the
Commonwealth of Puerto Rico.
(Authority: 20 U.S.C. 1411(h)(2))
Sec. 300.701 Grants to States.
(a) Purpose of grants. The Secretary makes grants to States and the
outlying areas and provides funds to the Secretary of the Interior, to
assist them to provide special education and related services to
children with disabilities in accordance with Part B of the Act.
(b) Maximum amounts. The maximum amount of the grant a State may
receive under section 611 of the Act for any fiscal year is--
(1) The number of children with disabilities in the State who are
receiving special education and related services--
(i) Aged 3 through 5 if the State is eligible for a grant under
section 619 of the Act; and
(ii) Aged 6 through 21; multiplied by--
(2) Forty (40) percent of the average per-pupil expenditure in
public elementary and secondary schools in the United States.
(Authority: 20 U.S.C. 1411(a))
Sec. 300.702 Definition.
For the purposes of this section the term average per-pupil
expenditure in public elementary and secondary schools in the United
States means--
(a) Without regard to the source of funds--
(1) The aggregate current expenditures, during the second fiscal
year preceding the fiscal year for which the determination is made (or,
if satisfactory data for that year are not available, during the most
recent preceding fiscal year for which satisfactory data are available)
of all LEAs in the 50 States and the District of Columbia); plus
(2) Any direct expenditures by the State for the operation of those
agencies; divided by
(b) The aggregate number of children in average daily attendance to
whom those agencies provided free public education during that
preceding year.
(Authority: 20 U.S.C. 1411(h)(1))
Sec. 300.703 Allocations to States.
(a) General. After reserving funds for studies and evaluations
under section 674(e) of the Act, and for payments to the outlying areas
and the Secretary of the Interior under Secs. 300.717-300.722 and
300.715, the Secretary allocates the remaining amount among the States
in accordance with paragraph (b) of this section and Secs. 300.704-
300.705 or 300.706-300.709.
(b) Interim formula. Except as provided in Secs. 300.706-300.709,
the Secretary allocates the amount described in paragraph (a) of this
section among the States in accordance with section 611(a)(3), (4), (5)
and (b)(1), (2) and (3) of the Act, as in effect prior to June 4, 1997,
except that the determination of the number of children with
disabilities receiving special education and related services under
section 611(a)(3) of the Act (as then in effect) may be calculated as
of December 1, or, at the State's discretion, the last Friday in
October, of the fiscal year for which the funds were appropriated.
(Authority: 20 U.S.C. 1411(d))
[[Page 55116]]
Secs. 300.704-300.705 [Reserved]
Sec. 300.706 Permanent formula.
(a) Establishment of base year. The Secretary allocates the amount
described in Sec. 300.703(a) among the States in accordance with
Secs. 300.706-300.709 for each fiscal year beginning with the first
fiscal year for which the amount appropriated under 611(j) of the Act
is more than $4,924,672,200.
(b) Use of base year.
(1) Definition. As used in this section, the term base year means
the fiscal year preceding the first fiscal year in which this section
applies.
(2) Special rule for use of base year amount. If a State received
any funds under this section for the base year on the basis of children
aged 3 through 5, but does not make FAPE available to all children with
disabilities aged 3 through 5 in the State in any subsequent fiscal
year, the Secretary computes the State's base year amount, solely for
the purpose of calculating the State's allocation in that subsequent
year under Secs. 300.707-300.709, by subtracting the amount allocated
to the State for the base year on the basis of those children.
(Authority: 20 U.S.C. 1411(e)(1) and (2))
Sec. 300.707 Increase in funds.
If the amount available for allocations to States under
Sec. 300.706 is equal to or greater than the amount allocated to the
States under this section for the preceding fiscal year, those
allocations are calculated as follows:
(a) Except as provided in Sec. 300.708, the Secretary--
(1) Allocates to each State the amount it received for the base
year;
(2) Allocates 85 percent of any remaining funds to States on the
basis of their relative populations of children aged 3 through 21 who
are of the same age as children with disabilities for whom the State
ensures the availability of FAPE under Part B of the Act; and
(3) Allocates 15 percent of those remaining funds to States on the
basis of their relative populations of children described in paragraph
(a)(2) of this section who are living in poverty.
(b) For the purpose of making grants under this section, the
Secretary uses the most recent population data, including data on
children living in poverty, that are available and satisfactory to the
Secretary.
(Authority: 20 U.S.C. 1411(e)(3))
Sec. 300.708 Limitation.
(a) Notwithstanding Sec. 300.707, allocations under this section
are subject to the following:
(1) No State's allocation may be less than its allocation for the
preceding fiscal year.
(2) No State's allocation may be less than the greatest of--
(i) The sum of--
(A) The amount it received for the base year; and
(B) One-third of one percent of the amount by which the amount
appropriated under section 611(j) of the Act exceeds the amount
appropriated under section 611 of the Act for the base year;
(ii) The sum of--
(A) The amount it received for the preceding fiscal year; and
(B) That amount multiplied by the percentage by which the increase
in the funds appropriated from the preceding fiscal year exceeds 1.5
percent; or
(iii) The sum of--
(A) The amount it received for the preceding fiscal year; and
(B) That amount multiplied by 90 percent of the percentage increase
in the amount appropriated from the preceding fiscal year.
(b) Notwithstanding paragraph (a)(2) of this section, no State's
allocation under Sec. 300.707 may exceed the sum of--
(1) The amount it received for the preceding fiscal year; and
(2) That amount multiplied by the sum of 1.5 percent and the
percentage increase in the amount appropriated.
(c) If the amount available for allocations to States under
Sec. 300.307 and paragraphs (a) and (b) of this section is insufficient
to pay those allocations in full those allocations are ratably reduced,
subject to paragraph (a)(1) of this section.
(Authority: 20 U.S.C. 1411(e)(3)(B) and (C))
Sec. 300.709 Decrease in funds.
If the amount available for allocations to States under
Sec. 300.706 is less than the amount allocated to the States under
section 611 of the Act for the preceding fiscal year, those allocations
are calculated as follows:
(a) If the amount available for allocations is greater than the
amount allocated to the States for the base year, each State is
allocated the sum of--
(1) The amount it received for the base year; and
(2) An amount that bears the same relation to any remaining funds
as the increase the State received for the preceding fiscal year over
the base year bears to the total of those increases for all States.
(b)(1) If the amount available for allocations is equal to or less
than the amount allocated to the States for the base year, each State
is allocated the amount it received for the base year.
(2) If the amount available is insufficient to make the allocations
described in paragraph (b)(1) of this section, those allocations are
ratably reduced.
(Authority: 20 U.S.C. 1411(e)(4))
Sec. 300.710 Allocation for State in which by-pass is implemented for
private school children with disabilities.
In determining the allocation under Secs. 300.700--300.709 of a
State in which the Secretary will implement a by-pass for private
school children with disabilities under Secs. 300.451--300.487, the
Secretary includes in the State's child count--
(a) For the first year of a by-pass, the actual or estimated number
of private school children with disabilities (as defined in
Secs. 300.7(a) and 300.450) in the State, as of the preceding December
1; and
(b) For succeeding years of a by-pass, the number of private school
children with disabilities who received special education and related
services under the by-pass in the preceding year.
(Authority: 20 U.S.C. 1412(f)(2))
Sec. 300.711 Subgrants to LEAs.
Each State that receives a grant under section 611 of the Act for
any fiscal year shall distribute in accordance with Sec. 300.712 any
funds it does not retain under Sec. 300.602 and is not required to
distribute under Secs. 300.622 and 300.623 to LEAs in the State that
have established their eligibility under section 613 of the Act, and to
State agencies that received funds under section 614A(a) of the Act for
fiscal year 1997, as then in effect, and have established their
eligibility under section 613 of the Act, for use in accordance with
Part B of the Act.
(Authority: 20 U.S.C. 1411(g)(1))
Sec. 300.712 Allocations to LEAs.
