FR Doc 05-11804
[Federal Register: June 21, 2005 (Volume 70, Number 118)]
[Proposed Rules]
[Page 35781-35892]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn05-39]
[[Page 35781]]
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Part II
Department of Education
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34 CFR Parts 300, 301, and 304
Assistance to States for the Education of Children With Disabilities;
Preschool Grants for Children With Disabilities; and Service
Obligations Under Special Education--Personnel Development To Improve
Services and Results for Children With Disabilities; Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Parts 300, 301 and 304
RIN 1820-AB57
Assistance to States for the Education of Children With
Disabilities; Preschool Grants for Children With Disabilities; and
Service Obligations Under Special Education--Personnel Development To
Improve Services and Results for Children With Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Secretary proposes to amend the regulations governing the
Assistance to States for Education of Children with Disabilities
Program, the Preschool Grants for Children With Disabilities Program,
and Service Obligations under Special Education Personnel Development
to Improve Services and Results for Children with Disabilities. These
amendments are needed to implement recently enacted changes made to the
Individuals with Disabilities Education Act, as amended by the
Individuals with Disabilities Education Improvement Act of 2004.
DATES: To be considered, comments must be received at one of the
addresses provided in the ADDRESSES section no later than 5 p.m.
Washington, DC Time on September 6, 2005. Comments received after this
time will not be considered.
We will hold public meetings about this NPRM. The dates and times
of the meetings and the cities in which the meetings will take place
are in Public Meetings under Invitation to Comment elsewhere in this
preamble.
ADDRESSES: Address all comments about these proposed regulations to
Troy R. Justesen, U.S. Department of Education, 400 Maryland Avenue,
SW., Potomac Center Plaza, room 5126, Washington, DC 20202-2641. If you
prefer to send your comments through the Internet, you may address them
to us at the U.S. Government Web site: http://www.regulations.gov or you may
send your Internet comments to us at the following address:
IDEAComments@ed.gov.
You must include the term IDEA-Part B in the subject line of your
electronic message. Please submit your comments only one time, in order
to ensure that we do not receive duplicate copies.
If you want to comment on the information collection requirements,
you must send your comments to the Office of Management and Budget at
the address listed in the Paperwork Reduction Act section of this
preamble. You may also send a copy of those comments to the U.S.
Department of Education (Department) representative named in this
section.
All first-class and Priority mail sent to the Department is put
through an irradiation process, which can result in lengthy delays in
mail delivery. Please keep this in mind when sending your comments and
please consider using commercial delivery services or e-mail in order
to ensure timely delivery of your comments.
FOR FURTHER INFORMATION CONTACT: Troy R. Justesen. Telephone: (202)
245-7468.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay System (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation To Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
provide to reduce the potential costs or increase potential benefits
while preserving the effective and efficient administration of these
programs.
During and after the comment period, you may inspect all public
comments about these proposed regulations in room 5126, Potomac Center
Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30
a.m. and 4 p.m., Eastern time, Monday through Friday of each week
except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader, or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Public Meetings
The dates and cities where the meetings about this NPRM will take
place are listed below. Each meeting will take place from 1 to 4 p.m.
and from 5 to 7 p.m.
Friday, June 17, 2005 in Nashville, TN;
Wednesday, June 22, 2005 in Sacramento, CA;
Friday, June 24, 2005 in Las Vegas, NV;
Monday, June 27, 2005 in New York, NY;
Wednesday, June 29, 2005 in Chicago, IL;
Thursday, July 7, 2005 in San Antonio, TX; and
Tuesday, July 12, 2005 in Washington, DC.
We provided more specific information on meeting locations in a
notice published in the Federal Register (70 FR 30917).
Assistance to Individuals With Disabilities at the Public Meetings
The meeting sites are accessible to individuals with disabilities,
and sign language interpreters will be available. If you need an
auxiliary aid or service other than a sign language interpreter (e.g.,
interpreting service such as oral, cued speech, or tactile interpreter,
assisted listening device, or materials in an alternative format),
notify the contact person listed in this NPRM at least two weeks before
the scheduled meeting date. Although we will attempt to meet a request
we receive after this date, we may not be able to make available the
requested auxiliary aid or service because of insufficient time to
arrange it.
Background
On December 3, 2004, the Individuals with Disabilities Education
Improvement Act of 2004 was enacted into law as Pub L. 108-446. The
statute, as passed by Congress and signed by the President,
reauthorizes and makes significant changes to the Individuals with
Disabilities Education Act.
The Individuals with Disabilities Education Act, as amended by the
Individuals with Disabilities Education Improvement Act of 2004 (Act or
IDEA), is intended to help children with
[[Page 35783]]
disabilities achieve to high standards--by promoting accountability for
results, enhancing parental involvement, and using proven practices and
materials; and, also, by providing more flexibility and reducing
paperwork burdens for teachers, States, and local school districts.
Enactment of the new law provides an opportunity to consider
improvements in the current regulations that would strengthen the
Federal effort to ensure every child with a disability has available a
free appropriate public education that--(1) is of high quality, and (2)
is designed to achieve the high standards reflected in the Elementary
and Secondary Education Act of 1965, as amended by the No Child Left
Behind Act of 2001 (NCLB) and its implementing regulations.
Changes to the current Part B regulations (34 CFR parts 300 and
301) and Part D regulations (34 CFR part 304) are necessary in order
for the Department to appropriately and effectively address the
provisions of the new law and to assist State and local educational
agencies in implementing their responsibilities under the new law.
Changes to the current Part C regulations (part 303) also are necessary
in order for the Department to appropriately and effectively address
the provisions in Part C of the Act and to assist States in completing
their responsibilities under the new law. The NPRM for the Part C
regulations will be published soon.
On December 29, 2004, the Secretary published a notice in the
Federal Register requesting advice and recommendations from the public
on regulatory issues under the Act, and announcing a series of seven
public meetings during January and February of 2005 to seek further
input and suggestions from the public for developing regulations based
on the new statute.
Over 6000 public comments were received in response to the Federal
Register notice and at the seven public meetings, including letters
from parents and public agency personnel, and parent-advocate and
professional organizations. The comments addressed each major provision
of the new law (such as discipline procedures, provisions on personnel
qualifications and highly qualified teachers, provisions related to
evaluation of children and individualized education programs,
participation of private school children with disabilities, and
provisions on early intervening services). These comments were reviewed
and considered in developing this NPRM. The Secretary appreciates the
interest and thoughtful attention of the commenters responding to the
December 29, 2004 notice and participating in the seven public
meetings.
General Proposed Regulatory Plan and Structure
In developing this NPRM, we have elected to construct one
comprehensive, freestanding document that incorporates virtually all
requirements from the new law along with the applicable regulations,
rather than publishing a regulation that does not include statutory
provisions. The rationale for doing this is to create a single
reference document for parents, State personnel, school personnel, and
others to use, rather than being forced to shift between one document
for regulations and a separate document for the statute. This approach
was used in developing the current regulations. Although this approach
will result in a larger document, it is our impression that various
groups strongly support continuing this practice.
In addition, we have reorganized the regulations by following the
general order and structure of provisions in the statute, rather than
using the arrangement of the current regulations. We believe this
change in organization will be helpful to parents, State and local
educational agency personnel, and the public both in reading the
regulations, and in finding the direct link between a given statutory
requirement and the regulation related to that requirement. Thus, in
general, the requirements related to a given statutory section (e.g.,
State eligibility in section 612 of the Act) will be included in one
location (subpart B) and in the same general order as in the statute,
rather than being spread throughout four or more subparts, as the
statutory sections are in the current regulations.
As restructured in this NPRM, the proposed regulations are divided
into eight major subparts, each of which is directly linked to, and
comports with, the general order of provisions in a specific section of
the Act. For example, we have revised subpart G of the regulations to
include all provisions regarding the allotment and use of funds from
section 611 of the Act, rather than having those provisions dispersed
among several different subparts, as they are in the current
regulations.
In addition, we have removed part 301 (Preschool Grants for
Children with Disabilities) from title 34 and placed the Preschool
Grants provisions from section 619 of the Act into a new subpart H
under part 300. This restructuring and consolidation of the financial
requirements from both the statute and regulations into a specific
location in the regulations should be useful to State and local
administrators and others in finding the relevant statutory and
regulatory provisions regarding both the Assistance to States and
Preschool Grants programs.
In reviewing the current regulations, we considered their continued
necessity and relevance in light of a number of factors: Whether
statutory changes required changes to existing regulations; whether
changes in other laws, or the passage of time and changed conditions
rendered the regulations obsolete or unnecessary; whether less
burdensome alternatives or greater flexibility was appropriate; and
whether the regulation could be changed in light of section 607(b) of
the Act (section 607(b) of the Act provides that the Secretary may not
publish final regulations that would procedurally or substantively
lessen the protections provided to children with disabilities in the
regulations that were in effect on July 20, 1983, except to the extent
that such regulation reflects the clear and unequivocal intent of the
Congress in legislation). In the following discussion of proposed
regulatory changes, we identify the changes that would be made to
existing regulations after consideration of these factors.
Proposed Regulatory Changes
Subpart A--General
Purposes and Applicability
Proposed Sec. 300.1 would be revised only to add, consistent with
a change to section 601(d)(1)(A) of the Act, the words ``further
education'' in paragraph (a).
Except for the section heading, proposed Sec. 300.2 would be
unchanged from the existing provision.
Section 300.3 of the current regulations would be removed as
unnecessary, because the regulations listed in this section already
apply, by their own terms, to States and local agencies under Part B of
the Act.
Definitions Used in This Part
As in the current regulations, proposed Sec. 300.4 (Act) would
refer to the Individuals with Disabilities Education Act, as amended.
Proposed Sec. 300.5 (Assistive technology device) would retain the
current definition, and include the new language from section 602(1) of
the Act that the term does not include a medical device that is
surgically implanted, or the replacement of that device.
Proposed Sec. 300.6 (Assistive technology service) would be
consistent with the current regulatory definition of that term.
[[Page 35784]]
Proposed Sec. 300.7 (Charter school) would define the term to have
the meaning given that term in section 5210(1) of the Elementary and
Secondary Education Act of 1965, as amended, 20 U.S.C 6301 et seq.
(ESEA).
Proposed Sec. 300.8 (Child with a disability) would make the
following changes to the current regulatory definition in Sec. 300.7:
In paragraphs (a)(1) and (a)(2) cross-references to evaluation
procedures would be updated to reflect the placement of those
procedures in these proposed regulations. The parenthetical following
``serious emotional disturbance'' in paragraph (a)(1) would be revised
to read ``referred to in this part as emotional disturbance.'' The
cross-reference regarding related services in the definition of special
education in paragraph (a)(2)(ii) would be updated. In paragraph (b), a
parenthetical phrase would be added following the reference to children
aged three through nine to clarify that ``developmental delay'' could
be used for any subset of that age range, including children three
through five. This reflects a change in section 602(3)(B) of the Act.
Paragraph (c)(8) (Orthopedic impairment) would revise current Sec.
300.7(c)(8) by removing the parenthetical listing of examples, because
these examples are outdated.
Finally, in paragraph (c)(10)(i) of proposed Sec. 300.8, which
contains a definition of the term specific learning disability, the
word ``the'' would be substituted for ``an'' before the phrase
``imperfect ability to listen, think, * * *'' reflecting the addition
of ``the'' in section 602(30)(A) of the Act.
Proposed Sec. 300.9 would incorporate the regulatory definition of
Consent that appears in Sec. 300.500(b)(1) of the current regulations.
The current provision in Sec. 300.8 that cross-references the Sec.
300.500 definition of consent, would be removed.
Consistent with section 602(4) of the Act, proposed Sec. 300.10
would add the new definition of Core academic subjects as that term is
defined in section 9101 of the ESEA.
Proposed Sec. 300.11 would revise the definitions of Day; business
day; school day in current Sec. 300.9 only by updating the cross-
reference to the regulatory requirement in proposed Sec. 300.148(c)
concerning a limitation on reimbursement for private school placements.
The regulatory definition of Educational service agency currently
in Sec. 300.10 would be moved to proposed Sec. 300.12 and revised by
adding the word ``schools'' after ``public elementary'' in paragraph
(a)(2) of this section to conform with the language in section 602(5)
of the Act. In proposed paragraph (c), the provision concerning
entities that meet the definition of intermediate educational unit in
section 602(23) of the Act as in effect prior to June 4, 1997 would be
retained. There are entities still providing special education and
related services to preschool children with disabilities that meet the
definition of intermediate educational unit, but may not meet the
definition of educational service agency because they are not
responsible for the provision of special education and related services
provided within public elementary schools of the State.
