[Federal Register: October 22, 1997 (Proposed Rules)]
[Page 55076-55126]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc97-22]
[[pp. 55076-55126]] Assistance to States for the Education of Children With
Disabilities, Preschool Grants for Children With Disabilities, and
Early Intervention Program for Infants and Toddlers With Disabilities
[[Continued from page 55075]]
[[Page 55076]]
(b) Required information. The information described in paragraph
(a) of this section must include--
(1) A copy of each State statute, policy, and standard that
regulates the manner in which IEPs are developed, implemented,
reviewed, and revised; and
(2) The procedures that the SEA follows in monitoring and
evaluating those programs.
(Authority: 20 U.S.C. 1412(a)(4))
Sec. 300.129 Procedural safeguards.
(a) The State must have on file with the Secretary procedural
safeguards that ensure that the requirements of Secs. 300.500-300.529
are met.
(b) Children with disabilities and their parents must be afforded
the procedural safeguards identified in paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(6)(A))
Sec. 300.130 Least restrictive environment.
(a) General. The State must have on file with the Secretary
procedures that ensure that the requirements of Secs. 300.550-300.556
are met.
(b) Additional requirement.
(1) If the State uses a funding mechanism by which the State
distributes State funds on the basis of the type of setting in which a
child is served, the funding mechanism may not result in placements
that violate the requirements of paragraph (a) of this section.
(2) If the State does not have policies and procedures to ensure
compliance with paragraph (b)(1) of this section, the State must
provide the Secretary an assurance that the State will revise the
funding mechanism as soon as feasible to ensure that the mechanism does
not result in placements that violate that paragraph.
(Authority: 20 U.S.C. 1412(a)(5))
Note: With respect to the LRE requirement of this section, and
the continuum of alternative educational placements described in
Sec. 300.551, the House Committee Report on Pub. L. 105-17 states:
The committee supports the longstanding policy of a continuum of
alternative placements designed to meet the unique needs of each
child with a disability. Placement options available include
instruction in regular classes, special classes, special schools,
home instruction, and instruction in hospitals and institutions. For
disabled children placed in regular classes, supplementary aids and
services and resource room services or itinerant instruction must
also be offered as needed. (H. Rep. 105-95, p. 91 (1997))
Sec. 300.131 [Reserved]
Sec. 300.132 Transition of children from Part C to preschool programs.
The State must have on file with the Secretary policies and
procedures to ensure that--
(a) Children participating in early-intervention programs assisted
under Part C of the Act, and who will participate in preschool programs
assisted under Part B of the Act, experience a smooth and effective
transition to those preschool programs in a manner consistent with
section 637(a)(8) of the Act;
(b) By the third birthday of a child described in paragraph (a) of
this section, an IEP or, if consistent with Sec. 300.342(c) and section
636(d) of the Act, an IFSP, has been developed and must be implemented
for the child; and
(c) Each LEA will participate in transition planning conferences
arranged by the designated lead agency under section 637(a)(8) of the
Act.
(Authority: 20 U.S.C. 1412(a)(9))
Sec. 300.133 Private schools.
The State must have on file with the Secretary policies and
procedures that ensure that the requirements of Secs. 300.400-300.403
and Secs. 300.450-300.462 are met.
(Authority: 20 U.S.C. 1413(a)(4))
Sec. 300.134 [Reserved]
Sec. 300.135 Comprehensive system of personnel development.
(a) General. The State must have in effect, consistent with the
purposes of this part and with section 635(a)(8) of the Act, a
comprehensive system of personnel development that --
(1) Is designed to ensure an adequate supply of qualified special
education, regular education, and related services personnel; and
(2) Meets the requirements for a State improvement plan relating to
personnel development in section 653 (b)(2)(B) and (c)(3)(D) of the
Act.
(b) Information. The State must have on file with the Secretary
information that shows that the requirements of paragraph (a) of this
section are met.
(Authority: 20 U.S.C. 1412(a)(14))
Note: With respect to meeting the CSPD requirement of this
section, the House Committee Report on Pub. L. 105-17 states:
Section 612, as [in] current law, requires that a State have in
effect a Comprehensive System of Personnel Development (CSPD) that
is designed to ensure an adequate supply of qualified personnel,
including the establishment of procedures for acquiring and
disseminating significant knowledge derived from educational
research and for adopting, where appropriate, promising practices,
materials, and technology. (H. Rep. 105-95, p. 93 (1997))
States will be able to use the information provided to meet the
requirement in Sec. 300.135(a)(2) as a part of their State
Improvement Plan under section 653 of the Act, if they choose to do
so.
Sec. 300.136 Personnel standards.
(a) As used in this part --
(1) Appropriate professional requirements in the State means entry
level requirements that--
(i) Are based on the highest requirements in the State applicable
to the profession or discipline in which a person is providing special
education or related services; and
(ii) Establish suitable qualifications for personnel providing
special education and related services under Part B of the Act to
children and youth with disabilities who are served by State, local,
and private agencies (see Sec. 300.2);
(2) Highest requirements in the State applicable to a specific
profession or discipline means the highest entry-level academic degree
needed for any State-approved or -recognized certification, licensing,
registration, or other comparable requirements that apply to that
profession or discipline;
(3) Profession or discipline means a specific occupational category
that --
(i) Provides special education and related services to children
with disabilities under Part B of the Act;
(ii) Has been established or designated by the State; and
(iii) Has a required scope of responsibility and degree of
supervision; and
(4) State-approved or -recognized certification, licensing,
registration, or other comparable requirements means the requirements
that a State legislature either has enacted or has authorized a State
agency to promulgate through rules to establish the entry-level
standards for employment in a specific profession or discipline in that
State.
(b) (1) The State must have on file with the Secretary policies and
procedures relating to the establishment and maintenance of standards
to ensure that personnel necessary to carry out the purposes of this
part are appropriately and adequately prepared and trained.
(2) The policies and procedures required in paragraph (b)(1) of
this section must provide for the establishment and maintenance of
standards that are consistent with any State-approved or -recognized
certification, licensing, registration, or other comparable
requirements that apply to the profession or discipline in which a
person is providing special education or related services.
[[Page 55077]]
(c) To the extent that a State's standards for a profession or
discipline, including standards for temporary or emergency
certification, are not based on the highest requirements in the State
applicable to a specific profession or discipline, the State must
provide the steps the State is taking and the procedures for notifying
public agencies and personnel of those steps and the timelines it has
established for the retraining or hiring of personnel to meet
appropriate professional requirements in the State.
(d) (1) In meeting the requirements in paragraphs (b) and (c) of
this section, a determination must be made about the status of
personnel standards in the State. That determination must be based on
current information that accurately describes, for each profession or
discipline in which personnel are providing special education or
related services, whether the applicable standards are consistent with
the highest requirements in the State for that profession or
discipline.
(2) The information required in paragraph (d)(1) of this section
must be on file in the SEA and available to the public.
(e) In identifying the highest requirements in the State for
purposes of this section, the requirements of all State statutes and
the rules of all State agencies applicable to serving children and
youth with disabilities must be considered.
(f) A State may allow paraprofessionals and assistants who are
appropriately trained and supervised, in accordance with State law,
regulations, or written policy, in meeting the requirements of this
part to be used to assist in the provision of special education and
related services to children with disabilities under Part B of the Act.
(g) In implementing this section, a State may adopt a policy that
includes a requirement that LEAs in the State make an ongoing good
faith effort to recruit and hire appropriately and adequately trained
personnel to provide special education and related services to children
with disabilities, including, in a geographic area of the State where
there is a shortage of personnel that meet these qualifications, the
most qualified individuals available who are making satisfactory
progress toward completing applicable course work necessary to meet the
standards described in paragraph (b)(2) of this section, consistent
with State law and the steps described in paragraph (c) of this
section, within three years.
(Authority: 20 U.S.C. 1412(a)(15))
Note 1: The regulations require that the State use its own
existing highest requirements to determine the standards appropriate
to personnel who provide special education and related services
under Part B of the Act. The regulations do not require States to
set any specified training standard, such as a master's degree, for
employment of personnel who provide services under Part B of the
Act. In some instances, States are required under paragraph (c) of
this section to show that they are taking steps to retrain or to
hire personnel to meet the standards adopted by the SEA that are
based on requirements for practice in a specific profession or
discipline that were established by other State agencies. States in
this position need not, however, require personnel providing
services under Part B of the Act to apply for and obtain the
license, registration, or other comparable credential required by
other agencies of individuals in that profession or discipline. The
regulations permit each State to determine the specific occupational
categories required to provide special education and related
services and to revise or expand these categories as needed. The
professions or disciplines defined by the State need not be limited
to traditional occupational categories.
Note 2: A State may exercise the option under paragraph (g) of
this section even though the State has reached its established date,
under paragraph (c) of this section, for training or hiring all
personnel in a specific profession or discipline to meet appropriate
professional requirements in the State. As a practical matter, it is
essential that a State have a mechanism for serving students if
instructional needs exceed available personnel who meet appropriate
professional requirements in the State for a specific profession or
discipline. A State that continues to have shortages of personnel
meeting appropriate professional requirements in the State must
address those shortages in its comprehensive system of personnel
development under Sec. 300.135.
Note 3: If a State has established only one entry-level academic
degree for employment of personnel in a specific profession,
modification of that standard as necessary to ensure the provision
of FAPE to all children in the State would not violate the
provisions of Sec. 300.136(b) and (c).
Sec. 300.137 Performance goals and indicators.
The State must have on file with the Secretary information to
demonstrate that the State--
(a) Has established goals for the performance of children with
disabilities in the State that--
(1) Will promote the purposes of this part, as stated in
Sec. 300.1; and
(2) Are consistent, to the maximum extent appropriate, with other
goals and standards for all children established by the State;
(b) Has established performance indicators that the State will use
to assess progress toward achieving those goals that, at a minimum,
address the performance of children with disabilities on assessments,
drop-out rates, and graduation rates;
(c) Every two years, will report to the Secretary and the public on
the progress of the State, and of children with disabilities in the
State, toward meeting the goals established under paragraph (a) of this
section; and
(d) Based on its assessment of that progress, will revise its State
improvement plan under subpart 1 of Part D of the Act as may be needed
to improve its performance, if the State receives assistance under that
subpart.
(Authority: 20 U.S.C. 1412(a)(16))
Sec. 300.138 Participation in assessments.
The State must have on file with the Secretary information to
demonstrate that--
(a) Children with disabilities are included in general State and
district-wide assessment programs, with appropriate accommodations if
necessary;
(b) As appropriate, the State or LEA--
(1) Develops guidelines for the participation of children with
disabilities in alternate assessments for those children who cannot
participate in State and district-wide assessment programs;
(2) Develops alternate assessments in accordance with paragraph
(b)(1) of this section; and
(3) Beginning not later than, July 1, 2000, conducts the alternate
assessments described in paragraph (b)(2) of this section.
(Authority: 20 U.S.C. 1412(a)(17)(A))
Note: With respect to paragraph (b) of this section, it is
assumed that only a small percentage of children with disabilities
will need alternative assessments.
Sec. 300.139 Reports relating to assessments.
(a) General. In implementing the requirements of Sec. 300.138, the
SEA shall make available to the public, and report to the public with
the same frequency and in the same detail as it reports on the
assessment of nondisabled children, the following information:
(1) The number of children with disabilities participating--
(i) In regular assessments; and
(ii) The number of those children participating in alternate
assessments.
(2) The performance results of the children described in paragraph
(a)(1) of this section--
(i) On regular assessments (beginning not later than July 1, 1998);
and
(ii) On alternate assessments (not later than July 1, 2000), if
doing so would be statistically sound and would not result in the
disclosure of performance results identifiable to individual children.
[[Page 55078]]
(b) Combined reports. Reports to the public under paragraph (a) of
this section must include--
(1) Aggregated data that include the performance of children with
disabilities together with all other children; and
(2) Disaggregated data on the performance of children with
disabilities.
(c) Disaggregation of data. Data relating to the performance of
children described under paragraph (a)(2) of this section must be
disaggregated--
(1) For assessments conducted after July 1, 1998; and
(2) For assessments conducted before July 1, 1998, if the State is
required to disaggregate the data prior to July 1, 1998.
(Authority: 20 U.S.C. 612(a)(17)(B))
Note: Paragraph (b) of this section requires a public agency to
report aggregated data that include children with disabilities.
However, a public agency is not precluded from also analyzing and
reporting data in other ways (such as, maintaining a trendline that
was established prior to including children with disabilities in
those assessments).
Sec. 300.140 [Reserved]
Sec. 300.141 SEA responsibility for general supervision.