(a) Interim procedure. For each fiscal year for which funds are
allocated to States under Sec. 300.703(b) each State shall allocate
funds under Sec. 300.711 in accordance with section 611(d) of the Act,
as in effect prior to June 4, 1997.
(b) Permanent procedure. For each fiscal year for which funds are
allocated to States under Secs. 300.706-300.709, each State shall
allocate funds under Sec. 300.711 as follows:
(1) Base payments. The State first shall award each agency
described in Sec. 300.711 the amount that agency would have received
under this section for the base year, as defined in Sec. 300.706(b)(1),
if the State had distributed 75 percent of its grant for that year
under section Sec. 300.703(b).
[[Page 55117]]
(2) Allocation of remaining funds. The State then shall--
(i) Allocate 85 percent of any remaining funds to those agencies on
the basis of the relative numbers of children enrolled in public and
private elementary and secondary schools within the agency's
jurisdiction; and
(ii) Allocate 15 percent of those remaining funds to those agencies
in accordance with their relative numbers of children living in
poverty, as determined by the SEA.
(Authority: 20 U.S.C. 1411(g)(2))
Note: In distributing funds under paragraph (b)(2)(i) of this
section, States should use the best data that are available to them
on enrollment in public and private schools. If data on enrollment
in private schools are not available, States or LEAs are not
expected to initiate new data collections to obtain these data.
However, States are encouraged to try to obtain enrollment data from
private, nonprofit schools that want their students to participate
in the program.
In distributing funds under paragraph (b)(2)(ii) of this
section, States have discretion in determining what data to use to
allocate funds among LEAs on the basis of children living in
poverty. States should use the best data available to them that
reflect the distribution of children living in poverty. Examples of
options include census poverty data, data on children in families
receiving assistance under the State program funded under Part A of
title IV of the Social Security Act, data on children participating
in the free or reduced-price meals program under the National School
Lunch Act, and allocations under title I of the Elementary and
Secondary Education Act.
Sec. 300.713 Former Chapter 1 State agencies.
(a) To the extent necessary, the State--
(1) Shall use funds that are available under Sec. 300.602(a) to
ensure that each State agency that received fiscal year 1994 funds
under subpart 2 of Part D of chapter 1 of title I of the Elementary and
Secondary Education Act of 1965 (as in effect in fiscal year 1994)
receives, from the combination of funds under Sec. 300.602(a) and funds
provided under Sec. 300.711, an amount equal to--
(i) The number of children with disabilities, aged 6 through 21, to
whom the agency was providing special education and related services on
December 1, or, at the State's discretion, the last Friday in October,
of the fiscal year for which the funds were appropriated, subject to
the limitation in paragraph (b) of this section; multiplied by
(ii) The per-child amount provided under such subpart for fiscal
year 1994; and
(2) May use those funds to ensure that each LEA that received
fiscal year 1994 funds under that subpart for children who had
transferred from a State-operated or State-supported school or program
assisted under that subpart receives, from the combination of funds
available under Sec. 300.602(a) and funds provided under Sec. 300.711,
an amount for each child, aged 3 through 21 to whom the agency was
providing special education and related services on December 1, or, at
the State's discretion, the last Friday in October, of the fiscal year
for which the funds were appropriated, equal to the per-child amount
the agency received under that subpart for fiscal year 1994.
(b) The number of children counted under paragraph (a)(1)(i) of
this section may not exceed the number of children aged 3 through 21
for whom the agency received fiscal year 1994 funds under subpart 2 of
Part D of chapter 1 of title I of the Elementary and Secondary
Education Act of 1965 (as in effect in fiscal year 1994).
(Authority: 20 U.S.C. 1411(g)(3))
Sec. 300.714 Reallocation of LEA funds.
If a SEA determines that an LEA is adequately providing FAPE to all
children with disabilities residing in the area served by that agency
with State and local funds, the SEA may reallocate any portion of the
funds under Part B of the Act that are not needed by that local agency
to provide FAPE to other LEAs in the State that are not adequately
providing special education and related services to all children with
disabilities residing in the areas they serve.
(Authority: 20 U.S.C. 1411(g)(4))
Sec. 300.715 Payments to the Secretary of the Interior for the
education of Indian children.
(a) Reserved amounts for Secretary of Interior. From the amount
appropriated for any fiscal year under 611(j) of the Act, the Secretary
reserves 1.226 percent to provide assistance to the Secretary of the
Interior in accordance with this section.
(b) Provision of amounts for assistance. The Secretary provides
amounts to the Secretary of the Interior to meet the need for
assistance for the education of children with disabilities on
reservations aged 5 to 21, inclusive, enrolled in elementary and
secondary schools for Indian children operated or funded by the
Secretary of the Interior. The amount of the payment for any fiscal
year is equal to 80 percent of the amount allotted under paragraph (a)
of this section for that fiscal year.
(c) Calculation of number of children. In the case of Indian
students aged 3 to 5, inclusive, who are enrolled in programs
affiliated with the Bureau of Indian Affairs (BIA) schools and that are
required by the States in which these schools are located to attain or
maintain State accreditation, and which schools have this accreditation
prior to the date of enactment of the Individuals with Disabilities
Education Act Amendments of 1991, the school may count those children
for the purpose of distribution of the funds provided under this
section to the Secretary of the Interior.
(d) Responsibility for meeting the requirements of Part B. The
Secretary of the Interior shall meet all of the requirements of Part B
of the Act for the children described in paragraph (b) of this section,
in accordance with Sec. 300.260.
(Authority: 20 U.S.C. 1411(c); 1411(i)(1) (A) and (B))
Sec. 300.716 Payments for education and services for Indian children
with disabilities aged 3 through 5.
(a) General. With funds appropriated under 611(j) of the Act, the
Secretary makes payments to the Secretary of the Interior to be
distributed to tribes or tribal organizations (as defined under section
4 of the Indian Self-Determination and Education Assistance Act) or
consortia of those tribes or tribal organizations to provide for the
coordination of assistance for special education and related services
for children with disabilities aged 3 through 5 on reservations served
by elementary and secondary schools for Indian children operated or
funded by the Department of the Interior. The amount of the payments
under paragraph (b) of this section for any fiscal year is equal to 20
percent of the amount allotted under Sec. 300.715(a).
(b) Distribution of funds. The Secretary of the Interior shall
distribute the total amount of the payment under paragraph (a) of this
section by allocating to each tribe or tribal organization an amount
based on the number of children with disabilities ages 3 through 5
residing on reservations as reported annually, divided by the total of
those children served by all tribes or tribal organizations.
(c) Submission of information. To receive a payment under this
section, the tribe or tribal organization shall submit the figures to
the Secretary of the Interior as required to determine the amounts to
be allocated under paragraph (b) of this section. This information must
be compiled and submitted to the Secretary.
(d) Use of funds. (1) The funds received by a tribe or tribal
organization must be used to assist in child find screening and other
procedures for the
[[Page 55118]]
early identification of children aged 3 through 5, parent training, and
the provision of direct services. These activities may be carried out
directly or through contracts or cooperative agreements with the BIA,
LEAs, and other public or private nonprofit organizations. The tribe or
tribal organization is encouraged to involve Indian parents in the
development and implementation of these activities.
(2) The entities shall, as appropriate, make referrals to local,
State, or Federal entities for the provision of services or further
diagnosis.
(e) Biennial report. To be eligible to receive a grant pursuant to
paragraph (a) of this section, the tribe or tribal organization shall
provide to the Secretary of the Interior a biennial report of
activities undertaken under this paragraph, including the number of
contracts and cooperative agreements entered into, the number of
children contacted and receiving services for each year, and the
estimated number of children needing services during the two years
following the one in which the report is made. The Secretary of the
Interior shall include a summary of this information on a biennial
basis in the report to the Secretary required under section 611(i). The
Secretary may require any additional information from the Secretary of
the Interior.