Proposed Sec. 300.13 would reflect the definition of Elementary
school in section 602(6) of the Act, including the new language
specifying that the term includes a public elementary charter school.
Proposed Sec. 300.14 would reflect the current statutory
definition of Equipment and would be substantially the same as Sec.
300.11 of the current regulations.
Proposed Sec. 300.15 would incorporate the regulatory definition
of Evaluation that appears in the current regulations in Sec.
300.500(b)(2), with the cross-reference to the evaluation procedures
updated to reflect their placement in these proposed regulations and to
include the additional procedures regarding specific learning
disability. The current regulation, regarding evaluation in Sec.
300.12, which cross-references the definition in current Sec. 300.500,
would be removed as duplicative and unnecessary.
Proposed Sec. 300.16 (Excess costs), defined in the current
regulations in Sec. 300.184, would be revised consistent with changes
in section 602(8) of the Act. This provision is substantially the same
as the current definition in Sec. 300.184(b).
Proposed Sec. 300.17 (free appropriate public education or FAPE)
would incorporate the provisions of section 602(9) of the Act and be
the same as the definition in Sec. 300.13 of the current regulations,
except that Sec. 300.17(d) would be updated to add a cross-reference
to the individualized education program (IEP) requirements.
A new definition of highly qualified special education teacher
would be added in proposed Sec. 300.18, reflecting the addition of a
definition of this term to the statute in section 602(10) of the Act,
with the following modifications: Paragraph (a)(1) of this section
would specify that the term ``highly qualified'' applies only to public
elementary school and secondary school special education teachers,
consistent with the definition of that term in section 9101 of the
ESEA, which is incorporated into the Act and applied to special
education teachers in section 602(10) of the Act. We do not believe
that the ``highly qualified'' requirements of the ESEA, or, by
statutory cross-reference, the Act, were intended to apply to private
school teachers, even in situations where a child with a disability is
placed in, or referred to, a private school by a public agency in order
to carry out the public agency's responsibilities under this part,
consistent with section 612(a)(10)(B) of the Act and proposed Sec.
300.146. This issue also is addressed in proposed Sec. 300.156.
Proposed Sec. 300.18(b)(2) would specify that a teacher
participating in an alternate route to certification program would be
considered to be fully certified under certain circumstances. The
standard to be applied to an alternate route to certification program
would be the same as for those programs under the regulations
implementing title I of the ESEA in 34 CFR Sec. 200.56(a)(2)(ii). This
would provide for consistency in the interpretation and application of
the alternate route to certification provisions across these programs.
In proposed Sec. 300.18(b)(3), a provision would be added to
clarify that a public elementary or secondary school teacher who is not
teaching a core academic subject would be considered highly qualified
if the teacher meets the requirements of proposed Sec. 300.18(b)(1)
and (2). This provision would reflect note 21 in U.S. House of
Representatives Conference Report No. 108-779, (Conf. Rpt.) that
special education teachers who are only providing consultative services
to other teachers who are highly qualified to teach particular academic
subjects, could be highly qualified by meeting the special education
qualifications alone. Proposed Sec. 300.18(c)(2) would clarify that
all special education teachers who are exclusively teaching students
who are assessed based on alternate academic achievement standards, as
permitted under the regulations implementing title I of the ESEA, at a
minimum, have subject matter knowledge at the elementary level or
above, as determined by the State, needed to effectively teach to those
standards. Note 21 in the Conf. Rpt. calls for teachers exclusively
teaching students who are assessed based on alternate academic
achievement standards above the elementary level to have a high level
of competency in each of the core academic subjects taught.
The proposed regulation would not specifically address the use of a
separate ``high objective uniform State standard of evaluation''
(HOUSSE) for special
[[Page 35785]]
education teachers. However, note 21 in the Conf. Rpt. recognized that
some States have developed HOUSSE standards for special education
teachers, and indicated that those separate HOUSSE standards should be
permitted, including single HOUSSE evaluations that cover multiple
subjects, as long as those adaptations of a State's HOUSSE for use with
special education teachers would not establish a lesser standard for
the content knowledge requirements for special education teachers. We
request comment on whether additional regulatory action is needed on
this point. Proposed Sec. 300.18(g) would clarify that the
requirements in proposed Sec. 300.18 regarding highly qualified
special education teachers do not apply with respect to teachers hired
by private elementary and secondary schools.
Proposed Sec. 300.19 would reflect the definition of Homeless
children added to the statute in section 602(11) of the Act.
The definition of include in proposed Sec. 300.20 is substantively
unchanged from the current regulatory provision in Sec. 300.14.
The proposed definitions of Indian and Indian tribe in Sec. 300.21
would incorporate the definitions of those terms currently in Sec.
300.264 and reflect the language in sections 602(12) and 602(13) of the
Act. The Department of Education seeks comment on the definition of
Indian tribe because the current definition includes state tribes. The
Department of the Interior is only authorized to provide services to
Federally Recognized tribes, therefore, States should provide comments
on how they would provide these services to State recognized tribes.
Nothing in this definition is intended to require the BIA to provide
services or funding to a State Indian tribe for which BIA is not
responsible.
The definition of Individualized education program or IEP in
proposed Sec. 300.22 would incorporate the regulatory definition of
that term currently in Sec. 300.340(a), and would reflect the language
in section 602(14) of the Act. The current Sec. 300.15 cross-
referencing the Sec. 300.340 definition would be removed as
duplicative and unnecessary.
Proposed Sec. 300.23 (Individualized education program team) would
be the same as Sec. 300.16 of the current regulations. The definition
in proposed Sec. 300.24 of Individualized family service plan would be
the same as the current regulatory definition in Sec. 300.17, except
that proposed Sec. 300.24 would appropriately refer to the current
statutory definition of IFSP in section 636 of the Act and not to the
regulatory definition in 34 CFR 303.340(b).
Proposed Sec. 300.25 (Infant or toddler with a disability), Sec.
300.26 (Institution of higher education), and Sec. 300.27 (Limited
English proficient) would reflect statutory definitions of those terms
in sections 602(16), 602(17), and 602(18) of the Act, respectively.
Proposed Sec. 300.28 (Local educational agency or LEA) is
substantively unchanged from the current regulatory definition in Sec.
300.18, and would reflect the definition of that term in section
602(19) of the Act.
Proposed Sec. 300.29 (Native language) is substantively unchanged
from the current regulatory definition of that term in Sec. 300.19.
Proposed Sec. 300.30 (Parent) would revise the current regulatory
definition of that term in Sec. 300.20 to better reflect the revised
statutory definition of Parent in section 602(23) of the Act. Proposed
Sec. 300.30(a)(2) would reflect the provision regarding a State law
prohibition on when a foster parent can be considered a parent, but
would add language to recognize that similar restrictions may exist in
State regulations or in contractual agreements between a State or local
entity and the foster parent, and should be accorded similar deference.
Proposed Sec. 300.30(b)(1) would provide that the natural or adoptive
parent would be presumed to be the parent for purposes of the
regulations if that person were attempting to act as the parent under
proposed Sec. 300.30 and more than one person is qualified to act as a
parent, unless that person does not have legal authority to make
educational decisions for the child, or there is a judicial order or
decree specifying some other person to act as the parent under Part B
of the Act. Proposed Sec. 300.30(b)(2) would provide that if a person
or persons is specified in a judicial order or decree to act as the
parent for purposes of Sec. 300.30, that person would be the parent
under Part B of the Act. Proposed Sec. 300.30(b)(2) would, however,
exclude an agency involved in the education or care of the child from
serving as a parent, consistent with the statutory prohibition that
applies to surrogate parents in sections 615(b)(2) and 639(a)(5) of the
Act. The provisions in proposed Sec. 300.30(b) should assist schools
and public agencies in identifying the appropriate person to serve as
the parent under Part B of the Act, especially in those difficult
situations in which more than one individual wants to make educational
decisions.
Proposed Sec. 300.31 would add a new definition of Parent training
and information center reflecting section 602(25) of the Act. This term
would be used in proposed Sec. 300.506.
Proposed Sec. Sec. 300.32 (Personally identifiable) and 300.33
(Public agency) are substantively unchanged from current regulatory
definitions of these terms in Sec. 300.500(b)(3) and Sec. 300.22,
respectively. We note that throughout these proposed regulations,
public agency has been used to make clear where the requirements do not
apply only to States and LEAs.
The current regulatory definition of Qualified personnel in Sec.
300.23 would be removed, because personnel qualifications would be
adequately addressed in proposed Sec. 300.156.
Proposed Sec. 300.34 (Related services), reflecting changes in
section 602(26) of the Act, would amend the current regulatory
definition in Sec. 300.24 in the following ways: In proposed Sec.
300.34(a) ``interpreting services'' and ``school nurse services
designed to enable a child with a disability to receive a free
appropriate public education as described in the IEP of the child''
would be added. Proposed Sec. 300.34(b) would be added to address the
statutory limitation on surgically implanted medical devices. Paragraph
(b) also would specify that related services would not include the
costs of maximizing the functioning of a surgically implanted device or
the maintenance of a surgically implanted device. School districts
should not be required to bear these costs, which are integral to the
functioning of the implanted device. Proposed paragraph (c) would
include new definitions of Interpreting services and School nurse
services. The list is not intended to be exhaustive and other
therapies, as well as other services not listed, may be included in a
child's IEP if the IEP Team determines that a particular service is
needed for a child to benefit from special education. In all cases
concerning related services, the IEP Team's determination about
appropriate services must be reflected in the child's IEP and those
listed services must be provided in accordance with the IEP at public
expense and at no cost to the parents. Nothing in the Act or in the
definition of related services requires the provision of a related
service to a child unless the child's IEP Team has determined that the
service is required in order for the child to benefit from special
education and has included the service on the child's IEP.
Proposed Sec. 300.35 (Secondary school) would revise the current
regulatory definition of this term in Sec. 300.25 to add the new
statutory language specifying
[[Page 35786]]
that the term includes a public secondary charter school.
Proposed Sec. 300.36 (Services plan) would add a new definition
that would describe the content, development, and implementation of
plans for parentally-placed private school children with disabilities
who have been designated to receive services. The definition would
cross-reference the specific requirements for the provision of services
to parentally-placed private school children with disabilities in
proposed Sec. Sec. 300.132 and 300.137 through 300.139.
Proposed Sec. 300.37 (Secretary) would reflect the statutory
definition of that term in section 602(28) of the Act.
Proposed Sec. Sec. 300.38 (Special education), 300.39 (State), and
300.41 (Supplementary aids and services) would be substantively
unchanged from current regulatory provisions in Sec. Sec. 300.26,
300.27 and 300.28, respectively, except that State would be revised to
reference an exception when the term is used in subparts G and H of
these regulations. Proposed Sec. 300.38(b)(5) would revise the
definition of vocational education in current Sec. 300.26(b)(5) to
include the definition of vocational and technical education and the
definition of vocational and technical education in the Carl D. Perkins
Vocational and Applied Technology Act of 1988, as amended, 20 U.S.C.
2301, 2302(29) would be added in proposed Sec. 300.38(b)(6).
Proposed Sec. 300.42 (Transition services) would revise the
current regulatory definition of the term in Sec. 300.29, reflecting
new statutory language in section 602(34) of the Act.
New proposed definitions would be added in Sec. Sec. 300.43 and
300.44 reflecting the statutory definitions of Universal design and
Ward of the State, respectively. The definition of Ward of the State
underscores that the determination of whether a child is a ward of the
State is limited to applicable State law. Finally, the current list of
definitions found in the Education Department General Administrative
Regulations (EDGAR) in Sec. 300.30 would be removed as unnecessary, as
these definitions already apply by their own terms, except that the
definition of Secretary in proposed Sec. 300.37 and State educational
agency in proposed Sec. 300.40, which are included in the current
EDGAR list, would be included in the proposed regulation because they
also are defined in section 602(28) and (32) of the Act.
Subpart B--State Eligibility
General
Revised subpart B would incorporate current provisions from other
subparts that, under the current regulations, are cross-referenced in
subpart B. These changes would be consistent with the statutory
structure. Some of the provisions that are consolidated in proposed
subpart B would include: certain provisions related to FAPE, currently
in subpart C; provisions regarding private school children with
disabilities, currently in subpart D; the least restrictive environment
(LRE) provisions, currently in subpart E; and the State complaint
procedures, currently in subpart F.