(a) The State must have on file with the Secretary information that
shows that the requirements of Sec. 300.600 are met.
(b) The information described under paragraph (a) of this section
must include a copy of each State statute, State regulation, signed
agreement between respective agency officials, and any other documents
that show compliance with that paragraph.
(Authority: 20 U.S.C. 1412(a)(11))
Sec. 300.142 Methods of ensuring services.
(a) Establishing responsibility for services. The Chief Executive
Officer or designee of that officer shall ensure that an interagency
agreement or other mechanism for interagency coordination is in effect
between each noneducational public agency described in paragraph (b) of
this section and the SEA, in order to ensure that all services
described in paragraph (b)(1) of this section that are needed to ensure
FAPE is provided, including the provision of these services during the
pendency of any dispute under paragraph (a)(3) of this section. The
agreement or mechanism must include the following:
(1) Agency financial responsibility. An identification of, or a
method for defining, the financial responsibility of each agency for
providing services described in paragraph (b)(1) of this section to
ensure FAPE to children with disabilities. The financial responsibility
of each public agency described in paragraph (b) of this section,
including the State Medicaid agency and other public insurers of
children with disabilities, must precede the financial responsibility
of the LEA (or the State agency responsible for developing the child's
IEP).
(2) Conditions and terms of reimbursement. The conditions, terms,
and procedures under which an LEA must be reimbursed by other agencies.
(3) Interagency disputes. Procedures for resolving interagency
disputes (including procedures under which LEAs may initiate
proceedings) under the agreement or other mechanism to secure
reimbursement from other agencies or otherwise implement the provisions
of the agreement or mechanism.
(4) Coordination of services procedures. Policies and procedures
for agencies to determine and identify the interagency coordination
responsibilities of each agency to promote the coordination and timely
and appropriate delivery of services described in paragraph (b)(1) of
this section.
(b) Obligation of noneducational public agencies.
(1) General. If any public agency other than an educational agency
is otherwise obligated under Federal or State law, or assigned
responsibility under State policy or pursuant to paragraph (a) of this
section, to provide or pay for any services that are also considered
special education or related services (such as, but not limited to,
services described in Sec. 300.5 relating to assistive technology
devices, Sec. 300.6 relating to assistive technology services,
Sec. 300.22 relating to related services, Sec. 300.26 relating to
supplementary aids and services, and Sec. 300.27 relating to transition
services) that are necessary for ensuring FAPE to children with
disabilities within the State, the public agency shall fulfill that
obligation or responsibility, either directly or through contract or
other arrangement.
(2) Reimbursement for services by noneducational public agency. If
a public agency other than an educational agency fails to provide or
pay for the special education and related services described in
paragraph (b)(1) of this section, the LEA (or State agency responsible
for developing the child's IEP) shall provide or pay for these services
to the child. The LEA or State agency may then claim reimbursement for
the services from the noneducational public agency that failed to
provide or pay for these services and that agency shall reimburse the
LEA or State agency in accordance with the terms of the interagency
agreement or other mechanism described in paragraph (a)(1) of this
section, and the agreement described in paragraph (a)(2) of this
section.
(c) Special rule. The requirements of paragraph (a) of this section
may be met through--
(1) State statute or regulation;
(2) Signed agreements between respective agency officials that
clearly identify the responsibilities of each agency relating to the
provision of services; or
(3) Other appropriate written methods as determined by the Chief
Executive Officer of the State or designee of that officer.
(d) Information. The State must have on file with the Secretary
information to demonstrate that the requirements of paragraphs (a)
through (c) of this section are met.
(e) Children with disabilities who are covered by private
insurance.
(1) A public agency may not require parents of children with
disabilities, if they would incur a financial cost, to use private
insurance proceeds to pay for the services that must be provided to an
eligible child under this part.
(2) For the purposes of this section, the term financial costs
includes --
(i) An out-of-pocket expense such as the payment of a deductible or
co-pay amount incurred in filing a claim, but not including incidental
costs such as the time needed to file an insurance claim or the postage
needed to mail the claim;
(ii) A decrease in available lifetime coverage or any other benefit
under an insurance policy; and
(iii) An increase in premiums or the discontinuation of the policy.
(f) Proceeds from public or private insurance. Proceeds from public
or private insurance may not be treated as program income for purposes
of 34 CFR 80.25.
(Authority: 20 U.S.C. 1412(a)(12) (A), (B), and (C); 1401(8))
Note 1: The House Committee Report on Pub. L. 105-17 related to
methods of ensuring services states:
A provision is added to the Act to strengthen the obligation to
ensure that all services necessary to ensure a free appropriate
public education are provided through the coordination of public
educational and non-educational programs. This subsection is meant
to reinforce two important principles: (1) That the State agency or
LEA responsible for developing a child's IEP can look to
noneducational agencies such as Medicaid to provide those services
they (the non-educational agencies) are otherwise responsible for;
and (2) that the State agency or LEA remains responsible for
[[Page 55079]]
ensuring that children receive all the services described in their
IEPs in a timely fashion, regardless of whether another agency will
ultimately pay for the services.
The Committee places particular emphasis in the bill on the
relationship between schools and the State Medicaid Agency in order
to clarify that health services provided to children with
disabilities who are Medicaid-eligible and meet the standards
applicable to Medicaid, are not disqualified for reimbursement by
Medicaid agencies because they are provided services in a school
context in accordance with the child's IEP. (H. Rep. 105-95, p. 92
(1997))
Note 2: The intent of paragraph (e) of this section is to make
clear that services required under Part B of the Act must be
provided at no cost to the child's parents, whether they have public
or private insurance. The Department, in a Notice of Interpretation
published Dec. 30, 1980 at 45 FR 66390 noted that both Part B of the
Act and Section 504 of the Rehabilitation Act of 1973 prohibit a
public agency from requiring parents, where they would incur a
financial cost, to use insurance proceeds to pay for services that
are required to be provided to a child with a disability under the
FAPE requirements of those statutes. The use of parents' insurance
proceeds to pay for services in these circumstances must be
voluntary. For example, a family could not be required to access
private insurance that is required to enable a child to receive
Medicaid services, where that insurance use results in financial
costs to the family.
Note 3: If the public agency cannot get parent consent to use
private insurance, the public agency may use funds under this part
to pay for the service. In addition, in order to avoid financial
costs to parents who otherwise would consent to use private
insurance, the public agency may use funds under this part to pay
the costs of accessing the insurance, e.g., deductible or co-pay
amounts.
Note 4: Paragraph (f) clarifies that, if a public agency
receives funds from public or private insurance for services under
this part, the public agency is not required to return those funds
to the Department or to dedicate those funds for use in this
program, although a public agency retains the option of using those
funds in this program. If a public agency spends reimbursements from
Federal funds (e.g., Medicaid) for services under this part, those
funds will not be considered ``State or local'' funds for purposes
of the maintenance of effort provisions in Secs. 300.154 and
300.231. This is because the expenditure that is reimbursed is
considered to be an expenditure of funds from the source that
provides the reimbursement.
Sec. 300.143 SEA implementation of safeguards.
The State must have on file with the Secretary the procedures that
the SEA (and any agency assigned responsibility pursuant to
Sec. 300.600(d)) follows to inform each public agency of its
responsibility for ensuring effective implementation of procedural
safeguards for the children with disabilities served by that public
agency.
(Authority: 20 U.S.C. 1412(a)(11); 1415(a))
Sec. 300.144 Hearing relating to LEA eligibility.
The State must have on file with the Secretary procedures to ensure
that the SEA does not make any final determination that an LEA is not
eligible for assistance under Part B of the Act without first giving
the LEA reasonable notice and an opportunity for a hearing under 34 CFR
76.401(d).
(Authority: 20 U.S.C. 1412(a)(13))
Sec. 300.145 Recovery of funds for misclassified children.
The State must have on file with the Secretary policies and
procedures that ensure that the State seeks to recover any funds
provided under Part B of the Act for services to a child who is
determined to be erroneously classified as eligible to be counted under
section 611 (a) or (d) of the Act.
(Authority: 20 U.S.C. 1221e-3(a)(1))
Sec. 300.146 Suspension and expulsion rates.
The State must have on file with the Secretary information to
demonstrate that the following requirements are met:
(a) General. The SEA examines data to determine if significant
discrepancies are occurring in the rate of long-term suspensions and
expulsions of children with disabilities--
(1) Among LEAs in the State; or
(2) Compared to the rates for nondisabled children within the
agencies.
(b) Review and revision of policies. If the discrepancies described
in paragraph (a) of this section are occurring, the SEA reviews and, if
appropriate, revises (or requires the affected State agency or LEA to
revise) its policies, procedures, and practices relating to the
development and implementation of IEPs, the use of behavioral
interventions, and procedural safeguards, to ensure that these
policies, procedures, and practices comply with the Act.
(Authority: 20 U.S.C. 612(a)(22))
Sec. 300.147 Additional information if SEA provides direct services.
(a) If the SEA provides FAPE to children with disabilities, or
provides direct services to these children, the agency--
(1) Shall comply with any additional requirements of Secs. 300.220-
300.230(a) and 300.234-300.250 as if the agency were an LEA; and
(2) May use amounts that are otherwise available to the agency
under Part B of the Act to serve those children without regard to
Sec. 300.184 (relating to excess costs).
(b) The SEA must have on file with the Secretary information to
demonstrate that it meets the requirements of paragraph (a)(1) of this
section.
(Authority: 20 U.S.C. 1412(b))
Sec. 300.148 Public participation.
(a) The State must ensure that, prior to the adoption of any
policies and procedures needed to comply with this part, there are
public hearings, adequate notice of the hearings, and an opportunity
for comment available to the general public, including individuals with
disabilities and parents of children with disabilities consistent with
Secs. 300.280-300.284.
(b) The State must have on file with the Secretary information to
demonstrate that the requirements of paragraph (a) of this section are
met.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.149 [Reserved]
Sec. 300.150 State advisory panel.
The State must have on file with the Secretary information to
demonstrate that the State has established and maintains an advisory
panel for the purpose of providing policy guidance with respect to
special education and related services for children with disabilities
in the State in accordance with the requirements of Secs. 300.650-
300.653.
(Authority: 20 U.S.C. 1412(a)(21)(A))
Sec. 300.151 [Reserved]
Sec. 300.152 Prohibition against commingling.
The State must have on file with the Secretary an assurance
satisfactory to the Secretary that the funds under Part B of the Act
are not commingled with State funds.
(Authority: 20 U.S.C. 1412(a)(18)(B))
Note: This assurance is satisfied by the use of a separate
accounting system that includes an audit trail of the expenditure of
the Part B funds. Separate bank accounts are not required. (See 34
CFR 76.702 (Fiscal control and fund accounting procedures).)
Sec. 300.153 State-level nonsupplanting.
(a) General. (1) Except as provided in Sec. 300.230, funds paid to
a State under Part B of the Act must be used to supplement the level of
Federal, State, and local funds (including funds that are not under the
direct control of the SEA or LEAs) expended for special education and
related services provided to children with disabilities under Part B of
the Act and in no case to supplant these Federal, State, and local
funds.
[[Page 55080]]
(2) The State must have on file with the Secretary information to
demonstrate to the satisfaction of the Secretary that the requirements
of paragraph (a)(1) of this section are met.
(b) Waiver. If the State provides clear and convincing evidence
that all children with disabilities have available to them FAPE, the
Secretary may waive, in whole or in part, the requirements of paragraph
(a) of this section if the Secretary concurs with the evidence provided
by the State under Sec. 300.589.
(Authority: 20 U.S.C. 1412(a)(18)(c))
Sec. 300.154 Maintenance of State financial support.
(a) General. The State must have on file with the Secretary
information to demonstrate that the State will not reduce the amount of
State financial support for special education and related services for
children with disabilities, or otherwise made available because of the
excess costs of educating those children, below the amount of that
support for the preceding fiscal year.
(b) Reduction of funds for failure to maintain support. The
Secretary reduces the allocation of funds under section 611 of the Act
for any fiscal year following the fiscal year in which the State fails
to comply with the requirement of paragraph (a) of this section by the
same amount by which the State fails to meet the requirement.
(c) Waivers for exceptional or uncontrollable circumstances. The
Secretary may waive the requirement of paragraph (a) of this section
for a State, for one fiscal year at a time, if the Secretary determines
that--
(1) Granting a waiver would be equitable due to exceptional or
uncontrollable circumstances such as a natural disaster or a
precipitous and unforeseen decline in the financial resources of the
State; or
(2) The State meets the standard in Sec. 300.589 for a waiver of
the requirement to supplement, and not to supplant, funds received
under Part B of the Act.