(f) Prohibitions. None of the funds allocated under this section
may be used by the Secretary of the Interior for administrative
purposes, including child count and the provision of technical
assistance.
(Authority: 20 U.S.C. 1411(i)(3))
Sec. 300.717 Outlying areas and freely associated States.
From the amount appropriated for any fiscal year under 611(j) of
the Act, the Secretary reserves not more than one percent, which must
be used--
(a) To provide assistance to the outlying areas in accordance with
their respective populations of individuals aged 3 through 21; and
(b) For fiscal years 1998 through 2001, to carry out the
competition described in Sec. 300.719, except that the amount reserved
to carry out that competition may not exceed the amount reserved for
fiscal year 1996 for the competition under Part B of the Act described
under the heading ``SPECIAL EDUCATION'' in Public Law 104-134.
(Authority: 20 U.S.C. 1411(b)(1))
Sec. 300.718 Outlying area--definition.
As used in this part, the term outlying area means the United
States Virgin Islands, Guam, American Samoa, and the Commonwealth of
the Northern Mariana Islands.
(Authority: 20 U.S.C. 1402(18))
Sec. 300.719 Limitation for freely associated States.
(a) Competitive grants. The Secretary uses funds described in
Sec. 300.717(b) to award grants, on a competitive basis, to Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, and
the freely associated States to carry out the purposes of this part.
(b) Award basis. The Secretary awards grants under paragraph (a) of
this section on a competitive basis, pursuant to the recommendations of
the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those
recommendations must be made by experts in the field of special
education and related services.
(c) Assistance requirements. Any freely associated State that
wishes to receive funds under Part B of the Act shall include, in its
application for assistance--
(1) Information demonstrating that it will meet all conditions that
apply to States under this part;
(2) An assurance that, notwithstanding any other provision of this
part, it will use those funds only for the direct provision of special
education and related services to children with disabilities and to
enhance its capacity to make FAPE available to all children with
disabilities;
(3) The identity of the source and amount of funds, in addition to
funds under Part B of the Act, that it will make available to ensure
that FAPE is available to all children with disabilities within its
jurisdiction; and
(4) Such other information and assurances as the Secretary may
require.
(d) Termination of eligibility. Notwithstanding any other provision
of law, the freely associated States may not receive any funds under
Part B of the Act for any program year that begins after September 30,
2001.
(e) Administrative costs. The Secretary may provide not more than
five percent of the amount reserved for grants under this section to
pay the administrative costs of the Pacific Region Educational
Laboratory under paragraph (b) of this section.
(f) Eligibility for award. An outlying area is not eligible for a
competitive award under Sec. 300.719 unless it receives assistance
under Sec. 300.717(a).
(Authority: 20 U.S.C. 1411(b)(2) and (3))
Sec. 300.720 Special rule.
The provisions of Public Law 95-134, permitting the consolidation
of grants by the outlying areas, do not apply to funds provided to
those areas or to the freely associated States under Part B of the Act.
(Authority: 20 U.S.C. 1411(b)(4))
Sec. 300.721 [Reserved]
Sec. 300.722 Definition.
As used in this part, the term freely associated States means the
Republic of the Marshall Islands, the Federated States of Micronesia,
and the Republic of Palau.
(Authority: 20 U.S.C. 1411(b)(6))
Reports
Sec. 300.750 Annual report of children served--report requirement.
(a) The SEA shall report to the Secretary no later than February 1
of each year the number of children with disabilities aged 3 through 21
residing in the State who are receiving special education and related
services.
(b) The SEA shall submit the report on forms provided by the
Secretary.
(Authority: 20 U.S.C. 1411(d)(2); 1418(a))
Note: It is very important to understand that this report and
the requirements that relate to it are solely for allocation
purposes. The population of children the State may count for
allocation purposes may differ from the population of children to
whom the State must make FAPE available. For example, while section
611(a)(5) of the Act prior to the Individuals with Disabilities
Education Act Amendments of 1997 limits the number of children who
may be counted for allocation purposes to 12 percent of the general
school population aged 3 through 17 (in States that serve all
children with disabilities aged 3 through 5) or 5 through 17 (in
States that do not serve all children with disabilities aged 3
through 5), a State might find that 13 percent (or some other
percentage) of its children have disabilities. In that case, the
State must make FAPE available to all of those children with
disabilities.
Sec. 300.751 Annual report of children served--information required in
the report.
(a) For any year before the total appropriation for section 611 of
the Act first exceeds $4,924,672,200, the SEA shall include in its
report a table that shows--
(1) The number of children with disabilities receiving special
education and related services on December 1, or at the State's
discretion on the last Friday in October, of that school year;
(2) The number of children with disabilities aged 3 through 5 who
are receiving FAPE;
(3) The number of those children with disabilities aged 6 through
21 within each disability category, as defined in the definition of
``children with disabilities'' in Sec. 300.7; and
[[Page 55119]]
(4) The number of those children with disabilities aged 3 through
21 for each year of age (3, 4, 5, etc.).
(b) For the purpose of this part, a child's age is the child's
actual age on the date of the child count: December 1, or, at the
State's discretion, the last Friday in October.
(c) The SEA may not report a child aged 6 through 21 under more
than one disability category.
(d) If a child with a disability aged 6 through 21 has more than
one disability, the SEA shall report that child in accordance with the
following procedure:
(1) A child with deaf-blindness must be reported under the category
``deaf-blindness.''
(2) A child who has more than one disability (other than deaf-
blindness) must be reported under the category ``multiple
disabilities.''
(Authority: 20 U.S.C. 1411(d)(2); 1418(a))
Sec. 300.752 Annual report of children served--certification.
The SEA shall include in its report a certification signed by an
authorized official of the agency that the information provided is an
accurate and unduplicated count of children with disabilities receiving
special education and related services on the dates in question.
(Authority: 20 U.S.C. 1411(d)(2); 1417(b))
Sec. 300.753 Annual report of children served--criteria for counting
children.
(a) The SEA may include in its report children with disabilities
who are enrolled in a school or program that is operated or supported
by a public agency, and that either--
(1) Provides them with both special education and related services;
or
(2) Provides them only with special education if they do not need
related services to assist them in benefitting from that special
education.
(b) The SEA may not include children with disabilities in its
report who--
(1) Are not enrolled in a school or program operated or supported
by a public agency;
(2) Are not provided special education that meets State standards;
(3) Are not provided with a related service that they need to
assist them in benefitting from special education; or
(4) Are receiving special education funded solely by the Federal
Government. However, the State may count children covered under
Sec. 300.184(c)(2).
(Authority: 20 U.S.C. 1411(d)(2); 1417(b))
Note 1: Under paragraph (a) of this section, the State may count
children with disabilities in a Head Start or other preschool
program operated or supported by a public agency if those children
are provided special education that meets State standards.
Note 2: Both special education and related services must be at
no cost to parents.
There may be some situations, however, where a child receives
special education from a public source at no cost, but whose parents
pay for the basic or regular education. This child may be counted. The
Department expects that there would only be limited situations in which
special education would be clearly separate from regular education--
generally, if speech services are the only special education required
by the child. For example, the child's parents may have enrolled the
child in a regular program in a private school, but the child might be
receiving speech services in a program funded by the LEA. Allowing
these children to be counted will provide incentives (in addition to
complying with the legal requirement in section 612(a)(10)(A) of the
Act regarding private schools) to public agencies to provide services
to children enrolled by their parents in private schools, since funds
are generated in part on the basis of the number of children provided
special education and related services. Agencies should understand,
however, that if a public agency places or refers a child with a
disability to a public or private school for educational purposes,
special education includes the entire educational program provided to
the child. In that case, parents may not be charged for any part of the
child's education.
A State may not count Indian children on or near reservations and
children on military facilities if it provides them no special
education. If an SEA or LEA is responsible for serving these children,
and does provide them special education and related services, they may
be counted.
Sec. 300.754 Annual report of children served--other responsibilities
of the State education agency.