Proposed Sec. 300.100 would revise current Sec. 300.110 to
provide for the submission of a plan that includes assurances related
to the conditions of eligibility for assistance. The requirement that
States submit copies of all State statutes, regulations, and other
documents would be removed from current Sec. 300.110, consistent with
the changes in Section 612(a) of the Act. Consistent with this
approach, these proposed regulations would eliminate from the current
regulations throughout subpart B all provisions requiring that policies
and procedures be on file with the Secretary.
FAPE Requirements
Proposed Sec. 300.101 would incorporate the current general FAPE
provision in Sec. 300.121(a), and would include a reference to the
SEA's obligation to make FAPE available to children who have been
suspended or expelled from school, consistent with proposed Sec.
300.530(d). Consistent with changes to the statute, the current
provisions in Sec. 300.121(b) regarding submission of State
documentation, such as statutes and court orders, would be removed. The
current provisions in Sec. 300.121(c), regarding FAPE beginning at age
three, generally would be retained. The current provisions in Sec.
300.121(e), regarding children advancing from grade to grade, also
would be retained. These provisions provide useful information on
appropriate implementation of public agency responsibilities under Part
B. Section 300.121(d) of the current regulations would not be retained
in these proposed regulations. Instead, the obligation to ensure the
right to FAPE for children who have been suspended or expelled from
school would be addressed in proposed Sec. 300.530(d) in subpart E.
Proposed Sec. 300.102 would retain the current exceptions to FAPE
in Sec. 300.122. For consistency with the statute, references to
``students'' would be changed to ``children.'' The proposed regulation
would contain a new provision regarding children who are eligible for
services under section 619 of the Act, but who are receiving early
intervention services under Part C, consistent with the statutory
language in section 612(a)(1)(c) of the Act. Proposed Sec. 300.102(b)
also would include a new provision that would require that information
regarding exceptions to FAPE be current and accurate. This information
is necessary for the Department to allocate funds accurately among the
States.
Other FAPE Requirements
Proposed Sec. Sec. 300.103, 300.104, and 300.105(b), regarding
methods and payments; residential placement; and proper functioning of
hearing aids would retain the provisions from Sec. Sec. 300.301
through 300.303 of the current regulations, respectively. Proposed
Sec. 300.105(a), regarding assistive technology, would retain the
provisions in current Sec. 300.308.
Proposed Sec. Sec. 300.106 through 300.108, regarding extended
school year services, nonacademic services, and physical education,
would retain the current provisions in Sec. 300.309, Sec. 300.306,
and Sec. 300.307, respectively. Proposed Sec. 300.109, regarding a
full educational opportunity goal, generally would retain the current
provisions in Sec. Sec. 300.123 and 300.124, but would combine them,
consistent with section 612(a)(2) of the Act.
Proposed Sec. 300.110, regarding program options, would retain the
current provisions in Sec. 300.305.
Proposed Sec. 300.111, regarding child find, generally would
retain the current provisions in Sec. 300.125 and, consistent with
changes in section 612(a)(3) of the Act, would specifically reference
children who are homeless or are wards of the State. In addition,
proposed Sec. 300.111(b) would incorporate the provisions related to
developmental delay currently in Sec. 300.313(a). The proposed
regulation would remove the current provisions in Sec. 300.313(b)
regarding use of individual disability categories and Sec. 300.313(c)
regarding a common definition of developmental delay as they are
unnecessary. States have the option of using developmental delay and
other eligibility categories for children with disabilities aged three
through nine and subsets of that age range and of using a common
developmental delay definition for Parts B and C of the Act. The
proposed regulations generally would retain the current provisions in
Sec. 300.125(a)(2) and (d), regarding other children included in
[[Page 35787]]
child find and the construction of Part B of the Act as not requiring
that children be classified by their disability, as long as each child
who needs special education and related services is regarded as having
a disability under the Act. Consistent with other changes in these
regulations to remove eligibility documentation requirements, the
proposed regulation would remove the provision in Sec. 300.125(b) of
the current regulations that the State must have policies and
procedures on file with the Secretary. The proposed regulation also
would remove the provision in Sec. 300.125(c) of the current
regulations, regarding child find for children from birth through age
two when the SEA is the lead agency for the Part C program, because
this is a clarification that does not need to be in the regulations.
The child find requirement under these regulations has traditionally
been interpreted to mean identifying and evaluating children from
birth. While child find under Part C of the Act overlaps, in part, with
Part B of the Act, the coordination of child find activities under Part
B and Part C is an implementation matter that would be best left to
each State. Nothing in the Act prohibits the Part C lead agency's
participation, with the agreement of the SEA, in the actual
implementation of child find activities for infants and toddlers with
disabilities.
Proposed Sec. 300.112, regarding individualized education programs
(IEPs), would revise the current provisions in Sec. 300.128 by adding
an exception that references the requirement in proposed Sec.
300.300(b)(3)(ii). That exception would provide that if the parent of a
child with a disability refuses to consent to the initial provision of
special education and related services, or the parent fails to respond
to a request to provide consent for the initial provision of special
education and related services, the public agency is not required to
convene an IEP meeting to develop an IEP for the child for which the
public agency requests such consent. Consistent with other changes in
these proposed regulations, the proposed regulation would remove Sec.
300.128(b), which requires the State to have policies and procedures on
file with the Secretary.
Least Restrictive Environment
Proposed Sec. 300.114, regarding LRE, generally would retain the
current provisions in Sec. 300.550(b). The proposed regulation would
remove the documentation requirements of Sec. 300.130(a) and Sec.
300.550(a) and (b), consistent with other changes in these proposed
regulations. The current provision related to an assurance regarding a
State's funding mechanism in Sec. 300.130(b)(2) would be retained in
proposed Sec. 300.114(b)(1). This section would provide that a State
funding mechanism must not result in placements that violate the LRE
provisions and that the State must not use a funding mechanism that
distributes funds on the basis of the type of setting in which a child
is served that will result in the failure to provide a child with a
disability FAPE according to the unique needs of the child, as
described in the child's IEP. This change is consistent with language
in section 612(a)(5)(B)(i) of the Act.
With regard to section 612(a)(5)(B)(i) of the Act, note 89 in the
Conf. Rpt. states that some States continue to use funding mechanisms
that provide financial incentives for, and disincentives against,
certain placements and these new provisions in the statute were added
to prohibit States from maintaining funding mechanisms that violate
appropriate placement decisions, not to require States to change
funding mechanisms that support appropriate placement decisions. Note
89 of the Conf. Rpt. indicates that it is the intent of the changes to
section 612(a)(5)(B) of the Act to prevent State funding mechanisms
from affecting appropriate placement decisions for children with
disabilities. As also set out in note 89, the law requires that each
public agency ensure that a continuum of alternative placements
(instruction in regular classes, special classes, special schools, home
instruction, and instruction in hospitals and institutions) is
available to meet the needs of children with disabilities for special
education and related services. The note further explains that State
funding mechanisms must be in place to ensure funding is available to
support the requirements of this provision, not to provide an incentive
or disincentive for placement and that the LRE principle is intended to
ensure that a child with a disability is served in a setting where the
child can be educated successfully in the least restrictive setting.
Proposed paragraph (b)(2) would replace Sec. 300.130(b)(2) and require
a State that does not have policies and procedures to this effect to
provide an assurance as soon as feasible to ensure that the mechanism
does not result in placements that violate the LRE principle. The other
provisions regarding LRE would be retained with appropriate updating of
cross-references, as described in the following paragraphs.
Proposed Sec. 300.115, regarding continuum of placements, would
retain the language currently in Sec. 300.551. Proposed Sec. 300.116,
regarding placements, would retain the language currently in Sec.
300.552, except that paragraph (b)(3) would be revised to clarify that
a child's placement must be as close as possible to the child's home
unless the parent agrees otherwise. Finally, Sec. 300.116(c) would be
revised to require that each public agency ensure that, unless the IEP
of a child with a disability requires some other arrangement, the child
is educated in the school he or she would attend if not disabled,
unless the parent agrees otherwise. This additional language, ``unless
the parent agrees otherwise,'' in paragraphs (b)(3) and (c) would
clarify that parents can choose to send their child to a charter
school, magnet school, or other specialized school without causing a
violation of the LRE mandate.
Proposed Sec. 300.117, regarding nonacademic settings, would
retain the current provisions in Sec. 300.553. Proposed Sec. 300.118,
regarding children in public or private institutions, would retain the
current provisions in Sec. 300.554.
Proposed Sec. 300.119, regarding technical assistance and
training, would retain the current provisions in Sec. 300.555.
Proposed Sec. 300.120, regarding LRE monitoring activities, would
retain the current provisions in Sec. 300.556.
Additional Eligibility Requirements
Proposed Sec. 300.121, regarding procedural safeguards, would
retain the current provision in Sec. 300.129(a), but would remove the
provision in Sec. 300.129(b) regarding having the safeguards on file
with the Secretary, consistent with statutory changes eliminating
requirements that States file documentation with the Secretary.
Proposed Sec. 300.122 would remove the current requirement in
Sec. 300.126 that evaluation policies and procedures be on file with
the Secretary, consistent with statutory changes discussed previously.
Consistent with the provision in section 612(a)(7) of the Act, proposed
Sec. 300.122 would require that children with disabilities be
evaluated consistent with the requirements in subpart D of these
proposed regulations. The relevant requirements are addressed elsewhere
in this preamble in the discussion of subpart D.
Proposed Sec. 300.123 would remove the current requirement in
Sec. 300.127 that policies and procedures related to confidentiality
be on file with the Secretary and the criteria the Secretary uses to
evaluate those policies and
[[Page 35788]]
procedures, consistent with statutory changes discussed previously.
Instead, the proposed regulation would require that public agencies
comply with subpart F of these regulations relating to the
confidentiality of records and information. The relevant requirements
are addressed elsewhere in this preamble in the discussion of subpart
F.
Proposed Sec. 300.124, regarding the transition of children from
the Part C program to preschool programs under Part B, would remove the
current requirement in Sec. 300.132 that policies and procedures
related to confidentiality be on file with the Secretary, as discussed
previously. The proposed regulation generally would retain the other
provisions of Sec. 300.132. Proposed Sec. 300.124(c) would clarify
that only affected LEAs must participate in transition planning
conferences arranged by the designated lead agency under Part C of the
Act.
Children in Private Schools
Proposed Sec. 300.129, concerning State responsibilities regarding
children in private schools, would revise the current requirements in
Sec. 300.133, by removing the requirement that a State must have on
file with the Secretary policies and procedures that ensure that the
requirements of current Sec. Sec. 300.400 through 300.403 and current
Sec. Sec. 300.460 through 300.462 are met. Proposed Sec. 300.129
would make clear that the State must have in effect policies and
procedures that ensure that LEAs and, if appropriate, the SEA, meet the
private school requirements in proposed Sec. Sec. 300.130 through
300.148.
Children With Disabilities Enrolled by Their Parents in Private Schools
Proposed Sec. 300.130, regarding the definition of parentally-
placed private school children with disabilities, would incorporate the
current provisions in Sec. 300.450.
Proposed Sec. 300.131, regarding child find for parentally-placed
private school children with disabilities, generally would retain the
current requirements in Sec. 300.451, but would clarify, consistent
with the changes in proposed Sec. Sec. 300.132 and 300.133, that the
provisions governing parentally-placed private school children with
disabilities apply to children who are enrolled in private schools
located in the school district served by the LEA. The new statutory
requirements in section 612(a)(10)(A)(ii) of the Act should ensure that
parentally-placed private school children will not be denied the
opportunity to receive services that would otherwise be available to
them because of practical obstacles posed when they attend a private
school located outside their district of residence.
Proposed regulations in Sec. 300.131(b) through (e) also would
include new provisions that incorporate the new requirements in section
612(a)(10)(A)(ii) of the Act, designed to ensure that child find for
parentally-placed private school children suspected of having
disabilities is comparable to child find for public school children
suspected of having disabilities. Proposed Sec. 300.131 would require
that the participation in child find for parentally-placed private
school children with disabilities be equitable, the counts be accurate,
the activities undertaken be similar to child find activities for
public school children with disabilities, and the period for completion
of the child find process be comparable to the period for completion
for public school children with disabilities when a parent consents to
the evaluation. Similar to the current provision in Sec. 300.453(c),
and consistent with section 612(a)(10)(A)(ii)(IV) of the Act, proposed
Sec. 300.131(d) would provide that the costs of carrying out the child
find requirements for parentally-placed private school children with
disabilities, including individual evaluations, may not be considered
in determining whether an LEA has met its obligations under proposed
Sec. 300.133.
The proposed regulation would remove current Sec. 300.453(d),
regarding the permissibility of additional services, as it merely
provides clarification for which a regulation is not necessary. Nothing
in the Act prohibits SEAs and LEAs from providing other services to
parentally-placed private school children with disabilities in addition
to the services that are required under Part B of the Act.