(d) Subsequent years. If, for any fiscal year, a State fails to
meet the requirement of paragraph (a) of this section, including any
year for which the State is granted a waiver under paragraph (c) of
this section, the financial support required of the State in future
years under paragraph (a) of this section must be the amount that would
have been required in the absence of that failure and not the reduced
level of the State's support.
(Authority: 20 U.S.C. 612(a)(19))
Sec. 300.155 Policies and procedures for use of Part B funds.
The State must have on file with the Secretary policies and
procedures designed to ensure that funds paid to the State under Part B
of the Act are spent in accordance with the provisions of Part B.
(Authority: 20 U.S.C. 1412(a)(18)(A))
Sec. 300.156 Annual description of use of Part B funds.
(a) In order to receive a grant in any fiscal year a State must
annually describe--
(1) How amounts retained under Sec. 300.602 will be used to meet
the requirements of this part;
(2) How those amounts will be allocated among the activities
described in Secs. 300.621 and 300.370 to meet State priorities based
on input from LEAs; and
(3) The percentage of those amounts, if any, that will be
distributed to LEAs by formula.
(b) If a State's plans for use of its funds under Secs. 300.370 and
300.620 for the forthcoming year do not change from the prior year, the
State may submit a letter to that effect to meet the requirement in
paragraph (a) of this section.
(Authority: 20 U.S.C. 1411(f)(5))
LEA and State Agency Eligibility--General
Sec. 300.180 Condition of assistance.
An LEA or State agency is eligible for assistance under Part B of
the Act for a fiscal year if the agency demonstrates to the
satisfaction of the SEA that it meets the conditions in Secs. 300.220-
300.250.
(Authority: 20 U.S.C. 1413(a))
Sec. 300.181 Exception for prior LEA or State agency policies and
procedures on file with the SEA.
If an LEA or State agency described in Sec. 300.194 has on file
with the SEA policies and procedures that demonstrate that the LEA or
State agency meets any requirement of Sec. 300.180, including any
policies and procedures filed under Part B of the Act as in effect
before June 4, 1997, the SEA shall consider the LEA or State agency to
have met the requirement for purposes of receiving assistance under
Part B of the Act.
(Authority: 20 U.S.C. 1413(b)(1))
Sec. 300.182 Amendments to LEA policies and procedures.
(a) Modification made by an LEA or a State agency. (1) Subject to
paragraph (b) of this section, policies and procedures submitted by an
LEA or a State agency in accordance with this subpart remain in effect
until it submits to the SEA the modifications that the LEA or State
agency decides are necessary.
(2) The provisions of this subpart apply to a modification to an
LEA's or State agency's policies and procedures in the same manner and
to the same extent that they apply to the LEA's or State agency's
original policies and procedures.
(b) Modifications required by the SEA. The SEA may require an LEA
or a State agency to modify its policies and procedures, but only to
the extent necessary to ensure the LEA's or State agency's compliance
with this part, if--
(1) After June 4, 1997, the provisions of the Act or the
regulations in this part are amended;
(2) There is a new interpretation of the Act by Federal or State
courts; or
(3) There is an official finding of noncompliance with Federal or
State law or regulations.
(Authority: 20 U.S.C. 1413(b))
Sec. 300.183 [Reserved]
Sec. 300.184 Excess cost requirement.
(a) General. Amounts provided to an LEA under Part B of the Act may
be used only to pay the excess costs of providing special education and
related services to children with disabilities.
(b) Definition. As used in this part, the term excess costs means
those costs that are in excess of the average annual per-student
expenditure in an LEA during the preceding school year for an
elementary or secondary school student, as may be appropriate. Excess
costs must be computed after deducting--
(1) Amounts received--
(i) Under Part B of the Act;
(ii) Under Part A of title I of the Elementary and Secondary
Education Act of 1965; or
(iii) Under Part A of title VII of that Act; and
(2) Any State or local funds expended for programs that would
qualify for assistance under any of those parts.
(c) Limitation on use of Part B funds. (1) The excess cost
requirement prevents an LEA from using funds provided under Part B of
the Act to pay for all of the costs directly attributable to the
education of a child with a disability, subject to paragraph (c)(2) of
this section.
(2) The excess cost requirement does not prevent an LEA from using
Part B funds to pay for all of the costs directly attributable to the
education of a child with a disability in any of the ages 3, 4, 5, 18,
19, 20, or 21, if no local or State funds are available for nondisabled
[[Page 55081]]
children in that age range. However, the LEA must comply with the
nonsupplanting and other requirements of this part in providing the
education and services.
(Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))
Sec. 300.185 Meeting the excess cost requirement.
(a)(1) General. An LEA meets the excess cost requirement if it has
spent at least a minimum average amount for the education of its
children with disabilities before funds under Part B of the Act are
used.
(2) The amount described in paragraph (a)(1) of this section is
determined using the formula in Sec. 300.184(b). This amount may not
include capital outlay or debt service.
(b) Joint establishment of eligibility. If two or more LEAs jointly
establish eligibility in accordance with Sec. 300.190, the minimum
average amount is the average of the combined minimum average amounts
determined under Sec. 300.184 in those agencies for elementary or
secondary school students, as the case may be.
(Authority: 20 U.S.C. 1413(a)(2)(A))
Note: The excess cost requirement means that the LEA must spend
a certain minimum amount for the education of its children with
disabilities before Part B funds are used. This ensures that
children served with Part B funds have at least the same average
amount spent on them, from sources other than Part B, as do the
children in the school district in elementary or secondary school as
the case may be.
Excess costs are those costs of special education and related
services that exceed the minimum amount. Therefore, if an LEA can
show that it has (on the average) spent the minimum amount for the
education of each of its children with disabilities, it has met the
excess cost requirement, and all additional costs are excess costs.
Part B funds can then be used to pay for these additional costs.
Secs. 300.186-300.189 [Reserved]
Sec. 300.190 Joint establishment of eligibility.
(a) General. An SEA may require an LEA to establish its eligibility
jointly with another LEA if the SEA determines that the LEA would be
ineligible under this section because the agency would not be able to
establish and maintain programs of sufficient size and scope to
effectively meet the needs of children with disabilities.
(b) Charter school exception. An SEA may not require a charter
school that is an LEA to jointly establish its eligibility under
paragraph (a) of this section unless it is explicitly permitted to do
so under the State's charter school statute.
(c) Amount of payments. If an SEA requires the joint establishment
of eligibility under paragraph (a) of this section, the total amount of
funds made available to the affected LEAs must be equal to the sum of
the payments that each LEA would have received under Secs. 300.711-
300.714 if the agencies were eligible for these payments.
(Authority: 20 U.S.C. 1413(e) (1), and (2))
Sec. 300.191 [Reserved]
Sec. 300.192 Requirements for establishing eligibility.
(a) Requirements for LEAs in general. LEAs that establish joint
eligibility under this section must--
(1) Adopt policies and procedures that are consistent with the
State's policies and procedures under Secs. 300.121-300.156; and
(2) Be jointly responsible for implementing programs that receive
assistance under Part B of the Act.
(b) Requirements for educational service agencies in general. If an
educational service agency is required by State law to carry out
programs under Part B of the Act, the joint responsibilities given to
LEAs under Part B of the Act--
(1) Do not apply to the administration and disbursement of any
payments received by that educational service agency; and
(2) Must be carried out only by that educational service agency.
(c) Additional requirement. Notwithstanding any other provision of
Secs. 300.190-300.192, an educational service agency shall provide for
the education of children with disabilities in the least restrictive
environment, as required by Sec. 300.130.
(Authority: 20 U.S.C. 1413(e) (3), and (4))
Sec. 300.193 [Reserved]
Sec. 300.194 State agency eligibility.
Any State agency that desires to receive a subgrant for any fiscal
year under Secs. 300.711-300.714 must demonstrate to the satisfaction
of the SEA that--
(a) All children with disabilities who are participating in
programs and projects funded under Part B of the Act receive FAPE, and
that those children and their parents are provided all the rights and
procedural safeguards described in this part; and
(b) The agency meets the other conditions of this subpart that
apply to LEAs.
(Authority: 20 U.S.C. 1413(i))
Sec. 300.195 [Reserved]
Sec. 300.196 Notification of LEA or State agency in case of
ineligibility.
If the SEA determines that an LEA or State agency is not eligible
under Part B of the Act, the SEA shall--
(a) Notify the LEA or State agency of that determination; and
(b) Provide the LEA or State agency with reasonable notice and an
opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))
Sec. 300.197 LEA and State agency compliance.
(a) General. If the SEA, after reasonable notice and an opportunity
for a hearing, finds that an LEA or State agency that has been
determined to be eligible under this section is failing to comply with
any requirement described in Secs. 300.220-300.250, the SEA shall
reduce or may not provide any further payments to the LEA or State
agency until the SEA is satisfied that the LEA or State agency is
complying with that requirement.
(b) Notice requirement. Any State agency or LEA in receipt of a
notice described in paragraph (a) of this section shall, by means of
public notice, take the measures necessary to bring the pendency of an
action pursuant to this section to the attention of the public within
the jurisdiction of the agency.
(c) In carrying out its functions under this section, each SEA
shall consider any decision resulting from a hearing under
Secs. 300.507-300.528 that is adverse to the LEA or State agency
involved in the decision.
(Authority: 20 U.S.C. 1413(d))
LEA Eligibility--Specific Conditions
Sec. 300.220 Consistency with State policies.
(a) General. The LEA, in providing for the education of children
with disabilities within its jurisdiction, must have in effect
policies, procedures, and programs that are consistent with the State
policies and procedures established under Secs. 300.121-300.156.
(b) Policies on file with SEA. The LEA must have on file with the
SEA the policies and procedures described in paragraph (a) of this
section.
(Authority: 20 U.S.C. 1413(a)(1))
Sec. 300.221 LEA and State agency implementation of CSPD.
The LEA must have on file with the SEA information to demonstrate
that--
(a) All personnel necessary to carry out Part B of the Act within
the jurisdiction of the agency are appropriately and adequately
prepared, consistent with the requirements of Secs. 300.380-300.382;
and
[[Page 55082]]
(b) To the extent the LEA determines appropriate, it shall
contribute to and use the comprehensive system of personnel development
of the State established under Sec. 300.135.
(Authority: 20 U.S.C. 1413(a)(3))
Sec. 300.222-300.229 [Reserved]
Sec. 300.230 Use of amounts.
The LEA must have on file with the SEA information to demonstrate
that amounts provided to the LEA under Part B of the Act--
(a) Will be expended in accordance with the applicable provisions
of this part;
(b) Will be used only to pay the excess costs of providing special
education and related services to children with disabilities,
consistent with Secs. 300.184-300.185; and
(c) Will be used to supplement State, local, and other Federal
funds and not to supplant those funds.
(Authority: 20 U.S.C. 1413(a)(2)(A))
Sec. 300.231 Maintenance of effort.
(a) General. Except as provided in Sec. 300.232 and Sec. 300.233,
funds provided to the LEA under Part B of the Act may not be used to
reduce the level of expenditures for the education of children with
disabilities made by the LEA from local funds below the level of those
expenditures for the preceding fiscal year.
(b) Information. The LEA must have on file with the SEA information
to demonstrate that the requirements of paragraph (a) of this section
are met.
(Authority: 20 U.S.C. 1413(a)(2)(A))
Sec. 300.232 Exception to maintenance of effort.
An LEA may reduce the level of expenditures by the LEA under Part B
of the Act below the level of those expenditures for the preceding
fiscal year if the reduction is attributable to--
(a) The voluntary departure, by retirement or otherwise, or
departure for just cause, of special education or related services
personnel, who are replaced by qualified, lower-salaried staff;
(b) A decrease in the enrollment of children with disabilities;
(c) The termination of the obligation of the agency, consistent
with this part, to provide a program of special education to a
particular child with a disability that is an exceptionally costly
program, as determined by the SEA, because the child--
(1) Has left the jurisdiction of the agency;
(2) Has reached the age at which the obligation of the agency to
provide FAPE to the child has terminated; or
(3) No longer needs the program of special education; or
(d) The termination of costly expenditures for long-term purchases,
such as the acquisition of equipment or the construction of school
facilities.