In addition to meeting the other requirements of Secs. 300.750-
300.753, the SEA shall--
(a) Establish procedures to be used by LEAs and other educational
institutions in counting the number of children with disabilities
receiving special education and related services;
(b) Set dates by which those agencies and institutions must report
to the SEA to ensure that the State complies with Sec. 300.750(a);
(c) Obtain certification from each agency and institution that an
unduplicated and accurate count has been made;
(d) Aggregate the data from the count obtained from each agency and
institution, and prepare the reports required under Secs. 300.750-
300.753; and
(e) Ensure that documentation is maintained that enables the State
and the Secretary to audit the accuracy of the count.
(Authority: 20 U.S.C. 1411(d)(2); 1417(b))
Note: States should note that the data required in the annual
report of children served are not to be transmitted to the Secretary
in personally identifiable form. States are encouraged to collect
these data in non-personally identifiable form.
Sec. 300.755 Disproportionality.
(a) General. Each State that receives assistance under Part B of
the Act, and the Secretary of the Interior, shall provide for the
collection and examination of data to determine if significant
disproportionality based on race is occurring in the State or in the
schools operated by the Secretary of the Interior with respect to--
(1) The identification of children as children with disabilities,
including the identification of children as children with disabilities
in accordance with a particular impairment described in section 602(3)
of the Act; and
(2) The placement in particular educational settings of these
children.
(b) Review and revision of policies, practices, and procedures. In
the case of a determination of significant disproportionality with
respect to the identification of children as children with
disabilities, or the placement in particular educational settings of
these children, in accordance with paragraph (a) of this section, the
State or the Secretary of the Interior shall provide for the review
and, if appropriate revision of the policies, procedures, and practices
used in the identification or placement to ensure that the policies,
procedures, and practices comply with the requirements of Part B of the
Act.
(Authority: 20 U.S.C. 1418(c))
Sec. 300.756 Acquisition of equipment; construction or alteration of
facilities.
(a) General. If the Secretary determines that a program authorized
under Part B of the Act would be improved by permitting program funds
to be used to acquire appropriate equipment, or to construct new
facilities or alter existing facilities, the Secretary may allow the
use of those funds for those purposes.
(b) Compliance with certain regulations. Any construction of new
facilities or alteration of existing
[[Page 55120]]
facilities paragraph (a) of this section must comply with the
requirements of--
(1) Appendix A of part 36 of title 28, Code of Federal Regulations
(commonly known as the ``Americans with Disabilities Accessibility
Guidelines for Buildings and Facilities''); or
(2) Appendix A of part 101-19.6 of title 41, Code of Federal
Regulations (commonly known as the ``Uniform Federal Accessibility
Standards'').
(Authority: 20 U.S.C. 1405)
Appendices A and B to Part 300 [Reserved]
2. Part 301 is revised to read as follows:
PART 301--PRESCHOOL GRANTS FOR CHILDREN WITH DISABILITIES
Subpart A--General
Sec.
301.1 Purpose of the Preschool Grants for Children With
Disabilities Program.
301.2-301.3 [Reserved]
301.4 Applicable regulations.
301.5 Applicable definitions.
301.6 Applicability of Part C of the Act to two-year-old children
with disabilities.
Subpart B--State Eligibility for a Grant.
301.10 Eligibility of a State to receive a grant.
301.11 [Reserved]
301.12 Sanctions if a State does not make a free appropriate public
education available to all preschool children with disabilities.
Subpart C--Allocation of Funds to a State.
301.20 Allocations to States.
301.21 Increase in funds.
301.22 Limitation.
301.23 Decrease in funds.
301.24 State-level activities.
301.25 Use of funds for State administration.
301.26 Use of State agency allocations.
Subpart D--Allocations of Funds to Local Educational Agencies.
301.30 Subgrants to local educational agencies.
301.31 Allocations to local educational agencies.
301.32 Reallocation of local educational agency funds.
Authority: 20 U.S.C. 1419, unless otherwise noted.
Subpart A--General
Sec. 301.1 Purpose of the Preschool Grants for Children With
Disabilities Program.
The purpose of the Preschool Grants for Children With Disabilities
program (Preschool Grants program) is to provide grants to States to
assist them in providing special education and related services--
(a) To children with disabilities aged three through five years;
and
(b) At a State's discretion, to two-year-old children with
disabilities who will turn three during the school year.
(Authority: 20 U.S.C. 1419(a))
Secs. 301.2-301.3 [Reserved]
Sec. 301.4 Applicable regulations.
The following regulations apply to the Preschool Grants program:
(a) The Education Department General Administrative Regulations
(EDGAR) in title 34 of the Code of Federal Regulations--
(1) Part 76 (State-Administered Programs) except Secs. 76.125-
76.137 and 76.650--76.662;
(2) Part 77 (Definitions that Apply to Department Regulations);
(3) Part 79 (Intergovernmental Review of Department of Education
Programs and Activities);
(4) Part 80 (Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments);
(5) Part 81 (General Education Provision Act--Enforcement);
(6) Part 82 (New Restrictions on Lobbying); and
(7) Part 85 (Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for a Drug-Free
Workplace (Grants)).
(b) The regulations in this part 301.
(c) The regulations in 34 CFR part 300.
(Authority: 20 U.S.C. 1419)
Sec. 301.5 Applicable definitions.
(a) Definitions in the Act. The following terms used in this part
are defined in the Act: Educational service agency Local educational
agency State educational agency
(b) Definitions in EDGAR. The following terms used in this part are
defined in 34 CFR 77.1:
Applicant
Application
Award
EDGAR
Fiscal year
Grant period
Secretary
Subgrant
(c) Other definitions. The following definitions also apply to this
part:
Act means the Individuals with Disabilities Education Act, as
amended.
Part B child count means the child count required by section
611(d)(2) of the Act.
Preschool means the age range of 3 through 5 years.
State means each of the 50 States, the District of Columbia, and
the Commonwealth of Puerto Rico.
(Authority: 20 U.S.C. 1402, 1419)
Sec. 301.6 Applicability of Part C of the Act to two-year-old children
with disabilities.
Part C of the Act does not apply to any child with disabilities
receiving a free appropriate public education, in accordance with part
B of the Act, with funds received under the Preschool Grants program.
(Authority: 20 U.S.C. 1419(h))
Subpart B--State Eligibility for a Grant
Sec. 301.10 Eligibility of a State to receive a grant.
A State is eligible to receive a grant if--
(a) The State is eligible under 34 CFR part 300; and
(b) The State demonstrates to the satisfaction of the Secretary
that it has in effect policies and procedures that assure the provision
of a free appropriate public education--
(1) For all children with disabilities aged three through five
years in accordance with the requirements in 34 CFR part 300; and
(2) For any two-year-old children, provided services by the SEA or
by an LEA or ESA under section 301.1.
(Authority: 20 U.S.C. 1419 (a), (b))
Sec. 301.11 [Reserved]
Sec. 301.12 Sanctions if a State does not make a free appropriate
public education available to all preschool children with disabilities.
If a State does not meet the requirements in section 619(b) of the
Act--
(a) The State is not eligible for a grant under the Preschool Grant
program;
(b) The State is not eligible for funds under 34 CFR part 300 for
children with disabilities aged 3 through 5 years; and
(c) No SEA, LEA, ESA, or other public institution or agency within
the State is eligible for a grant under Subpart 2 of part D of the Act
if the grant relates exclusively to programs, projects, and activities
pertaining to children with disabilities aged 3 through 5 years.
(Authority: 20 U.S.C. 1411(d)(2) and (e)(2)(B); 1419(b); 1461(j))
Subpart C--Allocation of Funds to States
Sec. 301.20 Allocations to States.
After reserving funds for studies and evaluations under section
674(e) of the Act, the Secretary allocates the remaining amount among
the States in accordance with Secs. 301.21-301.23.