Proposed Sec. 300.132(a), regarding the provision of services for
parentally-placed private school children with disabilities, would
revise current Sec. 300.452(a) in light of changes in section
612(a)(10)(A) of the Act, which refers to children ``enrolled in
private elementary schools and secondary schools in the school district
served by a local educational agency.'' Therefore, proposed Sec.
300.132(a) would clarify that the provision of services under the
proposed regulations refers only to children with disabilities enrolled
by their parents in private schools located in the school district
served by the LEA. The proposed regulation also would add a reference
to the by-pass provisions in proposed Sec. Sec. 300.190 through
300.198. Proposed Sec. 300.132(b) generally would retain current Sec.
300.452(b), regarding a services plan for each private school child
with a disability designated to receive special education and related
services under Part B. Proposed Sec. 300.132(c) would require each LEA
to maintain and provide to the SEA records on the number of private
school children with disabilities evaluated, the number determined to
be children with disabilities, and the number of private school
children with disabilities served, consistent with section
612(a)(10)(A)(i)(V) of the Act.
Proposed Sec. 300.133, regarding expenditures for providing
special education and related services to parentally-placed private
school children with disabilities, would revise current Sec.
300.453(a), regarding the formula used in determining the proportionate
amount of expenditures, in light of changes in section
612(a)(10)(A)(i)(II) of the Act. Proposed Sec. 300.133(a) would
provide that the calculation of the proportionate amount of funds
allocated for services for parentally-placed private school children be
based on the count of parentally-placed private school children
attending private schools located in the LEA. The proposed regulation
would establish the formula as the number of children with
disabilities, ages 3 through 21, who are enrolled by their parents in
private schools located in the school district served by the LEA,
divided by the total number of children with disabilities, ages 3
through 21, in the LEA's jurisdiction. Proposed Sec. 300.133(b) would
incorporate the provision in section 612(a)(10)(A)(i)(II) of the Act
regarding a thorough and complete child find process. Proposed Sec.
300.133(c), regarding child count, generally would retain the current
provision in Sec. 300.453(b), but for clarity, would use the term
parentally-placed private school children with disabilities. The
existing provision in Sec. 300.453(c) would be removed, as similar
content would be more fully addressed in proposed Sec. 300.131(d).
Proposed Sec. 300.133(d) would incorporate the statutory provision
regarding supplementing not supplanting in section 612(a)(10)(A)(i)(IV)
of the Act.
Proposed Sec. Sec. 300.134 and 300.135 would incorporate new
provisions in section 612(a)(10)(A)(iii) and (iv) of the Act, regarding
timely and meaningful consultation with private school representatives
and representatives of parents of parentally-placed private school
children with disabilities, including a discussion of: How parentally-
placed children identified through the child find process can
meaningfully participate; how, where, and by whom special education and
related services will be provided; and
[[Page 35789]]
how, if the LEA disagrees with the views of the private school
officials and the services to be provided, the LEA will provide a
written explanation of why the LEA chose not to provide services
directly or through a contract. Proposed Sec. 300.135 would require,
in accordance with section 612(a)(10)(A)(iv) of the Act, a written
affirmation signed by the representatives of the participating private
schools that timely and meaningful consultation has occurred. The
current provisions in Sec. 300.454(b)(1) through (3), regarding the
consultation process, would be removed because they were superceded by
new statutory requirements related to consultation in section
612(a)(10)(A)(v) of the Act.
Proposed Sec. 300.136, regarding the right of a private school
official to submit to the SEA a complaint related to the LEA's
compliance with the timely and meaningful consultation requirements,
would incorporate the new provisions in section 612(a)(10)(A)(v) of the
Act.
Proposed Sec. 300.137(b) and (c), regarding determination of
services to parentally-placed private school children with
disabilities, generally would retain the current provisions in Sec.
300.454(a), (b)(4), and (c). Proposed Sec. 300.137(a) also would
include language from current Sec. 300.455(a)(3), providing that a
parentally-placed private school child with a disability has no
individual entitlement to receive some or all of the special education
and related services that the child would receive if enrolled in a
public school. This is an important clarification of the different
responsibilities that public schools have for providing special
education and related services to parentally-placed private school
children with disabilities. Under the Act, LEAs have an obligation to
provide the group of parentally-placed private school children with
disabilities with equitable participation in the services funded with
Federal IDEA funds. Because Federal funding constitutes only a portion
of the excess costs of providing special education and related services
to a child with disabilities, LEAs, in consultation with
representatives of the private schools, will have to make decisions
about how best to use the available Federal funds to address the needs
of the parentally-placed private school children with disabilities as a
group. In some LEAs, geography, school location, and the needs of the
parentally-placed private school children with disabilities may make it
possible for most, or even all of those children to receive some
services under section 612(a)(10)(A) of the Act. In other cases, the
Federal funds available may not be sufficient to provide all of these
children with special education and related services. Decisions about
how best to use the available Federal funds to ensure equitable
participation of the group of parentally-placed private school children
with disabilities are left to LEA personnel, in consultation with the
private school representatives, who understand what is feasible and
appropriate in particular situations.
Proposed Sec. 300.138, regarding equitable services provided to
parentally-placed private school children with disabilities, would
retain the current provisions in Sec. 300.455(a)(1) and (2), and (b),
regarding standards for personnel who provide services to parentally-
placed private school children, different amounts of services that may
be provided to parentally-placed private school children as compared
with those provided to children in public schools, and the provision of
services for each parentally-placed private school child who has been
designated to receive services in accordance with a services plan. The
proposed regulation also would include language from section
612(a)(10)(A)(vi) of the Act, which provides that the special education
and related services be provided directly by employees of the public
agency or through contract and that special education and related
services, including materials and equipment, be secular, neutral and
nonideological.
Proposed Sec. 300.139, regarding the location of services and
transportation, generally would retain the current provisions in Sec.
300.456 that clarify that LEAs may provide special education and
related services funded under Part B of the Act on site at the private,
including religious, schools to the extent consistent with law. It
should be noted that LEAs should provide such services for parentally-
placed private school children with disabilities on site at their
school, unless there is a compelling rationale for these services to be
provided off site.
Proposed Sec. 300.140, regarding the unavailability of due process
complaints, except for child find and the availability of State
complaints, would retain the current provisions in Sec. 300.457.
Proposed Sec. 300.140(b) would clarify that the State complaint
procedures would be used to address complaints about the implementation
of the consultation process in proposed Sec. 300.134. Proposed Sec.
300.141, regarding the requirement that funds not benefit a private
school, would retain the current provisions in Sec. 300.459. Proposed
Sec. 300.142 would combine the requirements of current Sec. Sec.
300.460 and 300.461 regarding the use of public school personnel and
private school personnel. Proposed Sec. 300.143, regarding the
prohibition of separate classes, would retain the requirements in
current Sec. 300.458.
Proposed Sec. 300.144 would incorporate provisions in section
612(a)(10)(A)(vii) of the Act regarding property, equipment, and
supplies for the benefit of private school children with disabilities
and would replace the current provisions in Sec. 300.462(a). The
proposed regulation would retain the current provisions in Sec.
300.462(b) through (e).
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Proposed Sec. Sec. 300.145, 300.146, and 300.147, regarding
children with disabilities placed in or referred to private schools by
public agencies, generally would retain the current provisions in
Sec. Sec. 300.400, 300.401, and 300.402, which provide that children
so placed or referred receive special education and related services in
conformity with an IEP at no cost to the parents. This would be
consistent with the requirement in section 612(a)(10)(B)(ii) of the
Act, which provides that the SEA determine whether such private schools
meet the standards that apply to the SEA and LEAs and that children
served have all the rights the children would have if served by these
agencies. Proposed Sec. 300.146(b) would continue to provide that
publicly-placed children with disabilities be provided an education
that meets the standards that apply to education provided by the SEA
and LEAs, including the requirements of part 300, except for the
requirements of Sec. Sec. 300.18 and 300.156(c). This provision is
intended to ensure that children with disabilities who are publicly-
placed in or referred to a private school or facility as a means of
providing these children with special education and related services
would continue to retain the same right to FAPE that they would have if
served directly by a public agency. However, because of statutory
language in the ESEA that the requirements regarding highly qualified
teachers apply only to public school teachers, as well as related
language in section 602(10) of the Act and proposed Sec. 300.18, we do
not read proposed Sec. 300.146(b) as requiring teachers of children
with disabilities who are placed in or referred to private schools by a
public agency to meet either the
[[Page 35790]]
``highly qualified teacher'' standard in the ESEA or the ``highly
qualified special education teacher'' standard in the Act. Proposed
Sec. 300.147, regarding implementation by the SEA, would incorporate,
without change, the provisions in current Sec. 300.402.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
Proposed Sec. 300.148, relating to placement of children with
disabilities in private schools when the provision of FAPE is at issue,
generally would retain the current provisions in Sec. 300.403(a), (c),
and (d). Proposed Sec. 300.148 would remove, as unnecessary, language
currently in Sec. 300.403(b), which provides that disagreements
regarding the availability of an appropriate program for the child and
the question of financial responsibility are subject to due process
procedures. Disputes about these matters would be subject to the due
process procedures even without this provision, because the central
issue in such disputes is whether the public agency has made FAPE
available to the child. Consistent with statutory language, proposed
Sec. 300.148(b) would include the term ``school'' after
``elementary.'' Proposed Sec. 300.148(d) would modify current Sec.
300.403(e), based on the specific provisions in section
612(a)(10)(C)(IV) of the Act.
The current provision on documentation of SEA responsibility for
general supervision in Sec. 300.141(a) and (b) would be removed
consistent with statutory changes regarding documentation. Proposed
Sec. 300.149, regarding SEA responsibility for general supervision,
would replace current Sec. 300.600(a) and incorporate language in
section 612(a)(11) of the Act to include a new provision referencing
the requirements of subtitle B of title VII of the McKinney-Vento
Homeless Assistance Act, 42 U.S.C. 11431. We also are adding a phrase
to Sec. 300.149(a)(2) to clarify that the SEA is not responsible for
exercising general supervision for education programs for children with
disabilities in elementary schools and secondary schools for Indian
children operated or funded by the Secretary of the Interior. Current
Sec. 300.600(b) also would be removed as a result of statutory changes
regarding submission of State information.
New language referencing the State monitoring and enforcement
responsibilities in proposed Sec. Sec. 300.602 and 300.606 through
300.608 would be added in Sec. 300.149(b) because State monitoring and
enforcement are central to the SEA's exercise of general supervision.
Proposed Sec. 300.149(c) and (d) respectively, would incorporate
current Sec. 300.600(c), clarifying that Part B does not limit the
responsibility of agencies other than educational agencies to provide
or pay for some or all of the cost of FAPE and Sec. 300.600(d),
regarding the ability of a Governor or other individual to assign to a
public agency, other than the SEA, responsibility for ensuring that the
requirements of Part B are met for students with disabilities convicted
as adults and incarcerated in adult prisons. As a general matter, for
educational purposes, students who had been enrolled in a BIA funded
school and are subsequently convicted as an adult and incarcerated in
an adult prison are the responsibility of the State where the adult
prison is located. The Secretary is seeking comment on whether further
clarification on this issue is warranted.
Proposed Sec. 300.150 would incorporate language from current
Sec. 300.143 regarding SEA implementation of procedural safeguards,
with a revision. Consistent with other changes to remove State
documentation requirements, proposed Sec. 300.150 would require States
to have policies in effect, rather than on file with the Department.
The cross-reference also would be updated. Current Sec. 300.145,
regarding recovery of funds for misclassified children, would be
removed. Under section 611 of the Act, funds are no longer distributed
based on a count of the children with disabilities served in a given
fiscal year.
State Complaint Procedures
In 1992, the Department moved these procedures into part 300 from
34 CFR 76.780 through 76.782 based on a decision to place the complaint
procedures into the specific program regulations to which they relate.
Proposed Sec. 300.151, regarding the adoption of State complaint
procedures, would incorporate the current provisions in Sec. 300.660,
with one substantive change. Proposed Sec. 300.151(b)(1) would remove
the reference to monetary reimbursement, so as not to imply that
reimbursement would be appropriate in the majority of State complaints.
Proposed Sec. 300.152, regarding minimum State complaint procedures,
would retain the current provisions in Sec. 300.661, with several
changes. Proposed Sec. 300.152(a)(3) would be added in order to
incorporate into the State complaint procedures an opportunity for a
public agency to respond to a complaint, including a chance to make a
proposal to resolve the complaint, and, with the consent of the parent,
to engage the parent in mediation or other alternative means of dispute
resolution. This change would encourage meaningful informal resolution
of disputes between the parties to the dispute. Proposed Sec.