(Authority: 20 U.S.C. 1413(a)(2)(B))
Note: With respect to the voluntary departure of special
education personnel described in paragraph (a) of this section, the
House Committee Report on Pub. L. 105-17 (1) clarifies that the
intended focus of this exception is on special education personnel
who are paid at or near the top of the salary schedule, and (2) sets
out guidelines under which this exception may be invoked by an LEA:
This exception is included in recognition that, in some
situations, when higher-salaried personnel depart from their
positions in special education, they are replaced by qualified,
lower-salaried staff. In such situations, as long as certain
safeguards are in effect, the LEA should not be required to maintain
the level of the higher-salaried personnel. In order for the LEA to
invoke this exception, the agency must ensure that such voluntary
retirement or resignation and replacement are in full conformity
with existing school board policies in the agency, with the
applicable collective bargaining agreement in effect at that time,
and with applicable State statutes. (H. Rep. 105-95, p. 96 (1997))
Sec. 300.233 Treatment of federal funds in certain fiscal years.
(a)(1) Subject to paragraphs (a)(2) and (b) of this section, for
any fiscal year for which amounts appropriated to carry out section 611
of the Act exceeds $4,100,000,000, an LEA may treat as local funds up
to 20 percent of the amount of funds it receives under Part B of the
Act that exceeds the amount it received under Part B of the Act for the
previous fiscal year.
(2) The requirements of Secs. 300.230(c) and 300.231 do not apply
with respect to the amount that may be treated as local funds under
paragraph (a)(1) of this section.
(b) If an SEA determines that an LEA is not meeting the
requirements of this part, the SEA may prohibit the LEA from treating
funds received under Part B of the Act as local funds under paragraph
(a)(1) of this section for any fiscal year, but only if it is
authorized to do so by the State constitution or a State statute.
(Authority: 20 U.S.C. 1413(a)(2)(C))
Sec. 300.234 Schoolwide programs under title I of the ESEA.
(a) An LEA may use funds received under Part B of the Act for any
fiscal year to carry out a schoolwide program under section 1114 of the
Elementary and Secondary Education Act of 1965, except that the amount
used in any program may not exceed--
(1)(i) The amount received by the LEA under Part B for that fiscal
year; divided by
(ii) The number of children with disabilities in the jurisdiction
of the LEA; multiplied by
(2) The number of children with disabilities participating in the
schoolwide program.
(b) The funds described in paragraph (a) of this section may be
used without regard to the requirements of Sec. 300.230(a).
(c) The funds described in paragraph (a) of this section must be
considered as Federal Part B funds for purposes of the calculations
required by Secs. 300.230 (b) and (c).
(d) Except as provided in paragraphs (b) and (c) of this section,
all other requirements of Part B must be met by an LEA using Part B
funds in accordance with paragraph (a) of this section.
Note: Although IDEA funds may be combined in a schoolwide
project, and thus used for services that are not special education
and related services, all other requirements of the IDEA must still
be met for children with disabilities in schoolwide project schools
that combine IDEA funds in a schoolwide project. Thus, children with
disabilities in schoolwide project schools must still receive
services in accordance with a properly developed IEP and must still
be afforded all of the rights and services guaranteed to children
with disabilities under the IDEA.
(Authority: 20 U.S.C. 1413(a)(2)(D))
Sec. 300.235 Permissive use of funds.
(a) General. Subject to paragraph (b) of this section, funds
provided to an LEA under Part B of the Act may be used for the
following activities:
(1) Services and aids that also benefit nondisabled children. For
the costs of special education and related services and supplementary
aids and services provided in a regular class or other education-
related setting to a child with a disability in accordance with the IEP
of the child, even if one or more nondisabled children benefit from
these services.
(2) Integrated and coordinated services system. To develop and
implement a fully integrated and coordinated services system in
accordance with Sec. 300.244.
(b) Application for certain use of funds. An LEA does not violate
Secs. 300.152, 300.230, and 300.231 based on its use of funds provided
under Part B of the Act in accordance with
[[Page 55083]]
paragraphs (a)(1) and (a)(2) of this section.
(Authority: 20 U.S.C. 1413(a)(4))
Sec. 300.236-300.239 [Reserved]
Sec. 300.240 Information for SEA.
(a) The LEA shall provide the SEA with information necessary to
enable the SEA to carry out its duties under Part B of the Act,
including, with respect to Secs. 300.137 and 300.138, information
relating to the performance of children with disabilities participating
in programs carried out under Part B of the Act.
(b) The LEA must have on file with the SEA an assurance
satisfactory to the SEA that the LEA will comply with the requirements
of paragraph (a) of this section.
(Authority: 20 U.S.C. 1413(a)(6))
Sec. 300.241 Treatment of charter schools and their students.
The LEA must have on file with the SEA information to demonstrate
that in carrying out this part with respect to charter schools that are
public schools of the LEA, the LEA will--
(a) Serve children with disabilities attending those schools in the
same manner as it serves children with disabilities in its other
schools; and
(b) Provide funds under Part B of the Act to those schools in the
same manner as it provides those funds to its other schools.
(Authority: 20 U.S.C. 1413(a)(5))
Note: The provisions of this part that apply to other public
schools also apply to public charter schools. Therefore, children
with disabilities who attend public charter schools and their
parents retain all rights under this part. With respect to this
provision, the House Committee Report on Pub. L. 105-17 states:
``The Committee expects that charter schools will be in full
compliance with Part B.'' (H. Rep. 105-95, p. 97 (1997))
Sec. 300.242 Public information.
The LEA must have on file with the SEA information to demonstrate
to the satisfaction of the SEA that it will make available to parents
of children with disabilities and to the general public all documents
relating to the eligibility of the agency under Part B of the Act.
(Authority: 20 U.S.C. 1413(a)(7))
Sec. 300.243 [Reserved]
Sec. 300.244 Coordinated services system.
(a) General. An LEA may not use more than 5 percent of the amount
the agency receives under Part B of the Act for any fiscal year, in
combination with other amounts (which must include amounts other than
education funds), to develop and implement a coordinated services
system designed to improve results for children and families, including
children with disabilities and their families.
(b) Activities. In implementing a coordinated services system under
this section, an LEA may carry out activities that include--
(1) Improving the effectiveness and efficiency of service delivery,
including developing strategies that promote accountability for
results;
(2) Service coordination and case management that facilitate the
linkage of IEPs under Part B of the Act and IFSPs under Part C of the
Act with individualized service plans under multiple Federal and State
programs, such as title I of the Rehabilitation Act of 1973 (vocational
rehabilitation), title XIX of the Social Security Act (Medicaid), and
title XVI of the Social Security Act (supplemental security income);
(3) Developing and implementing interagency financing strategies
for the provision of education, health, mental health, and social
services, including transition services and related services under the
Act; and
(4) Interagency personnel development for individuals working on
coordinated services.
(c) Coordination with certain projects under Elementary and
Secondary Education Act of 1965. If an LEA is carrying out a
coordinated services project under title XI of the Elementary and
Secondary Education Act of 1965 and a coordinated services project
under Part B of the Act in the same schools, the agency shall use the
amounts under Secs. 300.244 in accordance with the requirements of that
title.
(Authority: 20 U.S.C. 1413(f))
Sec. 300.245 School-based improvement plan.
(a) General. Each LEA may, in accordance with paragraph (b) of this
section, use funds made available under Part B of the Act to permit a
public school within the jurisdiction of the LEA to design, implement,
and evaluate a school-based improvement plan that is consistent with
the purposes described in section 651(b) of the Act and that is
designed to improve educational and transitional results for all
children with disabilities and, as appropriate, for other children
consistent with Sec. 300.235 (a) and (b) in that public school.
(b) Authority.
(1) General. A SEA may grant authority to an LEA to permit a public
school described in Sec. 300.245 (through a school-based standing panel
established under Sec. 300.247(b)) to design, implement, and evaluate a
school-based improvement plan described in Sec. 300.245 for a period
not to exceed 3 years.
(2) Responsibility of LEA. If a SEA grants the authority described
in paragraph (b)(1) of this section, an LEA that is granted this
authority must have the sole responsibility of oversight of all
activities relating to the design, implementation, and evaluation of
any school-based improvement plan that a public school is permitted to
design under this section.
(Authority: 20 U.S.C. 1413 (g)(1) and (g)(2)).
Sec. 300.246 Plan requirements.
A school-based improvement plan described in Sec. 300.245 must--
(a) Be designed to be consistent with the purposes described in
section 651(b) of the Act and to improve educational and transitional
results for all children with disabilities and, as appropriate, for
other children consistent with Sec. 300.235 (a) and (b), who attend the
school for which the plan is designed and implemented;
(b) Be designed, evaluated, and, as appropriate, implemented by a
school-based standing panel established in accordance with
Sec. 300.247(b);
(c) Include goals and measurable indicators to assess the progress
of the public school in meeting these goals; and
(d) Ensure that all children with disabilities receive the services
described in their IEPs.
(Authority: 20 U.S.C. 1413(g)(3))
Sec. 300.247 Responsibilities of the LEA.
An LEA that is granted authority under Sec. 300.245(b) to permit a
public school to design, implement, and evaluate a school-based
improvement plan shall--
(a) Select each school under the jurisdiction of the agency that is
eligible to design, implement, and evaluate the plan;
(b) Require each school selected under paragraph (a) of this
section, in accordance with criteria established by the LEA under
paragraph (c) of this section, to establish a school-based standing
panel to carry out the duties described in Sec. 300.246(b);
(c) Establish--
(1) Criteria that must be used by the LEA in the selection of an
eligible school under paragraph (a) of this section;
(2) Criteria that must be used by a public school selected under
paragraph (a) of this section in the establishment of a school-based
standing panel to carry out the duties described in
[[Page 55084]]
Sec. 300.246(b) and that ensure that the membership of the panel
reflects the diversity of the community in which the public school is
located and includes, at a minimum--
(i) Parents of children with disabilities who attend a public
school, including parents of children with disabilities from unserved
and underserved populations, as appropriate;
(ii) Special education and general education teachers of public
schools;
(iii) Special education and general education administrators, or
the designee of those administrators, of those public schools; and
(iv) Related services providers who are responsible for providing
services to the children with disabilities who attend those public
schools; and
(3) Criteria that must be used by the LEA with respect to the
distribution of funds under Part B of the Act to carry out this
section;
(d) Disseminate the criteria established under paragraph (c) of
this section to local school district personnel and local parent
organizations within the jurisdiction of the LEA;
(e) Require a public school that desires to design, implement, and
evaluate a school-based improvement plan to submit an application at
the time, in the manner and accompanied by the information, that the
LEA shall reasonably require; and
(f) Establish procedures for approval by the LEA of a school-based
improvement plan designed under Part B of the Act.
(Authority: 20 U.S.C. 1413(g)(4))
Sec. 300.248 Limitation.
A school-based improvement plan described in Sec. 300.245(a) may be
submitted to an LEA for approval only if a consensus with respect to
any matter relating to the design, implementation, or evaluation of the
goals of the plan is reached by the school-based standing panel that
designed the plan.
(Authority: 20 U.S.C. 1413(g)(5))
Sec. 300.249 Additional requirements.
(a) Parental involvement. In carrying out the requirements of
Secs. 300.245-300.250, an LEA shall ensure that the parents of children
with disabilities are involved in the design, evaluation, and, if
appropriate, implementation of school-based improvement plans in
accordance with this section.
(b) Plan approval. An LEA may approve a school-based improvement
plan of a public school within the jurisdiction of the agency for a
period of 3 years, if--
(1) The approval is consistent with the policies, procedures, and
practices established by the LEA and in accordance with Secs. 300.245-
300.250; and
(2) A majority of parents of children who are members of the
school-based standing panel, and a majority of other members of the
school-based standing panel that designed the plan, agree in writing to
the plan.
(Authority: 20 U.S.C. 1413(g)(6))
Sec. 300.250 Extension of plan.
If a public school within the jurisdiction of an LEA meets the
applicable requirements and criteria described in Secs. 300.246 and
300.247 at the expiration of the 3-year approval period described
Sec. 300.249(b), the agency may approve a school-based improvement plan
of the school for an additional 3-year period.
(Authority: 20 U.S.C. 1413(g)(7))
Secretary of the Interior-- Eligibility
Sec. 300.260 Submission of information.