(Authority: 20 U.S.C. 1419(c)(1))
[[Page 55121]]
Sec. 301.21 Increase in funds.
If the amount available for allocation to States under Sec. 301.20
is equal to or greater than the amount allocated to the States under
section 619 of the Act for the preceding fiscal year, those allocations
are calculated as follows:
(a) Except as provided in Sec. 301.22, the Secretary--
(1) Allocates to each State the amount it received for fiscal year
1997;
(2) Allocates 85 percent of any remaining funds to States on the
basis of their relative populations of children aged 3 through 5; and
(3) Allocates 15 percent of those remaining funds to States on the
basis of their relative populations of children described in paragraph
(a)(2) of this section who are living in poverty.
(b) For the purpose of making grants under this section, the
Secretary uses the most recent population data, including data on
children living in poverty, that are available and satisfactory to the
Secretary.
(Authority: 20 U.S.C. 1419(c)(2)(A))
Sec. 301.22 Limitation.
(a) Notwithstanding Sec. 301.21, allocations under that section are
subject to the following:
(1) No State's allocation may be less than its allocation for the
preceding fiscal year.
(2) No State's allocation may be less than the greatest of--
(i) The sum of--
(A) The amount it received for fiscal year 1997; and
(B) One-third of one percent of the amount by which the amount
appropriated under section 619(j) of the Act exceeds the amount
appropriated under section 619 of the Act for fiscal year 1997;
(ii) The sum of--
(A) The amount it received for the preceding fiscal year; and
(B) That amount multiplied by the percentage by which the increase
in the funds appropriated from the preceding fiscal year exceeds 1.5
percent; or
(iii) The sum of--
(A) The amount it received for the preceding fiscal year; and
(B) That amount multiplied by 90 percent of the percentage increase
in the amount appropriated from the preceding fiscal year.
(b) Notwithstanding paragraph (a)(2) of this section, no State's
allocation under Sec. 301.21 may exceed the sum of--
(1) The amount it received for the preceding fiscal year; and
(2) That amount multiplied by the sum of 1.5 percent and the
percentage increase in the amount appropriated.
(c) If the amount available for allocation to States under
Sec. 301.21 and paragraphs (a) and (b) of this section is insufficient
to pay those allocations in full, the Secretary ratably reduces those
allocations, subject to paragraph (a)(1) of this section.
(Authority: 20 U.S.C. 1419(c)(2)(B) and (C))
Sec. 301.23 Decrease in funds.
If the amount available for allocations to States under Sec. 301.20
is less than the amount allocated to the States under section 619 of
the Act for the preceding fiscal year, those allocations are calculated
as follows:
(a) If the amount available for allocations is greater than the
amount allocated to the States for fiscal year 1997, each State is
allocated the sum of--
(1) The amount it received for fiscal year 1997; and
(2) An amount that bears the same relation to any remaining funds
as the increase the State received for the preceding fiscal year over
fiscal year 1997 bears to the total of those increases for all States.
(b)(1) If the amount available for allocations is equal to the
amount allocated to the States for fiscal year 1997, each State is
allocated the amount it received for that year.
(2) If the amount available is less than the amount allocated to
States for fiscal year 1997, the Secretary allocates amounts equal to
the allocations for fiscal year 1997, ratably reduced.
(Authority: 20 U.S.C. 1419(c)(3))
Sec. 301.24 State-level activities.
(a) Each State may retain not more than the amount described in
paragraph (b) of this section for administration and other State-level
activities in accordance with Secs. 301.25 and 301.26.
(b) For each fiscal year, the Secretary determines and reports to
the SEA an amount that is 25 percent of the amount the State received
under section 619 of the Act for fiscal year 1997, cumulatively
adjusted by the Secretary for each succeeding fiscal year by the lesser
of--
(1) The percentage increase, if any, from the preceding fiscal year
in the State's allocation under section 619 of the Act; or
(2) The rate of inflation, as measured by the percentage increase,
if any, from the preceding fiscal year in the Consumer Price Index For
All Urban Consumers, published by the Bureau of Labor Statistics of the
Department of Labor.
(Authority: 20 U.S.C. 1419 (d))
Sec. 301.25 Use of funds for State administration.
(a) For the purpose of administering section 619 of the Act
(including the coordination of activities under Part B of the Act with,
and providing technical assistance to, other programs that provide
services to children with disabilities), each State may use not more
than twenty percent of the maximum amount it may retain under
Sec. 301.24 for any fiscal year.
(b) Funds described in paragraph (a) of this section may also be
used for the administration of Part C of the Act, if the SEA is the
lead agency for the State under that part.
(Authority: 20 U.S.C. 1419(e))
Sec. 301.26 Use of State agency allocations.
Each State shall use any funds it retains under Sec. 301.24 and
does not use for administration under Sec. 301.25 for any of the
following:
(a) Support services (including establishing and implementing the
mediation process required by section 615(e) of the Act), which may
benefit children with disabilities younger than 3 or older than 5 as
long as those services also benefit children with disabilities aged 3
through 5.
(b) Direct services for children eligible for services under
section 619 of the Act.
(c) Developing a State improvement plan under subpart 1 of Part D
of the Act.
(d) Activities at the State and local levels to meet the
performance goals established by the State under section 612(a)(16) of
the Act 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.
(e) Supplementing other funds 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 619 of the Act for a fiscal year.
(Authority: 20 U.S.C. 1419(f))
Note: The Individual with Disabilities Education Act Amendments
of 1997 made a number of changes to the Act designed to encourage
better coordination of services among programs, including
flexibility for States to use State administration funds under
section 619(e) to coordinate activities with other programs that
provide services to children with disabilities and to fund
administrative costs related to part C. Consistent with the intent
of these provisions, an example of an authorized activity under
paragraph (a) would be to plan
[[Page 55122]]
and develop a statewide comprehensive delivery system for children
with disabilities aged birth through five.
Subpart D--Allocation of funds to local educational agencies.
Sec. 301.30 Subgrants to local educational agencies.
Each State that receives a grant under section 619 of the Act for
any fiscal year shall distribute any funds it does not retain under
Sec. 301.24 to local educational agencies in the State that have
established their eligibility under section 613 of the Act.
(Authority: 20 U.S.C. 1419(g)(1))
Sec. 301.31 Allocations to local educational agencies.
(a) Base payments. The State shall first award each agency
described in Sec. 301.27 the amount that agency would have received
under section 619 of the Act for fiscal year 1997 if the State had
distributed 75 percent of its grant for that year under section
619(c)(3), as then in effect.
(b) Allocation of remaining funds. After making allocations under
paragraph (a) of this section, the State shall--
(1) Allocate 85 percent of any remaining funds to those agencies on
the basis of the relative numbers of children enrolled in public and
private elementary and secondary schools within the agency's
jurisdiction; and
(2) Allocate 15 percent of those remaining funds to those agencies
in accordance with their relative numbers of children living in
poverty, as determined by the SEA.
(Authority: 20 U.S.C. 1419(g)(1))
Note: In distributing funds under paragraph (b)(1) of this
section, States should use the best data that is available to them
on enrollment in public and private schools. If data on enrollment
in private schools is not available, States or LEAs are not expected
to initiate new data collections to obtain this data. However,
States are encouraged to try to obtain enrollment data from private
schools that want their students to participate in the program.
In distributing funds under paragraph (b)(2) of this section,
States have discretion in determining what data to use to allocate
funds among LEAs on the basis of children living in poverty. States
should use the best data available to them that reflect the
distribution of children living in poverty. Examples of options
include census poverty data, data on children in families receiving
assistance under the State program funded under Part A of title IV
of the Social Security Act, data on children participating in the
free or reduced-price meals program under the National School Lunch
Act, and allocations under title I of the Elementary and Secondary
Education Act.
Sec. 301.32 Reallocation of LEA funds.