300.152(b)(1) would add a provision that would allow extensions of the
60-day time limit if the parties agree to extend the timelines so that
they can engage in mediation or other alternative means of dispute
resolution. This change is intended to support cooperative dispute
resolution efforts, and not to result in uniform extensions. Proposed
Sec. 300.152(c)(1) would revise the language in current Sec.
300.661(c)(1) to provide a simplified process for setting aside
complaints that also are the subject of a due process hearing, which
should aid State implementation of the State complaint process.
Finally, current Sec. 300.661(c)(3) regarding a complaint involving a
public agency's failure to implement a due process decision would be
removed. The enforcement and implementation of due process hearing
decisions are matters in the province of State and Federal courts.
Proposed Sec. 300.153, regarding the filing of a complaint, would
retain the current provisions in Sec. 300.662, with some changes.
Proposed Sec. 300.153(b)(3) and (4) would add new information
requirements for complaints, similar to the basic notice requirement
for filing a due process complaint, in order to give the public agency
the information that would allow it to attempt to resolve the complaint
at the earliest opportunity. Proposed Sec. 300.153(c) would revise the
language in current Sec. 300.662(c) to require that the complaint must
allege a violation that occurred not more than one year prior to the
date the complaint is received, removing references to longer periods
for continuing violations and for compensatory services claims, to
ensure expedited resolution for public agencies and children with
disabilities. A one-year timeline is reasonable, and will assist in
smooth implementation of the State complaint procedures. Finally,
proposed Sec. 300.153(d) would add a new requirement that the party
filing a complaint forward a copy to the public agency involved at the
same time as the party files the complaint with the SEA. This will
ensure that the public agency involved has knowledge of the issues
raised, and an opportunity to resolve them directly with the
complaining party.
Methods of Ensuring Services
Proposed Sec. 300.154, regarding methods of ensuring services,
generally would retain the current provisions in Sec. 300.142.
Consistent with changes in section 612(a)(11) of the Act, the proposed
regulation would clarify in Sec. 300.154(b)(1)(i), that a public
agency
[[Page 35791]]
may fulfill its obligation to ensure FAPE either directly or through
contracts or other arrangements pursuant to Sec. 300.154(a) or (c).
Likewise, the proposed regulation would clarify, in Sec.
300.154(b)(2), that the LEA or State agency is authorized to claim
reimbursement and, in Sec. 300.154(c)(3), that other appropriate
written methods also must be approved by the Secretary. Consistent with
statutory changes regarding submission of State information, the
proposed regulation would remove the current regulatory language in
Sec. 300.142(d), that the State have on file with the Secretary,
information to demonstrate that the requirements of this regulation are
met. However, as reflected in proposed Sec. 300.704(a)(3), section
611(e)(1)(C) of the Act requires that States certify to the Secretary
that agreements to establish responsibility for services are current
before the State may expend section 611 funds for State administration.
Proposed Sec. 300.154(d)(2)(iv) would include a new provision that
to access the parent's public insurance proceeds, the public agency
must obtain parental consent, in accordance with proposed Sec. 300.622
the first time that access is sought, and notify parents that refusal
to allow access to their public insurance does not relieve the public
agency of its responsibility to ensure that all required services are
provided at no cost to the parents. Under Part B of the Act, special
education and related services, as well as supplementary aids and
services and supports that an IEP Team determines a child with a
disability needs in order to receive FAPE, must be provided at no cost
to the parents or the child. Use of a parent's insurance often imposes
costs to the parent that are not, and often cannot be known at the time
the costs are billed to the insurance provider. Under the Family
Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA), a
child's records cannot be released without parental consent, except for
a few specified exceptions. No FERPA exception permits public agencies
to release educational records for insurance billing purposes without a
parent's consent. We must ensure that a parent consents to the release
of a child's records for that purpose and that the parents are informed
that refusing to give consent to the release of education records for
that purpose will not prevent a child from receiving the services that
are in the child's IEP.
Proposed Sec. 300.154(e) would retain the current requirements
regarding children with disabilities who are covered by private
insurance. Proposed Sec. 300.154(f), (g), and (h), respectively,
regarding use of Part B funds, proceeds from public and private
insurance, and construction are essentially the same as paragraphs (g),
(h), and (i) of Sec. 300.142 of the current regulations.
Additional Eligibility Requirements
Proposed Sec. 300.155, regarding hearings for LEA eligibility,
would remove the current requirements in Sec. 300.144 that States have
procedures on file with the Secretary, but generally would retain the
requirement that States have procedures to give an LEA notice and an
opportunity for a hearing prior to a final determination that it is not
eligible for funds under Part B.
Current Sec. Sec. 300.135 and 300.136, regarding a comprehensive
system of personnel development and personnel standards, would be
removed consistent with the statutory removal of these provisions in
the Act (see section 612(a)(14) and (15) of the Act in effect before
December 3, 2004) relating to the comprehensive system of personnel
development and personnel standards.
Proposed Sec. 300.156, regarding personnel qualifications, would
include the statutory provisions related to States' establishment and
maintenance of personnel qualifications for special education teachers
that align Part B of the Act with the highly qualified teacher
provisions in section 1119(a)(2) of the ESEA; and also address
personnel qualifications for related services providers and
paraprofessionals. As provided in note 21 of the Conf. Rpt., the
incorporated provisions require that special education teachers obtain
full State certification as special education teachers, but it does not
prevent regular education and other teachers who are highly qualified
in particular subjects from providing instruction in core academic
subjects to children with disabilities in those subjects. For example,
a reading specialist who is highly qualified in reading instruction,
but who is not certified as a special education teacher, would not be
prohibited from providing reading instruction to children with
disabilities. Proposed Sec. 300.156(a) contains the general
requirement that a State's qualifications ensure that personnel
carrying out the purposes of part 300 are appropriately and adequately
prepared and trained, including that those personnel have the content
knowledge and skills to serve children with disabilities.
Proposed Sec. 300.156(b) would incorporate the provisions in
section 612(a)(14)(B) of the Act regarding personnel qualifications for
related services providers and paraprofessionals. This would include
the requirement that the State's standards must ensure that related
services personnel and paraprofessionals meet qualifications that are
consistent with any State-approved or recognized certification,
licensing, registration or other comparable requirements for their
professional discipline. These procedures also must ensure that related
services personnel who deliver services meet applicable qualification
standards and have not had certification or licensure requirements
waived on an emergency, temporary, or provisional basis. Proposed Sec.
300.156(b) reflects the comment in note 97 of the Conf. Rpt. that the
current regulations requiring related services providers to meet the
highest State standard applicable to their profession across all State
agencies have established an unreasonable standard for SEAs to meet,
and as a result, have led to a shortage of the availability of related
services for students with disabilities. Conferees intended for SEAs to
establish rigorous qualifications for related services providers to
ensure that students with disabilities receive the appropriate quality
and quantity of care. SEAs are encouraged to consult with LEAs, other
State agencies, the disability community, and professional
organizations to determine the appropriate qualifications for related
services providers, including the use of consultative, supervisory, and
collaborative models to ensure that students with disabilities receive
the services described in their individual IEPs. To that end, proposed
Sec. 300.156(b)(2)(iii), similar to the current regulation in Sec.
300.136(f), generally would permit States to allow paraprofessionals
and assistants who are appropriately trained and supervised to assist
in providing special education and related services under Part B of the
Act to children with disabilities.
Proposed Sec. 300.156(c) would incorporate the new requirement in
section 612(a)(14)(C) of the Act that all special education teachers be
highly qualified by the deadline established in the ESEA (the end of
the 2005-2006 school year). It would also specify that this requirement
applies only to public school special education teachers, in light of
the statutory definition of ``highly qualified'' in section 602(10) of
the Act. Proposed Sec. 300.156(d) would include the statutory
authorization for a State to adopt a policy requiring LEAs to take
measurable steps to recruit, hire, train, and retain highly qualified
personnel.
Proposed Sec. 300.156(e) would incorporate the language in section
612(a)(14)(E) of the Act, regarding the
[[Page 35792]]
rule of construction that these provisions do not create a right of
action on behalf of an individual student for the failure of a
particular SEA or LEA staff person to be highly qualified or prevent a
parent from filing a State complaint with the SEA about staff
qualifications under Sec. Sec. 300.151 through 300.153 of the proposed
regulations.
Proposed Sec. 300.157, regarding performance goals and indicators,
would revise the current Sec. 300.137, consistent with the revised
provisions in section 612(a)(15) of the Act. Proposed Sec.
300.157(a)(2) would include a new provision that aligns the goals and
indicators with the State's definition of adequate yearly progress,
including progress by children with disabilities, under section
1111(b)(2)(C) of the ESEA. Proposed Sec. 300.157(a)(3) would retain
the current provision in Sec. 300.137(b), that public agencies must
address graduation and dropout rates. In order to conform to the
language in section 612(a)(15) of the Act, the proposed regulation
would contain the following changes: proposed Sec. 300.157(a)(4) would
remove from the current provision in Sec. 300.137(a)(2), the term
``maximum'' before ``extent appropriate'' and add the word ``any''
before ``other goals and standards for all children established by the
State.'' Likewise, proposed Sec. 300.157(b) would remove from the
current provision in Sec. 300.137(b), the words appearing after the
word, ``achieving'' and add, in their place, the words, ``the goals
described in paragraph (a) of this section, including measurable annual
objectives for progress by children with disabilities under section
1111(b)(2)(C)(v)(II)(cc) of the ESEA; and''. Proposed Sec. 300.157(c)
would change the requirement for reporting to the public and to the
Secretary in current Sec. 300.137(c) from every two years to annually
and would provide that elements of the report under section 1111(h) of
the ESEA may be included in the annual report under Part B of the Act.
Proposed Sec. 300.160, regarding participation in assessments,
would replace Sec. Sec. 300.138 and 300.139 of the current regulations
and would incorporate the changes in section 612(a)(16) of the Act. For
reasons of burden reduction described throughout this preamble, the
proposed regulation would remove the current requirement in Sec.
300.138 that the State have information on file with the Secretary.
Consistent with language in section 613(a)(16) of the Act, proposed
Sec. 300.160(a) would add to the current provision in Sec. 300.138(a)
the word ``all'' before the word ``children'', and before the phrase
``general State and districtwide assessment programs'' and would
clarify that this requirement includes assessments described in section
1111 of the ESEA. Proposed Sec. 300.160(a) also would remove, from the
current provision in Sec. 300.138(a), ``modifications in
administration'' and add, in its place, ``alternate assessments'' and
would add after the word ``necessary'', the words, and ``as indicated
in their respective IEPs.''
Proposed Sec. 300.160(b) would require that States, (or, in the
case of districtwide assessments, LEAs) develop guidelines for
providing appropriate accommodations in assessments. Proposed Sec.
300.160(c)(1) would address guidelines for participation in alternate
assessments for those children who cannot participate in regular
assessments as indicated in their IEPs. Proposed Sec. 300.160(c)(2)
would include a provision that, in the case of assessments of student
academic progress, alternate assessments and guidelines under proposed
Sec. 300.160(c)(1) are aligned with the State's challenging academic
content and challenging student academic achievement standards or the
alternate achievement standards, if adopted under the regulations
implementing section 1111(b)(1) of the ESEA. Proposed Sec.
300.160(c)(3) would require that the State conduct the alternate
assessments described in section 1111(b)(1) of the ESEA.
Proposed Sec. 300.160(d) would incorporate the requirement in
section 612(a)(16)(D) of the Act for the SEA, in the case of a
statewide assessment, and the LEA, in the case of a districtwide
assessment, to report to the public on the assessment of children with
disabilities with the same frequency and in the same detail that it
reports on the assessment of nondisabled children, and replace the
current requirements in Sec. 300.139.
Proposed Sec. 300.160(e) would incorporate the new requirement in
section 612(a)(16)(E) of the Act that the SEA, in the case of statewide
assessments, and the LEA, in the case of districtwide assessments, to
the extent possible, use universal design in developing and
implementing assessments.