The Secretary may provide the Secretary of the Interior amounts
under Sec. 300.715 for a fiscal year only if the Secretary of the
Interior submits to the Secretary information that--
(a) Meets the requirements of section 612(a)(1), (3)-(9), (10) (B),
(C), (11)-(12), (14)-(17), (20), (21) and (22) of the Act (including
monitoring and evaluation activities);
(b) Meets the requirements of section 612(b) and (e) of the Act;
(c) Meets the requirements of section 613(a) (1), (2)(A)(i), (6)
and (7) of the Act;
(d) Meets the requirements of this part that implement the sections
of the Act listed in paragraphs (a)-(c) of this section;
(e) Includes a description of how the Secretary of the Interior
will coordinate the provision of services under Part B of the Act with
LEAs, tribes and tribal organizations, and other private and Federal
service providers;
(f) Includes an assurance that there are public hearings, adequate
notice of the hearings, and an opportunity for comment afforded to
members of tribes, tribal governing bodies, and affected local school
boards before the adoption of the policies, programs, and procedures
described in paragraph (a) of this section;
(g) Includes an assurance that the Secretary of the Interior will
provide the information that the Secretary may require to comply with
section 618 of the Act, including data on the number of children and
youth with disabilities served and the types and amounts of services
provided and needed;
(h) Includes an assurance that the Secretary of the Interior and
the Secretary of Health and Human Services have entered into a
memorandum of agreement, to be provided to the Secretary, for the
coordination of services, resources, and personnel between their
respective Federal, State, and local offices and with State and LEAs
and other entities to facilitate the provision of services to Indian
children with disabilities residing on or near reservations (the
agreement must provide for the apportionment of responsibilities and
costs including, but not limited to, child find, evaluation, diagnosis,
remediation or therapeutic measures, and (if appropriate) equipment and
medical or personal supplies as needed for a child to remain in school
or a program).
(i) Includes an assurance that the Department of the Interior will
cooperate with the Department in its exercise of monitoring and
oversight of this application, and any agreements entered into between
the Secretary of the Interior and other entities under Part B of the
Act, and will fulfill its duties under Part B of the Act. Section
616(a) of the Act applies to the information described in this section.
(Authority: 20 U.S.C. 1411(i)(2))
Sec. 300.261 Public participation.
In fulfilling the requirements of Sec. 300.260 the Secretary of the
Interior shall provide for public participation consistent with
Secs. 300.280-300.284.
(Authority: 20 U.S.C. 1411(i))
Sec. 300.262 Use of Part B funds.
(a) The Department of the Interior may use five percent of its
payment under Sec. 300.715 in any fiscal year, or $500,000, whichever
is greater, for administrative costs in carrying out the provisions of
this part.
(b) Payments to the Secretary of the Interior under Sec. 300.716
must be used in accordance with that section.
(Authority: 20 U.S.C. 1411(i))
Sec. 300.263 Plan for coordination of services.
(a) The Secretary of the Interior shall develop and implement a
plan for the coordination of services for all Indian children with
disabilities residing on reservations covered under Part B of the Act.
(b) The plan must provide for the coordination of services
benefiting these children from whatever source, including tribes, the
Indian Health Service, other BIA divisions, and other Federal agencies.
[[Page 55085]]
(c) In developing the plan, the Secretary of the Interior shall
consult with all interested and involved parties.
(d) The plan must be based on the needs of the children and the
system best suited for meeting those needs, and may involve the
establishment of cooperative agreements between the BIA, other Federal
agencies, and other entities.
(e) The plan also must be distributed upon request to States, State
and LEAs, and other agencies providing services to infants, toddlers,
and children with disabilities, to tribes, and to other interested
parties.
(Authority: 20 U.S.C. 1411(i)(4))
Sec. 300.264 Definitions.
(a) Indian. As used in this part, the term Indian means an
individual who is a member of an Indian tribe.
(b) Indian tribe. As used in this part, the term Indian tribe means
any Federal or State Indian tribe, band, rancheria, pueblo, colony, or
community, including any Alaska Native village or regional village
corporation (as defined in or established under the Alaska Native
Claims Settlement Act).
(Authority: 20 U.S.C. 1401(9) and (10))
Sec. 300.265 Establishment of advisory board.
(a) To meet the requirements of section 612(a)(21) of the Act, the
Secretary of the Interior shall establish, not later than December 4,
1997 under the BIA, an advisory board composed of individuals involved
in or concerned with the education and provision of services to Indian
infants, toddlers, children, and youth with disabilities, including
Indians with disabilities, Indian parents or guardians of the children,
teachers, service providers, State and local educational officials,
representatives of tribes or tribal organizations, representatives from
State Interagency Coordinating Councils under section 641 of the Act in
States having reservations, and other members representing the various
divisions and entities of the BIA. The chairperson must be selected by
the Secretary of the Interior.
(b) The advisory board shall--
(1) Assist in the coordination of services within the BIA and with
other local, State, and Federal agencies in the provision of education
for infants, toddlers, and children with disabilities;
(2) Advise and assist the Secretary of the Interior in the
performance of the Secretary's responsibilities described in section
611(i) of the Act;
(3) Develop and recommend policies concerning effective inter- and
intra-agency collaboration, including modifications to regulations, and
the elimination of barriers to inter- and intra-agency programs and
activities;
(4) Provide assistance and disseminate information on best
practices, effective program coordination strategies, and
recommendations for improved educational programming for Indian
infants, toddlers, and children with disabilities; and
(5) Provide assistance in the preparation of information required
under Sec. 300.260(g).
(Authority: 20 U.S.C. 1411(i)(5))
Sec. 300.266 Annual reports.
The advisory board established under Sec. 300.265 shall prepare and
submit to the Secretary of the Interior and to the Congress an annual
report containing a description of the activities of the advisory board
for the preceding year.
(Authority: 20 U.S.C. 1411(i)(6)(A))
Sec. 300.267 Applicable regulations.
The Secretary of the Interior shall comply with the requirements of
Secs. 300.301-300.303, 300.305-300.309, 300.340-300.348, 300.351,
300.360-300.382, 300.400-300.402, 300.500-300.586, 300.600-300.621, and
300.660-300.662.
(Authority: 20 U.S.C. 1411(i)(2)(A))
Public Participation
Sec. 300.280 Public hearings before adopting State policies and
procedures.
Prior to its adoption of State policies and procedures related to
this part, the SEA shall--
(a) Make the policies and procedures available to the general
public;
(b) Hold public hearings; and
(c) Provide an opportunity for comment by the general public on the
policies and procedures.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.281 Notice.
(a) The SEA shall provide notice to the general public of the
public hearings.
(b) The notice must be in sufficient detail to inform the general
public about--
(1) The purpose and scope of the State policies and procedures and
their relation to Part B of the Act;
(2) The availability of the State policies and procedures;
(3) The date, time, and location of each public hearing;
(4) The procedures for submitting written comments about the
policies and procedures; and
(5) The timetable for submitting the policies and procedures to the
Secretary for approval.
(c) The notice must be published or announced--
(1) In newspapers or other media, or both, with circulation
adequate to notify the general public about the hearings; and
(2) Enough in advance of the date of the hearings to afford
interested parties throughout the State a reasonable opportunity to
participate.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.282 Opportunity to participate; comment period.
(a) The SEA shall conduct the public hearings at times and places
that afford interested parties throughout the State a reasonable
opportunity to participate.
(b) The policies and procedures must be available for comment for a
period of at least 30 days following the date of the notice under
Sec. 300.281.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.283 Review of public comments before adopting policies and
procedures.
Before adopting the policies and procedures, the SEA shall--
(a) Review and consider all public comments; and
(b) Make any necessary modifications in those policies and
procedures.
(Authority: 20 U.S.C. 1412(a)(20))
Sec. 300.284 Publication and availability of approved policies and
procedures.
After the Secretary approves a State's policies and procedures, the
SEA shall give notice in newspapers or other media, or both, that the
policies and procedures are approved. The notice must name places
throughout the State where the policies and procedures are available
for access by any interested person.
(Authority: 20 U.S.C. 1412(a)(20))
Subpart C--Services
Free Appropriate Public Education.
Sec. 300.300 Provision of FAPE.
(a) General. Subject to paragraphs (b) and (c) of this section and
Sec. 300.311, each State receiving assistance under this part shall
ensure that FAPE is available to all children with disabilities, aged 3
through 21, residing in the State, including children with disabilities
who have been suspended or expelled from school.
(b) Exception for age ranges 3-5 and 18-21. (1) This paragraph
provides the rules for applying the requirements in paragraph (a) of
this section to children with disabilities aged 3, 4, 5, 18, 19, 20 and
21 within the State:
(2) If State law or a court order requires the State to provide
education
[[Page 55086]]
for children with disabilities in any disability category in any of
these age groups, the State must make FAPE available to all children
with disabilities of the same age who have that disability.
(3) If a public agency provides education to nondisabled children
in any of these age groups, it must make FAPE available to at least a
proportionate number of children with disabilities of the same age.
(4) If a public agency provides education to 50 percent or more of
its children with disabilities in any disability category in any of
these age groups, it must make FAPE available to all its children with
disabilities of the same age who have that disability. This provision
does not apply to children aged 3 through 5 for any fiscal year for
which the State receives a grant under section 619(a)(1) of the Act.
(5) If a public agency provides education to a child with a
disability in any of these age groups, it must make FAPE available to
that child and provide that child and his or her parents all of the
rights under Part B of the Act and this part.
(6) A State is not required to make FAPE available to a child with
a disability in one of these age groups if--
(i) State law expressly prohibits, or does not authorize, the
expenditure of public funds to provide education to nondisabled
children in that age group; or
(ii) The requirement is inconsistent with a court order that
governs the provision of free public education to children with
disabilities in that State.
(c) Children aged 3 through 21 on Indian reservations. With the
exception of children identified in Sec. 300.715(b) and (c), the SEA
shall ensure that all of the requirements of Part B are implemented for
all children aged 3 through 21 on reservations.
(Authority: 20 U.S.C. 1412(a)(1), 1411(i)(1)(C), S. Rep. No. 94-168,
p. 19 (1975))
Note 1: The requirement to make FAPE available applies to all
children with disabilities within the State who are in the age
ranges required under Sec. 300.300 and who need special education
and related services. This includes children with disabilities
already in school and children with less severe disabilities.
Note 2: In order to be in compliance with Sec. 300.300, each
State must ensure that the requirement to identify, locate, and
evaluate all children with disabilities is fully implemented by
public agencies throughout the State.
Note 3: Under the Act, the age range for the child find
requirement (birth through 21) is greater than the mandated age
range for providing FAPE. One reason for the broader age requirement
under ``child find'' is to enable States to be aware of and plan for
younger children who will require special education and related
services, especially in any case in which infants and toddlers with
disabilities are not participating in the early intervention program
under Part C of the Act. It also ties in with the full educational
opportunity goal requirement that has the same age range as child
find. Moreover, while a State is not required to provide FAPE to
children with disabilities below the age ranges mandated under
Sec. 300.300, the State may, at its discretion, extend services to
those children. (See note 3 following Sec. 300.125 regarding the
relationship between the child find requirements under Part B of the
Act and those under Part C of the Act.)
Sec. 300.301 FAPE--methods and payments.
(a) Each State may use whatever State, local, Federal, and private
sources of support are available in the State to meet the requirements
of this part. For example, if it is necessary to place a child with a
disability in a residential facility, a State could use joint
agreements between the agencies involved for sharing the cost of that
placement.
(b) Nothing in this part relieves an insurer or similar third party
from an otherwise valid obligation to provide or to pay for services
provided to a child with a disability.
(Authority: 20 U.S.C. 1401(8), 1412(a)(1))
Sec. 300.302 Residential placement.
If placement in a public or private residential program is
necessary to provide special education and related services to a child
with a disability, the program, including non-medical care and room and
board, must be at no cost to the parents of the child.
(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))
Note: This requirement applies to placements that are made by
public agencies for educational purposes, and includes placements in
State-operated schools for children with disabilities, such as a
State school for students with deafness or students with blindness.
Sec. 300.303 Proper functioning of hearing aids.
Each public agency shall ensure that the hearing aids worn in
school by children with hearing impairments, including deafness, are
functioning properly.
(Authority: 20 U.S.C. 1412(a)(1))
Note: The report of the House of Representatives on the 1978
appropriation bill includes the following statement regarding
hearing aids:
In its report on the 1976 appropriation bill the Committee
expressed concern about the condition of hearing aids worn by
children in public schools. A study done at the Committee's
direction by the Bureau of Education for the Handicapped reveals
that up to one-third of the hearing aids are malfunctioning.
Obviously, the Committee expects the Office of Education will ensure
that hearing impaired school children are receiving adequate
professional assessment, follow-up and services. H. R. Rep. No. 95-
381, p. 67 (1977)
Sec. 300.304 Full educational opportunity goal.
Each SEA shall ensure that each public agency establishes and
implements a goal of providing full educational opportunity to all
children with disabilities in the area served by the public agency.
(Authority: 20 U.S.C. 1412(a)(2))
Note: In meeting the full educational opportunity goal, the
Congress also encouraged LEAs to include artistic and cultural
activities in programs supported under Part B of the Act. This point
is addressed in the following statements from the Senate Report on
Pub. L. 94-142:
The use of the arts as a teaching tool for the handicapped has
long been recognized as a viable, effective way not only of teaching
special skills, but also of reaching youngsters who had otherwise
been unteachable. The Committee envisions that programs under this
bill could well include an arts component and, indeed, urges that
LEAs include the arts in programs for the handicapped funded under
this Act. Such a program could cover both appreciation of the arts
by the handicapped youngsters, and the utilization of the arts as a
teaching tool per se.