(a) If a SEA determines that an LEA is adequately providing a free
appropriate public education to all children with disabilities aged 3
through 5 residing in the area served by that agency with State and
local funds, the SEA may reallocate any portion of the funds under
section 619 of the Act that are not needed by that local agency to
provide a free appropriate public education to other local educational
agencies in the State that are not adequately providing special
education and related services to all children with disabilities aged 3
through 5 residing in the areas they serve.
(b) If a State provides services to preschool children with
disabilities because some or all LEAs and ESAs are unable or unwilling
to provide appropriate programs, the SEA may use payments that would
have been available to those LEAs or ESAs to provide special education
and related services to children with disabilities aged 3 through 5
years, and to two-year-old children with disabilities receiving
services consistent with Sec. 301.1 who are residing in the area served
by those LEAs and ESAs.
(Authority 20 U.S.C. 1414(d), 1419(g)(2))
PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH
DISABILITIES
3. The authority citation for part 303 is revised to read as
follows:
Authority: 20 U.S.C. 1431-1445, unless otherwise noted.
4. Section 303.18 is revised to read as follows:
Sec. 303.18 Parent.
(a) As used in this part, ``parent'' means a parent, a guardian, a
person acting as a parent of a child, or a surrogate parent who has
been appointed in accordance with Sec. 303.406. The term does not
include the State if the child is a ward of the State.
(b) State law may provide that a foster parent qualifies as a
parent under this part if--
(1) The natural parents' authority to make early intervention or
educational decisions on the child's behalf has been relinquished under
State law;
(2) The foster parent has an ongoing, long-term parental
relationship with the child;
(3) The foster parent is willing to participate in making early
intervention or educational decisions on the child's behalf; and
(4) The foster parent has no interest that would conflict with the
interests of the child.
(Authority: 20 U.S.C. 1436)
Note: The term ``parent'' has been defined to include persons
acting in the place of a parent, such as a grandparent or stepparent
with whom a child lives, as well as persons who are legally
responsible for the child's welfare, and, at the discretion of the
State, a foster parent meeting the requirements of paragraph (b) of
this section. The definition in this section is identical to the
definition used in the regulations under Part B of the Act (34 CFR
300.19).
5. Section 303.403 is amended by removing the word ``and'' at the
end of paragraph (b)(2); removing the period at the end of paragraph
(b)(3) and adding, in its place, ``; and''; by adding a new paragraph
(b)(4); and by revising the citation of authority to read as follows:
Sec. 303.403 Prior notice; native language.
* * * * *
(b) Content of notice. The notice must be in sufficient detail to
inform the parents about--
* * * * *
(4) The State complaint procedures under Secs. 303.510-512,
including a description of how to file a complaint and the timelines
under those procedures.
(Authority: 20 U.S.C. 1439(a)(6) and (7))
6. Section 303.510 is amended by revising paragraph (b);
redesignating the existing note as Note 1; adding a new Note 2; and
revising the citation of authority to read as follows:
Sec. 303.510 Adopting complaint procedures.
* * * * *
(b) Widely disseminating to parents and other interested
individuals, including parent training centers, protection and advocacy
agencies, independent living centers, and other appropriate entities,
the State's procedures under Secs. 303.510 through 303.512.
(Authority: 20 U.S.C. 1435(a)(10))
Note 1: Because of the interagency nature of Part C of the Act,
complaints received under these regulations could concern violations
by (1) any public agency in the State that receives funds under this
part (e.g., the lead agency and the Council), (2) other public
agencies that are involved in the State's early intervention
program, or (3) private service providers that receive Part C funds
on a contract basis from a public agency to carry out a given
function or provide a given service required under this part. These
complaint procedures are in addition to any other rights under State
or Federal law. The lead agency must provide for the filing of a
complaint with the lead agency and, at the lead agency's discretion,
with a public agency subject to a right of appeal to the lead
agency.
Note 2: In resolving a complaint alleging failure to provide
services in the IFSP, a lead
[[Page 55123]]
agency, pursuant to its general supervisory authority under this
part, may award compensatory services as a remedy.
7. Section 303.511 is amended by adding a new paragraph (c) and a
note; and revising the citation of authority to read as follows:
Sec. 303.511 An organization or individual may file a complaint.
* * * * *
(c) The alleged violation must have occurred not more than one year
prior to the date that the complaint is received by the public agency
unless a longer period is reasonable because the violation is
continuing, or the complainant is requesting compensatory services for
a violation that occurred not more than three years prior to the date
the complaint is received by the public agency.
(Authority: 20 U.S.C. 1435(a)(10))
Note: The lead agency must resolve any complaint that meets the
requirements of this section, even if the complaint is filed by an
organization or individual from another State.
8. Section 303.512 is revised by removing paragraph (d), revising
the citation of authority, and adding two notes following the revised
citation of authority to read as follows:
Sec. 303.512 Minimum State complaint procedures.
* * * * *
(Authority: 20 U.S.C. 1435(a)(10))
Note 1: If a written complaint is received that is also the
subject of a due process hearing under Sec. 303.420, or contains
multiple issues, of which one or more may be part of that hearing,
the State must set aside any part of the complaint that is being
addressed in the due process hearing until the conclusion of the
hearing. However, any issue in the complaint that is not a part of
the due process action must be resolved within the 60-calendar-day
timeline using the complaint procedures described in this section.
Note 2: If an issue is raised in a complaint filed under this
section that has previously been decided in a due process hearing
involving the same parties, then the hearing decision is binding,
and the lead agency would inform the complainant to that effect. A
complaint alleging a public agency's failure to implement a due
process decision, however, would have to be resolved by the lead
agency.
9. Section 303.520 is amended by adding new paragraphs (d) and (e)
and three notes; and revising the citation of authority to read as
follows:
Sec. 303.520 Policies related to payment for services.
* * * * *
(d) Infants and toddlers with disabilities who are covered by
private insurance.
(1) A lead agency may not require parents of infants and toddlers
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 infant or toddler 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.
(e) 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. 1435(a)(10); 1432(4)(B))
Note 1: Under paragraph (d), States are prohibited from
requiring that families use private insurance as a condition of
receiving services under this part, if that use results in financial
cost to the family. 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, if that
insurance use results in financial costs to the family.
Note 2: If the State cannot get parental consent to use private
insurance, the State may use funds under this part to pay for the
service. In addition, in order to avoid financial cost to parents
who would otherwise consent to use of private insurance, the lead
agency may use funds under this part to pay the costs of accessing
the insurance; e.g., deductible or co-pay amounts.
Note 3: Paragraph (e) clarifies that, if a State receives funds
from public or private insurance for services under this part, the
State is not required to return those funds to the Department or to
dedicate those funds for use in this program, although a State
retains the option of using those funds in this program. If a State
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 nonsupplanting provision in
Sec. 303.124. This is because the expenditure that is reimbursed is
considered to be an expenditure of funds from the source that
provides the reimbursement.
Appendix C to Part 300--Notice of Interpretation
Authority: Individuals with Disabilities Education Act (20
U.S.C. 1401, et seq.), unless otherwise noted.
Interpretation of Individualized Education Program (IEP) Requirements
of the Individuals with Disabilities Education Act (IDEA)
The IEP requirements of the IDEA emphasize the importance of
each child with a disability's involvement and progress in the
general curriculum; of the involvement of parents and students,
together with regular and special education personnel in making
individualized decisions to support each child's educational
success; and of preparing students with disabilities for employment
and other post-school experiences. This Appendix provides guidance
regarding Part B IEP requirements, especially as they relate to
these core concepts, as well as other issues regarding the
development and content of IEPs.
I. Involvement and Progress in the General Curriculum
In enacting the IDEA Amendments of 1997, the Congress found
that:
* * * research, demonstration, and practice [over the past 20
years] in special education and related disciplines have
demonstrated that an effective educational system now and in the
future must--(A) maintain high academic standards and clear
performance goals for children with disabilities, consistent with
the standards and expectations for all students in the educational
system, and provide for appropriate and effective strategies and
methods to ensure that students who are children with disabilities
have maximum opportunities to achieve those standards and goals.