Consistent with section 612(a)(17) of the Act, the current
provisions in Sec. 300.155, regarding use of funds; Sec. 300.152,
regarding non-commingling; and Sec. 300.153, regarding State-level
nonsupplanting, would be combined into proposed Sec. 300.162. The
proposed regulation generally would retain the requirements that Part B
funds be expended in accordance with Part B of the Act, that Part B and
State funds not be commingled, and that Part B funds be used to
supplement, and in no case to supplant other Federal, State, and local
funds expended for special education and related services. Consistent
with statutory changes discussed previously, the proposed regulation
would eliminate the current provision in Sec. 300.155, that States
have policies and procedures on file with the Secretary; would replace
the current provisions in Sec. 300.152(a), that States provide the
Secretary an assurance; and would replace the current provision in
Sec. 300.153(a)(2), that the State have information on file with the
Secretary demonstrating compliance with the use of Part B funds to
supplement and not supplant, with straightforward statements of the
statutory requirements. These changes would be consistent with changes
in section 612(a) of the Act regarding State submission of information.
Proposed Sec. 300.162(b)(2) would retain the current provision in
Sec. 300.152(b) clarifying that use of a separate accounting system
including an audit trail of expenditures of Part B funds would satisfy
the prohibition on commingling.
Proposed Sec. 300.162(c)(1) would retain the current provision in
Sec. 300.153(a)(1), regarding the basic non-supplanting requirement.
Proposed Sec. 300.162(c)(2) would retain the current provision in
Sec. 300.153(b), regarding the Secretary's ability to waive, in whole
or in part, the State-level nonsupplanting requirement if the State
provides clear and convincing evidence regarding the availability of
FAPE to all children with disabilities. This waiver would be addressed
further in proposed Sec. 300.164.
Proposed Sec. 300.163 generally would retain the current
provisions in Sec. 300.154, regarding maintenance of State financial
support. However, consistent with the language in section 612(a) of the
Act, the proposed regulation would eliminate the provision regarding
information that States must have on file with the Secretary
demonstrating, on either a total or per-capita basis, that the State
will not reduce the amount of State financial support for special
education and related services for children with disabilities.
Proposed Sec. 300.164, regarding waiver of the requirement
regarding supplementing and not supplanting Part B funds, would retain
the current provisions in Sec. 300.589, except that to reduce
regulatory burden, proposed Sec. 300.164(c)(4) would reduce the number
of entities with which a State must consult when determining that FAPE
is currently available to all
[[Page 35793]]
eligible children with disabilities in the State, and eliminate the
requirement for a summary of the input of the entities consulted.
Proposed Sec. 300.165(a) would incorporate the language in section
612(a)(19) of the Act regarding public participation in the adoption of
policies and procedures to implement Part B of the Act, which is the
same as the current provision in Sec. 300.148(a)(1). Current Sec.
300.148(a)(2) and (b), regarding alternate ways of meeting the public
participation requirement and the requirement that the State
documentation be on file with the Secretary, would be removed. The
current provisions in Sec. Sec. 300.280 through 300.284 regarding
public participation also would be removed. Removing the requirement
for States to submit extensive documentation to the Secretary on how
the public participation requirements are met should reduce regulatory
burden on States. States are required to comply with the public
participation requirements of the General Education Provisions Act, in
20 U.S.C. 1232d(b)(7), as provided for in proposed Sec. 300.165(b), as
well as State-specific requirements, in adopting policies and
procedures relating to Part B of the Act, which should provide
sufficient opportunities for public participation.
Proposed Sec. 300.166 would incorporate the language in section
612(a)(20) of the Act, regarding the rule of construction on use of
Federal funds to satisfy State-mandated funding of obligations to LEAs
for purposes of complying with proposed Sec. Sec. 300.162 and 300.163.
State Advisory Panel
Proposed Sec. 300.167, regarding State advisory panels, would
incorporate the provisions in section 612(a)(21)(A) of the Act and
would remove from current Sec. 300.650, language regarding information
on file with the Secretary. The proposed regulation also would remove
the provision from current Sec. 300.650 permitting modification of
existing advisory panels to be consistent with section 612(a)(21)(A) of
the Act.
Proposed Sec. 300.168, regarding the membership of State advisory
panels, generally would retain the current provisions in Sec. 300.651.
In addition, proposed Sec. 300.168(a)(5) and (10), would incorporate
the statutory references to officials who carry out activities under
subtitle B of title VII of the McKinney-Vento Homeless Assistance Act,
42 U.S.C. 11431 et seq., and a representative from the State child
welfare agency responsible for foster care, respectively. Consistent
with the Act, proposed Sec. 300.168(b) would include a provision in
the special rule that clarifies that for panel membership a majority of
the members of the panel must be individuals with disabilities or
parents of children with disabilities (ages birth through 26).
Proposed Sec. 300.169, regarding duties of the advisory panel,
generally would retain the current provisions of Sec. 300.652, except
that the current language in Sec. 300.652(b), regarding advising on
eligible students with disabilities in adult prisons, would be removed.
Given the breadth of its statutory responsibilities, nonstatutory
mandates on the State advisory panels would be removed.
To provide greater flexibility for States in the operations of
advisory panels, the current provision in Sec. 300.653, regarding
procedures of the advisory panel, would be removed.
Other Provisions Required for State Eligibility
Proposed Sec. 300.170, regarding suspension and expulsion rates,
would retain most of the current provisions in Sec. 300.146, but would
remove the language that the States have information on file with the
Secretary, consistent with statutory changes on State submission of
information. In addition, consistent with section 612(a)(22) of the
Act, proposed Sec. 300.170(b) would replace, from the current Sec.
300.146(b), ``behavioral interventions'' with ``positive behavioral
interventions and supports.''
Proposed Sec. 300.171, regarding the annual description of the use
of Part B funds, would clarify the current Sec. 300.156(a)(1) that
addresses the amounts retained for State administration and State-level
activities, generally would retain the current provisions in Sec.
300.156(a)(2) and (b), and would remove the current provision in Sec.
300.156(c) regarding percentages distributed to LEAs since this
information does not assist the Department in determining whether an
SEA is complying with Part B of the Act in this regard. Proposed Sec.
300.171 also would add a new paragraph (c) to clarify that, based on
section 611(g)(2) of the statute, the provisions of this section do not
apply to the Virgin Islands, Guam, American Samoa, the Commonwealth of
the Northern Mariana Islands, and the freely associated States.
Proposed Sec. 300.172, regarding access to instructional
materials, would incorporate the new language in section 612(a)(23) of
the Act regarding the timely provision of instructional materials to
blind persons or other persons with print disabilities. Proposed Sec.
300.172 uses ``persons'' to conform to the language in the Act.
However, in the context of this regulatory provision, ``persons'' means
``children.'' Proposed Sec. 300.172(a) would repeat the requirement
from section 612(a)(23)(A) of the Act that the State must adopt the
National Instructional Materials Accessibility Standard (NIMAS) in a
timely manner after its publication in the Federal Register by the
Department. The NIMAS will be the subject of a separate rulemaking
process. In that proposed rulemaking document, we will propose to add
the NIMAS to part 300 as an appendix.
Proposed Sec. 300.172(b) would incorporate the provision in
section 612(a)(23)(B) of the Act that a State is not required to
coordinate with the National Instructional Materials Accessibility
Center (NIMAC) and the requirements that apply if an SEA chooses not to
coordinate with the NIMAC. Proposed Sec. 300.172(b)(3) would provide
that nothing in this section would relieve an SEA of its responsibility
to ensure that children with disabilities who need instructional
materials in accessible formats, but who do not fall within the
category of children for whom the SEA may receive assistance from
NIMAC, receive those instructional materials in a timely manner. Timely
access to appropriate and accessible instructional materials is an
inherent component of public agencies' obligations under the Act to
ensure that FAPE is available for children with disabilities and that
they participate in the general education curriculum as specified in
their IEPs. The provisions in section 612(a)(23) of the Act will assist
SEAs in carrying out that responsibility for most children with
disabilities who need accessible instructional materials. Section
674(e)(3)(A) of the Act limits the authority of the NIMAC to provide
assistance to SEAs and LEAs in acquiring instructional materials for
children who are blind, have visual disabilities, are unable to read or
use standard printed materials because of physical limitations, and
children who have reading disabilities that result from organic
dysfunction, as provided for in 36 CFR Sec. 701.10(b). Clearly, SEAs
and LEAs that choose to use the services of the NIMAC will be able to
assist blind persons or other persons with print disabilities who need
accessible instructional materials through this mechanism. However,
SEAs and LEAs still have an obligation to provide accessible
instructional materials in a timely manner to other children with
disabilities, who also may need accessible materials even though SEAs
[[Page 35794]]
and LEAs may not receive assistance for these children from NIMAC.
Proposed paragraph Sec. .172(c) would incorporate the provision in
section 612(a)(23)(C) of the Act regarding preparation and delivery of
files if an SEA chooses to coordinate with the NIMAC.
In accordance with section 612(a)(23)(D) of the Act, Sec.
300.172(d) would require an SEA, to the maximum extent possible, to
collaborate with the State agency responsible for assistive technology
programs. Proposed Sec. 300.172(e) contains, in accordance with
section 612(a)(23)(E) of the Act, definitions of blind persons or other
persons with print disabilities, NIMAC, NIMAS, and specialized formats.
Proposed Sec. 300.173, regarding State policies and procedures
designed to prevent inappropriate overidentification and
disproportionality, would incorporate the new provision in section
612(a)(24) of the Act. This proposed regulation would require the State
to have in effect, consistent with section 618(d) of the Act, policies
and procedures to prevent the inappropriate overidentification or
disproportionate representation by race and ethnicity of children as
children with disabilities, including children with disabilities with a
particular impairment.
Proposed Sec. 300.174 would incorporate the new provision in
section 612(a)(25) of the Act and would prohibit State and LEA
personnel from requiring parents to obtain prescriptions for controlled
substances for a child as a condition of the child's school attendance,
the child's receipt of a Part B evaluation, or the child's receipt of
services. Proposed paragraph Sec. 300.174(b) would contain the
statutory rule of construction in section 612(a)(25)(B) of the Act and
would clarify that this provision does not create a Federal prohibition
against teachers and other school personnel consulting or sharing with
parents their observations on the student's functional or academic
performance, and behavior in the classroom or school, or the child's
possible need for an initial evaluation for special education and
related services.
Proposed Sec. 300.175, regarding the SEA as provider of FAPE or
direct services, generally would retain the current provisions in Sec.
300.147. The proposed regulation would remove the provision that States
must have information on file with the Secretary demonstrating that
they meet these requirements, consistent with statutory changes
discussed previously.
Consistent with the statutory changes, proposed Sec. 300.176,
regarding exceptions for prior State plans and modifications to the
plans, generally would combine and retain the current provisions in
Sec. Sec. 300.111 and 300.112, with some minor changes. The date in
proposed Sec. 300.176(a) would be changed to December 3, 2004, the
date on which the Act was signed into law. Consistent with the statute,
proposed Sec. 300.176(b)(1) would revise the current language from
``State decides are necessary'' to ``State determines necessary.''
Consistent with the Act, proposed Sec. 300.176(b)(2) would replace
references to ``policies and procedures'' with ``application'' and
``original'' State plan. Consistent with the Act, proposed Sec.
300.176(c)(1) would reference December 3, 2004, the date on which the
Act was signed into law.
Department Procedures
Proposed Sec. 300.178, regarding the Secretary's determination of
State eligibility to receive a grant, would retain the current
requirements in Sec. Sec. 300.113(a) and 300.580.
Proposed Sec. 300.179, regarding notice and hearing before
determining a State is not eligible to receive a grant, would retain
the current requirements in Sec. Sec. 300.113(b) and 300.581.
Proposed Sec. 300.180, regarding the hearing official or panel,
would retain the current requirements in Sec. 300.582.
Proposed Sec. 300.181, regarding the hearing procedures, would
retain the current requirements in Sec. 300.583.
Proposed Sec. 300.182, regarding the initial and final hearing
decisions, would retain the current requirements in Sec. 300.584
except proposed Sec. 300.182(h) would be revised to clarify that the
Secretary rejects or modifies the initial decision of the Hearing
Official or Hearing Panel if the Secretary finds that it is clearly
erroneous.
Proposed Sec. 300.183, regarding filing requirements, would retain
the current requirements in Sec. 300.585.
Proposed Sec. 300.184, regarding judicial review, would retain the
current requirements in Sec. 300.586.
Proposed Sec. 300.186, regarding assistance under other Federal
programs, would incorporate the provisions in section 612(e) of the
Act. Proposed Sec. 300.186 would clarify the current requirements in
Sec. 300.601, regarding the relation of Part B to assistance under
other Federal programs, and would continue to provide that Part B of
the Act may not be construed to permit a State to reduce or alter
eligibility for medical or other assistance for children with
disabilities under titles V and IX of the Social Security Act, but
would reference ``with respect to the provision of FAPE for children
with disabilities'' instead of ``services that are part of FAPE.''