Museum settings have often been another effective tool in the
teaching of handicapped children. For example, the Brooklyn Museum
has been a leader in developing exhibits utilizing the heightened
tactile sensory skill of the blind. Therefore, in light of the
national policy concerning the use of museums in federally supported
education programs enunciated in the Education Amendments of 1974,
the Committee also urges LEAs to include museums in programs for the
handicapped funded under this Act. (S. Rep. No. 94-168, p. 13
(1975))
Sec. 300.305 Program options.
Each public agency shall take steps to ensure that its children
with disabilities have available to them the variety of educational
programs and services available to nondisabled children in the area
served by the agency, including art, music, industrial arts, consumer
and homemaking education, and vocational education.
(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))
Note: The list of program options is not exhaustive, and could
include any program or activity in which nondisabled students
participate.
Sec. 300.306 Nonacademic services.
(a) Each public agency shall take steps to provide nonacademic and
[[Page 55087]]
extracurricular services and activities in the manner as is necessary
to afford children with disabilities an equal opportunity for
participation in those services and activities.
(b) Nonacademic and extracurricular services and activities may
include counseling services, athletics, transportation, health
services, recreational activities, special interest groups or clubs
sponsored by the public agency, referrals to agencies that provide
assistance to individuals with disabilities, and employment of
students, including both employment by the public agency and assistance
in making outside employment available.
(Authority: 20 U.S.C. 1412(a)(1))
Sec. 300.307 Physical education.
(a) General. Physical education services, specially designed if
necessary, must be made available to every child with a disability
receiving FAPE.
(b) Regular physical education. Each child with a disability must
be afforded the opportunity to participate in the regular physical
education program available to nondisabled children unless--
(1) The child is enrolled full time in a separate facility; or
(2) The child needs specially designed physical education, as
prescribed in the child's IEP.
(c) Special physical education. If specially designed physical
education is prescribed in a child's IEP, the public agency responsible
for the education of that child shall provide the services directly or
make arrangements for those services to be provided through other
public or private programs.
(d) Education in separate facilities. The public agency responsible
for the education of a child with a disability who is enrolled in a
separate facility shall ensure that the child receives appropriate
physical education services in compliance with paragraphs (a) and (c)
of this section.
(Authority: 20 U.S.C. 1412(a)(25), 1412(a)(5)(A))
Note: The Report of the House of Representatives on Public Law
94-142 includes the following statement regarding physical
education:
Special education as set forth in the Committee bill includes
instruction in physical education, which is provided as a matter of
course to all non-handicapped children enrolled in public elementary
and secondary schools. The Committee is concerned that although
these services are available to and required of all children in our
school systems, they are often viewed as a luxury for handicapped
children.
* * * * *
The Committee expects the Commissioner of Education to take
whatever action is necessary to assure that physical education
services are available to all handicapped children, and has
specifically included physical education within the definition of
special education to make clear that the Committee expects such
services, specially designed where necessary, to be provided as an
integral part of the educational program of every handicapped child.
(H.R. Rep. No. 94-332, p. 9 (1975))
Sec. 300.308 Assistive technology.
Each public agency shall ensure that assistive technology devices
or assistive technology services, or both, as those terms are defined
in Secs. 300.5-300.6, are made available to a child with a disability
if required as a part of the child's--
(a) Special education under Sec. 300.24;
(b) Related services under Sec. 300.22; or
(c) Supplementary aids and services under Secs. 300.26 and
300.550(b)(2).
(Authority: 20 U.S.C. 1412(a)(12)(B)(i))
Sec. 300.309 Extended school year services.
(a) General. (1) Subject to paragraph (a)(2) of this section, each
public agency shall ensure that extended school year services are
available to each child with a disability to the extent necessary to
ensure that FAPE is available to the child.
(2) The determination of whether a child with a disability needs
extended school year services must be made on an individual basis by
the child's IEP team, in accordance with Secs. 300.340-300.351.
(b) Definition. As used in this section, the term extended school
year services means special education and related services that--
(1) Are provided to a child with a disability--
(i) Beyond the normal school year of the public agency;
(ii) In accordance with the child's IEP; and
(iii) At no cost to the parents of the child; and
(2) Meet the standards of the SEA.
(Authority: 20 U.S.C. 1412(a)(1))
Note 1: In implementing the requirements of this section, an LEA
may not limit extended school year services to particular categories
of disability or unilaterally limit the duration of services.
Imposing those limitations would violate the individually-oriented
focus of Part B of the Act. However, with respect to paragraph (b)
of this section, nothing in this part requires that every child with
a disability is entitled to, or must receive, extended school year
services.
Note 2: States may establish standards for use in determining on
an individual basis, whether a child with a disability needs
extended school year services so long as those standards are not
inconsistent with the requirements of Part B of the Act. Factors
that States may wish to consider include: likelihood of regression,
slow recoupment, and predictive data based on the opinion of
professionals.
Sec. 300.310 [Reserved]
Sec. 300.311 FAPE requirements for students with disabilities in adult
prisons.
(a) Exception to FAPE for certain students. The obligation to make
FAPE available to all children with disabilities does not apply with
respect to students aged 18 through 21 to the extent that State law
does not require that special education and related services under Part
B of the Act be provided to students with disabilities who, in the last
educational placement prior to their incarceration in an adult
correctional facility--
(1) Were not actually identified as being a child with a disability
under Sec. 300.7; and
(2) Did not have an IEP under Part B of the Act.
(b) Requirements that do not apply. The following requirements do
not apply to students with disabilities who are convicted as adults
under State law and incarcerated in adult prisons:
(1) The requirements contained in Sec. 300.138 and
Sec. 300.347(a)(5)(i) (relating to participation of children with
disabilities in general assessments).
(2) The requirements in Sec. 300.347(b) (relating to transition
planning and transition services), with respect to the students whose
eligibility under Part B of the Act will end, because of their age,
before they will be eligible to be released from prison based on
consideration of their sentence and eligibility for early release.
(c) Modifications of IEP or placement. (1) Subject to paragraph
(c)(2) of this section, the IEP team of a student with a disability,
who is convicted as an adult under State law and incarcerated in an
adult prison, may modify the student's IEP or placement if the State
has demonstrated a bona fide security or compelling penological
interest that cannot otherwise be accommodated.
(2) The requirements of Secs. 300.340(a), 300.347(a) relating to
IEPs, and 300.550(b) relating to LRE, do not apply with respect to the
modifications described in paragraph (c)(1) of this section.
(Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6))
Evaluations and Reevaluations
Sec. 300.320 Initial evaluations.
(a) Each public agency shall ensure that a full and individual
evaluation is conducted for each child being considered for special
education and related services under Part B of the Act--
[[Page 55088]]
(1) To determine if the child is a ``child with a disability''
under Sec. 300.7; and
(2) To determine the educational needs of the child.
(b) In implementing the requirements of paragraph (a) of this
section, the public agency shall ensure that--
(1) The evaluation is conducted in accordance with the procedures
described in Secs. 300.530--300.535; and
(2) The results of the evaluation are used by the child's IEP team
in meeting the requirements of Secs. 300.340--300.351.
(Authority: 20 U.S.C. 1414 (a) and (b))
Sec. 300.321 Reevaluations.
Each public agency shall ensure that--
(a) A reevaluation of each child with a disability is conducted in
accordance with the requirements of Secs. 300.530--330.536; and
(b) The results of any reevaluations are used by the child's IEP
team under Secs. 300.340-300.350 in reviewing and, as appropriate,
revising the child's IEP.
(Authority: 20 U.S.C. 1414(a)(2))
Sec. 300.322-300.324 [Reserved]
Individualized Education Programs
Sec. 300.340 Definitions.
(a) As used in this part, the term individualized education program
means a written statement for a child with a disability that is
developed, reviewed, and revised in accordance with Secs. 300.341-
300.351.
(b) As used in Secs. 300.347 and 300.348, participating agency
means a State or local agency, other than the public agency responsible
for a student's education, that is financially and legally responsible
for providing transition services to the student.
(Authority: 20 U.S.C. 1401(11))
Sec. 300.341 State educational agency responsibility.
(a) Public agencies. The SEA shall ensure that each public agency
develops and implements an IEP for each child with a disability served
by that agency.
(b) Private schools and facilities. The SEA shall ensure that an
IEP is developed and implemented for each child with a disability who--
(1) Is placed in or referred to a private school or facility by a
public agency; or
(2) Is enrolled in a religiously-affiliated school or other private
school and receives special education or related services from a public
agency.
(Authority: 20 U.S.C. 1412(a)(4), (a) (10) (A) and (B))
Note: This section applies to all public agencies, including
other State agencies (e.g., departments of mental health and
welfare) that provide special education to a child with a disability
either directly, by contract, or through other arrangements. Thus,
if a State welfare agency contracts with a private school or
facility to provide special education to a child with a disability,
that agency would be responsible for ensuring that an IEP is
developed for the child.
Sec. 300.342 When IEPs must be in effect.
(a) At the beginning of each school year, each LEA, SEA, or other
State agency, shall have in effect, for each child with a disability
within its jurisdiction, an individualized education program, as
defined in Sec. 300.340.
(b) An IEP must--
(1) Be in effect before special education and related services are
provided to a child; and
(2) Be implemented as soon as possible following the meetings
described under Sec. 300.343.
(c)(1) In the case of a child with a disability aged 3 through 5
(or, at the discretion of the SEA a 2-year-old child with a disability
who will turn age 3 during the school year), an IFSP that contains the
material described in section 636 of the Act, and that is developed in
accordance with Secs. 300.340-300.346 and 300.349-300.351, may serve as
the IEP of the child if using that plan as the IEP is--
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the child's parents.
(2) In implementing the requirements of paragraph (c)(1) of this
section, the public agency shall--
(i) Provide to the child's parents a detailed explanation of the
differences between an IFSP and an IEP; and
(ii) If the parents choose an IFSP, obtain written informed consent
from the parents.
(d)(1) All IEPs in effect on July 1, 1998 must meet the
requirements of Secs. 300.340-300.351.
(2) The provisions of Secs. 300.340--300.350 that were in effect on
June 3, 1997 remain in effect until July 1, 1998.
(Authority: 20 U.S.C. 1414(d)(2) (A) and (B), Pub. L. 105-17, sec.
201(a)(1)(C))
Note 1: It is expected that the IEP of a child with a disability
will be implemented immediately following the meetings under
Sec. 300.343. Exceptions to this would be if (1) the meetings occur
during the summer or a vacation period, unless the child requires
services during that period, or (2) there are circumstances that
require a short delay (e.g., working out transportation
arrangements). However, there can be no undue delay in providing
special education and related services to the child.
Note 2: Certain requirements regarding IEPs for students who are
incarcerated in adult prisons apply as of June 4, 1997.
Note 3: At the time that a child with a disability moves from an
early intervention program under Part C of the Act to a preschool
program under this part, the parent, if the agency agrees, has the
option, under paragraph (c) of this section, to allow the child to
continue receiving early intervention services under an IFSP, or to
begin receiving special education and related services in accordance
with an IEP. Because of the importance of the IEP as the statutory
vehicle for ensuring FAPE to a child with a disability, paragraph
(c)(2) of this section provides that the parents' agreement to use
an IFSP for the child instead of an IEP requires written informed
consent by the parents that is based on an explanation of the
differences between an IFSP and an IEP.
Sec. 300.343 IEP meetings.
(a) General. Each public agency is responsible for initiating and
conducting meetings for the purpose of developing, reviewing, and
revising the IEP of a child with a disability (or, if consistent with
State policy and at the discretion of the LEA, and with the concurrence
of the parents, an IFSP described in section 636 of the Act for each
child with a disability, aged 3 through 5).
(b) Timelines. (1) Each public agency shall ensure that an offer of
services in accordance with an IEP is made to parents within a
reasonable period of time from the agency's receipt of parent consent
to an initial evaluation.
(2) In meeting the timeline in paragraph (b)(1) of this section, a
meeting to develop an IEP for the child must be conducted within 30-
days of a determination that the child needs special education and
related services.
(c) Review and revision of IEP. Each public agency shall ensure
that the IEP team--
(1) Reviews the child's IEP periodically, but not less than
annually, to determine whether the annual goals for the child are being
achieved; and
(2) Revises the IEP as appropriate to address--
(i) Any lack of expected progress toward the annual goals described
in Sec. 300.347(a), and in the general curriculum, if appropriate;
(ii) The results of any reevaluation conducted under this section;
(iii) Information about the child provided to, or by, the parents,
as described in Sec. 300.533(a)(1);
(iv) The child's anticipated needs; or
(v) Other matters.