[Sec. 651(a)(6)(A) of the Act.]
Accordingly, the evaluation and IEP provisions of Part B place
great emphasis on the involvement and progress of children with
disabilities in the general curriculum. While the Act and
regulations recognize that IEP teams must make individualized
decisions about the special education and related services, and
supplementary aids and services, provided to each child with a
disability, they are driven by IDEA's strong preference that, to the
maximum extent appropriate, children with disabilities be educated
in regular classes with their nondisabled peers with appropriate
supplementary aids and services.
1. What are the major Part B IEP requirements that govern the
involvement and progress of children with disabilities in the
general curriculum?
Present Levels of Educational Performance
Section 300.347(a)(1) requires that the IEP for each child with
a disability include ``* * * a statement of the child's present
levels of educational performance, including--(i) How the child's
disability affects the child's involvement and progress in the
general curriculum; or (ii) for preschool children, as appropriate,
how the disability affects the child's participation in appropriate
activities * * *'' (Italics added.) (``Appropriate activities'' in
this context refers to age-relevant developmental abilities or
milestones that typically developing children of the same age would
be performing or would have achieved.)
[[Page 55124]]
Measurable Annual Goals, Including Benchmarks or Short-term
Objectives
Measurable annual goals, including benchmarks or short-term
objectives, are instrumental to the strategic planning process used
to develop and implement the IEP for each child with a disability.
Once the IEP team has developed measurable annual goals for a child,
the team can (1) develop strategies that will be most effective in
realizing those goals and (2) develop measurable, intermediate steps
(short-term objectives) or major milestones (benchmarks) that will
enable families, students, and educators to monitor progress during
the year, and, if appropriate, to revise the IEP consistent with the
child's instructional needs.
Part B's strong emphasis on linking the educational program of
children with disabilities to the general curriculum is reflected in
Sec. 300.347(a)(2), which requires that the IEP include:
a statement of measurable annual goals, including benchmarks or
short-term objectives, related to--(i) meeting the child's needs
that result from the child's disability to enable the child to be
involved in and progress in the general curriculum; and (ii) meeting
each of the child's other educational needs that result from the
child's disability. [Italics added.]
Special Education and Related Services and Supplementary Aids and
Services
The requirements regarding services provided to address a
child's present levels of educational performance and to make
progress toward the identified goals reinforce the emphasis on
progress in the general curriculum, as well as maximizing the extent
to which children with disabilities are educated with nondisabled
children. Section 300.347(a)(3) requires that the IEP include:
a statement of the special education and related services and
supplementary aids and services to be provided to the child, or on
behalf of the child, and a statement of the program modifications or
supports for school personnel that will be provided for the child--
(i) To advance appropriately toward attaining the annual goals; (ii)
to be involved and progress in the general curriculum * * * and to
participate in extracurricular and other nonacademic activities; and
(iii) to be educated and participate with other children with
disabilities and nondisabled children in [extracurricular and other
nonacademic activities] * * * [Italics added.]
Extent to Which Child Will Participate With Nondisabled Children
Section 300.347(a)(4) requires that each child's IEP include ``*
* * an explanation of the extent, if any, to which the child will
not participate with nondisabled children in the regular class and
in [extracurricular and other nonacademic] activities] * * *'' This
is consistent with the least restrictive environment provisions at
Secs. 300.550-300.553, which include requirements that:
(1) Each child with a disability be educated with nondisabled
children to the maximum extent appropriate (Sec. 300.550(b)(1));
(2) Each child with a disability be removed from the regular
educational environment only when the nature or severity of the
child's disability is such that education in regular classes with
the use of supplementary aids and services cannot be achieved
satisfactorily (Sec. 300.550(b)(1)); and
(3) To the maximum extent appropriate to the child's needs, each
child with a disability participate with nondisabled children in
nonacademic and extracurricular services and activities
(Sec. 300.553).
Participation in State or Districtwide Assessments of Student
Achievement
Consistent with Sec. 300.138(a), which sets forth a presumption
that children with disabilities will be included in general State-
and district-wide assessment programs, and provided with appropriate
accommodations if necessary, Sec. 300.347(a)(5) requires that the
IEP for each student with a disability include: (i) A statement of
any individual modifications in the administration of State or
district-wide assessments of student achievement that are needed in
order for the child to participate in the assessment; and (ii) if
the IEP Team determines that the child will not participate in a
particular State or district-wide assessment of student achievement
(or part of an assessment), a statement of--(A) Why that assessment
is not appropriate for the child; and (B) How the child will be
assessed.
Regular Education Teacher Participation in the Development, Review,
and Revision of IEPs
Very often, regular education teachers play a central role in
the education of children with disabilities (House Report No. 105-
95, p. 103 (1997)) and have important expertise regarding the
general curriculum and the general education environment. Further,
especially with the emphasis on involvement and progress in the
general curriculum added by the IDEA Amendments of 1997, regular
education teachers have an increasingly critical role in
implementing, together with special education and related services
personnel, the program of FAPE for most children with disabilities,
as described in their IEPs. Accordingly, the IDEA Amendments of 1997
added a requirement that each child's IEP team must include at least
one regular education teacher of the child, if the child is, or may
be, participating in the regular education environment (see
Sec. 300.344(a)(2)). (See also Secs. 300.346(d) on the role of a
regular education teacher in the development, review and revision of
IEPs.)
2. Must a child's IEP address his or her involvement in the
general curriculum, regardless of the nature and severity of the
child's disability and the setting in which the child is educated?
Yes. The IEP for all children with disabilities must address how
the child will be involved and progress in the general curriculum,
as described. The Part B regulations recognize that some children
with disabilities will have some educational needs that result from
their disabilities that cannot be fully met by involvement and
progress in the general curriculum; accordingly, Sec. 300.347(a)(2)
requires that each child's IEP include:
a statement of measurable annual goals, including benchmarks or
short-term objectives, related to--(i) Meeting the child's needs
that result from the child's disability to enable the child to be
involved in and progress in the general curriculum; and (ii) meeting
each of the child's other educational needs that result from the
child's disability. [Italics added.]
Thus, the IEP team for each child with a disability must make an
individualized determination regarding how the child will
participate in the general curriculum, and what, if any, educational
needs that will not be met through involvement in the general
curriculum should be addressed in the IEP. This includes children
who are educated in separate classrooms or schools.
3. What must public agencies do to meet the requirements at
Secs. 300.344(a)(2) and 300.346(d), regarding the participation of a
``regular education teacher'' in the development and review of the
IEP, for children aged 3 through 5 who are receiving preschool
special education services?
If a public agency provides ``regular education'' preschool
services to non-disabled children, then the requirements of
Secs. 300.344(a)(2) and 300.346(d) apply as they do in the case of
older children with disabilities. If a public agency makes
kindergarten available to nondisabled children, then a regular
education kindergarten teacher could appropriately be the regular
education teacher who would participate in an IEP meeting for a
kindergarten-aged child who is, or may be, participating in the
regular education environment. If a public agency does not provide
regular preschool education services to nondisabled children, the
agency would designate an individual who, under State standards, is
qualified to serve nondisabled children of the same age.
4. Must the measurable annual goals in a child's IEP address all
areas of the general curriculum, or only those areas in which the
child's involvement and progress are affected by the child's
disability?
Section 300.347(a)(2) requires that each child's IEP include a
``.* * * statement of measurable annual goals, including
benchmarks or short-term objectives, related to--(i) Meeting the
child's needs that result from the child's disability to enable the
child to be involved in and progress in the general curriculum; and
(ii) meeting each of the child's other educational needs that result
from the child's disability* * * *'' (Italics added). Thus, a
public agency is not required to include in an IEP annuals goals
that relate to areas of the general curriculum in which the child's
disability does not affect the child's ability to be involved in and
progress in the general curriculum.