By-pass for Children in Private Schools
The proposed regulations regarding by-pass for children in private
schools would incorporate changes in section 612(f) of the Act and
would represent the first amendments to these regulations since they
were adopted in 1984. Because the statutory changes related to the
participation of parentally-placed private school children with
disabilities should make it more likely that these procedures will be
implemented, these proposed revisions would align the by-pass
provisions from Part B of the Act with the general by-pass procedures
in the Department's general administrative regulations in 34 CFR 76.670
through 76.677 that apply to other Department programs, including
programs under titles I and IX of the ESEA. This alignment should help
to ensure consistent implementation of the by-pass provisions
throughout the Department.
Proposed Sec. 300.190, regarding the general by-pass provision,
would revise the current requirements in Sec. 300.480. Consistent with
changes in section 612(f)(1) of the Act, the proposed regulation would
retain the current authority for a by-pass and would add additional
authority in cases where the Secretary determines that an SEA, LEA, or
other entity has substantially failed or is unwilling to provide for
equitable participation. The proposed regulation generally would retain
the current provision in Sec. 300.480(b) regarding waiver of the
requirements in these proposed regulations governing parentally-placed
private school children with disabilities.
Proposed Sec. 300.191, regarding services under a by-pass,
generally would retain the current provisions in Sec. 300.481, but
with some exceptions. Proposed Sec. 300.191(a)(1) would replace ``The
prohibition'' with ``Any prohibition'' and would add ``and'' at the end
of Sec. 300.191(a)(1). The current provision in Sec. 300.481(a)(3),
regarding policies and procedures, would be removed consistent with
other burden reduction changes in these proposed regulations. Proposed
Sec. 300.191(a) would add ``and, as appropriate, LEA or other public
agency officials'' and paragraphs (b) and (c)(1) of proposed Sec.
300.191 would add ``LEA or other public agency.'' These changes are
necessary to ensure effective implementation of the by-pass provision
within an affected State because, in general, a by-pass would be
implemented only in a specific LEA or
[[Page 35795]]
other public agency within the State and not statewide. Thus, the
change in proposed Sec. 300.191(a) would ensure that the Secretary
also consults with appropriate agency officials in any affected LEA or
public agency within the State.
Proposed Sec. 300.191(c)(1), regarding the calculation of the
amount per child that is to be paid to providers, would revise the
current provision in Sec. 300.481(c)(1) to reflect the provision in
section 612(f)(2)(A) of the Act.
Proposed Sec. Sec. 300.192 and 300.193, regarding notice of intent
to implement a by-pass and request to show cause, would retain the
current provisions in Sec. Sec. 300.482 and 300.483, but would add
``LEA or other public agency'' for consistency with statutory language.
Proposed Sec. 300.194, regarding the show cause hearing, would
retain the current provisions in Sec. 300.484 and would add language
to address statutory changes and align the proposed regulation with the
by-pass regulations in 34 CFR 76.673 and 76.674 that apply to other
Department programs. Proposed Sec. 300.194(a) would add ``LEA or other
public agency'' to make the provisions consistent with language in
section 612(f) of the Act. Proposed Sec. 300.194(a)(3) is a new
provision that would provide an opportunity for an SEA, LEA, or other
public agency and representatives of private schools to be represented
by legal counsel and to submit oral or written evidence and arguments.
Proposed Sec. 300.194(d) would incorporate the by-pass provision in 34
CFR 76.763(b), and would specify that the designee conducting the
hearing has no authority to require or conduct discovery. Proposed
Sec. 300.194(g) would incorporate the by-pass provision in 34 CFR
76.674(b), and would specify that within 10 days after the hearing, the
designee indicates that a decision will be issued on the basis of the
existing record or requests further information from one or more of the
parties to the hearing.
Proposed Sec. 300.195, regarding the show cause hearing decision,
would retain the current provisions in Sec. 300.485 and add language
to address statutory changes and to align the proposed regulation with
the by-pass regulations in 34 CFR 76.675. Proposed Sec. 300.195(a)(1)
would incorporate the 120-day time period for closing the record of the
hearing from the by-pass provision in 34 CFR 76.675(a)(1). Proposed
Sec. 300.195(b) would replace the 15-day time period to submit
comments and recommendations on the designee's decision with the 30-day
time period consistent with 34 CFR 76.675(b). Proposed Sec. 300.195(c)
would replace ``SEA'' with ``all parties to the show cause hearing'' in
order to make the provision consistent with language in section 612(f)
of the Act.
Proposed Sec. Sec. 300.196 and 300.197, regarding filing
requirements and judicial review, would retain the current regulations
in Sec. Sec. 300.486 and 300.487, respectively.
Proposed Sec. 300.198, regarding continuation of a by-pass, is a
new provision that would incorporate the continuation of a by-pass
requirement in 34 CFR 76.677 and would permit continuation of the by-
pass until the Secretary determines that the SEA, LEA, or other public
agency will meet the requirements for providing services to private
school children.
Proposed Sec. 300.199, regarding State administration, would
incorporate the requirements in section 608 of the Act requiring that
rulemaking conducted by the State conform to the purposes of Part B of
the Act, that States minimize the number of rules, regulations, and
policies to which LEAs and schools are subject to under the Act, and
identify in writing any rule, regulation, or policy that is State-
imposed and not required under the Act and its implementing
regulations.
Subpart C--LEA Eligibility
Proposed Sec. 300.200 would be similar to the current Sec.
300.180 regarding the conditions of LEA eligibility, but would be
revised consistent with the change in section 613(a) of the Act to
require LEAs to provide assurances, rather than demonstrate, to the
State that they meet the eligibility conditions. Cross-references to
those eligibility conditions would be updated.
Proposed Sec. 300.201, regarding consistency with State policies,
would be essentially the same as the current Sec. 300.220(a), with
appropriate updating to reflect the structure of these proposed
regulations. Current Sec. 300.220(b) concerning policies on file with
the SEA would be removed in light of the statutory change requiring
only that an LEA provide assurances regarding its policies and
procedures.
Proposed Sec. 300.202 would combine the provisions addressed in
current Sec. Sec. 300.184(c) and 300.185, regarding excess cost
requirements, and current Sec. 300.230, regarding use of funds, with
appropriate updating. Current Sec. 300.184(a) would be removed because
it is duplicative of the requirement in proposed Sec. 300.202(a)(2)
that Part B funds must be used only to pay the excess costs of special
education and related services to children with disabilities. The
definition of excess costs in the current Sec. 300.184(b) would be
moved to proposed Sec. 300.16 of subpart A of these proposed
regulations.
Proposed Sec. 300.203 would incorporate current Sec. 300.231 on
LEA maintenance of effort, with appropriate updating to reflect the
structure of these proposed regulations. The standard for determining
whether an LEA is complying with the LEA maintenance of effort
requirement would be in proposed Sec. 300.203(b) and would be
substantively the same as current Sec. 300.231(c). The language in
current Sec. 300.231(b) would be removed, based on the statutory
change requiring LEAs to provide assurances in their applications to
the State, rather than information that demonstrates their compliance.
Proposed Sec. 300.204 would replace current Sec. 300.232,
regarding the exceptions to the LEA maintenance of effort provision,
with language that more closely reflects the language in section
613(a)(2)(B) of the Act and clarifies the conditions under which the
LEA may reduce the level of expenditures under Part B of the Act below
the level of expenditures for the preceding year. As a result, we would
remove the provisions in the current Sec. 300.232(a) that limit the
circumstances under which LEAs may reduce expenditures as a result of
the voluntary departure of special education personnel only to
situations in which those departing personnel are replaced with
qualified, lower-salaried staff. In addition, the requirements that the
voluntary departures be in conformity with existing board policies,
collective bargaining agreements, and applicable State statutes would
be removed. These changes would reduce regulatory burden on school
districts and provide increased flexibility in funding decisions.
However, the basic requirement that LEAs must ensure the provision of
FAPE to eligible children, regardless of the costs, would remain the
same.
Proposed Sec. 300.204(e) would add a condition based on section
611(e)(3) of the Act, regarding the assumption of costs by the high
cost fund, under which an LEA may reduce its level of expenditures.
Proposed Sec. 300.204(e) is needed because LEAs should not be required
to maintain a level of fiscal effort based on costs that are assumed by
the SEA's high cost fund.
Section 613(a)(2)(C)(i) of the Act was substantially revised to
provide an adjustment to local fiscal effort in certain years in place
of a provision in the prior law that permitted LEAs to use a portion of
the Federal funds they received as local funds for special education.
As a result, we would remove the current Sec. 300.233, which
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was based on the prior statutory language, and replace it with proposed
Sec. 300.205, which is based on the revised statute. Proposed Sec.
300.205 would add an exception that, if an SEA exercises its authority
under Sec. 300.230(a), LEAs in the State may not reduce local effort
under Sec. 300.205 by more than the reduction in the State funds they
receive. Section 300.230 only applies if an SEA pays or reimburses all
LEAs in the State 100 percent of the non-Federal share of the costs of
special education and related services.
Under proposed Sec. 300.205, in years when the LEA receives an
allocation of formula funds that exceeds the amount it received in the
prior year, the LEA would be permitted to reduce the level of its local
maintenance of effort amount by not more than 50 percent of the
increase in its section 611 allocation. The LEA would then be required
to use local funds equal to the reduction to carry out activities
authorized under the ESEA, as explained in proposed Sec. 300.205(b).
In subsequent years, an LEA that reduced local fiscal effort in
accordance with proposed Sec. 300.205(a) would be required to meet
this lower fiscal effort amount, unless it could again reduce local
fiscal effort based on proposed Sec. 300.205. Proposed Sec.
300.205(c) would describe circumstances under which the SEA may
prohibit an LEA from reducing the level of local expenditure. Proposed
Sec. 300.205(d) would implement the provision in section
613(a)(2)(C)(iv) of the Act that provides that the amount of funds
expended for early intervening services will count toward the maximum
amount by which an LEA may reduce local maintenance of effort.
LEAs wanting to exercise the authority in section 613(a)(2)(C)(iv)
of the Act in conjunction with the authority to use not more than 15
percent of the LEA's total grant for early intervening services under
proposed Sec. 300.226 should use caution, however, because as noted in
proposed Sec. Sec. 300.205(a) and (d), and 300.226(a), the operation
of the local maintenance of effort reduction provision and the
authority to use Part B funds for early intervening services under
section 613(f)(1) of the Act and proposed Sec. 300.226(a) would be
interconnected. The decisions that an LEA makes about the amount of
funds that it would use for one purpose would affect the amount that it
may use for the other. The following examples illustrate how these
provisions affect one another:
Example 1: In this example, the amount that is 15 percent of the
LEA's total grant (see proposed Sec. 300.226(a)), which is the
maximum amount that the LEA may use for early intervening services
(EIS), is greater than the amount that may be used for local
maintenance of effort (MOE) reduction (50 percent of the increase in
the LEA's grant from the prior year's grant) (see proposed Sec.
300.205(a)).
Prior Year's Allocation: $900,000.
Current Year's Allocation: $1,000,000.
Increase: $100,000.
Maximum Available for MOE Reduction: $50,000.
Maximum Available for EIS: $150,000.
If the LEA chooses to set aside $150,000 for EIS, it may
not reduce its MOE (MOE maximum $50,000 less $150,000 for EIS means $0
can be used for MOE).
If the LEA chooses to set aside $100,000 for EIS, it may
not reduce its MOE (MOE maximum $50,000 less $100,000 for EIS means $0
can be used for MOE).
If the LEA chooses to set aside $50,000 for EIS, it may
not reduce its MOE (MOE maximum $50,000 less $50,000 for EIS means $0
can be used for MOE).
If the LEA chooses to set aside $30,000 for EIS, it may
reduce its MOE by $20,000 (MOE maximum $50,000 less $30,000 for EIS
means $20,000 can be used for MOE).
If the LEA chooses to set aside $0 for EIS, it may reduce
its MOE by $50,000 (MOE maximum $50,000 less $0 for EIS means $50,000
can be used for MOE).
Example 2: In this example, the amount that is 15 percent of the
LEA's total grant (see proposed Sec. 300.226(a)), which is the
maximum amount that the LEA may use for EIS, is less than the amount
that may be used for MOE reduction (50 percent of the increase in
the LEA's grant from the prior year's grant) (see proposed Sec.
300.205(a)).
Prior Year's Allocation: $1,000,000.
Current Year's Allocation: $2,000,000.
Increase: $1,000,000.
Maximum Available for MOE Reduction: $500,000.
Maximum Available for EIS: $300,000.