(Authority: 20 U.S.C. 1414(d)(3))
Note: For most children, it would be reasonable to expect that a
public agency offer services in accordance with an IEP within 60
days of receipt of parent consent to initial evaluation.
[[Page 55089]]
Sec. 300.344 IEP team.
(a) General. The public agency shall ensure that the IEP team for
each child with a disability includes--
(1) The parents of the child;
(2) At least one regular education teacher of the child (if the
child is, or may be, participating in the regular education
environment);
(3) At least one special education teacher, or if appropriate, at
least one special education provider of the child;
(4) A representative of the LEA who--
(i) Is qualified to provide, or supervise the provision of,
specially designed instruction to meet the unique needs of children
with disabilities;
(ii) Is knowledgeable about the general curriculum; and
(iii) Is knowledgeable about the availability of resources of the
LEA;
(5) An individual who can interpret the instructional implications
of evaluation results, who may be a member of the team described in
paragraphs (a) (2) through (6) of this section;
(6) At the discretion of the parent or the agency, other
individuals who have knowledge or special expertise regarding the
child, including related services personnel as appropriate; and
(7) If appropriate, the child.
(b) Transition services participants. (1) Under paragraph (a)(7) of
this section, the public agency shall invite a student with a
disability of any age if a purpose of the meeting will be the
consideration of the statement of transition services needs or
statement of needed transition services for the student under
Sec. 300.347(b)(1).
(2) If the student does not attend the IEP meeting, the public
agency shall take other steps to ensure that the student's preferences
and interests are considered.
(3)(i) In implementing the requirements of paragraph (b)(1) of this
section, the public agency also shall invite a representative of any
other agency that is likely to be responsible for providing or paying
for transition services.
(ii) If an agency invited to send a representative to a meeting
does not do so, the public agency shall take other steps to obtain
participation of the other agency in the planning of any transition
services.
(Authority: 20 U.S.C. 1414(d)(1)(B))
Note: The regular education teacher participating in a child's
IEP meeting should be the teacher who is, or may be, responsible for
implementing the IEP, so that the teacher can participate in
discussions about how best to teach the child.
If the child has more than one teacher, the LEA may designate
which teacher or teachers will participate. In a situation in which
all of the child's teachers do not participate in the IEP meeting,
the LEA is encouraged to seek input from teachers who will not be
attending, and should ensure that any teacher not attending the
meeting is informed about the results of the meeting (including
receiving a copy of the IEP). In the case of a child whose behavior
impedes the learning of the child or others, the LEA is encouraged
to have a person knowledgeable about positive behavior strategies at
the IEP meeting.
Similarly, the special education teacher or provider
participating in a child's IEP meeting should be the person who is,
or will be, responsible for implementing the IEP. If, for example,
the child's disability is a speech impairment, the teacher could be
the speech-language pathologist.
Sec. 300.345 Parent participation.
(a) Each public agency shall take steps to ensure that one or both
of the parents of a child with a disability are present at each IEP
meeting or are afforded the opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that
they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b)(1) The notice under paragraph (a)(1) of this section must indicate
the purpose, time, and location of the meeting and who will be in
attendance.
(2) For a student with a disability beginning at age 14, or
younger, if appropriate, the notice must also--
(i) Indicate that a purpose of the meeting will be the development
of a statement of the transition services needs of the student required
in Sec. 300.347(b)(1)(i); and
(ii) Indicate that the agency will invite the student.
(3) For a student with a disability beginning at age 16, or
younger, if appropriate, the notice must--
(i) Indicate that a purpose of the meeting is the consideration of
needed transition services for the student required in
Sec. 300.347(b)(1)(ii);
(ii) Indicate that the agency will invite the student; and
(iii) Identify any other agency that will be invited to send a
representative.
(c) If neither parent can attend, the public agency shall use other
methods to ensure parent participation, including individual or
conference telephone calls.
(d) A meeting may be conducted without a parent in attendance if
the public agency is unable to convince the parents that they should
attend. In this case the public agency must have a record of its
attempts to arrange a mutually agreed on time and place, such as--
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place
of employment and the results of those visits.
(e) The public agency shall take whatever action is necessary to
ensure that the parent understands the proceedings at a meeting,
including arranging for an interpreter for parents with deafness or
whose native language is other than English.
(f) The public agency shall give the parent, on request, a copy of
the IEP.
(Authority: 20 U.S.C. 1414(d)(1)(B)(i))
Note: The notice in paragraph (a) of this section could also
inform parents that they may bring other people to the meeting
consistent with Sec. 300.344(a)(6). As indicated in paragraph (d) of
this section, the procedure used to notify parents (whether oral or
written or both) is left to the discretion of the agency, but the
agency must keep a record of its efforts to contact parents.
Sec. 300.346 Development, review, and revision of IEP.
(a) Development of IEP.
(1) General. In developing each child's IEP, the IEP team, shall
consider--
(i) The strengths of the child and the concerns of the parents for
enhancing the education of their child; and
(ii) The results of the initial or most recent evaluation of the
child.
(2) Consideration of special factors. The IEP team also shall--
(i) In the case of a child whose behavior impedes his or her
learning or that of others, consider, if appropriate, strategies,
including positive behavioral interventions, strategies, and supports
to address that behavior;
(ii) In the case of a child with limited English proficiency,
consider the language needs of the child as these needs relate to the
child's IEP;
(iii) In the case of a child who is blind or visually impaired,
provide for instruction in Braille and the use of Braille unless the
IEP team determines, after an evaluation of the child's reading and
writing skills, needs, and appropriate reading and writing media
(including an evaluation of the child's future needs for instruction in
Braille or the use of Braille), that instruction in Braille or the use
of Braille is not appropriate for the child;
(iv) Consider the communication needs of the child, and in the case
of a child who is deaf or hard of hearing, consider the child's
language and
[[Page 55090]]
communication needs, opportunities for direct communications with peers
and professional personnel in the child's language and communication
mode, academic level, and full range of needs, including opportunities
for direct instruction in the child's language and communication mode;
and
(v) Consider whether the child requires assistive technology
devices and services.
(b) Review and Revision of IEP. In conducting a meeting to review,
and, if appropriate, revise a child's IEP, the IEP team shall consider
the factors described in paragraph (a) of this section.
(c) Statement in IEP. If, in considering the special factors
described in paragraph (a) (1) and (2) of this section, the IEP team
determines that a child needs a particular device or service (including
an intervention, accommodation, or other program modification) in order
for the child to receive FAPE, the IEP team must include a statement to
that effect in the child's IEP.
(d) Requirement with respect to regular education teacher. The
regular education teacher of a child with a disability, as a member of
the IEP team, must, to the extent appropriate, participate in the
development, review, and revision of the child's IEP, including
assisting in--
(1) The determination of appropriate positive behavioral
interventions and strategies for the child; and
(2) The determination of supplementary aids and services, program
modifications, and supports for school personnel, consistent with
Sec. 300.347(a)(3).
(e) Construction. Nothing in this section shall be construed to
require the IEP team to include information under one component of a
child's IEP that is already contained under another component of the
child's IEP.
(Authority: 20 U.S.C. 1414 (d) (3) and (4)(B) and (e))
Note 1: The requirements of paragraph (a)(2) of this section
(relating to consideration of special factors) were added by Pub. L.
105-17. These considerations are essential in assisting the IEP team
to develop meaningful goals and other components of a child's IEP,
if the considerations point to factors that could impede learning.
The results of considering these special factors must, if
appropriate, be reflected in the IEP goals, services, and provider
responsibilities. As appropriate, consideration of these factors
must include a review of valid evaluation data and the observed
needs of the child resulting from the evaluation process.
Note 2: With respect to paragraph (a)(2)(iv) of this section
(relating to special considerations for a child who is deaf or hard
of hearing), the House Committee Report on Pub. L. 105-17 states
that the IEP team should implement the provision in a manner
consistent with the policy guidance entitled ``Deaf Students
Education Services,'' published in the Federal Register (57 FR
49274, October 30, 1992) by the Department (H. Rep. No. 105-95, p-
104 (1997))
Note 3: In developing an IEP for a child with limited English
proficiency (LEP), the IEP team must consider how the child's level
of English language proficiency affects special education and
related services that the child needs in order to receive FAPE.
Under Title VI of the Civil Rights Act of 1964, school districts are
required to provide LEP students with alternative language services
to enable the student to acquire proficiency in English and to
provide the student with meaningful access to the content of the
educational curriculum that is available to all students, including
special education and related services. A LEP student with a
disability may require special education and related services for
those aspects of the educational program which address the
development of English language skills and other aspects of the
student's educational program. For a LEP student with a disability,
under paragraph (c) of this section, the IEP must address whether
the special education and related services that the child needs will
be provided in a language other than English.
Sec. 300.347 Content of IEP.
(a) General. The IEP for each child must include--
(1) A statement of the child's present levels of educational
performance, including--
(i) How the child's disability affects the child's involvement and
progress in the general curriculum; or
(ii) For preschool children, as appropriate, how the disability
affects the child's participation in appropriate activities;
(2) A statement of measurable annual goals, including benchmarks or
short-term objectives, related to--
(i) Meeting the child's needs that result from the child's
disability to enable the child to be involved in and progress in the
general curriculum; and
(ii) Meeting each of the child's other educational needs that
result from the child's disability;
(3) A statement of the special education and related services and
supplementary aids and services to be provided to the child, or on
behalf of the child and a statement of the program modifications or
supports for school personnel that will be provided for the child--
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and progress in the general curriculum in
accordance with paragraph (a)(1) of this section and to participate in
extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with
disabilities and nondisabled children in the activities described in
this paragraph;
(4) An explanation of the extent, if any, to which the child will
not participate with nondisabled children in the regular class and in
the activities described in paragraph (a)(3) of this section;
(5)(i) A statement of any individual modifications in the
administration of State or district-wide assessments of student
achievement that are needed in order for the child to participate in
the assessment; and
(ii) If the IEP team determines that the child will not participate
in a particular State or district-wide assessment of student
achievement (or part of an assessment), a statement of--
(A) Why that assessment is not appropriate for the child; and
(B) How the child will be assessed;
(6) The projected date for the beginning of the services and
modifications described in paragraph (a)(3) of this section, and the
anticipated frequency, location, and duration of those services and
modifications; and
(7) A statement of--
(i) How the child's progress toward the annual goals described in
paragraph (a)(2) of this section will be measured; and
(ii) How the child's parents will be regularly informed (through
such means as periodic report cards), at least as often as parents are
informed of their nondisabled children's progress, of--
(A) Their child's progress toward the annual goals; and
(B) The extent to which that progress is sufficient to enable the
child to achieve the goals by the end of the year.
(b) Transition services. (1) The IEP must include--
(i) For each student beginning at age 14 and younger if
appropriate, and updated annually, a statement of the transition
service needs of the student under the applicable components of the
student's IEP that focuses on the student's courses of study (such as
participation in advanced-placement courses or a vocational education
program); and
(ii) For each student beginning at age 16 (or younger, if
determined appropriate by the IEP team), a statement of needed
transition services for the student, including, if appropriate, a
statement of the interagency responsibilities or any needed linkages.
(2) If the IEP team determines that services are not needed in one
or more of the areas specified in Sec. 300.27(c)(1) through (c)(4), the
IEP must include a
[[Page 55091]]
statement to that effect and the basis upon which the determination was
made.
(c) Transfer of rights. Beginning at least one year before a
student reaches the age of majority under State law, the student's IEP
must include a statement that the student has been informed of his or
her rights under Part B of the Act, if any, that will transfer to the
student on reaching the age of majority, consistent with Sec. 300.517.
(d) Students with disabilities convicted as adults and incarcerated
in adult prisons. Special rules concerning the content of IEPs for
students with disabilities convicted as adults and incarcerated in
adult prisons are contained in Sec. 300.311(b) and (c).
(Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii))
Note 1: Although the statute does not mandate transition
services for all students below the age of 16, the provision of
these services could have a significantly positive effect on the
employment and independent living outcomes for many of these
students in the future, especially for students who are likely to
drop out before age 16.
Note 2: The IEP provisions added by Pub. L. 105-17 are intended
to provide greater access by children with disabilities to the
general curriculum and to educational reforms, as an effective means
of ensuring better results for these children in preparing them for
employment and independent living.