II. Involvement of Parents and Students
One of the key purposes of the IDEA Amendments of 1997 is to
``Expand and promote opportunities for parents, special education,
related services, regular education, and early intervention service
providers, and other personnel to work in new partnerships at both
the State and local levels (House Report 105-95, p. 82 (1997)).
Indeed, the Committee viewed the Amendments as an opportunity to
``[strengthen] the role of parents.'' (House
[[Page 55125]]
Report 105-95, p-82 (1997).) Accordingly, the Amendments require
that parents have ``an opportunity * * * to participate in meetings
with respect to the identification, evaluation, and educational
placement of the child, and the provision of FAPE to the child''
(Sec. 300.501). Parents must now be part of the teams that determine
what additional data are needed as part of an evaluation of their
child (Sec. 300.533(a)(1)); their child's eligibility
(Sec. 300.534(a)(1)); and the educational placement of their child
(Sec. 300.501(c)). Parents' concerns, and information that they
provide regarding their children, must be considered in developing
and reviewing their children's IEPs (Secs. 300.343(c)(iii) and
300.346 (a)(1)(i) and (b)).
As explained, the requirements for keeping parents informed
about the educational progress of their children, particularly as it
relates to their progress in the general curriculum, have been
strengthened (Sec. 300.347(a)(7)).
The IDEA Amendments of 1997 and the 1990 amendments have both
included provisions which greatly strengthen involvement of students
with disabilities in decisions regarding their own futures, to
facilitate movement from school to post-school activities. The IDEA
Amendments of 1990 included provisions regarding transition
services, which require: (a) A coordinated set of activities within
an outcome-oriented process to facilitate movement from school to
post-school activities; (b) that the transition services provided to
each student be ``* * * based on the individual student's needs,
taking into account the student's preferences and interests''
(Sec. 300.27(b)), (c) that the public agency invite a student with a
disability to any IEP meetings for which a purpose is the
consideration of transition services (Sec. 300.344(b)(1)), and that,
if ``* * * the student does not attend, the public agency * * * take
other steps to ensure that the student's preferences and interests
are considered (Sec. 300.344(b)(2)). States may now transfer most
parent rights under Part B to the student when the student reaches
the age of majority under State law (Sec. 300.517), and beginning at
least one year before a student reaches the age of majority under
State law, the IEP must include a statement that the student has
been informed of any rights that will transfer to him or her upon
reaching the age of majority (Sec. 300.347(c)).
5. What is the role of the parents, including surrogate parents,
in decisions regarding the educational program of their children?
The parents of a child with a disability are expected to be
equal participants along with school personnel, in developing,
reviewing, and revising the IEP for their child. This is an active
role in which the parents (1) provide critical information about
their child's abilities, interests, performance, and history, (2)
participate in the discussion about the child's need for special
education and related services and supplementary aids and services,
and (2) join with the other participants in deciding how the child
will be involved and progress in the general curriculum and
participate in State and district-wide assessments, and what
services the agency will provide to the child and in what setting.
As noted, Part B specifically provides that parents have the
right to:
(a) Participate in meetings about their child's identification,
evaluation, educational program (including IEP meetings), and
educational placement (Secs. 300.344(a)(1) and 300.517);
(b) Be part of the teams that determine what additional data are
needed as part of an evaluation of their child (Sec. 300.533(a)(1)),
and determine their child's eligibility (Sec. 300.534(a)(1)) and
educational placement (Sec. 300.501(c));
(c) Have their concerns and information that they provide
regarding their child considered in developing and reviewing their
child's IEPs (Secs. 300.343(c)(iii) and 300.346 (a)(1)(i) and (b));
and
(d) Be regularly informed (by such means as periodic report
cards), as specified in their child's IEP, at least as often as
parents are informed of their nondisabled children's progress, of
their child's progress toward the annual goals in the IEP and the
extent to which that progress is sufficient to enable the child to
achieve the goals by the end of the year (Sec. 300.347(a)(7)).
A surrogate parent is a person appointed to represent the
interests of a child with a disability in the educational decision-
making process when no parent (as defined at Sec. 300.19) is known,
the agency, after reasonable efforts, cannot locate the child's
parents, or the child is a ward of the State under the laws of the
State. A surrogate parent has all of the rights and responsibilities
of a parent under Part B. Thus, the surrogate parent is entitled to
(1) participate in the child's IEP meeting, (2) examine the child's
education records, and (3) receive notice, grant consent, and invoke
due process to resolve differences. (See Sec. 300.515, Surrogate
parents.)
6. What are the Part B requirements regarding the participation
of a child or youth with a disability in an IEP meeting?
If a purpose of an IEP meeting will be the consideration of
needed transition services, the public agency must invite the
student and, as part of notification to the parent of the IEP
meeting, inform the parents that the agency will invite the student
to the IEP meeting. If the student does not attend, the public
agency must take other steps to ensure that the student's
preferences and interests are considered. Section Sec. 300.517
permits States to transfer procedural rights under Part B from the
parents to students with disabilities who reach the age of majority
under State law, but who have not been determined to be incompetent
under State law. If procedural rights under Part B are, consistent
with State law and Sec. 300.517, transferred from the parents to the
student, the public agency would be required to ensure that the
student has the right to participate in IEP meetings set forth for
parents in Sec. 300.345. However, at the discretion of the student
or the public agency, the parents also could attend IEP meetings as
``individuals who have knowledge or special expertise regarding the
child * * *'' (see Sec. 300.344(a)(6)).
In other circumstances, the child may attend ``if appropriate.''
(Sec. 300.344(a)(7)) Generally, a child with a disability should
attend the IEP meeting if the parent decides that it is appropriate
for the child to do so. If possible, the agency and parents should
discuss the appropriateness of the child's participation before a
decision is made, in order to help the parents determine whether or
not the child's attendance will be (1) helpful in developing the IEP
or (2) directly beneficial to the child or both. The agency should
inform the parents before each IEP meeting--as part of notification
under Sec. 300.345(a)(1)--that they may invite their child to
participate.
7. Must the public agency let the parents know who will be at
the IEP meeting?
Yes. In notifying parents about the meeting, the agency ``must
indicate the purpose, time, and location of the meeting, and who
will be in attendance.'' (Sec. 300.345(b), italics added.) In
addition, if a purpose of the IEP meeting is the consideration of
transition services for a student, the notice must also inform the
parents that the agency is inviting the student, and identify any
other agency that will be invited to send a representative. The
public agency should also inform the parents of their right to
invite to the meeting ``other individuals who have knowledge or
special expertise regarding the child, including related services
personnel as appropriate * * *'' (Sec. 300.344(a)(6)). It is also
appropriate for the agency to ask the parents what if any
individuals they will to bring to the meeting.
8. Do parents have the right to a copy of their child's IEP?
Yes. Section 300.345(f) states that the public agency shall give
the parent, on request, a copy of the IEP. It is recommended that
public agencies provide parents with a copy of the IEP within a
reasonable time following the IEP meeting, or inform them at the IEP
meeting of their right to request and receive a copy.
9. What is a public agency's responsibility if it is not
possible to reach consensus on what services should be included in a
child's IEP?
The IEP meeting serves as a communication vehicle between
parents and school personnel, and enables them, as equal
participants, to make joint, informed decisions regarding the
child's needs and appropriate goals, the extent to which the child
will be involved in the general curriculum and participate in the
regular education environment and State and districtwide
assessments, and the services needed to support that involvement and
participation and to achieve agreed-upon goals. Parents are to be
equal partners with school personnel in making these decisions, and
the IEP team must consider parents' concerns and information that
they provide regarding their child in developing and reviewing IEPs
(Secs. 300.343(c)(iii) and 300.346(a)(1) and (b)).
The IEP team should work toward consensus, but the public agency
has ultimate responsibility to ensure that the IEP includes the
services that the child needs in order to receive FAPE. If it is not
possible to reach consensus in an IEP meeting, the public agency
must provide the parents with
[[Continued on page 55126]]