If the LEA chooses to use no funds for MOE, it may set
aside $300,000 for EIS (EIS maximum $300,000 less $0 means $300,000 for
EIS).
If the LEA chooses to use $100,000 for MOE, it may set
aside $200,000 for EIS (EIS maximum $300,000 less $100,000 means
$200,000 for EIS).
If the LEA chooses to use $150,000 for MOE, it may set
aside $150,000 for EIS (EIS maximum $300,000 less $150,000 means
$150,000 for EIS).
If the LEA chooses to use $300,000 for MOE, it may not set
aside anything for EIS (EIS maximum $300,000 less $300,000 means $0 for
EIS).
If the LEA chooses to use $500,000 for MOE, it may not set
aside anything for EIS (EIS maximum $300,000 less $500,000 means $0 for
EIS).
With regard to the new statutory provision on which proposed Sec.
300.205 is based, note 122 of the Conf. Rpt. states:
The Conferees intend for school districts to have meaningful
flexibility to use local funds that are generated from their
reduction in the maintenance of effort. The Conferees do not intend
that school districts have to use these local funds for programs
exclusively authorized under the Elementary and Secondary Education
Act of 1965. The conferees recognize that most state and local
education programs are consistent with the broad flexibility that is
provided in section 5131 of the Elementary and Secondary Education
Act of 1965.
The Conferees intend that in any fiscal year in which the local
educational agency or State educational agency reduces expenditures
pursuant to section 613(a)(2)(C) or section 613(j), the reduced
level of effort shall be considered the new base for purposes of
determining the required level of fiscal effort for the succeeding
year.
In order to effectuate the flexibility in the use of local funds
suggested by this language, proposed Sec. 300.205(b) would provide
that the local funds equal to the reduction in local expenditures for
special education and related services authorized by proposed Sec.
300.205(a) may be used to carry out activities that could be supported
with funds under the ESEA regardless of whether the LEA is actually
using funds under the ESEA for those activities. An LEA can demonstrate
that it meets the requirements in proposed Sec. 300.205(b) by showing
that it has expended, for elementary and secondary education, an
increased amount of local funds equal to the reduction under proposed
Sec. 300.205(a) when compared to local expenditures for elementary and
secondary education for the prior year.
Proposed Sec. 300.206, regarding schoolwide programs under title I
of the ESEA, would be essentially the same as the current Sec.
300.234, with appropriate updating.
Proposed Sec. 300.207, regarding personnel development, would
reflect the new requirement under section 613(a)(3) of the Act that
LEAs ensure that all needed personnel be appropriately and adequately
prepared subject to the requirements that apply to SEAs regarding
personnel qualifications and requirements under section 2122 of the
ESEA.
Current Sec. 300.221 on implementation of the State's
comprehensive system of personnel development (CSPD) would be removed,
as section 612(a) of the Act
[[Page 35797]]
no longer requires that a State develop and implement a CSPD.
Proposed Sec. 300.208 on permissive uses of LEA funds would revise
the current Sec. 300.235 in the following ways: Paragraph (a)(2) from
the current Sec. 300.235 would be removed, as the authority to use
Part B funds to develop and implement an integrated and coordinated
services system was removed from the statute. Paragraphs (a)(2) and (3)
of proposed Sec. 300.208 would incorporate the new statutory
provisions permitting LEAs to use Part B funds for early intervening
services and to establish and implement cost or risk sharing
arrangements for high cost special education and related services,
consistent with section 613(a)(4)(A)(ii) and (iii) of the Act.
Paragraph (b) of proposed Sec. 300.208 would incorporate the new
statutory authority for LEAs to use Part B funds for administrative
case management services related to serving children with disabilities
in section 613(a)(4)(B) of the Act. Current Sec. 300.235(b) would be
removed because that information would be conveyed by the introductory
material in proposed Sec. 300.208(a), with the cross-references
updated.
Proposed Sec. 300.209 would revise current Sec. 300.241,
concerning treatment of charter schools and their students (based on
changes in section 613(a)(5) of the Act), and would also incorporate
current Sec. 300.312, regarding children with disabilities in public
charter schools. Paragraph (a) of proposed Sec. 300.209 would include
current Sec. 300.312(a), to clarify that children with disabilities
who attend public charter schools retain all rights afforded under this
part. Proposed Sec. 300.209(b) would include the provisions from
section 613(a)(5) of the Act to clarify (in paragraph (b)(1)(i)) that,
in providing services to children with disabilities attending charter
schools that are public schools of the LEA, the LEA must provide
supplementary and related services on site at the charter school to the
same extent as it does at its other public schools. Paragraph
(b)(1)(ii) of proposed Sec. 300.209 would specify that an LEA must
provide funds under Part B of the Act to the LEA's charter schools on
the same basis as it provides funds to its other schools, including
proportional distribution based on the relative enrollment of children
with disabilities, and that it must provide those funds at the same
time as the LEA distributes funds to its other public schools.
Proposed Sec. 300.209(b)(2) would include current Sec.
300.312(c), to provide that if the public charter school is a school of
an LEA that receives funding under Sec. 300.705 and includes other
public schools, the LEA is responsible for ensuring that the
requirements of this part are met (unless State law assigns that
responsibility to some other entity), and must meet the requirements of
proposed paragraph (b)(1) of this section.
Proposed Sec. 300.209(c) would add current Sec. 300.312(b)
(regarding public charter schools that are LEAs), to specify that a
charter school covered by this paragraph is responsible for ensuring
that the requirements of this part are met, unless State law assigns
that responsibility to some other entity.
Proposed Sec. 300.209(d) would include current Sec. 300.312(d).
Paragraph (d)(1) of proposed Sec. 300.209 would provide that if a
public charter school is not an LEA receiving funding under this part
or a school that is part of an LEA receiving funding, the SEA is
responsible for ensuring that the requirements of this part are met.
Proposed Sec. 300.209(d)(2) would clarify that a State would not be
precluded from assigning that responsibility to another entity, but the
SEA must maintain the ultimate responsibility for ensuring compliance
with this part.
Proposed Sec. 300.210 would incorporate the new requirement in
section 613(a)(6) of the Act that not later than two years after the
date of enactment of the Individuals with Disabilities Education
Improvement Act of 2004 (that is, not later than December 3, 2006), an
LEA, when purchasing print instructional materials, must acquire those
materials in the same manner as an SEA under proposed Sec. 300.172.
Proposed Sec. 300.210(b)(1) also would make clear that an LEA would
not be required to coordinate with the NIMAC, and proposed Sec.
300.210(b)(2) would explain that if it chooses not to so coordinate,
the LEA would be required to provide an assurance to the SEA that the
LEA will provide instructional materials to blind and other print
disabled persons in a timely manner. For the reasons explained
elsewhere in this preamble under the discussion of proposed Sec.
300.172, we would add paragraph (b)(3) to proposed Sec. 300.210
specifying that nothing in proposed Sec. 300.210 would relieve an LEA
of its obligations to ensure that children with disabilities who need
instructional materials in accessible formats receive those
instructional materials in a timely manner, even if it could not obtain
assistance from NIMAC in doing so.
Proposed Sec. 300.211 on LEAs providing information to the SEA to
enable the SEA to carry out its duties under Part B of the Act would be
essentially the same as the current Sec. 300.240(a), but would be
appropriately updated. The current Sec. 300.240(b) regarding
assurances the LEA would have to file with the SEA would be removed as
unnecessary because that condition would be covered by proposed Sec.
300.200.
Proposed Sec. 300.212 on public availability of LEA eligibility
information would be essentially the same as current Sec. 300.242, but
with appropriate updating.
Proposed Sec. 300.213 would reflect the new provision in section
613(a)(9) of the Act regarding LEA cooperation with the Secretary's
efforts under section 1308 of the ESEA to ensure the linkage of health
and educational information pertaining to migratory children among the
States.
Proposed Sec. 300.220 on an exception for prior local plans would
essentially consolidate the requirements in current Sec. Sec. 300.181
and 300.182. In proposed Sec. 300.220, we use the term ``policies and
procedures'' in place of the term ``application,'' which is used in
section 613(b)(2) of the Act because we use the term policies and
procedures in the current regulation. The statutory authority for
proposed Sec. 300.220 is not new, and was not changed from prior law.
Proposed Sec. 300.221 on notification of the LEA or State agency
if determined ineligible, proposed Sec. 300.222 on LEA and State
agency compliance determinations, proposed Sec. 300.223 on joint
establishment of eligibility, and proposed Sec. 300.224 on the
requirements for establishing joint eligibility are essentially the
same as current Sec. Sec. 300.181, 300.196, 300.197, 300.190 and
300.192, respectively, but with appropriate updating.
The requirements in current Sec. 300.244 regarding permissible use
of a portion of the LEA's Part B funds on coordinated services systems
and current Sec. Sec. 300.245 through 300.250 regarding LEA use of
Part B funds in school based improvement plans would be removed, as the
statutory authority for those uses has been eliminated.
Proposed Sec. 300.226 would implement the new authority under
section 613(f) of the Act, which provides that an LEA may use not more
than 15 percent of the Part B funds it receives for a fiscal year, less
certain reductions, if any, to develop and implement coordinated, early
intervening services for children who have not been identified as
eligible under the Act but who need additional academic and behavioral
support to succeed in a general education environment. Paragraph (c) of
proposed Sec. 300.226 would clarify that nothing in proposed Sec.
300.226 is construed to either limit or create a right to FAPE
[[Page 35798]]
under Part B of the Act or to delay appropriate evaluation of a child
suspected of having a disability. We have included the language
regarding evaluation of children suspected of having a disability in
proposed Sec. 300.226(c) because we believe it is critical to ensure
that any child suspected of being a child with a disability is
evaluated in a timely manner and without any undue or unnecessary
delay. Proposed paragraph Sec. 300.226(d) would reflect the reporting
requirement in section 613(f)(4) of the Act. The term ``children''
would be used in this provision, in lieu of the statutory term
``students'' to be consistent throughout part 300. Proposed Sec.
300.226(e) would implement the provision in section 613(f)(5) of the
Act that funds to provide early intervening services may be used in
conjunction with ESEA funds for early intervening services aligned with
ESEA activities under certain circumstances.
Proposed Sec. 300.227 would incorporate provisions from the
regulations in current Sec. Sec. 300.360 and 300.361 on direct
services by the SEA when an LEA or State agency has not demonstrated
its eligibility or has failed to apply for funds, is unable to
establish and maintain programs of FAPE consistent with Part B of the
Act, is unable or unwilling to be consolidated with one or more LEAs in
order to establish and maintain programs of FAPE, or has one or more
children best served by a regional or State program or service delivery
system. Proposed Sec. 300.227(a)(1) would include the phrase ``or
elected not to apply for its Part B allotment'' because there could be
situations in which an LEA chooses not to accept funds under Part B of
the Act. Finally, proposed Sec. 300.227 would reflect editorial
changes made to eliminate repetition.
Proposed Sec. 300.228 on State agency eligibility would be
essentially the same as current Sec. 300.194, but with the appropriate
updating of cross-references.
Proposed Sec. 300.229 regarding disciplinary information would be
the same as current Sec. 300.576.
Proposed Sec. 300.230 would incorporate the new provision from
section 613(i) of the Act on exceptions to SEA maintenance of effort
requirements for a State for which the amount of the State's allocation
under section 611 of the Act exceeds the amount available to the State
for the preceding fiscal year and the State pays or reimburses all LEAs
in the State, from State revenues, 100 percent of the non-Federal share
of the costs of special education. Under these conditions, the SEA
would be permitted to reduce its level of expenditures from State
sources for the education of children with disabilities by not more
than 50 percent of the amount of the increase in its section 611
allocation from the prior fiscal year, unless prohibited from doing so
by the Secretary, as provided in proposed Sec. 300.230(b). Paragraph
(e)(2) of proposed Sec. 300.230, which is not in section 613(i) of the
Act, would specify that if an SEA used its authority to reduce its
effort under proposed Sec. 300.230, LEAs in the State would not be
able to reduce local effort under proposed Sec. 300.205 by more than
the reduction in State funds that they receive. Proposed Sec.
300.230(e)(2) is necessary to ensure that SEAs and LEAs are not
independently calculating the reduction in maintenance of effort
permitted when a State is providing 100 percent of the non-Federal
share of the costs of special education and related services.
Subpart D--Evaluations, Eligibility Determinations, IEPs, and
Educational Placements
The provisions in subpart D of these proposed regulations would
reflect the requirements of section 614 of the Act. As a result, the
provisions on parental consent and evaluations and reevaluations
contained in subpart E of current regulations would be moved to subpart
D of these proposed regulations. Also, the pr