With respect to increased emphasis on the general curriculum,
the House Committee Report on Pub. L. 105-17 includes the following
statement:
The Committee wishes to emphasize that, once a child has been
identified as being eligible for special education, the connection
between special education and related services and the child's
opportunity to experience and benefit from the general education
curriculum should be strengthened. The majority of children
identified as eligible for special education and related services
are capable of participating in the general education curriculum to
varying degrees with some adaptations and modifications. This
provision is intended to ensure that children's special education
and related services are in addition to and are affected by the
general education curriculum, not separate from it. (H. Rep. No.
105-95, p-99 (1997))
Note 3: With respect to the impact on States and LEAs in
implementing the new IEP provisions relating to accessing the
general curriculum, the House Committee Report on Pub. L. 105-17
includes the following statement:
The new emphasis on participation in the general education
curriculum is not intended by the Committee to result in major
expansions in the size of the IEP of dozens of pages of detailed
goals and benchmarks or objectives in every curricular content
standard skill. The new focus is intended to produce attention to
the accommodations and adjustments necessary for disabled children
to access the general education curriculum and the special services
which may be necessary for the appropriate participation in
particular areas of the curriculum due to the nature of the
disability.
Note 4: With respect to paragraph (a) of this section, the House
Committee Report on Pub. L. 105-17 includes the following statement:
The Committee intends that, while teaching and related services
methodologies or approaches are an appropriate topic for discussion
and consideration by the IEP team during IEP development or annual
review, they are not expected to be written into the IEP.
Furthermore, the Committee does not intend that changing particular
methods or approaches necessitates an additional meeting of the IEP
team.
Specific day to day adjustments in instructional methods and
approaches that are made by either a regular or special education
teacher to assist a disabled child to achieve his or her annual
goals would not normally require action by the child's IEP team.
However, if changes are contemplated in the child's measurable
annual goals, benchmarks, or short-term objectives, or in any of the
services or program modifications, or other components described in
the child's IEP, the LEA must ensure that the child's IEP team is
reconvened in a timely manner to address those changes. (H. Rep. No.
105-95, pp-100-101 (1997))
Note 5: The provision in paragraph (a)(7)(ii) of this section
concerning regularly informing parents of their child's progress
toward annual goals and the extent to which this progress is
sufficient to enable the child to achieve the goals by the end of
the year is intended to be in addition to, rather than in place of,
regular reporting to the parents (as for nondisabled children) of
the child's progress in subjects or curricular areas for which the
child is not receiving special education.
Note 6: With respect to paragraph (b)(1) of this section
(relating to transition service needs beginning at age 14), the
House Committee report on Pub. L. 105-17 includes the following
statement:
The purpose of this requirement is to focus attention on how the
child's educational program can be planned to help the child make a
successful transition to his or her goals for life after secondary
school. This provision is designed to augment, and not replace, the
separate transition services requirement, under which children with
disabilities beginning no later than age sixteen receive transition
services, including instruction, community experiences, the
development of employment and other post-school objectives, and,
when appropriate, independent living skills and functional
vocational evaluation. For example, for a child whose transition
goal is a job, a transition service could be teaching the child how
to get to the job site on public transportation. (H. Rep. No. 105-
95, p. 101 (1997))
Note 7: Each State must, at a minimum, ensure compliance with
the transition services requirements in paragraph (b) of this
section. However, it would not be a violation of this part for a
public agency to begin planning for transition services needs and
needed transition services for students younger than age 14 and age
16, respectively.
Sec. 300.348 Agency responsibilities for transition services.
(a) If a participating agency, other than the local educational
agency, fails to provide the transition services described in the IEP
in accordance with Sec. 300.347(b)(1)(ii), the local educational agency
shall reconvene the IEP team to identify alternative strategies to meet
the transition objectives for the child set out in the IEP.
(b) Nothing in this part relieves any participating agency,
including a State vocational rehabilitation agency, of the
responsibility to provide or pay for any transition service that the
agency would otherwise provide to students with disabilities who meet
the eligibility criteria of that agency.
(Authority: 20 U.S.C. 1414(d)(5); 1414(d)(1)(A)(vii))
Sec. 300.349 Private school placements by public agencies.
(a) Developing individualized education programs. (1) Before a
public agency places a child with a disability in, or refers a child
to, a private school or facility, the agency shall initiate and conduct
a meeting to develop an IEP for the child in accordance with
Sec. 300.347.
(2) The agency shall ensure that a representative of the private
school or facility attends the meeting. If the representative cannot
attend, the agency shall use other methods to ensure participation by
the private school or facility, including individual or conference
telephone calls.
(b) Reviewing and revising individualized education programs. (1)
After a child with a disability enters a private school or facility,
any meetings to review and revise the child's IEP may be initiated and
conducted by the private school or facility at the discretion of the
public agency.
(2) If the private school or facility initiates and conducts these
meetings, the public agency shall ensure that the parents and an agency
representative--
(i) Are involved in any decision about the child's IEP; and
(ii) Agree to any proposed changes in the program before those
changes are implemented.
(c) Responsibility. Even if a private school or facility implements
a child's IEP, responsibility for compliance with this part remains
with the public agency and the SEA.
(Authority: 20 U.S.C. 1412(a)(10)(B))
[[Page 55092]]
Sec. 300.350 Children with disabilities in religiously-affiliated or
other private schools.
If a child with a disability is enrolled in a religiously-
affiliated or other private school and receives special education or
related services from a public agency, the public agency shall--
(a) Initiate and conduct meetings to develop, review, and revise an
IEP for the child, in accordance with Sec. 300.347; and
(b) Ensure that a representative of the religiously-affiliated or
other private school attends each meeting. If the representative cannot
attend, the agency shall use other methods to ensure participation by
the private school, including individual or conference telephone calls.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.351 Individualized education program--accountability.
Each public agency must provide special education and related
services to a child with a disability in accordance with an IEP.
However, Part B of the Act does not require that any agency, teacher,
or other person be held accountable if a child does not achieve the
growth projected in the annual goals and benchmarks or objectives.
(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed., July
21, 1975))
Note: This section is intended to relieve concerns that the IEP
constitutes a guarantee by the public agency and the teacher that a
child will progress at a specified rate. However, this section does
not relieve agencies and teachers from making good faith efforts to
assist the child in achieving the goals and objectives or benchmarks
listed in the IEP. Part B is premised on children receiving the
instruction, services and modifications that they need to enable
them to make progress in their education. Further, the section does
not limit a parent's right to complain and ask for revisions of the
child's IEP, or to invoke due process procedures (Sec. 300.507), if
the parent feels that these efforts are not being made. This section
does not prohibit a State or public agency from establishing its own
accountability systems regarding teacher, school or agency
performance.
Direct Service by the SEA
Sec. 300.360 Use of LEA allocation for direct services.
(a) General. An SEA shall use the payments that would otherwise
have been available to an LEA or to a State agency to provide special
education and related services directly to children with disabilities
residing in the area served by that local agency, or for whom that
State agency is responsible, if the SEA determines that the LEA or
State agency--
(1) Has not provided the information needed to establish the
eligibility of the agency under Part B of the Act;
(2) Is unable to establish and maintain programs of FAPE that meet
the requirements of this part;
(3) Is unable or unwilling to be consolidated with one or more LEAs
in order to establish and maintain the programs; or
(4) Has one or more children with disabilities who can best be
served by a regional or State program or service-delivery system
designed to meet the needs of these children.
(b) In meeting the requirements in paragraph (a) of this section,
the SEA may provide special education and related services directly, by
contract, or through other arrangements.
(c) The excess cost requirements of Secs. 300.184 and 300.185 do
not apply to the SEA.
(Authority: 20 U.S.C. 1413(h)(1))
Note: The SEA, as a recipient of Part B funds, is responsible
for ensuring that all public agencies in the State comply with the
provisions of the Act, regardless of whether they receive Part B
funds. If an LEA elects not to apply for its Part B allotment, the
State would be required to use those funds to ensure that FAPE is
made available to children residing in the area served by that local
agency. However, if the local allotment is not sufficient for this
purpose, additional State or local funds would have to be expended
in order to ensure that FAPE and the other requirements of the Act
are met.
Moreover, if the LEA is the recipient of any other Federal
funds, it would have to be in compliance with 34 CFR 104.31-104.39
of the regulations implementing Section 504 of the Rehabilitation
Act of 1973. It should be noted that the term ``FAPE'' has different
meanings under Part B and Section 504. For example, under Part B,
FAPE is a statutory term that requires special education and related
services to be provided in accordance with an IEP. However, under
Section 504, each recipient must provide an education that includes
services that are ``designed to meet individual educational needs of
handicapped persons as adequately as the needs of nonhandicapped
persons are met * * *''. (34 CFR 104.33(b)). Those regulations state
that implementation of an IEP, in accordance with Part B, is one
means of meeting the FAPE requirement under section 504.
Sec. 300.361 Nature and location of services.
The SEA may provide special education and related services under
Sec. 300.360(a) in the manner and at the location it considers
appropriate (including regional and State centers). However, the manner
in which the education and services are provided must be consistent
with the requirements of this part (including the LRE provisions of
Secs. 300.550-300.556).
(Authority: 20 U.S.C. 1413(h)(2))
Secs. 300.362-300.369 [Reserved]
Sec. 300.370 Use of State agency allocations.
(a) Each State shall use any funds it retains under Sec. 300.602
and does not use for administration under Sec. 300.620 for any of the
following:
(1) Support and direct services, including technical assistance and
personnel development and training.
(2) Administrative costs of monitoring and complaint investigation,
but only to the extent that those costs exceed the costs incurred for
those activities during fiscal year 1985.
(3) To establish and implement the mediation process required by
Sec. 300.506, including providing for the costs of mediators and
support personnel.
(4) To assist LEAs in meeting personnel shortages.
(5) To develop a State Improvement Plan under subpart 1 of Part D
of the Act.
(6) Activities at the State and local levels to meet the
performance goals established by the State under Sec. 300.137 and to
support implementation of the State Improvement Plan under subpart 1 of
Part D of the Act if the State receives funds under that subpart.
(7) To supplement other amounts used to develop and implement a
Statewide coordinated services system designed to improve results for
children and families, including children with disabilities and their
families, but not to exceed one percent of the amount received by the
State under section 611 of the Act. This system must be coordinated
with and, to the extent appropriate, build on the system of coordinated
services developed by the State under Part C of the Act.
(8) For subgrants to LEAs for the purposes described in
Sec. 300.622.
(b) For the purposes of paragraph (a) of this section--
(1) Direct services means services provided to a child with a
disability by the State directly, by contract, or through other
arrangements; and
(2) Support services includes implementing the comprehensive system
of personnel development under Secs. 300.380-300.382, recruitment and
training of hearing officers and surrogate parents, and public
information and parent training activities relating to FAPE for
children with disabilities.
(Authority: 20 U.S.C. 1411(f)(3))
Sec. 300.371 [Reserved]
Sec. 300.372 Applicability of nonsupplanting requirement.
A State may use funds it retains under Sec. 300.602 without regard
to--
[[Page 55093]]
(a) The prohibition on commingling of funds in Sec. 300.152; and
(b) The prohibition on supplanting other funds in Sec. 300.153.
(Authority: 20 U.S.C. 1411(f)(1)(C))
Comprehensive System of Personnel Development
Sec. 300.380 General.
(a) Each State shall develop and implement a comprehensive system
of personnel development that--
(1) Is consistent with the purposes of this part and with section
635(a)(8) of the Act;
(2) Is designed to ensure an adequate supply of qualified special
education, regular education, and related services personnel;
(3) Meets the requirements of Secs. 300.381 and 300.382; and
(4) Is updated at least every five years.
(b) A State that has a State improvement grant has met the
requirements of paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(14))
Sec. 300.381 Adequate supply of qualified personnel.
Each State must include, at least, an analysis of State and local
needs for professional development for personnel to serve children with
disabilities that includes, at a minimum--
(a) The number of personnel providing special education and related
services; and
(b) Relevant information on current and anticipated personnel
vacancies and shortages (including the number of individuals described
in paragraph (a) of this section with temporary certification), and on
the extent of certification or retraining necessary to eliminate these
shortages, that is based, to the maximum extent possible, on existing
assessments of personnel needs.
(Authority: 20 U.S.C. 1453(b)(2)(B))
Sec. 300.382 Improvement strategies.
Each State must describe the strategies the State will use to
address the needs identified under Sec. 300.381. These strategies must
include how the State will address the identified needs for in-service
and pre-service preparation to ensure that all personnel who work with
children with disabilities (including both professional and
paraprofessional personnel who provide special education, general
education, related services, or early intervention services) have the
skills and knowledge necessary to meet the needs of children with
disabilities. The plan must in